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HomeMy WebLinkAboutRDA Packet 1995/12/05 Tuesday. December 5. 1995 4:00 p.m. (immediately following the City Council meeting) Council Chambers Public Services Building Joint Meetine: of the Redevelopment Ae:encv/Citv Council of the Citv of Chula Vista CALL TO ORDER I. ROLL CALL: Agency/Council Members Alevy _' Moot _' Padilla_. Rindone _. and Chair/Mayor Horton _ November 14. 1995 and November 21. 1995 2. APPROVAL OF MINUTES: ORAL COMMUNICATIONS This is an opportunity for the general public to address the Redevelopment Agency on any subject matter within the Agency's jurisdiction that is not an item on this agenda. (State law, however, generally prohibits the Redevelopment Agency from taking action on any issues not included on the posted agenda.) If you wish to address the Council on such a subject, please complete the yellow "Request to Speak Under Oral Communications Form" available in the lobby and submit it to the Secretary to the Redevelopment Agency or City Clerk prior to the meeting. Those who wish to speak, please give your name and address for record purposes and follow up action. Your time is limited to three minutes per speaker. ACTION ITEMS The items listed in this section of the agenda are expected to elicit substantial discussions and deliberations by the Agency, staff, or members of the general public. The items will be considered individually by the Agency and staff recommendations may in certain cases be presented in the alternative. Those who wish to speak, please fill out a "Request to Speak" form available in the lobby and submit it to the Secretary to the Redevelopment Agency or the City Clerk prior to the meeting. Public comments are limited to five minutes. 3. AGENCY RESOLUTION 1478 WAIVING THE CONSULTANT SELECTION PROCESS AND AUTHORIZING THE EXECUTIVE DIRECTOR TO EXECUTE A TWO- PARTY AGREEMENT BETWEEN THE CITY OFCHULA VISTA AND WOODWARD-CLYDE CONSULTANTS FOR SOIL TESTING AND REMEDIA TION CONSULTING SERVICES AT 760 BROADWAY AND APPROPRIATING FUNDS THEREFOR-- The Agency approved demolition of pavement and structures on 11/14/95 under condition the developers of the Broadway Business Homes deposit funds to cover their share of the soil remediation costs. A contract will be executed only if demolition proceeded in accordance with all conditions previously stipulated by the Agency. Soil remediation work must begin concurrent with site demolition to maximize cost efficiency. Staff recommends approval of the resolution. (Community Development Director) (4/5ths Vote Reauired) ~ Agenda 4.A. AGENCY RESOLUTION 1479 B. COUNCIL RESOLUTION 18134 C. COUNCIL RESOLUTION 18135 -2- December 5, 1995 APPROVING A RATIFICATION OF A FUNDING COMMITMENT FROM THE LOW AND MODERATE INCOME HOUSING FUND ($378,280) FOR AN AFFORDABLE HOUSING PROJECT PROPOSED TO BE DEVELOPED IN RANCHO DEL REY SPA IIl--McMillin Companies entered into an agreement on 3/7/95 with the City. To satisfy their affordable housing requirement for SPA III McMillin created a joint venture with Sares-Regis, Orange Housing Development Corporation, and South Bay Community Services. In order to fe-apply for tax credits the developer is requesting an extension of time which will require the performance dates of the Agreements be amended. Staff recommends approval of the resolution. (Community Development Director) . APPROVING A RATIFICATION OF LAND DONATION AND FUNDING COMMITMENT FROM HOME PROGRAM FUNDS ($160,000) FOR AN AFFORDABLE HOUSING PROJECT PROPOSED TO BE DEVELOPED IN RANCHO DEL REY SPA III APPROVING (1) AN AMENDED AND RESTATED CONVEYANCE AGREEMENT AND ESCROW INSTRUCTIONS WITH RANCHO DEL REY INVESTORS; (2) AN AMENDED AND RESTATED ASSIGNMENT OF CONVEYANCE AGREEMENT AND ESCROW INSTRUCTIONS WITH CORDOVA VENTURES; AND (3) AN AMENDED AND RESTATED LOW INCOME HOUSING AGREEMENT BETWEEN RANCHO DEL REY INVESTORS AND CORDOVA VENTURES ALL WITH RESPECT TO 2.97 ACRES OF PROPERTY WITHIN SPA III PROPOSED FOR DEVELOPMENT INTO A 40 UNIT LOW INCOME HOUSING COMPLEX AND AUTHORIZING THE MAYOR TO EXECUTE THE AMENDED AND RESTATED CONVEYANCE AGREEMENT AND ESCROW INSTRUCTIONS AND THE AMENDED AND RESTATED ASSIGNMENT OF CONVEYANCE AGREEMENT AND ESCROW INSTRUCTIONS OTHER BUSINESS 5. DIRECTOR'S/CITY MANAGER'S REPORTtS) 6. CHAIR'SIMAYOR'S REPORTtS) 7. AGENCY/COUNCIL MEMBER COMMENTS ADJOURNMENT The meeting will adjourn to the Regular Redevelopment Agency Meeting on December 19, 1995 at 6:00 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:\ WP51 \AGENCY\AGENDAS\12-05-95 .AGD] .. MINUTES OF A SPECIAL MEETING OF THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA Tueaday, November 14, 1995 10:54 p.m. Council Chambers Public Services Building CALL TO ORDER 1. ROLL CALL: PRESENT: Agency Members Alevy, Moot, Padilla, and Acting Chair Rindone ABSENT: Chair Horton ALSO PRESENT: John D. Goss, Director; Bruce M. Boogaard, Agency Attorney; and Beverly A. Authelet, City Clerk 2. APPROVAL OF MINUTES: October 17, 1995 MSC (Alevy/Padilla) to approve the minutes of October 17, 1995 as presented, approved ~-1 with Horton absent. BUSINESS 3. REPORT DEMOLITION OF STRUCTURES AT 760 BROADWAY TO ACCOMMODATE THE BROADWAY BUSINESS HOMES PROJECT --On 6/27/95 the Agency accepted bids and awarded a demolition contract for the buildings on the former Fuller Ford dealership site at 760 Broadway. The Agency stipulated the structures not be demolished until all conditions of sale had been satisfied and escrow closed. Maintaining the structures has become a problem due to repeated break-ins by homeless people, vandals, and thieves. The purpose of this report is to discuss the pros and cons for demolishing the structures prior to the close of escrow. Staff recommends the Agency authorize demolition of the structures. (Community Development Director) Chris Salomone, Director of Community Development, stated staff was mindful of the Agency's clear direction that demolition be held until the close of escrow, but staff offered an option if the Agency wanted to consider it for reasons outlined in the staff report. . Josef Citron, 761 Golden Park, San Diego, CA, stated San Diego National Bank had given them a firm commitment for the construction of Phase I the amount of land necessary was approximately 20 % of the total purchase of land. If they were required to pay the full purchase price for land which they were unable to use because the fmancing was set up for six units, it would result in a serious distortion of the financing and the fiscal situation of the project, i.e. it created a hardship. The bank loan required that they put almost $500,000 in cash along side of the loan in order to do the project and the result was that there would be no profit in the project until the last building was built and sold of the thirty-six. Their commitment to the project had been proven as they had almost $300,000 in the project. The only calamity that could occur so the project would not move forward would be action taken by the Agency. He requested that in order to get the demolition done at the present time that they be allowed to pay for the demolition which was their original proposal. Member Moot stated felt the staff report and request by Mr. Citron were not compatible. Acting Chair Rindone felt when an applicant on a project had a request that it was important to see if any member had an interest in dealing with it. He felt the Agency needed to be responsive to the staff memo. He concurred that Mr. Citron's request was not identical with the staff report as staff had not recommended the demolition before the closing of escrow. The report had identified new issues such as: condition of the property, visual impact, homeless people, vandalism, and the question of the true value of the property if the project did not proceed. <~-I ~ Minutes November 14, 1995 Page 2 Member Moot stated he did not have a problem with it if the developer set aside the money to fully compensate the City if they did not close escrow. He was prepared to agree to the staff alternative (item #6), but not as far as Mr. Citron requested. Member Alevy stated the building had been vandalized and the value diminished. He questioned if there was a liability to the City. Mr. Boogaard stated he had helped to structure the staff alternative condition of taking a $295,000 deposit based on the depreciation of value and the cost of demolition as a form of an early payment that they would have to make anyway as soon as the escrow closed. He could support either of the two recommendations and staff could easily draft the $295,000 security deposit condition as an amendment to the nDA and have it back to the Agency for action. It was his understanding that the Citron's had consented to the staff recommendation. Mr. Salomone stated that the situation was different and the Citron's were offering to pay the demolition costs, $107,000, prior to the close of escrow in order to get the demolition undetway. Member Padilla stated he was disturbed with the departure from the Agency's original direction and why it was brought back. What Mr. Citron was proposing was very different than the alternative proposed by staff. He questioned the wisdom of the Agency renegotiating at the present time or from the dais. He was inclined to accept the report and nothing further. His intent was not to be adverse to what Mr. Citron was trying to accomplish but to wisely enter into the agreement with appropriate security. Mr. Citron stated they understood that the Agency took unilateral action in asking them to put up $275,000, but they did not accept that or approve it. Therefore, he was not trying to renege on anything or change it, he was trying to find out if it was the only way they could move forward. He again questioned what risk they were being asked to take beyond their control to lose $600,000. If he could understand those risks maybe they conld move forward. Mr. Boogaard stated the matter had been negotiated at great length between Mr. Salomone, Mr. Googins, and Mr. Citron and he did not feel it appropriate to enter into a rhetorical discussion. Staff had identified the risks as being the loss and value of the buildings, the escrow would not close due to a bank loan or contamination of the property, and the City was at risk once the building was demolished because it would not be a saleable site for automotive purposes. All of which had been discussed with the Citrons. Mr. Citron stated if that was the only way the Agency felt the project could move forward they wanted the opportunity to go forward. They would agree as long as there was not a danger that they would lose all their money through some action beyond their control. Acting Chair Rindone stated if no action was taken by the Agency the project would move forward upon closure of escrow. Member Moot stated he wanted to offer the applicant the option of taking advantage of an agreement drafted by the City Attorney, consistent with paragraph 6 on page 3-3 of the staff report. He felt the Agency would agree that they would not take any action until the close of escrow to quell the deal. If they wanted to take advantage of the deal it should be drafted and brought back to the Agency for approval. Mr. Boogaard stated it would expedite moving the project forward if the Agency would authorize the City Manager and City Attorney to approve an amendment that would allow for that condition and provide an informational memo to the Agency, i.e. the $295,000 be advanced to the City as a security deposit which would be forfeited if the escrow for any reason did not close other than default by the City under the original DDA. MSC (Rindonel Alevy) authorize the City Manager and City Attorney to approve an amendment that would allow: that the $295,000 be advanced to the City as a security deposit which would be forfeited if the escrow ;}-.;J. ~ Minutes November 14, 1995 Page 3 for any reason did not close other than default by the City under the original DDA with an infonnational memo to the Agency. Approved 4-01 with Horton absent. Mr. Boogaard stated it would be with the understanding that the existing contract would govern unless the Citron's tendered such an offer to the City. ORAL COMMUNICATIONS None OTHER BUSINESS 4. DIRECTOR'S REPORTtS) - None 5. CHAIR'S REPORTtS) - None 6. MEMBER COMMENTS - None ADJOURNMENT ADJOURNMENT AT 11:17 P.M. to the Regular Redevelopment Agency Meeting on November 21, 1995 at 6:00 p.m., immediately following the City Council meeting, in the City Council Chambers. Respectfully submitted, BEVERLY A. AUTHELET, CMC/AAE, City Clerk \J' by: d-3 ...,..w.__..., This page intentionally left blank. d-1 ."..,_.. _'.~__.._,.___.,_.._.._.,_...__.___,_..._M'___~_____'_.__'__'~'__'_____ MINUTES OF A REGULAR MEETING OF THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA Tuesday, November 21, 1995 10:38 p.m. Council Chambers Public Services Building CALL TO ORDER 1. ROLL CALL: PRESENT: Agency Members AIevy, Moot, Padilla, Rindone, and Chair Horton ALSO PRESENT: John D. Goss, Director; Bruce M. Boogaard, Agency Attorney; and Beverly A. Authelet, City Clerk 2. APPROVAL OF MINUTES: November 7,1995 MSUC (Alevy/Padilla) to approve the minutes of November 7, 1995 as presented. CONSENT CALENDAR None Submitted. PUBLIC HEARINGS AND RELATED RESOLUTIONS AND ORDINANCES 3. PUBLIC HEARING REGARDING THE SALE OF SPACE NUMBER 145 AT ORANGE TREE MOBILE HOME PARK--Wben Orange Tree Mobilehome Park converted to resident ownership the Agency purchased 29 homes residents did not want to buy. The Agency still owns 18 of those spaces and has the opportunity to sell Space 145. Staff recommends approval of the resolution. (Community Development Director) RESOLUTION 1476 APPROVING THE SALE OF SPACE NUMBER 145 AT ORANGE TREE MOBILEHOME PARK AND AUTHORIZING THE COMMUNITY DEVELOPMENT DIRECTOR TO EXECUTE A PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS This being the time and place as advertised, the public hearing was declared open. There being no public testimony, the public hearing was declared closed. RESOLUTION 1476 OFFERED BY MEMBER RINDONE, reading of the text was waived, passed and approved unanimously. ORAL COMMUNICATIONS None ACTION ITEMS None Submitted. ITEMS PULLED FROM THE CONSENT CALENDAR Items pulled: none. The minutes will reflect the published agenda order. cJ-5 '"T Minutes November 21, 1995 Page 2 OTHER BUSINESS 4. DIRECTOR'S REPORTtS) - None 5. CHAIR'S REPORTlS) - None 6. MEMBER COMMENTS Member Rindone . Member Rindone stated a comment bad been made earlier by the City Attorney that there was an effort to have fewer items on the dais. That did not mean that if something came up at the last minute that it should not be disseminated to the Councill Agency. He thanked Mr. Morris for his efforts to reduce last minute items. ADJOURNMENT ADJOURNMENT AT 10:41 P.M. to the Regular Redevelopment Agency Meeting on December 5, 1995 at 4:00 p.m., immediately following the City Council meeting, in the City Council Chambers. Respectfully submitted, BEVERLY A. AUTHELET, CMC/AAE, City Clerk \:S~ ~~~ ~ Vicki C. Soderquist, CM~ty City Clerk by: c')- tv ...._~ REDEVELOPMENT AGENCY AGENDA STATEMENT Item 3 Meeting Date 12/05/95 ITEM TITLE: Resolution / if 7:1 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 nJ Community DeveloPr\n~ Director ~ Executive Director tJ;JN I -? (4/5ths Vote: Yes 1.. No_l Council Referral Number: N/A SUBMITTED BY: REVIEWED BY: BACKGROUND: At its meeting of November 14, 1995, the Redevelopment Agency approved demolition of the pavement and structures at the Agency-owned property located at 760 Broadway under the condition that the developers of the Broadway Business Homes project render a deposit to cover the purchase price of the property proposed for the first phase of development plus $20,000 to cover the developer's agreed upon share of the soil remediation costs. This item is being submitted in anticipation of that deposit being received and a contract would be executed only if demolition proceeded in accordance with all of the conditions previously stipulated by the Agency. Soil remediation work must begin concurrent with site demolition to maximize cost efficiency. 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 petroleum hydrocarbons, and proper removal and disposal of the materials is necessary to avoid a threat to public health ~3 -( ~ Page 2, Item -L Meeting Date 12/05/95 and safety, such as exposure of the material to surface or groundwater, which could trigger regulatory cleanup actions. 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 specific experience on this site, 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 authorization presented in the resolution would cover a contract up to $41,297. The value of services to be provided by Woodward-Clyde for the first phase of work is a fixed fee of $20,297 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 for Phase I of the work. If Phase II of the contract were to be implemented to authorize Woodward-Clyde to also dispose of the contaminated soils, this would will add between $14,000 and $21,000 in costs, bringing the ultimate cost of remediation for the site to between $52,297 and $59,297. 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. IJMIINITIALSTUDYCHKLSTIDISKIFULLER-W.1131 IBBIC:IWP51IAGENCYIRA4SIFULLER-W.OUPJ 3- ;L ~ 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 '7 ') ,.:;) '_J ~. NOW, THEREFORE, BE IT RESOLVED that the City and Consultant do hereby mutually agree as follows: l. 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 Standard Form Two Party Agreement (Fourth Revision) November 2, 1993 Page 2 cJAf ..,. 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 Standard Form Two Party Agreement (Fourth Revision) November 2, 1993 Page 3 3-~ ~ (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 Standard Form Two Party Agreement (Fourth Revision) November 2, 1993 Page 4 ---) .[, ~ 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 (Fourth Revision) 1993 Page 5 -:{, In ,,/ or 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 Standard Form Two Party Agreement (Fourth Revision) November 2, 1993 Page 6 9) _ 0" ~. 0 ~ 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 3 ~9 ~ 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 Standard Form Two Party Agreement (Fourth Revision) November 2, 1993 Page 8 3-0 . materials prepared by Consultant shall, at the option of the ci ty, become the property of the ci ty, 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 Standard Form Two Party Agreement (Fourth Revision) November 2, 1993 Page 9 :3 -(I ~ 12. Ownership, Publication, Reproduction and Use of Material All reports, studies, information, data, statistics, forms, designs, plans, procedures, systems and any other materials or properties produced under this Agreement shall be the sole and exclusive property of City. No such materials or properties produced in whole or in part under this Agreement shall be subject to private use, copyrights or patent rights by Consultant in the United States or in any other country without the express written consent of City. City shall have unrestricted authority to publish, disclose (except as may be limited by the provisions of the Public Records Act), distribute, and otherwise use, copyright or patent, in whole or in part, any such reports, studies, data, statistics, forms or other materials or properties produced under this Agreement. 13. Independent Contractor City is interested only in the results obtained and Consultant shall perform as an independent contractor with sole control of the manner and means of performing the services required under this Agreement. City maintains the right only to reject or accept Consultant's work products. Consultant and any of the Consultant's agents, employees or representatives are, for all purposes under this Agreement, an independent contractor and shall not be deemed to be an employee of City, and none of them shall be entitled to any benefits to which City employees are entitled including but not limited to, overtime, retirement benefits, worker's compensation benefits, injury leave or other leave benefits. Therefore, City will not withhold state or federal income tax, social security tax or any other payroll tax, and Consultant shall be solely responsible for the payment of same and shall hold the City harmless with regard thereto. 14. Administrative Claims Requirements and Procedures No suit or arbitration shall be brought arising out of this agreement, against the City unless a claim has first been presented in writing and filed with the City and acted upon by the City in accordance with the procedures set forth in Chapter 1.34 of the Chula Vista Municipal Code, as same may from time to time be amended, the provisions of which are incorporated by this reference as if fully set forth herein, and such policies and procedures used by the City in the implementation of same. Upon request by City, Consultant shall meet and confer in good faith with City for the purpose of resolving any dispute over the terms of this Agreement. 2pty9.wp Standard Form Two Party Agreement (Fourth Revision) November 2, 1993 Page 10 ,-3 -I,J.... T 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 Standard Form Two Party Agreement (Fourth Revision) November 2, 1993 Page 11 3 ~/_3 ~ 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 J - /{ .. r.r~?' JUL-10-95 MON 16:55 .,',' . l!fj"\~.:;~" .!'~;fi ~ .:' " \'.' .';'~ ~;..;- ~}iA';;i1'~;~;;" 6195855612 CITY OF CHULA VISTA FAX NO, 6195855612 P,14 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 Consultant have executed this they have read and understood complete consent to its terms: Dated: City of Chula Vista , 1995 by: Shirley Horton, Mayor/Chair Approved as to form: }.. -" Dated: 11111,< By: Exhibit List to Agreement ) Exhibit A. 2pty9.wp November 2, Standard Form Two Party Agreement (Fourth 1993 Revi..ion) Page 13 3-(~ T This page blank. 3-/0 ~ 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 3 /7 ~ 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 (10mg/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 3-/:1 . ".,." 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 3 -(9 T 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 3.~ ~ 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 "reimbursables" ("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 .J . ;? ( . 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 3-:J,:L ~ 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 3 ~3 ~ ( ) 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 ]c;)1 T "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 ,~ . ;;{!J ~ This page blank. 3-2(,;, . RESOLUTION NO. 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 AT 760 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, has conditionally approved 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 provided all in accordance with the terms and conditions of the Agreement on file in the City Clerk's office as Document 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. Waive the consultant selection process for procurement of services identified in the subject Agreement 2. Authorize the Executive Director 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. Appropriate the amount of $41,297 in unanticipated funds from the developer's contribution to and the Agency's sale of the 760 Broadway property to fund the Agreement. 4. Direct staff to implement the Two-Party Agreement in accordance with the terms thereof and that certain Disposition and Development Agreement between the Agency and Broadway Village Business Homes, L.P. PRESENTED BY: APPROVED AS TO FORM BY: ~- orney ~ Chris Salomone Community Development Director M,I.he,.rllotto",oy\lul-,,,m,I.,I,'P 3-)'{ T This page blank. 3~).7 . JOINT REDEVELOPMENT AGENCY/CITY COUNCIL AGENDA STATEMENT Item ~ C Meeting Date 12-05-95 ITEM TITLE: A. Agency B. Council C. Council SUBMITTED BY: REVIEWED BY: BACKGROUND: RESOLUTION / '-/19 Approving a Ratification of Commitment from the Low and Moderate Income Housing Fund ($378,280) for an Affordable Housing Project Proposed to be Developed in Rancho del Rey SPA III. RESOLUTION ! t / <3 4 Approving a Ratification of Land Donation and Commitment from HOME Program Funds ($160,000) for an Affordable Housing Project Proposed to be Developed in Rancho del Rey SPA III. RESOLUTION I () (3.5 Approving (1) an Amended and Restated Conveyance Agreement and Escrow Instructions with Rancho Del Rey Investors; (2) an Amended and Restated Assignment of Conveyance Agreement and Escrow Instruction with Cordova Ventures and (3) An Amended and Restated Low Income Housing Agreement between Rancho Del Rey Investors and Cordova Ventures all with Respect to 2.97 Acres of Property within SPA III Proposed for Development Into a 40 Unit Low Income Housing Complex and authorizing the Mayor to execute the Amended and Restated Conveyance Agreement and Escrow Instructions and the Amended and Restated Assignment of Conveyance Agreement and Escrow Instructions Community Development Director ~~. City Manager~ (4/5ths Vote: Yes _ No..1L) Council Referral Number: N/A On March 7, 1995 Rancho del Rey entered into an Affordable Housing Agreement with the City to satisfy their affordable housing requirement for SPA III by inviting a joint venture development team consisting of Sares-Regis as the for profit developer/contractor, Orange Housing Development Corporation (non-profit) and South Bay Community Services (non-profit) to build a 40 unit affordable housing project (Cordova) within SPA III of Rancho del Rey. Associated agreements were also approved by the Council and the Agency with Rancho del Rey and with Orange Housing Development Corporation. The joint venture applied for State and Federal tax credits in July 1995, as their primary equity source, but were unsuccessful in obtaining a tax credit award because the 1995 award process was extremely competitive. The joint venture plans to reapply for tax credits for 1996, and the next application deadline is December 11, 1995. In order to reapply, the joint venture team must extend the performance dates in the various agreements by amendment. No other material chanQes are required or proposed to the aQreements oriQinallv approved bv the Council. RECOMMENDATION: That the Council/Agency approve the resolutions approving amendments to the agreements regarding the Cordova affordable housing project in Rancho del Rey which provide for extension of the performance dates. Lj - I ~ Page 2, Item ~ (~ Meeting Date 12-05-95 r BOARDS/COMMISSIONS RECOMMENDATION: At the Housing Advisory Commission meeting of February 22, 1995, the Commission voted unanimously to support the subject agreements and the proposed Cordova project. DISCUSSION: The action before the Council and the Agency is limited to the amendment of the Cordova housing agreements to allow for an extension of the performance dates so that the project can compete in the next round of the tax credit awards. All of the conditions of the previously- approved affordable housing and housing development deal with McMillin and Orange Housing Development Corporation remain valid and are not proposed to be changed. The project did not win a tax credit award in this year's extremely competitive process, and the recommended action would allow the project to compete again in the next cycle, in which the competition should be less intense now that the highest-scoring projects have already been awarded. This discussion will consider the background of the proposed project transaction, the specific amended agreements, neighborhood concerns, and implications for Rancho del Rey development. BackQround of Proposed Proiect Transaction: The most pertinent information provided to the Council/Agency at the March 7, 1995 meeting is summarized below to refresh the members on the structure of the agreements. The provision of affordable housing units within a larger market-rate housing development, as McMillin Companies is proposing, is a high priority in the City's Housing Element and Comprehensive Affordable Housing Strategy. This project is an ideal way to accomplish the remaining affordable housing requirement in Rancho del Rey. The joint venture proposes to build 40 affordable family units in SPA III south of J Street (site map attached as Exhibit A). Rents will be affordable to families at or below 60% of the median income. The proposed site plan will not be submitted to the Planning Department for review until after the project receives a tax credit allocation (if successful). The tentative development schedule is to complete predevelopment work by the end of March, 1996 so that they can begin construction in April, 1996. They hope to be ready for occupancy in February, 1997, and fully leased in June of 1997 when they hope to receive their permanent loan. As part of the local contribution, the City will grant $160,000 in Federal HOME Funds and loan $378,280 from Agency Low and Moderate Income Housing Funds to be paid back through residual receipts, if any are generated from the project. McMillin will donate the site, valued in the pro forma at $800,000. Loan terms will be negotiated and placed in the disposition and development agreement and loan documents. Affordability covenants would be in place for a minimum of 55 years. The Amended AQreements: The agreements to be modified, attached for the members' information, are the following: . Amended and Restated Convevance AQreement and Escrow Instructions, between Rancho del Rey Investors, L.P. and the City. This agreement needs to be approved and executed. . Amended and Restated AssiQnment of Convevance AQreement and Escrow If ~ ')- . Page 3. Item '" , f!.. Meeting Date 12-~ Instructions, between Cordova Ventures and the City. This agreement needs to be approved and executed. . Amended and Restated Low Income Housinq Aqreement, between Rancho del Rey Investors, L.P. and Cordova Ventures. This agreement needs to be approved. All three agreements are amended and restated to set new performance dates for the tax credit and real estate disposition and development process that are, with some slight variation, essentially one year longer than in the agreements in their existing form to allow for the new tax credit award round. Neiqhborhood Concerns: On November 9, 1995, City staff held a meeting with residents who live in proximity to the proposed site. The residents expressed concerns regarding the proposed development related to its potential impact on property values, compatibility with the neighborhood, quality of construction and concerns over land use changes. Staff assured the residents that they would have additional opportunities to review and comment on the proposed project since the site plan and the architectural design will be subject to noticed public hearing. This of course will only take place if the developers are successful in securing the necessary financing. Staff assured the residents that they would be kept informed on significant developments pertaining to the proposed project. Accordingly, a notice was sent to all property owners within 1000 feet of the proposed project and all attendees of the November 9 neighborhood forum regarding this item and Council meeting. Imolications for Rancho del Rev Develooment: It should be noted that the SPA III Affordable Housing Agreement with Rancho del Rey requires the delivery of the Cordova project or some alternative delivery of the 23 affordable housing units required of Rancho del Rey at or before the point of issuance of 552 building permits for SPA III. The intent of this provision is to ensure that affordable units in SPA III be developed at roughly the same rate as market-rate units, and that the City avoid having to negotiate with the developer for affordable units when options and leverage have dwindled as the SPA is built out. At the rate of development progress recently forecasted by McMillin, it is likely that SPA III will be at the 552-unit threshold substantially before there is any commitment on the tax credit award for Cordova. This situation would necessitate that staff and McMillin return to the Council prior the 552-unit event to propose additional amendments to the SPA III Affordable Housing Agreement that could allow McMillin to proceed with SPA III development while providing the City with the necessary security. FISCAL IMPACT: The proposed amendments to the Affordable Housing Agreements will sustain the Agency and City's conditional commitment to funding the proposed housing project in an amount not-to-exceed $10,000 per unit. The resolutions reserve the funds for the project previously reserved by the Council/Agency on March 7, 1995. [AG\C:\WP51 \JUAN\A 113S\SPAIII.A 13] 1~3 .. This page blank. 1-tf .. AMENDED AND RESTATED ASSIGNMENT OF CONVEYANCE AGREEMENT AND ESCROW INSTRUCTIONS THE CITY OF CHULA VISTA, a California municipal corporation "CITY" CORDOVA VENTURES, a California joint venture "CORDOVA" Chul. Vl.ra/OHDC 11/28/95 'f-J; ,.~ - ARTICLE 1 ARTICLE 2 ARTICLE 3 ARTICLE 4 ARTICLE 5 ARTICLE 6 ARTICLE 7 EXHIBITS "A" Chul. Vi.r.;oHDC 11/28/95 TABLE OF CONTENTS PAGE Recitals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Assignment ....................................... 3 Nature of Assignment ................................. 3 "As Is" Transfer ..................................... 4 Assignment ....................................... 6 General Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Property Description 4-G ~ AMENDED AND RESTATED ASSIGNMENT OF CONVEYANCE AGREEMENT AND ESCROW INSTRUCTIONS THIS AMENDED AND RESTATED ASSIGNMENT OF CONVEYANCE AGREEMENT AND ESCROW INSTRUCTIONS ("Agreement") is entered into as of December 5, 1995 between THE CITY OF CHULA VISTA, a California municipal corporation ("City"), and CORDOVA VENTURES, a California joint venture ("Cordova") and completely supersedes the Assignment of Conveyance Agreement and Escrow Instructions entered into as of March 7, 1995 between City and Cordova. ARTICLE 1 Recitals 1.1 The Property. Rancho del Rey Investors, L.P., a California limited partnership ("RDR") is the owner of certain real property in the City of Chula Vista, County of San Diego, State of California, more particularly described on Exhibit" A" (the "Property"). The Property is part of the master planned community known as "Rancho del Rey." 1.2 The "SPA III Affordable Housing Obligation. Pursuant to that certain" Agreement Concerning Rancho del Rey and Low-Moderate Income Housing" dated August 7, 1990, RDR, as successor in interest to Rancho del Rey Partnership, is obligated to provide 23 low income housing units in connection with its development of SPA III of Rancho del Rey (the "SPA III Affordable Housing Obligation"). 1.3 Conveyance Agreement. Concurrently herewith, RDR and City have entered into that certain Amended and Restated Conveyance Agreement and Escrow Instructions ("Conveyance Agreement") pursuant to which RDR agrees to grant the Property to City, and City agrees to receive the grant of the Property, subject to and in accordance with the terms of the Conveyance Agreement. The grant to City will be made in full satisfaction of the SPA III Affordable Housing Obligation. .. 1.4 Cordova Ventures. Cordova is a California joint venture comprised of Orange Housing Development Corporation, a California 501 (c)(3) non-profit corporation ("OHDC"), and South Bay Community Services, a California 501 (c)(3) non-profit corporation ("SBCS"), and Sa res-Regis Group, a general partnership.' The charter of OHDC is to develop, own and operate multi-family residential projects providing affordable housing to low income persons, and in fulfillment of that charter has considerable experience in the development, ownership and operation of such facilities. SBCS provides general social services. 1.5 The Proposed Project. Cordova (or a limited partnership in which OHDC and SBCS are general partners) intends to acquire the Property for the purposes of improving it with a multi family residential project consisting of forty units and providing housing affordable for low income persons (the "Proposed Project"). 1.6 Assignment. City desires to transfer and assign to Assignee aUof its right, title and interest in and to the Conveyance Agreement, including, without limitation, the right to Chul. V;.r.;oHDC 11/28/95 1 tf-7 acquire the Property, and Assignee desires to receive such transfer and assignment, in accordance with the terms of this Agreement. It is the intention of City that the right to acquire the Property be given to Assignee as a subsidy. 1 .7 Housing Agreement, RDR and Cordova have or will enter into an Amended and Restated Low Income Housing Agreement (the "Housing Agreement") pursuant to which, among other things, RDR and Cordova agree as to their respective obligations with respect to the Property. City shall have the right, but no obligation, to cure any material breach of the Housing Agreement by Cordova and thereby succeed to Cordova's rights and obligations thereunder. 1.8 Disposition and Development Agreement. City and Cordova intend to enter into a Disposition and Development Agreement and the Redevelopment Agency of the City of Chula Vista intends to make a loan to Cordova, for the development of the Property with the Proposed Project. ARTICLE 2 Definitions Unless the context otherwise indicates, the following shall have the meanings as set forth in this Article: 2.1 "Agency" means the Redevelopment Agency of the City of Chula Vista. 2.2 "Agency Loan Agreement" means a loan agreement by which the Agency agrees to loan funds to Cordova for the Proposed Project. 2.3 "Appraised Value of the Property" means $ 9 60,000.00, as esta blished by that certain appraisal by D.F. Davis Real Estate, Inc., MAl, dated March 3, 1995. 2.4 "City" means the City of Chula Vista. 2.5 "County" means the County of San Diego, State of California. 2.6 "Disposition and Development Agreement" means the agreement described in Section 1.8. 2.7 "Escrow Holder" means FIRST AMERICAN TITLE INSURANCE COMPANY, whose address is 411 Ivy Street, San Diego, California 92101. 2.8 "Housing Agreement" means the agreement described in Section 1.7. 2.9 "Master Declaration" means the Master Declaration of Restrictions for Rancho Del Rey, recorded in the Office of the County Recorder of the County of San Diego, on August 29. 1989. as File/Page No. 89-463940, as the same may have been or may be amended from time to time. Chul. Vi.t.;oHDC 11/28/95 2 if-f ~ 2.10 "New Parcel Map" means the new parcel map which will be processed, approved and recorded to subdivide the Property from the remainder of Lot 10 of Map 13176. Upon the recording of the New Parcel Map, the new legal description of the Property as established by the New Parcel Map will replace the legal description on Exhibit "A" attached for all purposes. The exact property lines of the Property as shown on the New Parcel Map may vary slightly from those shown on Exhibit" A", but neither any such variations nor any easements dedicated or otner matters shown on the New Parcel Map shall materially impair Cordova's ability to develop the Proposed Project. 2.11 "Notice of Annexation" means the Notice of Declaration of Annexation, Imposition of Additional Restrictions And Covenants and Notice of Designation of Architectural Review Committee to be recorded by RDR Investors, L.P., in connection with the acquisition of the Property by City. 2.12 "Opening of Escrow" means the date of, and act of, Escrow Holder signing the "Consent of Esctow Holdet" attached to this Agreement. 2.13 "Proposed Project" means the project described in Section 1.5. 2.14 "Title Insuter" means FIRST AMERICAN TITLE INSURANCE COMPANY, with offices at 411 Ivy Street, San Diego, California 92101. ARTICLE 3 Assignment 3.1 Assignment, City hereby assigns and transfers to Cordova, and Cordova hereby accepts the assignment of, all of City's right, title and interest in and to the Conveyance Agreement induding, without limitation, the right to acquire the Ptoperty subject to and in accordance with the terms thereof. City and Cordova acknowledge and agree that the fair market value of the Property is the Appraised Value. City and Cordova further agree that City's assignment to Cordova and Cordova's acquisition of the Property shall constitute a subsidy from City, and no cash consideration will be required therefor, 3.2 Obligations Not Delegated by Assignment. City shall tetain the following obligations, subject to the terms and conditions of the Conveyance Agreement: (a) Release of the Trip Deferral Agreement from title to the Property (pursuant to Section 6,2 of the Conveyance Agreement); and (b) Reconveyance of any deed(s) of trust securing RDR's obligations under the SPA III Affordable Housing Agreement (pursuant to Section 6.3 of the Conveyance Agreement). ARTICLE 4 Nature of Assignment 4.1 Nature of Assignment. This Agreement, the consummation of the transaction herein contemplated, the respective rights and obligations of the parties hereto, and the Close Chuhl Vi.ta!DHDC 11/28/95 3 1-1 ~ of Escrow under the Conveyance Agreement are subject to and contingent upon the good faith satisfaction and completion of the following condition precedent which is deemed to be for the mutual benefit of the parties, or the written waiver thereof: (a) Convevance Aareement. All conditions precedent set forth in Article 4 of the Conveyance Agreement shall have been satisfied. 4.2 Satisfaction, Waiver and Failure of Condition; Termination, The waiver of this condition will be effective only if the same is (i) in writing, (ii) signed by the parties, and (iii) delivered to the other parties before termination of the Agreement. Failure of a condition to be satisfied or waived within the time provided for satisfying or waiving the condition shall allow any party not then in default to terminate this Agreement. If any conditions remain not satisfied (and are not waived) by December 31,1996, then any party may terminate this Agreement at any time before all conditions are satisfied or waived. 4.3 Performance By The Other Party. Each party's obligation to perform under this Agreement is subject to material performance of any prior or concurrent obligation of the other party. ARTICLE 5 "As Is" Transfer 5.1 Basis of Assignment. City is making absolutely no representations or warranties, express or implied, with respect to the Property. Except as set forth in this Agreement, Cordova acknowledges that it is purchasing the Property in reliance solely on (j) Cordova's inspection of the Property, (ii) Cotdova's independent verification of the truth and accuracy of any documents delivered by City or RDR to Cordova and statements made by City or RDR to Cordova concerning the Property and its development, (iii) the opinions and advice concerning the Property and their development of consultants engaged by Cordova and (iv) the covenants, tepresentations and warranties set forth in this Agreement. Cordova, for itself and on behalf of its successors and assigns, waives any and all claims againstthe City relating to the physical condition of the Property upon transfer except for any breach of City's express obligations undet this Agreement. Cordova, for itself and its successors and assigns, hereby agrees to indemnify, defend and hold harmless City and each of City's employees, agents, attorneys, successors and assigns of City ("Indemnified Parties"), from and against any and all ptesent and future liability, losses, damages (including foreseeable or unforeseeable consequential damages), penalties, fines, forfeitures, response costs and expenses (including out-of-pocket litigation costs and reasonable attorneys' fees) directly or indirectly arising out of the use, generation, stotage, transportation, telease, discharge or disposal of Hazardous Materials (as defined below in Section 5.2) on or in the Property by Cordova or the partners of Cordova or their respective employees, contractors, subcontractors or agents, including, without limitation, the cost of any required or necessary repair, cleanup or detoxification and the preparation of any closure Ot other required plans. 5.2 Hazardous Materials. The term "Hazardous Materials" means any material Ot substance which is (i) defined as a "hazardous waste", extremely hazardous waste", "restricted hazardous waste", "hazardous material", "hazardous substance", or any similar formation under or pursuant to any California statute or common law rule; (ii) petroleum and natural Chul. Vma/OHDC , 1/28/95 4 1-10 "'T..'~ gas liquids as those terms are used in ~ 1 09( 14) of the Comprehensive Environmental Response, Compensation & Liability Act, 42 U.S.C. ~ 6901, et seq. (41 U.S.C. ~6903); (iii) asbestos; (iv) polychlorinated biphenyls; (v) designated as a "hazardous substance" pursuant to ~311 of the Clean Water Act, 33 U.S.C., ~ 1251, et seq. (33 U.S.C. ~ 1321) or listed pursuant to ~307 of the Clean Water Act (33 U.S.C. ~1317); (vi) defined as a "hazardous waste" pursuant to ~ 1004 of the Resource Conservation & Recovery Act, 42 U.S.C. ~6901, et seq. (42 U.S.C. ~6903); or (vii) defined as a "hazardous substance" pursuant to Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. ~9601, et seq. (41 U.S.C. ~9601). 5.3 "As Is" Transfer. Except as otherwise set forth in this Agreement, Cordova will accept each the Property, and the matters relating to the Property listed below, in their present "as is" condition. The matters are: (a) Soils. Toooaraohv. Etc. Soils and geological condition; topography, area and configuration; archeological, prehistoric and historic artifacts, remains and relics; contamination by Hazardous Materials; endangered species and wetlands. (b) Utilities, Schools. Etc. Availability of utilities, schools, public access, and fire and police protection. (c) Districts. The status, special taxes and assessments of any and all Mello-Roos Community Facility Districts and assessment districts. (d) Plannina and Zonina. Applicable planning, zoning and subdivision statutes, ordinances, regulations and permits, the SPA Plan and the Financing Plan. (e) Develooment Fees. The character and amount of any fee or charge which must be paid by Cordova to develop the Property. (f) Easements and Encroac~ments. Any easement, license or encroachment which is not a matter of public record, whether or not visible upon inspection of the Property; City warrants to Cordova that City knows of no such easement, license or encroachment. (g) Other Matters. Any other matter relating to the Property or to the development of the Property, including, but not limited to, value, feasibility, cost, governmental permissions, marketing and investment return, except as otherwise expressly provided in this Agreement. 5.4 No Brokerage Commission or Finder's Fee. Each party warrants to the other that the warranting party has incurred no obligation, by reason of this Agreement or the transaction contemplated hereby, for a real estate brokerage commission or finder's fee for which the other party would be liable. Each party will hold the other party free and harmless from and against any damage or expense the other party may incur by reason of the untruth as to the warranting party of the foregoing warranty, including expenses for attorney's fees and court costs. Chul. Vi.rit!OHDC 11/28/95 5 1-1( .. ARTICLE 6 Assignment 6.1 Assignment by Cordova Must be Approved by City. Neither Cordova, nor any person or entity constituting Cordova, nor any assignee of Cordova's or any such person's or entity's rights hereunder, will have the right or power to assign its ortheir rights hereunder without first having obtained City's written approval of any such assignment. Approval of anyone assignment will not constitute a waiver of City's right to approve or disapprove any subsequent proposed assignment. Except as stated in the next sentence, City shall have absolute discretion to withhold its consent to any such assignment. Notwithstanding the first sentence ofthis Section, City shall approve an assignment of Cordova's rights to a limited partnership of which OHDC and SBCS are general partners; any such assignee must assume Cordova's obligation under this Agreement. 6.2 Assignment by City Must be Approved by Cordova. Neither City, nor any person or entity constituting City, nor any assignee of City's or any such person's or entity's rights hereunder, will have the right or power to assign its or their rights hereunder without first having obtained Cordova's written approval of any such assignment. Approval of anyone assignment will not constitute a waiver of Cordova's right to approve or disapprove any subsequent proposed assignment. Cordova shall have absolute discretion to withhold its consent to any such assignment. 6.3 Effect of Approved Assignment. In the event of any such approved assignment, except as provided in Section 3.2 above, the assignee will be and become (i) the grantor or grantee, as appropriate, in the Grant Deed; and (ii) the person(s) having the right or obligation to (a) deliver statements, (b) deliver documents, (c) give approvals, (d) waive conditions, or (e) make demands, all as may be permitted or required by this Agreement and not then already accomplished by the assignor or another approved assignee. 6.4 Assignor's Obligations. No assignment pursuant to this Article will relieve the assignor of any of its obligations under this Agreement. ARTICLE 7 General Provisions 7.1 Gender, Number. Whenever the context requires, the use herein of (i) the neuter gender includes the masculine and the feminine, and Oi) the singular number includes the plural. 7.2 Business Days. If the (i) stated Closing Date, or (ii) last day for performance of an act falls upon a day during which Escrow Holder is not open for business, the Closing Date or such last day, as the case may be, will be the next following regular business day of Escrow Holder. 7.3 Survival of Provisions, The representations, warranties, agreements and indemnities set forth in this Agreement will remain operative, will be deemed made at the close of this escrow, and will survive the closing and the execution and delivery of City's grant deed and will not be merged in City's grant deed. Chul. Vi.r.;DHOC 11/28/95 6 if - (,} .,. 7.4 Authority of Signatories. Each individual signing this Agreement on behalf of the City warrants that (i) he or she is duly authorized to sign and deliver this Agreement on behalf of the City in accordance with a duly adopted resolution of the City Council of the City and (ij) this Agreement is binding upon the City in accordance with its terms. Each individual signing this Agreement on behalf of a corporation warrants that (j) he or she is duly authorized to sign and deliver this Agreement on behalf of the corporation, in accordance with a duly adopted resolution of the board of directors of the corporation or in accordance with the bylaws of the corporation, and (ii) this Agreement is binding upon the corporation in accordance with its terms. 7.5 Joint and Several Liability. If either party consists of more than one person, the liability of each person signing this Agreement will be joint and several. 7.6 Reservation of Discretion. Cordova aCknowledges and agrees that nothing contained in this Agreement is intended to, nor shall have the effect of, teducing the City's legal authority, discretion or obligation to consider approval or disapproval of future agreements and other discretionary actions with respect to the property or the Proposed Project. Cordova agrees to waive any and all claims against City, Agency, and their respective agents, employees and representatives arising from the City's election within the scope of its authority and discretion to disapprove any such agreements or other discretionary actions with respect to the property or the Proposed Project. Cordova acknowledges and agrees that any such election by City shall not constitute a breach of this Agreement. 7.7 Captions. Captions in this agreement are inserted for convenience of reference only and do not define, describe or limit the scope or the intent of this Agreement. 7.8 Exhibits. All exhibits referred to in this Agreement are attached, and are a part of, this Agreement. 7.9 Entire Agteement. This Agreement, the Conveyance Agreement, the Housing Agreement and the SPA III Affordable Housing Agreement contain the entire agreement between the parties relating to the transaction contemplated hereby and all prior or contemporaneous agreements, understandings, representations and statements, oral or written, are merged herein. 7.10 Modifications. No modification, waiver or discharge of this Agreement will be valid unless the same is in writing and signed by the party against which the enforcement of such modification, waiver or discharge is or may be sought. 7.11 Attorney's Fees and Costs. If either party commences litigation for the judicial interpretation, reformation, enforcement or rescission hereof, the prevailing party will be entitled to a judgment against the other for an amount equal to reasonable attorney's fees and court and other costs incurred. 7.12 Successots. All terms of this Agreement will be binding upon and inure to the benefit of the parties and their tespective administrators or executors, successors and assigns; nothing contained in this Paragraph will affect Article 6. Chul. Vi.r.tC)HDC 11/28/95 7 4-13 ~ 7.13 Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed to be an original, but all of which together will constitute one instrument. 7.14 Applicable Law. This Agreement will be construed and enforced in accordance with the laws of the State of California. 7.15 Time of Essence. Time is of the essence of each and every provision of this Agreement in which time is an element. 7.16 Notices. Unless otherwise provided herein, all notices, demands or other communications given hereunder will be in writing and will be deemed to have been duly delivered upon personal delivery, or on receipt of a telecopy, or on the second business day after deposit with Federal Express or other overnight courier service, or as of the second business day after mailing by United States registered or certified mail, return receipt requested, postage prepaid, addressed as follows: If to City: Community Development Director City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 Ann: Juan Arroyo Telephone: (619) 691-5047 Telecopier: (619) 691-5214 With CODies To: Rancho Del Rey Investors, L.P. c/o McMillin Project Services, Inc. 2727 Hoover Avenue . National City, California 91950 Ann: Kenneth Baumgartner Telephone: (619) 477-4117 Telecopier: (619) 336-1587 .w:JQ Hecht, Solberg, Robinson & Goldberg 600 West Broadway, Eighth Floor San Diego, California 92101 Ann: R. Martin Boh!, Esq. Telephone: (619) 239-3444 Telecopier: (619) 232-6828 Chul. Vi.talOHDC 11/28/95 8 4-/1 .... If to Cordova: Orange Housing Development Corporation 21 7 East Chapman Avenue Orange, California 92666 Attn: Linda Boone, Executive Director Telephone: (714) 771-1439 Telecopier: (714) 771-0394 ~ South Bay Community Services 315 4th Avenue, Suite E Chula Vista, CA 91910 Attn: Kathryn Lembo, Executive Director Telephone: (619) 420-3620 Telecopier: (619) 420-8722 With a CODV To: Arter & Hadden 700 S. Flower Street, Suite 3000 Los Angeles, California 90017 Attn: Sheldon Chernove, Esq. Telephone: (213) 629-9314 Telecopier: (213) 617-9255 If to Escrow Holder: First American Title Insurance Company 411 Ivy Street San Diego, California 92101 Attn: Escrow Department Telephone: (619) 238-1776 Telecopier: (619) 231-4696 [signatures on next page] Chul. V;.ta/OHDC 11/28/95 9 ,/ tf-() .~.' '-,r--- Date: ATTEST This Agreement has been executed as of the date set forth at the beginning hereof. "City" City Clerk THE CITY OF CHULA VISTA, a California municipal corporation By Mayor of the City of Chula Vista ~~cr~ Date: Date: Chul. Vi.t.;rJHDC 11/28/95 .Cordova Ventures" ///z.?/~J ///~o !rlr:, I I-j CORDOVA VENTURES, a California joint venture By: ORANGE HOUSING DEVELOPMENT CORPORATION. a California non-profit corporation, BY~/~ t/ Its Executive Director By: SOIJTH.BAY COMMUNITY SERVICES, a rnia non-profit corporation, rincipal y- /b T EXHIBIT "A" J-12322E AFFORDABLE HOUSING SITE LOT 10 A parcel of land being a ,portion of Lot 10 of MCiP No. 13176, in the City of Chula Vista, on file in the Office of the County Recorder of San Diego County, State of California described as follows: . Beginning at the Northeast corner of said Lot 10; thence South 17051 '06" East along the Easterly line thereof 368.00 feet; thence leaving said line South 72008'54" West 228.00 feet; thence North 50051 '54" West 205.40 feet to the beginning of a tangent 228.00 foot radius curve concave Southwesterly; thence Northwesterly along the arc of said curve through a central angle of 1 ~021 '21" a distance of 73.04 feet; thence North 69013'15" West 18.54 feet to a point on the Westerly line of said Lot 1 0 and to the beginning of a non-tangent 270.00 foot radius curve concave . Southeasterly, to which a radial line bears North 63016'06" West; thence along said Westerly line and the Northerly line the following courses: Northeasterly along the arc of said curve through a central angle of 00009'48" a distance of 0.77 feet; thence North 26053'42" East 185.95 feet to the beginning of a tangent 428.00 foot radius curve concave Northwesterly; thence Northeasterly along the arc of said curve through a central angle of 16005'40" a distance of 120.23 feet thence South 78047'18" East 167.68 feet; thence North 89040'45" East 56,24 feet to the POINT OF BEGINNING. Containing 2.97 acres more or less. (hAJ:, b. C V\J1YIJl~ 2-n-ClS Chris 0, Ciremele L.S. 5267 Exp.12-31-95 1;- 17 .' This page blank. 1(-(~ T RDRIOHDC 11/28/95 RANCHO DEL REV SPA-III AMENDED AND RESTATED LOW INCOME HOUSING AGREEMENT RANCHO DEL REY INVESTORS, L.P" a California limited partnership "RDR" CORDOVA VENTURES, a California joint venture "CORDOVA" Lf~/f -!"". This page blank. L( -,~{) ... ARTICLE 1 ARTICLE 2 ARTICLE 3 ARTICLE 4 ARTICLE 5 ARTICLE 6 ARTICLE 7 ARTICLE 8 ARTICLE 9 ARTICLE 10 ARTICLE 11 ARTICLE 12 ARTICLE 13 ARTICLE 14 ARTICLE 15 EXHIBITS "A" "B" "C" RDNOHDC 11/28/95 TABLE OF CONTENTS Recitals PAGE .....,........................"....... 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Definitions Cordova to Obtain Approvals for and Develop the Proposed Project .. 4 Conditions Precedent . . . , , . . . . . . . . . . . . . . . . . . , . . . . . , . . . . 4 Right to Enter ...................................... 6 Improvements by RDR; Parcel Map ........................ 8 Title Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Prorations, Fees Costs and Reimbursements ..,..........,.,. 10 11 Default ..................................... . Assessment Districts ................................. 11 SPA Plan; Financing Plan .............................. 12 Representations, Warranties and Further Disclosures and Agreements ..................,............ 12 Assignment ...... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 16 Hazardous Materials ...................,............. 16 General Provisions . . , . . . . . . . . . . . . . . . . . . . . . , , . . . . . . . .. 17 Ptoperty Description RDR's Improvements Items Received By Cordova f-,'),( T This page blank. f -).:L. ~ AMENDED AND RESTATED LOW INCOME HOUSING AGREEMENT THIS AMENDED AND RESTATED LOW INCOME HOUSING AGREEMENT (" Agreement") is entered into as of December 5, 1995 between RANCHO DEL REV INVESTORS, L.P., a California limited partnership ("RDR"), and CORDOVA VENTURES, a California joint venture ("Cordova") and completely supersedes the Low Income Housing Agreement entered into as of March 7, 1995 between RDR and Cordova. ARTICLE 1 Recitals 1.1 The Property. RDR owns that certain real property in the City of Chula Vista, County of San Diego, State of California, more particularly described on Exhibit" A" attached (the"Property"). 1.2 Development Plan. The Property, as well as other real property owned by RDR adjacent thereto, has been and will be subjected to and developed in accordance with City zoning and use regulations designed to produce a planned community for the entire project known as "Rancho Del Rey". The Property and other portions of Rancho Del Rey will be encumbered by a Master Declaration of Restrictions ("Master Declaration"). The Master Declaration does not provide for a master homeowners association. 1.3 The SPA III Affordable Housing Obligation. Pursuantto that certain" Agreement Concerning Rancho del Rey and Low-Moderate Income Housing" between Rancho del Rey Partnership and the City of Chula Vista ("City") dated August 7, 1990, RDR, as successor in interest to Rancho del Rey Partnership, is obligated to provide 2310w income housing units in connection with its development of SPA III of Rancho del Rey (the "SPA III Affordable Housing Obligation"). 1.4 Conveyance Agreement. Concurrently herewith, RDR and City have entered into that certain Amended and Restated Conveyance Agreement and Escrow Instructions ("Conveyance Agreement") pursuant to which RDR agrees to dedicate and grant the Property to City, and City agrees to receive the dedication and grant of the Property, subject to and in accordance with the terms of the ConveYl!nce Agreement. The dedication and grant to City will be made in full satisfaction of the SPA III Affordable Housing Obligation. 1.5 SPA III Affordable Housing Agreement. RDR and City have entered into that certain Rancho del Rey SPA III Affordable Housing Agreement dated as of March 7, 1995 and approved by City Resolution No, 17829 (the "SPA III Affordable Housing Agreement"), which describes certain options for and other matters relating to the satisfaction of the SPA 111 Affordable Housing Obligation, including the transactions contemplated by this Agreement. 1.6 Cotdova Ventures. Cordova is a California joint venture comprised of Orange Housing Development Corporation, a California 501 (c)(3) non-profit corporation ("OHDC"), and South Say Community Services, a California 501 (c)(3) non-profit corporation ("SSCS"), RDRIOHDC 11/28/95 1 q_ ;}3 "" and Sares-Regis Group, a general partnership. The charter of OHDC is to develop, own and operate multi-family tesidential projects providing affordable housing to low income p,ersons, and in fulfillment of that charter has considerable experience in the development, ownership and operation of such facilities. sees provides general social services. 1.7 Proposed Ptoject. Cordova (or a limited partnership in which OHDC and SBCS are general partners) intends to acquire the Property for the purposes of improving it with a multi-family residential project consisting of forty units and providing affordable housing for low income persons (the .Proposed Project"). '.8 Assignment Agreement. Concurrently herewith, City and Cordova have entered into that certain Amended and Restated Assignment Agreement (" Assignment Agreement") pursuant to which City agrees to assign to Cordova, and Cordova agrees to assume from City, City's rights and obligations under the Conveyance Agreement, subject to and in accordance with the terms of the Assignment Agreement. 1,9 Disposition and Development Agreement. City and Cordova intend to enter into a Disposition and Development Agreement and the Redevelopment Agency of the City of Chula Vista intends to make a loan to Cordova for the development of the Property with the Proposed Project. ARTICLE 2 Definitions Unless the context otherwise indicates, the following shall have the meanings as set forth in this Article: 2.1 "Acceptance Date" means the date of signature of RDR or Cordova, whichever is the last to sign this Agreement. 2.2 "Agency" means the Redevelopment Agency of the City of Chula Vista. 2.3 "Agency Loan Agreement" means a loan agreement by which the Agency, in its sole discretion, agrees to loan funds to Cordova for the Proposed Project. 2.4 "Appraised Value ofthe Property" means $960,000.00, as established by that certain appraisal by D.F. Davis Real Estate, Inc., MAl, dated March 3, 1995. 2.5 "Assignment Agreement" means the agreement described in Section 1,8. 2.6 "Cash" means (i) currency, (ii) if acceptable to Escrow Holder, a check or checks currently dated, payable to Escrow Holder or order and honored upon presentation for payment, or (iii) funds wire-transferred or otherwise duly deposited into Escrow Holder's account at Escrow Holder's direction. 2.7 "Closing Date" means the date scheduled for Close of Escrow, and unless otherwise agreed to in writing by RDR and Cordova or as otherwise set forth herein, the Closing Date shall be September 15, 1996. RDNOHDC , 1128/95 2 1- :;; f ~ 2.8 ftClose of Escrow" means the date the Grant Deed to Cordova (pursuant to the Conveyance Agreement) and other documents are filed for record. 2.9 ftCity" means the City of Chula Vista. 2.10 "Conveyance Agreement" means the agreement described in Section 1.4 above. 2.11 ftCounty" means the County of San Diego, State of California. 2.12 "Disposition and DevelopmentAgreement" means the agreement between City and Cordova described in Section 1.9. 2.13 ftEscrow Holder" means FIRST AMERICAN TITLE INSURANCE COMPANY, whose address is 411 Ivy Street, San Diego, California 92101. 2.14 ftFeasibility Condition" means the condition precedent to Cordova's obligations set forth in Section 4.2. 2.15 ftFeasibility Period" means the period for satisfaction.or waiver ofthe Feasibility Condition described in Section 4.2(a). 2.16 ftGeneral and special real estate taxes" means all charges evidenced by the secured tax bill issued by the Tax Collector of the County, including, but not limited to, amounts allocated to (i) County or City general governmental purposes, (ii) bonded indebtedness of the County or City, (iii) bonded or other indebtedness and operating expenses of any school, college, sewer, water, irrigation, hospital, library, utility, county service, community facilities district or other district, and (iv) any other lawful purpose. 2.17 ftMaster Declaration" means the Master Declaration of Restrictions for Rancho Del Rey, recorded in the Office of the County Recorder of the County of San Diego, on August 29, 1989, as File/Page No. 89-463940, as the same may have been or may be amended from time to time. 2.18 ftNew Parcel Mapft means the new parcel map that will be processed, approved and recotded to subdivide the Property ftom the remainder of Lot 10 of Map 13176. Upon tha recording of the New Parcel Map, the new legal description of the Property as established by the New Parcel Map will replace the legal description on Exhibit ft A ft attached for all purposes. The exact property lines of the Property as shown on the New Parcel Map may vary slightly from those shown on Exhibit "Aft, but neither any such variations nor any easements dedicated or other matters shown on the New Parcel Map shall materially impair Cordova's ability to develop the Proposed Project. 2.19 ftNotice of Annexationft means the Notice of Declaration of Annexation, Imposition of Additional Restrictions and Covenants and Notice of Designation of Architectural Review Committee to be recorded by RDR Investors, L.P" in connection with the acquisition of the Property by City. RDNOHDC 11/28/95 3 -- t!j - d. !7 T 2.20 "Opening of Escrow" means the date of, and act of, Escrow Holder signing the "Consent of Escrow Holder" attached to this Agreement. 2.21 "Phase I Investigation" means the Preliminary Site Assessment for RDR SPA III prepared by Geocon, Inc., June 1989, File No. D-4228-R02; the Preliminary Site Assessment with Limited Soil Sampling and Laboratory Testing for RDR SPA III prepared by Geocon, Inc., February 1991, File No. 08267-06-01 with addendum letter dated March 15, 1991; and the Report of Phase 1 Environmental Site Assessment, prepared by Law-Crandall, Inc., dated September 9, 1994, Portions of Rancho del Rey SPAs II and III, northeast of Rancho del Rey Parkway and south of East "H" Street, Chula Vista, California. (Items 21, 22 and 23 of Exhibit "COO). Cordova acknowledges having received copies of the Phase I Investigation. 2.22 "Proposed Project" means the project proposed to be developed by Cordova described in Section 1.7 above. 2.23 "SPA III Affordable Housing Agreement" means the agreement between RDR and City described in Section 1.5. 2.24 "Title Insurer" means FIRST AMERICAN TITLE INSURANCE COMPANY, with offices at 411 Ivy Street, San Diego, California 92101. ARTICLE 3 Cordova to Obtain Approvals fot and Develop the Ptoposed Project 3.1 Cordova agrees to use good faith efforts and due diligence to obtain all required approvals, tax credit allocations, and do all things reasonably required to satisfy all conditions to this Agreement, the Conveyance Agreement and the Assignment Agreement and otherwise obtain approval of the Proposed Project and cause escrow for the Property to close, and once construction has commenced for the Proposed Project, to diligently pursue the completion of the Proposed Project. 3.2 RDR and Cordova agree to use good faith efforts to satisfy the conditions precedent to this Agreement and to cause escrow to close under the Conveyance Agreement. Nothing contained in this Section 3.2 shall limit Cordova's rights to terminate this Agreement during the Feasibility Period. ARTICLE 4 Conditions Precedent 4.1 Conditions Precedent. This Agreement, the consummation of the transaction herein contemplated, the respective rights and obligations of the parties hereto, and the Close of Escrow are subject to and contingent upon the good faith satisfaction and completion of each of the following conditions precedent which are deemed to be for the mutual benefit of the parties, or the written waiver thereof by the parties, which are more particularly set forth below. The time for the approval and satisfaction of each of the conditions precedent are specified in the paragraphs below. RDRIOHOC 11/28/95 4 J:( - :J.ic; ... 4.2 Feasibility Condition. Cordova's obligation to purchase the Property is subject to Cordova approving its feasibility study of constructing the Proposed Project on the Property. Such condition is referred to herein as the" Feasibility Condition". (a) The Feasibilitv Period and Cordova's Indeoendent Investiaation. Unless this Agreement is earlier terminated, Cordova shall have until 5 p.m. California time on the earlier of: Ii) sixty (SOl calendar days after the receipt by Cordova of a letter from the California Tax Credit Allocation Committee ("TCAC") confirming a preliminary award of low income housing tax credits and (ii) May 1, 1996 (the "Feasibility Period") to conduct and approve all of its investigations and studies, including, but not limited to, investigating the economic feasibility of building Cordova's Proposed Project; the condition of title to the Property, including the items set forth in the Preliminary Title Report described in Article 7 below; the physical status of the Property; proposed grading and other planned physical changes; tentative map conditions; use permits; the City's Financing Plan; the City's SPA Plan; the City's Planned Community District Regulations; the City's Residential Design Guidelines; the availability of water and other utilities; the environmental condition of the Property and the surrounding properties; federal, state, County and City fees, policies and regulations; the environmental impact report approved by the City; City thresholds for development; the likelihood of the City's approval of the Proposed Project and whether Cordova will be permitted to build the same; whether occupancy permits are likely to be issued; proposed and existing assessment districts; Mello Roos Community Facilities Districts; planning, zoning and other land use considerations and requirements; agreements; economic feasibility studies and all related maners. (b) Satisfaction or Waiver. Satisfaction or waiver of the Feasibility Condition shall be evidenced by Cordova so notifying Escrow Holder and RDR in writing prior to expiration of the Feasibility Period. (c) Failure of Satisfaction or Waiver. Failure of the Feasibility Condition to be satisfied or waived by Cordova within the Feasibility Period shall entitle Cordova or RDR to terminate this Agreement. Cordova shall communicate any failure of the Feasibility Condition in writing to RDR on or before the expiration of the Feasibility Period. Should the Feasibility Condition fail, Cordova and RDR shall each execute escrow cancellation instructions whereby Cordova and RDR terminate this Agreement, the Conveyance Agreement and the Assignment Agreement, and release one another, the City, the Property and Escrow Holder from any obligations under this Agreement, the Conveyance Agreement and the Assignment Agreement, with tespect to the Property. (dl Time Is of The Essence. TIME IS OF THE ESSENCE AND UNLESS THIS AGREEMENT IS SOONER TERMINATED, THE FEASIBILITY PERIOD IS TO BE STRICTLY CONSTRUED AS EXPIRING ON THE DATE STATED IN THIS ARTICLE. ~~.~ 4,3 Other Conditions Precedent, Close of Escrow is subject to the following conditions: RDRIOHDC '1/28/95 5 ll_ d- 'I (a) Other Agreements. RDR, City and Cordova, as appropriate, in their sole discretion, shall have entered into the SPA III Affordable Housing Agreement, the Conveyance Agreement, the Assignment Agreement, and the Housing Agreement. It is intended that this condition be satisfied before, and will be recognized as satisfied when, Cordova makes its application for a preliminary allocation of low income housing tax credits from the California Tax Credit Allocation Committee. (b) Tax Credits. Cordova shall have received a preliminary allocation of low income housing tax credits from the California Tax Credit Allocation Committee by April 15, 1996 in an amount not less than $3,503.722 for Federal tax credits and $1,215,164 for California tax credits, or such lesser amount for each category as is acceptable to Cordova in Cordova's sole discretion. (c) Disposition and Development Agreement. City and Cordova shall have entered into a Disposition and Development Agreement by August 15, 1996 (or September 15, 1996 if RDR consents to the extension, which consentshall be granted if Cordova is diligently proceeding with negotiation of the DDA), relating to the development of the Property with the Proposed Project. and all conditions in the Disposition and Development Agreement have been satisfied. (d) Agency Loan Agreement. Agency and Cordova shall have entered into the Agency Loan Agreement by August 15, 1996 (or September 15, 1996 if RDR consents to the extension, which consent shall be granted if Cordova is diligently proceeding with negotiation of the DDA), for the loan from Agency to Cordova for the Proposed Project in an amount not less than the amount approved by Agency and City pursuant to duly adopted tesolutions on March 7, 1995. (e) New Parcel Map. City shall have approved the New Parcel Map, and the New Parcel Map shall have been recorded not later than immediately before Close of Escrow. 4.4 Satisfaction, Waiver and Failure of Conditions; Termination, The satisfaction or waiver of a condition will be effective only if the same is (j) in writing, (ii) signed by the parties and (iii) delivered to Escrow Holder and the other parties before termination of the Agreement. Failure of a condition to be satisfied or waived within the time provided for satiSfying or waiving the condition shall allow any party not then in default under this Agreement to terminate this Agreement. If anY conditions temain not satisfied (and are not waived) by October 15, 1996, then any party may terminate this Agreement at any time before all conditions are satisfied or waived. 4.5 Performance By The Other Party. Each party's obligation to perform under this Agreement is subject to material performance of any prior or concurrent obligation of the other party. RDfl/OHDC 11/28/95 6 f-d.-g .. ARTICLE 5 Right to Enter 5.1 Right to Enter the Property, Cordova, its venture partners and their respective employees, agents and independent contractors may prior to the Property Turnover Date (as defined in Section 6.1 below) reasonably go upon the Property to inspect, survey and test the Property and to design Cordova's planned improvements and the like. Cordova will hold RDR and the Ptoperty harmless from any claim, cost, lien, action or judgment (including, without limitation, RDR's attomey's fees and defense costs) (i) incurred by or through Cordova for the services of surveyors, engineers, architects and others, or (ii) incurred by reason of any personal injury or property damage resulting from any accident, hazardous waste spill or other event resulting from such entries by Cordova or its agents, employees or independent contractors. Cordova will not be liable or responsible for temporary damage to the Property which is reasonably necessary to the investigation of its physical characteristics, including soils tests and surveying; provided, however, that Cordova shall promptly cause any test pits and borings to be back-filled and properly compacted. Termination of this Agreement will not terminate Cordova's obligations hereunder. Should Cordova's right to purchase the Property terminate, Cordova will, immediately after such termination, at Cordova's sole cost, return the Property to its physical condition immediately before such damage or as close thereto as reasonably possible. RDR will give possession of the Property to Cordova on the Property Turnover Date. Cordova agrees to give RDR at least two weeks prior written notice before entering the Property when the purpose of such entry is to conduct an environmental or hazardous materials surveyor study. 5.2 Insurance. As a condition of the right of entry granted in Section 5.1, Cordova shall secure and maintain, at Cordova's sole cost, the following policies of insurance, in which Cordova shall be a named insured and shall include coverage of Cordova's and its agents' cOfltractors', subcontractors' and employees' activities on or in any way relating to the Property: (a) Broad Form comprehensive or commercial public liability insurance, including direct contractual and contingent liability coverages, with limits of not less than $1,000,000 per occurrence for bOdily injury, property damage or personal injury, and $2,000,000 general policy aggregate (or alternatively $1,000,000 on a per project basis); (b) comprehensive automobile liability insurance with limits of not less than $500,000 for personal injury to, or death of, anyone person, $1,000,000 for bodily injury to, or death of, from anyone accident or occurrence (alternatively $1,000,000 combined single limit for anyone accident or occurrence), and $500,000 for property dama'ge in anyone accident; (c) workers' compensa- tion in accordance with the provisions of California law; and (d) employer's liability insurance of not less than $1,000,000. The policies of insurance described in clauses (a) and (b) above will each name RDR and McMillin Ptoject Services, Inc, as additional insured parties pursuant to a Form B or similar endorsement and contain a provision that such policy may not be terminated without thirty (30) days' written notice of the ptoposed termination to RDR (except that only ten (10) days' written notice of termination shall be required for nonpayment of premium). Certificates of insurance evidencing the insurance policies described in this paragraph will be delivered by Cordova to RDR before entry onto the Property by Cordova or its agents Ot contractors, Claims made coverage is unacceptable. The insurance coverage required by this Section 5.2 may be provided under a "blanket" policy or policies of insurance RDNOHDC 11/28/95 7 1~)/1 " also covering other locations, so long as the tequirements of this Section are met. Before undertaking any activity on the Property which requires a permit from the appropriate governmental agency, Cordova will obtain such permit and pay any fee or expense required to obtain or carry out said permit. Any contractor, surveyor, engineer or similar provider of materials or services who enters the Property on behalf of Cordova must also obtain similar insurance if RDR requests. they do so. ARTICLE 6 Improvements by RDR; Parcel Map 6.1 Improvements; Condition of the Property. RDR shall have no obligation to complete any improvements to or for the benefit of the Property except as follows. RDR agrees, at its expense, to cause RDR's Improvements described on Exhibit "B" to be completed by August 15, 1996, subject in both cases to delays outside of RDR's reasonable control. RDR shall keep the Property in good condition and free from weeds and erosion and properly maintain any siltation basins affecting the Property until Close of Escrow. 6.2 Walk Through. On or before August 15, 1996, Cordova and RDR shall walk through and inspect the Property. Should the Property not materially conform to the requirements of Section 6,1 above for the condition of the Property, RDR agrees, at its expense, to promptly repair the Property so that it is in conformance with the requirements of Section 6.1. RDR shall complete such tepairs as soon as reasonably possible after the walk through (subject to delays outside of RDR's reasonable control). Minor "punch-list" items may be completed after Close of Escrow. 6.3 Additional Improvements, Cordova, and not RDR, shall be responsible for any additional improvements to the Property necessary or appropriate for Cordova's Proposed Project. 6.4 Risk of Loss, All risk of loss for changes in the physical condition of the Property shall remain on RDR with respect to the Property until Close of Escrow. However, material damage to the Property priot to Close of Escrow by reason of earthquake shall give each Cordova and RDR the right to terminate this Agreement. 6.5 New Parcel Map, RDR agrees to process the New Parcel Map with reasonable diligence. ARTICLE 7 Title Policy 7,1 Title Policy. RDR shall, at Close of Escrow, pay fot an AL T A Standatd Owners Policy of Title Insurance, with Western Regional Exceptions (the "Title Policy") from Title Insurer, with liability in the amount of the Appraised Value of the Property, insuring that fee title to the Property vests in Cordova subject only to; (a) All standard exceptions and exclusions from coverage set forth in the Title Policy, RDRIOHOC 11/28/95 8 tf-3() . (b) General and special real estate taxes and assessments (including, but not limited to, the districts referred to in Article 10 below) which are, as of the close of this escrow, not delinquent and supplemental taxes, if any, assessed pursuant to California Revenue and Taxation Code Section 75 and following. (c) Easements dedicated on the New Parcel Map, any other final map of the Property or reserved in the grant deeds or otherwise required for development of the Property . (d) The teservation of water rights and any power of termination set forth on the grant deed pursuant to the Conveyance Agreement. (e) The Addendum to Grant Deed pursuant to the Conveyance Agreement. (f) The covenants, conditions and restrictions established pursuant to the Mastet Declaration and the Notice of Annexation (including any supplemental restrictions pursuant to the Conveyance Agreement). (g) Any lien or other encumbrance voluntarily imposed by Cordova. (h) All "Permitted Exceptions" determined pursuant to Section 7.4 below. 7.2 ALTA Extended Policy, Cordova may, at Cordova's option, direct Escrow Holder to procure an AL TA owner's policy of title insurance from Title Insurer which eliminates certain or all of the Western Regional Exceptions or includes indorsements which expand coverage, provided Close of Escrow would not be thereby delayed beyond the Closing Date. Cordova, and not RDR, shall be responsible to pay any added premium or other costs of such additional coverage. Cordova, and not RDR, shall be responsible to provide and pay the costs of any survey required for the AL T A policy or such indorsements. Cordova shall have no right to condition its obligations under this Agreement on its approval of a survey. 7.3 Preliminary Report. RDR will csuse-Title Insurer to issue a Pteliminary Report as soon as possible and promptly deliver to the parties a copy thereof, together with a copy of each recorded document referred to in the Preliminary Report and a composite plan prepared by Title Insurer showing the locations of easements. Cordova shall have until the end of the Feasibility Period in which to review the Preliminary Report and related documents. 7.4 Permitted Exceptions. Unless Cordova delivets to RDR before the end of the Feasibility Period, written notice of disapproval of the state of title to the Property, all exceptions (other than mortgages, deeds of ttust or mechanic's liens) listed in the Preliminary Report will be deemed to be "Permitted Exceptions". In lieu of simple approval or disapproval of the state of title, Cordova may at its option deliver to RDR, on or before the end of the Feasibility Period, Cordova's conditional approval thereof accompanied by a written statement of the exceptions listed therein that are objected to by Cordova ("Title Objections") and which must be removed by RDR in order for Cotdova's approval to become unconditional; provided, however, that Cotdova shall have no right to object to matters set forth in Sections 7.1 la). 7.1Ibl. 7.11dl, or 7.1191, inclusive, above and such matters shall not be considered Title Objections. In the event Cordova does provide such conditional approval and list of Title Ob- I/DRIOHDC 11/28/95 9 1-3/ ~ jections, RDR will, within five (5) days after receipt of Cordova's Title Objections, respond in a writing delivered to Cordova and to Escrow Holder in which RDR, as to each exception objected to by Cordova, either (i) agrees to remove (or cause to be removed) the exception at or before the Close of Escrow, or (ii) states RDR's unwillingness or inability to temove the exception in question. RDR's failure to respond timely to Cordova's conditional approval and list of Title Objections will be deemed conclusively to be RDR's unwillingness to remove any of the Title Objections. If RDR does agree to remove all the Title Objections, then only those exceptions listed in the Preliminary Report not objected to by Cordova will be Permitted Excep- tions. If RDR does not agree to remove all the Title Objections, then Cordova will, within five (5) days after receipt of RDR's notice stating unwillingness or inability to remove any Title Objection, in a writing delivered to RDR and to Escrow Holder, at Cordova's sole option either (a) terminate this Agreement, or (b) waive those Title Objections not agreed to be removed by RDR, in which case all exceptions listed in the Preliminary Report, other than the Title Objections agreed to be removed by RDR, will be Permitted Exceptions. Cordova's failure to respond, timely, to RDR's written response to Cordova's conditional approval and list of Title Objections will be deemed conclusively to be Cordova's election to waive the Title Objections not agreed to be removed by RDR. Notwithstanding anything in the foregoing to the contrary, in no event will any mortgage, deed of trust or mechanic's lien be deemed to be a Permitted Exception. Nothing in this Section 7.4 shall limit or otherwise affect Cordova's right in its sole and absolute discretion to disapprove the suitability of the Property pursuant to Section 4.2. RDR and Cordova shall instruct Escrow Holder to attach a list of the Permitted Exceptions as Schedule 1 to the Grant Deed under the Conveyance Agreement. ARTICLE 8 Protations, Fees, Costs and Reimbursements 8.1 Supplemental Taxes. Should any supplemental taxes with respect to the Property be levied and billed after Close of Escrow pu'rsuant to California Revenue and Taxation Code Sections 75 and following such taxes shall be the obligation of Cordova except for supplemental taxes levied by reason of improvements to the Property or transfer of the Property before Close of Escrow, which portion, if any, will be the obligation of RDR. RDR shall pay supplemental taxes, if any, for which RDR is responsible within thirty (30) days after Cordova provides RDR with a demand for payment accompanied with reasonable documentation from the County that such sum is payable by RDR pursuant to this Section. 8.2 Fees. Cordova, and not RDR, shall be responsible for any and all fees, assessments and charges relating to the development of Property, and the construction and the operation of Cordova's Proposed Project. 8,3 Deposits, In the event RDR has made deposits with any governmental entity or utility, and any such deposit exceeds actual costs of the project, RDR shall be entitled to the return of the excess of such deposit over costs. Should said excess deposit be returned to Cordova, Cordova shall immediately reimburse RDR for same. RDRIOHDC , 1/28/95 10 t- 3.A . ARTICLE 9 Default 9.1 Breach. A material breach of the Assignment Agreement or the Disposition and Development Agreement by Cordova shall be considered a material breach of this Agreement by Cordova. A material breach of the Conveyance Agreement by RDR shall be considered a material breach of this Agreement by RDR. Time is expressly stated to be of the essence of each and every provision of this Agreement wherein time for performance is set forth. In all other respects, the parties hereto covenant to perform their obligations in an expeditious manner. Failure to comply with this provision shall be a material breach of this Agreement. In the event that Cordova or RDR fails to perform pursuant to this Agree- ment, the other party shall have the right to terminate this Agreement and seek any available remedies. City shall have the right, but no obligation, to cure any material breach of this Agreement by Cordova and thereby succeed to Cordova's rights and obligations hereunder. 9.2 Certain Rights of RDR if Agreement Terminated. Should this Agreement be terminated for any reason other than a material default by RDR, Cordova agrees to do the following at no cost to RDR: (a) Transfer of Plans. To transfer to RDR the non-exclusive right to use the working drawings for Cordova's Proposed Project; provided, however, Cordova's obligation to transfer such rights to RDR is subject to the obtaining of any consent required by the preparer of the plans. Cordova will use its reasonable efforts to obtain such consent, but Cordova shall have no obligation to incur any out-of-pocket expenses to obtain such consent. Such assignment shall be made without any warranties, expressed or implied. (bl Coooeration. To reasonably cooperate with RDR in the transition to RDR of the development of the Property by assigning to RDR at its request any development permits or entitlements and similar item obtained by Cordova for the Property (excluding any low income tax credits obtained by Cordova) and by informing RDR of the status of any pending permits or entitlements for the Property. ARTICLE 10 Assessment Districts 10.1 Disclosure. RDR discloses to Cordova that the following assessment districts encumber the Property and represents that RDR has no actual knowledge of any other assessment district(s) encumbering the Property: (a) Community Facilities District No.3 Chula Vista School District, established pursuant to an agreement entered into between Chula Vista City School District and RDR. This is a so-called "Mello-Roos" district. (b) Community Facilities District No.3 - Sweetwater Union High School District, established pursuant to an agreement entered into between RDR and the Sweetwater Union High School District. This is also a Mello-Roos district. RDRIOHDC 11/28/95 11 4-33 ~ Ic) Assessment District No. 87-1, established for the widening and other improvements to H Street. Id) Otay Water District Improvement District ID-27 established for regional water storage and improvements, to be owned by Dtay Municipal Water District. The formation of this district does not reduce or eliminate hook-up charges or capacity fees. (e) Open Space Maintenance District No. 20, established to maintain designated open space areas within Rancho Del Rey. RDR is informed that the Property will be "detached" from Open Space Maintenance District No. 20 and will be "attached" to Open Space Maintenance District No.1 before Close of Escrow. 10.2 Cordova's Investigation. Cordova acknowledges that will conduct its own investigation of each district and any proposed assessment district and became familiar with each of the same during the Feasibility Period. ARTICLE 11 SPA Plan; Financing Plan 11.1 Disclosure. Cordova acknowledges that RDR disclosed to Cordova that, in addi- tion to other governmental laws, regulations and policies, the Property is subject to (i) the SPA Plan, and (ij) the Financing Plan. Among other requirements, these documents require compliance with Design Guidelines and require a design review process which is applicable to plans and specifications to be submitted by Cordova to the City for Cordova's Proposed Project. The conditions of approval of the tentative map for CHULA VISTA TRACT 90-02 and the Financing Plan, among other matters, impose a public facility phasing plan which conditions the right to improve and occupy improvements to the Property. Included among these requirements, as set forth in the Financing Plan, are a Development Phasing Plan, a Public Facility Phasing Plan and Regional Transportation Facility Phasing. These requirements are, however, subject to change by the City. 11,2 Regional Transportation Facility Ph'asing. RDR has no obligation to Cordova to cause any of the Regional Transportation Facilities requirements (set forth on pages 51 through 53 of the Financing Plan) to be satisfied. Cordova acknowledges its understanding that (j) these requirements relate to Cumulative Regional Development from Rancho Del Rey and other areas within the region and that the level of such development could impact the ability to develop the Property, (ii) completion of the Regional Transportation Facilities is not within RDR's control, and (iii) the Regional Transportation Facilities requirements are not the only "thresholds" imposed by the City. ARTICLE 12 Representations, Warranties and Furthet Disclosures and Agreements 12.1 Basis of Purchase. Except as set forth in this Agreement, Cordova acknowledges that it is purchasing the Property in reliance solely on (j) Cordova's inspection of the Property, (ii) Cordova's independent vetification of the truth and accuracy of any documents delivered by RDR to Cordova and statements made by RDR to Cordova concerning the Property and RDRIOHDC 11/28/95 12 If-31 ." its development, (iii) the opinions end advice concerning the Property and their development of consultants engaged by Cordova and (iv) the covenants, representations and warranties set forth in this Agreement. 12,2 "As Is" Purchase. Except as provided in Sections 6,' and 6.2 above and as otherwise set forth in this Agreement, Cordova will accept each the Property, and the matters relating to the Property listed below, in the present "as is" condition. The matters are: (a) Soils. Toooaraohv. Etc. Soils and geological condition; topography, area and configuration; archeological, prehistoric and historic artifacts, remains and relics; contamination by Hazardous Materials; endangered species and wetlands. (b) Utilities. Schools. Etc. Availability of utilities, schools, public access, and fire and police protection. (c) Districts. The status, special taxes and assessments of any and all Mello-Roos Community Facility Districts and assessment districts. (d) Plannina and Zonina. Applicable planning, zoning and subdivision statutes, ordinances, regulations and permits, the SPA Plan and the Financing Plan. (e) Develooment Fees. The character and amount of any fee or charge which must be paid by Cordova to develop the Property. Cordova, and not RDR, shall be responsible for any and all fees, assessments and charges relating to the development of Property, and the construction and the operation of Cordova's Proposed Project. (f) Easements and Encroachments. Any easement, license or encroachment which is not a matter of public record, whether or not visible upon inspection of the Property; RDR warrants to Cordova that RDR knows of no such easement, license or encroachment. (g) Other Matters. Any other matter relating to the Property or to the development of the Property, including, but ndtlirriited to, value, feasibility, cost, governmental permissions, marketing and investment return, except as otherwise expressly provided in this Agreement. 12,3 Otay Municipal Water District's Quarterly Water Allocation Program, The Otay Municipal Water District has or had a water allocation program which covers Rancho Del Rey and other areas. RDR has been informed by the District that it has suspended indefinitely their water allocation program. Cordova will conduct its own investigation of the availability of water and the District's policy regarding termination of the allocation of water to the Property. Should the Otay Municipal Water District require an express assignment of water allocation rights with respect to any water meters installed on the Property putchased by Cordova, RDR will assign the rights to Cordova, The assignment shall be without any wartanties, expressed or implied. Should the water allocation program be reinstated, then at Cordova's request and subject to any previous obligations of RDR to do so, RDR agrees to use its reasonable best efforts (at no expense to RDR other than reasonable general and administrative expenses) to obtain RDRIOHDC 11/28/95 13 4-3s T water allocations for the Property pursuant to and subject to the rules and policies of the Otay Municipal Water District lif its watet allocation program is reinstated) and any other relevant jurisdiction in effect as of the date of this Purchase Agreement. Cordova agrees to make any request for RDR to exercise such reasonable best efforts at least ninety (90) days before the date the water allocation is needed. Provided that Cordova has satisfied its obligations under this Section 12.3 (e.g., made a request for water allocations at least ninety (90) days before they are needed), RDR agrees that should such an allocation(s) not be granted by the District for the Property, and should RDR hold an unused water allocation(s) previously granted by the District to RDR for use in Rancho Del Rey, RDR will make the unused allocation(s) available to Cordova for the Property, subject to the District's policies and requirements based on the water allocation program which is currently suspended and subject further to any previous obligations of RDR to do so. In no event shall RDR be obligated to supply an allocation held by RDR for a water allocation which Cordova has allowed to elapse. RDR's obligations to make RDR's water allocations available to Cordova for the Property shall expire two years after Close of Escrow. 12.4 No Btokerage Commission or Finder's Fee. Each party warrants to the other that the warranting party has incurred no obligation, by reason of this Agreement or the transaction contemplated hereby, for a real estate brokerage commission or finder's fee for which the other party would be liable. Each party will hold the other party free and harmless from and against any damage or expense the other party may incur by reason of the untruth as to the warranting party of the foregoing warranty, including expenses for attorney's fees and court costs. 12.5 Tentative Tract Map Conditions. Cordova acknowledges that it shall review the Resolution of Approval for the Tract which covers the Ptoperty. Cordova agrees to fulfill those conditions specified therein which are applicable to the Property and not otherwise required to be satisfied by RDR pursuant to this Agreement. 12.6 Master Declatation and Notice of Annexation. Cordova acknowledges that it has received and shall review a copy of the Master Declaration and the Notice of Annexation which will impose supplemental restrictions on the Property. 12,7 No VA Approval, Cordova acknowledges that the Master Declaration has not been submitted to the Veterans Administration for approval and acknowledges that RDR has made no representation regarding the availability of Veterans Administration financing for the proposed development of the Property. 12.8 Acknowledgment of Receipt, Cordova acknowledges receiving copies of each of the items desctibed on Exhibit .C. attached hereto. RDR represents that it has no actual knowledge of any information material to development of the Ptoposed Project on the Ptoperty not previously disclosed to Cordova. 12.9 Notice of Special Tax. Cordova acknowledges having received from RDR a Notice of Special Tax pertaining to the two Mello Roos Community Facilities Districts to which the Property is subject, Cordova shall prior to execution of this Agreementsign and deliver to RDR a copy of the Notice of Special Tax. RlJRIOHDC 11/28/95 14 1- ~~b . 12.10 Other Warranties and Representations. Each party warrants to the other that it is authorized to enter into this Agreement. Each person signing this Agreement on behalf of a party warrants to the other party that he or she is authorized to sign this Agreement on behalf of such party. RDR warrants and represents to Cordova as follows: (a) No Possessory Riahts. RDR knows of no unrecorded agreement or instrument which creates third party possessory rights to the Property and RDR covenants to give possession of the Property to Cordova at Close of Escrow. (b) No Mechanics' Liens. RDR warrants to Cordova that the Property will be conveyed to Cordova at Close of Escrow free of any mechanics' or materialmen's liens or rights of lien caused by RDR's activities. (c) RDR's Authoritv. RDR is the owner in fee simple absolute of the Property and has the full right, capacity, power and authority to enter into and carry out the terms of this Agreement. (d) Hazardous Materials. GEOCON, Inc. and Law-Crandall, Inc. have conducted the Phase I Investigation of whether any Hazardous Materials (as defined in Section 13.1 below) have been released on or beneath any of the Property which would be in violation of any applicable federal, state or local law, ordinance or regulation relating to Hazardous Materials. Cordova acknowledges having received the Phase 1 Investigation reports (Items 21, 22 and 23 of Exhibit .C.). RDR represents that the Phase I Investigation sets forth all of RDR's actual knowledge regarding the existence of Hazardous Materials on the Property. (e) Eminent Domain. RDR has no actual knowledge of any eminent domain actions or proposed road widening adversely affecting the Property not previously disclosed to Cordova. (f) ~. RDR has no actual knowledge of any proposed new governmental fees not previously disclosed to Cordova. (g) Utilities. RDR reptesents that on the Closing Date, all public utilities required to serve the Proposed Project will be delivered to the property line of the Property. All of the representations and warranties made by RDR in this Section 12.10 which are limited to the actual knowledge of RDR are based upon the actual knowledge of Denny Cuccarese, Kenneth Baumgartner, Virgil Elliott and Kenneth Scretton only, and are further based upon the actual knowledge of such individuals as of the Acceptance Date (and, upon Cordova's request, shall be made again as of Close of Escrow) without any duty of investigation or inquiry. Such individuals are making such representations and warranties on behalf of RDR and not in their individual capacities. As a result, RDR shall be liable (and not such individuals) in the event any such representations or warranties are breached. If Cordova closes escrow with actual knowledge of the material breach or inaccuracy of any such representations and warranties, Cordova shall be deemed to have waived any and all claims it may have against RDR for any such breach or inaccuracy. RDRIOHDC , 1/28/95 15 4-3? . ARTICLE 13 Hazardous Matetials 13.1 Hazatdous Materials. The term "Hazardous Materials" means any material or substance which is (j) defined as a "hazardous waste", extremely hazardous waste", "restricted hazardous waste", "hazardous material", "hazardous substance", or any similar formation under or pursuant to any California statute or common law rule; (ii) petroleum and natural gas liquids as those terms are used in ~ 1 09( 14) of the Comprehensive Environmental Response, Compensation & Liability Act, 42 U.S.C. ~ 6901, et seq. (41 U.S.C. ~6903); Wi) asbestos; (iv) polychlorinated biphenyls; (v) designated as a "hazardous substance" pursuant to ~311 of the Clean Water Act, 33 U.S.C., ~ 1251, etseq. (33 U.S.C. ~1321) or listed pursuant to ~307 of the Clean Water Act (33 U.S.C. ~1317); (vi) defined as a "hazardous waste" pursuant to ~ 1004 of the Resource Conservation & Recovery Act, 42 U.S.C. ~6901, et seq. (42 U.S.C. ~6903); or (vii) defined as a "hazardous substance" pursuant to Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. ~9601, et seq. (41 U.S.C. ~9601). 13.2 Indemnity of RDR. As a material inducement to RDR, without which RDR would not have agreed to the terms set forth herein, Cordova, for itself and its successors and assigns, hereby agrees to indemnify, defend and hold harmless RDR and each of RDR's partners, and the employees, agents, attomeys, shareholders, members, managers, successors and assigns of RDR and RDR's partners ("'ndemnified Parties"), from and against any and all present and future liability ,losses, damages (including foreseeable or unforeseeable consequential damages), penalties, fines, forfeitures, response costs and expenses (including out-of-pocket litigation costs and reasonable attorneys' fees) directly or indirectly arising out of the use, generation, storage, transportation, release, discharge or disposal of Hazardous Materials on or in the Property by Cordova, its joint venture partners, successors, assigns or their tespective employees, contractors, subcontractors or agents, including, without limitation, the cost of any required or necessary repair, cleanup or detoxification and the preparation of any closure or other required plans. 13.3 Indemnity of Cordova, As a material inducement to Cordova, without which Cordova would not have agreed to the terms set forth herein, RDR, for itself and its successors and assigns, hereby agrees to indemnify, defend and hold harmless Cordova and each of Cordova's partners, and the employees, agents, attomeys, shareholders, members, managers, successors and assigns of Cordova and Cordova's partners ("Indemnified Parties"). from and against any and all present and future liability, losses, damages (including foreseeable or unforeseeable consequential damages), penalties, fines, forfeitures, response costs and expenses (including out-of-pocket litigation costs and reasonable attorneys' fees) directly or indirectly arising out of the use, generation, storage, transportation, release, discharge or disposal of Hazardous Materials on, in Ot around the Property by RDR or its employees, contractors, subcontractors or agents, including, without limitation, the cost of any required or necessary repair, cleanup or detoxification and the pteparation of any closure or other required plans. ARTICLE 14 Assignment RDNOHDC 11/28/95 16 1-3? ~ 14.1 RDR's Right to Assign, RDR shall have absolute right to transfer the Property (subject to the Conveyance Agreement and this Agreement) and to assign its rights under this Agreement. Upon any such transfer and assignment, RDR shall be released from all obligations under this Agreement after the date of such transfer and assignment. 14.2 Assignment by Cordova. (a) Assignment Must be Approved by RDR. Neither Cordova, nor any person or entity constituting Cordova, nor any assignee of Cordova's or any such person's or entity's rights hereunder, will have the right or power to assign its or their rights hereunder without first having obtained RDR's written approval of any such assignment. Approval of anyone assignment will not constitute a waiver of RDR's right to approve or disapprove any subsequent proposed essignment. Except as stated in the next sentence, RDR shall have absolute discretion to withhold its consent to any such assignment. Notwithstanding the first sentence of this Section, RDR shall approve an assignment of Cordova's rights to a limited partnership of which OHDC and SBCS are general partners; any such assignee must assume Cordova's obligation under this Agreement. (b) Effect of Approved Assignment. In the event of any such approved assignment, the assignee will be and become the person(s) having the right or obligation to (a) deliver statements, (b) deliver documents, (c) give approvals, (d) waive conditions, or (e) make demands, all as may be permitted or required by this Agreement and not then already accomplished by Cordova or another approved assignee. (c) Cotdova's Obligations. No assignment pursuant to this Article will relieve Cordova of any of its obligations under this Agreement. ARTICLE 15 General Ptovisions 15.1 Gender, Number, Whenever the context requires, the use herein of (i) the neuter gender includes the masculine and the feminine, and (ii) the singular number includes the plural. 15.2 Business Days, If the (i) stated Closing Date, or (ii) last day for performance of an act falls upon a day during which Escrow Holder is not open for business, the Closing Date or such last day, as the case may be, will be the next following regular business day of Escrow Holder. 15.3 Survival of Provisions. The representations, warranties, agreements and indemnities set forth in this Agreement will remain operative, will be deemed made at the Close of Escrow, and will survive Close of Escrow. 15.4 Authority of Signatories. Each individual signing this Agreement on behalf of a corporation wartants that (i) he or she is duly authorized to sign and deliver this Agreement on behalf of the corporation, in accordance with a duly adopted tesolution of the board of directors of the corporation or in accordance with the bylaws of the corporation, and (ii) this Agreement is binding upon the corporation in accordance with its terms. McMillin Project RDRIOHDC , 1/28/95 17 1-39 ~ " -,. -...- --,-_..- Services, Inc. represents that it has the authority to execute this Agreement on behalf of RDR and that this Agreement 'is binding on RDR in accordance with its terms. 15.5 Joint and Several Liability. If either party consists of more than one person, the liability of each person signing this Agreement will be joint and several. 15.6 Captions. Captions in this agreement are inserted for convenience of reference only and do not define, describe or limit the scope or the intent of this Agreement. 15.7 Exhibits. All exhibits referred to in this Agreement are attached, and are a part of, this Agreement. 15.8 Entire Agreement, This Agreement, the Conveyance Agreement, the Assignment Agreement and the SPA III Affordable Housing Agreement contain the entire agreement between the parties relating to the transaction contemplated hereby and all prior or contemporaneous agreements, understandings, representations and statements, oral or written, are merged herein. 15.9 Modifications. No modification, waiver or discharge of this Agreement will be valid unless the same is in writing and signed by the party against which the enforcement of such modification, waiver or discharge is or may be sought. 15.10 Attorney's Fees and Costs. If either party commences litigation for the judicial interpretation, reformation, enforcement or rescission hereof, the prevailing party will be entitled to a judgment against the other for an amount equal to reasonable attorney's fees and court and other costs incurred. 15.1 1 Successors. All terms of this Agreement will be binding upon and inure to the benefit of the parties and their respective administrators or executors, successors and assigns; nothing contained in this Section will affect Article 14. 1 5.12 Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed to be an original, but all of which together will constitute one instrument. 15.13 Applicable Law. This Agreement will be construed and enforced in accordance with the laws of the State of California. 15.14 Time of Essence. Time is of the essence of each and every provision of this Agreement in which time is an element. 15.15 Notices. Unless otherwise provided herein, all notices, demands or other communications given hereunder will be in writing and will be deemed to have been duly delivered upon personal delivery, or on receipt of a telecopy, or on the second business day aftet deposit with Federal Express or other overnight courier service, or as of the second business day after mailing by United States registered or certified mail, retum receipt requested, postage prepaid, addressed as follows: RDRIOHDC , 1/28/95 18 1- fie) ... If to RDR: Rancho Del Rey Investors, L.P. c/o McMillin Project Services, Inc. 2727 Hoover Avenue Natiorlal City, California 91950 Attn: Kenneth Baumgartner Telephone: (619) 477-4117 Telecopier: (619) 336-1587 With a CODV To: Hecht, Solberg, Robinson & Goldberg 600 West Broadway, Eighth Floor San Diego, California 92101 Attn: R. Martin Bohl, Esq. Telephone: (619) 239-3444 Telecopier: (619) 232-6828 If to Cordova: Orange Housing Development Corporation 217 East Chapman Avenue Orange, California 92666 Attn: Linda Boone, Executive Director Telephone: (714) 771-1439 Telecopier: (714) 771-0394 ~ South Bay Community Services 315 4th Avenue, Suite E Chula Vista, CA 91910 Attn: Kathryn Lembo, Executive Director Telephone: (619) 420-3620 Telecopier: (619) 420-8722 With a CODV To: Arter & Hadden 700 S. Flower Street, Suite 3000 Los Angeles, California 90017 Attn: Sheldon Chernove, Esq. Telephone: (213) 629-9314 Telecopier: (213) 617-9255 RDIlIOHOC , 1/28/95 19 Lj-'-f( ~ 15.16 National Pollution Discharge Elimination System. RDR or its predecessor in title has filed a Notice of Intent (NOn indicating its intention to be regulated under the provis'ion of the General Permit No. CAS000002. issued by the State Water Resources Control Board. RDR has prepared and implemented e Storm Water Pollution Prevention Plan (SWPPP) in accordance with Section A of the Permit. Copies of the NOI and SWPPP have been received by Cordova. In accordance with Section C: 18: Transfers. RDR hereby informs Cordova that the General Permit is not transferable. A new owner of an ongoing construction activity must submit an NOI in accordance with the requirements of the General Permit to be authorized to discharge under the General Permit. An owner who sells property covered by the General Permit shall inform to the extent required by applicable law the new owner of the duty to file an NOI and shall provide the new owner with a copy of the General Permit. RDR has delivered to Cordova a copy of the General Permit. RDR intends to revoke (cancel) coverage of the Property on Close of Escrow by submitting to the State Water Resources Control Board certification that the ownership of the property has been transferred. Unless an exemption applies. Cordova agrees (i) to comply with the provisions of Section A(2)(c) and B(3)(b) of the General Permit, which provisions require Cordova to accept, implement. maintain and amend the existing SWPPP; and (ii) to file a NOI for the Property at Close of Escrow. Cordova shall accept maintenance responsibility forthe slopes, irrigation,landscaping, permanent monuments. utilities, storm drain systems, streets, sidewalks and all other improvements within the Property immediately upon Close of Escrow. Ftom and after the Close of Escrow, Cordova shall comply with all applicable laws. including without limitation City ordinances and regulations. tegulating erosion and sediment discharge and shall implement all measures necessary to prevent the discharge of sediment and other pollutants from the Property. RDRIOHDC , 1/28/95 20 -1-'1;)- This Agreement has been executed as of the date set forth at the beginning hereof. Date: 1/- 30" - 7~;- Date: I;fVi/fJ" Date: IIi3CJ );., / / - RDNOHOC 11/28/95 "RDR" RANCHO DEL REY INVESTORS, L.P., a California limited partnership BY: McMILLIN PROJECT SERVICES, INC., a California corporation, its Attorney-in-Fact under a recorded durable {lower f attorney dated June 2, 1993 B By V? rj'/~4/V~ Title S l '. .Cordova Ventures" CORDOVA VENTURES, a California jOint venture By: ORANGE HOUSING DEVELOPMENT CORPORATION, a California non-profit corporation, . t ~ipal /' / ..R...-- By ~~6-_.......R-.-- Its Executive Director By: S BAY COMMUNITY SERVICES, INC., a Cali ornia non-profit corporation, rincipal 1- L/ 3 ~ EXHIBIT" A" J-12322E AFFORDABLE HOUSING SITE LOT 10 A parcel of land being a portion of Lot 10 of Map No. 13176, in the City of Chula Vista, on file in the Office of the County Recorder of San Diego County, State of California described as follows: . Beginning at the Northeast corner of said Lot 10; thence South 17051 '06" East along the Easterly line thereof 368.00 feet; thence leaving said line South 72008'54" West 228,00 feet; thence North 50051 '54" West 205.40 feet to the beginning of a tangent 228,00 foot radius curve concave Southwesterly; thence Northwesterly along the arc of said curve through a central angle of 11;1021 '21" a distance of 73,04 feet; thence North 69013'15" West 18,54 feet to a point on the Westerly line of said Lot 1 0 and to the beginning of a non-tangent 270.00 foot radius curve concave . Southeasterly, to which a radial line bears North 63016'06" West; thence along said Westerly line and the Northerly line the following courses: Northeasterly along the arc of said curve through a central angle of 00009'48" a distance of 0,77 feet; thence North 26053'42" East 185.95 feet to the beginning of a tangent 428.00 foot radius curve concave Northwesterly; thence Northeasterly along the arc of said curve through a central angle of 16005'40" a distance of 120,23 feet thence South 78047'18" East 167.68 feet; thence North 89040'45" East 56.24 feet to the POINT OF BEGINNING. Containing 2.97 acres more or less, (hAJ~J D. C '^-I1YI1l~ 2.n-ClS Chris D. Ciremele L.S. 5267 Exp.12-31-95 q - Lf-1- , -T" This page blank. /fvqS' "",' EXHIBIT "B" ROWs Imorovements Graded Condition. The Property shall be rough graded in substantial conformance with the City approved grading plans and the City's Grading Ordinance; provided, however, that flat pads and slopes of five feet (5') or less (Le., change in vertical elevation of five feet (5') or less) need not be hydro-seeded unless and until required by City. The lot shall be substantially free from weeds as required by Section 6.2 of the Purchase Agreement. Monumentation. The final monumentation shown on the New Parcel Map shall have been set in the field by the surveyor. Monuments destroyed by Cordova's construction operations shall be re-set by Cordova at Cordova's cost. Building layout stakes and other construction stakes required for Cordova's improvements are not in the finished lot. Utilities. Water, sewer, gas, electric, telephone and cable television transmission lines within the public streets and easements shall have been constructed in substantial conformance with the City and Agency approved improvement and utility plans. Water and sewer services shall be stubbed to the lot lines. On-site services, distribution lines, meters and utilities are D..Q.t included in the finished lot. Street Imorovements. Monolithic curb, gutter and sidewalk and full depth street paving shall have been completed in substantial conformance with the City approved improvement plans. Driveway approaches shall be constructed to the right-of-way. Cordova improvements within the right-of-way are D..Q.t included in the finished lot. Landscaoina and Fencina. Erosion control landscaping and irrigation as required by the City Grading Ordinance and shown on the City approved erosion control landscaping plans, or as modified by the City Landscape Architect, and accepted by the City, shall have been installed. Perimeter walls, as shown on the City approved .Walls, Fences and Minor Monuments. plans shall have been constructed. On-site walls and fencing which may be required by the City, or as a condition of sale by RDR, is not included in a finished lot. Landscaping within the street right-of-way which may be required by the City and other Cordova landscaping is D..Q.t included in the finished lot. RDNOHDC 11/28/95 4-r.tG " This page blank. 4-47 .,. EXHIBIT "C" Items Received Bv Cordova RANCHO DEL REV SPA III, PHASE 3, LOT 10, RECORD MAP NO. 13176 (3340) 1. City of Chula Vista Resolution No. 16222 approving the Tentative Residential Subdivision Map for RDR SPA III, Chula Vista Tract No. 90-02. 2. City of Chula Vista Resolution No. 16218, Recertifying Final EIR-89-10. 3. Final Supplemental EIR, RDR SPA III Plan, EIR-89-10. 4. Rancho Del Rey SPA III Binder including: (a) SPA Plan and PC District Regulations adopted March 5, 1991, with Amendment #1, November 19, 1991. (b) City of Chula Vista RDR SPA's I, II & III Public Facilities Financing Plan with Amendments as adopted by City Council on January 15, 1991 (amended on November 24, 1992). (c) Residential Design Guidelines, RDR SPA III. Cd) Rancho Del Rey SPA II and SPA III Air Quality Improvement Plan. (e) Rancho Del Rey SPA II and SPA III Water Conservation Plan. 5. Chula Vista Tract No. 90-02, RDR SPA III Master Final Map No. 13176. 6. City of Chula Vista Grading Plans. 7, City of Chula Vista Improvement Plans: 8. City of Chula Vista Landscape and Erosion Control Plans. 9, RDR Guest Builder Prospectus. 10. RDR Marketing Manual. 11. RDR Signage Audit Manual. 12. Storm Water Pollution Prevention Plan and Notice of Intent. RDRIOHDC , 1/28/95 Exhibit "C" Page 1 4-76 " 13. Master Declaration of Restrictions for Rancho Del Rey. 14. Otay Water District Water Storage Agreement (TRIAD). 15. 1994-1995 Secured Property Tax Bills (when available). 16. City of Chula Vista Ordinance No. 2448, Growth Management Ordinance of 1991. 17. City of Chula Vista Resolution No. 16224, amending the Mitigation Monitoring Program for EIR-89-1 O. 18. City of Chula Vista Resolution No. 16221, approving Design Guidelines for RDR SPA III. 19. Notice of Special Tax - NOTE: MUST BE SIGNED AND RETURNED PRIOR TO OPENING OF ESCROW. 20, Updated Soil and Geologic Investigation for RDR SPA III, prepared by Geocon, Inc., July 1991, File No. 04228-23-03 with addendum letters dated September 27,1991 and October 7, 1991. 21. Preliminary Site Assessment for RDR SPA III prepared by Geocon, Inc., June 1989, File No. D-4228-R02. 22. Preliminary Site Assessment with Limited Soil Sampling and Laboratory Testing for RDR SPA III prepared by Geocon, Inc., February 1991, File No. 08267-06-01 with addendum letter dated March 15, 1991. 23. Report of Phase 1 Environmental Site Assessment, prepared by Law-Crandall, Inc., dated September 9, 1994, Portions of Rancho del Rey SPAs II and III, northeast of Rancho del Rey Parkway and south of East "H" Street, Chula Vista, California. . RDRIOHDC 11/28/95 Exhibit .C. Page 2 L-f-19 " This page blank. 1- 50 T RANCHO DEL REY SPA-III AMENDED AND RESTATED CONVEYANCE AGREEMENT AND ESCROW INSTRUCTIONS RANCHO DEL REY INVESTORS, L.P., a California limited partnership "RDR" THE CITY OF CHULA VISTA, a California municipal corporation "CITY" RDNCINM \11.,. , 1/28/95 4- Sf ~ ARTICLE 1 ARTICLE 2 ARTICLE 3 ARTICLE 4 ARTICLE 5 ARTICLE 6 ARTICLE 7 ARTICLE 8 ARTICLE 9 ARTICLE 10 ARTICLE 11 ARTICLE 12 ARTICLE 13 ARTICLE 14 ARTICLE 15 ARTICLE 16 TABLE OF CONTENTS PAGE Recitals . . . . , . . . . . . . . . . . . . . . . . , , . . . . . . . . . . . . . . . 1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Conveyance of the Property ............................. 4 Conditions Precedent . . . . . . . . . . . . . . . . . . . . . , . , . . . . . . . .. . 4 Improvements by RDR ................................. 5 City's Deliveries to Escrow Holder and RDR .................. 5 RDR's Deliveries to Escrow Holder . . . . . . . . . . . . . . . . . . . . . . . .. 6 Condition of Title .................................... 6 Ptorations, Fees. Costs and Reimbursements . . . . . . . . . . . . . . . . .. 7 Distribution of Funds and Documents . . . . . . . . . . . . . . . . . . . . . .. 8 Close of Escrow or Termination of Agreement . . . . . . . . . . . . . . . .. 8 Escrow Holder's General Provisions ....................... 10 "As Is" Conveyance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 10 Hazardous Materials ................................. 11 Assignment ....,...,............................. 12 General Provisions . . . . . . . . . . . . . . . . . , . . . . . . . . . . . . . . . ,. 13 EXHIBITS "A" Property Description "B" Grant Deed "CO RDR's Improvements "0" Notice of Declaration of Annexation "E" Escrow Holder's General Provisions lfDR/Chul. Vi.f. , 1/28/95 4 - S:J-- ~ AMENDED AND RESTATED CONVEYANCE AGREEMENT AND ESCROW INSTRUCTIONS THIS AMENDED AND RESTATED CONVEYANCE AGREEMENT AND ESCROW INSTRUCTIONS ("Agreement") is entered into as of December 5, 1995 between RANCHO DELREY INVESTORS, L.P.,a California limited partnership ("RDR"). and THE CITY OF CHULA VISTA, a Califomia municipal corporation, ("City") and completely supersedes the Conveyance Agreementand Escrow Instructions entered into as of March 7, 1995 between RDR and City. This Agreement constitutes (i) a COntract of cOnveyance, and (jj) escrow instructions to FIRST AMERICAN TITLE INSURANCE COMPANY ("Escrow Holder"), whose consent appears atthe end of this Agreement. ARTICLE 1 Recitals 1.1 The Property. RDR oWnS that certain real property in the City of Chula Vista, County of San Diego, State of California, more particularly described on Exhibit "A" attached (the "Property"). The Property is part of the master planned community known as "Rancho del Rey." 1.2 The SPA III Affotdable Housing Obligation. Pursuantto that certain" Agreement Concerning Rancho del Rey and Low-Moderate Income Housing" dated August 7,1990, RDR, as successor in interest to Rancho del Rey Partnership, is obligated to provide 23 low income housing units in connection with its development of SPA III of Rancho del Rey (the "SPA III Affordable Housing Obligation"). RDR desires to grant the Property to City, and City agrees to receive the grant of the Property, in full satisfaction of the SPA III Affordable Housing Obligation, subject to and in accordance with the terms of this Agreement. 1,3 SPA III Affordable Housing Agreement, RDR and City entered into that certain Rancho del Rey SPA 111 Affordable Housing Agreement dated as of March 7, 1995 and approved by City Resolution No. 17829 (the "SPA III Affordable Housing Agreement"). which describes certain options for and other matters relating to the satisfaction of the SPA 111 Affordable Housing Obligation, including the transactions contemplated by this Agreement. 1.4 Cordova Ventures. Cordova is "II California joint venture comprised of Orange Housing Development Corporation, a California 501 (c)(3) non-profit corporation ("OHDC"). and South Bay Community Services, a California 501 (c)(3) non-profit corporation ("SBCS"). and Sa res-Regis Group, a general partnership. The charter of OHDC is to develop, oWn and operate multi-family residential projects providing affordable housing to low income persons, and in fulfillment of that charter has considerable experience in the development, ownership and operation of such facilities. SBCS provides general social services. 1.5 The Proposed Project. Cordova (or a limited partnership in which OHDC and SBCS are general partners) intends to acquire the Property for the purposes of improving it with a multi-family residential project consisting of forty units and providing affordable housing for low income persons (the "Proposed Project"). RDRlChuI. Vi.,. 11/28/95 1 /j_53 ~ 1.6 Assignment Agreement. Concurrently herewith, City and Cordova have entered into that certain Amended and Restated Assignment of Conveyance Agreement and Escrow Instructions (" Assignment Agreement") pursuant to which City agrees to assign to Cordova, and Cordova agrees to assume from City, City's rights and obligations under this Agreement, subject to and in accordance with the terms of the Assignment Agreement. 1.7 Housing Agreement. RDR and Cordova have or will enter into an Amended and Restated Low Income Housing Agreement (the "Housing Agreement") pursuant to which, among other things, RDR and Cordova agree as to their respective obligations with respect to the Property. 1.8 Disposition and Development Agreement. City and Cordova intend to enter into a Disposition and Development Agreement and the Redevelopment Agency of the City of Chula Vista intends to make a loan to Cordova for the development of the Property with the Proposed Project. ARTICLE 2 Definitions Unless the context otherwise indicates, the following shall have the meanings as set forth in this Article: 2.1 "Acceptance Date" means the date of signature of City or RDR, whichever is the last to sign this Agreement. 2.2 "Agency" means the Redevelopment Agency of the City of Chula Vista. 2.3 "Agency Loan Agreement" means a loan agreement by which the Agency agrees to loan funds to Cordova for the Proposed Project. 2.4 "Appraised Value of the Property" means $960,000.00, as established by that certain appraisal by D.F. Davis Real Estate, Inc., MAl, dated March 3, 1995. 2.5 "Assignment Agreement" means the agreement described in Section 1 .6. 2,6 "Cash" means (i) currency, (ii) if acceptable to Escrow Holder, a check or checks currently dated, payable to Esctow Holder or order and honored upon presentation for payment, or Wi) funds wire-transferred or otherwise deposited into Escrow Holder's account at Escrow Holder's direction. 2.7 "Closing Date" means the date scheduled for Close of Escrow, and unless otherwise agreed to in writing by RDR and City or as otherwise set forth herein, the Closing Date shall be September 15, 1996, 2.8 "Close of Escrow" means the date the RDR's Grant Deed (a copy of which is attached as Exhibit "S" hereto) and other documents are filed for record. 2.9 "City" means the City of Chula Vista. RDR/ChuJ. W.f. 11/28/95 2 1--5'1 ..--.,.--..- 2.10 "County" means the County of San Diego, State of California. 2.11 "Disposition and DevelopmentAgreement" means the agreement between City and Cordova described in Section 1,8. 2.12 "Escrow Holder" means FIRST AMERICAN TITLE INSURANCE COMPANY, whose address is 411 Ivy Street,' San Diego, California 92101. 2.13 "General and special real estate taxes" means all charges evidenced by the secured tax bill issued by the Tax Collector of the County, including, but not limited to, amounts allocated to (i) County or City general governmental purposes, (ii) bonded indebtedness of the County or City, (iii) bonded or other indebtedness and operating expenses of any school, college, sewer, water, irrigation, hospital, library, utility, county service, community facilities district or other district, and (iv) any other lawful purpose. 2.14 "Housing Agreement" means the agreement described in Section 1.7. 2.15 "Opening of Escrow" means the date of, and act of, Escrow Holder signing the "Consent of Escrow Holder" attached to this Agreement. 2.16 "New Parcel Map" means the new parcel map which will be processed, approved and recotded to subdivide the Property from the remainder of Lot 10 of Map 13176. Upon the recording of the New Parcel Map, the new legal description of the Property as established by the New Parcel Map will replace the legal description on Exhibit "A" attached for all purposes. The exact property lines of the Property as shown on tha New Parcel Map may vary slightly from those shown on Exhibit" A", but neither any such variations nor any easements dedicated or other matters shown on the New Parcel Map shall materially impair Cordova's ability to develop the Proposed Project. 2.17 "Phase I Investigation" means the Preliminary Site Assessment for RDR SPA III prepared by Geocon, Inc., June 1989, File No. D-4228-R02; the Preliminary Site Assessment with Limited Soil Sampling and Laboratory Testing for RDR SPA III prepared by Geocon, Inc., February 1991, File No. 08267-06-01 with addendum letter dated March 15, 1991; and the Raport of Phase 1 Environmental Site Assessment, prepared by Law-Crandall, Inc., dated September 9, 1994, Portions of Rancho del Rey SPAs II and III, northeast of Rancho del Rey Parkway and south of East "H" Street, Chula Vista, California. 2.18 "Proposed Project" means the project described in Section 1.5. 2.19 "SPA III Affordable Housing Agreement" means the agreement between RDR and City described in Section 1.3. 2.20 "Title Insurer" means FIRST AMERICAN TITLE INSURANCE COMPANY, with offices at 411 Ivy Street, 5an Diego, California 92101, 2,21 "Trip Deferral Agreement" means that certain Trip Deferral Agreement between City and Rancho del Rey Partnership dated as of June 22, 1993 and recorded as Recotder's Document No. 1993-0487691. RDRIChuI. v;.,. 11128/95 3 --- 4- t:;.~ ~ ARTICLE 3 Conveyance of the Property 3.1 Conveyance of the Property. RDR agrees to grant the Property to City, and City agrees to accept the grant of the Property, on the terms of this Agreement. 3.2 Consideration for Property. RDR and City agree that the fair market value of the Property is the Appraised Value. As consideration for receiving title to the Property, and in lieu of City paying RDR cash for the Property in the amount of the Appraised Value, City agrees: (a) that upon transfer of title to the Property subject to the terms and conditions of the SPA III Affordable Housing Agreement, RDR shall have satisfied in full the SPA III Affordable Housing Obligation; and (b) RDR shall receive credit for the excess contribution made pursuant this Agreement in the form of Low Income Housing Credits according to the terms and conditions of the SPA III Affordable Housing Agreement. ARTICLE 4 Conditions Precedent 4.1 Conditions Ptecedent. This Agreement, the consummation of the transaction herein contemplated, the respective rights and obligations of the parties hereto, and the Close of Escrow are subject to and contingent upon the good faith satisfaction and completion of each of the following conditions precedent which are deemed to be for the mutual benefit of the parties, or the written waiver thereof by the parties, which are more particularly set forth below. The time for the approval and satisfaction of e.ach of the conditions precedent are specified in the paragraphs below. I (a)' Disposition and Development Agreement, City and Cordova shall have entered into a Disposition and Development Agreement by August 15, 1996 (or September 15, 1996 if RDR consents to the extension, which consent shall be granted if Cordova is diligently proceeding with negotiation of the DDA), relating to the development of the Property with the Proposed Project, and all conditions in the Disposition and Development Agreement have been satisfied. (b) Agency Loan Agreement. Agency and Cordova shall have entered into the Agency Loan Agreement by August 16, 1996 (or September 16, 1996 if RDR consents to the extension, which consent shall be granted if Cordova is diligently proceeding with negotiation of the DDA), for the loan from Agency to Cordova for the Proposed Project in an amount not less than the amount approved by Agency and City pursuant to duly adopted resolutions on March 7, 1995. (c) Tax Credits, Cordova shall have received a preliminary allocation of low income housing tax credits from the California Tax Credit Allocation Committee by April 15, 1996 in an amount not less than $3,503,722 for Federal tax credits and $1,215,164 for RDRlChul. w.,. 11/28/95 4 f--~ . California tax credits, or such lesser amount for each category as is acceptable to Cordova in Cordova's sole discretion. ld) New Parcal Map. A duly approved New Parcel Map shall have been recorded or is recorded concurrently with the Close of Escrow. (e) Investigation and Investigation. Hazardous Materials. City shall have reviewed and approved the Phase I any follow-up investigation or testing recommended by the Phase I 4.2 Satisfaction, Waiver and Failure of Conditions; Termination. The waiver of a condition will be effective only if the same is (i) in writing, (ii) signed by the parties and (iii) delivered to Escrow Holder and the other parties before termination of the Agreement. Failure of a condition to be satisfied or waived within the time provided for satisfying or waiving the condition shall allow any party not then in default to terminate this Agreement. If any conditions remain not satisfied (and are not waived) by October 15, 1996, then any party may terminate this Agreement at any time before all conditions are satisfied or waived. 4.3 Performance By The Other Party, Each party's obligation to perform under this Agreement is subject to material performance of any prior or concurrent obligation of the other party. ARTICLE 5 Improvements by RDR 5.1 Improvements; Condition of the Property. RDR shall have no obligation to complete any improvements to or for the benefit of the Property except as follows. RDR agrees, at its expense, to cause RDR's Improvements described on Exhibit "C" to be completed by August 15, 1996, subject to delays outside of RDR's reasonable control. Until Close of Escrow, RDR shall keep the Property in good condition and free from weeds and erosion and properly maintain any siltation basins affecting the Property. 5.2 Additionallmprovements, Cordova, and not RDR, shall be responsible for any additional improvements to the Ptoperty necessary or appropriate for Cordova's Proposed Project. 5.3 Risk of Loss. All risk of loss for changes in the physical condition of the Property shall remain on RDR with respect to the Property until Close of Escrow, However, material damage to the Property prior to Close of Escrow by teason of earthquake shall give each Cordova and RDR the right to terminate this Agreement. ARTICLE 6 City's and Cordova's Deliveries to Escrow Holder and RDR 6.1 City's Information, Within five (5) days of a requestto produce, City shall fumish such information as is required by Title Insurer. In addition, City shall, within two (2) days of a tequest by RDR, furnish evidence of City's legal capacity and a designation of individuals authorized to bind City. RDRlChul. Viar" , 1/28/95 5 1- ::,---f7 ~ 6.2 Release of Property from Trip Deferral Agreement. At least two (2) days before the Closing Date, City shall execute, acknowledge'and deliver to Escrow Holder for recording at Close of Escrow a document releasing the Property from the Trip Deferral Agreement. This obligation shall not be delegable. 6.3 Reconveyances. At least two (2) days before the Closing Date, City shall execute, acknowledge and deliver to Escrow Holder for recording at Close of Escrow full reconveyances of any deed(s) oftrust securing RDR's obligations under the SPA III Affordable Housing Agreement. This obligation shall not be delegable. 6.4 Signature/Acknowledgment of Grant Deed. At least two (2) days before the Closing Date, City shall execute and acknowledge the Addendum to the Grant Deed for the Property . 6.5 Deed of Trust. At least two (2) days before the Closing Date, Cordova shall execute, acknowledge and deliver to Escrow Holder for recording at Close of Escrow any deed of trust required by the Disposition and Development Agreement to secure Cordova's obligations under the Disposition and Development Agreement. ARTICLE 7 RDR's Deliveries to Escrow Holder 7.1 Grant Deed. RDR shall deliver to Escrow Holder, at least one (1) day before Close of Escrow for the Property, a fully executed and acknowledged Grant Deed in form attached as Exhibit "B" to this Agreement, with Schedule 1 (listing Permitted Exceptions determined pursuant to the Housing Agreement) and the Addendum to Grant Deed attached. If required by the Disposition and Development Agreement, the Grant Deed may contain a power of termination in favor of City pursuant to California Civil Code Section 885.010 et seq to secure Cordova's obligations under the Disposition and Development Agreement. 7.2 Annexation To Master Declaration. RDR shall deliver to Escrow Holder, at least one (1) day before Close of Escrow, a fully executed Notice of Declaration of Annexation, Imposition of Additional Restrictions And Covenants and Notice of Designation of Architectural Review Committee ("Notice of Annexation"). A copy of the Notice of Annexation is attached hereto as Exhibit "0". Escrow Holder shall record the Notice of Annexation prior to Close of Escrow. 7.3 RDR's Charges. At least one (1) day priorto Close of Escrow, RDR shall deliver to Escrow Holder those amounts required by Article 9 below. ARTICLE 8 Condition of Title 8.1 Title, RDR agrees, at Close of Escrow, to convey title to the Property to City, subject only to: (a) All standard exceptions and exclusions from coverage typically set forth in a standard CL TA Owner's title policy. R01f/ChuI. Vi.,. 11/28/95 6 l(- - ,s<6 ~"'-'- (b) All "Permitted Exceptions" approved by Cordova during the "Feasibility Period" under the Housing Agreement. (c) General and special real estate taxes and assessments (including, but not limited to, any applicable assessment or community facilities districts) which are, as of the close of this escrow, not delinquent and supplemental taxes, if any, assessed pursuant to California Revenue and Taxation Code Section 75 and following. (d) Easements dedicated on the New Parcel Map, any other final map of the Ptoperty or reserved in the grant deeds or otherwise required for development of the Property. (e) The reservation of water rights and any power of termination set forth on the Grant Deed, and the provisions set forth on the Addendum to Grant Deed. (f) The covenants, conditions and restrictions established pursuant to the Master Declaration and the Notice of Annexation. (g) Any lien or other encumbrance voluntarily imposed by City or its successors or assigns. ARTICLE 9 Prorations, Fees, Costs and Reimbursements 9.1 Taxes. Escrow Holder will prorate (that is, apportion) between the parties, in cash, to Close of Escrow, on the basis of a thirty (30) day month, general and special real estate taxes and assessments, based on the regular tax bill for the fiscal year in which the escrow closes. If such tax bill has not been issued as of the Closing Date, such proration shall be based on the regular tax bill for the fiscal year preceding that in which this escrow closes. The protation of taxes and assessments shall be without regard to any supplemental assessments levied pursuant to California REVENUE AND TAXATION CODE Sections 75 and following unless such supplemental taxes have been levied and shown on a tax bill. 9.2 RDR's Charges. RDR shall pay (j) Escrow Holder's fee for the escrow for the conveyance ftom RDR to City; (ii) the County Documentary Transfer Tax, if any; and (iii) usual document-dtafting and recording charges. 9,3 Documentary Transfer Tax. City shall take the steps necessary to effectuate an exemption from the Documentary Transfer Tax, if applicable. 9.4 Deposits. In the event RDR has made deposits with any governmental entity or utility, and any such deposit exceeds actual costs of the project, RDR shall be entitled to seek the return of the excess of such deposit over costs. Should said excess deposit be returned to City, City shall immediately teimbutse RDR for same. RDNChul. V~Ui 11/28/95 7 4 - ,S-Y "T ARTICLE 10 Distribution of Funds and Documents 10.1 Retention of Cash. All Cash received by Escrow Holder will be, until Close of Escrow, or unless otherwise provided herein, kept on deposit with other escrow funds in Escrow Holder's general escrow account(s). in any state or national bank, and may be transferred to any other such general escrow account(s). Escrow Holder will not have any obligation to pay interest on cash received. 10.2 Disbursements, All disbursements by Escrow Holder will be made by checks, unless RDR unilaterally instructs Escrow Holder, prior to Close of Escrow, to wire transfer the proceeds of this escrow to which RDR is entitled to a bank account designated by RDR, in which case, Esctow Holder will disburse RDR's proceeds from this escrow pursuant to such unilateral instruction. 10.3 Payment of Encumbrances, Escrow Holder will, at the close of this escrow, pay, from funds to which RDR will be entitled end from funds, if any, deposited by RDR with Escrow Holder, to the appropriate obligees, all existing deeds of trust and mortgages, provided that RDR has approved the beneficiary demands, which approval shall not be unreasonably withheld. 10.4 Return After Recording. Escrow Holder will cause the County Recorder to mail RDR's grant deed (and each other instrument which is herein expressed to be, or by general usage is, recorded) after recordation, to the grantee, beneficiary or person (i) acquiring rights under said document, or (ii) for whose benefit the instrument was acquired. 10.5 Delivery of Instruments. Escrow Holder will, at the close of this escrow, deliver by United States mail (or will hold for personal pickup, if requested) each nonrecorded instrument received by Escrow Holder to the payee or person (i) acquiring rights under the instrument, or (ii) for whose benefit the instrument was acquired. 10.6 Delivery of Cash. Escrow Holder will, at the close of this escrow, deliver by United States mail (or will hold for personal pickup, if requested) (i) to RDR, or order, any excess funds delivered to Escrow Holder by RDR, and (ii) to City, or order, any excess funds delivered to Escrow Holder by City. 10.7 Delivery of Copy of Instruments. Escrow Holder will, at Close of Escrow, deliver to RDR a copy of RDR's grant deed and each document recorded to place title in the condition required by this Agreement. ARTICLE 11 Close of Escrow or Termination of Agreement 11,1 Close of Escrow. Escrow Holder will close escrow forthe Ptoperty by recording the grant deed et Close of Escrow. Escrow shall close no later than the Closing Date. Each party further covenants that it will diligently use its best efforts to cause escrow to close for the Property. If Escrow Holder cannot close escrow on or before the Closing Date, it will, nevertheless close this escrow when all conditions have been satisfied or waived unless, after RDRlChul. V,.ra 11128/95 8 4-&0 ....., ~ the Closing Date and prior to the close of this escrow, Escrow Holder receives a written notice to terminate this escrow from a party who, at the time the notice is delivered, is not in default under this Agreement. Nothing herein stated shall be deemed, however, to imply that time is not of the essence of this Agreement. 11.2 Termination of Escrow, Escrow Holder will have no liability or responsibility for determining whether or not a party giving a notice of termination is in default under this Agreement. Within three (3) working days after receipt of a termination notice from one party, Escrow Holder will deliver one copy of the notice to the other party. Unless written objection to termination of this escrow is received by Escrow Holder within ten (10) days after Escrow Holder delivers the notice to the other party, Escrow Holder will promptly terminate this escrow and return all funds and documents held by it to the party depositing the same, except that Escrow Holder may retain such funds and documents usually retained by escrow agents in accordance with standard escrow termination procedures. Escrow Holder may (i) retain any passbooks or certificates on deposit with Escrow Holder until such time as its escrow fees are paid in full, or (ii) deduct from any funds held by Escrow Holder a sufficient amount to pay its escrow fees in full. If written objection to the termination of this escrow is delivered to Escrow Holder within the ten (10) day period, Escrow Holder is authorized to hold all funds and documents delivered to it in connection with this escrow and Escrow Holder may, in Escrow Holder's sole discretion, take no further action until otherwise directed, either by the parties' mutual written instructions or by a final order of judgment of a court of competent jurisdiction. 11.3 Legal Remedies of Parties Not Affected. The (i) exercise of the right of termination, (ii) delay in the exercise of such right, or (iii) the return of funds and documents will not affect the right of the party giving the notice of termination to recover damages or pursue other applicable legal remedies for the other party's breach of this Agreement. Nor will (A) the delivery of the notice, (8) any failure to object to termination of this escrow, or IC) the return of funds and documents affect the right of the other party to recover damages for the breach of the party who gives the notice of termination. The procedure set forth in Section 11.2 is intended to evidence termination to Escrow Holder. It is not intended to condition any right a party may have to terminate on the other party not objecting to such termination. 1 1.4 Breach. Time is expressly stated to be of the essence of each and every provision of this Agreement wherein time for performance is set forth. In all other respects, the parties hereto covenantto perform their obligations in an expeditious manner. Failure to comply with this provision shall be a material breach of this Agreement. In the event that City or RDR fails to perform pursuant to this Agreement, the other party shall have the right to terminate this Agreement and seek any available remedies. 11.5 Certain Rights of RDR If Agreement Terminated. Should this Agreement be terminated for any reason other than a material default by RDR, City agrees to reasonably cooperate with RDR in the ttansition to RDR of the development of the Property by assigning to RDR at its request any development permits or entitlements and similar item obtained by City for the Property and by informing RDR of the status of any pending permits or entitlements for the Property. RDR/CIJ,.. Viar. 11/28/95 9 4-6 ( ~ ARTICLE 12 Escrow Holder's General Provisions Escrow Holder's General Provisions, attached hereto as Exhibit "E", are hereby made a part of this Agreement. ARTICLE 1 3 "As Is" Conveyance 1 3. 1 Limit on Escrow Holder's Responsibility, Escrow Holder shall have no concern with, nor liability nor responsibility for, this Article. 13.2 "As Is" Conveyance. Except as otherwise set forth in this Agreement, RDR is making absolutely no representations or warranties with tespect to the Property, and City will accept the Ptoperty, and the matters relating to the Property listed below, in their present "as is" condition. The matters are: (a) Soils. Toooaraohv. Etc. Soils and geological condition; topography, area and configuration; archeological, .prehistoric and historic artifacts, remains and relics; contamination by Hazardous Materials; endangered species and wetlands. (b) Utilities. Schools. Etc. Availability of utilities, schools, public access, and fire and police protection. (c) Districts. The status, special taxes and assessments of any and all Mello-Roos Community Facility Districts and assessment districts. (d) Plannina and Zonina. Applicable planning, zoning and subdivision statutes, ordinances, regulations and permits, the SPA Plan and the Financing Plan. (e) Develooment Fees. Thejcharacter and amount of any fee or charge which must be paid by City to develop the Property. (f) Easements and Encroachments. Any easement, license or encroachment which is not a matter of public record, whether or not visible upon inspection of the Property; RDR warrants to City that RDR knows of no such easement, license or encroachment. (g) Other Matters. Any other matter relating to the Property or to the development of the Ptoperty, including, but not limited to, value, feasibility, cost, governmental permissions, marketing and investment return, except as otherwise expressly provided in this Agreement. (h) Hazardous Materials. GEOCON, Inc, and Law-Crandall, Inc. have conducted the Phase I Investigation of whether any Hazardous Matetials (as defined in Section 14.1 below) have been released on or beneath any of the Property which would be in violation of any applicable federal, state or local law , ordinance or regulation relating to Hazardous Materials, RDR represents that the Phase I Investigation sets forth all of RDR's actual knowledge regarding the existence of Hazardous Materials on the Property. RDlVChul. V,.r. 11/28/95 10 1~ 0 ;J. ~ 13.3 No Brokerage Commission or Finder's Fee. Each party warrants to the other that the warranting party has incurred no obligation, by reason of this Agreement or the transaction contemplated hereby, for a real estate brokerage commission or finder's fee for which the other party would be liable. Each party will hold the other party free and harmless from and against any damage or expense the other party may incur by reason of the untruth as to the warranting party of the foregoing warranty, including expenses for attorney's fees and court costs. . ARTICLE 14 Hazardous Materials 14.1 Hazatdous Materials. The term "Hazardous Materials" means any material or substance which is (i) defined as a "hazardous waste", extremely hazardous waste", "restricted hazardous waste", "hazardous material", "hazardous substance", Ot any similar formation under or pursuant to any California statute or common law rule; (ii) petroleum and natural gas liquids as those terms are used in ~ 1 09( 14) of the Comprehensive Environmental Response, Compensation & Liability Act, 42 U.S.C. ~ 6901, et seq. (41 U.S.C, ~6903); (iii) asbestos; (iv) polychlorinated biphenyls; (v) designated as a "hazardous substance" pursuant to ~311 of the Clean Water Act, 33 U.S.C., ~ 1251, et seq. (33 U.S.C. ~ 1321) or listed pursuant to ~307 of the Clean Water Act (33 U,S.C. ~1317); (vi) defined as a "hazatdous waste" pursuant to ~ 1 004 ofthe Resource Conservation & Recovery Act, 42 U.S.C. ~6901, et seq. (42 U.S,C. ~6903); or (vii) defined as a "hazardous substance" pursuant to Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. ~9601, et seq. (41 U.S.C. ~9601 ). 14.2 Indemnity of City. As a material inducement to City, without which City would not have agreed to the terms set forth herein, RDR, for itself and its successors and assigns, hereby agrees to indemnify, defend and hold harmless City and each of City's employees, agents, attorneys, successors and assigns of City ("Indemnified Parties"), from and against any and all present and future liability, losses, damages (including foreseeable or unforeseeable consequential damages), penalties, fines, forfeitures, response costs and expenses (including out-of-pocket litigation costs and reasonable attorneys' fees) directly or indirectly arising out of (i) any contamination of the Property by Hazardous Materials actually known to RDR but not disclosed in the Phase I investigation and (ii) the use, generation, storage, transportation, release, discharge or disposal of Hazardous Materials on or in the Property by RDR or the partners of RDR or their respective employees, cOntractors, subcontractors or agents, including, without limitation, the cost of any required or necessary repair, cleanup or detoxification and the preparation of any closure or other required plans; excluding, however, ftom RDR's indemnity any such liability, losses, damages (including foreseeable or unforeseeable consequential damages), penalties, fines, forfeitures, response costs and expenses (including out-of-pocket litigation costs and reasonable attorneys' fees) ditectly or indirectly arising out of the actions of City, Agency or their respective employees, contractors, subcontractors or agents. The indemnity obligation of this Section 14,2 is not assignable, RDNCI'HM Vi.,. 11/28/95 11 1~03 T'" ARTICLE 15 Assignment 15.1 limit on Escrow Holder's Responsibility. Escrow Holder shall have no concern with, nor liability nor responsibility for, this Article. 15.2 Assignment Must be Approved by RDR. Neither City, nor any person or entity constituting City, nor any assignee of City's or any such person's or entity's rights hereunder, will have the right or power to assign its or their rights hereunder without first having obtained RDR's written approval of any such assignment. Approval of anyone assignment will not constitute a waiver of RDR's right to approve or disapprove any subsequent proposed assignment. Except as stated in the next sentence, RDR shall have absolute discretion to withhold its consent to any such assignment. Notwithstanding the first sentence of this Section, RDR shall approve an assignment of City's rights (except for such rights as are designated as not assignable and such obligations as are designated as not delegable within this Agreement) to Cordova and subsequently to a limited partnership of which OHDC and SBCS are general partners; any such assignee must assume City's obligation under this Agreement. 15.3 Effect of Approved Assignment. Except as otherwise provided in this Agreement, in the event of any such approved assignment, the assignee will be and become (i) the grantee of RDR's Grant Deed; and (ii) the person(s) having the right or obligation to (a) deliver statements, (b) deliver documents, (c) give approvals, (d) waive conditions, or (e) make demands, all as may be permitted or required by this Agreement and not then already accomplished by City or another approved assignee. 15.4 Assignor's Obligations. No assignment pursuant to this Article will relieve the assignor of any of its obligations under this Agreement. 15.5 Right of First Refusal. If City enters into any agreement ("Resale Agreement") to sell the Property or any portion of the Proper):y within five years after Close of Escrow other than the transfers of the Property contemplated by this Agreement, the Assignment Agreement, the SPA III Affordable Housing Agreement or otherwise for the purposes of developing low income housing units on the Property in accordance with City standards, RDR shall first be given the right to repurchase the property to be resold at the price and terms set forth in the Resale Agreement. RDR shall have such right and option for thirty (30) days, after which, if not exercised, such right and option shall terminate; provided, however, RDR's right of first refusal shall be renewed for an additional thirty (30) days should City enter into any amendment to a Resale Agreement or should City enter into any additional Resale Agreement. Any Resale Agreement shall be subject to RDR's right and option set forth herein. City shall give RDR written notice of any such Resale Agreement or amendment to a Resale Agreement, together with a copy of the same certified by City as being true and correct. The thirty (30) day period will commence upon RDR's receipt of such notice and copy. No agreement or reversionary interest by which Cordova's lenders, partners or the City may take over the Property for the sole and express purpose of developing the Proposed Project shall be considered a Resale Agreement subject to this Section. This right and option shall not defeat or render invalid the lien of any deed of trust given by City for the acquisition of the Property or construction RDRIChuI. Vi.f. 11/28/95 12 f -6l "T of the Project; however, the buyer at any foreclosure sale (or the grantee of any deed in lieu of foreclosure) shall take title subject to this right and option. This right of first refusal shall be binding upon any and all successors and permitted assigns of City's rights under this Agreement. ARTICLE 16 General Provisions 16.1 Gender, Number. Whenever the context requires, the use herein of (i) the neuter gender includes the masculine and the feminine, and (ii) the singular number includes the plural. 16.2 Business Days. If the (i) stated Closing Date, or (ii) last day for performance of an act falls upon a day during which Escrow Holder is not open for business, the Closing Date or such last day, as the case may be, will be the next following regular business day of Escrow Holder. 16.3 Survival of Provisions. The representations, warranties, agreements and indemnities set forth in this Agreement will remain operative, will be deemed made at the close of this escrow, and will survive the closing and the execution and delivery of RDR's grant deed and will not be merged in RDR's grant deed. 16.4 Authority of Signatories. Each individual signing this Agreement on behalf of the City warrants that (j) he or she is duly authorized to sign and deliver this Agreement on behalf of the City in accordance with a duly adopted resolution of the City Council of the City and (ii) this Agreement is binding upon the City in accordance with its terms. Each individual signing this Agreement on behalf of a corporation warrants that (i) he or she is duly authorized to sign and deliver this Agreement on behalf of the corporation, in accordance with a duly adopted resolution of the board of directors of the corporation or in accordance with the bylaws of the corporation, and (ii) this Agreement is binding upon the corporation in accordance with its terms. McMillin Project Services, Inc. represents that it has the authority to execute this Agreement on behalf of RDR and this Agreement is binding upon RDR in accordance with its terms. 16.5 Joint and Several liability. If either party consists of more than one person, the liability of each person signing this Agreement will be joint and several. 16.6 Reservation of Discretion. RDR acknowledges and agrees that nothing contained in this Agreement is intended to, nor shall have the effect of, reducing the City's legal authority, discretion or obligation to consider approval or disapproval of future agreements and other discretionary actions with respect to the property or the Proposed Project. RDR agrees to waive any and all claims against City, Agency, and their respective agents, employees and representatives arising form the City's election within the scope of its authority and discretion to disapprove any such agreements or other discretionary actions with respect tothe property or the Proposed Project. RDR acknowledges and agrees that any such election by City shall not constitute a breach of this Agreement. 1 6.7 RDR's Certification Re Non-Foreign Status. RDR understands that Section 1445 of the Internal Revenue Code provides that a transferee of a United States real property interest RDRlCht.h Vi.,. 11/28/95 13 ~f ~fc S " must withhold tax if the transferor is a foreign person. To inform City that withholding of tax is not required upon the disposition by RDR of the Property pursuant to this Agreement, RDR hereby certifies the following and understands that this certification may be disclosed to the Internal Revenue Service by City: (a) RDR is not a foreign corporation, foreign partnership, foreign trust or foreign estate (as those terms are defined in the Internal Revenue Code and Income Tax Regulations) . (b) RDR's United States Employer Identification Number is 33-0584676. (c) RDR's office address is 2727 Hoover Avenue, National City, California 91950. 16.8 Captions. Captions in this agreement are inserted for convenience of reference only and do not define, describe or limit the scope or the intent of this Agreement. 16.9 Entire Agreement. This Agreement, the Assignment Agreement, the Housing . Agreement and the SPA III Affordable Housing Agreement contain the entire agreement between the parties relating to the transaction contemplated hereby and all prior or contemporaneous agreements, understandings, representations and statements, oral or written, are merged herein. 16.10 Exhibits. All exhibits referred to in this Agreement are attached, and are a part of, this Agreement. 16.11 Modifications. No modification, waiver or discharge of this Agreement will be valid unless the same is in writing and signed by the party against which the enforcement of such modification, waiver or discharge is or may be sought. 16.12 Attorney's Fees and Costs. If either party commences litigation for the judicial interpretation, reformation, enforcement or rescission hereof, the prevailing party will be entitled to a judgment against the other for an amount equal to reasonable attorney's fees and court and other costs incurred. 16.13 Successors. All terms of this Agreement will be binding upon and inure to the benefit of the parties and their respective administrators or executors, successors and assigns; nothing contained in this Paragraph will affect Article 15. 16.14 Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed to be an original, but all of which together will constitute one instrument. 16.15 Applicable Law. This Agreement will be construed and enforced in accordance with the laws of the State of California. 16.16 Time of Essence. Time is of the essence of each and every provision of this Agreement in which time is an element. . RDRlCIw/. lR.r. 11/28/95 14 <I-fee; " 16.17 Notices. Unless otherwise provided herein, all notices, demands or other communications given hereunder will be in writing and will be deemed to have been duly delivered upon personal delivery, or on receipt of a telecopy, or on the second business day after deposit with Federal Express or other overnight courier service, or as of the second business day after mailing by United States registered or certified mail, retum receipt requested, postage prepaid, addressed as follows: If to RDR: Rancho Del Rey Investors, L.P. c/o McMillin Project Services, Inc. 2727 Hoover Avenue National City, California 91950 Attn: Kenneth Baumgartner Telephone: (619) 477-4117 Telecopier: (619) 336-1587 With a CODV To: Hecht, Solberg, Robinson & Goldberg 600 West Broadway, Eighth Floor San Diego, California 92101 Attn: R. Martin Bohl, ESQ. Telephone: (619) 239-3444 Telecopier: (619) 232-6828 If to Citv: Community Development Director City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 Attn: Juan Arroyo Telephone: (619) 691-5047 Telecopier: (619) 691-5214 With a CODV To: City Attorney City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 Attn: Glen Googins, ESQ. Telephone: (619) 691-5047 Telecopier: (619) 691-5214 RDNChuI. Vi.,. 11/28/95 15 ,,; - {(' 1 T If to Escrow Holder: First American Title Insurance Company 411 Ivy Street San Diego, California 92101 Attn: Escrow Department Telephone: (619) 238-1776 Telecopier: (619) 231-4696 This Agreement has been executed as of the date set forth at the beginning hereof. "RDR" Date: //- 311 - j'~ RANCHO DEL REY INVESTORS, L.P., a California limited partnership BY: McMilLIN PROJECT SERVICES, INC., a California corporation, its Attorney-in-Fact under a recorded durablfter 0 orney dated June 2, 1993 By ~ By ~/T~ Title ~, G, ? "City" Date: THE CITY OF CHUlA VISTA, a California municipal corporation ATTEST City Clerk By Mayor of the City of Chula Vista Approved as to form by: ~~ 4 RDNChul. Vi.f. 11/28/95 16 'f-~'?' " CONSENT OF ESCROW HOLDER The undersigned Escrow Holder hereby agrees to (i) accept the foregoing Agreement, (ii) be escrow agent under said Agreement, and (iii) be bound by said Agreement in the performance of its duties as escrow agent; provided, however, the undersigned shall have no obligations, liability or responsibility under (a) this Consent or otherwise, unless and until said Agreement, fully signed by the parties, has been delivered to the undersigned, or (b) any amendment to said Agreement unless and until the same is accepted by the undersigned in writing. Dated: FIRST AMERICAN TITLE INSURANCE COMPANY By Escrow Officer RDNChul. VJ.,. 11/28/95 1- - 61 --T.^- EXHIBIT" A" J-1 2322E AFFORDABLE HOUSING SITE LOT 10 A parcel of land being a,portion of lot 10 of Map No. 13176, in the City of Chula Vista, on file in the Office of the County Recorder of San Diego County, State of California described as follows: . Beginning at the Northeast corner of said lot 10; thence South 17051'06" East along the Easterly line thereof 368.00 feet; thence leaving said line South 72008'54" West 228.00 feet; thence North 50051'54" West 205.40 feet to the beginning of a tangent 228.00 foot radius curve concave Southwesterly; thence Northwesterly along the arc of said curve through a central angle of 18021'21" a distance of 73.04 feet; thence North 69013'15" West 18.54 feet to a point on the Westerly line of said lot 1 0 and to the beginning of a non-tangent 270.00 foot radius curve concave . Southeasterly, to which a radial line bears North 63016'06" West; thence along said Westerly line and the Northerly line the following courses: Northeasterly along the arc of said curve through a central angle of 00009'48" a distance of 0.77 feet; thence North 26053'42" East 185.95 feet to the beginning of a tangent 428.00 foot radius curve concave Northwesterly; thence Northeasterly along the arc of said curve through a central angle of 16005'40" a distance of 120.23 feet thence South 78047'18" East 167.68 feet; thence North 89040'45" East 56.24 feet to the POINT OF BEGINNING. Containing 2.97 acres more or less. (lUll:, D. C '^-'~ 2.17-CfS Chris D. Ciremele L.S. 5267 Exp.12-31-95 11- )J "T'. EXHIBIT "B" Grant Deed Recording Requested By and When Recorded Mail To: CITY OF CHULA VISTA Attn: Mail Tax Statement To: CITY OF CHULA VISTA Attn: GRANT DEED The undersigned declares that the documentary transfer tax is $ ~o- IEXEMPTI and is o computed on the full value of the interest or property conveyed, or is o computed on the full value less the value of liens or encumbrances remaining thereon at the time of sale. The land, tenements or realty is located in 0 unincorporated area . City of Chula Vista and FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, RANCHO DEL REY INVESTORS, L.P., a California Iimited.partnership ("Grantor"), hereby grants to CITY OF CHUlA VISTA, a California municipal corporation ("Grantee"), the real property in the City of Chula Vista, County of San Diego, State of California, described as: [insert legal description 'rom New Parcel Map] MAil TAX STATEMENTS AS DIRECTED ABOVE IIDR/Chul. \11.,. 11/28/95 1-71 ~ RESERVING UNTO GRANTOR, its successors, assigns and persons named below, together with the right to grant and transfer all or a portion of the following rights and easements: The right and power to use or utilize on any other property owned or leased by Grantor any and all water rights or interests in water rights no matter how acquired by Grantor. and all water rights or interests in water rights that may be within, under or on the land hereinabove described, whether such water rights shall be riparian, overlying, appropriative, percolating or prescriptive; provided. however, that the reservation made herein shall not reserve to or for the benefit of Grantor any right to enter upon the surface of such land in the exercise of such rights. Nothing herein stated is intended to reserve to Grantor the right to water provided by Otay Water District or any other supplier of public water. This conveyance is subject to: (i) the provisions set forth on the Addendum to Grant Deed attached hereto and incorporated herein by reference, and (ii) the covenants and restrictions set forth in that certain Master Declaration of Restrictions for Rancho Del Rey, filed for record in the Office of the County Recorder of the County of San Diego, on August 29, 1989, as File/Page No. 89-463940, as the same may have been or may be amended from time to time; (iii) those additional restrictions set forth in or attached to that certain document partially entitled "Notice of Annexation", filed for record in the Office of the County Recorder of the County of San Diego, on ,19 . as File/Page No. , as the . - same may have been or may be amended from time to time; and (iv) all of the "Permitted Exceptions" set forth on Schedule 1 attached. IN WITNESS WHEREOF, this instrument has been executed this _ day of 19 . RANCHO DEL REY INVESTORS. L.P., a California limited partnership BY: McMILLIN PROJECT SERVICES, INC., a California corporation, its Attorney-in-Fact under a recorded durable power of attorney dated June 2, 1993 By Title By Title RDR/ChuJ. Vi.r. 11/28/95 Exhibit "B" Page 2 If- ]:?- ~ RDRIChuI. v,.,. 11/28/95 Schedule 1 to EXHIBIT "B" Permitted Exceptions Note: This Schedule 1 does not include all permitted exceptions to title. Certain additional permitted exceptions are set forth in that certain Conveyance Agreement between Grantor and Grantee dated as of December 5, 1995. Exhibit "8" Page 3 /1,/5 .. ...,,- STATE OF CALIFORNIA ) ) ss. COUNTY OF SAN DIEGO ) On personally appeared . before me. . Notary Public, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument, the person(s), orthe entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature (Seal) , , RaNCh. Vi,.,.. 11/28/95 Exhibit "8" Page 4 1-7f ""!r'_'"d' - ADDENDUM TO GRANT DEED COVENANTS, CONDITIONS AND RESTRICTIONS FOR POST-CLOSING OBLIGATIONS AND NOTICE OF RIGHT OF FIRST REFUSAL TO PURCHASE PROPERTY (Provisions Pursuant To California Civil Code Section 1468) BY THE DELIVERY AND ACCEPTANCE OF THIS GRANT DEED, Grantor and Grantee agree as follows: 1. Grantor is the owner of certain land (the "Benefitted land") in the City of Chula Vista, County of San Diego, State of California, more particularly described as follows: lot 10 of CITY OF CHUlA VISTA TRACT NO. 88-1 RANCHO DEL REY PHASE 2, in the City of Chula Vista, County of San Diego, State of California, according to Map thereof No. 12341 filed in the Office of the County Recorder of San Diego County on March 28, 1989. 2. This deed has been delivered pursuant to a certain Conveyance Agreement and Escrow Instructions (the "Conveyance Agreement") dated as of December 5, 1995 between Grantor and City, Grantee's predecessor in interest. 3. NOTICE IS HEREBY GIVEN THAT SECTION 15.5 OF THE CONVEYANCE AGREEMENT GRANTS TO GRANTOR THE RIGHT OF FIRST REFUSAL TO RE-PURCHASE THE PROPERTY. 4. Grantee, for and on behalf of itself, and on behalf of each successive owner, during its, his, her or their ownership of any portion of the Property and each person having any interest in the Property derived through any such owner (which Grantee, owner and person are collectively referred to herein as "Grantee"), covenants and agrees as follows: (a) Walls. Grantee shall construct in accordance with plans approved by Grantor, maintain in good condition, free of graffiti, repair and replace as necessary a solid five foot (5') masonry wall on the westerly and southerly boundaries ofthe Property. Grantee agrees to not modify without Grantor's written consent any perimeter fencing or walls installed on the Property by Grantor. (b) Construction. Grantee shall use its best efforts to commence construction of Grantee's Proposed Project within one hundred eighty (180) days after Close of Escrow. Grantee shall thereafter diligently pursue completion of construction in accordance with plans approved by Grantor. (c) Scheduling Conflicts. In the event that scheduling conflicts arise with regard to work to be done pursuant to the Housing Agreement, Grantee and Grantor shall work together to reasonably coordinate such work. RDRlChuI. ~.t. 11/28/95 Exhibit "B" Page 5 /'{ _ 7:; " (d) Rezones, Permit Amendment, Resubdivision. Grantee shall not apply for or obtain any change of zone classification of the Property or any amendment to the SPA Plan or Financing Plan or resubdivide the Property without Grantor's prior written consent, which consent may be withheld for any reason. (e) Grantor's Approval of Improvements. Grantee may construct or place on the Property only those improvements (including, but not limited to, residential structures) approved by Grantor. Any changes from such plans which materially affect the physical appearance of the improvements when viewed from a dedicated street are subject to Grantor's approval. Grantee shall submit the following items for Grantor's reasonable approval, and shall thereafter use only those documents, plans and materials as have been approved hereunder: all site plans, elevation plans, landscaping plans, and all materials and colors of all exterior surfaces of all improvements (including, but not limited to, residential structures) and all other materials required to be submitted pursuant to the Residential Design Guidelines for Rancho del Rey SPA III. (f) Clean Up of Debris. Grantee shall, during the period of ownership of any portion of the Property by Grantee, keep the Property and adjacent land in a neat and clean condition, free and clear of debris, trash and other unsightly materials, except for materials on the Property which are reasonably necessary for the construction of dwelling units on the Property. In the event any debris, trash or other unsightly materials are not cleaned up and removed within seventy-two (72) hours following receipt of written notification from Grantor, Grantor shall be entitled to perform the remedial work and Grantee shall, upon demand, reimburse Grantorthe cost of the remedial work (on a time and material basis) plus ten percent (10%). 5. Injunctive Relief. Grantee and Grantor hereby declare that monetary damages for the breach of the provisions contained in Sections 4.(a) through 4.(f) is inadequate and that Grantee may be enjoined by any court of competent jurisdiction from commencing or proceeding with construction, development or other activity which is not substantially in compliance with those Sections. '. 6. Grantee shall abide by all requirements of the City of Chula Vista, including, but not limited to, the Design Guidelines applicable to the Property. 7. Grantee, and not Grantor, shall be responsible for any damages which result directly or indirectly from any changes Grantee" may make to grading or soils conditions of the Property, and Grantee holds Grantor harmless (including, but not limited to, its reasonably incurred attorneys' fees) from any damages which result directly or indirectly from any such change. 8. Grantor will, upon the completion by Grantee of all Grantee's obligations under the paragraphs set forth in Section 4 above, at the request of Grantee, sign and deliver to Grantee a recordable notice describing the Property and stating that the purpose thereof is to evidence compliance with said provisions. If any lender of Grantee requests or requires Grantor to do so, Grantor shall, within seven (7) days after such request, certify that improve- ments on the Property are being or have been constructed in conformity with the plans RDRlChul. Vi.,. 11/28/95 Exhibit "S" Page 6 if -. 76 .."...--.'.- approved by Grantor, or Grantor will specify with reasonably specificity why such construction does not conform with such plans. 9. Grantor will not be liable in damages to any third person by reason of Grantor's mistaken judgment, negligence or nonfeasance arising out of or in connection with the approval or disapproval or failure to approve or disapprove any plans submitted by Grantee or by reason of any defect in any structure constructed in conformity with the plans. Grantor will have the right, but not the duty, to determine whether improvements are constructed in compliance with the plans and other materials approved by Grantor. 10. Each successive owner, during its, his, her or their ownership of any portion of the Property, and each person having any interest in the Property derived through any such owner, will be bound hereby for the benefit of Grantor and the Benefitted Land; provided, however, the benefits of these provisions pursuant to California CIVIL CODE Section 1468 shall not accrue to subsequent owners of the Benefitted Land unless Grantor expressly assigns such benefits by means of a recorded instrument. 11. Any violation of the provisions herein contained will be deemed to be a continuing violation hereof and no delay in the delivery of any notice of any violation hereof or in the enforcement of any rights or the seeking of any remedies provided hereunder will constitute, or be deemed to constitute, a waiver of the right to give such notice, enforce such right or seek such remedy at any time after the occurrence of such violation. 12. In the event any owner(s) of the Property or the Benefitted land commences litigation for the judicial interpretation, enforcement or rescission hereof, the prevailing party will be entitled to a judgment against the other for an amount equal to reasonable attorneys' fees and other costs incurred. 13. No breach of any of the provisions of this Addendum to Grant Deed will defeat or render invalid the lien of anymortgage or deed of trust made in good faith and for value. 14. These provisions may be modified by an instrument in writing signed, acknowledged and recorded by Grantor and Grantee. These provisions may be extinguished by an instrument in writing signed, acknowledged and recorded by Grantor. 15. These provisions will be and become automatically extinguished as to the Property upon the twenty-fifth (25th) anniversary of the date of recording of these provisions. 16. If any provision herein contained is held to be invalid, void or otherwise unenforceable by any court of competent jurisdiction, the invalidity of any such provision will in no way affect the validity of any other provision herein contained. 17. The provisions herein contained are covenants and are for the benefit of the Benefitted land and have been made with the intent of satisfying the requirements of Section 1468 of the California CIVIL CODE. Dated: 19 RDR/Chuf. Vi.fa 11/28/95 Exhibit "B" Page 7 '1-77 ~ "Grantor" RANCHO DEL REY INVESTORS, L.P., a California limited pa rtne rsh ip BY: McMILLIN PROJECT SERVICES, INC., a California corporation, its Attorney-in-Fact under a recorded durable power of attorney dated June 2, 1993 By Title By Title "Grantee" By Title By Title RDRlChul. Vi.,. 11/28/95 Exhibit "B" Page 8 <f-Ti . "T STATE OF CALIFORNIA ) ) ss. COUNTY OF SAN DIEGO ) On personally appeared , before me, , Notary Public, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument, the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature (Seal) STATE OF CALIFORNIA ) ) ss. ) COUNTY OF SAN DIEGO On personally appeared , before me, , Notary Public, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument, the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature (Seal) RDR/Chw. Vi..,. 11/28/95 Exhibit "B" Page 9 ){ 11 T EXHIBIT "C" RDR's Imorovements Graded Condition. The Property shall be rough graded in substantial conformance with the City approved grading plans and the City's Grading Ordinance; provided, however, that flat pads and slopes of five feet (5') or less (Le., change in vertical elevation of five feet (5') or less) need not be hydro-seeded unless and until required by City. The lot shall be substantially free from weeds as required by Section 6.2 of the Purchase Agreement. Monumentation. The final monumentation shown on the New Parcel Map shall have been set in the field by the surveyor. Monuments destroyed by the Cordova's construction operations shall be re-set by the Cordova at Cordova's cost. Building layout stakes and other construction stakes required for Cordova's improvements are not in the finished lot. Utilities. Water, sewer, gas, electric, telephone and cable television transmission lines within the public streets and easements shall have been constructed in substantial conformance with the City and Agency approved improvement and utility plans. Water and sewer services shall be stubbed to the lot lines. On-site services. distribution lines. meters and utilities are D..Q1 included in the finished lot. Street Imorovements. Monolithic curb, gutter and sidewalk and full depth street paving shall have been completed in substantial conformance with the City approved improvement plans. Driveway approaches shall be constructed to the right-of-way. Cordova improvements within the right-of-way are D..Q1 included in the finished lot. landscaoina and Fencina. Erosion control landscaping and irrigation as required by the City Grading Ordinance and shown on the City approved erosion control landscaping plans, or as modified by the City landscape Archite.ct, and accepted by the City, shall have been installed. Perimeter walls, as shown on the City approved "Walls, Fences and Minor Monuments" plans shall have been constructed. On-site walls and fencing which may be required by the City, or as a condition of sale by the RDR. is not included in a finished lot. landscaping within the street right-of-way which may be required by the City and other Cordova landscaping is D..Q1 included in the finished lot. RDR/Cfrul. Vi.,. 11/28/95 '1- PO ----- EXHIBIT "D" Notice of Declaration of Annexation Recording Requested By and When Recorded Return To: HECHT, SOLBERG, ROBINSON & GOLDBERG Mr. A. John Hecht 600 West Broadway, Eighth Floor San Diego, California 92101 NOTICE OF DECLARATION OF ANNEXATION, IMPOSITION OF ADDITIONAL RESTRICTIONS AND COVENANTS, AND NOTICE OF DESIGNATION OF ARCHITECTURAL REVIEW COMMITTEE at Rancho Del Rey THIS NOTICE OF DECLARATION OFANNEXATION, IMPOSITION OF ADDITIONAL RESTRICTIONS AND COVENANTS AND NOTICE OF DESIGNATION OF ARCHITECTURAL REVIEW COMMITTEE ("Notice") is made as of this _ day of ,199_, by RANCHO DEL REY INVESTORS, L.P., a California limited partnership ("Declarant") with reference to the following: RECITALS: A. Declarant is the successive Declarant under that certain Master Declaration of Restrictions for Rancho Del Rey ("Master Declaration") which was recorded on the 29th day of August, 1989 with the Office of the County Recorder of San Diego County, California, as File/Page No. 89-463940, initially covering all of that real property located in the City of Chula Vista, County of San Diego, State of California, described as: lots 2, 3, 4and 5 of CHUlA VISTA TRACT NO. 88-1, RANCHO DEL REY PHASE 2, in the City of Chula Vista, County of San Diego, State of California, according to Map thereof No. 12341, RDRIChuI. Vi.,. 11/28/95 Exhibit "0" Page 1 1- y I .. filed in the Office of the County Recorder of San Diego County on March 28, 1989. B. The Master Declaration provides that Declarant may annex additional property 8S described in the Master Declaration to the lots described in the Master Declaration and thereby make such additional property subject to the Master Declaration. C. Declarant is the owner of the real property located in the City of Chula Vista, County of San Diego, California described as: lot ,of CHULA VISTA TRACT NO. , RANCHO DEL REV SPA III PHASE _ UNIT NO. _, in the City of Chula Vista, County of San Diego, State of California, according to Map thereof No. , filed in the Office of the County Recorder of San Diego County, , 199_. which property (referred to herein as "the Property") is a part of the Properties described in the Master Declaration which may be annexed to the lots. E. Declarant now wishes to annex the Property described in Recital C above to the property covered by the Master Declaration and to impose on the Property the additional covenants and restrictions set forth below. NOW, THEREFORE, Declarant declares as follows: 1 . Annexation. Pursuant to the terms of the Master Declaration, Declarant declares that the Property is hereby annexed to and made a part of the lots as defined in the Master- Declaration. All ofthe Property shall be held, sold, leased, transferred, occupied and conveyed subject to (i) the terms, provisions, covenants, conditions, restrictions and easements of the Master Declaration as it may have been or hereafter become amended from time to time, and (ii) those Supplemental Covenants and R.estrictions set forth below. 2. Notice of Architectural Review Committee (ARC) Designation. Pursuant to Section 2 of ARTICLE III of the Master Declaration, Declarant hereby declares that the Property is within the "Cordova at Rancho Del Rey Architectural Review Committee." Cordova at Rancho Del Rev Architectural Review Committee is a .NDn-Subassociation ARC as such term is used in the Master Declaration. 3. Supplemental Covenants and Restrictions. In addition to the terms, provisions, covenants, conditions, restrictions and easements of the Master Declaration, the covenants and restrictions set forth on Exhibit "1" attached hereto and incorporated herein shall apply to Cordova at Rancho Del Rey. {To be included at Rancho del Rey's Option] RDRlChuI. v,.,. 11/28/95 Exhibit "D" Page 2 tf - i'?--- ,. IN WITNESS WHEREOF, the undersigned has executed this instrument as of the day and year first hereinabove written. RANCHO DEL REY INVESTORS, L.P., a California limited partnership BY: McMilLIN PROJECT SERVICES, INC., a California corporation, its Attorney-in-Fact under a recorded durable power of attorney dated June 2, 1993 By Title By Title STATE OF CALIFORNIA ) ) ss. COUNTY OF SAN DIEGO ) On Public, personally appeared , before me, . , Notary personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in hislher/their authorized capacity(ies). and that by hislher/their signature(s) on the instrument, the person(s). or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature (Seal) RDNChul. W.r. 11/28/95 Exhibit "0" Page 3 Lf-f} . ~..... EXHIBIT "1" TO EXHIBIT "D" Supplemental Covenants and Restrictions {to be attached] RDNChu/. W.t. 11/28/95 Exhibit "0" Page 4 4- f rf ,. Exhibit "E" Bscro" Bolder GelJeral Provisions 1. Jlep:lsit at PIDls ~ ~ts You Iball depasit all flIb!s received in this 0SCI'0lI in lIlY hank insured by III oqency of the tmted States Gooerment, iDclllliDQ your affiliated hank. First AmeriClll Trust Cal;>Iny. in ale ar: III:lre of your QlOleral 0SCI'0lI - occamts. 'Ibeoe funds MY he tnnsferred to lIlY other Qeleral 0SCI'0lI _ OCa>Jnt ar: """""'ts. inc111liDQ thcoe Jlai.nt&iDed in your affiliated hank. All clisb.Jnements &ball he made by your cbeck, cr at the reQUest of the party "'titled to a clisb.Jnement, by wire trlllSfer, provided that suell party provides appropriate instructims to you and pays your wire transfer fee in cxmectim therew1th. You .... Illthorized DOt to c:lose esaow cr disburse until go::d funds have been cmfimed in escrow. 2. I'rcratials ODd ~ts ille ""IftSSia> "clooe of -' used in this escrow Ilealls the elate of .m:iell instruments ...ferred to herein .... n!CXlrded m! ...1&tes ally to pnratims and/or acljus'-1ts unless othenti.. specified. All pnratims cdIor Illljus-.ts .... to he _ OIl the basis of a 3O-cIay IIICllth unless othentise instructed in writing. 3. Iloalrdatim at _ts You .... autb:lrized to record lIlY _ts delivered throJgh this 0SCI'0lI. the recxlrding of .m:iell is necessazy or proper in the issu.mce of the _ed pilley of title insunnce. 4. .IutIlcrUatial to I>lecute a..<_~ of IDsurmoe PDlicies If instructed, you In! sutb:lrized to OllIe<.'Ute m hebalf of the parties hereto fOIlll assi_ts of interest in lIlY insurilllCO policies (other than title insurance) e&lled far: in this escrow; fonran\ assiQlllllellts and pillcies \lIlal clooe of escrow to the IQ'eIlt with the reQUest, first, that insurer lXIlS<llt to such trlllSfer 1r>Uar: attach a l~le clause and/ar: ..... such other add:i tiOllS or carnctiCllls as MY have been specific:al1y required herein, ODd oe<XlDd, that the ageot thereafter fcrvord such policies to the parties "'titled to thl!llI. In all acts in this escrow relating to insurilllCO, iDclulina adjustments. if any, you Iball he fully protected in USlID:i.ng that each pilley is in fort:o and thet the DeCessary prl!lli\lll therefor bas been paid. 5. .IutIlcrUatial to PIIrnioh Olpies You In! to furnish a CX'I'Y of these instnJtotims. _ts thento. closincr stat....,t cdIar: lIlY other _ts depasited in this escrow to the leoder or lenders. the real estate broker ar: brokers cdIcr the attorney or attarneys imolved in this transacti", \lIlal request of the lenders, brokers or attarneys. 6. ~ Pnip!rty Tms No examinatiCX'l. cr insurance IS to the aa.mt or payment of peracaal prtlpl!rty taxes is required \mless specifically _ed. 7. liGht of CaDoellatiClll Illy party instructing you to c:ancel this escrow Iball file IlOtice of canoeJ.latial in your office, in writing. You Iball, within a reucnahle tiae thereafter, mil, by certified Mil, .... CX'I'Y of the DOtice to each of the other parties at the addresses stated in this escrow. Ihless writt", abjectial to canoeJ.latial is filed in your office by a party within ten llO) days after elate of 1I8iliDg, you.... Illthorized at your optioo to cmply with the DOtice and _ _t of your canoeJ.latim cllarges as Jl<tl9ided in this _to If written abjectial is filed, you.... _ at your optial to hold all a>ey and instnmmts in this - and tslre '" further actim UDti.l otherwise directed, either by the parti.. IIItual written instructiCllll, or tiJla1 order of a oourt of <X1Ilpl!tent jurislic:tim. 8. Jctioo:ID In~ 1be parties hereto OlqlrOSSly _ that you, as Escrow Bolder, have the _ute riclbt at your electia! to file on actia1 in inte<p1eader nquir:i.ng the parties to ..,...,. and litigate their. ~ claims and rights - _1_ and you .... _ to depasit with the clerk of the oourt all _ts and funds held in this 0SCI'0lI. In the eveot such attiOll is filed, the parties jointly and .....-.J.ly agree to poy your aooel1atioo cllarges and casts, __ and reISClllahle attarDey'. fees .m:ic:b you .... required to exjIIIld . co: 1Dour in the interpleader lICtial, the _t thenof to he fi>acl and judgment therefor to he rendered by the oourt, Upco the filillg of the _, you sball thereupco he fully ...1_ and disc:bargecl frao all ab!igatials to further perfClnl lIlY duties cr abligat:icm otherwiR iarpooed by the toms of this escrow. 9. -...aa. at Agou:f lIlliGatials If there is '" - takell '" this _ within six (6) IIIClltho after the "tiae l.iait date" as oK forth :ID the escrow instnJtotims co: written extellSim thenof. your _ abligatial sball terminate at your optim and all cIooDonts, lIICllies and other it:ellls held by you sball he retumecl to the parties depasiting ..... . In the eveot of c:ance11atial of '-1 of 3 = S!UD: this escrow, whether it he at the _ of lIlY of the parties cr ;:: = 1Illml: If- YJ ~ Gelleral Provisials O:<ltinued othonrise, the fees IIld ctarges clue First ~can Title Insurance Callpany, iIlc1l>!J.ng e>qll!!lditures iDcurred IllIlic.- IUtbcrized shall Ioe Ioonle equally ~ the porties hereto (lIIlless otherwise ogreed to apeci.fically) . 10. CaItl.ictiJ>q IIl6tru:tiaIS Slnlld ya> Ioefan! c.- Ifter close of escrow recei.. c.- beame ...... of my cmflicting deMnds c.- claims with respect to this escrow c.- the rights of my of the parties hereto, c.- my amey c.- property deposited bereiD c.- Iffectal hereby, ya> shall bm! the right to diso:r!tinue my c.- all further acts 00 ywr part IIltil the cmflict is resolved to }<lUI" oatisflctioo, IIld ya> ohal1 ba.. the further right to """""'" cr clefend my octioo c.- ~ far the deterlWllltioo of the cmflict u provided in parographs 7 Illd 8 of tbooe Gellerol Pr<Ris:iCllS. 11. P\.m IletaiDl!d :in II'Ioaw If for my reua> fuDds ore retliDed in escrow, ya> IIIll'deduct therefl'Clll $25.00 U I IDlthly charge IS custodian thereof. 12. lIIury You are DOt to be o:ncerned with any questial. of uwry in any loan encIDbrances involved in the pt'OCeSSi.nq of this escrow and ya> ore hereby released at my respalSiIlility ar liability therefor. 13. _ty for lttorDe!s .- ODd COsts In the event suit is brought bv any party to this e5CI"ClW. inclu:ti.n; the escrow and title c:cmpany or IllY other party, IS ~ ..ell other ar others. iIlc1udinq the escrow and title lX1III>IDY, claiJlling any right they lIlilY ba.. u ogainst 0ICb other ar ogainst the escrow and title lX1III>IDY, then in that event. the porties hereto ....... that the lasing party ohall pay to the prevailing party my attorney', fees and ""'ts iDcurred ~ the prevoi1ing party. 14. ~ts to II'Ioaw IIl6tru:tiaIS Any lIIDl!!ndment or suppleuelt to these escrCJIf instructions IIR1St be in writing. 'Jbese esa-cw instructims cmstitute the entire escrt:lII' between the escr'Olf holder and the parties hereto. 15. I'W'-tal TlIllls 8Jyer IIld seller herein oclarot1edge that there may Ioe supp1e1llOllW lDd/ar addi tiooal. taxes .mich Illy Ioe assessed by reasm of a c:ba.Dqe in ownership or CXII!pletioo of CQ')Structicm plrSUa!'It to Clapter 498 Statutes at 1983 of the State of California. '!1lis will Ioe reflected in the policy of title insurllllC<! issued at the close at escrow. Escrow li:>lder shall not Ioe cmcerr.ed with my Illj\lS~t Is> of supp1.....tal taxes Ioetweell the porties for billa received ~ the porties.lfter the close of escrow. In the event Seller has received SUppjelllOllW TIlt Bills Is> , seller will provide ..... to Escrow li:>lder with an exp1anatioo of time pericrls _ ~ said tal< billls> for prarotioo p.Il'JIOSeS. 16. Pre1DiDary ClIIlge at OIIDenlIip .... 8Jyer will furnish ya> with a cmpleted Prel.imiJla:y Olange in OlInership Report ]>lrSUIIlt to Sectioo 480.3 r:Jf .the ~ and 'l'axatioo Code .mich ya> ore instructed to sulmit with the Grant Jleed. In the event this escrow is otherwise ready to c1_ and Buyor has not provided the __ report. you ore instructed to close this escrow and oollect frail Buyor tor the Co.mty Recorder an Illditiooal. $20.00 fee far rec:ardatioo r:Jf deed that is withoot Pre1illliDary Olange in OlInership Report. 8Jyer is ...... that if the __ report is DOt sulmitted with the Grant Jleed, a Olange in OlInership StatelllOllt _t Ioe filed ~ the Buyor with the Co.mty Assessor not later than 45 days Ifter rec:ardatial of the Grant Jleed and failure to do 00 will result in Illditiooal. peoalties. Buyor acknowledges that _ li:>1der shall bm! IlO I'eSJlCIlSibility rllIlIcr :wbility for the Co.mty Realrder'. occeptllllC<! ar rejectioo r:Jf said Prel.imiJla:y ClIIlge in OIlnership Report. 17. Qxd P\.m Ln 'Il>e porties understand that AlL fUllds to close escrow IIllSt Ioe deposited into escrow Jri<< to the elate of c1asing to all"" sufficient time far clearance r:Jf such fUllds prior to clis!lurseIIlent. In the .....t such fUDds ore not in the fen r:Jf a cashiers. certified or teller cbeclt drnn al a financial iDstit\ltioo. sufficient time ...t Ioe allowed for clesrance to cmply with Sectioo l2413.1 r:Jf the Califllnlia Insurance Code. I'ullds _ Ioe wind directly into First ~can'. depositary bonk &CCQlDt to avoid waiting for clesrance. IS. IoportiD; to the Inter1lal -.. Senice Buyor IIld seller ackDow1edge that they ore ...... that _li:>1der will not elose this _ witln1t I>eiDg in receipt r:Jf "Ilealllstate Reporting certificatioo" (Form 1099) cmpleted and signed ~ each r:Jf the UlldersigDed sellers IS nquind ~ the TIx Report Act r:Jf 1986. 19. TIx IoportiD; ODd W;.........,,;OV lIl1:iaaticms r:Jf the Parties: mmw: California Revenue and 'l'axatial Code Sectials 18805, 18815 and 26131 place special requinmeots for tax rep:lfting ODd withholdiJlil al JlIyers 1lben (i) the selliJlg price is greater than 100,000.00 (ale hImdred Page 2 r:Jf 3 INlTDL SIUBl: INlTDLIIUYll!: t!; cF6 . .... ~ Prtwisioos Oxlt1nued tIlousand clollors) Illd, Illd (ii) the funis to the transactiCD are to be disllursed to either (II I SeUer with I Wt - address a1tside of Califcnil, ar (b) I financial intermliary of the SeUer. '!be withlx>ld:i.nq nte is three Illd __thizll pero!!lt (3 1J~1 of the oellino price as defined in the .tatute. 'Ille Seller MY request . waiger by <mtactillQ: I1WOlISE m!l:lARD. Withlx>ld.t So.Ir<:e t.b:it, P.O. !lax 651, Sac:r-.Delto. ca. 958~51, (916) J6H900. PIlDAL W: Internal Jevonue Cole SectiCD 1445 places special nquirements far tax n:p:rtillQ Illd withholding CD the parties to I real estate tnnsact:icm where the Seller is I DC:Il-t"eSideDt alien, I DOtl ~tic aJflXX"atioo or pa:rtDershiP. . domestic oxp::nticm or partDership o:Iltrolled by zar-resi.deots or rm-resident OJrp::nticu cr pa:rtDerships. With respect to b:>th the State Low Illd Federal Low referred to above. the parties to thi$ tnllsactial are seekina all .ttorney'., lICXDlDtaDt'. ar other tIX specialist'. q>i.nial a:n:enring the effect of these 1... co this tnnsacticm or aTe relying CD their CJWD m:.ledge of t.bese laws. '!'be parties to this transactim are JIOf' act.i.Dg CD err relying CD any stat8lleDts IIIde or CIlIitted by the Escrow Officer. Title Officer. or other c:losiDg officer nth respect to tax reporting ar withlx>lding nquirements. 20. hx ""'-ittols 'Ille wlersigned parties instruct !:lIcrclw 1I>l.<ler Illd ogree that First Jmer:ican Title Insunnce Ccmpony may, cluring the CX>lI'Se of thi$ esc:mr, reoei.. 'nX" tnnslIIittals frao or m behalf of the parties here", foe intormatia>al ~ mly. 'Ille parties further ogree Illd """"""ledge that prioe to !:scrolf IIolder'. close ar cancell.tim of thi$ file ar rel.... of IIIlY furds beld herein that !:scrolf Holder will require the criginaJ. bard tqly of IIIlY IIlC.b 'nX" ..tetial. 21. ~t Regarding ClDCellatial IDst:ructi<m Prior agrement, if lIllY, notrithstllldillQ, in the ....t either party bas the right of ClllCeU.tim, the parties agree to sion such instructicm: U IllY be necessary to effect the cancellaticm of this esaw. :12. __ Parties All ref........... to Seller Illd a,yoer above, ahall.... First Party Illd Seanl Party, respecti..ly, in all exchange esc:mr tnllsactial. 23. n;_l~.... of ~ Jdoot:if:icatial -.. Internal Revenue Cole Sectim 61090>) iIIIposes nquirement. for furnishiJ>;J, clisclosillQ. Illd including tupIyer identiticatiCll D\IIlbers in to: returns CD the parties to a residential real estate transactiCll imol~ seller"1ltOVided financing. 'Ibe parties undentllld that the disclosure n:p:rtillQ nquirements are exclusive obliaatioos betwel the parties to this transacticr:l and that First American Title Insurance Ccmpony is bOt cl>l.igated to tr_ t the taxpayer identific:atim IlIIIIben to the Internal Jevonue Sen:ice oe to the parties. First Jmer:ic:an Title Insurm:e Cmpany is bOt reoderillQ all opinim a:n:enring the effect of thi$ 1.. m thi$ tnnsactim, Illd the parties are bOt acting m IIIlY .t.t.....ts _ ar emitted by the !:scrolf or Oosinq Officer. To facilit.te CXIIl)>lim:e with thi$ law, the parties to thi$ escrow hereby .uthorized First Jmer:ic:an Title Insuronce Ccmpony to rel.... IIIlY party'. taxpayer identific:atim IlUIllber to IIIlY requesting party lib:> is . party to thi$ transactim. 'Ille nquestillQ party ahall deli.... . writt.. request to esc:mr. 'Ibe parties hereto wai... all rights of CXIlfidentiality rogarding their respecti.. taxpayer identific:atim -. Illd ogree to hold First Jmer:ican Title Insurance Ccmpony hazmless against IIIlY f..., COlts, ar ~ts incurred ond/or alIlIl1led in cxmectial with the rel.... of taxpayer identific:atiCD 1Il.IIIllers. TIKI IS OF TIE ESSENCE OF THESE I.STlUCTIORS. If this escrow is Dot in condition to close by the closing date referred to in the body of the instructions, Ind de.and for cancellation is received hy you from Iny party to this escrow after ..i4 date. you Iball let in accordance witb the cancellation instructioDs contained in the general provision.. If no demlDd for cancellation is a.de, you will proceed to close this escroy when the principal. hive complied with the escroy instructioDs. Page 3 of 3 _ mTIAL SlUm: mTIAL 1UYlll: (1993) 1(- g 7 ~ This page blank. Lj- ;];5 .. EXHIBIT A PfOPOSED AFFORDABLE HOUSING PROJE~ CORTE OC CEM ,-- DEL REY LOT B LOT'9 ''lo_, SP A 11 J . " PROPOSED . SITE . . s '!' LOT II LOT 12 MAP NO~. 1 '. . ,", '.r "f. ". '. ... r):(:OT;~13' ,. . ,:i '~~T'(~~E::?::'~:,,: ,,{":'. . :.:~ C., ,>;'i " '<'t~,;~"-"'. , ;;_.. _ . . , ,." " .~. ",,,. -... ;.~ ",..... '-~"""~;';"7'~ ~:.:'.:.:.'f~?;~&..>:~~.....~. -.....,. .,;~'.: . ~~'''H'''"",,_ p. ,. _",~, .... d::":", " '" "~';': _" "_~ ;:~~i~t;:._._..~~"~'~',:, i> ,'it~ .. '~..:~'.\' . '.:-:, .....:... ..~ . .'~. ~.~ ;.' . ': -','" ~:.;-,; '!it::~~:<~t::,.:,. ;." .; L/ -cf I . ~ ~ ~ .~ ..... C,B~~ jij\!!' v. , ....- "." ... This page blank. 4-90 ~ AGENCY RESOLUTION NO.~ RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA APPROVING A RATIFICATION OF COMMITMENT FROM HOME PROGRAM FUNDS ($378,280) FOR AN AFFORDABLE HOUSING PROJECT PROPOSED TO BE DEVELOPED IN RANCHO DEL REY SPA III WHEREAS, on March 7, 1995, pursuant to the terms of City Council Resolutions 17828 and 17829, the City (1) adopted an addendum to EIR 89-10; (2) approved a conveyance agreement with Rancho del Rey Investors, L.P., (3) approved an assignment agreement with Cordova Ventures, and (4) approved a land donation and appropriation of $160,000 of HOME Program funds, all with respect to 2.97 acres of property within SPA III of Rancho del Rey ("Property") proposed for development into a 40-unit low income housing complex ("Project"); and, WHEREAS, concurrently therewith, pursuant to the terms of Redevelopment Agency Resolution 1447, the Agency appropriated $378,280 of the Low and Moderate Income Housing Fund monies to be loaned to the Project at below market rates; and, WHEREAS, substantial funding for the proposed Project will need to be obtained from the sale of Low Income Housing Tax Credits ("LIHTCs") which are allocated by the California Tax Credit Allocation Committee ("TCAC"); and, WHEREAS, Cordova Ventures has been unsuccessful to date in obtaining LIHTCs for the proposed Project from TCAC, but has reasonable expectation that an award can be obtained from a subsequent allocation process, for which applications are due on December 11, 1995; and, WHEREAS, the Agency wishes to provide Cordova Ventures with the opportunity to reapply for LIHTCs to develop the proposed Project. NOW, THEREFORE, the Redevelopment Agency of the City of Chula vista does hereby resolve as follows: 1. Recitals True and Correct. The Agency finds and determines the recitals set forth above are true and correct to the best of its knowledge. 4-~1 " 2. Aqencv contribution to the Proiect. The Agency hereby ratifies its commitment pursuant to Resolution 1447 for Three Hundred Seventy-Eight Thousand Two Hundred Eighty Dollars ($378,280) of Low and Moderate Income Housing Fund monies to be loaned at below market rates for the development of Project. 3. Conditions to Aqencv Commitment. Consistent with original Agency Resolution 1447 the Agency commitment set forth above remains conditioned upon and subject to (a) the subsequent approval by the Agency and City Council of a Disposition and Development Agreement with Cordova Ventures and related loan documents in accordance with applicable laws and existing City/Agency policies; and (b) TCAC's approval of the tax credit application, in a form approved by City/Agency staff, and its allocation to the Project of the LIHTC requested thereby. 4. Directions to Staff. Agency staff is hereby authorized and directed to take any appropriate action consistent with the purposes of this Resolution including negotiation of a final DDA and presentation thereof to the city/Agency for its approval. Presented by Approved as to form by GL~~~ Chris Salomone, Director of Community Development -"--, -~ / gency M:SHAREO\COMMDEV\rdr2 / vf - C(2.-/ - " COUNCIL RESOLUTION NO. /gl~~ RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING A RATIFICATION OF A LAND DONATION AND COMMITMENT FROM HOME PROGRAM FUNDS ($160,000) FOR AN AFFORDABLE HOUSING PROJECT PROPOSED TO BE DEVELOPED IN RANCHO DEL REY SPA III WHEREAS, on March 7, 1995, pursuant to the terms of City Council Resolutions 17828 and 17829, the City (1) adopted an addendum to EIR 89-10; (2) approved a conveyance agreement with Rancho del Rey Investors, L.P., (3) approved an assignment agreement with Cordova Ventures, and (4) approved a land donation and appropriation of $160,000 of HOME Program funds, all with respect to 2.97 acres of property within SPA III of Rancho del Rey ("Property") proposed for development into a 40-unit low income housing complex ("Project"); and, WHEREAS, concurrently therewith, pursuant to the terms of Redevelopment Agency Resolution 1447, the Agency appropriated $378,280 of the Low and Moderate Income Housing Fund monies to be loaned to the Project at below market rates; and, WHEREAS, substantial funding for the proposed Project will need to be obtained from the sale of Low Income Housing Tax Credits ("LIHTCs") which are allocated by the California Tax Credit Allocation Committee ("TCAC"); and, WHEREAS, Cordova Ventures has been unsuccessful to date in obtaining LIHTCs for the proposed Project from TCAC, but has reasonable expectation that an award can be obtained from a subsequent allocation process, for which applications are due on December 11, 1995; and, WHEREAS, the City wishes to provide Cordova Ventures with the opportunity to reapply for LIHTCs to develop the proposed Project. NOW, THEREFORE, the City Council of the City of Chula vista does hereby resolve as follows: 1. Recitals True and Correct. The City/Agency finds and determines the recitals set forth above are true and correct to the best of its knowledge. 1-13 . ....- ", - ""'T'--'~~' 2. City contribution to the Proiect. The City hereby ratifies its commitment of One Hundred Sixty Thousand Dollars ($160,000) of HOME Program funds to be granted for the development of Project, and ratifies its agreement to donate the Property for the development of the Project pursuant to Resolutions 17828 and 17829. 3. Conditions to citv/Aqencv Commitment. Consistent with original Resolutions 17828 and 17829 the City commitments set forth above remain conditioned upon and subject to (al the subsequent approval by the Agency and city Council of a Disposition and Development Agreement with Cordova Ventures and related loan documents in accordance with applicable laws and existing City/Agency policies; and (b) TCAC's approval of the tax credit application, in a form approved by City/Agency staff, and its allocation to the Project of the LIHTC requested thereby. 4. Directions to Staff. City/Agency staff is hereby authorized and directed to take any appropriate action consistent with the purposes of this Resolution including negotiation of a final DDA and presentation thereof to the City/Agency for its approval. Presented by Approved as to form by ~S~ ~~-. c-' --' Chris Salomone, Director of Community Development Bruce M. l\ttortley M:SHARED\COMMDEV\rdr1 %' q-1tf . "...--...,.'....---.- COUNCIL RESOLUTION NO. /? /35 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING (1) AN AMENDED AND RESTATED CONVEYANCE AGREEMENT AND ESCROW INSTRUCTIONS WITH RANCHO DEL REY INVESTORS; (2) AN AMENDED AND RESTATED ASSIGNMENT OF CONVEYANCE AGREEMENT AND ESCROW INSTRUCTIONS WITH CORDOVA VENTURES; AND (3) AN AMENDED AND RESTATED LOW INCOME HOUSING AGREEMENT BETWEEN RANCHO DEL REY INVESTORS AND CORDOVA VENTURES, ALL WITH RESPECT TO 2.97 ACRES OF PROPERTY WITHIN SPA III PROPOSED FOR DEVELOPMENT INTO A 40-UNIT LOW INCOME HOUSING COMPLEX AND AUTHORIZING MAYOR TO EXECUTE THE AMENDED AND RESTATED CONVEYANCE AGREEMENT AND ESCROW INSTRUCTIONS AND THE AMENDED AND RESTATED ASSIGNMENT OF CONVEYANCE AGREEMENT AND ESCROW INSTRUCTIONS WHEREAS, on March 7, 1995, pursuant to the terms of City Council Resolutions 17828 and 17829, the City (1) adopted an addendum to EIR 89-10; (2) approved a conveyance agreement with Rancho del Rey Investors, L.P., (3) approved an assignment agreement with Cordova Ventures, and (4) approved a land donation and appropriation of $160,000 of HOME Program funds, all with respect to 2.97 acres of property within SPA III of Rancho del Rey ("Property") proposed for development into a 40-unit low income housing complex ("Project"); and, WHEREAS, concurrently therewith, pursuant to the terms of Redevelopment Agency Resolution 1447, the Agency appropriated $378,280 of the Low and Moderate Income Housing Fund monies to be loaned to the Project at below market rates; and, WHEREAS, substantial funding for the proposed housing complex will need to be obtained from the sale of Low Income Housing Tax Credits ("L1HTCs") which are allocated by the California Tax Credit Allocation Committee ("TCAC"); and, WHEREAS, Cordova Ventures has been unsuccessful to date in obtaining L1HTCs for the proposed project from TCAC, but has reasonable expectation that an award can be obtained from a subsequent allocation process, for which applications are due on December 11,1995; and, WHEREAS, the City wishes to provide Cordova Ventures with the opportunity to reapply for L1HTCs to develop the proposed housing complex. NOW, THEREFORE, the City Council of the City of Chula Vista does hereby resolve as follows: 1. Recitals True and Correct. The City finds and determines the recitals set forth above are true and correct to the best of its knowledge. ~ t-f-- 15 .,.----..-...'. 2. Citv Approval of Aareements The City hereby approves (1) Amended and Restated Conveyance Agreement and Escrow Instructions with Rancho del Rey Investors. (2) Amended and Restated Assignment of Conveyance Agreement and Escrow Instructions with Cordova Ventures, and (3) Amended and Restated Low Income Housing Agreement Between Rancho del Rey Investors and Cordova Ventures, all which agreements are amended and restated for the purpose of providing changes to the performance dates to accommodate reapplication for L1HTCs and are not materially amended or restated in any other way. 3. Citv Execution of Aareements The Council hereby authorizes the Mayor to execute the Amended and Restated Conveyance Agreement and Escrow Instructions with Rancho del Rey Investors and the Amended and Restated Assignment of Conveyance Agreement and Escrow Instructions with Cordova Ventures. 4. Conditions to Citv Approval and Execution of Aqreements. The City approval and execution of agreements set forth above are conditioned upon and subject to (a) the subsequent approval by the Agency and City Council of a Disposition and Development Agreement with Cordova Ventures and related loan documents in accordance with applicable laws and existing City/Agency policies; (b) the City staff's approval of the proposed project's TCAC application for L1HTCs, and, subsequently, (c) TCAC's approval of the tax credit application and its allocation to the Project of the L1HTC requested thereby. 5. Directions to Staff. City/Agency staff is hereby authorized and directed to take any appropriate action consistent with the purposes of this Resolution including negotiation of a final DDA and presentation thereof to the City/Agency for its approval. Presented by Approved as to form by &~Q ~ ~e~.Bo~ rd ~ - Chris Salomone Community Development Director M:SHARED\COMMDEV\rdr-3 ~ i-1t... T