HomeMy WebLinkAboutRDA Packet 2005/02/15
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CIlY OF
CHULA VISTA
TUESDAY, FEBRUARY 15, 2005
6:00 P.M.
(immediately following the City Council meeting)
COUNCIL CHAMBERS
PUBLIC SERVICES BUILDING
MEETING OF THE REDEVELOPMENT AGENCY
OF THE CITY OF CHULA VISTA
CALL TO ORDER
ROLL CALL
Agency Members Castaneda, Davis, McCann, Rindone; Chair Padilla
CONSENT CALENDAR
The staff recommendations regarding the following item(s) listed under the Consent Calendar will be enacted
by the Agency/Council by one motion without discussion unless an Agency/Council member, a- member of the
public or City staff requests that the item be pulled for discussion. If you wish to speak on one of these items,
please fill out a "Request to Speak Form" available in the lobby and submit it to the Secretary of the
Redevelopment Agency or the City Clerk prior to the meeting. Items pulled from the Consent Calendar will be
discussed after Action items. Items pulled by the public will be the first items of business.
1. APPROVAL OF MINUTES - November 23, 2004, January 11, 2005
2. RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA
VISTA APPROVING AN OWNER PARTICIPATION AGREEMENT WITH
SUNROAD CV AUTO. INC. FOR THE OPERATION AND MAINTENANCE OF
A CHULA VISTA TOYOTA DEALERSHIP - Chula Vista Toyota will be the
first of several new dealerships that will be built and operated pursuant to
the City's Auto Park East and Auto Park North Specific Plans. The Sunroad
OPA, together with the Master OPA for Auto Park East (adopted by City
Council on August 24, 2004), will establish a foundation and set the stage
for the comprehensive operations and maintenance of "first quality, first
class" auto dealerships within the Chula Vista Auto Park. [Community
Development Director]
STAFF RECOMMENDATION: Agency adopt the resolution.
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 Agency on such a subject, please complete the n 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.
OTHER BUSINESS
3. DIRECTOR'S REPORT
4. CHAIR REPORT
5. AGENCY COMMENTS
ADJOURNMENT
The meeting will adjourn to a regular meeting of the Redevelopment Agency on
March 1, 2005, at 4:00 p.m., immediately following the City Council meeting in
the City Council Chambers.
AMERICANS WITH DISABILITIES ACT
The City of Chula Vista, in complying with the Americans with Disabilities Act (ADA), request individuals who
require special accommodates to access, attend, and/or participate in a City meeting, activity, or service
request such accommodation at least 48 hours in advance for meetings and 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 (TOO) at (619) 585-5647. California Reiay Service is
,also available for the hearing impaired.
Redevelopment Agency, February 15, 2005
Page 2
MINUTES OF ADJOURNED REGULAR MEETINGS OF
THE CITY COUNCIL AND THE REDEVELOPMENT AGENCY
OF THE CITY OF CHULA VISTA
November 23, 2004
6:00 p.m.
Adjourned Regular Meetings of the City Council and the Redevelopment Agency of the City of
Chu1a Vista were called to order at 7:28 p.m. in the Council Chambers, located in the Public
Services Building, 276 Fourth Avenue, Chula Vista, California.
ROLL CALL:
PRESENT:
ABSENT:
Agency/Councilmembers: Davis, Rindone, Salas, and
Chair/Mayor Padilla
Agency/Councilmembers: McCann
ALSO PRESENT: Executive Director/City Manager Rowlands, City Attorney Moore,
and City Clerk Bigelow
CONSENT CALENDAR
1. APPROVAL OF MINUTES of September 21, 2004 and October 26, 2004
Staff recommendation: Council/Agency approve the minutes.
2. COUNCIL RESOLUTION NO. 2004-382 AND AGENCY RESOLUTION NO. 1899,
RESOLUTION OF THE CITY COUNCIL AND THE REDEVELOPMENT AGENCY
OF THE CITY OF CHULA VISTA APPROVING THE SECOND AMENDMENT TO
THE AGREEMENT WITH ADVOCATION INCORPORATED, EXERCISING THE
CITY'S OPTION TO EXTEND THE CONTRACT FOR THE 2005-2006
LEGISLATNE SESSION, AND AUTHORIZING THE MAYOR/CHAIR TO
EXECUTE THE SECOND AMENDMENT ON BEHALF OF THE CITY OF CHULA
VISTA
On December 31, 2004, the current agreement with Advocation Incorporated expires.
This agreement was for the provision of legislative representation in Sacramento
throughout the 2003-2004 legislative session. Based on the fInn's success in promoting
Chula Vista's legislative agenda, staff recommends exercising the City's option to extend
this contract. (Director of Community Development)
Staff recommendation: Council/Agendy adopt the resolution.
ACTION:
Chair/Mayor Padilla moved to approve staff's recommendations and offered the
Consent Calendar, headings read, texts waived. The motion carried 4-0 with
Councilmember McCann absent.
ORAL CO:MMUNICATIONS
There were none.
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ACTION ITEMS
3. CONSIDERATION OF THE FORMATION OF A 50l(c)3 PUBLIC BENEFIT
CORPORATION FOR PURPOSES OF CONDUCTING REDEVELOPMENT AND
PLANNING ACTMTIES WITHIN THE URBAN CORE PLANNING AND
REDEVELOPMENT AREAS OF CHULA VISTA
On February 3, 2004, the Council directed staff and consultants to prepare an analysis
and discussion paper on the creation of a SOI(c)3 Redevelopment Corporation. As part
of the preparation for this report, two facilitated workshops were held on the formation of
the corporation. A detailed report was distributed to the Council and the public on July
20, 2004. The report builds upon the conclusions and recommendations from the
workshops, the July report and a recent legal analysis prepared by Rutan and Tucker,
LLP, attorneys, on behalf of the City Attorney's Office. (Director of Community
Development)
Assistant City Attorney Hull reported that the Fair Political Practices Commission has advised
that, although Deputy Mayor Salas and Councilmernber Rindone both own real estate on the
western side of the City, since these discussions are solely procedural, focused on the structure of
an alternative agency, there is no conflict of interest with the properties they own. In addition,
the nature of the Councilmembers' real estate holdings are such that a previously supplied
opinion indicates that their participation would fall within the general public exception.
Community Development Director Madigan presented the SOl(c)3 report.
Steve Molski opposed the formation of the corporation, stating that the City does not need
another agency since it has qualified Planning Commissioners and staff. He cautioned against
creating a monstrous bureaucracy and associated expenses. Mayor Padilla clarified that the City
would not be creating another agency but, rather, changing an existing agency, and in so doing,
creating a streamlined process.
Norma Cazares, President of South Bay Forum, expressed concern about the inadequacy of
public noticing on the item and asked the Agency not to approve the formation of a non-profit
corporation since it would be a disservice to the members of three commissions that are proposed
to be eliminated from the process. She stated that citizens should be encouraged to participate
more in civic matters, not less. She asked Deputy Mayor Salas not to blemish her well-
established record of encouraging public participation through boards and commissions by
voting to eliminate the three commissions from the redevelopment corporation process. She
asked the Agency/Council to continue on its path of inclusiveness and transparency, to hold
public workshops regarding the 501 (c)3 plan, and to keep doing good things for the community.
Chris Lewis, Chair of the Chula Vista Urban Development Committee, commended the Council
and staff for its research and stated that the proposed plan should be a flexible tool for
redevelopment, with room for evolutionary processes. He believed that a combination of public
and private entities would create a synergy that would attract investment to the City, creating
cash flow, income and revenues to allow the City to continue with redevelopment without
tapping into general funds and allowing investors to help pay the way. He stated that the
proposed plan is a good initial step in the process.
Page 2 Council/RDA Minutes
11/23/04
1-2
ACTION ITEMS (Continued)
John Chavez asked the Council to defer voting on the item since he believed there had not been
adequate public noticing. He was perplexed that this item was not mentioned at any of the
numerous Urban Core Specific Plan meetings and believed that significant expertise within the
City's current commissions would be bypassed. Mr. Chavez asked the Council to continue to
respect and engage the public and allow sufficient time for public dialogue.
Lupita Jiminez stated that citizens believe that development needs to be sustainable both
environmentally and economically. Citizens are not convinced that the Council has considered
the true costs of growth, environmentally, socially and economically. She stated that by
eliminating consideration and analysis by the City's Resource Conservation, Design Review, and
Planning Commissions, a part of community expertise and input is being eliminated. She stated
that citizens must have a voice in the City's growth, and she requested that the /Council defer its
vote and proceed with timely community outreach efforts.
Lisa Cohen, representing the Chula Vista Chamber of Commerce, spoke m support of the
proposed plan.
Patricia Aguilar encouraged the Council to direct staff to begin a dialogue with the community
on operating rules of the structure to ensure that there exists frequent and early opportunity for
the public to have its say, prior to the formation of the 501(c)3.
Pamela Bensoussan recommended that the Council proceed cautiously with the plan and
expressed concern that eliminating the review process by three advisory commissions could
result in a disconnect with the community. She urged the Council to consider appointing a
delegate from each of the three advisory commissions to fill seats on the proposed corporation's
board and expressed the need to strive for maximum citizen participation. Ms. Bensoussan also
recommended placing the Historic Preservation Plan on a fast track.
Sandy Duncan expressed concern about the 501(c)3 process, stating that there was insufficient
noticing and information regarding the meeting. She asked the Council to defer action to allow
for further public input and asked that citizens be notified of any meetings about the plan. Ms.
Duncan also requested that local citizens be appointed to the corporation's board.
Frank Zimly suggested that the plan be presented to residents who reside in the urban core.
Deputy Mayor Salas expressed the need to move forward with the plan, stating that the Council
will continue to engage the public in future discussions of the plan.
Councilmember Rindone stated that change must occur in the downtown core to provide
attractions and investment opportunities, and the proposed plan would jump start the
development of the urban core.
Mayor Padilla stated that the best public policy is to have all redevelopment areas under the same
umbrella process for purposes of procedure, planning, legal and financial. He stated that the
proposed plan provides the Council with the ability to move forward.
Page 3 CouncilJRDA Minutes
11/23/04
1-3
ACTION ITEMS (Continued)
Deputy Mayor Salas asked about areas being adopted by resolution and about multiple projects
coming forward at one time. City Attorney Moore clarified that the recommendation by staff on
the item is a two-step process that allows for the eventual flexibility to change territorial
boundaries by resolution or ordinance and to direct staff to provide an analysis to be brought
back to the Council in April 2005 to consider areas to be included in the initial formation of the
corporation.
Councilmember Davis stated that the proposed plan would not impede public input, and people
on the west side of the City deserve the benefits to be derived from the development of the urban
core.
Mayor Padilla expressed the need to revitalize the City's core, connect the east and west regions
of the City, incorporate public input, and respect the uniqueness of the City by preserving and
enhancing its heritage. He also commented on the need to create a balanced community of
investment, jobs, and housing, stating that a purpose, plan, and streamlined process must take
place in order to develop a successful urban core in the City.
ACTION:
Mayor Padilla then offered Council Resolutions 2004-383 and 2004-384 and
Agency Resolutions 1900 and 190 I, headings read, texts waived:
COUNCIL RESOLUTION NO. 2004-383 AND AGENCY
RESOLUTION NO. 1900, RESOLUTION OF THE CITY COUNCIL
AND THE REDEVELOPMENT AGENCY OF THE CITY OF ClillLA
VISTA (1) AUTHORIZING THE FORMATION OF A SOl (c)3 PUBLIC
BENEFIT CORPORATION FOR PURPOSES OF CONDUCTING
REDEVELOPMENT AND PLANNING ACTMTIES; (2) DIRECTING
STAFF TO PREPARE NECESSARY LEGAL DOCUMENTS NEEDED
FOR THE SOl (c)3 FORMATION; (3) APPROPRIATING FISCAL
YEAR 2004-2005 OPERATING BUDGET AND COMPENSATION
SCHEDULE FOR THE 501 (c)3 BOARD OF DIRECTORS; AND (4)
DIRECTING CITY STAFF AND THE CITY ATTORNEY TO REPORT
BACK TO THE CITY COUNCIL BY APRIL 2005 WITH DRAFT
LEGAL AND OPERATING DOCUMENTS
COUNCIL RESOLUTION NO. 2004-384 AND AGENCY
RESOLUTION NO. 1901, RESOLUTION OF THE CITY COUNCIL
AND THE REDEVELOPMENT AGENCY OF THE CITY OF ClillLA
VISTA DIRECTING STAFF TO RETURN BY APRIL WITH
RECOMMENDATIONS ON THE TERRITORY BOUNDARIES OF
THE ALTERNATIVE AGENCY STRUCTURE IF APPROVED
The motion carried 4-0.
Page 4 CouncilJRDA Minutes
11/23/04
1-4
OTHER BUSINESS
4. DIRECTOR/CITY MANAGER'S REPORTS
There were none.
5. CHAIRIMA YOR'S REPORTS
There were none.
6. AGENCY/COUNCILMEMBER CO:MMENTS
There were none.
ADJOURNMENT
At 9:00 p.m., Chair/Mayor Padilla adjourned the meeting to a Regular Meeting of the
Redevelopment Agency on December 7, 2004, at 4:00 p.m., immediately folloyving the City
Council Meeting in the Council Chambers.
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Susan Bigelow, MMC, City Clerk
Page 5 Counci1lRDA Minutes
11/23/04
1-5
MINUTES OF ADJOURNED REGULAR MEETINGS OF
THE CITY COUNCIL AND THE REDEVELOPMENT AGENCY AND
A SPECIAL MEETING OF THE PUBLIC FINANCING AUTHORITY
OF THE CITY OF CHULA VISTA
January 11, 2005
6:00 P.M.
Adjourned Regular Meetings of the City Council and the Redevelopment Agency and a Special
Meeting of the Public Financing Authority of the City of Chula Vista were called to order at 7 :44
p.m. in the Council Chambers, located in the Public Services Building, 276 Fourth Avenue,
Chula Vista, California.
ROLLCALL
PRESENT: Agency/Authority/Councilmembers Castaneda, Davis, McCann,
Rindone, and Chair/Mayor Padilla
ABSENT: Agency/ Authority/Councilmembers: None
ALSO PRESENT: Executive Director/City Manager Rowlands, Agency/Authority/
City Attorney Moore, City Clerk Bigelow
CONSENT CALENDAR
1. AUDITED FINANCIAL STATEMENTS FOR FISCAL YEAR ENDED JUNE 30, 2004
Presented for Council/Agency/Authority information and acceptance were the Audited
Financial Statements for the fiscal year ended June 30, 2004, as prepared by the
independent audit firm of Caporicci & Larson. Both the City and Agency's Annual
Financial Reports received unqualified (clean) opinions from the independent audit firm.
(Director of Finance/Treasurer)
Staff recommendation: Council/Agency/Authority accept the fiscal year 2003-2004
Financial Statements.
ACTION:
Agency/Authority/Councilmember Rindone moved to approve staff's
recommendation and offered the Consent Calendar, heading read, text waived.
The motion carried 5-0.
ORAL COMMUNICATIONS
There were none.
ACTION ITEMS
2. CONSIDERATION OF A CITY COUNCIL AND REDEVELOPMENT AGENCY
WORKSHOP TO ALLOW THE COUNCIL AND AGENCY THE OPPORTUNITY TO
HEAR FROM THE PUBLIC IDEAS ON EFFECTIVE MEANS FOR INCLUDING
PUBLIC INPUT INTO THE 501(c)3 PROCESS
1-6
ACTION ITEMS (Continued)
For over two years, the Council and Redevelopment Agency have been engaged in
dialogue relating to the potential to reorganize planning and redevelopment functions
within the urban core and redevelopment areas of the City. In February 2004, a critical
public workshop held by the City Council and Redevelopment Agency resulted in
direction to staff to prepare an analysis and discussion paper on the creation of a 501(c)3
Redevelopment Corporation. As part of the preparation for this report, the Community
Development Department staff conducted research, and two facilitated workshops were
held. The Report on the Formation of the Chula Vista 501(c)3 Corporation was issued to
the City Council and Redevelopment Agency, and made available to the public, on July
20, 2004. (Director of Community Development)
Mayor Padilla stated that the 501(c)3 Redevelopment Corporation has been a public and
transparent process that has included the public as well as members of the City's Commissions.
He stated that input, knowledge, concerns, and expertise from the City's Boards, Commissions
and Committees would be part and parcel of the creation of the Urban Core Specific Plan, which
will lay out in detail how those areas should be developed. Mayor Padilla expressed the need for
greater public outreach and input in the process.
Kevin O'Neill urged the Council to include the City's Commissions in the public workshop
process, stating that Con1mission members have experience and training, at no cost to the City.
He believed that the Commissioners would be the Council's best allies in the 501(c)3 process.
Mayor Padilla suggested that the Planning Commission, Design Review Committee, and
Resource Conservation Commission be formally invited, along with community interest groups,
to participate in the proposed Council/Agency workshop.
Councilmember McCann spoke in support of conducting public workshops and improving the
public input process. He also suggested that noticing for the workshops be extended beyond the
required boundaries.
Councilmember Rindone supported seeking ways to foster the greatest amount of input and
community support.
Councilmember Castaneda suggested inclusion of the City's Commissions in at least one of the
future public workshops, which he believed would provide valuable viewpoints for the Council
and Agency.
Deputy Mayor Davis stated that a special outreach effort must be made to ensure public input, as
well as that of City Commissions, in the process.
Mayor Padilla suggested a Council/Agency workshop, with participation to include
Commissioners, community groups, and the community at large.
Councilmember McCann suggested that announcements of the proposed workshops be placed in
the Star News and Union Tribune for broader public outreach.
Councilmember Castaneda suggested that time be permitted during the proposed workshops for
Commissions to provide presentations or proposals to the Council and Agency.
Page 2 CouncilJRDAJPF A Minutes
01/11/05
1-7
ACTION ITEMS (Continued)
ACTION:
Mayor Padilla then offered Council Resolution No. 2005-010 and Redevelopment
Agency No. 1902, heading read, text waived:
RESOLUTION NO. 2005-010 AND AGENCY RESOLUTION NO.
1902, RESOLUTION OF THE CITY COUNCIL AND THE
REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA
DIRECTING COMMUNITY DEVELOPMENT STAFF TO
CALENDAR A CITY COUNCIL AND REDEVELOPMENT AGENCY
WORKSHOP TO ELICIT INPUT AND DIRECTION FROM THE
COUNCIL AND AGENCY, AND TO ALLOW THE COUNCIL AND
AGENCY THE OPPORTUNITY TO HEAR FROM THE PUBLIC
IDEAS ON EFFECTNE MEANS FOR INCLUDING PUBLIC INPUT
INTO THE 501(C)3 PROCESS
The motion carried 5-0.
OTHER BUSINESS
3. DIRECTOR/CITY MANAGER'S REPORTS
There were none.
4. CHAIR/MAYOR'S REPORTS
There were none.
5. AGENCY/COUNCILMEMBER COMMENTS
There were none.
ADJOURNMENT
At 8:31 p.m., Chair/Mayor Padilla adjourned the Special Meeting of the Public Financing
Authority until further notice; and the Adjourned Regular Meeting of the Redevelopment
Agency to a Regular Meeting on February 1, 2005, at 4:00 p.m., immediately following the City
Council Meeting in the Council Chambers.
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Susan Bigelow, MMC, City Clerk
Page 3 CounciVRDAlPF A Minutes
1-8
01/11/05
PAGE 1, ITEM NO.:
MEETING DATE: 02/15/05
REDEVELOPMENT AGENCY AGENDA STATEMENT
ITEM TITLE: RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF
CHULA VISTA APPROVING AN OWNER PARTICIPATION
AGREEMENT WITH SUNROAD CV AUTO, INC. FOR THE OPERATION
AND MAINTENANCE OF A CHULA VISTA TOYO DEALERSHIP
SUBMITTED BY: COMMUNITY DEVELOPMENT DIRECTOR lJt I- 1M
REVIEWED BY:
EXECUTIVE DIRECTOR
~
BACKGROUND
4/5THS VOTE: YES 0 NO
D
The Owner Participation Agreement ("OPA") with Sunroad CV Auto, Inc. ("Sunroad") presented
this evening represents a significant milestone in the long-term efforts of the Chula Vista
Redevelopment Agency ("Agency") to innovatively and effectively plan for the City's expanding
auto park. The OPA will guide the operation and maintenance of a proposed Toyota auto
dealership consisting of a 52,923-square-foot building (showrooms, administrative offices,
service area, etc.), a service reception area, lube center, and carwash facility.
Chula Vista Toyota will be the first of several new dealerships that will be built and operated
pursuant to the City's Auto Park East and Auto Park North Specific Plans. The Sunroad OPA,
together with the Master OPA for Auto Park East (adopted by City Council on August 24, 2004), will
establish a foundation and set the stage for the comprehensive operation and maintenance of "first
quality, first class" auto dealerships within the Chula Vista Auto Park.
RECOMMENDATION
Staff recommends that the Redevelopment Agency of the City of Chula Vista adopt the attached
resolution approving the Owner Participation Agreement with Sunroad CV Auto, Inc. for the
operation and maintenance of a Chula Vista Toyota dealership.
BOARDS/COMMISSIONS RECOMMENDATION
Not applicable.
DISCUSSION
During the past several years, the Agency has proactively planned for the development and
expansion of the auto park along the Main Street corridor east of the 1-805 Freeway between
Brandywine Avenue and Maxwell Road. As part of those planning activities, Agency and City
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PAGE 2, ITEM NO.:
MEETING DATE: 02/15/05
staffs have worked closely with existing auta dealerships, prospective dealerships, and master
developers to coardinate the many moving parts that will facilitate the ongoing development and
expansion of the auto park in. Chula Vista.
With respect to the Sunroad property and the Toyota dealership, a number of prior Agency and
City Council approvals have preceded the current proposed OPA:
. On June 1, 2004, the City adopted a Mitigated Negative Declaration (IS-02-01 0) for the
Auto Park East project and specific plan, including all future dealership-specific projects
(e.g. Toyota).
. On June 8, 2004, the City adopted Ordinance No. 2965 adopting a specific plan (PCM-
02-10) for the 29-acre Auto Park East property. The Specific Plan establishes the City's
land use policies and entitlements that govern the 29-acre Auto Park East property and all
future auto dealerships within.
. On August 2, 2004, the City's Design Review Committee, pursuant to the Specific Plan,
reviewed and approved the developer's proposed design concepts for the Toyota
dealership with a condition that the height of the proposed tower element be reduced.
During the next few weeks, Agency staff helped facilitate discussions between Sunroad
and existing dealership owners regarding fair and consistent land use policies and design
guidelines among the existing and future dealerships. Consistent with those discussions,
the developer announced at the August 24, 2004 Agency meeting their agreement to
reduce their tower element from 100' to 80'. On August 24, 2004, the Agency
approved modified site plans that included the lower tower element.
. At the Agency's August 24, 2004 meeting, the Agency approved a Master Owner
Participation Agreement ("OPA") with Fred Borst, Borst Family Trust, Fask land, Inc.,
establishing development standards and performance requirements for the 29 acres of
territory within the Auto Park East Specific Plan. The Master OPA sets forth a number of
developer obligations of both the existing master developer and future individual
developers and dealership owners, such as Sunroad and the Toyota auto dealership. The
Master OPA and the proposed Sunroad OPA will concurrently guide the development,
maintenance, and operation of the Sunroad property as a "first quality, first class" auto
dealership.
The Sunroad OPA will ensure a "first quality, first class" Toyota dealership through the imposition
and purchase by the Agency of various restrictive and limiting operating covenants on the
property and dealership, including specified development obligations, maintenance
requirements, non-discrimination covenants, and restrictive operating covenants. In exchange for
the developer's acceptance and compliance of those requirements and restrictions on the land,
and the development and maintenance of the property as a "first quality, first class" auto
dealership, the Agency will agree under the OPA to make quarterly payments to the developer
calculated as a percentage of the City's share of net sales tax revenues generated by the project.
The structure of the monetary disbursements and conditions of disbursement are further
described below.
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PAGE 3, ITEM NO.:
MEETING DATE: 02/15/05
Disbursement Structure and Schedule
Quarterly disbursements will be made by the Agency to the developer in accordance with a pre-
determined schedule of disbursements (Exhibit "C" of the OPAl. The schedule outlines the
percentage of the City's share of net sales tax revenues it will disburse to the developer during
each year of the first seven years of operation of the auto dealership. See below table.
Year of Disbursement Amount""
Operation"
1 50%
2 50%
3 50%
4 50%
5 25%
6 25%
7 25%
-Disbursements will be distributed each quarter, commencing with the second
quarter after Developer has commenced operations.
."'Disbursement amount will be calculated as a percentage portion of the
City's share of sales tax revenues generated by Developer.
The disbursements will be limited only to the first seven years of operation of the Toyota
dealership. The maximum disbursement amount is limited to a percentage of the total sales tax
generated, not to exceed One Million Four Hundred Thirty-five Thousand Dollars ($1,435,000).
The structure of the agreement conceptually represents a shared performance agreement
between the Agency and the developer whereby both parties will proportionately benefit fram the
Toyota dealership's level of performance during the first seven years of operation.
Conditions of Disbursement
In addition to all of the maintenance requirements and operating covenants contained in the
OPA, the Agreement further establishes the following conditions of disbursement:
1. Execution and Delivery of Documents. The OPA shall have been recorded against the
property in the official records of San Diego County as an encumbrance to the
property superior and non-subordinate to any monetary liens, including without
limitation construction and/or permanent financing.
2. Insurance. The developer shall have insurance as required.
3. Reaulatory Approvals. Assuming no protests have been lodged against the location
and opening of the dealership, the developer shall have obtained any legally required
regulatory approval(s) from applicable governmental agency(ies) related to the
developer's ownership and operation of the applicable dealership on the property.
4. Manufacturer Approval. The developer shall have received any required appraval(s)
from the manufacturer for the operation of the applicable dealership upon the
property.
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PAGE 4, ITEM NO.:
MEETING DATE: 02/15/05
5. Consent of Owner for Recordina of Aareement aaainst the Properlv. The developer
shall obtain the written consent and/or agreement of each dealership and each lender
allowing recordation of the OPA against the property in a superior and
non-subordinate position to all other monetary liens and use restrictions on the
property.
6. Payment of Properlv Taxes. No ad valorem real property taxes or assessments
assessed with respect to the property shall be delinquent.
7. No Default. There shall exist no condition, covenant, event or act which would
constitute an event of default, or which, upon the giving of notice or the passage of
time, or both, would constitute an event of default.
8. Dealership Continuous Operation. The applicable dealership on the property shall be
in continuous operation and generating sales tax revenues in compliance with the
restrictive covenants of the OPA.
9. Environmental Condition of the Properlv. The developer shall not be in default of the
requirements regarding the environmental condition of the property.
FISCAL IMPACT
The General Fund will loan the Agency an amount not to exceed One Million Four Hundred
Thirty-five Thousand Dollars ($1,435,000) over seven (7) years. The amount loaned to the
Agency each year is based upon a percentage of the sales tax revenue generated by the Toyota
dealership. Quarterly disbursements will be made by the Agency to the developer in accordance
with the pre-determined schedule of disbursements (Exhibit "C" of the OPAl. The Agency will
repay the General Fund the entire amount of the loan with interest. Sales tax revenues generated
by the Toyota dealership during the lifetime of the project are anticipated to far exceed the loan
amount, resulting in no net impact to the general fund.
J:\COMMDEV\5TAFF.REP\2005\02-1 5-05\T eyete OPA.dec
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RESOLUTION NO.
RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY
OF CHULA VISTA APPROVING AN OWNER PARTICIPATION
AGREEMENT WITH SUNROAD CV AUTO, INC. FOR THE
OPERATION AND MAINTENANCE OF A CHULA VISTA TOYOTA
DEALERSHIP
WHEREAS, The Redevelopment Agency of the City of Chula Vista has proactively
planned for the development and expansion of the auto park along the Main Street corridor east
of the 1-805 Freeway between Brandywine Avenue and Maxwell Road; and
WHEREAS, Sunroad CV Auto, Inc. proposes to develop a Toyota dealership on a
portion of the property located on the south side of Main Street between Brandywine and
Maxwell Road; and
WHEREAS, the site for the proposed Toyota dealership is located within the Otay Valley
Road Redevelopment Project Area under the jurisdiction and control of the Redevelopment
Agency of the City of Chula Vista; and
WHEREAS, the site for the proposed Toyota Automobile Dealership is located within the
boundaries of the Auto Park East Specific Plan (PCM-02-10) approved by City Council in June
2004; and
WHEREAS, in August 2004, the Redevelopment Agency of the City of Chula Vista
approved a Master Owner Participation Agreement with Fred Borst, Borst Family Trust, Fask
Land, Inc., establishing development standards and performance requirements for the 29 acres
of territory within the Auto Park East Specific Plan; and
WHEREAS, The Master Owner Participation Agreement sets forth a number of
developer obligations of both the existing master developer and future individual developers and
dealership owners; and
WHEREAS, The Master Owner Participation Agreement and the Owner Participation
Agreement with Sun road CV Auto, Inc. will concurrently guide the development, maintenance,
and operation of the Toyota dealership as a "first quality, first class" auto dealership; and
WHEREAS, the agreement represents the Chula Vista Redevelopment Agency's
ongoing efforts to effectively plan for the City's expanding Auto Park
NOW, THEREFORE, BE IT RESOLVED by the Redevelopment Agency of the City of
Chula Vista that this Redevelopment Agency does hereby approve in the form presented the
Owner Participation Agreement between the Redeveiopment Agency of the City of Chula Vista
and Sunroad CV Auto, Inc., a copy of which shall be kept on file in the Office of the City Clerk.
BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby
authorized to execute said Owner Participation Agreement with Sunroad CV Auto, Inc. for and
on behalf of the Redevelopment Agency of the City of Chula Vista.
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Presented by
Laurie A. Madigan
Director of Community Development
Approved as to form by
4~ ~~ f/uU
nn oore
City Attorney and Agency Counsel
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Recording Requested By and
When Recorded Mail to:
CHULA VISTA REDEVELOPMENT AGENCY
276 Fourth Avenue
Chula Vista, CA 91910
Attn: Linda Welch
(Space Above This Line For Recorder)
TIlls document is exempt from the payment of a
recording fee pursuant to Government Code
Section 6103.
APN: 644-040-66 and 644-040-11
OWNER P ARTICIP ATION AGREEMENT
This OWNER PARTICIPATION AGREEMENT ("Agreement") is entered into by and
between the REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA, a public body
corporate and politic ("AGENCY"), and Sunroad CV Auto, Inc. ("DEVELOPER"), dated and
effective as of February ~ 2005 ("Effective Date").
WHEREAS, the DEVELOPER desires to develop real property (APN 644-040-66 and 644-
040-11) within the City of Chula Vista, generally located along the southerly side of Main Street, east
of Brandywine Avenue and west of Maxwell Road, within the City of Chula Vista, California
("Property"), as further described in the map attached hereto as Exhibit" A."
WHEREAS, a Master Owner Participation Agreement ("Master Agreement") was previously
executed and entered into on August 24, 2004 by and between AGENCY and Fred Borst, Borst
Family Trust, Fask Land, Inc. or permitted assignee ("Master DEVELOPER"), the Master
DEVELOPER of Property and other contiguous properties in the Auto Park East Specific Plan,
setting forth development standards and performance requirements for the Master DEVELOPER
and individual dealerships, including Property; and
WHEREAS, DEVELOPER shall comply with all applicable obligations, covenants, and
provisions of said Master Agreement, incorporated herein by this reference; and
WHEREAS, DEVELOPER has presented AGENCY plans for the development of Property as
a Toyota auto dealership ("Project") in accordance with the City of Chula Vista's ("City") adopted
Auto Park East Specific Plan ("Initial Entitlements"); and
WHEREAS, the Project is located entirely within the MERGED REDEVELOPMENT
PROJECf AREA within the jurisdiction of AGENCY; and
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WHEREAS, in consideration of the specific operating covenants and restrictive covenants
binding on DEVELOPER and set forth herein, AGENCY has agreed to make certain payments to
DEVELOPER; and
WHEREAS, AGENCY has determined it is of benefit to AGENCY, the City, and its citizens
for the Property to be planned, developed, and operated in accordance with the City's adopted
Auto Park East Specific Plan ("Specific Plan"), and that the imposition of certain operating
covenants and restrictive covenants upon the Property for the uses set forth in the Specific Plan
constitutes a valid public purpose and objective of AGENCY's Redevelopment Plan for the Project
area, and therefore AGENCY desires to obtain such operating covenants and restrictive covenants
on the Property and, subject to the terms hereof, DEVELOPER (for itself and its successors and
assigns of the Property or any part thereof) is willing to enter into and be bound by such operating
covenants and restrictive covenants; and
WHEREAS, AGENCY and DEVELOPER desire that the Project be developed in accordance
with the terms of this Agreement.
NOW, THEREFORE, AGENCY and DEVELOPER do hereby agree as follows:
1. DEVELOPMENT OBLIGATION. DEVELOPER covenants and agrees by and for itself, its
heirs, executors, administrators and assigns and all persons claiming under or through them the
following:
A. DEVELOPER shall develop the Property with the Project substantially in accordance
with the AGENCY-approved development proposal attached hereto as Exhibit "B."
B. DEVELOPER shall obtain all necessary federal, state, and local governmental permits
and approvals and abide by all applicable federal, state and local laws, regulations, policies and
approvals in connection with the development of the Project. DEVELOPER further agrees that this
Agreement is contingent upon DEVELOPER securing said permits and approvals. DEVELOPER
shall pay all applicable development impact and processing fees. Subject to applicable laws,
AGENCY staff agrees to exercise good faith efforts to expedite the processing and final
consideration of all entitlements and permits necessary for the Project. DEVELOPER further agrees
that construction shall be completed in compliance with all applicable laws, labor standards, and
Department of Industrial Relations rules and regulations.
C. DEVELOPER shall apply for all necessary building permits to develop the Project
within one year from the date of this Agreement, shall diligently pursue obtaining such building
permits and shall actually develop the Property with the Project within one year from the date of
issuance of the building permits. In the event DEVELOPER fails to meet these deadlines, AGENCY
approval of DEVELOPER's development proposals shall be void and this Agreement shall have no
further force or effect.
D. DEVELOPER shall comply with all conditions of approval of the Auto Park East
Specific Plan (PCM-02-10) and the Design Review Committee (DRC-04-66), and comply with the
mitigation monitoring program adopted for Mitigated Negative Declaration 15-02-010.
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II. MAINTENANCE OBLIGATION.
A. DUTY TO MAINTAIN FIRST CLASS CONDITION. DEVELOPER covenants to
develop and maintain the Property in First Quality, First Gass Condition and Repair consistent
with development, maintenance and operation standards customary for first quality, first class auto
parks and first class quality automobile dealerships of comparable size within the San Diego
California market region and in conformity with the Initial Entitlement, and the covenants,
conditions, maintenance obligations and other restrictions therein during the term of this
Agreement. Additionally, DEVELOPER shall promptly and diligently repair, restore, alter, add to,
remove, and replace, as required, all improvements to maintain or comply as above, or to remedy
all damage to or destruction of all or any part of the improvements except improvements dedicated
to and accepted by the City. "First Quality, First Class Condition and Repair" means an efficient
and attractive condition, at least substantially equal in quality to the condition which exists when
the improvements on the Property were completed, ordinary wear and tear excepted, in accordance
with all applicable laws and conditions. "Dealership" shall mean any person or business of any
nature selling, leasing, or financing vehicles on the property.
B. DELEGATION OF REPAIR AUTHORITY. In order to enforce all above maintenance
provisions, the parties agree that the Community Development Director of the City of Chula Vista
("Director") is empowered to make reasonable determinations as to whether the Property is in a
first class condition and repair. In accordance with the Master Agreement:
1. If the Director determines the Property appears materially different in terms
of maintenance and upkeep than the remainder of the Auto Park, the Property is not in conformity
with the requirements of this Agreement regarding maintenance and upkeep of the Project,
DEVELOPER shall be notified in writing and provided a reasonable time to cure and! or to
commence to cure and diligently and continuously complete such cure.
2. If a cure or substantial and ongoing progress to cure has not been made, the
Director is authorized to effectuate the cure by City forces or otherwise, the cost of which will
promptly be due from and reimbursed by DEVELOPER.
3. The Director or the City shall have the right to enforce this lien by forwarding
the amount to be collected to the San Diego Tax Assessor who shall make it part of the tax bill for
the Property.
III. NON-DISCRIMINATION COVENANTS. DEVELOPER covenants by and for itself and any
successors in interest (and each Dealership successor) that there shall be no discrimination against
or segregation of any person or group of persons on account of race, color, creed, religion, sex,
marital status, physical or mental disability or medical condition, national origin or ancestry in the
sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, nor shall
DEVELOPER itself or any person claiming under or through it establish or permit any such practice
or practices of discrimination or segregation with reference to the selection, location, number, use or
occupancy of tenants, lessees, subtenants, sublessees or vendees of the Property. The foregoing
covenants shall run with the land.
A. All deeds, leases or contracts with respect to the Property shall contain or be subject
to substantially the following nondiscrimination or nonsegregation clauses:
1. In deeds: "The grantee herein covenants by and for itself, its successors and
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assigns, and all persons claiming under or through them, that there shall be no discrimination
against or segregation of, any person or group of persons on account of sex, marital status, race,
color, creed, religion, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy,
tenure or enjoyment of the land herein conveyed, nor shall the grantee itself or any person claiming
under or through it, establish or permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use or occupancy of tenants, lessees,
subtenants, sub lessees or vendees in the land herein conveyed. The foregoing covenants shall run
with the land."
2. In leases: "The lessee herein covenants by and for itself, its successors and
assigns, and all persons claiming under or through them, and this lease is made and accepted upon
and subject to the following conditions:
That there shall be no discrimination against or segregation of any petson or
group of persons, on account of sex, marital status, race, color, creed, religion, national
origin or ancestry in the leasing, subleasing, renting, transferring, use, occupancy, tenure or
enjoyment of the land herein leased, nor shall lessee itself, or any person claiming under or
through it, establish or permit such practice or practices of discrimination or segregation
with reference to the selection, location, number, use or occupancy of tenants, lessees, sub
lessees, subtenants or vendees in the land herein leased."
3. In contracts: "There shall be no discrimination against or segregation of any
person or group of persons on account of sex, marital status, race, color, religion, creed, national
origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the
land, nor shall the transferee itself or any person claiming under or through it, establish or permit
any such practice or practices of discrimination or segregation with Reference to the selection,
location, number, use or occupancy of tenants, lessees, subtenants, sub lessees or vendees of the
land."
IV. RESTRICTIVE OPERATING COVENANTS. DEVELOPER hereby covenants and agrees (for
itself and any and all successors in interest of the DEVELOPER entity, any and all AGENCY-
approved assignees under this Agreement or any part thereof, and any and all successors in interest
to the Property or any part, portion, or parcel thereof, including any and all AGENCY-approved
transferees of the Property or any part, portion, or parcel thereof) to the following covenants:
A. DEVELOPER AND DEALERSHIP'S OPERATIONS. During the operating period,
DEVELOPER shall do or cause to be done the following:
1. For as long as operated as a new vehicle Dealership, to designate the Property
as the point of sale for sales tax purposes in all retail sales for vehicles whose sales originate from
the Property;
2. At no cost to AGENCY or City, keep and maintain the Property and the
improvements thereon and all facilities appurtenant thereto, consistent with first class auto parks
and first class automobile dealerships, in good order and repair and safe condition, and the whole
thereof, the improvements, and landscaping in a clean, sanitary, and orderly condition; and
3. Comply with all governmental requirements but only to the extent a failure to
comply materially and adversely affects DEVELOPER's (or any successor's) ability to comply with
these covenants; provided, however, that DEVELOPER (nor its successors) do/does not waive its
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right to challenge the validity or applicability of any such governmental requirements.
V. CONSIDERATION/PAYMENT FOR ANNUAL COMPLIANCE WITH RESTRICTIVE
OPERATING COVENANTS.
A. SALES TAX REVENUES AND RELATED DEFINITIONS. As used in this Section,
"Sales Tax Revenues" shall mean that portion of taxes derived and received by the City and legally
available for unrestricted use by the City's General Fund from the imposition of the Bradley Burns
Uniform Local Sales and Use Tax Law, commencing with Section7200 of the Revenue and Taxation
Code of the State of California ("State"), as amended, or its equivalent, arising from all businesses
and activities conducted on the Property in accordance herewith from time to time, which are
subject to such Sales and Use Tax Law. As used in herein "Retained Sales Tax" shall mean 1 % of
Sales Tax Revenues reported in the DEVELOPER's quarterly sales and use tax report to the State
and verified by the City minus an amount equal to the payment described herein if any, paid to
DEVELOPER herein.
B. CONSIDERA TrON. In consideration for DEVELOPER's agreement to be bound by
the Restrictive Covenants in Section IV of this Agreement, AGENCY agrees, as follows:
1. AGENCY shall pay to DEVELOPER an amount equal to a portion of the City's share
of Sales Tax Revenues generated by Developer on a quarterly basis as identified in the attached
Exhibit "e" ("Disbursement"). The Disbursement will be based on the sales tax information
received from the State Board of Equalization which is available one quarter after the submission of
the DEVELOPER's quarterly sales/use tax report. The Disbursement will be distributed each
quarter, commencing with the first full quarter after DEVELOPER has commenced operations
during the term of the Restrictive Covenants until the earlier of (i) the Seventh (7th) anniversary date
of the first payment as identified in Exhibit "C" or (ii) receipt by DEVELOPER of the aggregate
amount of One Million Four Hundred Thirty-five Thousand Dollars ($1,435,000) under this
subsection.
a. The Disbursements due hereunder shall be payable from any source
of funds legally available to AGENCY. The determination of the source of funds shall be in the sole
and absolute discretion of AGENCY.
b. The amount of the Disbursement due on each such payment date shall
be determined by the City's sales tax consultants based on information provided by the State Board
of Equalization and verified by the City's Finance Department adjusted for any corrections to
previous tax reports made by the State Board of Equalization.
c. Sales Tax Revenues generated each period shall be determined as
follows:
(i) For sales of automobiles, parts and accessories, Sales Tax
Revenue shall be based upon the State Board of Equalization sales and use tax report(s) applicable
to a dealership at the Property during the applicable sales period; and
(1) "Sales of Automobiles" shall include all new or used
vehicles conveyed to any related or independent third party, including any financing company for
purposes of selling, leasing, or financing the vehicle to the end user.
(ii) Upon written request by AGENCY, DEVELOPER shall
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promptly furnish to AGENCY any and all said information and take any and all actions which are
reasonably deemed necessary by AGENCY to assist AGENCY in verifying the information
contained in said sales and use tax returns and reports of new and used vehicles. AGENCY shall be
entitled to review and audit the Dealership's books and records pertaining to the foregoing.
(1) If an audit of the Dealership's books and records
determines that DEVELOPER (or Dealership) has overstated revenues in any applicable period,
DEVELOPER shall reimburse AGENCY for any overpayment, and if DEVELOPER has overstated
revenues by more than ten percent (10%) in any period, DEVELOPER shall reimburse AGENCY for
the cost of the audit, within thirty (30) days of notice thereof from AGENCY.
(2) Reciprocally, DEVELOPER (or Dealership), atits sole
cost and expense, may request an audit to verify and/ or reconcile the calculation of the amount of
any payment. If such audit reveals an underpayment to DEVELOPER (or a Dealership), then
AGENCY shall pay the outstanding amount of any payment hereunder to be paid to the
DEVELOPER (or Dealership); and if such audit reveals an overpayment to DEVELOPER, then
DEVELOPER immediately shall reimburse AGENCY for such overpayment. If AGENCY has
underpaid DEVELOPER by more than 10% as a result of an error committed by the AGENCY,
AGENCY shall reimburse DEVELOPER for reasonable audit costs, within 30 days of notice thereof
from DEVELOPER.
(3) If DEVELOPER contests the amount of Sales Tax
Revenues for any period for the sales of automobiles, parts, and accessories arising from the
dealership, as based upon the State Board of Equalization sales and use tax report applicable to the
Dealership and the Property, at the sole expense of DEVELOPER, then AGENCY shall use good
faith efforts to investigate and, if appropriate, to take steps to ensure that the correct amount of
Sales Tax Revenues arising from the dealership is allocated to the City, and the correct amount of
the period's payment is calculated and paid to DEVELOPER.
d. If after the fourth (4th) year payments, DEVELOPER has received less
than $1.1 million in compensation for compliance with the restrictive covenants contained herein,
DEVELOPER may request and AGENCY shall in good faith consider modification to the payment
schedule to ensure DEVELOPER receives fair and just compensation for compliance with the
restrictive operating covenants being purchased by the AGENCY herein.
C. PAYMENTS. Upon DEVELOPER's satisfaction of the Conditions Precedent to Disbursement set
forth below, each payment shall occur within 180 days following the end of the quarter ("Payment
Date") based with respect to the applicable sales period. DEVELOPER is aware and acknowledges
that the determination of the Disbursement amount will be determined and based upon the receipt
by the City of the State Board of Equalization report within 90 days of the end of the applicable
quarter. If the City fails to receive said report within 90 days of the end of the applicable quarter,
Payment Date shall be automatically extended a number of days equal to the number of days delay
in the City receipt of said report. DEVELOPER is aware and acknowledges that as of the Effective
Date of Agreement, CITY intends that the State Board of Equalization report will be supplemented
and summarized by an outside third party fiscal consultant.
1. Each payment will be made within 180 days following the end of the quarter, except as
otherwise provided herein, based on the issuance and receipt by the City of the applicable State
Board of Equalization report/ disbursement. DEVELOPER acknowledges each State Board of
Equalization report is also reviewed by fiscal consultant(s) to AGENCY and City. DEVELOPER
acknowledges and agrees that such fiscal consultant(s) will undertake calculation of each payment
and, thereafter, the calculation will be reviewed by the City's Finance Department staff. Upon the
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City's receipt of each quarterly report, AGENCY shall notify DEVELOPER in writing of the date of
receipt and the anticipated date of delivery of payment to DEVELOPER. AGENCY will use its best
efforts to review and process any and all payments due to DEVELOPER in a timely and
expeditious manner.
D. CONDITIONS PRECEDENT TO DISBURSEMENT. Each payment hereunder is
conditioned upon the satisfaction by DEVELOPER of the respective conditions precedent
(1) through (9) inclusive, described below. Such conditions ("Conditions Precedent") are solely for
the benefit of AGENCY, and shall be fulfilled by DEVELOPER (or waived by AGENCY in its sole
and reasonable discretion) within the time periods provided for herein. DEVELOPER may satisfy
(and submit evidence of such satisfaction to the Director) one or more of such Conditions Precedent
at any time prior to the first payment, so that at the time the first payment is due, DEVELOPER may
have already provided satisfactory evidence of compliance with each of such Conditions Precedent.
Thereafter, for subsequent payments, DEVELOPER shall have been deemed to have satisfied each
of the respective conditions precedent which do not expire or contain a re=ring obligation, unless
DEVELOPER fails to timely satisfy condition 7, below, in which case AGENCY may require renewal
or update of any prior submittal.
1. Execution and Delivery of Documents. This Agreement shall have been
recorded against the Property in the official records of San Diego County as an encumbrance to the
Property superior and non-subordinate to any monetary liens, including without limitation
construction and/ or permanent financing.
2. Insurance. DEVELOPER shall have insurance, including general liability
coverage.
3. Regulatory Approvals. Assuming no protests have been lodged against the
location and opening of the Dealership, DEVELOPER shall have obtained any legally required
regulatory approval(s) from applicable governmental AGENCY(ies) related to DEVELOPER's
ownership and operation of the applicable Dealership on the Property.
4. Manufacturer Approval. DEVELOPER shall have received any required
approval(s) from the manufacturer for the operation of the applicable Dealership upon the Property.
5. Consent of Owner for Recording of Agreement against the Prol'ertv.
DEVELOPER shall obtain the written consent and/ or agreement of each Dealership and each lender
allowing recordation of this Agreement against the Property in a superior and non-subordinate
position to all other monetary liens and use restrictions on the Property.
6. Payment of Property Taxes. No ad valorem real property taxes or
assessments assessed with respect to the Property shall be delinquent.
7. No Default. There shall exist no condition, covenant, event or act which
would constitute an event of default hereunder, or which, upon the giving of notice or the passage
of time, or both, would constitute an event of default.
8. Dealership Continuous Operation. The applicable Dealership on the Property
shall be in continuous operation and generating Sales Tax Revenues in compliance with the
Restrictive Covenants herein.
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9. Envirorunental Condition of the Prof'erty. DEVELOPER shall not be in
default of the requirements regarding the envirorunental condition of the Property.
D. NO PLEDGE OF TAXES. AGENCY's obligations hereunder are not, shall not
constitute, and shall not be construed as a pledge of funds by AGENCY or the City, in particular
there is and shall not be a pledge of tax increment pursuant to Health and Safety Code Section
33671, a pledge of City sales tax revenues, a pledge of any other specific revenues of AGENCY, or a
pledge of the City's general fund. All references to the Sales Tax Revenue are intended solely to
create an index for calculating the amount of the payments, and shall not in any respect whatsoever
be construed as a pledge of specific funds of AGENCY nor the City's general fund. Nothing in the
foregoing statement that there is and shall be no pledge of specific funds hereunder, shall limit or
diminish the AGENCY's obligation to make payments required hereunder to DEVELOPER,
assuming all Conditions Precedent to such payment are satisfied.
E. CAP ON CONSIDERATION. Notwithstanding anything else herein contained, in no
event shall the total consideration paid to DEVELOPER pursuant to this Section V exceed the sum
of One Million Four Hundred Thirty-Five Thousand Dollars ($1,435,000).
F. NO ACCELERATION. It is acknowledged by the parties that any payments by
AGENCY provided for herein may only be paid in those periods in which DEVELOPER is in
compliance with the Restrictive Covenants provided for herein. Upon AGENCY satisfaction that
DEVELOPER has come into compliance with the restrictive operating covenants contained within
Section V, AGENCY shall make any previously withheld payments due pursuant to Section V.
Therefore, the failure of AGENCY to make any payments during the contribution term provided
above shall not cause the acceleration of any future payments by AGENCY to DEVELOPER beyond
the date of such default.
VI. SIGNAGE
A. SIGN. Upon execution of this Agreement, AGENCY shall diligently pursue the
construction of an auto park directional sign along Auto Park Drive in the vicinity of the eastern
boundary of Interstate 805 ("Sign"). The Sign will be professionally designed utilizing auto park
industry standards. At this time, such standards may include a permanent display with space for a
listing of each make of auto dealership that constructs an auto dealership within the Auto Park,
including but not limited to Toyota and Scion, and an electronic reader board. The Sign will be
designed by the AGENCY in consultation with the Association or with Master Developer and
existing dealers if the Association has not yet been formed.
B. AGENCY recognizes that the DEVELOPER believes it is critical that the Sign be
erected before the date upon which DEVELOPER opens the Project to the public. As a result of that
acknowledgment AGENCY will use its best efforts to timely identify a location for and design of the
Sign. Additionally, AGENCY will in good faith use all reasonable means necessary to procure the
appropriate interest in land.
C. Concurrently with site identification AGENCY will diligently pursue design and
construction consultants to erect said Sign. To that end, Agency has identified the following target
dates for the sign:
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DATE ACTlDN
February, 2005 City hires consultant to recommend potential location and
design of the Auto Park Directional sign
April, 2005 Proposed design of Auto Park Directional sign complete
and potential sites identified
May, 2005 Auto Dealers Association/ City staff select design and
proposed location
June, 2005 DRC and City Council Review and Approval of Design and
location
July, 2005 Begin acquisition process
September, Acquisition of site
2005
October, 2005 Beqin construction
D. DEVELOPER acknowledges and agrees that this Agreement does not bind the
AGENCY to enter into any agreement or to take any particular action related to said Sign and that
the AGENCY's failure to enter an agreement with a consultant to pursue installation or construction
of said Sign shall not constitute a breach of this Agreement. In this regard, the AGENCY
undertakes no obligation to DEVELOPER hereunder and retains its sole and unfettered discretion
to adopt any resolutions and does not prejudge or commit, in any respect whatsoever, to the
DEVELOPER, or any other person or entity, regarding said Sign. DEVELOPER understands that
the AGENCY and City expressly and intentionally reserve the right to exercise their discretion as to
all matters which they are, by law, entitled or required to exercise their discEtion.
E. DEVELOPER retains its discretion to apply for and pursue construction of the above
identified sign. If after consultation with the AGENCY, DEVELOPER and AGENCY reasonably
determine AGENCY is unable or unwilling to erect said sign and DEVELOPER pursues private
construction of said sign, DEVELOPER may request and AGENCY shall in good faith consider
providing appropriate assistance to DEVELOPER. DEVELOPER acknowledges and agrees that any
assistance provided to DEVELOPER shall not exceed $1.2 million for the sign. If the AGENCY
determines assistance is appropriate, at least 30 days prior to DEVELOPER expending funds for the
erection of the sign, DEVELOPER and AGENCY shall meet to determine the amount and form of
said assistance and to devise a mutually acceptable payment schedule.
F. If the DEVELOPER chooses to pursue the erection of the sign, the AGENCY
acknowledges that DEVELOPER may request additional funds associated with land acquisition and
financing of the sign. DEVELOPER acknowledges AGENCY has made no commitment as it relates
to acquisition or financing costs but will in good faith consider said request.
VII. MISCELLANEOUS.
A. AGENCY and DEVELOPER agree that the covenants of the DEVELOPER expressed
herein shall run with the land for the duration of the term of the MERGED REDEVELOPMENT
PROJECT AREA, as it may be amended from time to time.
B. DEVELOPER and AGENCY agree to mutually consider reasonable requests for
amendments to this Agreement which may be made by lending institutions, AGENCY's counsel, or
DEVELOPER's counsel provided such requests are consistent with this Agreement and would not
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substantially alter the basic business terms included herein. The Director shall have the authority to
issue interpretations, waive provisions and enter into amendments of this Agreement on behalf of
the AGENCY so long as such actions do not substantially change the uses permitted for the Project
or the terms and provisions specified herein and as agreed to by the Agency Board. All other
waivers or amendments shall require the consideration and written consent of the AGENCY Board.
C. It is understood the schedule and outside dates for performance under this
Agreement are subject to all of the terms and conditions set forth in the text of this Agreement.
AGENCY vests in the Executive Director the sole and complete discretion to authorize extensions to
the outside dates set forth herein for (i) application for all necessary permits to develop the Project,
and (ii) development of the Project; provided however, that in no event shall any extension of any
outside date referenced in (i) and/or (ii) of this subsection, or all extensions taken together, exceed
eighteen (18) months. Additionally, each and every extension is also subject to the following
provisions.
(i) Each extension shall be mutually agreed upon in writing
between DEVELOPER (or a successor) and the Executive Director based on extensions necessary
due to changes in circumstances, market conditions relating to operation of first class, first quality
automobile dealerships and franchises in Chula Vista, California, or other factors not known by the
parties as of the date of this Agreement.
(ii) Each request for an extension from DEVELOPER (or a
successor) of an outside date shall be in writing stating the requested extension period, the reasons for
such extension, the facts and circumstances related to the need for such extension, and other
information reasonably necessary for the Executive Director to understand the basis for such request
and the circumstances that did not exist as of the date of this Agreement that necessitate such
requested extension. The Executive Director is authorized to agree to make such revisions as he/she
deems reasonably necessary based on changes in circumstances or other factors not known as of the
date of this Agreement. In the event an extension is granted by the Executive Director, then the
performance tasks hereunder shall be extended by such period and any corresponding extension
necessary to correlate the times for performance hereunder are also reasonably extended to correlate
with the approved extension, as determined by the Executive Director in his/her sole and absolute
discretion.
D. AGENCY and DEVELOPER agree that the covenants of the DEVELOPER expressed
herein are for the express benefit of the AGENCY and for all owners of real property within the
boundaries of the MERGED REDEVELOPMENT PROJECT AREA as the same now exists or may be
hereafter amended. AGENCY and DEVELOPER agree that the provisions of this Agreement may
be specifically enforced in any court of competent jurisdiction by the AGENCY on its own behalf or
on behalf of any owner of real property within the boundaries of the MERGED REDEVELOPMENT
PROJECT AREA. "Notwithstanding the foregoing or anything else in this Agreement, nothing in
this Agreement shall be construed to accord any party not a party to this Agreement third-party
beneficiary status under this Agreement, and nothing in this Agreement shall be construed to
accord any party not a party to this Agreement any right to enforce any provision of this
Agreement."
E. AGENCY and DEVELOPER agree that this Agreement may be recorded by
AGENCY in the Office of the County Recorder of San Diego County, California.
F. DEVELOPER shall and does hereby agree to indemnify, protect, defend and hold
-10-
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harmless AGENCY and the City, and their respective Council members, officers, employees, agents
and representatives (collectively, the "Indemnified Parties"), from and against any and all liabilities,
losses, damages, demands, claims and costs, including court costs incurred as result of any
administrative or regulatory action, and reasonable attorneys' fees (collectively, "liabilities") arising,
directly or indirectly, from (a) AGENCY'S approval of this Agreement, (b) AGENCY's or City's
approval or issuance of any other permit or action, whether discretionary or non-discretionary, in
connection with the Project contemplated herein, and (c) DEVELOPER's construction and operation
of the Project permitted hereby.
G. In the event that any court action or other legal proceeding is brought by any person
not a party to this Agreement to challenge this Agreement, the granting of any entitlements, the
purchasing of the operating covenant or the fulfillment of any condition to the obligations of the
parties hereto, and without regard to whether or not the DEVELOPER or the AGENCY is a party to
said action or proceeding, DEVELOPER and AGENCY shall meet and confer to discuss how to
respond to such challenge. If the parties agree to defend against such challenge, or defense costs are
otherwise reasonably in=red by AGENCY or the City prior to such determination, DEVELOPER
shall indemnify the AGENCY and the City for all expenses, including attorneys' fees, to defend the
City or the AGENCY from any claim, action or proceeding against the City, the AGENCY or their
agents officers, or employees to attack, set aside, void or annul the approval of this Agreement or
the approval of any entitlements or the purchasing of the operating covenants or condition to the
obligations of the parties hereto. AGENCY and the City shall promptly notify DEVELOPER of any
such claim, action or proceeding. For purposes of this Section, DEVELOPER acknowledges that the
term" attorneys' fees" includes the reasonable costs incurred by the City or AGENCY in the defense
of any claim, action or proceeding by the City Attorney or her staff.
H. In the event of any dispute between the parties with respect to the obligations under
this Agreement that results in litigation, the prevailing party shall be entitled to recover its
reasonable attorney's fees and court costs from the non-prevailing party.
1. Time is of the essence for each and every obligation hereunder.
J. If DEVELOPER fails to fulfill its obligations hereunder after due notice and
reasonable opportunity to cure, DEVELOPER shall be in default hereunder, and in addition to any
and all other rights and remedies AGENCY may have, at law or in equity, AGENCY shall have the
right to terminate its approval of the Project and this Agreement.
K. If a party to this Agreement fails to timely satisfy a material obligation under this
Agreement as the time for performance may have been extended in its sole discretion pursuant to
Section VII.C and/or Section VII.J of this Agreement (such party, a "Defaulting Party", and such
failure to timely perform, an "Event of Default"), then the other party to this Agreement (the "Non-
Defaulting Party") may provide the Defaulting Party written notice of such Event of Default (a
"Default Notice"). Upon the Defaulting Party's receipt of a Default Notice, the Defaulting Party
shall have ninety (90) days within which to cure the Event of Default, or if such Event of Default is
of a nature that it cannot be cured within such 90-day period, then to begin to effect such cure and
diligently pursue completion of performance in the shortest, commercially reasonable time period
(the "Cure Period"). Except as otherwise provided within this Agreement, neither party to this
Agreement may proceed against a Defaulting Party, nor cease to itself timely perform each and every
obligation due under this Agreement, unless and until a Defaulting Party has failed to cure the Event
of Default within the applicable Cure Period. If the Defaulting Party fails to cure the Event of
-11-
2-17
Default within the applicable Cure Period, then in addition to any and all other rights and remedies
the Non-Defaulting Party may have, at law or in equity, the Non-Defaulting Party may terminate this
Agreement.
1. The qualifications and identities of the individuals comprising the DEVELOPER
entities are of particular concern to the AGENCY. It is because of those qualifications and
identities that the AGENCY has entered into this Agreement with the DEVELOPER. No
voluntary or involuntary successor in interest of the DEVELOPER shall acquire any rights or
powers under this Agreement except as expressly set forth herein.
(i) DEVELOPER shall not, except as permitted by this Agreement, assign or
attempt to assign this Agreement or any right herein with respect to the Proj ect, nor make any
total or partial sale, transfer, conveyance or assignment ofthe whole or any part of the Property
Site or the improvements thereon, without prior written approval of the AGENCY in its sole
discretion. Any attempted transfer that has not been so approved by AGENCY shall be void.
Except as permitted below, transfers of any interest in the DEVELOPER entity shall constitute a
prohibited transfer hereunder.
(ii) Notwithstanding any other provisions ofthis Agreement to the contrary,
AGENCY approval ofan assignment of this Agreement or any interest herein shall not be
required in connection with any of the following:
(a) Any transfers among the principals of the DEVELOPER entities so
long as the existing principals thereof shall be and remain in management control of the
DEVELOPER entity with at least a fifty-one percent (51 %) ownership or beneficial interest in
the DEVELOPER entity.
(b) The granting of temporary or permanent easements or permits to
governmental or quasi-governmental agencies to facilitate the development of the Property, or
any component thereof.
(iii) AGENCY consent will be granted if:
(a) the proposed assignee/transferee expressly assumes, in writing, Master
DEVELOPER's obligations hereunder as to times following the effective date of the assignment or
transfer;
(b) the proposed assignee/transferee has demonstrated to the reasonable
satisfaction of AGENCY that such person or entity has adequate financial capacity to fulfill all
obligations ofthis Agreement.
(M) Notwithstanding the foregoing or anything else in this Agreement, all dates for
performance set forth in this Agreement are subject to a one (1) day extension for each day of delay
in performance due to a Force Majeure Event, provided that the party claiming the right to such
extension provides the other party written notice of the Force Majeure Event within thirty (30) days
following the occurrence of such event. As used in this Agreement, "Force Majeure Event" means
any act of God, act or omission of any local, state, or federal governmental AGENCY (including,
without limitation, the AGENCY and the City, and including without limitation, the failure or refusal
-12-
2-18
of any such AGENCY to grant, issue or enact any entitlement, approval, or permit necessary for the
use, development or disposition of the Property or any portion of the Property), casualty, stormy or
inclement weather, epidemic, war, terrorism, insurrection, riot, fire, flood, earthquake, strike, boycott
or other labor dispute, delay in transportation, unavailability or scarcity of!abar or materials and any
legislative, administrative or judicially imposed restriction upon or prohibition against construction
or development.
Signature Page Follows
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2-19
DZ-DB-ZDD5 D7: 16PU ,ROU-SUNROAD ENTERPR I SES
+85816Z844B
T-ll1 P.OI5/DI8 ,-IBB
Signature Page
IN WITNESS WHEREOF THE PARTIES HAVE ENTERED INTO THIS AGREEMENT
EFFECTNE AS OF THE DATE Fill.ST WRITTEN ABOVE.
"AGENCY"
REDEVELOPMENT AGENCY OF THE CITY OF
CHULA VISTA. a public body corporate and politic
DATED:
By:
Stephen C. Padilla, Chairman
APPROVED AS TO FORM BY:
Ann Moore
AGENCY Attorney
"DEVELOPER"
DATED:
hG
q 2 p~ 5
/
S~~lif=;'C"""'ti~
By:
Its: (./~; Fe.fJ-<l V I'
NOTARY: Please attach aclcnowledgment card(s).
J:IAII?meylEHull\AgreementsIToyora OPA 020205 CLEAN.doc
2-20
EXHIBIT A
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C HULA VISTA PLANNING AND BUILDING DEPARTMENT
LOCATOR PROJECT PROJECT DESCRIPTION:
C) APPLICANT: Chula Vista Toyota DESIGN REVIEW
PROJECT Auto Park East
ADDRESS: Request: Proposal for new auto dealership and carwash.
SCALE: . FILE NUMBER:
NORTH No Scale DRC-04-66 '>1
J:\planning\carIOS\locators\drc0466.cdr 07.12.04
EXHIBIT B
REDUCED COPIES OF DESIGN PLANS
FRONT ELEY ATION
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2-22
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2-28
EXHIBIT C
SCHEDULE OF DISBURSEMENTS
Year of Disbursement Amount
ODeration
1 50%
2 50%
3 50%
4 50%
5 25%
6 25%
7 25%
-17 -
2-29