HomeMy WebLinkAboutAgenda Packet 1993/01/19
Tuesday, January 19, 1993
6:00 p.m.
", declare under penalty of perjury that I em
em'lo e".1 b,,' the City of Chula Vista in the
Oce (' e E' ~'I"rk and that I posted
t .is i\ .cn~l.i".ice on the Bulletin B~ard at
the Public 'erv'ces Building and at City H.all on Council Chambers
DATED, SIGNED CI ~"PUbIiC Services Building
Rel1:Ular Me tinst of the City of Chula Vista City Council
CAll. TO ORDER
1.
ROll. CAll.:
Councilmembers Fox ~ Horton --' Moore ~ Rindone ~ and Mayor
Nader _
2. PLEDGE OF AlLEGIANCE TO THE FLAG. SILENT PRAYER
3. APPROVAL OF MIN1TI"ES: December IS, 1992
4. SPECIAL ORDERS OF THE DAY: None submitted.
CONSENT CALENDAR
(Items 5 through 8)
The staff recommendations regarding the following items listed under the Consent Calentlor will be enm:ted by the
Council by one motion without discussioIt unless a CoundJmember, a member of the public or City staff requests
that the item be puIkdfor 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 City Clerk prior to the meeting. (Complete the green form
to speak in favor of the staff recommendation; complete the pink form to speak in opposition to the staff
recommendJltion.) Items puIkd from the Consent Calendar will be discussed after Board and Commission
Recommendations and Action Items. Items puIkd by the public will be the first items of business.
5. WRITTEN COMMUNICATIONS: None submitted.
6.A. ORDINANCE 2540 AMENDING SECTION 2.05.010 OF THE MUNICIPAL CODE TO ESTABIJSH
THE POSITION OF SPECIAL PLANNING PROJECTS MANAGER IN THE
UNCLASSIFIED SERVICE (first readinstl - The Fiscal Year 1992-93 budget
included a position of Deputy Director of Planning to head the
department's proposed Community Planning Group/Otay Ranch project.
After review of the revised implementation schedule of the City's takeover
of the Otay Ranch project it is recommended that the position title be
changed and a benefitted position be approved. Staff recommends Council
place the ordinance on first reading and approval of the resolutions.
(Administration) - 4/5th's vote required.
B. RESOLUTION 16963 AMENDING RESOLUTION 16950 TO ADD THE SPECIAL PLANNING
PROJECTS MANAGER IN SALARY BAND E-3 OF THE EXECUTIVE SALARY
SCHEDULE
C. RESOLUTION 16964 AMENDING RESOLUTION 16889 TO PLACE THE POSITION OF SPECIAL
PLANNING PROJECTS MANAGER IN THE FRINGE BENEFIT RESOLUTION
FOR EXECUTIVE MANAGERS
7. RESOLUTION 16965 APPROVING THE FINAL MAP FOR CHULA VISTA TRACT 91-07, PARK
WAY PLACE TOWNHOMES - On 1/8/92, the City Planning Commission
approved the Tentative Subdivision Map for Chula Vista 91-07, Park Way
Place Townhomes. The Final Map for said Tentative Map is now before
Council for approval. Staff recommends approval of the resolution.
(Director of Public Works)
Agenda
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January 19,1993
8. RESOLUTION 16966 APPROVING AN AGREEMENT WIlli NOWELL-1liOMPSON ASLA AND
ASSOCIATES INC. FOR DESIGN DEVELOPMENT, CONSTRUCTION
DOCUMENTS DEVELOPMENT, AND RELATED SERVICES FOR HIlLTOP
PARK IMPROVEMENT PROJECT (CIP-PR-175), AND AU1liORIZlNG TIiE
MAYOR TO EXEClITE SAME - In response to citizen concerns regarding the
location of the restroom, playground, and other issues, Council approved
a Park Improvement project in the 1992-93 Capital Improvement Program
to address these concerns. A landscape consultant is required to prepare
a design concept, construction document drawing, and other services for
the project. Staff recommends approval of the resolution. (Director of
Parks and Recreation)
* * END OF CONSENT CALENDAR * *
PUBUC HEARINGS AND RELATED RESOLUTIONS AND ORDINANCES
The following items have been advertised and/or posted as pub/U; hearings as required by /Qw. If you wish to speok
to any iIon, pleose fill out the .Request to Speak Form. available in the lobby and submit it to the City Clerk prior
to the meetin[? (Complete the greenform to:peak in favor of the staffret:ommendlltion; complete the pinkform
to speok in opposition to the staff ret:ommendation.) Comments are limited to five minutes per individuoJ.
PCS-93-03: CONSIDERATION OF TIiE TENTATIVE MAP, STATEMENT OF
OVERRIDING CONSIDERATIONS AND MITIGATION MONITORING
PROGRAM, AND STREET NAMES FOR TELEGRAPH CANYON ESTATES -
BALDWIN VISTA ASSOCIATES - The applicant proposes to subdivide 112
acres of presently unincorporated property located on the north side of
Otay Lakes Road directly east of Otay Lakes Lodge mobile home park and
directly south of EastLake Shores. The proposal calls for 345 single family
lots, two recreation areas, and four open space lots containing over 26
acres. Staff recommends approval of the resolution. (Director of Planning)
Continued from the meeting of 1/12193.
RESOLUTION 16960 APPROVING TIiE TENTATIVE SUBDMSlON MAP FOR TELEGRAPH
CANYON ESTATES, CHULA VISTA TRACT 93-03; AND MAKING TIiE
NECESSARYPlNDINGS; READOPTING TIiE STATEMENT OF OVERRIDING
CONSIDERATIONS AND TIiE MITIGATION MONiTORING PROGRAM FOR
EIR 91-05
9.
PUBUC HEARING
ORAL COMMUNICATIONS
This is an opportunity for the general pub/U; to address the City Council on any subject matter within the Council's
jurisdiction thIlt is not an item on this agenda. (State /Qw, however, generally prohibits the City Council from
taking m:tion on any isSUJ!S not i1u:luded on the posted agenda.) If you wish to address the Council on sud& a
subjec4 please complete the yeUow .Request to Speak Under Oral Communications Form. available in the lobby
and submit it to the City Clerk prior to the meetin[? Those who wish to :peak, please give your name and address
for record purposes and foUow up action. Your time is limited to three minutes per spei1ker.
BOARD AND COMMISSION RECOMMENDATIONS
This is the time the City Council will consider items which have been forwarded to them for consideroJion by one
of the City's Boards, Commissions and/or Committees.
None submitted.
Agenda
.3.
January 19, 1993
ACI10N ITEMS
The items 1isted in this section of 1M agenda are expected to eIidt substanlial discussions and deliberations by 1M
COIlIIdJ, stoff, or members of 1M general publU:. The items will be considered individuaIly by 1M Council and staff
recommendalions may in certain cases be presented in 1M altonative. Those woo wish to speak, please fiB out
a "Request to Speak!' form available in 1M lobby and submit it to 1M City Clerk prior to 1M muting. Publii:
commenJs are limited to five minuJes.
1O.A RESOLUTION 16967 AU1HORIZlNG SUBMlTIAL OF AMICUS BRIEF IN CHULA VISTA CABLE
DISSOLUTION CASE . Staff recommends approval of the resolutions. (City
Attorney)
B. RESOLUTION 16968 EXPRESSING ITS PREFERENCE lHAT TIiE TRANSFER. OF JONES CABLE
INTERESTS IN TIiE CI1Y TO COX CABLE SHOULD NOT OCCUR
l1.A RESOLUTION 16940 APPROVING AN IMPLEMENTING AGREEMENT WITI:I HOME DEPOT
U.S.A, INC. TO CARRY OUT TIiE DEVELOPMENT AGREEMENT FOR
DEVELOPMENT OF A RETAIL STORE AT TIiE RANCHO DEL REY
COMMERCIAL CENTER - The Development Agreement covers the parcels
to be purchased by Home Depot, Kmart, and The Price Company and
requires Implementing Agreements be entered into prior to issuance of
building permits. Staff recommends approval of the resolutions. (Director
of Community Development) Continued from the 1/5/93 meeting.
B. RESOLUTION 16941 APPROVING AN IMPLEMENTING AGREEMENT WITI:I KMART
CORPORATION, INC. TO CARRY OUT TIiE DEVELOPMENT AGREEMENT
FOR DEVELOPMENT OF A RETAIL STORE AT TIiE RANCHO DEL REY
COMMERCIAL CENTER
C. RESOLUTION 16942 APPROVING AND AUTHORIZING EXECUTION OF A PUBUC FACilITIES
FINANCING AND IMPLEMENTING AGREEMENT WITI:I MAJOR RETAILER
C (THE PRICE COMPANY) RANCHO DEL REY COMMERCIAL CENTER,
AND RELATED CEQA FINDINGS
12. REPORT FEASIBIIJ1Y OF SPUTTING BONITA LONG CANYON, OPEN SPACE
MAINTENANCE DISTRICT 14 - On 9/15/92, Council received written
communication from Mr. and Mrs. Harry Hoffman requesting that staff
investigate the feasibility of dividing Open Space District #14 into two
parrs: 1) an area that is maintenance intensive, and 2) an area that is in
a natural state. The report deals with the issue and its potential impact on
the open space landscape maintenance districts. Staff recommends that the
Bonita Long Canyon, Open Space District #14 remain as one open space
district. (Director of Parks and Recreation and Director of Public Works)
13. REPORT INFORMATION REGARDING TIiE PROPOSED ANIMAL SHELTER
RECONFIGURATION - On 8/9/92, Council expressed concern about the
cost of temporarily relocating the Chula Vista Animal Shelter. Staff was
directed not to expend any funds for relocating the shelter until
alternatives were researched. The report provides Council with information
,
Agenda
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JanuaIY 19, 1993
on why staff has concluded the facility cannot continue to operate at its
present location without modification and compares impacts from
modifying the existing site to those of practical alternatives. Staff
recommends that a modular office building, moveable work room building,
and asphalt parking lot be constructed on the current animal shelter site.
(Chief of Police)
ITEMS pUlJ.E]) FROM TIffi CONSENT CALENDAR
This is the time the City Council wiD discuss items whii:h have been removed from the Consent Calendar. Agenda
items puJkd at the request of the public wiD be considered prior to those puJkd by Counci/nzemhen. Public
commenJs are limited to five minutes per individual
OTHER BUSINESS
14. crry MANAGER'S REPORTCS1
a. Scheduling of meetings.
15. MAYOR'S REPORTCS1
16. COUNCIL COMMENfS
Councilman Rindone:
a. Request for workshop on Methanol as an alternative fuel for fleet vehicles in accordance
with State and Federal laws.
ADJOURNMENf
The City Council will meet in a closed session immediately following the Council meeting to discuss:
Instructions to negotiators regarding compensation for represented or unrepresented employees
pursuant to Government Code Section 54957.6.
Potential litigation pursuant to Government Code Section 54956.9. IGOU vs. the City of ChuIa Vista.
The meeting will adjourn to (a closed session and thence to) a Special Joint Meeting of the City
Council/County Board of Supervisors, Thursday, JanuaIY 21,1993 at 2:00 p.m. at the County Administration
Center, thence to a Special Council MeetingIWorksession on Monday, JanuaJ:Y 25, 1993 at 5:30 p.m. in the
Council Conference Room, thence to the Regular City Council Meeting on Tuesday, JanuaIY 26, 1993 at 6:00
p.m. in the City Council Chambers, and thence to a Special Council MeetingIWorksession on Thursday,
JanuaIY 28, 1993 at 4:00 p.m. in the Council Conference Room.
A Meeting of the Redevelopment Agency will be held immediately following the City Council meeting.
COUNCIL AGENDA STATEMENT
ITEM TITLE:
Item~
Meeting Date~~
Ordinance ~~~~TO amend Section 2.05.010 of the Municipal
Code to establish the Position of Special Planning Projects
Manager in the Unclassified Service.
Resolution I'~~~~mending Resolutions 16950 to add the
Special Planning Projects Manager in Salary Band E-3 of the
Executive Salary Schedule
Resolution 1"~"1 Amending Resolution 16889 to Place the
position of Special Planning Projects Manager in the Fringe
Benefit Resolution for Executive Managers
SUBMITTED BY: City Manage~ 4/5ths Vote: Yes-X- No___)
The Fiscal Year 1992-93 budget included a position that was identified as either
Deputy Director of Planning or Special Projects Manager (see Page 129 of the
budget commentary) that would head the department's proposed Community Planning
Group/Otay Ranch project. After review of the revised implementation schedule
of the City's takeover of the Otay Ranch project it is recommended that the
position title be formalized and a benefitted position be approved.
RECOMMENDATION: That Council: (1) Adopt the resolutions adding the Special
Planning Projects Manager to Salary Band E-3 and placing the
position in the executive fringe benefit resolution and (2)
Place the Ordinance on first reading adding the position to
the unclassified service.
BOARDS/COMMISSIONS RECOMMENDATION: Not Applicable
DISCUSSION:
Over the past several months City staff, in consultation with Baldwin, have
refined the concept for this position. A clear need has been identified by staff
and Baldwin for this position to be established at an executive level with a
commensurate salary, reporting through the Planning Director to the City Manager.
The Otay Ranch is the 1 argest and most comp lex project the City wi 11 ever
undertake. Three years of planning in a joint process with the County of San
Diego have brought us to this point, and hopefully this Spring adoption of a
General Plan Amendment and General Development Plan for the property. At that
point, much work will remain to be accomplished. A sphere of influence will need
to be adopted, tax sharing agreements put in place, and annexation brought to
fruition, along with the more typical (or in this case, atypical) SPA plan
processing.
Many new and untried planning concepts espoused by this New Town General Plan
need to be worked out at the SPA level to ensure that things such as the village
t,,!
planning concept, mixed use, transit, pedestrian friendly design, and so forth,
consistent with the City's and County's goals and objectives are properly
implemented. Setting the tone for the first two villages along Telegraph Canyon
Road will be key. Major environmental and fiscal pieces, such as implementation
of the wildlife, open space preserve, development phasing, and service revenue
issues will be taken to a new level. Finally, coordination will be essential
with the County of San Diego, City of San Diego, regional entities, special
districts and environmental resource agencies. A citizen participation mechanism
building upon the current process, as well as expanding it, will be vital to keep
residents of Chula Vista in the process. All of these items point towards the
position being at a high level as outlined herein.
Subsequent to the processing of these first two villages, which will be the most
complex and difficult, it is anticipated that future SPA processing will be able
to be accomplished in a more normal fashion through the current structure of the
City Planning Department. In other words, it is anticipated that the first SPA
processing would take somewhere in the range of one to two years to complete, at
which point the position would be eliminated or reconstituted as, say, a Deputy
Planning Director or Principal Planner level within the hierarchy of the Planning
Department and a more traditional processing of future SPAs would ensue from that
point on. Staff will also be advising Council shortly on the implementation of
the remaining positions comprising the Otay Ranch planning team and the further
planning steps which were part of the FY 1992-93 adopted budget.
During the preparation of the FY 1992-93 budget it was anticipated that we would
be ready to transition the Joint City County review of the Otay Ranch plan to the
City during October of 1992. Since these assumptions were made last spring there
have been many delays in the transition process and it is now estimated that this
transition will be phased in between February and September of 1993.
The project "leader" during the budget process was not fully defined and the
budget was approved for a non benefitted Deputy Planning Director, although the
budget commentary as previously noted identified the new position as either a
Deputy Director or Special Projects Manager. This was done to allow flexibility
when it came time to making an actual selection. The original thought was that
depending on the progress and needs of the Otay Ranch project we would need a
high level administrator, and not knowing who might be available it may be a
contract position or a benefitted staff position. We also feel that making this
position a benefitted staff position better fits Council direction to avoid the
use of consultants or contract employees in processing land use plans.
This position will report to the City Manager via the Planning Director. The
position will receive benefits as an executive manager. Funds are available
within the Planning Department budget.
FISCAL IMPACT:
The cost of the position and benefits for the remainder of this fiscal year is
$46,048. The annual salary for this position will be $90,000. This cost shall
be fully reimbursed by Baldwin.
b~..2
ORDINANCE NO.
-25''1P
AN ORDINANCE OF THE CITY OF CHULA VISTA AMENDING
SECTION 2.05.010 OF THE CHULA VISTA MUNICIPAL CODE
TO ESTABLISH THE POSITION OF SPECIAL PLANNING PROJECTS
MANAGER IN THE UNCLASSIFIED SERVICE OF THE CITY OF CHULA
VISTA
position
proposed
WHEREAS,
of Deputy
Community
the fiscal year 1992-93 budget included a
Director of Planning to head the department's
Planning Group/Otay Ranch project; and
WHEREAS, after review of the revised implementation
schedule of the City's takeover of the Otay Ranch project, it is
recommended that the position title be changed and a benefitted
position be approved; and
WHEREAS, Charter Sections 500(a) and 701(a) (8) authorize
the City Council to create new Management level positions in the
Unclassified Service by an ordinance adopted by a four-fifths vote.
The city Council of the City of Chula vista does hereby
ordain as follows:
SECTION I: That section 2.05.010 of the Chula Vista
Municipal Code is hereby amended to read as follows:
Sec. 2.05.010
Unclassified positions established.
In addition to those unclassified positions specifically
delineated in section 500 of the Charter of the City,
there are established the unclassified positions entitled
deputy city manager, assistant to the city manager,
deputy city clerk, assistant fire chief, assistant
director of planning, assistant director of finance,
assistant director of personnel, assistant director of
building and housing, city engineer, director of
management and information services, redevelopment
coordinator, housing coordinator, transit coordinator,
assistant director of community development, deputy
director of public works/city engineer, public
information coordinator, traffic engineer, deputy
director of pUblic works/operations, budget manager,
revenue manager, assistant director of management and
information services, ass istant 1 ibrary director aflEi
police captain, and special planninq proiects manaqer.
SECTION II: This ordinance
full force on the thirtieth day
in
Presented by
John Goss, city Manager
C:\or\20SOIO
1,,4...}
RESOLUTION NO.
1~91LJ
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA AMENDING RESOLUTION 16950 TO ADD
THE SPECIAL PLANNING PROJECTS MANAGER IN
SALARY BAND E-3 OF THE EXECUTIVE SALARY
SCHEDULE
WHEREAS, the fiscal year 1992-93 budget included a
position of Deputy Director of Planning to head the department's
proposed Community Planning Group/Otay Ranch project; and
WHEREAS, after review of the revised implementation
schedule of the City's takeover of the Otay Ranch project, it is
recommended that the position title be changed to Special Planning
Manager, which position shall be placed in Salary Band E-3, to
report to the City Manager via the Planning Director.
NOW, THEREFORE, BE IT RESOLVED that the city Council of
the city of Chula Vista does hereby amend Resolution 16950 to add
the Special Planning Projects Manager in Salary Band E-3 of the
Executive salary Schedule, as set forth in Attachment 1 and
incorporated herein by reference as if t forth 'n full.
John Goss, city Manager
Presented by
F:\home\attomey\otaymgr
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EXECUTIVE SALARY SCHEDULE
ATTACHMENT
Rev. 1/19/n
Executive Salary Band
E-5
Minimum Limit
$6,955/month
$83,460/year
Maximum Limit
$9,685/month
$116,220/year
Assigned Positions:
Assistant City Manager
Chief of Police
E-4
$6,109/month
$73,308/year
$8,725/month
$104,700/year
Assigned Positions:
Assistant City Attorney
Oeputy City Manager
Director of Public Works
E-3
$5,586/month
$67,035/year
$8,035/month
$96,420/year
Assigned Positions:
Director of Community Development
Director of Finance
Director of Parks & Recreation
Director of Planning
Fire Chief
Library Director
Special Planning Projects Manager
E-2
$5,064/month
$60,762/year
$7,340/month
$88,080/year
Assigned Positions:
Assistant to the City Manager
Director of Building & Housing
Director of Management & Information Services
Director of Personnel
Deputy Director of Public Works
City Engineer
Executive Director, Nature Interpretive Center
E-l
$4,541/month
$54,489/year
$6,850/month
$82,200/year
Assigned Positions:
Budget Manager
Revenue Manager
Assistant Director of Finance
Assistant Director of Building & Housing
Assistant Director of Planning
Assistant Library Director
Assistant Director of Community Development
Assistant Director of Management & Information Services
Assistant Director of Personnel
Police Captain
Special Projects Manager
/,/J' J
RESOLUTION NO.
/&,9,,/
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA AMENDING RESOLUTION 16889 TO PLACE
THE POSITION OF SPECIAL PLANNING PROJECTS
MANAGER IN THE FRINGE BENEFIT RESOLUTION FOR
EXECUTIVE MANAGERS
WHEREAS, it is necessary to add the newly created
position of Special Planning Manager into the Executive Group for
fiscal year 1992-93.
NOW, THEREFORE, BE IT RESOLVED that the City Council of
the city of Chula vista does hereby amend Resolution 16889 to place
the position of Special Planning projects Manager in the Executive
Group for fiscal year 1992-93 as set forth in Attachment 1,
attached hereto and incorporated herein by reference as if set
forth in full.
Presented by
John Goss, City Manager
F:\home\atlomey\Exccben
~C-I
ATTACHMENT 1
EXECUTIVE, MIDDLE MANAGEMENT AND UNREPRESENTED
FRINGE BENEFIT COMPENSATION
FISCAL YEAR 1992.93
I. EXECUTIVE GROUP
A. Membership
City Manager
City Attorney
City Clerk
Assistant City Attorney
Assistant City Manager
Assistant to the City Manager
Assistant Director of Building & Housing
Assistant Director of Community Development
Assistant Director of Finance
Assistant Director of Management and Information Services
Assistant Director of Personnel
Assistant Director of Planning
Assistant Library Director
Budget Manager
Chief of Police
Deputy City Manager
Deputy Director of Engineering
Deputy Director of Public Works Operations
Director of Building and Housing
Director of Community Development
Director of Finance
Director of Management and Information Services
Director of Parks and Recreation
Director of Personnel
Director of Planning
Director of Public Works
Executive Director, Nature Interpretive Center
Fire Chief
Library Director
Police Captain
Revenue Manager
Special Planning Projects Manager
Special Projects Manager
t,C-J
FY 92.93 (EXECUTIVE GROUP)
B. Fringe Benefits
1. Deferred Compensation Plan
(A) Employees in the Executive Group may participate in the City's
approved deferred compensation plans.
(B) There will be a cap of 25% of the adjusted flex plan balance which
may be used for deferred compensation, provided the employee has
contributed a like amount during the same fiscal year.
2. Flexible Benefit Plan
Effective 7/1/92, the Executive Group, with the exception of the City Clerk,
City Attorney, Assistant City Manager and the City Manager, will receive
$5,895 annually to be used for the purchase of employee benefits as
specified in the CVEA Memorandum of Understanding for FY 1990-93, and
any additional uses approved by City Council.
3. Health and Dental Payroll Deductions Treated as Pre-Tax
Under Sections 125, 105, and 213 of the Internal Revenue Code, the City
will treat all payroll deductions for health and dental care on a pre-tax basis,
unless an affected employee requests that such deductions be taxed. If the
City does not meet IRS regulations or if the IRS regulations change for any
reason, this benefit may be discontinued.
4. Medical Premium Retirement Benefit Plan
The City will offer a medical premium retirement benefit plan, under Section
457 (f) of the Internal Revenue Code, through the JPEBA, Joint Powers
Employees Benefit Authority (or an equivalent plan). This program will
provide employees the option of making unlimited pre-tax contributions
from their wages to pre-fund post-retirement health insurance premium
costs for themselves and their dependents. Since IRS Section 457(f)
requires restrictions on the program that can result in forfeiture of the
contributions to the City for specified reasons, employees are advised to
carefully review the information that will be provided on the program prior
to deciding whether or when to participate.
Participating employees will pay the participant costs (currently $24 per
year). If the City does not meet IRS regulations or if the IRS regulations
change for any reason, this benefit maybe discontinued.
5. Flexible Spending Accounts (FSA's)
Employees may elect to budget by salary reduction, for certain health and
dependent care reimbursements on a pre-tax basis. The rules governing
FSA's are contained in the Internal Revenue Code. If IRS
t,c..y
FY 92-93 (EXECUTIVE GROUP)
regulations change or the City does not met IRS regulations, this benefit
may be discontinued.
(A) Health Care FSA - Employees may reduce their salary up to $2,500
to pay for eligible health related expenses. Salary reductions not
spent by the end of the plan year, by law, are forfeited to the City.
(B) Dependent Care FSA - Employees may reduce their salary up to
$5,000 to pay for eligible dependent care. Salary reductions not
spent by the end of the plan year, by law, are forfeited to the City.
(C) FSA Administration - Participating employees will pay the monthly,
per employee or per transaction administration fees, if any.
6. Long Term Disability Insurance
The City will pay the full cost of the long-term disability insurance premium
for executive positions.
7. Life Insurance
City pays for life insurance policy in the amount of $47,000 each. An
additional $3,000 group term life insurance policy is included in the flexible
benefits plan.
8. PERS
The City pays the 7% employee contribution to the Public Employee
Retirement System for all executive positions except the Chief of Police who
the City pays the 9% employee contribution to PERS. The PERS 1959
Survivors Benefit Third Level employee premium cost per month will be paid
by the City.
9. Sick Leave Reimbursement
Sick leave shall accrue and be reimbursed as designated in the Civil
Service Rules, Chapter 2.00, Section 2.02.
10. Vacation
Executive managers shall earn a minimum of three weeks (15 days)
vacation per year during the first through fifteenth year of continuous
service and after completion of fifteen years of continuous service, 20 days
per year. Vacation accrual may not exceed three times the number of
annual earned vacation days. At the end of the first pay period
commencing in January, any vacation balance exceeding this amount will
be forfeited. (For example, an employee earning 20 days per year could
have a vacation bank of 60 days or more. Any vacation balance in excess
~C->
FY 92-93 (EXECUTIVE GROUP)
of this 60 day maximum would be forfeited if not used by the last day of the
first pay period commencing in January.)
11. Holidays
The executive group will be credited 4 normal work days each fiscal year
(Lincoln's and Washington's Birthdays, Admission Day and Veterans Day).
The floating holiday time must be used within the fiscal year. The City will
be closed on the following holidays: Independence Day, Labor day,
Thanksgiving, Day after Thanksgiving, Christmas, New Year's Day, Memorial
Day.
12. Mileage Reimbursement
Executive managers may be eligible for the City's Mileage Reimbursement
Program when required to use their private automobile for authorized City
business.
.26t per mile
.24t per mile
.22t per mile
- first 200 miles
- next 300 miles
- over 500 miles
13. Administrative Leave
Executive managers, including the City Manager, City Attorney and City
Clerk, will receive 7 normal work days of administrative leave each fiscal
year. Administrative leave may not be accumulated from year to year.
14. Auto Allowance
The City Man?ger has authorization to provide, at his discretion, an auto
allowance of up to $285/month for certain executive managers with the
allowance contingent on evidence of adequate auto insurance.
C. All officers ("employees") provided for herein are FLSA-exempt.
Effective April 15, 1986, an FLSA-exempt employee shall not be placed in
leave without pay status for any absence, due to personal reasons not
covered by some form of leave with pay, of less than the employee's
regular work day, but rather shall be charged annual leave time, if available,
for the absence and shall be paid for the portion of the absence not
covered by such leave time, so long as the employee has, in fact, worked
for a portion of the work day. If the exempt employee is absent from an
entire work day, he/she shall be charged annual leave time for the absence,
if available, and shall be placed in leave without pay status for the portion
of the absence not covered by such leave. Thus, for example, if an exempt
employee works three
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FY 92.93 (EXECUTIVE GROUP)
hours of a work day, is authorized to take five hours of the day off for
personal reasons, and has at the time three hours of annual leave time
available, the employee will be charged his/her three hours of leave time
and will be paid, for the remaining two hours of the absence. As a further
example, if an exempt employee is authorized to take an entire work day
off for personal reasons and has, at the time, six hours of annual leave
available, the employee will be charged his/her six hours of leave time and
will be placed in leave without pay status for the remaining two hours of the
absence. If such absences are not authorized by the employee's
supervisor, the employee shall be placed in absence without leave (AWOL)
status, and disciplinary action shall be considered, as appropriate. Every
attempt should be made to minimize absences without leave of less than
one work day for FLSA-exempt employees.
Effective April 15, 1986, an FLSA-exempt employee who is absent due to
sickness or disability for less than a work day and whose sick leave and
annual leave balances are inadequate to cover the absence shall be paid
for the portion of that less-than-a-day absence not covered by such leave
time, so long as the employee has, in fact, worked for a portion of the work
day. If the employee is absent for an entire work day due to sickness or
disability, he/she shall be charged sick leave and/or annual leave time for
the absence, if available, and shall be placed in leave without pay status for
the portion of the absence not covered by such leave time. Thus, for
example, if an exempt employee works two hours of the day and is off for
six hours due to sickness and has at the time two hours of sick leave and
two hours of annual leave time, the employee will be charged his/her four
hours of leave time and will be paid for the remaining two hours of the
absence. As a further example, if an exempt employee is absent for an
entire work day due to sickness, and has, at the time, two hours of sick
leave and four hours of annual leave, the employee will be charged his/her
six hours of leave time and will be placed in leave without pay status for the
remaining two hours of the absence. If such absences are not authorized
by the employee's supervisor, the employee shall be placed in absence
without leave (AWOL) status, and disciplinary action shall be considered,
as appropriate. Every attempt shall be made to minimize absences without
leave of less than one work day for FLSA-exempt employees.
[WP:MISClOO03.92]
~ c- '?
COUNCIL AGENDA STATEMENT
REVIEWED BY:
Item 7
Meeting Date 1/19/93
Resolution / " f J,.5':pproving the Final Map for Chula Vista
Tract 91-07, Park Way Place Townhomes
Director of Public Works ~
City Manag~ (4/5ths Vote: Yes_NoXl
ITEM TITLE:
SUBMITTED BY:
On January 8, 1992 by PCS-91-07, the City Planning Commission approved the
Tentative Subdivision Map for Chula Vista 91-07, Park Way Place Townhomes. The
Final Map for said Tentative Map is now before Council for approval.
RECOMMENDATION: That Council adopt the resolution.
BOARDS/COMMISSIONS RECOMMENDATION: Not applicable.
DISCUSSION:
The project, generally located along the south side of Park Way between Third and
Fourth Avenues, consists of an 8-unit apartment complex which is being converted
into a one lot, 7-unit condominium project.
The final map for Chula Vista 91-07, Park Way Place Townhomes, has been reviewed
by the Public Works Department and found to be in substantial conformance with the
approved tentative map. The final map is now before Council for approval.
There were no public improvements required to be constructed for this subdivision
since the new condominiums are pre-existing apartment units and all public
improvements are in place. Condition of Approval No. 1 required the conversion of
two 2-bedroom units to a single 4-bedroom unit prior to final map approval. The
conversion has been completed.
All conditions of approval have been satisfied including notices of conversion,
pursuant to Map Act Section 66427.1 (a-dl. to current tenants of the apartments.
A plat is available for Council viewing.
FISCAL IMPACT: Not applicable.
GFJFil. No.: EY-367
WPC F:\home\engineer\agend.\parkway. fm
011393
?-/ / 7-7.
RESOLUTION NO.
/~,~f
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING THE FINAL MAP FOR CHULA
VISTA TRACT 91-07, PARK WAY PLACE TOWNHOMES
WHEREAS, on January 8, 1992 by PCS-91-07, the city
Planning commission approved the Tentative Subdivision Map for
Chula vista 91-07, Park Way Place Townhomes; and
WHEREAS, the project, generally located along the south
side of Park Way between Third and Fourth Avenues, consists of an
a-unit apartment complex which is being converted into a one lot,
7-unit condominium project; and
WHEREAS, the final map for Chula vista 91-07, Park Way
Place Townhomes, has been reviewed by the Public Works Department
and found to be in substantial conformance with the approved
tentative map and is now before Council for approval; and
WHEREAS, there were no public improvements required to be
constructed for this subdivision since the new condominiums are
pre-existing apartment units and all public improvements are in
place; and
WHEREAS, Condition of Approval No. 1 required the
conversion of two 2-bedroom units to a single 4-bedroom unit prior
to final map approval which has been completed; and
WHEREAS, all conditions of approval have been satisfied
including notices of conversion, pursuant to Map Act section
66427.1 (a-d), to current tenants of the apartments.
NOW, THEREFORE, BE IT RESOLVED that the city Council of
the City of Chula vista does hereby approve the Final Map for Chula
vista Tract 91-07, Park Way Place Townhomes.
John P. Lippitt, Director of
Public Works
F:\home\anomey\FMparkwy
, and she is
he Board of
BE IT FURTHER RESOLVED that the City Clerk
hereby directed to transmit said map to the Clerk f
Supervisors of the County of San Diego.
Presented by
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FILE NO. E .3
OWNBY: PAN~WAY PLAce roWNh'OA14"G
DATE: 12-23-92 C#V~A V/STA TRACT 11/- 07
7-
SUBMllllill BY:
Item !'
Meeting Date 1/19193
Resolution 14> , ~ " Approving an Agreement between the City of Chula
Vista and Nowell-Thompson ASLA and Associates Inc. for design development,
construction documents development, and related services for the Hilltop Park
Improvement Project (CIP-PR-175)
Director of Parks and Recreatio~
City Manage~ (4/5ths Vote: Yes_NoX)
COUNCIL AGENDA STATEMENT
ITEM 1TfLE:
REVIEWED BY:
In response to citizen concerns regarding the location of the restroom, playground and other issues, Council
approved the Hilltop Park Improvement project in the 1992-93 Capital Improvement Program to address
these concerns. A landscape consultant is required to prepare a design concept, construction document
drawings, and other services for the project.
RECOMMENDATION: That the City Council approve the resolution and authorize the Mayor to execute
the agreement with Nowell-Thompson ASLA and Associates Inc. for design development, preparation of
construction documents and other services for Hilltop Park Improvement project.
BOARDS/COMMISSION RECOMMENDATION: Not applicable.
DISCUSSION: The attached agreement for the landscape architectural services will include design
development, preparation of construction documents, and other related work. This phase of the project will
include meeting with the community to get their input on the location of a new restroom, play area and
additional lighting for the Park which will address community concerns. .
The total contract cost of $34,480 includes $12,520 for the design development, $18,960 for preparation of
construction documents, and $3,000 for construction inspection, as requested by the City, will be billed on
an hourly basis.
The procedures outlined in Council Policy #102-03 for the selection of the consultant were utilized by the
Department to select the consultant for this project. Request for proposals were sent to over forty consulting
firms. Thirteen replies were received. A City Selection Committee, comprised of representatives from the
City Manager's Office, Engineering Department, Planning Department and the Parks and Recreation
Department evaluated the proposals and fees, and invited five firms to make a presentation. The following
are the results of the Selection Committee's analysis:
FIRM PROPOSED FEE RANKIN
POINTS
Nowell-Thompson ASLA & Associates, Inc. $31,200 340
Van Dyke $31,500 313
KTU+A $59,000 308
Dike Partnership $21,480 282
Marum $58,000 244
[btopagLa13]
y,/
Page 2, Item r
Meeting Date 1/19193
At the conclusion, Nowell-Thompson ASLA and Associate, Inc. was deemed the most desirable because of
their experience working with the City and their approach to the Hilltop Park Improvement Project.
Final fee negotiation with the consultant was completed by the Parks and Recreation Director. The
Department recommends approval of the City's two-party agreement for consultant services. After the
construction documents are finalized, it is anticipated that a construction bid package will be ready for
advertisement in late April with construction commencing in June 1993.
In reviewing finance records, the City has a current outstanding purchase order with Nowell-Thompson for
$6,000 to do design work Parkway Community Center. In FY 91-92, no fees were paid to this consultant.
FISCAL IMPACf: Sufficient funds are available in the Hilltop Park Improvement CIP Project account to
pay for these design services.
Attachment: Agreement
[btopagLa131 8'''' ,)..
RESOLUTION NO.
//,1tf,
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING AN AGREEMENT BETWEEN THE
CITY OF CHULA VISTA AND NOWELL-THOMPSON ASLA
AND ASSOCIATES INC. FOR DESIGN DEVELOPMENT,
CONSTRUCTION DOCUMENTS DEVELOPMENT, AND
RELATED SERVICES FOR THE HILLTOP PARK
IMPROVEMENT PROJECT (CIP-PR-175), AND
AUTHORIZING THE MAYOR TO EXECUTE SAME
WHEREAS, in response to citizen concerns regarding the
location of the restroom, playground and other issues, Council
approved the Hilltop Park Improvement project in the 1992-93
Capital Improvement Program to address these concerns; and
WHEREAS, a landscape consultant is required to prepare a
design concept, construction documents drawings, and other services
for the project; and
WHEREAS, the agreement for landscape architectural
services will include design development, preparation of
construction documents, and other related work.
NOW, THEREFORE, BE IT RESOLVED that the City Council of
the City of Chula vista does hereby approve an Agreement between
the city of Chula vista and Nowell-Thompson ALSA and Associates
Inc. for design development, construction documents development,
and related services for the Hilltop Park Improvement Project, a
copy of which is on file on the office of the city Clerk.
BE IT FURTHER RESOLVED that the Mayor of the City of
Chula vista is hereby authorized and directed to xecute said
agreement for and on behalf of the City hula vi t .
If'
Presented by
Jess Valenzuela, Director of
Parks and Recreation
F:\homc\attomey\nowell
8',;:J /"1
Agreement between
City of Chula VISta
and
Nowell-Thompson ASLA and Associates, Inc.
for landscape architectural services
This agreement for landscape architectural services, dated January 19, 1993, 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, the City desires to have consultant services for the construction of new
facilities at Hilltop Park; and,
Whereas, Nowell-Thompson ASLA and Associates was selected by a selection
committee to be the best qualified; and,
Whereas, Consultant warrants and represents that they are experienced and staffed in
a manner such that they are and can prepare and deliver the services required of Consultant
to City within the time frames herein provided all in accordance with the terms and conditions
of this Agreement;
NOW, THEREFORE, BE IT RESOLVED that the City and Consultant do hereby
mutually agree as follows:
I. 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
N-THL TOP .AGT
January 8, 1993
Page 1
"..
B" ..!>
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.
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 categories, 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 Uability Insurance
coverage in the amount set forth in the attached Exhibit A, Paragraph 9.
Commercial General Uability 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 and Applicant as an Additional Insured, and which is primary to any policy which the City
may otherwise carry C'Primary Coverage"), and which treats the employees of the City and
Applicant in the same manner as members of the general public ("Cross-liability, Coverage").
Errors and Omissions insurance, in the amount set forth in Exhibit A, Paragraph 9,
unless Errors and Omissions coverage is included in the General Uability policy.
N-THLTOP.AGT
January 8, 1993
Page 2
H"~
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.
2. Policy Endorsements Required.
In order to demonstrate the Additional Insured Coverage, Primary Coverage
and Cross-liability Coverage required under Consultant's Commercial General Liability
Insurance Policy, Consultant shall deliver a policy endorsement to the City demonstrating
same, which shall be reviewed and approved by the Risk Manager.
H. Performance Bond.
In the event that Exhibit A, at Paragraph 9, indicates the need for Consultant to
provide a Performance Bond, which indication shall be made by checking the parenthetical
space adjacent to the term, "Performance Bond", then Consultant shall provide to the City a
performance bond by a surety and in a form satisfactory to the City Attorney in an amount
indicated in the space adjacent to the term, "Performance Bond", in said Paragraph 9, Exhibit
A.
II. 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 Consultant 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, and shall compensate
Consultant for out of pocket expenses as provided in Exhibit A, Paragraph 12.
N-THLTOP.AGT
January 8, 1993
Page 3
8"'/
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.
III. 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.
fII. Term
This Agreement shall terminate when the Parties have complied with all executory
provisions hereof.
V. Uquidated Damages
The provisions of this section apply if a Uquidated 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'. :ork assignment or Deliverable, the
consultant shall pay to the City, or have withheld from monies due, the sum of Uquidated
Damages Rate provided in Exhibit A, Paragraph 14 ("Uquidated 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.
VI. 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.
N-THLTOP.AGT
January 8, 1993
Page 4
~~ 8"
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 Consultan-:'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 regulatio'1s 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 C'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.
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.
N-THLTOP.AGT
January 8, 1993
Page 5
8',.9
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.
VII. Hold Harmless
-.
Consultant shall defend, indemnify and hold harmless the City, its elected alld
appointed officers and employees, from and against all claims for damages, liability, cost and
expense (including without limitation attorneys' fees) arising out of the conduct of the
Consultant, or any agent or employee, subcontractors, or others in connection with the
execution of the work covered by this Agreement, except only for those claims arising from
the sole negligence or sole willful 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. Consultants' indemnification of City shall not be limited by any prior or
subsequent declaration by the Consultant.
VIII. 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 materials prepared by Consultant shall, at the option of the City, becol\le the
property of the City, and Consultant shall be entitled to receive just and equitable
compensation for any work satisfactorily completed on such documents and other materials
up to the effective date of Notice of Termination, not to exceed the amounts payable
hereunder, and less .any damages caused City by Consultant's breach.
IX. Errors and Omissions
In the event that the City Administrator determines that the Consultants' negligence,
errors, or omissions in the performance of work under this Agreement has resulted in
expense to City greater than would have resulted if there were no such negligence, errors,
omissions, Consultant shall reimburse City for any additional expenses Incurred by the City.
Nothing herein is intended to limit City's rights under other provisions of this agreement.
N-THLTOP.AGT
January 8, 1993
Page 6
Y'" 11/
X. 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.
XI. 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, which City may not
unreasonably deny. 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".
XII. 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.
XIII. 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.
N-THLTOP.AGT
January 8, 1993
Page 7
8'~//
XIV. 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.
XY. 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.
XVI. 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.
XYII. Misoellaneous
A. Consultant not authorized to Represent City
Unless specifically authorized in writing by City, Consultant 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 oertified, with
N-THLTOP.AGT
January 8, 1993
Page 8
6'''' ) :J.
return receipt requested, at the addresses identified herein as the places of business for each
of the designated parties.
D. Entire Agreement
This Agreement, together with any other written document referred to or contemplated
herein, embody the entire Agreement and understanding between the parties relating to the
subject matter hereof. Neither this Agreement nor any provision hereof 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 LawNenue
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.
N-THLTOP.AGT
January 8, 1993
Page 9
8"1;1
Signature Page
to
Agreement between City of Chula Vista and Nowell-Thompson ASLA and Associates, Inc.
for landscape architectural services
IN WITNESS WHEREOF, City and Consultant have executed this Agreement thereby
indicating that they have read and understood same, and indicate their full and complete
consent to its terms:
Dated: January 19, 1993
City of Chula Vista
by:
Tim Nader, Mayor
Attest:
~
ey
Dated:
Nowell-Thompson ASLA and Associates, Inc.
By
Greg Nowell, Principal Landscape Architect
Exhibit List to Agreement
(X) Exhibit A.
() Exhibit B:
N-THLTOP.AGT
January 8, 1993
Page 10
6'--J,/
Exhibit A
to Agreement between
City of Chula Vista
and
Nowell-Thompson ASLA and Associates, Inc.
I. Effective Date of Agreement: January 19, 1993
II. City-Related Entity:
(X) City of Chula Vista, a municipal chartered corporation of the State of California
( ) 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")
III. Place of Business for City: City of Chula Vista, 276 Fourth Avenue, Chula Vista, CA
91910
IV. Consultant: Nowell-Thompson ASUl. and Associates, Inc.
V. Business Form of Consultant:
( ) Sole Proprietorship
( ) Partnership
(X) Corporation
VI. Place of Business, Telephone and Fax Number of Consultant: 9444 Balboa Avenue Suite
100, San Diego, California 92123, Voice Phone (619) 571-7855, Fax Phone (619) 571-7934
VII. General Duties - Prepare complete construction documents to solicit construction bids for:
A. Construction of new restroom building, play area, appurtenant walkways, grading
utilities
B. Addition of four (4) light standards for security lighting
C. Regrading of large slope adjacent to church parking lot
VIII. Scope of Work and Schedule:
A. Detailed Scope of Work:
ExhbtA-h.top
Page 1
y,/P
Preliminarv Desion
1. Redesign restroom building (masonry construction) as provided by City. Use
existing construction drawings as a basis for design and modify, as required, to
meet ADA requirements and current building codes. Includes two (2) workshop
meetings with staff, preliminary drawings and design development.
2. Limited geotechnical investigation and report for proposed restroom site.
3. Electrical design for addition of new security lighting (4 poles) and new restroom
building.
4. Field topography at 1 "=20' scale for area within limits of work with l' contours;
research utilities.
5. Landscape architectural design for location of new restroom and play area and
replanting of slopes, including design for two (2) park informational/monument
signs.
6. Attendance at three (3) community meetings. (Additional meetings will be charged
@ $400.00 per meeting.)
Construction Documents
1. Grading Plans at 1 "=20' scale (2 sheets) for area to be occupied by new restroom
and play area, and regrading of large slope adjacent to church parking lot. Will
show regrading of area where existing restroom is to be removed.
2. Construction/Staking Plans at 1"=20' scale (2 sheets), and Construction Details
for sitework items, including signs.
3. Irrigation Plans at 1 "=20' scale (2 sheets) showing new irrigation and tie-in to
existing systems.
4. Planting Plans at 1 "=20' scale (2 sheets) showing new planting and repair of
areas damaged during construction.
5. Electrical Plans including site electrical, building lighting and power, panel
schedules, single-line diagram, and fixture schedules
6. Preparation of specifications and bid documents for the above items of work,
utilizing the City of Chula Vista "boiler plate", and coordination of drawings and
specifications into a biddable package.
7. Complete architectural construction documents; mechanical, electrical, and
plumbing design and drawings; specifications; and fixture/hardware schedules.
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:
February 19, 1993 - Preliminary Design
Deliverable NO.2:
March 26, 1993 - Construction Documents
ExhblA-h.top
Page 2
8'....1(,
D. Date for completion of all Consultant services: April 1 , 1993
IX. Insurance Requirements:
(X)
(X)
(X)
()
(X)
()
Statutory Worker's Compensation Insurance
Employer's Liability Insurance coverage: $1,000,000.
Commercial General Liability Insurance: $1,000,000.
Errors and Omissions insurance: None Required (included in Commercial General
Liability coverage).
Errors and Omissions Insurance: $250,000 (not included in Commercial General
Liability coverage).
Performance Bond, $ (insert amount)
X. Materials Required to be Supplied by City to Consultant:
Not Applicable
XI. 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: , payable as follows:
Milestone or Event or Deliverable Amount or Percent of Fixed Fee
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.
Phase
1.
2.
3.
Fee for Said Phase
Preliminary Design
Construction Documents
Construction Observation as per
Request by City @ $60.00/hr.
$12,520
$18,960
$ 3,000
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
ExhbtA-h.top
Page 3
K'-) 7
Services, at the rates or amounts set forth in the Rate Schedule hereinbelow according to the
following terms and conditions:
D. () Not-to-Exceed Umitation 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").
E. ( ) Umitation without Further Authorization on Time and Materials Arrangement
At such time 80s Consultant shall have incurred time and materials equal to
("Authorization Umit"), Consultant shall not be entitled to any addi-
tional 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
~t.\)
\,\0'1: SC
SEE ATTACHED EXHIBIT A-1
() Hourly rates may increase by 6% for services rendered after [month], 19 ,if delay
in providing services is caused by City.
XII. 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:
(Xl 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:
XIII. Contract Administrators:
City: Jerry Foncerrada, Deputy Director/Parks, City Hall, 276 Fourth Avenue, Chula
Vista, CA 91910 (619) 691-5071
ExhblA-h.top Page 4
8'" / r
Consultant: Nowell-Thompson ASLA and Associates, Inc., 9444 Balboa Avenue, Suite
100, San Diego, CA 92123 (619) 571-7855
XIV. Liquidated Damages Rate: NOT APPLICABLE
XV. 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.3. Investments, interest in real property and sources of income
subject to the regulatory, permit or licensing authority of the department.
() 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. Investment~ 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.
() List "Consultant Associates" interests in real property within 2 radial miles of
Project Property, if any:
XVI. ( ) Consultant is Real Estate Broker and/or Salesman
ExhbtA-h.top
Page 5
~"11
COUNCIL AGENDA STATEMENT
ITEM TITLE:
Item '9
Meeting Date Itlt1i93
I~
Public Hearing: PCS-93-03, Consideration of the Tentative Map, Statement
of Overriding Considerations and Mitigation Monitoring Program, and
street names for Telegraph Canyon Estates - Baldwin Vista Associates
Resolution /" 9" P Approving the Tentative Subdivision Map for
Telegraph Canyon Estates, Chula Vista Tract 93-03, and making the
necessary findings, and readopting the Statement of Overriding
Considerations and the Mitigation Monitoring Program for Telegraph
Canyon Estates EIR 91-05
SUBMITTED BY: Director of Planning ~ ~~\..
REVIEWED BY: City Managerf
(4/5ths Vote: Yes_No.K)
The applicant proposes to subdivide 112 acres of presently unincorporated property located on
the north side of Otay Lakes Road directly east of Otay Lakes Lodge mobile home park and
directly south of EastLake Shores. The proposal calls for 345 single family lots, two recreation
areas, and four open space lots containing over 26 acres.
The Environmental Review Coordinator has reviewed the proposed tentative map and has
determined that it is in substantial conformance with the Telegraph Canyon Estates General
Development Plan and SPA Plan for which Final Supplemental Environmental Impact Report
91-03 was certified by the City Council, therefore, no new environmental review is necessary.
RECOMMENDATION: That Council adopt the resolution approving the tentative subdivision
map for Telegraph Canyon Estates, Chula Vista Tract 93-03, readopting the Statement of
Overriding Considerations and the Mitigation Monitoring Program for Telegraph Canyon
Estates EIR 91-05, and approving the street names submitted for the project.
BOARDS/COMMISSIONS RECOMMENDATION: On December 16, 1992, the Planning
Commission readopted the Statement of Overriding Considerations and the Mitigation
Monitoring Program associated with the Final Environmental Impact Report for Telegraph
Canyon Estates (EIR 91-05) and recommended approval of Chula Vista Tract 93-03 Telegraph
Canyon Estates subject to the conditions enumerated in the attached D~aft Resolution of
ApprovaL The Commission further recommended approval of the ~"ll$flof proposed
street names for the project.
NOT SCANNED
9-/
Page 2, Item &j
Meeting Date 1/~
J'j
DISCUSSION:
Existing Site Conditions
The site consists of 112 vacant, unincorporated acres bounded by mobile homes, single family
dwellings and an Otay Water District water tank site to the west, single family dwellings to the
north, proposed State Route 125 to the east, and future residential in Otay Ranch to the south.
Primary access to the property is provided by Otay Lakes Road. Two additional access points
are provided by.streets which stub into the northwest corner of the property: Gotham Street
provides access from Southwestern College Estates to the west, and Creekwood Drive provides
access from EastLake Shores to the north.
The property generally slopes from north to south, and consists of two gently sloping knolls
separated by a natural swale in the central portion of the site. Three major easements extend
across the property. A 20 ft. wide water easement extends southerly from the water tank along
the westerly boundary. A 120 ft. wide County Water Authority easement extends diagonally
from the northwest through the central portion of the site, and a 120 ft. wide SDG&E easement
extends north to south near the easterly boundary. The Telegraph Canyon drainage channel
adjoins the southerly boundary of the site.
The Chula Vista General Plan designates the property for Low-Medium Residential (3-6
dwelling units per gross acre).
Development Proposal
The proposal is for a community containing 345 single family lots and about 26 acres of open
space in conformance with the Telegraph Canyon Estates GDP and SPA Plan and approved by
the City Council on August 25, 1992.
Three residential lot sizes are proposed. The largest lots, representing approximately 50% of
the residential land area and conforming to the City's basic R-I-7Iot standards, are located in
the northerly portion of the site adjacent to the existing single family homes in EastLake Shores
and College Estates. Smaller lots are located in the southwestern portion of the property
adjacent to the mobilehome park. An intermediate size lot is provided in the eastern portion
of the site adjacent to proposed State Route 125 and the Otay Lakes Road corridor. The
following table summarizes the lot sizes for the project.
AREA # OF LOTS A VG. SIZE MIN. SIZE
North 155 8,350 sq. ft. 60 x 100
Central 81 6,790 sq. ft. 50 x 100
Southwest 109 5,685 sq. ft. 45 x 100
9 - ,)..
Page 3, Item-2-
Meeting Date 1/W93
/1
The EastLake I P-C District Regulations and Residential Design Guidelines will regulate the
development of the lots and the design of the dwellings.
Primary access to the project will be provided by way of a signalized intersection with Otay
Lakes Road. Additional access will be provided at the northwest comer of the property via
Gotham Street and Creekwood Way which presently terminate at the westerly and northerly
property lines respectively.
The interior streets follow the basic form of the property in a curvilinear pattern. All of the
streets have been designed to meet City public street standards. The main north-south spine
street (Street A) provides additional width for planted parkways (rather than standard
monolithic curb and sidewalk) and an 8 ft. rather than 5 ft. sidewalk along the westerly side
to serve as a public pedestrian trail from Southwestern College Estates/EastLake to Otay Lakes
Road. Additional sections of 8 ft. sidewalk are required along portions of Gotham Street and
Streets D and F in order to complete the trail connection.
In addition to the sidewalk/pedestrian trail proposed through the interior of the project, a 5
ft. wide decomposed granite trail paralleling the sidewalk will be established along the north
side of Otay Lakes Road. Post and rail fencing will separate the trail from the adjacent flood
control channel.
Grading and Open Space
Grading follows the dominant natural land forms with curvilinear streets and terraced lots.
Interior slopes vary from 2:1 to 4:1 and are generally 30 ft. or less in height. Two story homes
will largely obscure these slopes from public view.
A significant scenic corridor, which varies in depth from 200 ft. to 660 ft. at the central swale,
is retained along Otay Lakes Road. Grading is minimized in the corridor, and that which does
occur is contoured with slope ratios which vary from 2:1 to 8:1. The units along the scenic
corridor will incorporate one and two story elements, variable setbacks and varied and detailed
architectural treatment in order to enhance the view from Otay Lakes Road.
In addition to the scenic corridor, open space areas will be maintained along most of the
westerly and all of the easterly boundaries of the property and along the County Water
Authority easement which runs diagonally through the site. Over nine acres along the easterly
boundary of the property will be reserved to accommodate proposed State Route 125.
Project Interface/Separation
The project will be separated from adjoining residential areas by a combination of grade
differences, landscaped open spaces and solid walls. Grading along the northerly boundary
will lower the property an average of 20 ft. below the existing homes in EastLake Shores,
thereby preserving views for the majority of those homes (the slope height varies from 45 ft.
on the eastern edge to 6 ft. adjacent to the necessary street connection at the westerly edge).
9'3
Page 4, ItemL
Meeting Date 1/Kf/93
/1
The natural elevation of the property is higher than the homes to the west. Grading will retain
a height differential of 8-12 ft. above the homes in Southwestern College Estates, and 10-30 ft.
above the mobile homes in atay Lakes Lodge. These height differentials, along with permanent
landscape buffers, the 20 ft. wide atay Water District easement, and solid walls, will provide
the separation along the westerly boundary of the project.
Affordable Housing
Generally, projects consisting entirely of single family detached housing are not as conducive
to the provision of housing for low and moderate income households as are projects containing
a mix of residential densities. The proposal for Telegraph Canyon Estates is to meet the
affordable housing requirement off-site through a land set-aside, an off-site project or an in-lieu
contribution. This is consistent with the City's recently adopted Housing Element, and the
project proponent is currently working with the City Housing Coordinator to determine which
alternative is most appropriate in this case. The SPA Plan was approved on the basis that an
agreement would be reached prior to approval of a final map.
General Plan and SPA Plan Consistency
The gross project density is 3.1 dwelling units per acre. The net residential density, which
includes the residential lots, private recreation areas and interior streets and open space, is 4.3
dwelling units per acre. This figure is below the 4.5 du/ac mid-point for the Low-Medium
Residential (3-6 du/ac) designation. The approved SPA Plan allowed for a maximum of 350
lots whereas the tentative map reflects 345 lots. The tentative map, as conditioned, is consistent
with the General Plan and approved SPA Plan.
Community Purpose Facilities
The project is required to provide 1.5 acres to be reserved for Community Purpose Facilities
(CPF) based on the Planned Community Zone requirements for 1.39 acres of CPF per 1,000
population. The SPA Plan originally showed two proposed CPF sites at the northwest corner
of the property. The applicant has opted to provide for an off-site location on the atay Ranch.
Condition No. 68 of the draft Resolution requires that the applicant either provide a site
acceptable to the City or submit a revised tentative map which provides a site within the
subdivision.
Eight residential lots have been substituted for the former CPF sites. The revised SPA Plan
map reflects this change as does the tentative map.
Recreation Areas
In accordance with the SPA Plan, two recreation areas are pro.l?osed for the central and
northeast portions of the property. Since the project will now be served by public streets rather
than a gate-guarded private street system, the pool, spa and cabana originally planned for the
central recreation area have been deleted in favor of a tot lot, basketball court and turfed area.
9.;'/
Page 5, Item "
Meeting Date 1/11/93
Jf
This change was necessitated by the lack of control over such facilities a project with public
streets would afford and was anticipated at the time the SPA Plan was approved. The court
facilities previously planned for the northeast recreation area will remain. The draft Resolution
provides that both recreation areas, as well as a portion of the trail component, be included
within an open space maintenance district. Smaller neighborhood-based recreation areas are
expected to be a common component within the villages of Otay Ranch, and staff is in the
process of developing for Council consideration a policy for accepting these within open space
maintenance districts.
Circulation
The original project proposal indicated a private interior street system with primary access to
a signalized intersection at Otay Lakes Road. Secondary access was to be provided by Gotham
Street and Creekwood Way, both of which are public streets that terminate near the northwest
corner of the property.
At their hearings on the project GDP and SPA Plan, the Planning Commission and the City
Council required that the streets within the project be public streets but designed to discourage
through-traffic. This has been accomplished by eliminating the northerly section of the main
north-south spine street and re-routing through-traffic to a more circuitous route involving
three 900 turns. In addition, the Council directed staff to study whether Gotham Street and
Creekwood Way should be extended into the property as planned or whether terminating one
or both of these streets at the project boundary would be appropriate.
The Department of Public Works has considered the matter and, in its attached report,
concludes that from a traffic operational perspective, traffic generated by the project can be
adequately accommodated without the Gotham Street and Creekwood Way links. They further
conclude, however, that the retention of these links is preferred from aspects related to travel
time, energy consumption, air pollution and emergency service response time.
The entire "superblock" bounded by East H Street to the north, future SR 125 to the east, Otay
Lakes Road to the south and Rutgers Avenue to the west was further examined to determine
whether or not Gotham Street and Creekwood Way should be extended into the subject
property. This examination, which includes neighboring areas, revealed the following:
1.
This block contains a portion of Southwestern College Estates, all of EastLake Shores and
Telegraph Canyon Estates.
2.
The College Estates portion is essentially a 176 lot cul-de-sac since its only access to a
Circulation Element street is via Rutgers Avenue. The Gotham Street connection would
provide this neighborhood with secondary access.
3.
The EastLake portion has access to both East H Street and to Otay Lakes Road via
EastLake Parkway, thus the Creekwood Way connection is less important from this
perspective.
9-/
Page 6, Item '1
Meeting Date 1/1tJ93
19
4. Without secondary access to Gotham Street and/or Creekwood Way, the project
circulation system would function as a 345 lot cul-de-sac with a single access point at
the signalized intersection with Otay Lakes Road.
5. The nearest fire station is located on Otay Lakes Road, one block north of Gotham Street.
The Gotham Street connection would provide for faster emergency access to the north
end of the project.
6. The only traffic "attractor" within the superblock is the EastLake Elementary School,
which students from TCE would likely attend. The Creekwood Way connection would
be advantageous to parents of children attending this school.
7. Nearby key attractors include EastLake High School to the southeast, Southwestern
College to the west and the Bonita Point Plaza commercial center at Otay Lakes Road
and East H Street to the west.
8. To cul-de-sac Gotham Street and Creekwood Way would result in the total separation
of the three neighborhoods comprising the superblock.
9. To extend these two streets into the project would provide connections between the three
neighborhoods, resulting in an integration rather than isolation of the three
neighborhoods.
10. Should an emergency situation or natural disaster occur which results in the obstruction
of either Gotham Street in Southwestern College Estates or the main spine street in
Telegraph Canyon Estates, access to these neighborhoods would be blocked without at
least one secondary ingress/egress point.
11. Both Gotham Street and Creekwood Way were specifically planned to be extended into
the Telegraph Canyon Estates property to complete the circulation system in the area.
Based on the traffic analysis and the discussion above, the staff and the Planning Commission
recommend that both Gotham Street and Creekwood Way be extended into the project. In
addition, both the Police and Fire Departments concur that, in the event of an emergency, an
additional access to the property and Southwestern College Estates should be provided. Should
it be determined that one or both of these streets must be closed, staff recommends that
emergency vehicular access gates and pedestrian walkway access be provided at both streets.
Project Phasing
The SPA Plan indicates that development will occur in one phase. However, in response to
today's uncertain market conditions, the applicant proposes to divide each of the three
lot! product type areas into phases. The draft Resolution requires that a phasing plan consistent
with the Public Facilities Financing Plan be approved by staff prior to the approval of the first
final map.
~-(,
Page 7, Item~
Meeting Date 1/W93
!~
Street Names
The applicant has submitted a list of proposed street names for the project. Staff of affected
departments have reviewed this list and deleted those previously used or otherwise
inappropriate. The list of remaining street names constitutes E.N;ibit D of the attached draft
resolution for consideration by the City Council. 01's.
C4An.~
FISCAL IMPACT: The Public Facilities Financing Plan estimates the projec(~d have a net
positive fiscal impact to the City of $454,718 over a fifteen year period.
WPC F:\home\planning\434.92
9-7 /'1-8
RESOLUTION NO. /6 9" tJ
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING THE TENTATIVE SUBDIVI-
SION MAP FOR TELEGRAPH CANYON ESTATES,
CHULA VISTA TRACT 93-03; AND MAKING THE
NECESSARY FINDINGS; READOPTING THE
STATEMENT OF OVERRIDING CONSIDERATIONS AND
THE MITIGATION MONITORING PROGRAM FOR EIR
91-05
WHEREAS, the property which is the subject matter of this resolution is identified and
described on Chula Vista Tract 93-03, and is commonly known as Telegraph Canyon Estates
("Property"); and,
WHEREAS, the Baldwin Vista Associates, Limited, A California Partnership (Developer)
filed a duly verified application for the subdivision of the Property in the form of the tentative
subdivision map known as Telegraph Canyon Estates, Chula Vista Tract 93-03, with the Planning
Department of the City of Chula Vista on September 30, 1992 ("Project"); and,
WHEREAS, said application requested the approval for the subdivision of approximately
111.8 acres located on the north side of Otay Lakes Road directly east of Otay Lakes Lodge
mobile home park and directly south of Eastlake Shores, east of the easterly terminus of Gotham
Street, into 345 residential lots, open space areas and one recreation lot; and,
WHEREAS, the development of the Property has been the subject matter of a General
Development Plan ("GDP") and a Sectional Planning Area Plan ("SPA Plan") previously
approved by the City Council on August 25, 1992 by Resolution No. 16768 wherein the City
Council, in the environmental evaluation of said GDP and SPA Plan, relied in part on the
Telegraph Canyon Estates General Development Plan and SPA Plan Environmental Impact
Report No. 91-03, SCH No. 91071033 ("Program EIR 91-05"), a program environmental impact
report as same is defined in CEQA Guideline Section 15168; and,
WHEREAS, this Project is a subsequent activity in the program of development
environmentally evaluated under Program EIR 91-05 that is in substantial conformance in all
relevant respects, including lot size, lot numbers, lot configurations, transportation corridors, etc.,
to the project descriptions in said former environmental evaluations; and,
WHEREAS, the City Environmental Review Coordinator has reviewed the proposed
Tentative Map and determined that is in substantial conformance with the GDP and SPA Plan,
therefore no new environmental documents are necessary;
WPC F:'I1ome'P1anning\345.92 (Rev. January 14. 1993)
9-9
Resolution No.
Page 2
WHEREAS, the Planning Commission held an advertised public hearing on said project
on December 16, 1992 and voted to recommend that the City Council approve the Tentative Map
in accordance with the findings and conditions listed below and readopted the Statement of
Overriding Considerations and the Mitigation Monitoring Program; and,
WHEREAS, the City Council set the time and place for a public hearing on said tentative
subdivision map application and notice of said hearing, together with its purpose, was given by
its publication in a newspaper of general circulation in the City and its mailing to property
owners within 1,000 feet of the exterior boundaries of the property at least ten days prior to the
hearing; and,
WHEREAS, the public hearing was held at the time and place as advertised, namely 6:00
p.m., January 12, 1993, in the Council Chambers, 276 Fourth Avenue, before the City Council
and said public hearing was thereafter closed.
NOW THEREFORE, THE CITY COUNCIL finds, determines and resolves as follows:
Section I. CEQA Finding re Previously Examined Effects.
The City Council hereby finds that the Project, as a later activity to that evaluated in the
Program EIR 91-05, would have no new effects that were not examined in the preceding Program
EIR 91-05 (Guidelines Section ,15168 (c)(2); and,
Section II. CEQA Finding re Project within Scope of Prior Program EIR.
The City Council hereby finds that (1) there were no changes in the project from the
Program EIR which would require revisions of said reports; (2) no substantial changes have
occurred with respect to the circumstances under which the project is undertaken since the
previous report; (3) and no new information of substantial importance to the project has become
available since the issuance and approval of the prior report; and that therefore, no new effects
could occur or no new mitigation measures will be required in addition to those already in
existence and currently made a condition for Project implementation (Guidelines Section 15162).
Therefore, the City Council approves the Project as an activity that is within the scope of the
project covered by the Program EIR, and therefore, no new environmental documents are
required (Guidelines 15 1 68(c)(2)).
Section Ill. Incorporation of All Feasible Mitigation Measures and Alternatives.
The City does hereby adopt and incorporate herein as conditions for all approvals herein
granted all mitigation measures and alternatives, if any, which it has determined, by the findings
WPC F:\b.ome\planning\34S.92 (Rev. January 14, 1993)
9-1 (7
Resolution No.
Page 3
made in the GDP and SPA Resolution, to be feasible in the approval of the General Development
Plan and the SPA Plan, respectively.
Section IV. Notice with Later Activities.
The City Council does hereby give notice, to the extent required by law, that this Project
is an activity within the scope of the program approved earlier in the GDP and SPA Plan
Resolution and the Program EIR adequately describes the activity for the purposes of CEQA
(Guideline 15168 (e)).
Section V. General Plan Findings--Conformance to the General Plan.
Pursuant to Government Code Section 66473.5, in the Subdivision Map Act, finds that the
tentative subdivision map as conditioned herein for Telegraph Canyon Estates, Chula Vista Tract
No. 93-03, is in conformance with all the various elements of the City's General Plan, the
Telegraph Canyon Estates General Development Plan and Sectional Planning Area Plan based
on the following:
A. Land Use - The project is a residential community which provides three lot sizes
ranging between 5,685 square feet and 8,350 square feet. The project density is
consistent with midpoint of the Low Medium density General Plan range and the
approved GDP and SPA Plan. The project is also consistent with General Plan and
SPA Plan policies related to grading and landforms.
B. Circulation - All of the on-site and off-site public streets required to serve the
subdivision consist of Circulation Element roads and local streets in locations
required by said Element. The developer shall construct those facilities in
accordance with City standards or pay in-lieu fees in accordance with the Telegraph
Canyon Estates Public Facilities Financing Plan.
C. Housing - The developer is required to enter into an agreement with the City to
provide and implement a low and moderate income program off-site of the project
or an in-lieu contribution prior to the approval of the Final Map.
D. Conservation and Open Space - The project provides approximately 26 acres of
open space, 23% of the total 111.8 acres. Grading has been limited on steep
hillsides and grading plan approval will require the revegetation of slopes in natural
vegetation.
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E. Parks and Recreation - The project will provide 0.7 and 1.5 acre private project
recreation areas and the payment of full PAD fees. In addition, a public trail
system will be provided within the project.
F. Seismic Safety - No seismic faults have been identified in the vicinity of the
property.
G. Public Safety - All public and private facilities will be reachable within the
threshold response times for fire and police services.
H. Public Facilities - The developer will provide all on-site and off-site streets, sewers
and water facilities necessary to serve this project.
I. Noise - The project will include noise attenuation walls as required by an acoustic
study dated June 28, 1991 prepared for the project. In addition, all units are
required to meet the standards of the UBC with regard to acceptable interior noise
levels.
J. Scenic Highway - The roadway design provides wide landscaped buffers along
Telegraph Canyon Road, a scenic highway. The development edge will be required
to be enhanced consistent with scenic highway policy.
K. Bicycle Routes - Bicycle paths are provided within the project and Otay Lakes
Road has been designed to provide bicycle lanes.
L. Public Buildings - While no public building sites are required of the subdivision,
the project is subject to RCT and DIF fees.
Section VI. Subdivision Map Act Findings.
A. Balance of Housing Needs and Public Service Needs.
Pursuant to Section 66412.3 of the Subdivision Map Act, the Council certifies that
it has considered the effect of this approval on the housing needs of the region and has
balanced those needs against the public service needs of the residents of the City and the
available fiscal and environmental resources. The development will provide for a variety
of single family detached homes and will provide for low and moderate priced housing
off-site of the project consistent with regional goals.
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B. Opportunities for Natural Heating and Cooling Incorporated.
The configuration, orientation and topography of the site partially allows for the
optimum siting of lots for passive or natural heating and cooling opportunities as required
by Government Code Section 66473.1.
C. Finding re Suitability for Residential Development.
The site is physically suitable for residential development and the proposal
conforms to all standards established by the City for such projects.
Section VII. Conditional Approval of Tentative Subdivision Map.
A. Chula Vista Tract 93-03 Tentative Map is hereby approved, subject to the
following conditions, and on occurrence of the following conditions, the City will
approve and authorize the recording of the Final Map for the territory covered by
said Tentative Map (unless otherwise specified, all Conditions and Code Require-
ments shall be fully completed to the City's satisfaction for each unit or phase prior
to the approval of the corresponding Final Map. Unless otherwise specified,
"dedicate" means grant the appropriate easement, rather than fee title):
B. The developer shall:
GenerallPrelirninarv
1. Install public facilities in accordance with the Public Facilities Financing Plan (PFFP) as
amended or as required by the City Engineer to meet threshold standards adopted by the
City of Chula Vista. In addition, the sequence in which improvements are constructed
shall correspond to any future East Chula Vista Transportation Phasing Plan as may be
amended in accordance with the final HNTB SR-125 Financing Study adopted by the
City. The City Engineer and Planning Director may, at their discretion, modify the
sequence of improvement construction should conditions change to warrant such a
revision. [Engineering]
2. Prepare, submit and obtain approval of a Development Phasing Plan by the City Engineer
and the Director of Planning prior to the approval of any Final Map, said Phasing Plan
to be consistent with the PFFP. Improvements, facilities and dedications to be provided
with each phase or unit of development shall be as determined by the City Engineer and
the Director of Planning. The City reserves the right to condition approval of each final
map with the requirement to provide said improvement facilities and/or dedications. The
City Engineer and Planning Director may, at their discretion, modify the sequence of
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improvement construction should conditions change to warrant such a revision.
[Engineering, Planning]
3. The mitigation measures required before Final Map approval by the Final Environmental
Impact Report for Telegraph Canyon Estates (FEIR) 91-05 are hereby incorporated into
this Resolution by reference. Any such measures not satisfied by a specific condition of
this Resolution or by the project design shall be implemented to the satisfaction of the
Director of Planning. Mitigation measures shall be monitored via the Mitigation
Monitoring Program approved in conjunction with the FEIR. Modification of the
sequence of mitigation shall be at the discretion of the Director of Planning should
changes in circumstances warrant such revision. [Planning]
4. Unless otherwise conditioned, comply with, remain in compliance with, and implement,
the terms, conditions and provisions of the Telegraph Canyon Estates General
Development Plan, Sectional Planning Area Plan, Master Plan of Reclaimed Water, Water
Conservation Plan, Air Quality Improvement Plan and the Public Facilities Financing Plan
approved by the Council ("Plans") as are applicable to the property which is the subject
matter of this Tentative Map, prior to approval of any Final Map, or shall have entered
into an agreement with the City, providing the City with such security (including
recordation of covenants running with the land) and implementation procedures as the City
may require, assuring that, after approval of all Final Maps, the developer shall continue
to comply with, remain in compliance with, and implement such Plans. [Planning,
Engineering]
Streets. Rights-of- W av and Improvements
5. Provide security in accordance with Chapter 18.16 of the Municipal Code, dedicate and
construct full street improvements for all public streets shown on the Tentative Map within
the subdivision boundary as required for each unit or phase. Said improvements shall
include, but not be limited to, asphalt concrete pavement, base, concrete curb, gutter and
sidewalk, sewer, reclaimed water and water utilities, drainage facilities, street lights, signs,
and fire hydrants. All streets shall conform to the City's Street Design Standards Policy
adopted by City Council Resolution #15349 unless otherwise conditioned or approved by
the City Engineer. [Engineering]
6. Dedicate for public use all the streets shown on the tentative map within the subdivision
boundary for each final map as determined by the City Engineer. [Engineering]
7. Provide design details for the bridge like structure at the project entry for review and
approval of the City Engineer and Director of Planning prior to the approval of the first
Final Map which creates individual residential lots. [Engineering, Planning]
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8. Include right-of-way for SR 125 in a lot granted in fee to the City for open space and
transportation purposes prior to the approval of the fIrst Final Map which creates
individual residential lots. Include said lot in an open space district until transferred to
the State of California. [Engineering, Parks and Recreation]
9. Install a fully activated traffIc signal on Otay Lakes Road at the project entry. Install
conduit, pull boxes, and wiring to interconnect said traffic signal to traffIc signals along
Telegraph Canyon Road. No TraffIc Signal Fee credit will be given for said installation.
[Engineering]
10. Grant to the City an easement or easements for street tree planting and maintenance, and
landscape buffer areas along all public streets in the width required by the City's Street
Design Standards. [Engineering]
11. Grant a lO-foot wide utility easement within open space lots adjacent to street rights-of-
way. [Engineering]
12. Submit to and obtain approval by the City Engineer of striping plans for all collector
streets simultaneously with the associated improvement plans. [Engineering]
13. Design all vertical curves and intersection sight distances to conform to standards in the
CalTrans Highway Design Manual. [Engineering]
14. Install transit amenities on both sides of Otay Lakes Road at the project entry or
appropriate alternative location as approved by the City Engineer. Transit amenities
include but are not limited to benches and/or shelters and are subject to approval by the
City Engineer. Pay $5,000 cash deposit to the City prior to the approval of the fIrst Final
Map to fund transit amenities when required. [Engineering]
15. Requested Waiver 1 is approved subject to compliance with parking requirements in Street
Design Standard Policy, item #20, page 12. Requested waivers 2 and 4 as listed on the
tentative map are hereby approved subject to submission of a letter from a registered civil
engineer indicating that the results of the waivers requested conform with common
engineering practice and standards in consideration of public safety. Requested Waiver
3 is denied. [Engineering]
16. Vacate the Otay Water District access easement across Lots 6-12. [Engineering]
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Sewers
17. Provide access to all sanitary sewer manholes via an improved access road with a
minimum width of 12 feet, designed for an H-20 wheel load, or other loading, subject to
the approval of the City Engineer. {Engineering]
Grading and Drainage
18. Provide graded access and 12 ft. wide easements to all public storm drain structures,
including inlet and outlet structures. Construct improved access across side yards to
drainage structures except as otherwise directed by the City Engineer. {Engineering]
19. Submit a list of proposed lots indicating whether the structure will be located on fill, cut,
or a transition between the two situations prior to approval of each Final Map for single
family residential use. {Engineering]
20. Provide a letter of permission for grading from SDG&E prior to any grading within or
adjacent to the 120 ft. SDG&E easement or which would affect access thereto and
permission to locate a public storm drain within said easement. {Engineering]
21. Construct retention/detention facilities on site or as approved by the City Engineer to
reduce the quantity of runoff to an amount equal to or less than present flows for the 100
year frequency storm. Provide design and calculations for said facilities to the City
Engineer for approval prior to issuance of a grading permit. {Engineering]
22. Prepare and obtain approval by the City Engineer and the Director of Planning an erosion
and sedimentation control plan and landscape/irrigation plans as part of the grading plans.
{Engineering, Planning]
23. Design the storm drains and other drainage facilities to include Best Management Practices
to minimize non-point source pollution, satisfactory to the City Engineer. {Engineering]
24. Provide a letter of permission from the CW A for grading and construction of street
improvements within the 120 ft. wide easement, prior to any grading or construction
within or adjacent to the County Water Authority (CW A) easement. {Engineering]
Water
25. Present written verification to the City Engineer from Otay Water District that the
subdivision will be provided adequate water service and long term water storage facilities.
{Engineering]
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26. Provide to the City a letter from Otay Municipal Water District indicating that the
assessmentsfbonded indebtedness for all parcels dedicated to the City have been paid or
that no assessments exist on the parcel(s). [Engineering]
Reclaimed Water
27. Enter into an agreement with OWD to commit to use of reclaimed water at the earliest
possible date. Make all reclaimed water use conform to the applicable regulations of
Chula Vista, Regional Water Quality Control Board and the State Department of Health.
[Engineering, Planning]
28. Determine the amount of and deposit all costs potentially incurred from retrofitting the
reclaimed water system in all areas to be ultimately publicly maintained, when reclaimed
water becomes available, the amount of said deposit subject to approval of the City
Engineer. [Engineering]
29. Install reclaimed water lines as outlined in the Public Facilities Financing Plan when the
associated road improvements are constructed or when the City Engineer determines that
the facilities are necessary to provide a link to a live system. [Engineering]
Agreements
Enter into a Supplemental Subdivision Agreement(s) with the City to:
30. Authorize the City to withhold building permits for any units in the subject subdivision
if anyone of the following occur:
a. Regional development threshold limits set by the East Chula Vista Transportation
Phasing Plan have been reached.
b. Traffic volumes, levels of service, public utilities and/or services exceed the
adopted City threshold standards.
31. Comply with the requirements of the revised Eastern Chula Vista Transportation Phasing
Plan and Transportation Development Impact Fee Program or as said documents may be
revised based on the conclusions of the H.N.T.B. State Route 125 financing study.
[Engineering]
32. Not protest formation of and inclusion in a Maintenance District or Zone for the
maintenance of landscaped medians and scenic corridors along streets within and adjacent
WPC F:'home\planning\34S.92 (Rev. January 14, 1993)
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to the subject property or an Assessment District or Zone for the maintenance of
Telegraph Canyon Hood Control Channel. [Engineering]
33. Not protest formation of and inclusion in a Community Facility District to finance
construction of SR 125. [Engineering]
34. Defend, indemnify and hold harmless the City and its agents, officers and employees,
from any claim, action or proceeding against the City, or its agents, officers or employees
to attack, set aside, void or annul any approval by the City, including approval by its
Planning Commission, City Council or any approval by its agents, officers, or employees
with regard to this subdivision provided the City promptly notifies the subdivider of any
claim, action or proceeding and on the further condition that the City fully cooperates in
the defense. [Engineering]
35. Hold the City harmless from any liability for erosion, siltation or increase flow of drainage
resulting from this project. [Engineering]
36. Insure that all franchised cable television companies ("Cable Company") are permitted
equal opportunity to place conduit and provide cable television service to each lot within
the subdivision. Restrict access to the conduit to only those franchised cable television
companies who are, and remain in compliance with, all of the terms and conditions of the
franchise and which are in further compliance with all other rules, regulations, ordinances
and procedures regulating and affecting the operation of cable television companies as
same may have been, or may from time to time be issued by the City of Chula Vista.
[Engineering]
37. Provide verification that applicant has entered into agreements with the Chula Vista
Elementary School District and the Sweetwater Union High School District to provide
school facilities for the project residents, subject to the approval of the Director of
Planning. [Planning]
Open Space
38. Grant open space lots "A" and "D", and any portion of Lots "B" and "C" not dedicated
in fee to the County Water Authority, to the City in fee on the first Final Map which
creates individual residential lots and execute and record a deed for each lot.
[Engineering, Parks and Recreation]
39. Submit a list of open space items to be maintained and a rough estimate of maintenance
costs to allow City staff to determine a preliminary cost and spread for the open space
district. [Engineering]
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40. Request that the City form an Open Space District to maintain public Open Space lots "A"
and "D", and any portion of Lots "B" and "c" not dedicated in fee to the County Water
Authority, and submit to the City the associated diagram, cost estimate, description of
work and a deposit of $8,000 for processing the formation of the district. [Engineering,
Parks and Recreation)
41. Submit comprehensive detailed landscape and irrigation plans and water management
guidelines for all landscape irrigation in accordance with the Chula Vista Landscape
Manual. The landscape format within the project shall be in substantial conformance with
Section 3.2 (Landscape Concept) of the Telegraph Canyon Estates SPA plan and shall be
subject to the approval of the City Landscape Architect and the Director of Parks and
Recreation. [Planning, Parks and Recreation)
42. Obtain approval of all plant materials, sizes and locations, and provisions for irrigation of
open space maintenance areas from the Director of Parks and Recreation. [Parks and
Recreation)
43. Grade a level, clear area at least three feet wide, along the length of any wall abutting an
open space district lot, as measured from face-of-wall to beginning of slope, said area as
approved by the City Engineer and Director of Parks and Recreation. [Engineering, Parks
and Recreation)
44. Obtain approval by the Director of Parks and Recreation for the size and location of all
access points to open space maintenance areas. [Parks and Recreation)
45. Indicate on the grading plans that all walls which are to be maintained by an open space
maintenance district are constructed entirely within the district property. [Parks and
Recreation, Engineering)
46. Provide 3 ft. wide solid base on all walls fronting upon an open space district. [Parks and
Recreation)
47. Obtain approval of final recreation trail and fence design and location from the Director
of Parks and Recreation. [Parks and Recreation)
48. Locate a 5 ft. wide decomposed granite trail with a post and rail fence adjacent to the
existing sidewalk on the north side of Otay Lakes Road subject to review and approval
of the Director of Parks and Recreation. Locate said fence 2-feet away from the edge of
the trail. [Parks and Recreation)
wpc P,'l1ome'i>lanning'345.92 (Rev. January 14. 1993)
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49. Improve an 8-foot wide pedestrian easement along the entire westerly side of Street A,
along the north side of Lot "B" to the San Diego County Water Authority easement, north
along the east side of said easement to and through the trail path between lots 148 and
149, northerly along the west side of Street F to the southerly side of Gotham Street, and
west to the westerly property boundary subject to review and approval of the City
Engineer and the Directors of Parks and Recreation and Planning. [Engineering, Parks
and Recreation, Planning]
50. Submit annual building permit reports, traffic counts and fiscal impact analysis to the City
commencing with the construction of the project and scheduled to coincide with the
annual review of the Growth Management Oversight Committee. [Planning]
Miscellaneous
51. Tie the boundary of the subdivision to the California System - Zone VI (1983).
[Engineering]
52. Submit copies of Final Maps in a digital format such as (DXF) graphic file prior to
approval of each Final Map for any unit. Provide computer aided Design (CAD) copy of
the Final Map based on accurate coordinate geometry calculations and submit the
information in duplicate on 5-1/2 HD floppy disk prior to the approval of each Final Map.
[Engineering]
53. Mitigate noise impacts on the residences along SR 125 by the placement of solid walls
on the building pads at the top of the slopes adjacent to the roadway. The walls shall be
constructed in conformance with the design guidelines set forth in the SPA Plan for
Telegraph Canyon Estates. The end of each noise wall shall wrap around the building pad
enough to block the line of sight from all points in the exterior living space to any portion
of the impacting roadway. Indicate on the grading plans the location of said walls. The
design and placement are subject to the approval of the City Engineer and the Director
of Planning. [Engineering, Planning]
54. Construct a block wall between the retaining walls indicated on the Tentative Map along
the south side of Gotham Street adjacent to the Otay Water District property. Said wall
shall not be lower than 5 feet in height along its entire length and shall be constructed
with decorative concrete blocks, subject to the approval of the Director of Planning.
[Planning]
55. Include the pedestrian path between Lots 148, 149 and 150 in Lot C. [Planning]
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Resolution No.
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56. Prepare Covenants, Conditions, and Restrictions (CC&R's) for the project, subject to the
approval of the Director of Planning, which provide that:
a. The parking of recreational vehicles, trailers or boats within the development shall
be prohibited.
b. Fencing on rear slopes shall be limited to coated chain link or wrought iron colored
green, black or earth tones.
[Planning]
57. Gain approval by the Directors of Planning and Parks and Recreation of the final
development plans of the recreation areas on Lots "A" and "B". [Planning, Parks and
Recreation]
58. Enhance the development edge along the Dtay Lakes Road scenic corridor, Le., varied
heights and setbacks, architectural treatment, and decorative landscaping and walls, subject
to approval by the Director of Planning. [Planning, Parks and Recreation]
59. Provide a letter verifying that a qualified paleontologist has been retained to implement
the mitigation measures relative to paleontological resources as outlined in the Mitigation
Monitoring Program prior to the issuance of a grading permit. [Planning]
60. Mitigate adverse impacts associated with geological hazards in compliance with the
mitigation monitoring program of the Final Environmental Impact Report for Telegraph
Canyon Estates GDP and SPA Plan (EIR 91-05). [Planning, Engineering]
61. Dedicate and record an open space easement on a minimum of 0.9 acres wetlands
associated with a larger wetlands area on the Dtay Ranch property in a location approved
by the Director of Planning. [Planning]
62. Enter into an Affordable Housing Agreement with the City in conformance with Condition
No.6 of the Telegraph Canyon Estates GDP and SPA Plan (Resolution No. 16768) prior
to the approval of any Final Map. [Community Development]
63. Use Street A as exclusive access to the property by construction vehicles. Gotham Street
and Creekwood Way shall remain closed until the northwesterly phase of the project is
constructed, subject to the approval of the City Engineer and the Director of Planning.
[Engineering, Planning]
64. Payoff all existing deficit accounts associated with the processing of this application to
the satisfaction of the Director of Planning. [Planning]
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Resolution No.
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65. Landscape the area between the retaining walls on the south side of Gotham Street along
the Otay Municipal Water District property and the sidewalk/trail, subject to the approval
of the Director of Planning. [Planning]
66. Prepare detailed plans for the development within and adjacent to the walkway between
lots 148, 149, and 150, said plans to include landscaping, fencing and house siting on
adjacent lots, subject to the approval of the Director of Planning and Parks and Recreation.
[Planning, Parks and Recreation]
67. Provide a planting area a minimum of 3 feet in width between property line fences and
retaining walls 3 feet in height or higher, subject to the approval of the Director of
Planning. [Planning]
Code Requirements
68. Cause the zoning of an off-site parcel(s) to be used exclusively for a Community Purpose
Facilities site(s), subject to the satisfaction and approval of the Director of Planning, prior
to the recordation of the fIrst Final Map for the project, or submit a Revised SPA Plan and
Tentative Map which provides for said site within the subdivision. [Planning, City
Attorney]
69. Comply with all applicable sections of the Chula Vista Municipal Code. Preparation of
the Final Map and all plans shall be in accordance with the provisions of the Subdivision
Map Act and the City of Chula Vista Subdivision Ordinance and Subdivision Manual.
[Engineering, Planning]
70. Underground all utilities within the subdivision in accordance with Municipal Code
requirements. [Engineering]
71. Pay the following fees in accordance with the City Code and Council Policy:
a. The Transportation and Public Facilities Development Impact Fees prior to the
issuance of any building permit.
b. Signal Participation Fees
c. All applicable sewer fees, including but not limited to sewer connection fees
d. Pay the Telegraph Canyon Sewer Basin fee.
WPC F:\home\planning'J45.92 (Rev. January 14, 1993)
9... .2.2.
Resolution No.
Page 15
e. Pay the Telegraph Canyon drainage fees in accordance with Ordinance 2384 prior
to final map approval.
Pay the amount of said fees in effect at the time of issuance of building permits.
[Engineering]
72. Make all proposed development consistent with the EastLake I SPA Planned Community
District Regulations, as amended in the Telegraph Canyon Estates SPA Plan, subject to
the approval of the Director Planning. [Planning]
73. Comply with Title 24 and any other energy conservation ordinances and policies in effect
at the time construction occurs on the property in conformance with this Tentative Map.
[Building and Housing, Planning]
Section VIII. Consequence of Failure of Conditions
If any of the foregoing conditions fail to occur, or if they are, by their terms, to be
implemented and maintained over time, or if any of such conditions fail to be so implemented
and maintained according to their terms, the City, following a public hearing by the City Council
at which the applicant or successor in interest is given notice and the opportunity to appear and
be heard with regard thereto, shall have the right to revoke or modify all approvals herein
granted, deny or further condition issuance of all future building permits, deny, revoke or further
condition all certificates of occupancy issued under the authority of approvals herein granted,
institute and prosecute litigation to compel their compliance with said conditions or seek damages
for their violation.
Section IX. CEQA Findings
A. Re-adootion of Findings.
The Council does hereby re-approve, accept as its own, and re-incorporate as if set
forth full herein, and make each and every one of the CEQA Findings attached hereto as
Exhibit A.
B. Certain Mitigation Measures Feasible and Re-adooted.
As more fully identified and set forth in the Program EIR and in the CEQA
Findings for this Project, the Council hereby finds, pursuant to Public Resources Code
Section 21081 and CEQA Guidelines Section 15091, that the mitigation measures
described in the above referenced document are feasible and will become binding upon
WPC F:\bome\planning\345.92 (Rev. January 14, 1993)
~".2J
Resolution No.
Page 16
the appropriate entity such as the Applicant, the City, or other special districts which has
to implement these specific mitigation measures.
C. Feasibilitv of Alternatives.
As is also noted in the environmental documents referenced in the immediately
preceding paragraph, six alternatives to the Project which were identified as potentially
feasible are hereby found not to be feasible. These alternatives are: no project, two
alternative designs and three alternative locations.
D. Adoption of Mitigation Monitoring Program.
As required by the Public Resources Code Section 21081.6, City Council hereby
re-adopts the Mitigation Monitoring and Reporting Program ("Program") set forth as
~.to this resolution and incorporated herein by reference as set forth in full. The
~"'tity Council finds that the Program is designed to ensure that during the project
C~> implementation and operation, the Applicants and other responsible parties implement the
~ ':a project components and comply with the feasible mitigation measures identified in the
+0 Findings and in the Program.
E. Statement of Overriding Considerations.
Even after the re-adoption of all feasible mitigation measures, certain significant
or potentially significant environmental affects caused by the project cumulatively will
remain. Therefore, the City Council of the City of Chula Vista re-issues, pursuant to
CEQA Guidelines Section 15093, a Statement of Overriding Considerations, as set forth
and attached hereto as Exhibit C, identifying the specific economic, social, and other
considerations that render the unavoidable significant adverse environmental effects still
significant but acceptable.
Section X. Notice of Determination.
City Council directs the Environmental Review Coordinator to post a Notice of
Determination and file the same with the County Clerk.
WPC F:'home\planning\345.92 (Rev. January 14, 1993)
9.,.2 '-/
Resolution No.
Page 17
Section XI. Adoption of Street Names.
City Council hereby accepts the recommendation of the Planning Commission and
approves and,ad()pts as the official street names for all streets within the subdivision, those set
forth in ~n attached hereto, pursuant to Chula Vista Municipal Code Section 12.44.010.
NOT SCANNED
Presented by
Robert A. Leiter
Director of Planning
WPC F:\home\planning\345.92 (Rev, January 14, 1993)
rnce M. Boogaard
City Attorney
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MEMORANDUM
November 19, 1992
File II EY-358
KY-158
FROM:
Bob Leiter, Planning Director
Clifford L. swans~pJ, Deputy Public Works Director/
ci ty Engineer fjf .
Harold Rosenberg, city Traffic Enginee~
Traffic Concerns for Telegraph Canyon Estates (council
Referral No. 2649)
TO:
VIA:
SUBJECT:
The Baldwin Company has submitted a development proposal for 112
acres of property located north of Otay Lakes Road between the Otay
Lakes Lodge Mobilhome Park and future SR-125. The proposal calls
for a maximum of 350 single family lots, two private recreation
areas, two community purpose facilities (CPF), and over 20 acres of
open space. Primary access to the property is provided from otay
Lakes Road at a new signalized intersection. Two additional access
points are proposed via Gotham Street to the College Estates to the
west and Creekwood Way to Eastlake Shores to the north.
Gotham Street is a 40 foot wide east/west Class III Collector with
one lane in each direction. Parking is allowed along both sides of
the street. The speed limit on Gotham street is posted at 25 miles
per hour. The street is designed for an average daily trip (ADT)
of 5,000 vehicles with driveway access to single family homes.
Presently Gotham Street carries 2,040 vehicles per day.
Creekwood way is also 40 foot wide east/west Class III Collector.
Parking is allowed along both sides of the street. The speed limit
on Creekwood Way is posted as 25 mph. The street is designed for
an ADT of 5,000 vehicles. The present ADT is less than 1,500
vehicles. When the two subdivisions were laid out, it was fully
anticipated that these streets would be utilized to access the
Telegraph Canyon Estates property and they were designed
accordingly.
At the Council meeting of August 25, 1992, Council members
expressed concerns regarding the extension of Gotham Street and
Creekwood Way that it may increase traffic on those residential
streets. Staff was directed to analyze the impact of disallowing
access to Gotham Street and Creekwood Way.
'1.... .2.1
Bob Leiter
-2-
December 2, 1992
If the access to Gotham street and Creekwood Way were disallowed,
emergency access would be restricted to only one access point,
thereby reducing response time to those Telegraph Canyon Estate
residents near the Gotham street neighborhood. .
From a traffic operational perspective, we have no objection to the
closing of the two northerly access points, since the main access
via Otay Lakes Road can handle all of the diverted traffic (3500
ADT) . However, a motorist travelling to the East1ake area or
College Estates area will have to travel a longer distance, thus
consuming more gas and producing more air pollution.
The traffic study for Telegraph Canyon Estates estimates
approximately 350 additional vehicles will use Creekwood Way and
another 350 will use Gotham street. Traffic volumes therefore will
increase to 1850 on Creekwood Way and 2390 on Gotham street these
volumes are below the City design standard level of Service "C"
volumes for residential collection streets.
Providing access via Gotham Street and Creekwood Way is preferred
because this circulation plan will reduce travel time, gas
consumption and air pollution, optimize emergency service response
time and does not violate the city's circulation standards for
neighborhood streets.
We also required Baldwin to redesign their proposed subdivision to
make the use of their streets, Gotham Street and Creekwood Way
undesirable as a shortcut. This redesign also serves to reduce the
use of Gotham and Creekwood way.
Attached for your information is a copy of the Council Referral.
ZAo:nm/rb
Attachment
(ZA03\TCESTATE.MEM)
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COUNCIL INFORMATION MEMO
January 19, 1993
Via:
The Honorable Mayor and City Council
John Goss, City Manager "
Bob Leiter, Director of Planning ~
To:
From:
Subject:
Agenda Item #9, PCS-93-03, Telegraph Canyon Estates, Condition #37
Based on negotiations between the applicant and the Chula Vista Elementary School District,
staff recommends that Condition #37, as revised below, be substituted for the condition in the
resolution. This wording is also recommended by the District.
37. Submit certifications signed by the Chula Vista Elementary School District
and the Sweetwater Union High School District indicating that the
developer and the District have entered into a binding irrevocable
agreement providing for full mitigation (as defined in the Special Tax
Reports dated December 1992) of school facility needs generated by the
project, through mutually agreed provisions for the establishment of a
special taxing district, as per Special Tax Reports dated December 1992;
or, if mutually agreed, the actual construction by developer of school
facilities, or such other mitigation as may be deemed appropriate by the
affected school district prior to the approval of the first final map which
contains any residential units. Developer has specifically waived the
limitations, if any, of Government Code 53080 and 65995 et seq. insofar
as those provisions would limit full mitigation of school facility needs and
impacts.
RAL:PM/nr
(tcecon.mem)
1-33
r>I?~ I
EXHIBIT A
.
TELEGRAPH CANYON ESTATES
CEQA
CANDIDATE FINDING AND STATEMENT
OF OVERRIDING CONSIDERATIONS
FOR FINAL ENVIRONMENTAL IMPACT
REPORT # 91-05
(SCH # 91071033)
.
IN ACCORDANCE WITH SECTION 21081
OF THE
CALIFORNIA ENVIRONMENTAL QUALITY
ACT
AND SECTIONS 15091 AND 15093 OF TITLE 14 OF THE
CALIFORNIA ADMINISTRATIVE CODE
.
9-31
rI- (
L INTItODtlCI'lON
-
It i. the policy ot the State ot Calitornia and the City ot Chula
vi.ta that a project .hall not b. approv.d if it would result in a
.ignificant environm.ntal illlpact it it i. tea.ible to avoid or
.ub.tantially l....n the impact to a lev.l below significant. Only
when there are .pecitic econolllic, .ocial, or other considerations
which lIIake it intea.ible to lIIitigate an illlpact, can a project with
.i9nificant iapact. be approv.d.
Therefore, when an EIR has b..n completed which identities one or
aore potentially .ignificant environlllental impact, one ot the
followin9 finding. mu.t be lIIade:
1. Changes or alternatives which avoid or sUbstantially l..sen
the signiticant ettect. as identitied in the FEIR have been
required or incorporated into the project, or
2. Such changes or alt.rnative. an within the responsibility and
jurisdiction ot another public agency and not the agency
making the tinding. Such change. have been adopted by .uch
other agency or can and .hould be adopted by such other
aq.ncy, or
Specific econollllc, .ocial or oth.r considerations make
intea.ible the mitigation lIl.asure. or project alternative.
id.ntitied in the FEIR.
3.
-,
(Public R..ources Code Section 21081]
A dratt environmental impact report, dated May 1992 (the "Oratt
EIR"), was prepared tor the proj.ct and circulated tor 45 day. tor
public comments. A public h.aring was held on July 22, 1992. A
tinal environmental impact report, dated July, 1992 (the "Final
EIR" or "FEIR"), was prepared ba.ed on comments received on the
Dratt EIR, including those received atter the close ot the public
comment period. The Final EIR con.i.ts ot two parts: the EIR (with
technical revi.ions), and the comment letter. and respon.e. to
comment. ("Respon.e to Comment."). The Final EIR waa al.o lIlade
available to co_entor. Augu.t 5, 1992 to Augu.t 12, 1992 tor
review, elthough this did not reopen the public review period.
The tollowing Finding. are lIIade by the Oeci.ionmaker(a) relative to
the conclu.ion. of the Final Environmental Impact Report (EIR '91-
05) tor the propo.ed Telegraph Canyon Eatate. project (the
"Project") located in the City ot Chula Vi.ta.
.
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9-J5
4-:L
.
(
III. DISCRETIONARY AcrIONS
The discretionary actions for the proposed project involve the
following permits/approvals and the Decisionmaker(s) who will take
such actions:
. an Annexation (Decidonmakers: u.FCO, the Chula Viata
Planning Commission, and the Chula Vista City council)
e a Chula viata Sphere of Influence Amendment
(Decisionmakers: LAFCO, the Chula Vista Planning
Commission, and the Cbula Vista city council)
. a General Development Plan (GDP) Amendment
(Decbionmakers: the Chula Vista Planning COIII:IIIbaion and
the Chula Vista City council)
2
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a Sectional Planninq Area (SPA) Amendment
(Decisionmakers: the Chula Vista Planninq Commission and
the Chula Vista City Council)
a Tentative Subdivision Hap ('I'M) (DecisiOJUllakers: the
Chula Vista Planning Commission and the Chula Vista City
Council)
These Findings are lIlade by the DecisioJUllaker(s) pursuant to Section
21081 of the California Public Resources Code, and Section 15091
and 15093 of the California Administrative Code, title 14.
.
.
IV. TIlE ADMINISTRATIVE RECORD
For purposes of the California Environmental Quality Act ("CEQA")
and the findings hereinafter set forth, the administrative record
of the Decisionmaker(s) shall include the Draft Environmental
Report ("Draft EIR"), and the Final EnviroJUllental Impact Report
("Final EIR") and its appendices; Response to Comments on the Final
EIR; all reports prepared by staff and their consultants, all
documents submitted by members of the public and interested '""'"
agencies in connection with the EIRs and the Project qenerally; and
any documents embodying the Decisionmaker(s) or other action on the
Project, including staff reports and resolutions and the minutes of
public hearings. on the Project.
V. TERMINOLOGY
Section 15091 of the CEQA Guidelines (Cal. Code of Requlations,
tit. 14) requires that, for each significant environmental effect
identified in an EIR for a proposed project, the approving agency
lIlust issue a written finding reachinq one or 1Il0re of three
allowable conclusions. The first is the "lc]hanges or alterations
have been required in, or incorporated nto, the project which
would avoid or substantially lessen the significant environmental
effect as identified in the Final EIR." The second potential
findinq is that "[s]uch chang.s or alterations are within the
responsibility and juriSdiction of another public aqency and not
the agency lIlaking the finding. Such chang.s have not been adopted
by such other agency." The third permissible conclusion is that
"[s]pecific economic, social, or other considerations make
infeasible the lIlitiqation .easures or project alternatives
identified in the Final EIR."
.-..
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9~37
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\, VI. LEGAL EFFECI' OF FINDINGS
.
(.
To the .xtent that th..e finding. conclud. that .itiqation .easures
outlin.d in the EIR avoid or sub.tantially l....n pot.ntially
significant .nvironmental .ffects, ar. f.asibl. and bav. not been
modifi.d, superseded, or withdrawn, the Decisionmaker(.) b.reby
binds itself to r.quir. iapl.mentation of those .itigation ....ur.s
on the Proj.ct applicant and any a.si9n. or .ucc.ssor. in int.r.st.
Th.se finding. con.titut. a binding s.t of obligation. that will
come into eff.ct when the Deci.ionmak.r(.) adopts a r..olution
approving the proj.ct.
VII. MmGATION MONITORING AND REPORTING PROGRAM
As required by Public Resourc.s Code .ection 21081.6, the
Decisionmaker(s), in adopting th.se findings, also adopts a.
.itigation monitoring and reporting program designed to .nsure
that, during project impl.ementation, the Project applicant, and any
other responsible partie. comply with the feasible mitigation
.easures identified below. That program i. contained in the Final
EIR at pp. 211-223.
VIII. POTENTIALLY SIGNIFICANT AND SIGNIFICANT EFFECI'S AND
MITIGATION MEASURES
The EIR sets forth environmental effects of the Project that would
be potentially significant or significant in the absence of
mitigation measures. These .ffects (or -impacts") ar. set forth
below, along with any mitigation .easures adopted that will avoid
those potentially significant or significant effects. Also .et
forth are certain significant eff.ct. that cannot b. substantially
lessened or avoided ev.n with the adoption of all feasible
mi tigation ..asure. propo.ed in the Draft and Final EIRS. In
adopting these finding., the Decisionmak.r(.) also adopt. a
stat.ment of ov.rriding con.ideration. s.ttinq forth the economic,
social and oth.r b.n.fit. of the proj.ct that will r.nder that
significant eff.ct acc.ptabl.. That statement of OV.rriding
Considerations i. attach.d to this R..olution a. Exhibit A.
Public t.stimony, written corr..pond.nc., and comm.nts on the FEIR
indicat. that th.r. ar. diff.r.nc.s of opinion a. to the
conclu.ion. in the FEIR and that the Proj.ct could result in
cumulatively significant and unmitiqabl. iapact. on air quality,
cumulatively significant and unmitigat.d iapacts on wat.r
availability, and .ignificant and unmitigat.d iapact. on biologiCal
r.sources. The following pr...nts the Decisionmak.r(.) findings on
the iapact of the Proj.ct.
..
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\ IX. FINDINGS
A. ~ Resources~ Sectio~ 21081(11)
Th. EIR s.t. forth environmental eff.ct. of the Proj.ct th.t would
b. pot.nU.lly siljp\ific.nt or si;nif1c.nt in the ab..nc. of
.itig.tion .ea.ures. Th... .ff.cts (or -impact.-) ar. s.t forth
below, along with .ny .itig.tion ....ur.. .dopt.d that will .void
tho.. potenti.lly signific.nt or signific.nt effects. Al.o ..t
forth ar. c.rt.in .ignific.nt eff.ct. that c.nnot be .ub.~anti.lly
l....ned or avoided .v.n with adoption of all fea.ibl. .itig.tion
.easur.s proposed with the Draft and Fin.l EIRs.
1. Geology/Soils
Imtlact. Development of the .it. could .xpose the proj.ct to
geologic haz.rds associ.ted with compressive and expansive .oil.
found on-site, and to hazards from r.gional seismic activity.
Findina. PotenU.lly significant geological impact. can be avoided """'"
by adhering to the remedi.l grading ....ure. ..t forth in the
geot.chnical report prepared for the project, and by .onitoring
during project gr.ding. All grading and dr.inage plan. will be
reviewed .nd .pproved by the City'S Engin.ering Division prior to
issuance of a gr.ding permit. A T.sting and Observation Report
will be prepared and submitted to-the City'. Engineering Division
to verify that all requirements have been .et. -
Paleontological Sensitivity
Imtlact. The Oligocene ot.y and Sweetw.ter Formation. which occur
on-.ite have a high potenti.l for containing .ignific.nt fo.sils.
Project grading ..y expo.e or de.troy .ub.urf.c. fo..il-bearing
.tr.t., providing n.w and import.nt p.leontological d.t.. Adv.rse
impact. to paleontologic.l resource. could occur.
Findina. A p.leontological .onitor will be on-site at all times
during original cutting of pr.viously undisturb.d .ediment. .apped
within the sw..tw.ter and otay Formations. proj.ct con.truction
will be temporarily halt.d, if nec.ssary, to allow recov.ry of
fo..il r.sourc...
2. HydrologyfWater Quality/Groundwater
Imtlact. Short-term ero.ion impact. could occur during project
grading and con.truction. Exi.ting ero.ion prOblems a..ociat.d
.......,
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9-3;
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with past aqricultural uses will be eliminated after site
development, but the amount of runoff will increase with added
hardscape. The project could potentially deqrade water ~ality in
. Teleqraph Canyon Creek from urban pollutants.
Findina. Mitiqation will require implementation of an erosion
control plan durinq construction, construction of the storm drain
plan proposed in the SPA, and adherence to National Pollutant
Discharqe Elimination System (NPDES) requirements for urban runoff
and stormwater diacha~e. All plans shall be designed and
constructed to .eet City Enqineering Standards.
3. Landform AlteratioDI Aesthetics
YlII'Oact. The project will require a balanced cut and fill of
830,000 cubic yards. The gradinq plan has been developed to follow
the dominant site landforms, and the project is proposed to be
constructed in a terraced fashion. The maximum manufactured slopes
will be 50 feet in height and the deepest cut will be 45 feet on
the eastern knoll.
e
Findina. Because the project area is adjacent to Telegraph Canyon
Road; which is desiqnated a Scenic Hiqhway by the City of Chula
Vista, the SPA has been developed to conform with the Teleqraph
Canyon Scenic Hiqhway Criteria. The project will provide setbacks
from the canyon floor; preserve and enhance the natural stream
corridor and trail system, ensure that the project's architectural
design, height and siting of structures, and landscapinq and siqns
are considered in the development, and provide landscaping to
beautify the adjacent portion of the scenic route inside the
project area. The project's desiqn.concept is based on desiqn
elements of the Eastlake Desiqn Manual Guidelines, in order to
assure compatibility with the adjacent Eastlake communities.
4. Air Quality
(e
IlII'Oact. The project will create short term impacts from dust and
emissions during project construction. It will incrementally add
to cumulative impacts to the San Diego Air Basin by adding
pollutants from increased traffic and household emissions.
,indina. Mitiqation for short term effects will require
implementation of dust control aeasures during project qradinq, and
compliance with the requirements of the APCD and ARB. Long-term
impacts will be reduced by adherence to the Air Quality
Implementation Plan prepared for the SPA. However, because the San
Diego region is a non-attainment area for ozone and particulate
matter, cumulative air ~ality impacts will remain siqnificant and
unmitiqable. 'Specific economic, social, or other considerations
6
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11- 1
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~ make infeasible other mitigation measures or project alternatives.
The remaining unavoidable significant cumulative impacts are
acceptable when balanced against the facts set forth &bove and in
the attached Statement of OVerriding Considerations.
5. Biological Resources
:r!ll'Oact. The majority of the project sUe is characterized by
disturbed and weedy vegetation associated with past agricultural
uses. The project will eliminate this vegetation, along with 0.9
acres of wetland habitat.
Findina. Although the wetland habitat i. fragmented and of low
quality, its loss is still considered a significant impact. Its
loss could be mitigated by the applicant's dedication of 0.9 acres
of wetland habitat off-site (otay Ranch), to be rreserved in
conjunction with adjacent wetland habitat. Until spec fie off-site
mitiqation for bioloqy is imposed and adopted, the impact to the
freshwater marsh would be considered significant and unmitigated.
6. Transponation
:rm'Oact. The project will generate a maximum of 3500 average daily
trips (ADT). The level of service (LOS) will be lowered from C to
D on Teleqraph Canyon Road between otay Lakes Road and Eastlake
Parkway, from B to C between Crest Drive and Paseo Del Rey, and
from A to B between Paseo del Rey and Paseo Ladera, but
intersections will operate at acceptable levels and no significant
direct impacts will occur.
Findina. The applicant will pay its fair-share of area
improvements to reduce cumulative impacts. These may include
roadway widening, restripinq, or installation of other signals:
>this will be determined by the City Enqineering Department during
its annual review of cumulative impacts of all projects in the
Eastern Chu1a Vista Transportation Phasing Plan (ECVTPP). While
the project will not require a traffic .ignal on Telegraph Canyon
Road, the applicant is proposing to fund and provide a signal.
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7. Noise
:rm'Oact. construction of the project will expose existing residents
to short-term noise impacts. The project will not increase ambient
noise levels significantly, but portions of the property will be
subject to long-term adverse noise impacts from traffic on S.R.
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Findina. Mi~iga~ion will require con.~ruc~ion of . noi.e wall
along the .a.tern portion of the .ite, and po..ibly the u.e of
noi.e-reducing construction material. and techniques. All noise
wall. will b. constructed in conformance with the d.sign lUidelin..
set forth in the SPA, which follow the E..tlak. % Design
Guideline.. All noise mitigation ....ur.. shall be .ad. conditions
of the final .ap. Prior to i..uanc. of building permit., the City
of Chula Vista's Nob. Abatement Division shall r.vi.w final
grading plan. to det.rmine whether additional noi.. ..~.rial. are
r.quired for ..cond storie. of hom.. which .ay b. impa~ed by
fu~ur. noi.e from S.R. 12S.
8. Land Use/General Plan/Zoning
Im~act. The project area will r.quire ann.xation to the ci~y of
Chula Vista, which will require approval by th. Local Agency
Formation Commission (LAFCO). The propos.d d.nsity i. consistent
wi~h ~he city'. General Plan designation for the .i~. and conforms
with guidelines .et forth in the Eastlak. Planned Community
District Regulations, General Development Plan, and Sectional
Planning Area Plan. No .ignificant land u.e impact. have been
identified.
Findina. The project includes a 1.S-acr. Community Purpose
Facility (CPF) site, which meets the net acr.age r.quir.ment of the
City. The required 10 percent affordable housing r.quirement will
be met by dedication of a parcel off-site for this purpose, payment
of in-lieu fees, or a combination of these measures.
9. ParksfRecreation/Open Space
Im~act. The project will increase park/r.crea~ion use demand by
brinqinq approximately 1,134 new r.sident. in~o the City. Under
the provisional .tandards for parks .et forth by the City of Chula
Vista, the Telegraph Canyon proj.c~ i. required to .et aside a
total of 3.4 acre. a. d.dicat.d park land.
findina. Th. SPA propo.e. to d.dicat. 30.2 acr.. (27') of the
total 112.4 proj.c~ acreage to parks, r.cr.ational ar.as, and open
.pace. These will include private n.ighborhood parks and .ini-
parks. A portion of th. central natural swal. and the .ntire
drainage channel adjacent to Telegraph canyon Road will b.
preserv.d a. open .pac., a. will the .a.t.rn property boundary
abutting the propos.d S.R. 125 fr.eway. Th... op.n .pac. .a.em.nts
will constitut. approximately 20 acre.. A San Di.go County wat.r
Authority.asem.nt, in th. cent.r of the .it., will b. d.veloped as
a linear varden totalling 3.1 acre.. A public trail i. also
propos.d to conn.~ the proje~ to the Ea.tlake Community and to
the proposed cOlDDunity r.creation cent.r. Private
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parks/recreational and open apace areas totalling 5.3 acres are
proposed. These consist of a of a recreational center with a
changing cabana, pool and apa, a private multi-purpose court area,
and the linear garden mentioned above. To provide additional
mitigation for impacta to park facilitie., the applicant ahall pay
in-lieu park fee. in conformance with Section 17.10 of the Chula
Vi.ta Municipal Code. Thi. will be done prior to or aa a condition
of the Final Map.
10. Public Semccs and Utilities
IJllcact. The project will introduce 102 new elementary achool
students and 105 secondary students into the area. Becau.e the
Chula Vista School District elementary schools and the Sweetwater
Union High School District secondary schools are operating above
permanent capacities, the addition of these student. will create
significant adverse impacts.
Findincr. The applicant is currently negotiating with the Chula
Vista Elementary School District to form a CFD for Salt Creek Ranch
and the Telegraph Canyon Estates project (CFD 7). The project will
annex into the CFD prior to the Final Map. The applicant has also
met with the Sweetwater Unified High School District to begin ~
negotiations to form a new community Facilities District (CFD 7).
The project will be required to annex into CFD 7 prior to the Final
Map. Annexations into this new CFD will fully mitigate impacts to
the districts.
IJllcact. Implementation of the project will increase demand on
water. Based on the Central Area Water Master Plan Update average
of 600 gallons per day per dwelling unit, the proposed 350-unit
project will result in an estimated daily residential water use
rate of 210,000 gallons. The SPA projects an average potable water
demand of 190,432 gallons per day, and an average reclaimed water
demand of 92,463 gallons per day, for a total daily water demand
projection of 282,895 vallons.
Findincr. While increased water consUmption is a major regional
issue, the project is capable of prOViding water to residents. The
Central Area Water Master Plan has specified an infrastructure that
will allow a sufficient amount of water to aerve the project, and
barring general regional unavailability, water can be supplied to
the project. The project will meet water Threshold/standards.
However, on a project specific ba.is, water impacts shall remain
significant but mitigable pending the requirement toobta!n a will-
serve letter from the OWD once building permits are issued.
In response to regional water shortage, the Telegraph Canyon ~
Estates project proposes additional conservation aeasures for
individual households, including use of ultra-low flow indoor
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. fixtures and appliance. (low-flush toilets, showers and faucets),
". pressure reducing valves. .
It is estimated that approximately 92,463 gallons of potable water
per day could be saved if reclaimed water is used to irrigate
common areas (parks and open space) within the project. While
reclaimed water is not currently available for use within the
proposed project, the project is providing a systam to use
reclaimed water irrigation when it ~ecomes available. As this
project's contribution, the applicant shall either install the line
across project frontage or pay a proportional share of the line, as
determined by the otay Water District. 'the size of the line will
be determined by the City of Chula vista and the OWO, based on the
demand for reclaimed water in the project's vicinity. Since
reclaimed water is not cUrrently available for the project to
offset water demand, water availability impact. are deemed
significant and unmitigable on a cumulative regionwide basis. If
reclaimed water service becomes available in the future, this
cumulative water availability impact will be mitigated.
11. Public Health
Imoact. 'the data available at the present time are not sufficient
to warrant a determination of health and safety hazards to future
. residents from proximity to the existing SDG&E transmission lines.
Findina. While the determination of a significant impact cannot be
concluded at this time, the project applicant shall comply with any
future EMF policy adopted by the City of Chula Vista prior to
consideration of the Final Map~ 'this measure would reduce
potential impacts to below a level of significance.
B. ~Fesollrces~ Section ~1081(P)
'the DecisionmakerCs) having reviewed and considered the information
contained in the FEIR for the project, and the information in the
Administrative Record, finds that there are no further changes or
alteration. to the project that would avoid or substantially le.sen
the significant environmental impacts that are within the
responsibility and jurisdiction of another public agency and should
be adopted by such other agency.
Ie
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c. .luhlk Resources.Cl2lk Sec:tiQp 21081(j;,): ~ jnfeasibility s4 .Miti~atUm ,Measures
.and FrQj~ct Alte!matlves Oth~ .Ihan ~ Proposed .:rele~pb Canyon Estates. .
'the Decisionmaker(s) approval of the Project as proposed will cause
significant adverse environmental effects which cannot be fully
mitigated to biological resources, cumulative air quality, and
cumulative water availability. 'the mitigation me..ures outlined in
Section A of the.e Findings will reduce impacts to bioloqical
resources to below a level of siqnificance. However, until the
mitigation parcel is recorded, the bioloqical impacts shall remain
significant. 'the unmitigable effects to cumulative air quality and
regional water availability cannot be fully mitiqated on a project
specific basis, at this time.
'the Decisionmaker(s) has also considered whether any of the project
alternatives outlined in the EIR could feasibly substantially
lessen or avoid this effect while satisfying the objectives of the
'telegraph Canyon Estates Project. (iAa Citizens ~ Oualitv Growth
~ ~ Qf Mount Shasta (1988) 198 Cal. App.3d 433, 433-445 [243
Cal.Rptr. 727]; AiS AlaQ Pub. Resources Code, section 21002.) As
will be explained below, the Decisionmaker(s) concludes that none
of the proposed alternatives could feasibly both meet the Project's
objectives and substantially lessen or avoid the unavoidable ~
significant effects of the Project, and thus has decided to approve
the Project as proposed with all feasible mitigation measures
outlined above.
However, pursuant to Public Resources Code Section 21081(c), the
Decisionmaker(s) find and conclude that the following independent
economic, social, or other considerations make infeasible the
project alternatives or other possible mitigation measures as
identified in the EIR. 'the Decisionmaker(s) further find that each
independent consideration, standing alone, would be sufficient to
make infeasible the following project alternatives.
1. }lg lrQject ~temativelNo _ Alternative.and .Alternative ~ Analysis
'this alternative consists of no annexation, GDP, SPA, or 'tSM for
the project. 'the site will remain under County jurisdiction, and
will remain under limited control under the S-87 (Special Study
Area) land use desiqnation until studies were completed to enable
reclas.ification of the property. At this point, it would be
speculative to determine what type of development will be allowed,
but it is anticipated that it will be required to provide either a
transitional land use from adjacent undeveloped land to aore
densely developed land (such as that present at Ea.tlake Shores); .~
or be developed consistent with other types of residential uses on
adjacent parcels within the City of Chula Vista. It is probable
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that an ov.rall development plan, such a. a specific plan, will be
r.quir.d by the county, to avoid pi.clUlleal dev.lopment on a lot-by-
lot basb.
If the property w.re developed under the exbtin; land u.e
d..ilifnation and zonin;, the 2.5-acre minimum lot size would allow
a ;ro.. maximum of 44 sin;le-family dwellin; units on the ll2-acre
parcel. Thi. number will lik.ly b. lower, in r.ality, viv.n the
con.traint. on dev.lopable land (ea.lUIl.nts for SDG , E and the
SDCWA, wetland area, and setback8 for sc.nic hi;hways and S.R.
125). All vradin; will be subject to the county's Re.ource
Protection Ordinanc.. Impact. t.o landform alt.ration/a..th.tic.,
air quality, biolo;ical re.ource., traffic, air quality and
hydrololifY will probably b. r.duc.d. Impact. to V.olo;y/.oil.,
noi.e, and public health will b. similar to the propo..d project'.
impacts under this alternative. Impacts r.;ardin; social factors,
community tax .tructur., and dfUllands on public services will likely
be ;reater. Given the .ite's proximity to the City of Chula Vista,
these impacts will directly affect the city (.choob, parks,
.ewers, water supply, lUIler;ency services, .tc.) .nd
Threshold/standards Policy would probably be exceeded. This
alternative would not be consi.tent with the City'. Gener.l Pl.n or
Zonin; Ordinance. Due to these social considerations, this
alternative is considered infeasible.
Ho D.v.lo~m.nt. Under this .lternative, the project area will
remain vacant .nd land use will remain unchan;ed. No impacts to
;eolo;y, hydrololifY, l.ndform alteration, air qu.lity, biological
resources, traffic, noise, public facilities, parks, or public
health will occur. Like the - no project .lternative, this
alternative would not be consi.tent with the City of Chula Vista'.
or County of San Diego'. land u.e desilifnations for residential
development, .nd it would result in loss of t.x revenue for the
City. It is .lso considered to be infeasible due to these .ocial
f.ctors; additionally, it would not achieve the basic objectives of
the proposed project.
2. .AlternatiJ(~ pesi&:n A
Thb alternative will b. a r.duc.d project d.veloped at a low-
medium residential density (R-1-7). A tot.l of 280 sin;le-family
home. would b. con.truct.d on approximat.ly 70 acr.. resulting in
a den.ity of 4.0 dw.llin; unit. per acr.. Open sp.c. would
incr.... to 31.6 acr.. and would encompa.. a l.rg.r portion of the
central .wal. on-.it.. Th. community Purpo.e Facility would rlUllain
the ..me .. in the propo.ed proj.ct.
No circulation pl.ri has been d..ilifned for this alt.rnative, but
acc.s. point. ~ould b. the .am. a. tho.. in the propo.ed proj.ct,
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and the overall .treet and CUl-de-.ac system would be similar. If
this alternative is adopted, the following impacts are expected to
occur.
aeolocrv/8oUs. Impacts would be similar to those of the proposed
project. Constraints from these factors would not expected to be
more or less difficult under thia alternative or the proposed
project.
.
.vl!rolocrvl1rater Oualitv/Groulll!vater. In terms of project dZ-ainage
effects on water quality, the discharge into the Telegraph Canyon
Creek Channel is regulated by the National Pollutant Discharge
Elimination System (NPDES) permit requirements; a. .uch, neither
the proposed project nor this alternative (or any alternative) can
have a discharge that significantly degrades (as defined by the EPA
in the NPOES requirements) the water quality in the receiving
channel. Fewer houses would probably translate to fewer vehicles
using and parking on the streets, resulting in less material to be
carried off during rainstorms. While this could allow easier
attainment of the NPOES requirements, the reduction in material is
not likely of sufficient magnitude to affect the way the .ystem
would be designed to meet NPOES requirements.
Thi. alternative may result in less runoff, as there would likely ~
be less hardscape and more permeable surface (yards, open space). '
Even with the same desiqn the reduction would not be proportional
to the drop in units, as the road system could not be reduced
proportionally. Calculations on storm drainaqe capacity in
Teleqraph Canyon Creek channel showed that the proposed project's
'input is less than siqnificant, and that the channel would still be
well under capacity. This alternative may result in less runoff;
but the amount of runoff was not found to have a siqnificant impact
with the proposed project.
With the inclusion of much of the central swale in open space there
-would likely be somewhat more input of fertilizers, pesticides, and
herbicides into the drainage than under the proposed project, as
there would likely be private yards adjacent to the swale. Private
Use of these chemicals is difficult if not impossible to control.
Lalll!form Alteratioll/&esthetics. Landform alteration would be
similar under .the proposed project and this alternative. The
overall landform would be retained, and the street system must be
created, reqardless of the IO-unit difference.
Aesthetics is a subjective environmental issue., People who Object
to the placement of a 3so-unit residential project on this site
would likely object to the placement of a 280-unit project.
Conversely, even with having to maintain the street system, a ~
reduction in units may allow the desi9J1ers to create a more
aesthetically - pleasing project. Given that a street system is
necessary, it is likely that the proposed project and a d.si9J1
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... independent of the proj.ct d.nsity. Under this alternative .ore
r.de.ign .ay be pos.ibl. a. a part of the noi.. .itigation, but
f.atur.. .uch a. noi.. wall. would probably still b. r.quir.d.
LeDa V.eiGeDerel ~lAD/.oDiDa. Both the propo..d proj.ct and this
alt.rnativ. are in gen.ral co.plianc. with th... i..u... Th.
i..u. of affordable hou.ing and community purpo.. faciliti.. will
b. .et with the propo..d proj.ct and thi. alt.rnativ..
eo~uDitv sociel .ector.. Neith.r the propo..d proj.ct nor this
alt.rnativ. would have lapact. to community social factor..
eommuDitv ~as structur.. Thi. alt.rnativ. would v.n.rat. l...er
. f..s, a. it r.sults in l.s.er d.n.ity. F.w.r unit. would b. built,
r.sul ting in low.r property tax a......ent.. ..... paid to
.chool., parks, the water district, and oth.r public faciliti..
would be reduced.
...
(...
Parks/RecreatioD/Oo.D Soace. Mor. open .pac. would b. cr.ated with
this alternative than with the propo.ed proj.ct. Th. t.nnis
courts, pool, and jacuzzi faciliti.. a.sociated with the propo.ed
project are .li.inated in this alternativ.. Th. decr.a.ed number
of units would result in fewer fund. for public park land and no
private r.creational facilities would b. provided.
Public ..rvic.. ADa Utiliti... Les.er demand. would be placed on
public .ervices and utilities with this alternativ.. The number of
.tudents projected would reduced from 105 to 84, but the project
would .till be required to ann.x into a CFD to fully .i tigat.
impacts. .
Public .ealtb. Th. lesser density of this alternative may allow
designers to incorporate greater di.tance from the transmission
lin.s. At this time it is not possible to det.rmin. significance
of the lines to public health.
As di.cussed abov., incorporation of a part of the .arsh into the
project allows a source of ao.quito.s and biting fU.., and
provides a potential for dis.a.e. This alt.rnativ. could introduce
significant health conc.rn..
Thu., while this aU.rnativ. would r.duc. some lapact., aiUqaUon
aea.ure. .imilar to tho.. requir.d for the propo.ed proj.ct would
still be need.d. Thi. alt.rnativ. would not cr.at. significant
i.pact. to biological r..ourc.s, but could cr.at. lapact. to
a..th.Uc. and public h.alth by pr...rvinq the aar.h on-sit..
CUmulativ. i.pact. to air quality would remain unaitigated under
this alt.rnative. Therefor., as this alt.rnativ. doe. not
sub.tantially avoid or l....n the adv.r.e .ff.ct. of the propo.ed
action, it i. not con.ider.d to b. .nvironmentally pref.rabl. and
ther.fore i. infeasibl..
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uneSer this alternative wouleS be considered ae.thetically similar by
mo.t pa..er.-by. .
Within the project, the retention of the marsh ar.a would likely
have mixeeS r.actions from the r.sid.nts. Small ar.as of marsh do
not have the wildlife that people find attractiv.. ~. arsh would
quickly become a solid baneS of cattails if l.ft alon.. 1'his is not
consieSereeS a.sthetically pleas1nq by .ost peopl.. 1'h. odors of the
decompo.ing v.getation in the summ.r and the pr.senc. of mosquito
aneS biting fli.s would beobj.ctionabl. to r.sidents livinq near
the mar.h. From an aesthetic. perspectiv., the landscapinq of the
propo.ed project and the .limination of the bitinq ins.cts would
likely b. consid.r.d pr.f.rabl. by the majority of r..idents.
.ir Qua1itv. From a project per.pective, the r.duction in unit.
associateeS with thi. alternative would re.ult in l....r air quality
impacts, as fewer vehicles would be pr..ent, aneS f.wer fireplaces
aneS furnaces would be useeS. From a regional p.r.pectiv., impacts
depeneS on whether it is assumeeS that the 60-unit difference
disappears, or if it i. fulfilleeS .lsewhere. 1'he main source of
air pollution in the county is from vehicle.. If the 60 unit. will"
be .upplieeS elsewhere, aneS if that compositely creat.. more travel
for the inhabitant. to work aneS shop, then great.r air quality -".
effects will occur than with the proposeeS project. If the 60-unit
difference disappears, or if the "displaceeS" inhabitant. select
housing that will result in less travel, then l..ser air quality
.ffects will occur than with the proposed project. However, this
alternative wouleS .till re.ult in cumulativ.ly significant
unmitigable impacts.
lIio100'ica1 "esources. As noteeS in the BiOlogical aesources
technical report, and in the EIR .ection, the marsh area is not of
high value. Potentially aeSver.e impact. a..ociated with
preservation of the wetlaneS within the development ar. discu..eeS
above uneSer aesthetics. Whil. pr.servation on-.it. of resource. is
usually the preferable choice, given the .iz. and isolat.eS nature
of the marsh area to be retained, pr...rvation of hiqh.r quality
habitat off-.ite, a. in the propo.ed project, would r..ult in
great.r .cological value.
CUltural ..esource.. ~ere is no impact on cultural re.ourc.s with
either the propo.eeS project or this alt.rnativ..
'l'ransDortatioD. 1'he number of proj.ct.d ADT. for the propo.eeS
project is 3500, with this alt.rnativ. that number would b. r.eSuced
to 2800. Le.s traffic would be con.ider.d a beneficial impact,
althouqh cumulativ. impact. would still occur and mitigation
mea.ur.. similar to tho.. required for the propo.eeS proj.ct would ~
be neeeSeeS.
Hohe. 1'he noi.e generator for this project is larqely the future
State Route 125 aneS Telegraph canyon RoaeS. ~e.e noi.e source. are
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AJtemative "pe~ii".B
'this alt.rnativ. would b. id.ntical to th. propos.d proj.ct, exc.pt
th. propo..d str..t sy.tem would b. public rath.r than private.
All impact. a..ociat.d with thi. proj.ct would b. th. sam. a. with
th. propo..d proj.ct, exc.pt tho.. r.l.t.d to Community 'tax
Structur..
As curr.ntly propo..d, th. proj.ct contain. .pproxiJll.t.ly 2.5 aU..
of private loc.l str..t.. As such, th. City of Chula Vi.ta would
not incur .ny a.int.nanc. co.t.. Such co.t. would b. born. by the
prop.rty own.rs through. bom.own.rs a..ociation. Xf th. stre.t.
wer. d.dicat.d to th. City of Chula Vista .s public streets,
bow.v.r, th. City would b. r.quir.d to aaintain them within its
r.gul.r str..t aaint.nanc. program in its Operation. and
Maint.nance Budget.
R.designation of th. private str.ets to public would allow through-
traffic to gain .ccess through the proj.ct .ite. However, volumes
of traffic .1'. not proj.cted to chang. .ignificantly, .nd
.dditional traffic impacts are not .xpected to occur under this
.lternative.
'the proposed project would have a net po.itiv. fi.cal balance for
the City of Chula Vista, with ......ed fee. .nd taxes .xc.eding
cost.. With the City ...uming the .treets and the .nsuing
maintenance, that fi.cal balanc. would remain positive, .lthough it
would be reduced. Under the propo.ed project (privat. .treets) th.
net po.itive fiscal balance in year fifteen would be projected at
$827,043. Under this alternative (public .tr.ets), th. projected
net po.itiv. fi.cal balanc. would b. $454,718. 'this is a reduction
of $372,325.
'this alternative would r..ult in the same impact. as th. proposed
project, with th. .xception of community tax .tructur.. 'the City'.
fi.cal balanc., whil. .till po.itiv., would be r.duc.d under thi.
alternativ.. 'th. significant, unmitigat.d impact. with r.spect to
biological r..ource. and cumulativ. .ir quality and water supply
would r.main. Whil. thi. alt.rnativ. cannot be d..med inf.asible
it would not sub.tantially l....n or avoid th. adv.r.. .ff.ct.
cr.ated by th. propo..d proj.ct and i.not con.id.r.d to b.
.nvironm.ntally pr.f.rabl..
4. .Pff..Site ~tema.tives
'th. St.t. Supreme Court bas r.c.ntly rul.d that EIb mu.t includ.
an analy.i. of .It.rn.tiv. sit.. for propos.d proj.ct., .v.n though
th. .it.s may not b. own.d by th. .pplicant [Citiz.n. of Gol.ta
V.ll.y v. Board of Sup.rvi.or. (ftGol.t. 1") (2d Di.t. 1988) 197
Cal. App. 3d 553 [276 eel. Rptr. 410]). 'thr.. .It.rnativ. site.
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were analyzed in the EIR. ~ese are considered infeasible because
the po~en~ia1 environmen~al effe~. were found ~o be vrea~er than
. those expec~ed on the proposed projec~ area.
A. .Q1u.BiIWJ Alternative .si1Q
~is .ite cond.~s of approxima~ely 500 acres within the O~ay Ranch
prope~y and 1. loca~ed .outhwes~ of the Telegraph Canyon Es~a~es
.i~e. Like the Telegraph Canyon Es~a~es prope~y, thi. .i~e 1s
within the unincotpora~ed area of San Diego Coun~y.
This ai~e encompasses a po~ion of Poggi Canyon. ~e ai~e 1. within
the County of San Diego'. O~ay Subregional Plan and 1. .ubjec~ ~o
land use and zoning requ1a~ions defined 1n tha~ documen~. The
General Plan'. land use c1as8ifica~ion for the prope~y 1s
Residential (low-medium densi~y, 3-6 du per acre), and the .i~e is
zoned A-70, Limi~ed Agricu1~ure, allowing 1 du per 4 or 8 acres).
The proposed o~ay Ranch plan would provide low-~o-medium density
(3-6 du/acre) residential development on this parcel.
If the otay Ranch a1~erna~ive .ite 1s chosen, 1mpac~s ~o
geo10gy/soi18, hydrology/water qua1ity/groundwa~er, air qua1i~y, ~
cultural resources, ~raff1c, public .ervices, and public health are
expected ~o be similar ~o those which would occur with
implementation of the project as proposed. Fewer impacts related
~o landform a1~eration and noise are expected. However,
impac~s ~o biological resources co~ld potentiallY increase, and the
effec~ on community ~ax structure would be greater. Pa~icu1ar1y
in ~erms of biOlogical resources, this alternative is not
considered to be environmentally preferable.
B. ~.Mw Alternative .si1Q
This .i~e also consis~s of epproximate1y 500 acre. of vacant land.
I~ i. within the juri.diction of the City of San Diego, and is
abou~ 0.5 mile. east of 1-805, north of Otay Mesa Road. ~e .i~e
is presently vacan~ and is .urrounded by vacan~ land. I~ is within
the Ci~y of San Diego'. otay Mesa Communi~y Planning area and is
designated for mixed land use. (very low ~o low-medium density
residential, neighborhood commercial,. parks, and .chool.). The
prope~y includes po~ions of the proposed California Terrace and
Hidden Trail. project.. Brown Field i. approxima~e1y one 1li1e ea.t
of the .i~e.
If the otay Mesa a1terna~ive .i~e is chosen, impacts ~o ~affic,
communi~y social factors and ax .tru~ure, and public .ervic.s are
expected ~o "be .imi1ar ~o those which would occur with
~
(
17
9--S'/
il- If
...
.
(.
implementation of the project a. proposed. rewer impacts would
occur with respect to paru, recreation, and open .pace. However,
it i. anticipated that impact. would be qreater to geology/soils,
hydrology/water quality/groundwater, landform alteration and
aesthetics, bioloqical and cultural resource., land uae/general
plan element., and public health.
c. .EaWW Yistas.and WoodS
This SOO-acre aite i. composed of two parcel. north and .outh of
Otay Lakes Road and west of the Lower otay Reservoir. It 1a in the
City of Chula Vi.ta'. Eastern Territories and i. the easternmost
property within the Eastlake Planned COllllunity. The property is
proposed to be developed a. the Eastlake Vi.tas and Woods
residential neighborhoods.
The site is currently vacant, with development existing to the east
and approved to the west. The future extension of S.R. 125 is just
over one mile west of the site. Salt Creek, an important
biological and a.sthetic resource, is located on-.ite.
If the Eastlake Vistas and Woods alternative site is chosen,
impas:ts are expected to be approximately the .ame as on the
proposed project site for landform alteration/aesthetics, air
quality, traffic, land use, cOllllunity social factors and tax
structure, utilities, and public health. Impacts related to noise
and parks/recreation/open space would likely be reduced. However,
there is the potential for increased impacts to geology/soils,
hydrology, and biological and cultural resources.
18
. 9---5:2-
19-' '7
.
. . . TELEGRAPH CANYON ESTATES
. MITIGATION MONITORING AND
REPORTING PROGRAM (MMRP)
EIR 91-05
.
.
I ~.53
EXHIBIT B
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EXHIBIT C
..
STATEMENT OF OVERRIDING CONSIDERATIONS:
.
Jacbmund
The State CEQA Guidelines provide:.
(b)
CEQA requires the Decidonmaker(s) to balance the benefits of
a proposed project against ita unavoidable environmental risks
in determining whether to approve the project. If the
benefits of a proposed project outweigh the unavoidable
adverse environmental effects, the advarse environmental
effects may be considered 'acceptable'.
Where the decision of the public agency allows the occurrence
of significant effects which are identified in the Final EIR
but are not at least substantially mitigated, the agency shall
state in writing the specific reasons to support its action
based on the Final EIR and/or other information in the record.
This statement may be necessary if the agency also makes a
finding under Section 15091(a) (2) or (a)(3).
If an agency makes a statement of overriding considerations,
.the statement should be included in the record of the project
. approval and should be mentioned in the Notice of
Determination.- (CEQA Guidelines Section 15093)
-(a)
(c)
.
The Decisionmaker(s) in approving the various permits that are the
subject of the FEIR, having considered the information contained in
the FEIR and supporting technical reports, GDP, and SPA; and having
reviewed and considered the public testimony and record, makes the
following statement of OVerriding Considerations in support of the
Findings. The Decisionmaker(s) further find and conclude that the
public benefits of the project outweigh the identified significant
unmitigated impacts with regard to biological resources, cumulative
air quality, and regional water availability. The Decidonmaker(s)
find the following factors support approval of the project despite
the significant and unmitigated.effects of the proposed project,
and make the tollowing statement of OVerriding Considerations:
1. ~he project w111 tul~111 a demonstrated need ~or bous1ng 1n
the Chula V1sta Sphere o~ Zn~luence eraa.
According to SANDAG'. Series 7 Growth Forecast, the popUlation
within the city of Chula vista Sphere will grow to 186,900 by 2010.
This represents a 31' increase over the 1986 .phere population of
129,200. The SANDAG torecast turther projects that the number of
occupied units will increase to 70,800 occupied units in 2010, up
. 35' over the 1986 total of 46,100 units. The regional popUlation
is torecast ta climb to 3,154,500 by 2010. While the population
19
/'
1-t~
0-1
AUQ.1~ '9212:02
AF'I'"'~15
FAX 441-64?'
P. 2/4
~
........
drainage) and a tran.portation dev.loplllent fee pur.uant to the mo.t
r.cently adopt.d program by the City Council.
.c. 2'h. recre.t.:Lonal ~.c.:Ll.:Lt.:L.s and ~und.:LnV prov.:Ld.d by the
proj.ct are n..d.d J.n the City o~ Cbul. Vista.
Th. project, a. propo.ed, would provide private r.cr.ational
facilities for r.sident.. In addition, the applicant will pay in-
lieu park f.e. which will. be u.ed. to fund needed park and
recreation facilities in other area. of the City of Cbula Vi.ta.
Approval o~ the proj.ct ....:Lll "1'.&.1... ~ ~ormat.:Lon o~ 12....
COllllllunity 1'acH1.t.:L.s D1.str1.ct. (CFD) 'lor cIty schools.
The T.l.graph Canyon E.tat.. proj.ct was formerly a part. of the
otay Ranch proj.ct, and thus it had b..n a..um.d that this parc.l
would annex into the naw CFO that will be formed for Otay Ranch if
that project i. approv.d in the future.
5.
A. Telegraph Canyon E.tat.. i. now b.ing proc....d ..parat.ly, the
applicant has negotiat.d with both the Chula Vista El.mentary
School Oi.trict and the Sw..twater Union High School Di.trict to
form a new CFD prior to otay Ranch. CFD 7 will annex the propo.ed
project with the Salt Cr..k Ranch project (alr.ady approv.d and
built) to provide fund. for needed .chool facilitie..
.........
6. with the prov1...:Lon o~ .n o~~.1.t. ....ment d.d1.c.tion ~or 0.9
acr.s o~ .xist1.nV ....tl.nd. to b. preserved and .:Lncorpor.ted
.:Lnto a larger ....tl.nd hab1.tat ar.., b1.o1ov1.cal .:Ll/lpacts ...Hl be
reduced to below a lev.l o~ s1.gn.:L~icanc..
Th. project applicant propo... to coordinat. the location and
dedication of an off.it. con..rvation .a....nt for 0.9 acre., If
this ofU.t. mitigation occur., the r..oval of oneit. w.tland. will
b. mitigated. Th. .xact location of the off. it. con..rvation
.a.em.nt will b. d.t.rmin.d and d.dication will occur prior to the
removal of the on.it. w.tland..
7. 2'h. prov1..1.on o~ recl..:L_d ....t.r aerv.:Lc. to the a.:Lt. ...1.11
J111.t.:LVat. the apact r.v.:Lonal to ..at.r Ilvdlab1.l.:Lty.
Th. proj.ct propo... to con.truct an on.ite dual-wat.r .y.t.. t~
provide for the u.e of both potable and reclaim.d water. The
production of reclaim.d wat.r i. controll.d by the Otay wat.r
District (OWD). Oi.tribution of r.claimedwater i. controlled by
the con.truction of r.claim.d water pipeline.. CUrr.ntly, ........
reclaim.d wat.r pip.lin.. do not r.ach the proj.ct .it.. '!'h. OWO'.
Ma.t.r Plan for r.claim.d wat.r faciliti.. d..ignat.. that
r.claimed water pip.lin.. will b. provided in otay Lak.. Road, from
21
7 ~ki-
(!-.13
.
i'. vrowth rat. within the city of Chula Viata's curr.nt city limits is
22t b.low the r.gional rat., the vrowth rate in the sphere ar.a is
projected at 174' hivher than th. regional rate.
The propos.d lot and hom. sh.s will be provided for varied aingle-
family .ark.t opportunities within the community. Th. 10'
affordable housing requirement will be provid.d by d.dication of a
parcel off-site for this purpos., payment of in-lieu f..s, or a
combination of th.s. or oth.r comparable .easures.
2. I'be project J.. 1.n cont'ormance .,J.th the Za.tla1ce PolJ.c:y Plan
and Chula VJ..ta General Plan.
The T.l.graph Canyon Estat.s General Development Plan (GDP) will
implement the Eastlak. Policy Plan Goals to
. enable the City to adopt .easures providing for the
development of the surrounding areas
. .stablish conditions which will allow land uses to exist
in harmony with the community
..
and allow a div.rsity of uses, r.lationships, buildings,
and open space in a planned concept while insuring
substantial compliance with the spirit, intent, and other
provisions of the General Plan.
The project will be compatibl. with adjacent land us.s and has b.en
designed to create harmony between land uses. OVerall landforms
will be preserved and the project will adhere to the General Plan's
Scenic Highway criteria. .
.
..
\
J. I'be PublJ.c FacilJ.ties Financing Plan (PFFP) prepared t'or tbe
project will provide a mecbanism t'or t'unding needed t'acilJ.ties
within the city 01' Chula Vi.ta.
Th. PFFP ia the first to be pr.par.d under the requirem.nt. of the
City of Chula Vista's Growth Managem.nt Program and Implementation
Ordinanc. No. 2448. Th. PFFP quantifi.s how the T.l.graph canyon
Estat.s proj.ct r.lat.s to all other proj.cts which are at .ome
.tage in the City'S ov.rall d.v.lopment proc.... It en.ur.s that
the dev.lopment of th. proj.ct i. consi.t.nt with the ov.rall 90al.
and polici.. of the city's Gen.ral Plan, Growth Manag.m.nt Program,
and that the d.v.lopm.nt of the proj.ct will not adver.ely impact
the Quality of Uf. standards.
Und.r the PFFP, th. applicant will pay d.velopm.nt impact f.es for
public facilities (police, fire and emergency .edical services;
schools and librarie.; parka and recreation, and wat.r, sewer and
20
9~t ?
CZ-..2-
Lane Avenue to the project .ite. When the.e pipeline. are
constructed, the project will be .erved by reclaimed water by the
OWD. The provi.ion of .ervice of reclaimed water will mitigate the
impact on water availability to below a level of .ignificance.
-.,
For the.e rea.on., on balance, the City find. 'that there are
planning, .ocial, and economic consideration. re.ulting from thi.
project that .erve to override and outweigh 'the project'.
unavoidable .ignificant environmantal effec'ta.
-.,
-.,
22
LJ -6 g/
C!-f
'.
DRAFT MINUTES OF PLANNING COMMISSION MEETING
OF DECEMBER 16, 1992
PLANNING COMMISSION RESOLUTION
.
.
'j-t1
-
.
.
Excerpt from Draft Minutes of Planning Commission Meeting of 12/16/92
ITEM 4:
PUBLIC HEARING: PCS-93-03: CONSIDERATION OF TENTATIVE
SUBDIVISION MAP FOR TELEGRAPH CANYON EST ATES, CHULA VISTA
TRACT 93-03 - Baldwin Vista Associates
Senior Planner Manganelli presented the staff report and recommended approval of the
subdivision based on the draft resolution which would recommend to the City Council that they
adopt a draft resolution, readopt the Statement of Overriding Considerations and Mitigation
Monitoring Program for the EIR for the project SPA plan and General Development Plan, and
recommending that the City Council approve the street names.
In reply to Commissioner Carson, Mr. Manganelli indicated where the community purpose
facilities would go if not put on the Otay Ranch, and said that a total of 1.5 acres were required.
Referring to the 82 acres, Commission Carson asked how many acres would be used for the 155
houses. Mr. Manganelli answered that the total area of the subdivision was 112 acres, and
concurred that 82 acres would be developed into residential areas, 30 acres would be for open
space and freeway right-of-way. Forty-five percent of the lots were on 50% of the land area.
Commissioner Tarantino asked if a community purpose facility was deferred to the Otay Ranch
area and did not incorporate into the City of Chula Vista, there was a potential that it could be
lost. He asked if the City would ask for any guarantees for credit somewhere else in the City.
Mr. Manganelli answered that a condition of the resolution required that before the applicant
could record their map, that facility would be provided.
Regarding transportation, Commissioner Tarantino asked if the levels of service would
deteriorate at peak hours or other times during the day. Mr. Manganelli did not believe it only
occurred at peak hours; Senior Civil Engineer Ullrich confirmed that it was the average daily
trips and not peak hour.
Commissioner Tarantino questioned whether private park land counted within the threshold of
3 acres per 1,000. Mr. Manganelli answered negatively. Assistant Planning Director Lee noted
that the State Map Act allowed for cities to consider private park areas in contribution; however,
the City of Chula Vista did not include it, and in this case would require the full payment of
fees.
Commissioner Ray noted that a street name was misspelled--should be Notre Dame Way.
Answering Chair pro tern Martin, Senior Planner Manganelli said the Fire Department had no
adverse comments regarding the 90 degree turns.
Chair pro tern Martin questioned the annexation procedure and when a building permit could be
issued. Mr. Manganelli stated a building permit could not be issued until they were annexed.
This being the time and the place as advertised, the public hearing was opened.
C;-70
~~r
Tim O'Grady, 11975 EI Camino Real, Ste 200, San Diego 92130, representing the applicant, """".
thanked the Commission and staff, and said he concurred with the report and did not contest any
of the conditions. He was available for questions.
Chair pro tern Martin asked where the community purpose facility would be placed. Mr.
O'Grady said they would like to place it off-site, and intended to fulfill their obligation.
No one else wishing to speak, the public hearing was closed.
MS (CarsonlRay) to adopt PCZ-93-03 based on the fmdings contained in the attached draft
City Council resolution and subject to the conditions stated in the resolution recommending
that the City Council approve the Council resolution approving the tentative subdivision
map for Telegraph Canyon Estates, Chula Vista Tract 93-03.
Commissioner Ray asked that the misspelling of "Norte Dame" be corrected. Commissioner
Carson concurred.
VOTE: 4-0
~
""'"
9~7/
->,-~ '/i
-
RESOLUTION NO. PCS-93-03
RESOLUTION OF THE CITY OF CHULA VISTA PLANNING COMMISSION
RECOMMENDING TIiAT THE CITY COUNCIL ADOPT A RESOLUTION
APPROVING A TENTATIVE MAP KNOWN AS TELEGRAPH CANYON
ESTATES FOR 111.8 ACRES LOCATED ON THE NORlH SIDE OF OTAY
LAKES ROAD DIRECIL Y EAST OF OT A Y LAKES LODGE MOBll..E HOME
PARK AND DIREClLY SOUTH OF EASTLAKE SHORES
WHEREAS, a duly verified application for a tentative map was filed with the City of Chula Vista
Planning Department on September 30, 1992 by Baldwin Vista Associates Limited, A California
Partnership (Developer), and
WHEREAS, said application requested approval {If a tentative map known as Telegraph Canyon
Estates (Property) to subdivide 111.8 acres located at the north side of Otay Lakes Road directly east
of Otay Lakes Lodge mobile home park and directly south of EastLake Shores (Project), and
WHEREAS, the Planning Commission set the time and place for a hearing on said request and
notice of said hearing, together with its purpose, was given by its publication in a newspaper of general
circulation in the city and its mailing to property owners within 1,000 feet of the exterior boundaries of
the Property at least 10 days prior to the hearing, and
WHEREAS, the hearing was held at the time and place as advertised, namely December 16, 1992
_ at 7:00 p.m. in the Council Chambers, 276 Fourth Avenue, before the Planning Commission and said
hearing was thereafter closed.
-
NOW, lHEREFORE, THE PLANNING COMMISSION OF lHE CITY OF CHULA VISTA
fmds, determines and resolves:
1) That the Environmental Impact Report for the Telegraph Canyon Estates
General Development Plan and Section Planning Area Plan, previously
approved by the Commission and the City Council, also applies to this
tentative map;
2) That the tentative map is consistent with the Chula Vista General Plan, and
the Telegraph Canyon Estates General Development Plan and Sectional
Planning Area Plan;
3) Recommends that the City Council adopt the draft resolution attached
hereto approving the Telegraph Canyon Estates Tentative Map based on
the fmdings therein and subject to the conditions therein;
4) Recommends that the City Council approve the street nameS submitted for
the project.
5)
That a copy of this resolution be transmitted to the applicant and the City
Council.
9-72
WPC F:'bome'IplaDDiDa\411.92 (Rev. December 22, 1992)
Resolution No. PCS.93-D3
Page 2 """"
PASSED AND APPROVED BY TIlE PLANNING COMMISSION OF CHULA VISTA,
CALIFORNIA, this 16th day of December 1992 by the following vote, to wit:
AYES:
Carson, Martin, Ray, Tarantino
NOES:
None
ABSENT:
Fuller, Moot, Tuchscher
,
ABSTENTIONS:
None
" /
~. /d11!z/
J!iIt;6t0 U . d4t....
Thomas A. Martin, Chair pro tempore
Attest:
~
,
WPC F:IbclaIe1>1ooDin8"1l.92 (R,v. Decombu 22. 1992)
~~v
,
NOTICE OF PUBLIC HEARINGS
BY THE CITY PLANNING COMMISSION AND THE CITY COUNCIL
OF CHULA VISTA, CALIFORNIA
NOTICE IS HEREBY GIVEN THAT PUBLIC HEARINGS WILL BE HELD BY THE CITY
PLANNING COMMISSION AND THE CITY COUNCIL of Chula Vista, California, for the
purpose of considering a tentative subdivision map (CVT 93-03) for approximately 112 acres
of presently unincorporated property located on the north side of Telegraph Canyon Road,
directly east of the Otay Lakes Lodge mobile home park, directly south of EastLake Shores and
directly east of the easterly terminus of Gotham Street. The proposal is to develop the property
into approximately 345 single family detached dwellings, including common open space areas.
Copies of the proposed planning and environmental documents are on file in the office of the
Planning Department.
If you wish to challenge the City's action on this proposal in court, you may be limited to
raising only those issues you or someone else raised at the public hearing described in this
notice, or in written correspondence delivered to the Planning Commission or City Council at
or prior to the public hearings.
SAID PUBLIC HEARINGS WILL BE HELD in the Council Chambers, Public Services
Building, 276 Fourth Avenue, at which time any person desiring to be heard may appear.
The CITY PLANNING COMMISSION special meeting will be held on
Wednesday, December 16, 1992, at 7:00 p.m.
The CITY COUNCIL meeting will be held on Tuesday, January 12, 1993, at
6:00 p.m.
DATED: December 2, 1992
CASE NO: PCS-93-03
~- -f f2i;'1
Nancy Riple , Secre
Chula Vista Planning Commission
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January 14, 19)~
Agenda Item No.
Meeting Date: 1/19/93
FROM:
The Honorable Mayor and City counz1~
Bruce M. Boogaard, city Attorney ~
Resolution (B,) Transfer of Jones Cable Interests
Resolution (A,) supporting Amicus Brief for Chula vista
Cable Dissolution
TO:
Re:
Please be advised that no agenda statement will be provided for
these resolutions and the City Attorney will provide an oral report
at the Council meeting.
I~'/
RESOLUTION NO. /C,q G 7
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA, CALIFORNIA DECLARING THAT THE
DISSOLUTION OF CHULA VISTA CABLE WOULD NOT BE
IN THE BEST INTEREST OF THE CABLE SUBSCRIBERS
OF THE CITY OF CHULA VISTA
WHEREAS, in , the City of Chula vista has franchised
Cox Cable of San Diego, Inc. ("Cox") to provide_ cable television
service to its residents, and since then, Cox has been providing
cable television service to almost all of the territory of the
City ("Cox Service Area"); and,
WHEREAS, in September, 1987, the city has franchised
Ultronics Cable, Inc. to provide cable television service to its
residents for a period of three years; and on June 13, 1989, said
franchise was transferred to Chula vista Cable ("CVC"). since
then, CVC has been providing cable television service to a
limited territory of the city ("CVC Service Area"); and,
WHEREAS, Jones Intercable, Inc., ("Jones") a third cable
provider, has installed cable infrastructure in the south San
Diego County area (including Rancho San Diego and conduit in
recently annexed areas of the City of Chula Vista, such as
EastLake) in an effort to offer competing cable service, but they
have reversed their intents in this regard, and now propose leave
the market area; and,
WHEREAS, Jones has proposed to sell part of their
infrastructure to Cox as they depart from the market area; and,
WHEREAS, the CVC Service Area overlaps and occupies only a
small portion of the Cox Service Area; and,
WHEREAS, in the CVC Service Area there is competition for
cable television subscribers, and in such area, Cox has lowered
its charge for cable services to all subscribers to equal the
prices charged by CVC; and,
WHEREAS, for example in the CVC Service Area, Cox and CVC
charge approximately $17 per month for basic service, and outside
the CVC Service Area, but in other parts of the Cox Service Area,
Cox charges approximately $21 per month for basic service; and,
WHEREAS, there are approximately 14,000 cable subscribers in
the CVC Service Area, approximately 4,000 of which subscribe to
CVC, and approximately 10,000 of which subscribe to Cox, all of
which are benefiting from the existence of this competitive
market; and,
WHEREAS, the elimination of CVC would eliminate said
competition and most likely result in raising the cost of basic
and higher tier services for about 14,000 subscribers.
IC)A-I
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CHULA VISTA
DOES HEREBY FIND, DETERMINE, ORDER AND RESOLVE AS FOLLOWS:
1. Jones has been removed as a competitor from the cable
television market.
2. There are now only two competing cable companies in
Chula vista--Cox and CVC.
3. The dissolution of CVC, or its sale to Cox will not
serve the best interests of the residents and cable subscribers
of the City because it will increase the cost of cable television
services in the CVC Service Area affecting approximately 14,000
current subscribers, and such additional subscribers as may come
into the CVC Service Area as said Area expands.
4. The city Council of the City of Chula vista hereby
expresses its preference that the dissolution of Chula vista
Cable, and any parent corporation, should not occur because of
the detrimental effects to the resident cable subscribers of the
City of Chula Vista, and thereby to itself.
5. This resolution shall take and be in full force and
effect immediately upon the passage and adoption hereof.
6. The City Clerk shall certify to the passage and adoption
of this Resolution; shall enter the same in the book of original
Resolutions of said City; and shall make a minute of the passage
and adoption hereof in the minutes of the meeting at which the
same is passed an adopted.
lOA-a..
RESOLUTION NO.
1/'9~ y
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA EXPRESSING ITS PREFERENCE THAT THE
TRANSFER OF JONES CABLE INTERESTS IN THE CITY
OF CHULA VISTA TO COX CABLE SHOULD NOT OCCUR.
WHEREAS, Jones Intercable has built cable television
facilities in the southern San Diego county area, both within and
outside, the territorial limits of the city of Chula vista and at
one time propos"ed to operate them to provide cable television
services to areas including the City of Chula Vista; and,
WHEREAS, it appears that Jones now proposes to sell such
cable television facilities to Cox Cable; and,
WHEREAS, based on past experience with competing cable
television providers, the quality of service has increased and the
cost of the product has decreased in areas with competing cable
operators; and,
WHEREAS, city believes that the ownership of the Jones
Cable system by Cox would have a deleterious effect on the competi-
tive provision of cable television services in the city of Chula
vista resulting in higher prices and lower quality of service to
our residents.
WHEREAS, neither Jones nor Cox has advised the Council of
the fact of the proposed Sale, or of the terms and conditions of
the Sale, and in that regard the Council needs additional
information or documentation as may be requested by staff,
including the following:
1. The purchase and sale agreement, and all collateral
agreements thereto, including any documentation required
to be executed by such agreement.
2. The application made to the Federal Trade Commission
for approval of the Sale, and all collateral exhibits,
addendum, appendices, etc. thereto.
3. The location of the assets which may be the subject
of the sale, and the price to paid for them.
NOW, THEREFORE, BE IT RESOLVED that the City Council of
the City of Chula vista does hereby express its preference that the
sale or transfer of the Jones cable facilities to Cox should not
occur until information regarding the Sale has been received by the
City, analyzed and a recommendation can be made by Staff with
regard thereto.
/P(J-j
BE IT FURTHER RESOLVED that, in the absence of receiving
contradictory information, the city Council believes that such sale
or transfer would have a deleterious effect on cable television
prices and service.
BE IT FURTHER RESOLVED that, to the extent Cox was a
joint applicant of FTC approval of the Sale, or designated Jones as
their agent to ob in FTC approval, Cox was required to file a copy
of said applicat'o with the city simulataneous with requesting FTC
approv
form by
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CllY OF
CHULA VISTA
OFFICE OF THE CITY ATTORNEY
January 13, 1993
via Telecopier
Cox Cable San Diego, Inc~
5159 Federal Boulevard
San Diego, CA 92105
Attention: Robert G. McRann, Senior vice President
Re: Request for Records Inspection and Information
Dear Mr. McRann
Thank you for your timely comments at the City Council meeting
last night at which you advised that the agreement for sale and
purchase of the Jones Intercable ("Jones") system in San Diego
county specifically does not include any portion of their assets in
Chula vista. Thank you also for your offer to provide us with
information regarding the sale. Our questions are numbered and our
requests for documentation are lettered.
We are left somewhat confused by a few facts, as follows:
1. Why did you advise our City Manager some months back tha~
the Federal Trade Commission would be contacting City staff regard-
ing the Hart-Scott-Rodino approval of said sale if the sale had no
affect on Chula vista?
2. Why, in fact, has the FTC been contacting us regarding the
sale? We would have thought that they would know, by reading the
Sales agreement, that the sale would not affect Chula vista?
3. Why didn't Jones do or say anything at the recent set-
tlement conference on Monday, after having sufficient opportunity
to do so, and knowing that staff was presenting a resolution (,f
opposition to the City Council on Tuesday, to suggest that the
Chula vista assets were excluded from the sale transaction?
We would appreciate any explanation you can offer to these
questions.
You also offered to provide us documentation verifying that
the sale does not involve the Chula vista assets of Jones. In that
regard, please provide the following documentation:
/00-,3
276 FOURTH AVE/CHULA VISTA. CALIFORNIA 91910/(619) 691-5037
January 13, 1993
Via Telecopier
Cox Cable San Diego, Inc.
Attention: Robert G. McRann, Senior vice President
Re: Request for Records Inspection and Information
Page 2
A. The purchase and sale agreement, and all collateral
agreements thereto, including any documentation required to be
executed by such agreement.
B. The application made to the Federal Trade Commission for
approval of the Sale, and all collateral exhibits, addendum,
appendices, etc. thereto.
4. If it is not going to be readily apparent from reading the
sales agreement, please advise us of the location of the assets
which may be the subject of the sale, and the price to be paid for
them.
5. Please advise, if you know, what disposition Jones intends
with regard to the Chula Vista assets.
6. Do Jones' assets in Chula vista consist of any thing other
than conduit laid in the City's rights of way?
7. Which entity applied for Hart-Scott-Rodino approval to the
FTC?
We have continued the Council resolution of opposition for an
additional week, and hope that we can receive your responses quick-
ly. Our agenda deadline is Thursday morning.
We look forward to your prompt
jones7.wp
l~lJ-1f
CITY OF CHULA VISTA
.....~_ JAN-14-' 93 1111: 57 !D: COX CABLE SAN DIEGO TEL NO: 16192665455
11292 PI1I3
515' F._....IBouIe.......
&an DIegO, CA821oe..Oao
rOl (",) 2.,-41'"
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110M" MOIlaM
Sr. Vice P....ldentJO.n.r.. M.~...
January 14, 1993
Mr. BnK:e Boogaard
City Attorney
City of Chula Vista
276 Fourth Avenue.
Chula VISta, California 91910
Re: Req,!lest for Records Insoection and Information
Dear Mr. Boogaard:
The following is in response to your January 13, 1993 letter requesting information regarding
Cox Cable's antioipated purchase of the Jones Intercable system in San DIego County:
OUeAtion 1
Why did you advise our City Manager aome months back that the Federal Trade
Commission would be contacting City staff regarding the hart-Scott-Rodino approval of
said sale if the sale had no affect on Cbula Vista?
R~,.,.
Upon being notified by the FTC that they would be contacting the City of Chula Vista
our legal counsel thought that, as a courtesy, it would be appropriate to inform the City
Manager of an impending communication.
Ouestion 2
Why, in fact, has the FTC been contacting us regarding the sale?' We would have
thought that they would know, by reading the sales agreement, that the sale would not
affect Chula Vista'?
R~nse
Cox cannot comment on the n:ason that the FrC has contacted the City of Chula Vista
regarding the sale as we have no knowledge of what their intentions are.
/IJB-S
JAN-14-' '33 10: 56 !D: COX CABLE SAN DIEGO
TEL NO: 16192665455
11292 P82. ......
.. -.-- ~
Mr. Bruce Boogaard
January 14, 1993
Page 2
Question ~
Why didn't Jones do or say anything at the recent settlement conference on Monday,
after having liufficient opportunity to do so, and knowing that staff was presenting a
resolution of opposition to the City Councll on Tuesday, to suggest that the Chuta Vista
assets were excluded from the sale trllnSaCtion'1
Resoonse
Cox does Dot know why Jones didn't say anything at the settlement conference
regarding the exclusion of Chula Vista assets from the sales transaction.
The following response is made to your request for documentation verifying that the sale does
not involve the Otula Vista assets of Jones.
A) The purchase and sale agreement and all collateral agreements thereto including
any documents required to be executed by such agreement are being negotiated between
the parties and, as such, are confidential.
B) The application made to the Pre for approval of sale and all collatenll exhibits,
addendum.s, appendices, etc., theceto including any documents required to be executed
by such agreement contain proprietary information and are confidential, as a matter of
Federal taw , pursuant to the Hart-Scott-Rodino Act.
4) Regarding parlIlrlIph 4 on page 2 of your request, please be advised that as
represented at the City Council meeting of January 12, 1992, the conduit owned by
Jones lntercable San Diego, Inc. in the &slIake development in the City of Chula Vista
will not be part of the transaction. In addition, Jones will retain ownersblp of its Mt.
Miguel microwave site and related assets after the transaction. The specific locat1on of
the EaslIake development assets and the related price are unknown to Cox.
5) Cox does not know what disposition Jones intends with regard to the Chula
Vista assets.
6) Cox is unaware of any other assets, other than the conduit laid in the City's
rights of way. that are owned by Jones.
/~B-~
JAN-14-'93 11'1:56 ID:COX CABLE SAN DIEGO
TEL NO: 16192665455
11292 Pi'll
J
.
Mr. Bruce Boopard
January 14, 1993
Page 3
7) Both Cox Cable and JOlIes mter<:able, as requin:d by law, made separate filinlS
pursuant to the Hart-Scott-Rodino Act.
Should you require any further information rcganlinc this subjea, please do not hesitate to
contact me or, in my absence, Roben Self, Cox Cable San Diego Legal Counsel.
Robert McRann
RMc/dU
00: Robert Self
jl/!J-?
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CllY OF
CHUlA VISTA
OFFICE OF THE CITY ATTORNEY
January 14, 1993
Robert G. McRann
Senior vice President
Cox Cable San Diego, Inc.
5159 Federal Boulevard
San Diego, Ca. 92105
Re: Request for Records Inspection and Information
Dear Mr. McRann:
We did not find your response of January 14, 1993 to be
particularly illuminating and would appreciate it if you could
provide us with convincing documentary evidence to substantiate
your contention that Cox Cable's proposed purchase of the Jones
Intercable system in San Diego County does not include Chula vista
assets.
Furthermore, your response to Question 4 indicates that the conduit
owned by Jones Intercable in the EastLake Development of Chula
vista will not be part of the transaction. Please advise if the
conduit owned by Jones in any other part of the City would be part
of the transaction, including but not limited to, Sunbow, Rancho
Del Rey, etc.
Furthermore, please be advised that since we were not able to
verify your statement to the Council, we will be placing the
resolution expressing the Council's opposition to the transaction
back on the agenda until independent verifying information can be
obtained regarding the nature of the transaction.
Furthermore, please be advised that to the extent there is any part
of the transaction affecting the city of Chula Vista, section 17 of
your franchise with the city obligates you to submit any
"petitions, applications and communications" of all types submitted
by you to any federal or state regulatory commission, to
simultaneous to the city or grantee.
To the extent, there may be any acquisition by your operation of
any Jones asset in the city of Chula Vista, this Section obligates
/tJ!S -j 0
276 FOURTH AVE/CHULA VISTA. CALIFORNIA 91910/(619) 691-5037
Robert G. McRann
January 14, 1993
Page 2
you to submit all applications to the Federal Trade Commission to
the City of Chula vista. Therefore, please reconsider your claim
of confidentiality in light of your mandatory obligation under
Section 17.
Please be advised that Jones made the statement in front of the
Judge on Monday that the contract of sale has been fully negotiated
between the parties and is, therefore, a completed document. That
is inconsistent with your statement in Paragraph A of Page 2 of
your letter of January 14, 1993 that it is the subject of ongoing
negotiations. Please reconfirm that the sales agreement has not
been executed.
rely, I
It)
Bruce M. Boogaard
city Attorney
BMB:lgk
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CITY OF CHULA VISTA
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11353 P01
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January 15, 1993
Mr. Bruce Boogaard
City Attorney
City of Chula Vista
276 Fourth Avenue
Chula Vista, California 92910
Via 'Fax
Re: R@mleet fo~ RAcnrdA TnApe~tinn and Jnf~TmAtinn
Dear Mr. Boogaard:
In response to your letter of January 14, 1993, you have our
assurance that the proposed transaction between Cox Cable San Diego,
Inc., and Jones Intercable of San Diego, Inc., will not include any
assets of Jones within the City of Chula Vista, including the areas
of Eastlake, Sunbow and Rancho Del Rey. The same assurance has been
provided to the Federal Trade Commission. Materials filed with the
FTC .pursuant to the Hart-Scott-Rodino Act are confidential as a
matter of law, and they are not available to other parties for
review.
With regard to Cox;s obligations under its .franchise with the City
of Chula Vista, because the proposed. transaction will not involve
Cox's system in Chula Vista, Section 17 of the franchise with the
City does not apply. . I tJ if -J 2...
As of this writing, there is no finalized purchase agreement
regarding the proposed "-r..n,u,,,"4^_ ..._~..___ _
City doe. not agply.
As of. ehis writing, there is no finalized purchase agreement
regarding the proposed transaction between COJl: and Jones. Such an
agreement will not be finally negotiated until after the FTC has
reviewed the proposed transaction.
.. _....~...-
""'~"'CIl,
l:leet~on 17 of the franchise with the
- -............"-"
This letter is the written assurance of Cox to the City. This
should be sufficient. It would be pointless for the Council to
ignore this letter just to pass a resolution expressing its
OPposition to a transaction that simply will not affect the City of
Chula Vista.
/jJ[J~O
.JF'tI-15-'93 15,24. ID:CQX CAELE 5FH DIEGO
,.
Mr, Bruce Boogaard
January IS, :1.993
Page 2
'fa HJ: 16192665455
lI353 Plil2
)
If you need additional information or verification, please contact
James Treanor or avid Mills at Cow, Lohnes & Albertson in
Wash' on, D.C., ( 2) 857-2500, our counsel on this matter.
,
RMc/ks
)fJ!J ~II
al/15/1993 15:11 &1 94224a&a
u.. TRCiN-ICS. INC.
PAGE a1
ULTRONICS, INC.
253 'IbirdAvenue. ChuIa Vista, CaliforDia 91910
FAX TRANSMITIAL
TO, DATE, I/t.~ FAlWt/1J /.f2-!> 'If'!
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IF YOU DO NOT RECEIVE ALL OF TIlE PAGES, PLEASE CALL
ULTRONICS. INC., IMMEDIATELY
AT THE PHONE NUMBER
LISTED BELOW .
PHONENUMBER (619)422-0796 FAXNUMBER (619)422-4060
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!)ear Mr. Roe:
Dut'1nO 1:M paet: f_ week8. ancs 1I08t recen1:ly yA81:llrday. -
heve d1acu.8l1l'1 1:1\8 14ee Of approaCJU.n; COIl cable Ban D.iego. 1110.
("COx.) regard.itlg 1:he purana.e Of Ultftm1.C8, Na't1onal C1~ eel/18
.n4 Chul.a Y1111:ll Cabl. ("the CoIIlpan1..-). a. _ .d1ecua_lOi. I
beH.eve COli rBlllll:l.ns 1nttlre&1:ed 1n acqu:l.81't1on 01' 'the Coalpen1_ for
a n""'~ o~ rea.ons. My 011801:8 ere 1ft a poeil.'t1on 1:0 1n11:1at:e
nego1::Lat:ions "i~ COX ~ard.ing 1:h18 acqui8ition but. 1n onSet' to
nego'Uaw effeot:1vely, rllUld ~. wr.it:1:8O eU'thori'ty of your o1ien~
and Ule Al'tbaume w QOftv1.nCe Cos UlAt a 8ale 18 a real po8.:l.b11:f.1:1.
ACOOrd.ingly, on I:JeMlf of ., clumt:., ;( ~t ~'t Ult;nm1~
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t:he even1: my 011en.1:8 are able to praaure 1m of1'~ eq\I81 to 01" 1n
_CUI. ot 't:he t:en mJ.1H.on dollar. ($10. 000.000.00) on t;.~ eneS
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J.etter to C. Fo~..t Bannon. lSaq. of your firm dated February 25.
1992.
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COlI1Pen.1..., I b&1:1._ everyone 1.. ewere 'that COa wou1lS ~ esrz:ee to
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of 'the 00IlIpanJ... 1.. of . _gni tude wbiOll woul.d. aocorcung to
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d1._pprovu of ~8 _le. All you :l.Ddloate4 re8tereSay. ·
prOfe.sional lIlII'IagBZ' could be appoln'ted 'to .,.:I.nJ.8'tllr 1;he CompanJ._
d~lDg the 1fti:Br1lll per10d !)e'tWBBn agt'__t 1:0 B.l1 and actual
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VZA ~acslaxLB (611) 425-6184
CX)1I1P~D.ft%n
AftORJlBY/CLZBRT PRZV3:LBOB
Bruce Booqaard, Esquire
city Attorney
City of Chula Vi.ta
~76 Fourth Avenue
Chula Vista, CA 91910
Re: Rancho del ReV ImDlemlmt;,a~ion
Altfreementa
Dear Brucez
Per your request, the following ia a aum:mary of the
riaks to the City ot Chulll vl..t..... in the event that the City
council approves the proposed implementation agreements with
bart, Home Depot and The prioe cOIIpany for the construct.ion of
new retail facilities within the Rancho del Rey Project in
chula Vista.
1". lOn..rt and Home Danat. There is no expenditure of
City funds involved in either the KIIart or the Home Depot
Aqreement.
a. BOlle Depot has aqreed t.o operate t.he new
Home Depot taoility tor ten (10) year.. If Home Depot closes
the new facility prior to ten (10) years, the mal% remCldy the
City will have is reoeipt of $75,000 per year for each of the
ten years whioh HOlDe Depot fails to operate the new facility.
Home Depot will sell or lease their existing
faoility to a third party. As of this writing, "elIotiations
are on-going as to any limitation on the nwaber or nature of
the uses that may replaoe the existing Home Depot.
)/-/
.
.
.
.
011"191'93 15:43
tt714 955 9437
SllR&H
1a1003
SHEPPARD, MULL.IN, RICHTER & HAMPTON
Bruce Booqllard, Esquire
January 19, 1993
Page 2
b. gallrt will be allowed to pay their
transportation development 1Dpllct fee (the "DIF") over a 10-
Iellr period. To the extent that the city constructs
JlP2."OVelllenta de.ignated to be constructed with the DIF funds
durinq the ten year period, the City will need to provide that
portion of the DIP which ha$ not yet been paid.
ltlllart has agreed to operate the new facility in
Rancho del Rey and their existinq facility for ten (10) years.
In the event that bart defaults on their Obligations, the
city'S JI2lJl rellledy i. receipt of the then unpaid portion of the
DIF plus interest (at 8t) trom the date of default to the date
on which the last DIF payuent is due. There is the risk that
bart will have the benefit Of a deferral of the DIF without
fully complyinq with the terms of the Agre_ent, however, the
DIP deferral will terminate upon default.
2. Price Club. The Price ClUb Agre8lllent requires
the City to expend $835,000.00 to acquire certain street
improvements necessitated by the project and the expenditure of
$1,892,000.00 lent to the City by The Price Company to acquire
certain public iIIlprovelllents required by the Project and in
consideration of KcMillin '. perforllll-nce of its obliqations
under the Price ClUb Agreement. The C1ty 1s obligClted to repay
The Price COlllpany over a ten (10) ~aar period. 'l'he City'.
obligation to repay the $1,892,000.00 i. contingent upon the
new Price Club remaininq in operation for ten (10) years and
the histinq Price Club r_alning in operation for eight (8)
years.
Neither the $835,000.00 nor the $1,892,000.00 will be
expended until all of the conditions to effectiveness set forth
in the Price Club Aqreement have been C!01IIplied with, The.e
conditions include close of .scrow on the transfer or the Price
Club Parcel lUId completion of a valieSation action with a
judCJ1llent supporting the legality Of the Price Club Agre_ent.
a. :In the event that the new Price Club is not
built within the required time, the $1,892,000.00 lolUl is
forgiven and McMillin is obliqated to repay the $83',000.00 to
City. There is a risk that if the store opens late due to
force aCljeure the City will be Obliqated to pay additional
interest costs. Although the obliqation to .ake payments 1s
suspended during force aajeure, interest continues to accrue.
//--c2-
i
.
.
.
01r19~3 15:44
tt714 955 9437
SHR&:H
1i!1004
Sl1e:PPAftD, MULLIN, RICI1TER & HAMPTON
Bruce Booqaard, Esquire
January 19, 1993
Page 3
b. In the event that after the new store
opens, it is permanently closed as defined in tha Aqre_nt,
the $1,892,000.00 is torqlven. In this event, the City will
~ receive repayment from any party ot the $835,000.00.
c. In the event the existing- .tore eloses
within eight (8) years, the $1,892,000.00 loan will be forgiven
and The Price company will reimburse the City the $835,000.00
coat of the .treet 1IlIprovelllQJlt. unless in any t_Ive (13) month
period the retail ..le. of the existing store are less than
sixty million dollars ($60,000,000.00). If sa 1.. at the
existinqstore fall below $60 million, the existing store may
close and the city will remain obligated to repay the
$1,892,000.00 and will 82l receive reimbursement of the
$835,000.00.
As noted above there is the risk that one of the
Price Club facilities may close and the City will not receive
reimbursement of the $835,000.00 investment and will remain
obliqated to repay the $1,892,000.00 loan. If both Price Club
facilities close, there 18 no additional ooapensation to the
city.
Also, to the extent I.ba.1. 1.11" City halO repaid a
portion of the $1,892,000.00 prior to a clos,tre of one of the
Price Club stores, the City will not receive reimbursemant of
the amount previously paid.
Very truly yours,
~IY
for SHEPPARD, MtlLLIN, RICHTER & HAMPTON
HS: pIg
"l.alJl.tIV.I&lJ
ee: Cheryl Dye (via facsilllile)
//~J
COUNCIL AGENDA STATEMENT
SUBMITTED BY:
Item 1//1
Meeting Date 01/19/93
Resolution I" 'I +"~roving and Authorizing Execution of an
Implementing Agreement with Major Retailer A (Home Depot), Rancho
del Rey Commercial Center, and Related CEQA Findings
Community Development Director {-~ .
ITEM TITLE:
REVIEWED BY: City Manager
(4/5ths Vote: Yes
No _XJ
BACKGROUND: On November 24, 1992, Council held a public hearing and subsequently
adopted Resolution 16900 and held the first reading of Ordinance 2535 relating to the conversion
of the western 55 acres of the Rancho del Rey Employment Park to a Commercial Center land
use designation and related regulatory actions including CEQA considerations. The second
reading of this ordinance was approved on November 30, 1992. Approval of the ordinance
included adoption of a Development Agreement with the applicant/developer of the Commercial
Center for all portions of the site excluding the easternmost parcel designated for Major
Retailer A. This Development Agreement covers the parcel to be purchased by Home Depot,
and requires an Implementing Agreement be entered into between Home Depot and the City
prior to the issuance of a building permit. The proposed Implementing Agreement (attached)
implements the Development Agreement and provides for benefits to Home Depot as well as
performance assurances to the City. The agreement was initially submitted to Council on
December 15, 1992, at which time it was continued to a future meeting.
RECOMMENDATION: That Council approve the resolution authorizing the Mayor to execute
the proposed Implementing Agreement with Home Depot, and making certain CEQA findings.
BOARDS/COMMISSIONS RECOMMENDATION: The following boards and commissions
reviewed the actions taken by Council on November 24, as discussed in the November 24
agenda statement:
o Resource Conservation Commission - Endorsed project
o Design Review Committee - Endorsed amended Employment Park design guidelines
o Economic Development Commission - Endorsed project
o Planning Commission - Certified FSEIR and recommended approval of resolution and
ordinance, including Development Agreement
No group has reviewed the attached Implementing Agreement document. However, the key
proposed terms of the agreement and their status were outlined in the November 18 Planning
Commission staff report.
///1-/
Page 2, Item JIll
Meeting Date 01119/93
DISCUSSION:
A. HOME DEPOT - GENERAL INFORMATION
Home Depot is a 12 year old company and is the nation's largest chain of warehouse-size do-it-
yourself stores. Home Depot has outgrown its current 95,000 square foot facility at Terra Nova
Plaza (80,000 square feet general merchandise plus 15,000 square foot garden center) resulting
in problems with parking, storage and productivity. The proposed agreement allows Home
Depot to build a new 125, 280 square foot facility (104,740 square feet plus a 20,540 square
foot garden center) at the Rancho del Rey Commercial Center.
Home Depot owns the store at Terra Nova and is actively negotiating with several retailers to
lease or sell the property. Home Depot is highly motivated to secure a replacement tenant due
to a high carry on the property. The Terra Nova Plaza is subject to stringent development
standards with limited allowable uses (see Attachment 4 of Agreement). Examples of potential
replacement tenants include clothing store, electronics, office supply and furnishings.
Home Depot indicates that they have been searching for a second location for two years but have
been unable to find one in Chula Vista. As a result, they have decided to relocate and expand
their operations within the same general market area.
B. DEVELOPMENT AGREEMENT REOUIREMENTS
The Development Agreement, as approved by Ordinance on November 24 and November 30,
requires that an Implementing Agreement be entered into with each of Major Retailers A and
B prior to issuing permits. The Development Agreement stipulates that each of these two
Implementing Agreements shall include (but not be limited to):
1. Agreement to open a minimum 100,000 square foot store within 18 months of the
Implementing Agreement execution.
2. Covenant to operate the H Street store for a minimum of 10 years.
3. Proactive employment outreach to Chula Vista residents.
4. Evidence of financing.
In terms of benefits to the 2 majors, the Development Agreement provides for a vesting of land
uses, Traffic Signal fees, and TDIF fees for a period of 5 years ("land use term"). It also
exempts the 2 majors from future TDIF programs/fees.
C.
HOME DEPOT IMPLEMENTING AGREEMENT
NEGOTIA TIONS/PRESENT A TION TO COUNCIL
HISTORY OF
Negotiations with the three major retailers, including Home Depot, commenced concurrently
with processing the "Power Center" land use entitlements. In an attempt to keep both the
Planning Commission and Council informed, staff outlined the prooosed terms of the agreements
as they were evolving in negotiations, in the November 18 Planning Commission agenda item
and in the November 24 Council agenda statement. These terms, precisely as they were
///1"';"
Page 3, Item 1.lt1..
Meeting Date 01119193
presented in these staff reports, and as updated verbally at the Council meeting, as well as the
terms currently being proposed for approval are delineated below:
November 18 Plannin2 Commission A2enda Item (Land Use Entitlements and
Develo{)ment A2reement)
"As indicated, at the time of the repon preparation, negotiations are on-roinr with Price
Club, Home Depot and Kman. The general terms of each Draft Implementing Agreement
are summarized here:
City Requirements:
I. The City will have the right to approve the Terra Nova Center replacement tenant.
(Note: Home Depot has indicated an unwillingness to agree to this term.)
2. Home Depot will open the H Street store within 18 months of gaining title.
3. Home Depot will operate its new store for a minimum often (10) years. In the
event the store closes during the ten (10) year period, the City will receive
payment in compensation for lost revenues equal to $75,000 for each year of early
closure.
City Assistance:
"No direct financial assistance is being provided; indirect
assistance is provided via the assistance to the project developer. "
November 24 Council A2enda Statement (Land Use/Deve)onment A2reement)
As indicated, nerotiations are on-roinr with Price Club, Home Depot and Kmart. The
general terms of each Draft Implementing Agreement are summarized here:
City Requirements:
I. The City has requested the right to approve the Terra Nova Center replacement
tenant; Home Depot has indicated an unwillingness to agree to this term. (Note:
Attachment C to this A -113 provides the existing Development Standards for the
Terra Nova Plaza, outlining allowable uses.)
2. Same as above.
3. Same as above.
City Assistance: Same as above.
November 24 Council Meetin2 - Staff Comments
Legal counsel Marcia Scully noted that "the agreements as drafted provide for economic
damages, not specific performance. "
///1' J
Page 4, Item 1lA..
Meeting Date 01/19/93
ProDosed Al!reement Terms
The terms as presented in the December 15 agenda statement are reproduced below with
modifications shown to reflect currently proposed terms.
1.
Section 3 of the Agreement has been revised regarding the City's right of
approval of the replacement tenant at the Terra Nova Plaza. Current language as
proposed requires the developer to use its best l!U~&~W!1.1l!Ui1f_6~pl~ efforts
to minimize the time the existing facility wil(hevacani^(iiiJ toensure'that the
replacement retailer is recognized as a prominent, leading business in its retail
field. (Note: allowed uses are delineated in the Terra Nova Plaza Development
Standards which are incorporated into the Agreement as Attachment 5. Uses not
clearly identified as eligible may be reviewed by the Chula Vista Planning
Commission for consistency with adjacent uses). Also, staff is still trying to
develop an acceptable compromise to give us more leverage in determining who
the replacement tenants will be.
2.
gi!"P!~I'!!'~\~!~'''dlllt":;!!';~~~~~!;:~~;!
3.
fl'9m~m~1I~~~y~!!lmt~.t411~ll~II~1~~~I:j9rwim!Ii!!m~m'&tl~~}lll~
In the event the new H Street store closes prior to ten years from opening, the
City will receive limited economic damages equal to $75,000 for each year of
early closure.
4.
Home Depot will provide a proactive approach to recruiting;, training and/or
hiring employees from the local community, including significant effort to work
with local education and training provider~~~~~~~;~:~~f\Vf!~~f!~~~~E~~
Sehaal District and S8l:ithwesteffl C8lkge ~m:;:i;:~!IlH!Uiimmqg:I~!!!ftH~ilt
fI~~m~! The reference to specific providers has been deleted and replaced with
language requiring Home Depot to work with local providers as specified by the
City Manager.
Note that staff had indicated Home Depot's unwillingness to allow the City the right to
approve the replacement tenant in previous staff reports. Home Depot is willing to
covenant to keep the H Street store open based upon limited economic damages as
provided in the agreement.
D. ENVIRONMENTAL REVIEW
The Rancho del Rey Commercial Center Final SEIR has analyzed impacts associated with the
proposed Implementing Agreement. This same FSEIR was certified by City Council on
November 24, 1992. The proposed Implementing Agreement carries out the Development
Agreement that was identified in the Final SEIR. Thus, no new environmental issues arise from
IIA~'i
, .!
"
Page 5, Item 1/11
Meeting Date 01119/93
approval of this Implementing Agreement, and the Rancho del Rey Commercial Center Final
SEIR is the appropriate CEQA document. Likewise, the Candidate CEQA Findings (as modified
at the November 24 meeting), the Statement of Overriding Considerations, and the Mitigation
Monitoring and Reporting Program remain the appropriate documents to accompany the
proposed action.
E. ECONOMIC AND FISCAL IMPACT
The proposed new store will employ approximately 175 people (150 full time and 25 part time).
This is a 20% increase over the existing number of employees at the Terra Nova Plaza. (The
entire Rancho del Rey Commercial Center will create an estimated 1224 jobs.)
In terms of revenues, the Commercial Center will generate first year Net New Revenues of
$1.21 million. The new Home Depot alone is projected to generate $584,000 in Gross Sales
Tax Revenues. After accounting for the loss of revenues from the Terra Nova store, the H
Street Home Depot is projected to generate $195,000 in Year 1 Net New Sales Tax Revenues.
(This assumes a replacement tenant that generates less than 20% of revenues currently generated
by Home Depot, or $102,000, a highly conservative assumption.)
C:\WPSl \oYE\HOMEDEP2.113
/IA ,5
RESOLUTION NO. 161'/(;)
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
APPROVING AN IMPLEMENTING AGREEMENT WITH HOME DEPOT
U.S.A., INC. TO CARRY OUT THE DEVELOPMENT AGREEMENT FOR
DEVELOPMENT OF A RETAIL STORE AT THE RANCHO DEL REY
COMMERCIAL CENTER
WHEREAS, on November 24, 1992, the City Council approved Resolution No. 16900
("Entitlements Resolution") and the first reading of Ordinance No. 2535 ("Entitlements
Ordinance"), collectively certifying the FSEIR (as defined therein which definition is
incorporated herein by reference), amending the General Plan, EI Rancho del Rey Specific Plan,
Rancho del Rey Sectional Planning Area (SPA) I, Planned Community District Regulations,
Rancho del Rey Employment Park Design Guidelines, and PFFP, and approving the Air Quality
Plan Water Conservation Plan, Tentative Maps, street name change and Development
Agreement, and making certain Findings and Statement of Overriding Considerations; and,
WHEREAS, the City Council held the second reading of the Entitlements Ordinance
(approving the Development Agreement) on November 30, 1992; and,
WHEREAS, A General Condition of Approval of the Commercial Center project
requires that an Implementing Agreement or other similar agreement be entered into between
each of Major Retailers A, B, and C and the City prior to each retailer commencing
development; and,
WHEREAS, the proposed Implementing Agreement with Home Depot (alternatively
herein referred to as the "Project" as when making reference to CEQA related matters)
implements the approved Development Agreement and provides assurances to the retailer and
the City as approved by Council; and,
WHEREAS, the Implementing Agreement stipulates that within 90 days the City and
Retailer shall enter into a letter agreement defining Retailer's employment outreach obligations,
and such letter is hereby authorized to be executed by the City Manager on behalf of the City;
and,
WHEREAS, the Rancho del Rey Commercial Center FSEIR has analyzed impacts
associated with the proposed Project and was certified by Council on November 24, 1992 and
carries out the Development Agreement as identified in \he FSEIR; and,
rdrhdl. wp
January 7, 1993
Reso approving Home Depot Agmt
Page 1
IIA ...?
NOW, THEREFORE, THE CITY COUNCIL DOES HEREBY FIND,
DETERMINE, RESOLVE AND ORDER AS FOLLOWS:
I. FSEIR Contents.
The FSEIR consists of the following:
A. "Final Supplemental Environmental Impact Report - Ranch del Rey Commercial
Center" (EIR 92-02) prepared by Robert Bein, William Frost & Associates (RBF) and dated
October 5, 1992 SCH # 92051032, which contains the Draft Supplemental Environmental Impact
Report ("DSEIR") distributed date July 21, 1992, revised to reflect responses made to comments
on the DSEIR, and the comments and responses to the DSEIR; and
B. Appendices (A through D) to Final Supplemental Environmental Impact Report.
C. Technical studies and information incorporated in the responses to comment.
II. FSEIR Reviewed and Considered.
The City Council of the City of Chula Vista has reviewed, analyzed and considered
FSEIR 92-02, the environmental impacts therein identified for this Project; the Candidate CEQA
Findings attached to the Entitlements Resolution as Attachment A, the proposed mitigation
measures contained therein, the Mitigation Monitoring and Reporting Program attached to the
Entitlements Resolution as Attachment B, and the Statement of Overriding Considerations which
is attached to the Entitlements Resolution as Attachment C prior to approving the Project.
III. Certification of Compliance with CEQA.
The City Council does hereby find that FSEIR 92-02, the Candidate CEQA Findings, the
Mitigation Monitoring and Reporting Program, and the Statement of Overriding Considerations
are prepared for this Project in accordance with requirements of the California Environmental
Quality Act, the State EIR Guidelines, and the Environmental Review Procedures of the City
of Chula Vista.
IV. Independent Judgement of City Council
The City Council finds that the FSEIR reflects the independent judgement of the City of
Chula Vista City Council.
V. Approval of Implementing Agreement
The City Council of the City of Chula Vista does hereby approve the Implementing
Agreement with Home Depot, U.S.A., Inc. in the form presented, authorizes the City Manager
rdrhdl. wp
December 15, 1992
Reso approving Home Depot Agmt
Page 2
11/1-- ?
in conjunction with the approval of the City Attorney, to make minor, modifications thereto
prior to presentation to the Mayor for execution, and does hereby authorize the Mayor to execute
the Implementing Agreement substantially in the form presented together with such changes as
may be approved by the City Manager and City Attorney.
VI. Findings re Consistency with the General Plan.
The City Council hereby finds that the Project is and will be consistent with the general
plan for the reasons advanced in the Entitlements Resolution which reasons are incorporated
herein by reference.
VII. CEQA Findings, Mitigation Monitoring Program, and Statement of Overriding
Considerations.
A. Adoption of Findings.
The City Council does hereby approve, accept as its own, incorporate as if set
forth in full herein, and make each and every one of the findings contained in the
"Findings of Fact Re Proposed Rancho Del Rey Commercial Center" attached to
the Entitlements Resolution as ~t Ai NOT SCANNED
B. Certain Mitigation Measures Feasible and Adopted.
As more fully identified and set forth in the master EIR for the Rancho del Rey
SPA I (EIR-87-01) and the supplemental environmental document (EIR-92-02)
and in the CEQA Findings for this project, which is attached to the Entitlements
Resolution as Attachment A, the Council hereby finds pursuant to Public
Resources Code Section 21081 and CEQA Guidelines Section 15091 that the
mitigation measures described in the above referenced documents are feasible and
will become binding upon the entity (such as the project proponent, the City, or
the school district) assigned thereby to implement same.
C. Infeasibility of Alternatives.
As is also noted in the above referenced environmental documents described in
the above subparagraph B, alternatives to the project which were identified as
potentially feasible in the EIR were found not to be feasible except the Site Plan
Alternative which is hereby rejected because the Project, as mitigated, already
reduces the impact on traffic to a level of less than significance.
D Adoption of Mitigation Monitoring and Reporting Program.
rdrhdl.wp
December 15, 1992
Reso approving Home Depot Agmt
Page 3
//~ ;'6
As required by the Public Resources Code Section 21081.6, the City Council
hereby adopts Mitigation Monitoring and Reporting Program ("Program") set
forth in Attachment B to the Entitlements Resolution incorporated herein by
reference as set forth in full. The Council hereby finds that the Program is
designed to ensure that during project implementation the permittee/project
applicant and any other responsible parties implement the project components and
comply with the feasible mitigation measures identified in the Findings and the
Program.
E. Statement of Overriding Considerations.
Even after the adoption of all feasible mitigation measures and any feasible
alternatives, certain significant or potentially significant environmental effects
caused by the project or cumulatively will remain. Therefore, the City Council
of the City of Chula Vista hereby issues, pursuant to CEQA Guideline Section
15093, a Statement of Overriding Considerations in the form set forth in
Attachment C, attached to the Entitlements Resolution and incorporated herein as
if set forth in full, identifying the specific economic, social, and other
considerations that render the unavoidable significant adverse environmental
effects acceptable.
p Notice of Determination
The Environmental Review Coordinator of the City of Chula Vista is directed after City
Council approval of this Project to ensure that a Notice of Determination, together with a copy
of this resolution, its exhibits, and all resolutions passed by the City Council in connection with
this Project, is filed with the County Clerk of the County of San Diego.
~,~a
-
Bruce M. Boogaar
City Attorney
Presented by:
Chris Salomone
Community Development Director
rdrhdl.wp
December 15, 1992
Reso approving Home Depot Agmt
Page 4
/M -&j //111-10
MEMORANDUM
January 18, 1993
TO: The Honorable Mayor and City Council
John D. Goss, City Manager trtf'f~
Chris Salomone, Community Development Director
VIA:
FROM:
v.5-
SUBJECT: Home Depot Implementing Agreement - Changes to Page 5 Regarding
Replacement Tenant (January 19, 1993 Agenda)
Due to the concerns expressed by Council, Home depot has agreed to restrictions imposed by
the City regarding the reuse of their Terra Nova facility. Attached is a revised page 5 of their
agreement. The key provisions are as follows (#3 has been added):
1. Home Depot will make all reasonable efforts to ensure that a replacement retailer opens
within 6 months of Home Depot's vacating.
2. If the store is leased, Home Depot will make all reasonable efforts to ensure that the
replacement retailer is recognized as a prominent, leading business in its retail field.
3. Home Depot will lease to a maximum of 3 retailers; prior written consent of the City
will be required in order for Home Depot to lease to more than three retailers.
4. Uses will be limited to those allowed in the Terra Nova Development Standards. And,
specifically prohibited uses include second-hand stores. thrift shops. iunk stores. pawn
shops. swap meets and flea markets. Uses not clearly allowed may be taken before the
Planning Commission.
J / /J .-r//
01119/93 15: 02
!r1 714 851 0739
SlIRU
1iII002
3. Existina store. It is the intent and the ob1igat.ion
of: Developer to use all commercially reasonable efforts t.o
minimize the length of tillle during which the Existing store will
be vacant. Developer shall make all commercially reasonable
efforts to contract with a Replacement Retailer during the
construction of the New Facility and to complete any and all
tenant improvements or other modifications to the Existing store
as are necesllary to accommodate the Replace1lleJ1t Retailer in order
to insure that a Replacement Retailer will commence operations
within the Existing store within 180 days of. the date the
Existing store is vacated by Developer. '
:In the event the Existing store is leased to a Replacement
Retailer or RetailQrS, the Developer shall use all commeroially
reasonable efforts to (i) insure that any Replacement Retailer
is recoqnized as a prominent, leading business in its retail
field I and (ii) lease 100% of the rloor area of the Exie;ting
.. st:ore~t'o ~a""1lfaX'i:1i1Ullrl:lf"" threcr'" t'3'''''ltePlaeement-'Re~aU;~"J;a~no--.'-'
"nU/geven~;:'~howeveri..h~1.'l:HDeveloper':tease the Existing' store to more ~~t(l~
than three (3) ReplaOClment Retailers without the prior written .. ,
consent of the city, which consent shll]']' not be unreasona])ly
withheld or delayed.
The Replaoement:. Retailer(s) shall be limited to usee;
permitted ,under the Terra Noya Plaza DevalopmentS~ndards (the
~,DtrV:elopm.nt standards") attached hereto 8J:lCS incorpc:irat~d herein
'l::l~ :this reference as Attachment No.4; Developer shall not leae;e
the:Exlsting Store to any Replacement Retailer for the operation
of a.ny form of seoondhand store, thrift shOp, jqnk store, pawn
shop, swap meet or" flea market. Uses whioh are not clearly
ident.ified as eligible by' the Developlllent standards. lIIay be
reviewed by the ChUla vist:a pl.anning commission in order to
determine'whether they are oonaistent 'with the purpose of the
Development standards.
:It is specifically agreed, however, that the foregoing
restrictions on leasinq of the Existing store shall not apply in
the event Developer enters into a contract to sell or transfer
i t9 interee;ts in 1;he real property and the improvements.
Developer speoifically agrees to disolosein writing to any
potential purchaser of 1;he Existing store. that in addition to the
Develop11lent Standards, and any other ordinance or re~atio~
applicable to the Exist.ing Store, city prohibit!> use of the
Existinq store for any torm of e;eoondhand. store, thrift shop,
junk storE!, pawn shoP, swap meet or flea market.
'\A01~1'T._ 01/19193
///li~
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RANCHO DEL REY COMMERCIAL CENTER
13
IMPLEMENTATION AGREEMENT
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HOME DEPOT
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RECITALS
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AGREEMENT
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7 3.
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S\A01341lH.NAI
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TABLE OF CONTENTS
Purpose
Construction and Operation of a new Home Depot on
the site . . .
Existing store
DIF Fees. . . .
Employment Outreach and Training.
Default . . . . . .
Liquidated Damages
Force Majeure.
Effective Date
Failure to Approve Development Agreement
Attorneys' Fees. . . . . . . .
Notices . . . . . . . . . . . .
Entire Agreement and Amendments
Choice of Law . . . . . . .
No Third Party Beneficiary
Time of Essence . . . . . .
-i-
/1/1 --/1
Paqe
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''\/7
L
1 ATTACHMENTS
2
3 Attachment 1 - Description of the Property
4 Attachment 2 - Description of the Site
5 Attachment 3 - Plot Plan
6 Attachment 4 - Terra Nova Plaza Development Standards
7
8
9
10
11
12
13
14
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RANCHO DEL REY COMMERCIAL CENTER
2
IMPLEMENTATION AGREEMENT
3
HOME DEPOT
4
5
6
This Implementation Agreement (the "Agreement") is made
7 and entered into as of this
, 199_, by
day of
8 and between the CITY OF CHULA VISTA, a municipal corporation having
9 charter powers ("City") and HOME DEPOT, U.S.A., INC., a Delaware
10 corporation ("Developer"), with reference to the recitals set forth
11 below:
12
13
RECITALS
14
15
A.
Developer understands that city, Rancho del Rey
16 Partnership and Rancho del Rey Business Center Ltd. (collectively
17 "Owner"), have heretofore entered or intend, subject to all legally
18 required notification and hearings, to hereafter enter into that
19 certain Development Agreement (the "Development Agreement") for the
20 Rancho del Rey Commercial Center with respect to the development of
21 certain real property (the "property") owned by Owner and more par-
22 ticularly described for purposes of identification in the
23 Description of the Property attached hereto and incorporated herein
24 by this reference as Attachment No.1.
25
26
B.
Developer, pursuant to that certain purchase and sale
27 agreement (the "Purchase Agreement") entered into as of
28 199
between Developer and Owner intends to acquire a portion of
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1 the Property (the "Site") more particularly described for purposes
2 of identification in the Description of the site attached hereto and
3 incorporated herein by this reference as Attachment No. 2 and shown
4 on the Plot Plan attached hereto and incorporated herein by this
5 reference as Attachment No.3.
6
7
In accordance with the terms of the Development
C.
8 Agreement, Developer understands that this Agreement is made and
9 entered into as a condition precedent to the effectiveness of the
10 Development Agreement and constitutes a material part of the consid-
11 eration to the City for entering into the Development Agreement and
12 performance of the City's obligations pursuant to the Development
13 Agreement.
14
15
Developer further understands that upon acquisition
D.
16 of the Site, Developer will be bound by the terms of the Development
17 Agreement and will receive direct and indirect benefits as a result
18 of the implementation of the Development Agreement.
19
20
E.
Developer currently owns and operates as a Home Depot
21 retail outlet an existing approximately 90,000 square foot facility
22 (the "Existing store") located within the Terra Nova Shopping Center
23 in Chula vista and generally referred to as the Terra Nova Facility.
24 It is Developer's intent to move from the Existing store to the
25 site.
26
27
F.
The city has extensively reviewed the terms and
28 conditions of the Development Agreement and this Agreement and, in
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1 particular, has specifically considered and approved the impact and
2 benefits of this Agreement upon the general welfare of the City.
3 The terms and conditions of this Agreement have been found by the
4 city to be fair, just, and reasonable, and to provide appropriate
5 benefits to the city. This Agreement will serve the best interests
6 of the citizens of City; will provide effective and efficient
7 development of public facilities, infrastructure and services
8 appropriate for the development of the site; help maximize effective
9 utilization of resources within the city; increase city tax revenues
10 by the development of the site; promote the creation of jobs for
11 city residents; and provide other public benefits to the City and
12 its residents.
13
14
G.
It is the intent of the parties to encourage the
15 development of a new Home Depot retail outlet within the city of
16 Chula vista and 'to provide for a high quality retail use in the
17 Existing store; to provide additional employment opportunities for
18 the citizens of Chula Vista, to strengthen and diversify the local
19 economy; and, to provide for variety and choice for consumers within
20 the city.
21
22 The Parties acknowledge and agree that the development of
23 the site will result in public benefit and further acknowledge and
24 agree that this Agreement confers benefits on the Developer. The
25 Parties intend by this Agreement to provide the consideration
26 expressly set forth herein to the public which the Parties agree
27 shall balance the private benefits conferred on the Developer and
28
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1 provide public assurance that this Agreement is fair, just, and
2 reasonable.
3 AGREEMENT
4
5
NOW, THEREFORE, in consideration of the Recitals set forth
6 above, the consideration provided by the City pursuant to the
7 Development Agreement, and for other good and valuable considera-
8 tion, the receipt and sufficiency of which are hereby acknowledged,
9 the parties, respectively, agree as follows:
10
11
1.
Purpose.
The purpose of this Agreement is to
12 implement the Development Agreement, to facilitate development of
13 the site in accordance with the Development Agreement and, to
.........
14 provide for economic development of and job creation within the
15 city.
16
17 2. Construction and Operation of a new Home Depot on
18 the site. Developer hereby covenants and agrees to construct a
19 minimum 125,000 square foot (including garden shop) facility (the
20 "New Facility") on the site.
The New Facility shall commence
21 operation as a Home Depot retail outlet on or before the date which
22 is eighteen (18) months after the date of conveyance of the Site to
23 Developer.
Developer further covenants and agrees that it will
24 operate a minimum of one hundred percent (100%) of the New Facility
25 as a Home Depot in substantially the same manner as it operates a
26 majority of its other Home Depot stores in the western United
27 states, for a minimum period of ten (10) years following the opening
28 of the New Facility.
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~1 714 651 0739
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The New Facility shall be constructed and operated
2 in acoordance with the provisions of the Development Agreement, all
3 applicable land use regulations and all pertinent City codes and
4 regul.ations.
5
6
3.
Existina store. It is the intent and the obligation
7 of DevelOper to use all commercially reasonable efforts to minimize
the length of tiMe during 'Which the Existing store will be vacant.
Developer shall make all ccmlDercially reasonable efforts to contraot
with a ll.eplacement Retl;liler during the construction of the cNew
Facility and to oomplete l;lny and all tenant improvements or other
modifications to the Existing store as are necessary to accommodate
the Replaoement Retl;liler in order to insure that a Replacement
Retailer will oommence operl;ltions within the Existing store within
180 days of the date the Existing store is vacated by Devel~per.
The Developer shall use all commercially reasonable effort5 to
insure that the Replaoement Retailer is recognized as a prominent,
leading business in its retail field.
The Replacement Retailer
shall be limited to a use permitted under the Terra Nova Plaza
Development Standards (the DDevelopment Standards"), attached heroto
21 and incorporated herein by this reference as Attachment No.4.
Prohibited uses include secondhand $tores, "junk" stores, pawn
shops, swap meets and flea lIlarkets. As provided by the DevelopJllent
Standards, uses Which are not clearly identified as eligible by the
Development standards may be reviewed by the Chula vista Planning
commission in order to determine whether they are consistent ~ith
the purpose of the DeVelopment standards and will not impair the
present or potential use of adjacent properties.
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4.
DIF Fees. Prior to issuance of a building permit for
2 the New Facility, Developer shall pay transportation DIF Fees (the
3 "DIF") in the estimated amount of ONE HUNDRED SIXTY-TWO THOUSAND,
4 FIFTY-EIGHT DOLLARS ($162,058.00). This estimate is based upon the
5 site Plan for the Site as proposed on the date this Agreement is
6 considered by the City Council. The amount of the DIF may be modi-
7 fied in accordance with any modification of the proposed Site Plan.
8
9
5.
Emplovment Outreach and Traininq. Developer in the
10 operation of the New Facility shall provide a proactive approach to
11 recruiting, training, and/or hiring employees from the local com-
12 muni ty .
This approach must include a significant effort to work
13 with local education and training providers with a goal of hiring
14 Chula vista residents.
Within ninety (90) days of the effective
15 date of this Agreement, City and Developer shall enter into a letter
16 agreement further defining Developer's obligations pursuant to this
17 paragraph.
18
19
6.
Default. Except as provided in Paragraph 7 below,
20 Developer's failure to construct or operate the New Facility in
21 accordance with this Agreement or to fulfill any other obligation
22 of Developer pursuant to the Development Agreement and this
23 Agreement shall constitute a default of this Agreement and shall
24 entitle City to any and all remedies allowed by law or equity.
25
26
7.
Liquidated Damaqes. NOTWITHSTANDING THE PROVISIONS
27 OF PARAGRAPH 6 ABOVE, IN THE EVENT THAT DEVELOPER FAILS TO OPERATE
28 THE NEW FACILITY FOR A MINIMUM OF TEN (10) YEARS AS REQUIRED BY THIS
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1 AGREEMENT, THE PARTIES AGREE THAT IT WOULD BE IMPRACTICABLE OR
2 EXTREMELY DIFFICULT TO FIX THE ACTUAL DAMAGE TO CITY RESULTING FROM
3 SUCH DEFAULT AND THEREFORE CITY, AS CITY'S SOLE REMEDY, SHALL BE
4 ENTITLED TO LIQUIDATED DAMAGES IN THE AMOUNT OF SEVENTY-FIVE
5 THOUSAND DOLLARS ($75,000.00) FOR EACH YEAR OF THE TEN (10) YEARS
6 WHICH DEVELOPER FAILS TO OPERATE THE NEW FACILITY. IT IS FURTHER
7 PROVIDED THAT IN THE EVENT THE NEW FACILITY IS CLOSED IN VIOLATION
8 OF THIS AGREEMENT FOR A PERIOD OF SIXTY (60) CALENDAR DAYS OR
9 LONGER, CITY SHALL BE ENTITLED TO RECEIVE THE LIQUIDATED DAMAGES SET
10 FORTH HEREIN FOR THE REMAINING TERM OF THE DEVELOPER'S OBLIGATION
11 TO OPERATE THE NEW FACILITY AS PROVIDED BY THIS AGREEMENT FROM THE
12 DATE OF 'INITIAL CLOSURE AND THIS AGREEMENT SHALL TERMINATE AND THE
13 PARTIES HERETO SHALL HAVE NO FURTHER RIGHTS OR OBLIGATIONS TO EACH
14 OTHER PURSUANT TO THIS AGREEMENT. THE FULL AMOUNT OF THE LIQUIDATED
15 DAMAGES DUE TO CITY FOR THE REMAINING TERM OF DEVELOPER'S OBLIGATION
16 TO OPERATE SHALL BE PAID TO CITY BY DEVELOPER WITHIN NINETY (90)
17 CALENDAR DAYS OF THE DATE OF INITIAL CLOSURE.
18
19
Developer
City
20
21
22
8.
Force Maieure.
In the event that the date for
23 performance of any obligation of Developer hereunder is delayed by
24 labor dispute, fire, adverse weather conditions which could not
25 reasonably be anticipated, condemnation, riot, act of God, fire or
26 other casualty or any other cause beyond Developer's control, then
27 the date for performance shall be extended by the period of time
28 taken by such delay.
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9.
Effective Date.
This Agreement is not effective
2 unless and until the following shall have occurred: (i) the City
3 and Owner shall have entered into the Development Agreement; and
4 (ii) the conveyance of the Site from Owner to Developer shall have
5 occurred at a time when the Development Agreement is in full force
6 and effect.
7
8
10. Failure to Approve Development Aqreement. Developer
9 hereby agrees and acknowledges that the approval or disapproval of
10 a development agreement is a discretionary act by the city subject
11 to certain legal requirements including but not limited to, public
12 notification and hearing and environmental review. Developer fur-
13 ther agrees and acknowledges that the determination by City to not
14 approve the Development Agreement shall not be a default of this
15 Agreement and in the event that the Development Agreement is disap-
16 proved, this Agreement shall terminate and the parties shall have
17 no further rights or remedies.
18
19
11. Attornevs' Fees.
In the event of any conflict or
20 dispute concerning the enforcement or interpretation of any of the
21 terms or provisions of this Agreement, the prevailing party shall
22 be entitled to receive from the non-prevailing party any and all
23 reasonable ,costs and expenses incurred therewith, including, without
24 limitation, reasonable attorneys' fees. Any actions which may be
25 filed in the event of any such conflict or dispute shall be filed
26 in the Superior Court of the Sate of California, County of San Diego
27 or in the united States District Court, Southern District of
28 California.
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. 25
1.3.
26
together with
27
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1.
2
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6
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8
9
1.0
11
1.2
. 1.3
14
1.5
16
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22
23
12. Notices. All
notices
communications
or other
"required or permitted hereunder shall be addressed as follows and
be in writing and shall be personally delivered, sent by overnight
mail (Federal Express, Express Mail or the like) or sent by regis-
tered or certified mail, postage prepaid, return receipt requested.
If to City:
City of Chula vista
276 Fourth Avenue
Chula Vista, California 91910
Attention: City Manager
with a copy to:
City of Chula vista
276 Fourth Avenue
Chula Vista, California 91910
Attention: Bruce Boogaard, Esquire
City Attorney
with a copy to:
Sheppard, Mullin, Richter & Hampton
4695 MacArthur Court, 7th Floor
Newport Beach, California 92660
Attention: Marcia Scully, Esquire
If to Home Depot:
Home Depot U.S.A., Inc.
Legal Department
100 Paces West
2727 Paces Ferry Road
Atlanta, Georgia 30339
Tel. (404) 433-8211
Fax. (404) 431-2739
with a copy to:
Home Depot U.S.A., Inc.
Legal Department
601 South Placentia Avenue
Fullerton, California 92631
Tel. (714) 738-5200 ext. 8558
Fax. (714) 526-8593
Entire Aqreement and Amendments..
This Agreement,
any Attachments referred to herein, constitutes the
entire understanding between the parties hereto with respect to the
28
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010693
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1 transaction contemplated herein; and, with the exception of the
2 Development Agreement which is not superseded or modified by this
3 Agreement, this Agreement supersedes any and all prior arrangements
4 or understandings between the parties with respect thereto. Any
5 amendment or modification of the provisions of this Agreement shall
6- only be effective upon execution and delivery, by all parties
7 hereto, of a writing incorporating all of the terms of such amend-
8 ment or modification.
No oral amendment or modification of this
9 Agreement shall be binding on any party. Minor technical changes,
10 corrections, extensions of time not to exceed a cumulative total of
11 180 days, and clarifications which do not substantively change the
12
terms of this Agreement, may be made by a writing executed
by
""'
of
13
Developer and the City Manager, or his designee, upon approval
14 the City Attorney.
15
16
Choice of Law.
14.
This Agreement and each and every
17 related document is to be governed by, and construed in accordance
18 with, the laws of the state of California.
19
20
15. No Third Partv Beneficiarv. The terms and provisions
21 herein contained shall be only for the benefit of the parties and
22 their respective heirs, successors and assigns, and such terms and
23 provisions shall not inure to the benefit of any other party whomso-
24 ever, it being the intention of the parties hereto that no one shall
25 be deemed to be a third party beneficiary of this Agreement.
26
27
28
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16. Time of Essence. Time is of the essence with respect
2 to every provision hereof.
3
4 IN WITNESS WHEREOF, the city and Developer have executed
5 this Agreement as of the date first written above.
6
"DEVELOPER"
7
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S\A013411B.NAI
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HOME DEPOT, U.S.A., INC.,
a Delaware corporation
By
Its
[printed Name and Title]
By
Its
[Printed Name and Title]
/IA~;l It
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2
3
4
5
6
ATTEST:
7
8
9
IICITY"
CITY OF CHULA VISTA, a municipal
corporation
By
Mayor
CITY CLERK
10
APPROVED AS TO FORM
11
12
14
13 Bruce M. Boogaard, Esquire
City Attorney
15
16
Marcia Scully, Esquire
17 Special Counsel to City
18
19 APPROVED AS TO CONTENT
20
21
Chris Salomone
22 Executive Director
Community Development Department
23
24
25
26
27
28
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COHPARE\S013413P4RLl
ATTACHMENT 1
LEGAL DESCRIPTION OF THE PROPERTY
ATTACHMENT 1 -- Page 1
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JOB NO. 192-035.5
REVISED: 11-19-92
LEGAL DESCRIPTION OF A PORTION
OF TRAGT NO. 88-2 AND TRACT NO. 88-1
THAT PORTION OF CHULA VISTA TRACT NO. 88-2, RANCHO DEL-REY BUS~NESS CENTER, IN
THE CITY OF GHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO
MAP THEREOF NO. 12267, FILED AS FILE NO. 88-611737 IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY, NOVEMBER 3D, 1988, AND THAT PORTION OF CHULA VISTA
TRACT NO. 88-1, RANCHO DEL REY PHASE 5, UNIT NO.2, IN THE CITY OF CHULA VISTA,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 12502,
FILED AS FILE NO. 89-619507 IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY, NOVEMBER 15, 1989, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF LOT 4 OF SAID MAP NO. 12267; THENCE ALONG
THE SOUTHERLY BOUNDARY OF LOT 2 OF SAID MAP NO. 12267, NORTH 82016'50" WEST,
186.50 FEET TO THE BEGINNING OF A TANGENT 1457.5 FOOT RADIUS CURVE, CONCAVE
NORTHERLY; THENCE CONTINUING WESTERLY ALONG THE SOUTHERLY BOUNDARY OF SAID LOT
2 AND ALONG THE ARC OF SAID 1457.5 FOOT RADIUS CURVE THROUGH A CENTRAL ANGLE OF
12006'05" A DISTANCE-OF 307.84 FEET TO THE SOUTHWEST CORNER OF SAID LOT 2, SAID
CORNER -ALSO BEING THE SOUTHEAST CORNER OF LOT 1 OF SAID MAP NO. 12267, SAID
CORNER ALSO BEING THE BEGINNING OF A COMPOUND 1907.5 FOOT RADIUS CURVE, CONCAVE
NORTHEASTERLY, A RADIAL TO SAID POINT BEARS SOUTH 19049'15" WEST; THENCE
CONTINUING NORTHWESTERLY ALONG THE SOUTHERLY BOUNDARY OF SAID LOT 1 AND ALONG THE
ARC OF SAID 1907.5 FOOT RADIUS CURVE THROUGH A CENTRAL ANGLE OF 8031'59" A
DISTANCE OF 284.08 FEET; THENCE CONTINUING ALONG THE SOUTHERLY BOUNDARY OF SAID
LOT 1 AND TANGENT TO SAID 1907.5 FOOT RADIUS CURVE, NORTH 61038'46" WEST, 153.79
FEET; THENCE CONTINUING ALONG THE SOUTHERLY BOUNDARY OF SAID LOT 1 NORTH
55053'02" WEST, 579.53 FEET; THENCE ALONG THE NORTHWEST BOUNDARY OF SAID LOT 1
NORTH 25031'30. EAST, 113.80 FEET; THENCE ALONG THE NORTHERLY BOUNDARY OF SAID
LOT 1 SOUTH 83002'20" EAST, 381.77 FEET; THENCE CONTINUING ALONG THE NORTHERLY
BOUNDARY OF SAID LOT 1 NORTH 77'07'16" EAST, 296.11 FEET; THENCE CONTINUING ALONG
THE NORTHERLY BOUNDARY OF SAID LOT 1 SOUTH 77035'45" EAST, 30.68 FEET; THENCE
CONTINUING ALONG THE NORTHERLY BOUNDARY OF SAID LOT 1 SOUTH 56048' 54" EAST.
1
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374.47 FEET; THENCE DEPARTING THE NORTHERLY BOUNDARY OF SAID LOT 1 SOUTH
56048'54" EAST, 25..03 FEET; THENCE NORTH 65"42'33" EAST, 323.32 FEET TO THE
NORTHERLY BOUNDARY OF LOT 3 OF SAID MAP NO. 12267; THENCE CONTINUING ALONG THE
NORTHERLY BOUNDARY .oF SAID LOT 3 SOUTH 67" 19' 52 "EAST, 3.25 FEET TO THE NORTHEAST
CORNER OF SAID LOT 3, SAID POINT ALSO BEING THE NORTHWEST CORNER .oF LOT 6 OF SAID
MAP NO. 12267; THENCE ALONG THE NORTHERLY BOUNDARY .oF SAID LOT 6 NORTH 79006' 30"
EAST, 104.79 FEET; THENCE CONTINUING ALONG THE NaRTHERLY BOUNDARY OF SAID LOT 6,
NORTH 89046' 00" EAST, 122.80 FEET; THENCE CaNTINUING ALONG THE NORTHERLY BOUNDARY
.oF SAID LOT 6 SOUTH 80"16'06" EAST, 198.31 FEET; THENCE CONTINUING ALONG THE
NORTHERLY BOUNDARY OF SAID LOT 6 SOUTH 21"37'56" EAST, 74.32 FEET TO A POINT ON
THE WESTERLY RIGHT-OF-WAY LINE OF PASEO DEL REY AS SHOWN ON SAID MAP NO. 12267,
SAID POINT ALSO BEING ON THE ARC OF A NONTANGENT 236 FOOT RADIUS CURVE CONCAVE
SOUTHEASTERLY, A RADIAL TO SAID POINT BEARS NORTH 21037' 56" WEST; THENCE EASTERLY
ALONG SAID RIGHT-OF-WAY LINE AND SAID CURVE THROUGH A CENTRAL ANGLE OF 20"02'56"
A DISTANCE OF 82.58 FEET; THENCE CONTINUING ALONG SAID RIGHT-OF-WAY LINE AND
TANGENT TO SAID 236 FOOT RADIUS CURVE NORTH 88025'00" EAST, 223.92 FEET TO THE
BEGINNING OF A TANGENT 164 FOOT RADIUS CURVE CONCAVE NORTHERLY; THENCE CONTINUING -..,
EASTERLY ALONG SAID RIGHT-OF-WAY LINE AND SAID 164 FOOT RADIUS CURVE THROUGH A
CENTRAL ANGLE OF 14"00'00" A DISTANCE OF 40.07 FEET; THENCE CONTINUING ALONG SAID
RIGHT-OF-WAY LINE AND TANGENT TO SAID 164 FOOT RADIUS CURVE NORTH 74" 25' 00" EAST,
155.20 FEET TO THE BEGINNING OF A TANGENT 236 FOOT RADIUS CURVE CONCAVE
SOUTHERLY; THENCE CONTINUING EASTERLY ALONG SAID RIGHT-OF-WAY AND SAID 236 FOOT
RADIUS CURVE THROUGH A CENTRAL ANGLE OF 14000'00" A DISTANCE OF 57.67 FEET;
THENCE CONTINUING ALONG SAID RIGHT-aF-WAY LINE AND TANGENT TO SAID 236 FOOT
RADIUS CURVE NORTH 88025'.00" EAST, 120.00 FEET; THENCE DEPARTING SAID RIGHT-OF-
WAY LINE NORTH 88025'00" EAST, 145.86 FEET; THENCE NORTH 74004'54" EAST, 104.88
FEET; THENCE NORTH 79022'32" EAST, 100.83 FEET; THENCE NORTH 88012'53" EAST,
139.50 FEET TO THE NORTHWEST .CORNER OF LOT 14 OF SAID MAP Na. 12267; THENCE
CONTINUING ALONG THE NORTHERLY BOUNDARY OF SAID LOT 14, NORTH 83043'15" EAST,
114.29 FEET; :rHENCE DEPARTING THE NORTHERLY BOUNDARY OF SAID LOT 14 SOUTH
88010'32" EAST, 239.49 FEET; THENCE SOUTH 75"22'27" EAST, 86.74 FEET; THENCE
SOUTH .00.0.0'00" WEST, 354.93 FEET; THENCE NORTH 9.0"00'00" EAST, 38.48 FEET; THENCE
saUTH .0000'00" WEST, 455.7.0 FEET; THENCE NORTH 86047'15" WEST, 258.19 FEET;
THENCE SOUTH .0000'15" EAST, 21.33 FEET; THENCE SOUTH 89059'45" WEST, 21.27 FEET ~
Ta THE EASTERLY RIGHT-OF-WAY LINE OF AVILA WAY AS SHOWN ON SAID MAP NO. 12267;
2
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THENCE ALONG SAID RIGHT-OF-WAY LINE SOUTH 1020'00" EAST, 10.47 FEET TO THE
BEGINNING OF A TANGENT 20 FOOT RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE
SOUTHEASTERLY ALONG SAID RIGHT-OF-WAY LINE AND ALONG SAID CURVE THROUGH A CENTRAL
ANGLE OF 88040'15" A DISTANCE OF 30.95 FEET TO THE NORTHERLY RIGHT-OF-WAY LINE
OF EAST 'H' STREET AS SHOWN ON SAID MAP NO. 12267; THENCE ALONG SAID RIGHT-OF-WAY
LINE SOUTH 89059'45" WEST, 106.99 FEET; THENCE DEPARTING FROM SAID RIGHT-OF-WAY
LINE NORTH 0000'15" WEST: 40.06 FEET; THENCE SOUTH 890'40'12" WEST, 191.98 FEET;
THENCE NORTH 86048'33" WEST, 110.61 FEET; THENCE NORTH 69034'31" WEST, 19.79 FEET
TO THE SOUTHEAST CORNER OF LOT 11 OF SAID MAP NO. 12267, SAID CORNER ALSO BEING
ON THE EASTERLY BOUNDARY OF PARCEL 2 AS SHOWN ON CITY OF CHULA VISTA ADJUSTMENT
PLAT NO. 91-8 AND IN DEED RECORDED FEBRUARY 28, 1991 AS FILE NO. 91-0086527 IN
THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY; THENCE ALONG THE EASTERLY
BOUNDARY OF SAID PARCEL 2 NORTH 0026'43" EAST, 321.61 FEET TO THE NORTHEAST
CORNER OF SAID PARCEL 2; THENCE ALONG THE NORTHERLY BOUNDARY OF SAID PARCEL 2
SOUTH 82037'37" WEST, 274.62 FEET TO THE EASTERLY RIGHT-OF-WAY LINE OF LAZO COURT
AS SHOWN ON SAID MAP NO. 12267, SAID POINT ALSO BEING THE BEGINNING OF A NON-
TANGENT 60 FOOT RADIUS CURVE CONCAVE NORTHERLY, A RADIAL TO SAID POINT BEARS
SOUTH 83013'49" EAST; THENCE WESTERLY ALONG SAID RIGHT-OF-WAY LINE AND ALONG THE
NORTHERLY BOUNDARY OF SAID PARCEL 2 THROUGH A CENTRAL ANGLE OF 146042'00" A
DISTANCE OF 153.62 FEET, A RADIAL TO SAID POINT BEARS SOUTH 63028'11" WEST;
THENCE DEPARTING SAID RIGHT-OF-WAY LINE AND ALONG THE NORTHERLY BOUNDARY OF SAID
PARCEL 2, NORTH 85000' 41" WEST, 246.29 FEET TO THE NORTHWEST CORNER OF SAID
PARCEL 2; THENCE ALONG THE WESTERLY BOUNDARY OF SAID PARCEL 2 SOUTH 4059'19"
WEST, 242.97 FEET TO THE SOUTHEAST CORNER OF LOT 8 OF SAID MAP NO. 12267; THENCE
DEPARTING THE WESTERLY BOUNDARY OF SAID PARCEL 2 AND ALONG THE SOUTHERLY BOUNDARY
OF SAID LOT 8 SOUTH 61031'37" WEST, 56.72 FEET; THENCE CONTINUING ALONG THE
SOUTHERLY BOUNDARY OF SAID LOT 8 NORTH 82016'50" WEST, 170.00 FEET TO THE
SOUTHEAST CORNER OF LOT 7 OF SAID MAP NO. 12267; THENCE ALONG THE SOUTHERLY
BOUNDARY OF SAID LOT 7 NORTH 82016'50" WEST, 124.38 FEET; THENCE CONTINUING ALONG
THE SOUTHERLY j,lOUNDARY OF SAID LOT 7 NORTH 40044'46" WEST, 98.78 FEET TO THE
EASTERLY RIGHT-OF-WAY LINE OF PASEO DEL REY AS SHOWN ON SAID MAP NO. 12267;
THENCE NORTH 82020'00" WEST, 46.00 FEET TO THE CENTERLINE OF SAID PASEO DEL REY;
THENCE ALONG THE CENTERLINE OF PASEO DEL REY SOUTH 7040'00" WEST, 3.23 FEET;
THENCE NORTH 82020'00" WEST, 46.00 FEET TO THE SOUTHEAST CORNER OF SAID LOT 4,
SAID CORNER ALSO BEING ON THE WESTERLY RIGHT-OF-WAY LINE OF SAID PAS EO DEL REY;
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THENCE ALONG SAID RIGHT-OF-WAY LINE AND ALONG THE EASTERLY BOUNDARY OF SAID LOT
4 NORTH 7040'00" EAST, 167.09 FEET TO THE BEGINNING OF A TANGENT 20 FOOT RADIUS
CURVE CONCAVE SOUTHWESTERLY;. THENCE NORTHERLY AND WESTERLY ALONG SAID CURVE AND
ALONG THE NORTHEASTERLY BOUNDARY OF SAID LOT 4 THROUGH A CENTRAL ANGLE OF
90020' 00", A DISTANCE OF 31. 53 FEET; THENCE ALONG THE NORTHERLY BOUNDARY OF SAID
LOT 4 AND ALONG THE SOUTHERLY RIGHT-OF-WAY LINE OF PLAZA COURT AS SHOWN ON SAID
MAP NO. 12267 AND TANGENT TO SAID CURVE, NORTH 82040'00" WEST, 245.32 FEET TO THE
NORTHWEST CORNER OF SAID LOT 4; THENCE ALONG THE WESTERLY BOUNDARY OF SAID LOT
4 SOUTH 6031'16" WEST, 247.66 FEET TO THE POINT OF BEGINNING.
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ATTACHMENT 2
2
LEGAL DESCRIPTION OF THE SITE
3
4
Lots 1, 2 and 3 of Chula vista Tract No. 88-2, Rancho
Del Rey Business Center in the City of Chula Vista,
county of San Diego, State of California, according to
Map No. 12267, filed in the office of the Recorder of
said County, on November 30, 1988.
5
6
7
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9
10
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14
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28
///l~J~
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"
OOHPARE\S013413P.RLl
ATTACHMENT 2 -- Page 1
.
1 ATTACHMENT 3
2 PLOT PLAN
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4
5
6
7
8
9
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. 13
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COHPARE\S013413P.RLl ATTACHMENT 3 -- Page 1
JAN-11-93 MON 15:09
COMMUNITY DEVELOPMENT
,
FAX NO. 6194765310
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ATTACHMENT 4
TERRA NOVA PLAZA DEVELOPMENT STANDARDS
I.
Purpose
The purpose of th i s chapter I s to prov i de standards for the
development of a community shopping center located on 31 gross acres
at the southeast corner of the Intersection of Interstate 805 and
East H Street. It Is the Intent of the developer that the shopping
center compl iment the surroundIng resIdential area. Therefore,
parking areas wll I be landscaped to rei leve a barren appearance.
Signs are prescribed in a specific sign program and wil I be designed
to be harmonious with the spanish colonIal architecture of the
center, while stil I providing Identification of the major and minor
tenants of the center.
II. Perm i tted Uses
Principal permitted uses are as fol lows:
A.
Supermarkets, drugstores,
apparel stores.
home improvement
stores, major
8. Stores, shops and offices supplying commodities or performing
services for residents of the city as a whole or the surrounding
commul ty such as department stores, speci al ty shops, banks,
busIness offices, and other financial institutions and personal
service enterprises.
C. Restaurants and similar enterprises.
D. Cocktail lounges, nightclubs and theaters by Conditional Use
Perm It ani y.
E. 80naf ide antlq ue shops, but not I ncl udl ng secondhand stores or
junk stores.
F. Off-street parking lots.
G.
Drive-thru restaurants,
outdoor plant nurseries.
drlve-thru financial
InstitutIons,
H.
Child care centers, pre-school use,
Conditional Use Permtt only.
and playgrounds by
I.
Veterl narl an
19.58.050).
clInIc
(subject to
provisions
of
SectIon
IIA ---)~
J. Automobile service stations (subject to provisions of Section
19.58.280), tIre, battery, accessory uses, provided that
servIces bays do not face public streets or resIdentIal areas.
Car washes (subject to Section 19,58.060). These are authorized
by CondItional Use Permit only.
-,
K.
BusIness or technIcal schools IncludIng photography,
and dance, among others. These are authorized by
Use PermIt only.
art, musIc
Conditional
L. Medical, dental, chiropractic offices, and the like, Including
clinIcs and emergency/surgical medical centers.
M.
Any other retail business or service establ ishment
commissIon finds to be consIstent with the purpose
standards and which wiI I not impair the present or
use of adjacent properti es.
which the
of these
potential
N. Accessory uses and buildIng customarily appurtenant to a
permitted use.
II I. Heloht Reoulations
No building shal I exceed two stories or 35 feet In height except for
architectural tower element on Building 2 which shal I not exceed 50
feet in height.
"""
IV. Area. Lot Coveraoe and Yard Reo u I rements
The follow i ng
be observed,
increased for
mInimum area, lot coverage and yard requirements
except as provIded In Section 19.16.060 and
conditional uses (setbacks In feet):
shall
where
Lot Area (sq. ft.):
5,000
Front Yard:
25 ft. (except nursery wal I
at B u I I ding 1)
Side Yard:
None, except w~en abutting
an R dIstrict, then not less
than 15 ft.
Rear Yard:
None
V. Enclosures required for all uses - FxceDtlons:
AI I uses shall be conducted wholly within a completely enclosed
building, except for'outdoor restaurants, servIce statIons, off-
street parking and loadIng facilitIes, outdoor -plant nurseries, and
chlldrens' playgrounds In connection with a child care center or pre-
school use and other open uses specified under Conditional Use
Permits as determined by the Planning Commission. Permanent and
temporary outside sales and display shall be subject to the
provisions of Section 19.58.370.
"""
/1/J-;1
.
VI. Landscaolng
The site shal I be landscaped In conformance with the landscaping
manual of the city, the approved site landscape plan, and approved by
the director of pI annlng.
VII. Off-street Parking and loading Facilities:
Off-street parking and loading facilities are required for all uses,
as provided on the approved specific plan in accordance with the City
of Chula Vista adopted parkIng standards.
V III. Trash Storace Areas:
Trash storage areas shal I be provided per the approved specific plan,
subject to the conditions of Section 19.58.340.
IX. Outdoor Storage:
Outdoor storage of merchandise, material or equipment shal I be
permitted only when Incidental to a permitted or accessory use
located on the premises, and provided that:
A.
Stor age
fences,
plan.
area shal I be completely enclosed and screened by wal Is,
or buildings, and shall be part of the approved site
.
B. No outdoor storage of materials or equipment shall be permitted
to exceed to height greater than that of any enclosing wal I,
fence or bu i I.d I ng.
X. Wall Reouirements:
ZonIng wal Is shal I be provided subject to the conditions In Section
19.58.360.
XI. Performance Standards:
All uses shall be subject to Initial and continued compl lance with
the Performance Standards set forth In Chapter 19.66.
XII. llirrs
A. Installation - requirements generally - sign permit required
when:
.
No person except a public officer or employee In performance of
a public duty shall paste, post, paint, print, nail, tack,
erect, place or otherwise fasten any sign, pennant or notice of
any kind, or cause the same to be done, facing or visible from a
public street In the city except as provided herein and
elsewhere In this title. To Insure campi lance with this
section, a sign permit shall be required for any sign except as
provided hereinafter: Real estate signs, and subdivision signs.
///1,,/0
B. Application - contents required - determination authority
appeal s:
~.
All signs requiring a sign permit shall be submitted for
approval by the project architect and the zoning administrator,
prior to Install atlon. The application shall Indicate the size,
locat[on, design color, method of attachment, Ilghtl ng and
materials of al I signs to be erected. The appi Icatlon shal I
also contain sufficient Information on the architecture, colors
and materials of the building on the site, as is necessary to
determine compatibll [ty of the sign to the approved sign
program. In addition, the applicant shall submit a color
render i ng and/or pa i nt sampl e boards or ch i ps and/or actua I
materials to be used on the sign. The zoning administrator
shall determine whether approval shall be granted for any sign
based on Its conformance with the approved sign program and city
installation and electrical regulations and standards.
C. Signs permitted by the approved sign program shall be subject to
the regulations as set forth In Sections 19.60.050, 19.60.060,
19.60.140, 19.60.160, 19.60.170, 19.60.180, 19.60.190,
19.60.200, 19.60.210, 19.60.220, 19.60.230, 19.60.290,
19.60.300, 19.60.330, 19.60.340, 19.60.350, 19.60.380, and
19.60.440.
XIII. Ma jor Entrance
""'
Design and construction of the major entrance opposite Hidden
Dr[ve shall be to the satisfaction of the City Engineer and
Traffic Engineer.
Vista
City
XIV. Street Imorovements
Design and reconstruction of necessary curb, gutter and sidewalk on
East H Street In proximIty to H[dden VIsta Drive to provide for three
thru lanes of traffic In each dIrection, bike lanes and double left
turn lanes on each approach to Hidden VIsta Drive and the major
shopping center entrance design and construction shall be subject to
the approval of the CIty Engineer and City Traffic Engineer.
xv. TraffIc Control Easement
Traffic Control Easement at the major shopping center entrance
opposIte HIdden Vista DrIve shal I be dedicated to the City.
""'
)//1/1/1
COUNCIL AGENDA STATEMENT
SUBMITTED BY:
Item J I.f?
Meeting Date 01119/93
Resolution 1~~/APprOving and Authorizing Execution of an
Implementing Agreement with Major Retailer B (Kmart), Rancho del Rey
Commercial Center, and Related CEQA Findings
Community Development Director G,S .
ITEM TITLE:
REVIEWED BY: City Manage? (4/Sths Vote: Yes No _XJ
BACKGROUND: On November 24, 1992, Council held a public hearing and subsequently
adopted Resolution 16900 and held the first reading of Ordinance 2535 relating to the conversion
of the western 55 acres of the Rancho del Rey Employment Park to a Commercial Center land
use designation and related regulatory actions including CEQA considerations. The second
reading of this ordinance was approved on November 30, 1992. Approval of the ordinance
included adoption of a Development Agreement with the applicant/developer of the Commercial
Center for all portions of the site excluding the easternmost parcel designated for Major Retailer
C. This Development Agreement covers the parcel to be purchased by Kmart, and requires an
Implementing Agreement be entered into between Kmart and the City prior to the issuance of
a building permit. The proposed Implementing Agreement (attached) implements the
Development Agreement and provides for benefits to Kmart as well as performance assurances
to the City. The agreement was initially submitted to Council on December 15, 1992, at which
time it was continued to a future meeting.
RECOMMENDATION: That Council approve the resolution authorizing the Mayor to execute
the proposed Implementing Agreement with Kmart, and making certain CEQA findings.
BOARDS/COMMISSIONS RECOMMENDATION: The following boards and commissions
reviewed the actions taken by Council on November 24, as discussed in the November 24
agenda statement:
o Resource Conservation Commission -- Endorsed project
o Design Review Committee -- Endorsed amended Employment Park design guidelines
o Economic Development Commission - Endorsed project
o Planning Commission -- Certified FSEIR and recommended approval of resolution and
ordinance, including Development Agreement
No group has reviewed the attached Implementing Agreement document. However, the key
proposed terms of the agreement and their status were outlined in the Planning Commission staff
report.
/10-/
Page 2, Item JlA
Meeting Date otttt93
DISCUSSION:
A. KMART - GENERAL INFORMATION
K-mart is a 30 year old company and the second highest ranked retailer in the U.S., behind Wal-
Mart. (It recently acquired Pace Membership Warehouses.) Kmart has 2,200 stores nationally.
Recently, Kmart began acquiring property in order to build and own its stores. A related new
development is the earmarking of $3 billion to renovate its stores across the country to reflect
its new upgraded image. A $1.5 million upgrade of the Chula Vista Third Avenue store is
scheduled for early 1993.
Kmart's existing Third Avenue store occupies 96,000 square feet and will be expanding by
20,000 square feet into the adjacent McMann's Furniture store, for a total of 116,000 square
feet.
The new store on East H Street will provide a second Chula Vista location and will occupy
104,306 square feet, plus a 3500 square foot garden center for a total of 107,806 square feet.
(Additionally, Kmart will be building an adjacent 15,000-25,000 square foot shop for sale or
lease to a retail user.) Kmart representatives indicate that the new store's market area lies east
of 1-805 and south of their store located at Jamacha and Sweetwater, with an estimated 72,000
population base.
B. DEVELOPMENT AGREEMENT REOUIREMENTS
The Development Agreement, as approved by Ordinance on November 24 and November 30,
requires that an Implementing Agreement be entered into with each of Major Retailers A and
B prior to issuing permits. The Development Agreement stipulates that each of these two
Implementing Agreements shall include (but not be limited to):
1. Agreement to open a minimum 100,000 square foot store within 18 months of the
Implementing Agreement execution.
2. Covenant to operate the H Street store for a minimum of 10 years.
3. Proactive employment outreach to Chula Vista residents.
4. Evidence of financing.
In addition, the Development Agreement requires that Kmart "continue to operate the existing
Kmart facility on Third Ave... for a mutually agreed to term of years."
In terms of benefits to the 2 majors, the Development Agreement provides for a vesting of land
uses, Traffic Signal fees, and TDIF fees for a period of 5 years ("land use term"). It also
exempts the 2 majors from future TDIF programs/fees.
JJLJ....J.
Page 3, Item J.!tl
Meeting Date 01119/93
C.
KMART IMPLEMENTING AGREEMENT
NEGOTIATIONS/PRESENTATIONS TO COUNCIL
HISTORY OF
Negotiations with the three major retailers, including Kmart, commenced concurrently with
processing the "Power Center" land use entitlements. In an attempt to keep both the Planning
Commission and Council informed, staff outlined the proposed terms of the agreements, as they
were evolving in negotiations, in the November 18 Planning Commission agenda item and in the
November 24 Council agenda statement. These terms, precisely as they were presented in these
staff reports, and as updated verbally at the Planning Commission and Council meetings, as well
as the terms currently being proposed for approval, are delineated below:
November 18. PlanniDl!: Commission Al!:enda Item (Land Use Entitlements and
Development Al!:reement
"As indicated, at the time of the report preparation, nef!otiations are on-f!oing with Price
Club, Home Depot and Kmart. The general terms of each Draft Implementing Agreement
are summarized here:
City Requirements:
I. Kmart will open the H Street store within 18 months of gaining title.
2. Kmart will covenant to operate the existing store for ten (l0) years.
3. Kmart will covenant to operate the H Street store for ten (10) years.
4. Should Kmart close either the existing or the new store during the ten (10) year
period, the unpaid Transportation Development Impact Fee (TDIF) balance will
be immediately due with interest.
City Assistance:
The City will permit Kmart to pay the TDIF over a period of ten
(10) years. "
November 24 Council Al!:enda Statement (Land Use/Development Al!:reementl
"As indicated, neflotiations are on-going with Price Club, Home Depot and Kmart. The
general terms of each Draft Implementing Agreement are summarized here:
City Requirements:
1. Same as above.
2. Same as above.
3. Same as above.
4. Same as above.
City Assistance: Same as above."
November 24 Council Meetinl!: - Staff Comments
//0:]
Page 4, Item ll.tl
Meeting Date 01/19/93
Legal counsel Marcia Scully noted that "the agreements as drafted provide for economic
damages, not specific performance. "
ProDosed Al!reement Terms
The proposed terms are essentially unchanged from the December 15, agenda statement:
1. No direct financial assistance is being provided by the City to Kmart.
2. The City will permit Kmart to pay their Transportation Development Impact Fee
over a period of ten years.
3. Kmart will open the H Street store within 18 months of closing escrow.
4. Kmart will covenant to operate the existing store for ten years and to upgrade and
expand the store by 20,000 square feet.
5. Kmart will covenant to operate the new H Street store for ten years.
6. Should Kmart close either the existing or the new store during the ten year
period, the unpaid TDIF balance will be immediately due with interest.
7. Kmart will provide a proactive approach to recruiting, training and/or hiring
employees from the local community, including a significant effort to work with
local education and training providers with a goal of hiring Chula Vista Residents
an a IJR8Rty basis.
D. ENVIRONMENTAL REVIEW
The Rancho del Rey Commercial Center Final SEIR has analyzed impacts associated with the
proposed Implementing Agreement. This same FSEIR was certified by City Council on
November 24, 1992. The proposed Implementing Agreement carries out the Development
Agreement that was identified in the Final SEIR. Thus, no new environmental issues arise from
approval of this Implementing Agreement, and the Rancho del Rey Commercial Center Final
SEIR is the appropriate CEQA document. Likewise, the Candidate CEQA Findings (as modified
at the November 24 meeting), the Statement of Overriding Considerations, and the Mitigation
Monitoring and Reporting Program remain the appropriate documents to accompany the
proposed action.
FISCAL IMPACT: The proposed new store will generate an estimated 220 new jobs (of the
total 1224 projected for the entire commercial center). In terms of revenues, the proposed
Commercial Center will generate first year Net New Revenues of $1.21 million (after costs to
the City and potential market overlaps are deducted). Kmart alone is projected to generate
$271,000 in Year 1 Gross New Sales Tax Revenues and $229,000 in Year 1 Net New Sales Tax
Revenues. This latter figure (like the total $1.21 million) reflects the analysis by Williams
Kuebelbeck and Associates which nets out potential market overlap with existing stores and is
considered to be very conservative. The cost to the City of allowing payment of the $847,000
TDIF fee over 10 years is estimated at $171,000, based upon a 3.5% interest rate.
C:\WPS1\DYE\KMART2.113
//[1"''1
RESOLUTION NO. /J,9W
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
APPROVING AN IMPLEMENTING AGREEMENT WITH KMART COR-
PORATION, INC. TO CARRY OUT THE DEVELOPMENT AGREEMENT
FOR DEVELOPMENT OF A RETAIL STORE AT THE RANCHO DEL REY
COMMERCIAL CENTER
WHEREAS, on November 24, 1992, the City Council approved Resolution No. 16900
("Entitlements Resolution") and the first reading of Ordinance No. 2535 ("Entitlements
Ordinance"), collectively certifying the FSEIR (as defined therein which definition is
incorporated herein by reference), amending the General Plan, El Rancho del Rey Specific Plan,
Rancho del Rey Sectional Planning Area (SPA) I, Planned Community District Regulations,
Rancho del Rey Employment Park Design Guidelines, and PFFP, and approving the Air Quality
Plan Water Conservation Plan, Tentative Maps, street name change and Development
Agreement, and making certain Findings and Statement of Overriding Considerations; and,
WHEREAS, the City Council held the second reading of the Entitlements Ordinance
(approving the Development Agreement) on November 30, 1992; and,
WHEREAS, A General Condition of Approval of the Commercial Center project
requires that an Implementing Agreement or other similar agreement be entered into between
each of Major Retailers A, B, and C and the City prior to each retailer commencing
development; and,
WHEREAS, the proposed Implementing Agreement with Kmart Corporation
(alternatively herein referred to as the "Project" as when making reference to CEQA related
matters) implements the approved Development Agreement and provides assurances to the
retailer and the City as approved by Council; and,
WHEREAS, the Implementing Agreement stipulates that within 90 days the City and
Retailer shall enter into a letter agreement identifying the local education and training providers
with whom it will proactively coordinate employment outreach efforts, and such letter is hereby
authorized to be signed by the City Manager on behalf of the City; and,
WHEREAS, the Rancho del Rey Commercial Center FSEIR has analyzed impacts
associated with the proposed Project and was certified by Council on November 24, 1992 and
carries out the Development Agreement as identified in the FSEIR; and,
NOW, THEREFORE, THE CITY COUNCIL DOES HEREBY FIND,
DETERMINE, RESOLVE AND ORDER AS FOLLOWS:
rdrkm1.wp
January 12, 1993
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1. FSEIR Contents.
The FSEIR consists of the following:
A. "Final Supplemental Environmental Impact Report - Ranch del Rey Commercial
Center" (EIR 92-02) prepared by Robert Bein, William Frost & Associates (RBF) and dated
October 5, 1992 SCH # 92051032, which contains the Draft Supplemental Environmental Impact
Report ("DSEIR") distributed date July 21, 1992, revised to reflect responses made to comments
on the DSEIR, and the comments and responses to the DSEIR; and
B. Appendices (A through D) to Final Supplemental Environmental Impact Report.
C. Technical studies and information incorporated in the responses to comment.
II. FSEIR Reviewed and Considered.
The City Council of the City of Chula Vista has reviewed, analyzed and considered
FSEIR 92-02, the environmental impacts therein identified for this Project; the Candidate CEQA
Findings attached to the Entitlements Resolution as Attachment A, the proposed mitigation
measures contained therein, the Mitigation Monitoring and Reporting Program attached to the
Entitlements Resolution as Attachment B, and the Statement of Overriding Considerations which
is attached to the Entitlements Resolution as Attachment C prior to approving the Project.
III. Certification of Compliance with CEQA.
The City Council does hereby find that FSEIR 92-02, the Candidate CEQA Findings, the
Mitigation Monitoring and Reporting Program, and the Statement of Overriding Considerations
are prepared for this Project in accordance with requirements of the California Environmental
Quality Act, the State EIR Guidelines, and the Environmental Review Procedures of the City
of Chula Vista.
IV. Independent Judgement of City Council
The City Council finds that the FSEIR reflects the independent judgement of the City of
Chula Vista City Council.
V. Approval of Implementing Agreement
The City Council of the City of Chula Vista does hereby approve the Implementing
Agreement with Kmart Corporation, City Manager in conjunction with the approval of the City
Attorney, to make minor, modifications thereto prior to presentation to the Mayor for execution,
and does hereby authorize the Mayor to execute the Implementing Agreement substantially in
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Reso approving KMART Agmt
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the form presented together with such changes as may be approved by the City Manager and
City Attorney.
VI. Findings re Consistency with the General Plan.
The City Council hereby finds that the Project is and will be consistent with the general
plan for the reasons advanced in the Entitlements Resolution which reasons are incorporated
herein by reference.
VII. CEQA Findings, Mitigation Monitoring Program, and Statement of Overriding
Considerations.
A. Adoption of Findings.
The City Council does hereby approve, accept as its own, incorporate as if set
forth in full herein, and make each and every one of the findings contained in the
"Findings of Fact Re Proposed Rancho Del Rey Commercial Center" attached to
the Entitlements Resolution as Attachment A. NOT SCAl'iNED
B. Certain Mitigation Measures Feasible and Adopted.
As more fully identified and set forth in the master EIR for the Rancho del Rey
SPA I (EIR-87-01) and the supplemental environmental document (EIR-92-02)
and in the CEQA Findings for this project, which is attached to the Entitlements
Resolution as Attachment A, the Council hereby finds pursuant to Public
Resources Code Section 21081 and CEQA Guidelines Section 15091 that the
mitigation measures described in the above referenced documents are feasible and
will become binding upon the entity (such as the project proponent, the City, or
the school district) assigned thereby to implement same.
C. Infeasibility of Alternatives.
As is also noted in the above referenced environmental documents described in
the above subparagraph B, alternatives to the project which were identified as
potentially feasible in the EIR were found not to be feasible except the Site Plan
Alternative which is hereby rejected because the Project, as mitigated, already
reduces the impact on traffic to a level of less than significance.
D Adoption of Mitigation Monitoring and Reporting Program.
As required by the Public Resources Code Section 21081.6, the City Council
hereby adopts Mitigation Monitoring and Reporting Program ("Program") set
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forth in Attachment B to the Entitlements Resolution incorporated herein by
reference as set forth in full. The Council hereby finds that the Program is
designed to ensure that during project implementation the permittee/project
applicant and any other responsible parties implement the project components and
comply with the feasible mitigation measures identified in the Findings and the
Program.
E. Statement of Overriding Considerations.
Even after the adoption of all feasible mitigation measures and any feasible
alternatives, certain significant or potentially significant environmental effects
caused by the project or cumulatively will remain. Therefore, the City Council
of the City of Chula Vista hereby issues, pursuant to CEQA Guideline Section
15093, a Statement of Overriding Considerations in the form set forth in
Attachment C, attached to the Entitlements Resolution and incorporated herein as
if set forth in full, identifying the specific economic, social, and other
considerations that render the unavoidable significant adverse environmental
effects acceptable.
VIII. Notice of Determination
The Environmental Review Coordinator of the City of Chula Vista is directed after City
Council approval of this Project to ensure that a Notice of Determination, together with a copy
of this resolution, its exhibits, and all resolutions passed by the City Council in connection with
this Project, is filed with the County Clerk of the County of San Diego.
~S~
Chris Salomone
Community Development Director
,w " i'
Bruce M. Boogaard
City Attorney
Presented by:
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ITEM NUMBER:
RESOLUTION NUMBER:
ORDINANCE NUMBER:
OTHER:
ITEM NUMBER REFERENCED ABOVE WAS CONTINUED FROM
DATE:
(AGENDA PACKET SCANNED AT ABOVE DATE)
ITEM NUMBER REFERENCED ABOVE HAS BEEN CONTINUED TO
DATE:
MISCELLANEOUS INFORMATION:
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. RANCHO DEL REY COMMERCIAL CENTER
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IMPLEMENTATION AGREEMENT
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Kmart corporation
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RECITALS
AGREEMENT
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TABLE OF CONTENTS
Purpose
Construction and Operation of a new Kmart on the Site
Existing Store . . . . . . . . . . . . . . . .
Payment and Reimbursement of Development Impact Fees
Employment Outreach and Training.
Default . . . . . .
Liquidated Damages
Force Majeure . . .
Effective Date
Failure to Approve Development Agreement
Attorneys' Fees. . . . . . . .
Notices . . . . . . . . . . . .
Entire Agreement and Amendments
Choice of Law . . . . . . .
No Third Party Beneficiary
Time of Essence . . . . . .
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ATTACHMENT
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3 Attachment 1 - Description of the Property
4 Attachment 2 - Description of the site
5 Attachment 3 Plot Plan
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1
RANCHO DEL REY COMMERCIAL CENTER
2
IMPLEMENTATION AGREEMENT
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KMART
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5
This Implementation Agreement (the "Agreement") is made
6 and entered into as of this
day of
, 199_, by
7 and between the CITY OF CHULA VISTA, a municipal corporation having
8 charter powers ("city") and KMART CORPORATION, a Michigan corpora-
9 tion ("Developer"), with reference to the recitals set forth below:
10
11
RECITALS
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A.
Developer understands that City, Rancho del Rey
14 Partnership and Rancho del Rey Business Center Ltd. (collectively
"Owner"), have heretofore entered or intend,. subject to all legally
required notification and hearings, to hereafter enter into that
certain Development Agreement (the "Development Agreement") for the
Rancho del Rey Commercial Center with respect to the development of
certain real property (the "Property") owned by Owner and more
particularly described for purposes of identification in the
Description of the Property attached hereto and incorporated herein
by this reference as Attachment No.1.
B. Developer, pursuant to that certain purchase and sale
agreement (the "Purchase Agreement") entered into as of
199____ between Developer and Owner intends to acquire a portion of
the property (the "Site") more particularly described for purposes
of identification in the Description of the site attached hereto as
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1 Attachment No. 2 and incorporated herein by this reference and shown
2 on the Plot Plan attached hereto as Attachment No. 3 and
3 incorporated herein by this reference.
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C.
In accordance with the terms of the Development
6 Agreement Developer understands that this Agreement is made and
7 entered into as a condition precedent to the effectiveness of the
8 Development Agreement and constitutes a material part of the con-
9 sideration to the City for entering into the Development Agreement
10 and performance of the city's obligations pursuant to the
11 Development Agreement.
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D.
Developer further understands that upon acquisition
14 of the Site, Developer will be bound by the terms of the Development
15 Agreement and will receive direct and indirect benefits as a result
16 of the implementation of the Development Agreement.
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E.
Developer currently owns and operates as a Krnart
19 retail store an existing approximately 96,000 square foot facility
20 (the "Existing Store") located at 1030 Third Avenue, Chula Vista and
21 generally referred to as the Third Avenue Store. It is Developer's
22 intent to continue to operate the existing store for a minimum of
23 ten (10) years after the Effective Date of this Agreement.
24
25
F.
citv Review. The City has extensively reviewed the
26 terms and conditions of the Development Agreement and this Agreement
27 and, in particular, has specifically considered and approved the
28 impact and benefits of this Agreement upon the general welfare of
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1 the city.
The terms and conditions of this Agreement have been
2 found by the City to be fair, just, and reasonable, and to provide
3 appropriate benefits to the city.
This Agreement will serve the
4 best interests of the citizens of city; provide effective and effi-
5 cient development of public facilities, infrastructure and services
6 appropriate for the development of the site; help maximize effective
7 utilization of resources within the city; increase city tax revenues
8 by the development of the Property; promote the creation of jobs for
9 city residents and provide other public benefits to the city and its
10 residents.
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G.
It is the intent of the parties to encourage the
13 development of an additional Kmart retail store within the city of
14 Chula vista; to provide additional employment opportunities for the
15 citizens of Chula vista, to strengthen and diversify the local
16 economy; and, to provide for variety and choice for consumers within
17 the city.
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19 The Parties acknowledge and agree that the development of
20 the site will result in public benefit and further acknowledge and
21 agree that this Agreement confers benefits on the Developer. The
22 Parties intend by this Agreement to provide the consideration
23 expressly set forth herein to the public which the Parties agree
24 shall balance the private benefits conferred on the Developer and
25 provide public assurance that this Agreement is fair, just, and
26 reasonable.
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AGREEMENT
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NOW, THEREFORE, in consideration of the Recitals set forth
4 above, the consideration provided by the City pursuant to the
5 Development Agreement, and for other good and valuable considera-
6 tion, the receipt and sufficiency of which are hereby acknowledged,
7 the parties, respectively, agree as follows:
8
9
1.
Purpose.
The purpose of this Agreement is to
10 implement the Development Agreement, to facilitate development of
11 the site in accordance with the Development Agreement and, to
12 provide for economic development of the City.
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2.
Construction and Operation of a new Kmart on the
15 Site.
Developer hereby agrees to construct and open for business
16 a minimum 107,000 square foot facility (the "New Facility") on the
17 site. The New Facility shall commence operation as a Kmart retail
18 store on or before 18 months after the date of close of the escrow
19 conveying the site from Owner to Developer.
Developer further
20 agrees that it will operate a minimum of 107,000 square feet of the
21 New Facility as a Kmart store in substantially the same manner as
22 it operates a majority of its other. Kmart stores in the western
23 United states, for a minimum period of ten (10) years following the
24 opening of the New Facility.
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The New Facility shall be constructed and operated in
27 accordance with the provisions of the Development Agreement, all
28 applicable land use regulations and all pertinent City codes and
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1 regulations. Developer's obligation under this section 2 shall be
2 set forth in a recorded Covenant in substantially the form of the
3 "Form of Covenant" attached hereto as Attachment No. 4 (the
4 "Covenant") and incorporated herein by this reference.
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3.
Existinq store.
Developer hereby agrees and
7 covenants to continue to operate one hundred percent (100%) of the
8 floor area of the Existing store as a Kmart retail store in sub-
9 stantially the same manner as it operates a majority of its other
10 Kmart stores in the western united states, for a minimum of ten (10)
11 years after the Effective Date of this Agreement.
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Developer further agrees to expand the Existing store by
14 a minimum of 20,000 square feet of retail floor area (the "Required
15 Improvements"). All Required Improvements shall be completed on or
16 before the date thirty (30) months after the close of escrow con-
17 veying the site from Owner to Developer. All Required Improvements
18 shall be completed in accordance with all regulations, ordinances
19 and policies of the City of Chula vista.
upon completion of the
20 Required Improvements, Developer shall operate one hundred per-
21 cent (100%) of the floor area of the Existing store and the Required
22 Improvements, as a Kmart retail store in substantially the same
23 manner as it operates a majority of its other Kmart stores in the
24 western united states for a minimum of ten (10) years from the
25 Effective Date of this Agreement. Developer's obligation under this
26 section 3 shall be set forth in a recorded Covenant in the form of
27 "Form of Covenant" attached hereto as Attachment No. 4 and
28 incorporated herein by this reference.
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For purposes of this agreement a sale, lease to a third
3 party, or the closure for thirty (30) consecutive calendar days of
4 either the existing store or the new facility shall be deemed a
5 cessation of operations and shall trigger the obligation to pay the
6 unpaid portion of the DIF provided that a temporary closure of the
7 existing store or new facility for a period not exceeding six (6)
8 months to repair or reconstruct such buildings after a casualty
9 shall not be deemed to be a cessation of operations hereunder, and
10 provided further that the sale and concurrent leaseback by developer
11 of the site shall not constitute a cessation of operations.
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4.
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Payment and Relmbursement of Deve opment Impact Fees. '
14 Developer shall pay transportation development impact fees (the
15 "DIF") as required by city in the amount of EIGHT HUNDRED FIFTY
16 THOUSAND NINE HUNDRED EIGHTY-SIX DOLLARS ($850,986.00).
Said DIF
17 shall be paid to city in ten equal installments of EIGHTY-FIVE
18 THOUSAND NINETY-EIGHT DOLLARS and SIXTY CENTS ($85,098.60). The
19 first installment (the "Initial Payment") shall be paid to City
20 prior to the issuance of the building permit for the New Facility.
21 Each subsequent payment (the "Subsequent Payment") shall be paid on
22 or before the date (the "Due Date") which is one year from the date
23 of the Initial Payment. In the event that a Subsequent Payment is
24 not received on or before the Due Date, the Subsequent Payment will
25 accrue interest at eight percent (8%) per annum until paid.
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27
5.
Employment Outreach and Traininq. Developer in the
28 operation of the New Facility shall provide a proactive approach to
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1 recruiting, training and/or hiring employees from the local commu-
2 nity. This approach must include a significant effort to work with
3 local education and training providers with a goal of hiring Chula
4 vista residents. within ninety (90) days of the effective date of
5 this Agreement, city and Developer shall enter into a letter agree-
6 ment identifying local education and training providers.
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6.
Default.
Developer's failure to pay the DIF, con-
9 struct and operate the New Facility, expand and operate the Existing
10 store in accordance with and for the duration of time required by
11 this Agreement and the Covenant or to fulfill any other obligation
12 of Developer pursuant to this Agreement shall constitute a default
.
13 of this Agreement.
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7.
LIOUIDATED DAMAGES. THE PARTIES AGREE THAT IT WOULD
16 BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX THE ACTUAL DAMAGE TO
17 CITY RESULTING FROM A DEFAULT BY DEVELOPER HEREUNDER. THEREFORE,
18 CITY, AS CITY' S SOLE REMEDY, SHALL BE ENTITLED TO LIQUIDATED DAMAGES
19 CONSISTING OF THE ENTIRE UNPAID PORTION OF THE DIF PLUS INTEREST ON
20 THE UNPAID PORTION OF THE DIF CALCULATED FROM THE DATE OF THE
21 DEFAULT TO THE DATE THE LAST PAYMENT OF THE DIF IS DUE AT EIGHT
22 PERCENT (8%) WHICH SHALL BE IMMEDIATELY DUE AND PAYABLE TO CITY.
23 30 DAYS AFTER WRITTEN NOTICE TO DEVELOPER BY CITY.
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DEVELOPER CITY
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27 8. Force Maieure. In the event that the date for
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performance of any
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1 labor dispute, fire, adverse weather conditions which could not
2 reasonably be anticipated, condemnation, riot, act of God, fire or
3 other casualty or any other cause beyond Developer's control, then
4 the date for performance shall be extended by the period of time
5 taken by such delay.
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9.
Effective Date.
This Agreement is not effective
8 unless and until the following shall have occurred: (i) the City
9 and Owner shall have entered into the Development Agreement; and
10 (ii) the conveyance of the Site from Owner to Developer shall have
11 occurred at a time when the Development Agreement is in full force
12 and effect.
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10. Failure to Approve Development Aqreement. Developer
15 hereby agrees and acknowledges that the approval or disapproval of
16 a development agreement is a discretionary act by the City subject
17 to certain legal requirements including but not limited to, public
18 notification and hearing and environmental review. Developer fur-
19 ther agrees and acknowledges that the determination by City to not
20 approve the Development Agreement shall not be a default of this
21 Agreement and in the event that the Development Agreement is disap-
22 proved, this Agreement shall terminate and the parties shall have
23 no further rights or remedies.
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11. Attornevs' Fees.
In the event of any conflict or
26 dispute concerning the enforcement or interpretation of any of the
27 terms or provisions of this Agreement, the prevailing party shall
......."
28 be entitled to receive reasonable attorneys fees from the non-
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1 prevailing party any and all reasonable costs and expenses incurred
2 therewith. Any actions which may be filed in the event of any such
3 conflict or dispute shall be filed in the Superior Court of the
4 State of california, county of San Diego or in the United States
5 District court, Southern District of California.
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7
12. Notices.
All notices or other communications
8 required or permitted hereunder shall be addressed as follows and
9 be in writing and shall be personally delivered, sent by overnight
10 mail (Federal Express, Express Mail or the like) or sent by regis-
11 tered or certified mail, postage prepaid, return receipt requested.
12
13
If to city:
City of Chula Vista
276 Fourth Avenue
Chula vista, California 91910
Attention: city Manager
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with a copy to:
city of Chula vista
276 Fourth Avenue
Chula Vista, California 91910
Attention: Bruce Boogaard, Esquire
city Attorney
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with a copy to:
Sheppard, Mullin, Richter
4695 MacArthur court, 7th
Newport Beach, California
Attention: Marcia Scully,
& Hampton
Floor
92660
Esquire
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If to Kmart:
Kmart corporation
3100 West Big Beaver Road
Troy, Michigan 48084
Attention: Real Estate Department
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13. Entire Aareement and Amendments.
This Agreement,
27 together with any Attachments referred to herein, constitutes the
28 entire understanding between the parties hereto with respect to the
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1 transaction contemplated herein; and, this Agreement supersedes any
2 and all prior arrangements or understandings between the parties
3 with respect thereto. Any amendment or modification of the provi-
4 sions of this Agreement shall only be effective upon execution and
5 delivery, by all parties hereto, of a writing incorporating all of
6 the terms of such amendment or modification. No oral amendment or
7 modification of this Agreement shall be binding on any party. Minor
8 technical changes, corrections, extensions of time not to exceed a
9 cumulative total of 180 days, and clarifications which do not sub-
10 stantively change the terms of this Agreement, may be made by a
11 writing executed by Developer and the City Manager, or his designee,
12 upon approval of the City Attorney.
13
14
14. Choice of Law.
This Agreement and each and every
15 related document is to be governed by, and construed in accordance
16 with, the laws of the state of California.
17
18
15. No Third Partv Beneficiary. The terms and provisions
19 herein contained shall be only for the benefit of the parties and
20 their respective heirs, successors and assigns, and such terms and
21 provisions shall not inure to the benefit of any other party whomso-
22 ever, it being the intention of the parties hereto that no one shall
23 be deemed to be a third party beneficiary of this Agreement.
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16. Time of Essence. Time is of the essence with respect
2 to every provision hereof.
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4 IN WITNESS WHEREOF, the City and Developer have executed
5 this Agreement as of the date first written above.
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"DEVELOPER"
Kmart Corporation, a Michigan
corporation
By
Its Vice President
[printed Name and Title]
"City"
CITY OF CHULA VISTA,
a municipal corporation
By
Mayor
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ATTEST:
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CITY CLERK
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6 APPROVED AS TO FORM
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Bruce M. Boogaard, Esquire
9 City Attorney
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Marcia Scully, Esquire
12 Special Counsel to City
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14 APPROVED AS TO CONTENT
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Chris Salomone
17 Executive Director
Community Development Department
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1 ATTACHMENT 1
2 DESCRIPTION OF THE PROPERTY
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S\A013411J.NAS
010693 ATTACHMENT 1 -- Page 1
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JOB NO. 192-035.5
REVISED: 11-19-92
LEGAL DESCRIPTION OF A PORTION
OF TRACT NO. 88-2 AND TRACT NO. 88-1
THAT PORTION OF CHULA VISTA TRACT NO. 88-2, RANCHO DEL REY BUSINESS CENTER, IN
THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO
MAP THEREOF NO. 12267, FILED AS FILE NO. 88-611737 IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY, NOVEMBER 30, 1988, AND THAT PORTION OF CHULA VISTA
TRACT NO. 88-1, RANCHO DEL REY PHASE 5, UNIT NO.2, IN THE CITY OF CHULA VISTA,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 12502,
FILED AS FILE NO. 89-619507 IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY, NOVEMBER IS, 1989, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF LOT 4 OF SAID MAP NO. 12267; THENCE ALONG
THE SOUTHERLY BOUNDARY OF LOT 2 OF SAID MAP NO. 12267, NORTH 82010'50" WEST,
186.50 FEET TO THE BEGINNING OF A TANGENT 1457.5 FOOT RADIUS CURVE, CONCAVE
NORTHERLY; THENCE CONTINUING WESTERLY ALONG THE SOUTHERLY BOUNDARY OF SAID LOT
2 AND ALONG THE ARC OF SAID 1457.5 FOOT RADIUS CURVE THROUGH A CENTRAL ANGLE OF
12006'05" A DISTANCE" OF 307.84 FEET TO THE SOUTHWEST CORNER OF SAID LOT 2, SAID
CORNER "ALSO BEING THE SOUTHEAST CORNER OF LOT 1 OF SAID MAP NO. 12267, SAID
CORNER ALSO BEING THE BEGINNING OF A COMPOUND 1907.5 FOOT RADIUS CURVE, CONCAVE
NORTHEASTERLY, A RADIAL TO SAID POINT BEARS SOUTH 19049'15" WEST; THENCE
CONTINUING NORTHWESTERLY ALONG THE SOUTHERLY BOUNDARY OF SAID LOT 1 AND ALONG THE
ARC OF SAID 1907.5 FOOT RADIUS CURVE THROUGH A CENTRAL ANGLE OF 8031'59" A
DISTANCE OF 284.08 FEET; THENCE CONTINUING ALONG THE SOUTHERLY BOUNDARY OF SAID
LOT 1 AND TANGENT TO SAID 1907.5 FOOT RADIUS CURVE, NORTH 61038'46" WEST, 153.79
FEET; THENCE CONTINUING ALONG THE SOUTHERLY BOUNDARY OF SAID LOT 1 NORTH
55053'02" WEST, 579.53 FEET; THENCE ALONG THE NORTHWEST BOUNDARY OF SAID LOT 1
NORTH 25031' 30" EAST, 113.80 FEET; THENCE ALONG THE NORTHERLy BOUNDARY OF SAID
LOT 1 SOUTH 83002' 20" EAST, 381. n FEET; THENCE CONTINUING ALONG THE NORTHERLY
BOUNDARY OF SAID LOT 1 NORTH n007'16" EAST, 296.11 FEET; THENCE CONTINUING ALONG
THE NORTHERLY BOUNDARY OF SAID LOT 1 SOUTH n03S'4S" EAST," 30.68 FEET; THENCE
CONTINUING ALONG THE NORTHERLY BOUNDARY OF SAID LOT 1 SOUTH 56048' 54" EAST,
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374.47 FEET; THENCE DEPARTING THE NORTHERLY BOUNDARY OF SAID LeT 1 SOUTH
56'48'54" EAST, 25.03 FEET; THENCE NORTH 65'42'33" EAST, 323.32 FEET TO THE
NORTHERLY BOUNDARY OF LeT 3 OF SAID MAP NO. 12267; THENCE CONTINUING ALeNG THE
NORTHERLY BOUNDARY OF SAID LeT 3 SOUTH 67'19'52" EAST, 3.25 FEET TO THE NORTHEAST
CORNER OF SAID LeT 3, SAID POINT ALSO BEING THE NORTHWEST CORNER OF LeT 6 OF SAID
MAP NO. 12267; THENCE A'LCNG THE NORTHERLY BOUNDARY OF SAID LeT 6 NORTH 79'06' 30"
EAST, 104. 79 FEET; THENCE CONTINUING ALeNG THE NORTHERLY BOUNDARY OF SAID tOT 6,
NORTH 89'46'00" EAST, 122.80 FEET; THENCE CONTINUING ALeNG THE NORTHERLY BOUNDARY
OF SAID LeT 6 SOUTH 80'16'06" EAST, 198.31 FEET; THENCE CONTINUING ALONG THE
NORTHERLY BOUNDARY OF SAID LeT 6 SOUTH 21'37'56" EAST, 74.32 FEET TO A POINT ON
THE WESTERLY RIGHT-OF-WAY LINE OF PASEO DEL REY AS SHOWN ON SAID MAP NO. 12267,
SAID POINT ALSO BEING ON THE ARC OF A NONTANGENT 236 FOOT RADIUS CURVE CONCAVE
SOUTHEASTERLY, A RADIAL TO SAID POINT BEARS NORTH 21' 37' 56" WEST; THENCE EASTERLY
ALONG SAID RIGHT-OF-WAY LINE AND SAID CURVE THROUGH A CENTRAL ANGLE OF 20"02' 56"
A DISTANCE OF 82.58 FEET; THENCE CONTINUING ALeNG SAID RIGHT-OF-WAY LINE AND
TANGENT TO SAID 236 FOOT RADIUS CURVE NORTH 88"25'00" EAST, 223.92 FEET TO THE
BEGINNING OF A TANGENT 164 FOOT RADIUS CURVE CONCAVE NORTHERLY; THENCE CONTINUING
EASTERLY ALONG SAID RIGHT-OF-WAY LINE AND SAID 164 FOOT RADIUS CURVE THROUGH A
CENTRAL ANGLE OF 14"00'00" A DISTANCE OF 40.07 FEET; THENCE CONTINUING ALONG SAID
RIGHT-OF-WAY LINE AND TANGENT TO SAID 164 FOOT RADIUS CURVE NORTH 74" 25' 00" EAST,
155.20 FEET TO THE BEGINNING OF A TANGENT 236 FOOT RADIUS CURVE CONCAVE
SOUTHERLY; THENCE CONTINUING EASTERLY ALeNG SAID RIGHT-OF-WAY AND SAID 236 FOOT
RADIUS CURVE THROUGH A CENTRAL ANGLE OF 14"00'00" A DISTANCE OF 57.67 FEET;
THENCE CONTINUING ALONG SAID RIGHT-OF-WAY LINE AND TANGENT TO SAID 236 FOOT
RADIUS CURVE NORTH 88"25'.00" EAST, 120.00 FEET; THENCE DEPARTING SAID RIGHT-OF-
WAY LINE NORTH 88"25'00" EAST, 145.86 FEET; THENCE NORTH 74"04'54" EAST, 104.88
FEET; THENCE NORTH 79"22'32" EAST, 100.83 FEET; THENCE NORTH 88"12'53" EAST,
139.50 FEET TO THE NORTHWEST CORNER OF LeT 14 OF SAID MAP NO. 12267; THENCE
CONTINUING ALeNGTHE NORTHERLY BOUNDARY OF SAID LeT 14, NORTH 83"43'15" EAST,
114.29 FEET; :mENCE DEPARTING THE NORTHERLY BOUNDARY OF SAID LeT 14 SOUTH
88"10'32" EAST, 239.49 FEET; THENCE SOUTH 75"22'27" EAST, 86.74 FEET; THENCE
SOUTH 0"00'00" WEST, 354.93 FEET; THENCE NORTH 90"00'00" EAST, 38.48 FEET; THENCE
SOUTH 0"00'00" WEST, 455.70 FEET; THENCE NORTH 86'47'15" WEST, 258.19 FEET;
THENCE SOUTH 0"00'15" EAST, 21.33 FEET; THENCE SOUTH 89"59'45" WEST, 21.27 FEET
TO THE EASTERLY RIGHT-OF-WAY LINE OF AVILA WAY AS SHOWN ON SAID MAP NO. 12267;
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THENCE ALONG SAID RIGHT-OF-lJAY LINE SOUTH 1020'00" EAST, 10.47 FEET TO THE
BEGINNING OF A TANGENT 20 FOOT RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE
SOUTHEASTERLY ALONG SAID RIGHT-OF-lJAY LINE AND ALONG SAID CURVE THROUGH A CENTRAL
ANGLE OF 88040'15" A DISTANCE OF 30.95 FEET TO THE NORTHERLY RIGHT-OF-lJAY LINE
OF EAST 'H' STREET AS SHOW'N ON SAID MAP NO. 12267; THENCE ALONG SAID RIGHT-OF-lJAY
LINE SOUTH 89059'45" lJEST, 106.99 FEET; THENCE DEPARTING FROM SAID RIGHT-OF-lJAY
LINE NORTH 0000'15" lJEST: 4"0.06 FEET; THENCE SOUTH 89040'12" lJEST, 191.98 FEET;
THENCE NORTH 86048'33" lJEST, 110.61 FEET; THENCE NORTH 69'34'31" lJEST, 19.79 FEET
TO THE SOUTHEAST CORNER OF LOT 11 OF SAID MAP NO. 12267, SAID CORNER ALSO BEING
ON THE EASTERLY BOUNDARY OF PARCEL 2 AS SHOW'N ON CITY OF CHULA VISTA ADJUSTMENT
PLAT NO. 91-8 AND IN DEED RECORDED FEBRUARY 28, 1991 AS FILE NO. 91-0086527 IN
THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY; THENCE ALONG THE EASTERLY
BOUNDARY OF SAID PARCEL 2 NORTH O' 26' 43" EAST, 321. 61 FEET TO THE NORTHEAST
CORNER OF SAID PARCEL 2; THENCE ALONG THE NORTHERLY BOUNDARY OF SAID PARCEL 2
SOUTH 82'37'37" lJEST, 274.62 FEET TO THE EASTERLY RIGHT-OF-lJAY LINE OF LAZO COURT
AS SHOW'N ON SAID MAP NO. 12267, SAID POINT ALSO BEING THE BEGINNING OF A NON-
TANGENT 60 FOOT RADIUS CURVE CONCAVE NORTHERLY, A RADIAL TO SAID POINT BEARS
SOUTH 83'13'49" EAST; THENCE lJESTERLY ALONG SAID RIGHT-OF-lJAY LINE AND ALONG THE
NORTHERLY BOUNDARY OF SAID PARCEL 2 THROUGH A CENTRAL ANGLE OF 146042'00" A
DISTANCE OF 153.62 FEET, A RADIAL TO SAID POINT BEARS SOUTH 63028'11" lJEST;
THENCE DEPARTING SAID RIGHT-OF-lJAY LINE AND ALONG THE NORTHERLY BOUNDARY OF SAID
PARCEL 2, NORTH 85000'41" lJEST, 246.29 FEET TO THE NORTHlJEST CORNER OF SAID
PARCEL 2; THENCE ALONG THE lJESTERLY BOUNDARY OF SAID PARCEL 2 SOUTH 4059'19"
lJEST, 242.97 FEET TO THE SOUTHEAST CORNER OF LOT 8 OF SAID MAP NO. 12267; THENCE
DEPARTING THE lJESTERLY BOUNDARY OF SAID PARCEL 2 AND ALONG THE SOUTHERLY BOUNDARY
OF SAID LOT 8 SOUTH 61'31'37" lJEST, 56.72 FEET; THENCE CONTINUING ALONG THE
SOUTHERLY BOUNDARY OF SAID LOT 8 NORTH 82'16'50" lJEST, 170.00 FEET TO THE
SOUTHEAST CORNER OF LOT 7 OF SAID MAP NO. 12267; THENCE ALONG THE SOUTHERLY
BOUNDARY OF SAID LOT 7 NORTH 82"16'50" lJEST, 124.38 FEET; THENCE CONTINUING ALONG
THE SOUTHERLY !I0UNDARY OF SAID LOT 7 NORTH 40044' 46" lJEST, 98 . 78 FEET TO THE
EASTERLY RIGHT-OF-lJAY LINE OF PASEO DEL REY AS SHOW'N ON SAID MAP NO. 12267;
THENCE NORTH 82020'00" lJEST, 46.00 FEET TO THE CENTERLINE OF SAID PASEO DEL REY;
THENCE ALONG THE CENTERLINE OF PASEO DEL REY SOUTH 7"40'00" lJEST, 3.23 FEET;
THENCE NORTH 82'20'00. lJEST, 46.00 FEET TO THE SOUTHEAST CORNER OF SAID LOT 4,
SAID CORNER ALSO BEING ON THE lJESTERLY RIGHT-OF-lJAY LINE OF SAID PASEO DEL REY;
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THENCE ALONG SAID RIGHT-OF-WAY LINE AND ALONG THE EASTERLY BOUNDARY OF SAID LOT """".
4 NORTH 7"40'00" EAST, 167.09 FEET TO THE BEGINNING OF A TANGENT 20 FOOT RADIUS
CURVE CONCAVE SOUTH1olESTERLY; THENCE NORTHERLY AND 10IESTERLY ALONG SAID CURVE AND
ALONG THE NORTHEASTERLY BOUNDARY OF SAID LOT 4 THROUGH A CENTRAL ANGLE OF
90"20'00", A DISTANCE OF 31.53 FEET; THENCE ALONG THE NORTHERLY BOUNDARY OF SAID
LOT 4 AND ALONG THE SOUTHERLY RIGHT-OF-WAY LINE OF PLAZA COURT AS SH010lN ON SAID
MAP NO. 12267 AND TANGENT TO SAID CURVE, NORTH 82"40'00" WEST, 245.32 FEET TO THE
NORTH1oIEST CORNER OF SAID LOT 4; THENCE ALONG THE WESTERLY BOUNDARY OF SAID LOT
4 SOUTH 6"31'16" WEST, 247.66 FEET TO THE POINT OF BEGINNING.
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ATTACHMENT 2
DESCRIPTION OF THE SITE
4 LEGAL DESCRIPTION:
5 LOT 1 AND 2 OF CITY OF CHULA VISTA TRACT NO. 93-01 IN THE CITY OF
CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA.
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S,^013411J.NAS
010693
ATTACHMENT 2 -- Page 1
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S\A013411J.NAS
010693
ATTACHMENT 3
PLOT PLAN
ATTACHMENT 3 -- Page 1
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JAN~II-93 MON 15:10
COMMUNITY DEVELOPMENT
FAX NO. 6194765310
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COUNCIL AGENDA STATEMENT
SUBMITTED BY:
Item lIe
Meeting Date 01119/93
Resolution )~'~1pproving and Authorizing Execution of a Public
Facilities Financing and Implementing Agreement with Major Retailer C
(The Price Company), Rancho del Rey Commercial Center, and Related
CEQA Findings
Community Development Director ~ 7 .
ITEM TITLE:
REVIEWED BY: City Managerf!' (4/5ths Vote: Yes No X)
BACKGROUND: On November 24, 1992, Council held a public hearing and subsequently
adopted Resolution 16900 and held the first reading of Ordinance 2535 relating to the conversion
of the western 55 acres of the Rancho del Rey Employment Park to a Commercial Center and
related regulatory actions including CEQA considerations. The second reading of this ordinance
was approved by Council on November 30, 1992. Approval of the ordinance included adoption
of a Development Agreement with the applicant/developer of the Commercial Center for all
portions of the site excluding the easternmost parcel designated for Major Retailer C (Price
Club). An approved General Condition of the Rancho del Rey Commercial Center project is
the requirement that Major Retailer C enter into a Development Agreement or Public Facilities
Financing Agreement (PFFA) and Implementing Agreement with the City prior to the issuance
of a building permit. The proposed PFFA and Implementing Agreement satisfies this condition.
It further provides for a three-way agreement between The Price Company, the City and the
developer which stipulates benefits to Price Club and the developer as well as performance
assurances to the City. The proposed agreement was initially submitted to Council on December
15, 1992, at which time it was continued to a future meeting.
RECOMMENDATION: That Council approve the resolution authorizing the Mayor to execute
the proposed Public Facilities Financing Agreement and Implementing Agreement with The Price
Company, and making certain CEQA findings.
BOARDS/COMMISSIONS RECOMMENDATION: The following boards and commissions
reviewed the actions taken by Council on November 24, as discussed in the November 24
agenda statement:
o Resource Conservation Commission - Endorsed project
o Design Review Committee - Endorsed amended Employment Park design guidelines
o Economic Development Commission - Endorsed project
o Planning Commission - Certified FSEIR and recommended approval of resolution and
ordinance, including Development Agreement
No group has reviewed the attached PFF A/Implementing Agreement document. However, the
proposed terms of the agreement were outlined in the November 18 Planning Commission staff
report.
lIe -)
Page 2, Item lIe
Meeting Date 01119/93
DISCUSSION:
A. PRICE CLUB - GENERAL INFORMATION
The Price Company, a leading national warehouse club discount store was founded by Sol Price
in 1976 and is the industry leader in both longevity and sales. Price Club now has over 50
stores and over $5 billion in sales. (Competitors include Sam's Club, Costco, and PACE).
Price Club sells quality brand name goods - groceries, office supplies, appliances, electronics,
housewares, hardware, auto supplies - at sharply discounted prices. Memberships include
individuals and businesses, typically small to medium-sized.
Average annual sales by these "big box" discounters are frequently three times those of more
"traditional" discounters. The industry average exceeds $400-$500 per square foot. Price Club
averages tend more towards $1000 per square foot.
The Price Club REIT currently owns the 34.62 acre Power Center on Broadway which includes
its own store and additional lease tenants and vacant land to the west. The existing Price Club
store occupies 112,000 square feet. Price Club is evaluating options to upgrade this facility
ranging from renovation to demolition and construction of a totally new facility. The new H
Street store will occupy 136,800, including a 6,800 square foot tire center.
B. DEVELOPMENT AGREEMENT REOUIREMENTS
As indicated above, the Price Club parcel is not subject to the existing Development Agreement
with McMillin Development. This was explained by staff to the Planning Commission in the
memo distributed at the Commission's November 18 meeting (Revised General Condition of
Approval - Council Resolution, Attachment E; and Revised Development Agreement,
Attachment G) as well as verbally. It was also explained to Council in the November 24 agenda
statement. The proposed Public Facilities Financing and Implementing Agreement with Price
Club meets the condition imposed upon the parcel by Council via the resolution adopted on
November 24.
C. PRICE CLUB PFFA AND IMPLEMENTING AGREEMENT - HISTORY OF
NEGOTIATIONS/PRESENTATIONS TO COUNCIL
Negotiations with the three major retailers, including Price Club, commenced concurrently with
processing the Power Center land use entitlements. In an attempt to keep both the Planning
Commission and Council informed, staff outlined the proposed terms of the agreements, as they
were evolving, in the November 18 Planning Commission agenda item and in the November 24
Council agenda statement. These terms, precisely as they were presented in these staff reports,
and as updated verbally, as well as the terms currently being proposed for approval, are
delineated below:
lIe....;..
Page 3, Item lIe
Meeting Date 01119/93
November 18 Planninl! Commission Al!enda Statement (Land Use Entitlements and
DeveloDment Al!reemeDtl
"As indicated, at the time of the repon preparation, negotiations are on-!!oing with Price
Club, Home Depot and Kman. The general terms of each J2rgj1 Implementing Agreement
are summarized here:
City Requirements:
I. Price Club will open the new store within 18 months of gaining title.
2. Price Club will covenant to operate the new store for 10-15 years.
3. Price Club will covenant to upgrade the existing Broadway store and to operate
same for a specified number of years acceptable to the City.
4. Price Club will advance the City funds for construction of public improvements
(which are the responsibility of the developer).
5. The developer will reduce the land sales price to Price Club by the amount of
funds "loaned" by Price Club to the City for public improvements, as well as
contribute an additional $700,000 to Price Club to pay for Assessment District
liens.
City Assistance:
1. The City will reimburse Price Club for the public improvements "loan" over a
period of 10-15 years from new sales tax receipts generated by the Center.
2. The City will reimburse Price Club $192,000 in DIF fees (paid at building permit
issuance) over a period of 10-15 years from new sales tax receipts generated by
the center.
3. The City will provide the developer $835,000 in assistance for constructing public
improvements. "
Note the following:
Attachment G of the memo distributed to the Planning Commission on November 18
identified five changes to the Development Agreement dated November II, which had
been previously distributed. Changes related to: I) five year Land Use Term (vesting
period), 2) exemption of majors from future TDIF fees, 3) clarification of McMillin's
obligation to reimburse the $835,000 should Price Club not close escrow, 4) vesting of
TDIF fees for majors and previously allowed uses; and, 5) exclusion of Price Club from
the Development agreement.
The Price Club representative commented at the hearing that, "Price Club has an
agreement with the City to upgrade or rebuild the facility on Broadway. ..
November 24 Council Al!enda Statement (Land Use/DeveloDment Al!reementl
"As indicated, negotiations are on-goin!! with Price Club, Home Depot and Kman. The
general terms of each Draft Implementing Agreement are summarized here:
JIC"J
Page 4, Item lIe
Meeting Date 01/19/93
City Requirements:
1. Same as above.
2. Price Club will covenant to operate the new store for a minimum of ten (10)
years.
3. Price Club will covenant to upgrade the existing Broadway store and to operate
same for a minimum of eight years.
4. Price Club will advance the City up to $1. 7 million funds for construction of
public improvements (which are the responsibility of the developer).
5. Same as above.
City Assistance:
1. The City will reimburse Price Club for the public improvements "loan" over a
period of 10 years from new sales tax receipts generated by the center.
2. The City will reimburse Price Club $192,000 in DIF fees (paid at building permit
issuance) over a period of 10 years from new sales tax receipts generated by the
center.
3. The City will provide the developer an additional $835,000 in assistance for
constructing offsite public improvements. (McMillin will reimburse the City this
amount in the event Price Club does not close escrow.)"
November 24 Council Meetinl!: - Staff Comments
In regards to enforceability of operating covenants, Legal Counsel Scully noted that "the
agreements as drafted provide for economic damages, not specific performance. "
December 15 Council Al!:enda Statement (Retailer Al!:reements)
The terms as presented in the December 15 Council agenda statement are reproduced
below in italics. Modifications, as currently proposed, are also indicated:
1. Price Club will open the new store within 18 months of closing escrow.
Modification: "It is intended that the new facility will commence operation... "
within 18 months of closing escrow. (See #7 below.)
2. Price Club will operate the new store for a minimum of ten years.
Modification: "It is retailer's current intent to operate... the new facility... for a
minimum of 10 years." If the new store closes prematurely, Price Club will
forgive the balance of the $1.892 million loan.
3. Price Club will upgrade the existing Broadway store and operate same for a
minimum of 8 years, provided that taxable sales do not fall below $60 million.
(In the event the store closes prematurely, Price Club will forgive the outstanding
balance of their loan to the City and reimburse the City the $835,000 paid to the
developer, per items 4,6 and 7 below.)
Modification: It is retailer's intent to continue to operate the existing facility for
a minimum of eight years... provided that retailer does not covenant to operate... "
In the event the store closes prematurely, Price Club will forgive the balance of
the $1.892 million loan and reimburse the $835,000. This does not apply if
IIC-i
Page 5, Item lIe
Meeting Date 01119/93
taxable sales fall short of $60 million in the preceding 12 months. "Retailer
intends to upgrade the existing facility..." The minimum level of required
improvements will be cosmetic improvements to the exterior of the facility.
4. Price Club will advance the City $1.892 million in funds for construction of
public improvements.
Modification: None.
5. The developer will reduce the land sales price to Price Club by the amount of the
Price Club "loan", as well as contribute an additional minimum of $700,000 to
Price Club towards paying down the Assessment District liens.
Modification: McMillin has increased its level of assistance to approximately
$800,000.
6. The City will reimburse Price Club the amount advanced for public improvements
over a period of ten years, including interest based on the prime rate.
Modification: Interest on the loan will be a fixed 8 %.
7. The City will provide the developer an additional $835,000 in assistance for
construction of off-site public improvements. McMillin will reimburse the City if
Price Club doesn't open in 18 months.
Modification: None.
8. Price Club will provide a proactive approach to recruiting, training and/or hiring
employees from the local community, exening a significant effon to work with
local education and training providers including, but not limited to, Southwestern
College and Sweetwater Union High School District with a goal of hiring Chula
Vista residents.
Modification: The reference to the specific providers has been deleted, replaced
by language indicating providers as required by the City Manager.
A SUMMARY OF DEAL POINTS, AS INITIALLY AND CURRENTLY PROPOSED, IS
PROVIDED IN ATTACHMENT A. Key modifications pertain to: 1) Price Club's "intent"
to operate the existing and new stores for designated terms, versus the initially proposed
"covenant" to operate. The agreement provides for economic damages via forgiveness of the
loan to the City and in the case of the Broadway store, reimbursement of the $835,000 paid by
the City for public improvements. It should be noted that Price Club has closed only one of its
82 stores - in Buffalo, New York - since its inception in 1976; and, 2) a provision allowing
Price Club to close its Broadway store if taxable sales fall Qelow $60 million. It should be noted
that Price Club's San Diego stores including Chula Vista's Broadway store, the Santee store and
Market Street stores all generate sales over $100 million.
D. ENVIRONMENTAL REVIEW
The Rancho del Rey Commercial Center Final SEIR has analyzed impacts associated with the
proposed Implementing Agreement. This same FSEIR was certified by City Council on
November 24, 1992. The proposed Implementing Agreement carries out the Development
Agreement that was identified in the Final SEIR. Thus, no new environmental issues arise from
approval of this Implementing Agreement, and the Rancho del Rey Commercial Center Final
lIe ..,$
Page 6, Item / / C
Meeting Date 01119/93
SEIR is the appropriate CEQA document. Likewise, the Candidate CEQA Findings (as modified
at the November 24 meeting), the Statement of Overriding Considerations, and the Mitigation
Monitoring and Reporting Program remain the appropriate documents to accompany the
proposed action.
ECONOMIC AND FISCAL IMPACT
The proposed new store will employ 291 people (112 full time and 162 part time and 17 non-
union salaried managers). The hourly wage ranges from $6.00/hour (probational training wage)
to $13.27/hour with an average wage of $12.00/hour. Salaried managers earn $30,000-
$70,000/year. (The entire Commercial Center will generate 1224 jobs.)
In terms of revenues, the Commercial Center will generate first year Net New Revenues of
$1.21 million. The new Price Club alone is projected to generate Year 1 Gross Sales Tax
Revenues of $825,000. After accounting for potential overlapping sales with the existing store,
the new H Street Price Club is estimated to generate Year 1 Net New Sales Taxes of $401,000.
This is based on highly conservative market assumptions and is considered a "worst case"
analysis.
The $1.892 million rebate to Price Club will be paid off over ten years. Interest will be paid
based upon an annnual equal principal reduction of $189,200 plus an 8% fixed interest rate on
the outstanding balance. This translates to annual payments of $340,000 in Year 1, decreasing
to $204,000 in Year 10. In turn, this translates to adjusted NET NEW REVENUES of
$870,000 in Year 1, increasing to approximately $1.2 million (1992 dollars) in Year 10, using
the conservative numbers provided by the City's Williams-Kuebelbeck and Associates (WKA)
Economic Impact Study.
The $835,000 in assistance to the developer is a one time expense and will be paid from non-
General Fund revenues (e.g., TPF/SB3oo Fund, Transportation DIF Fund and Traffic Signal
fund).
In terms of financial "risk", the proposed agreement requires the City to continue to repay the
$1.892 loan if the Broadway store closes because sales fall below $60 million/year. Under this
scenario, NET NEW REVENUES could potentially decrease by approximately $396,000 to
$474,000 in Year 1, increasing to $800,000 in Year 10 (using WKA's numbers). The $835,000
outlay for off-site public improvements (on H Street) would not be reimbursed to the City in any
case if the Broadway store closes.
C:\WPSl \DYE\PRICECL2.113
lIe. --t,
RESOLUTION NO. I" 9'1.J..
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
APPROVING AND AUTHORIZING EXECUTION OF A PUBLIC FACILITIES
FINANCING AND IMPLEMENTING AGREEMENT WITH MAJOR
RETAILER C (THE PRICE COMPANY) RANCHO DEL REY COMMERCIAL
CENTER, AND RELATED CEQA FINDINGS
WHEREAS, on November 24, 1992, the City Council approved Resolution No. 16900
("Entitlements Resolution") and the first reading of Ordinance No. 2535 ("Entitlements
Ordinance"), collectively certifying the FSEIR (as defined therein which definition is
incorporated herein by reference), amending the General Plan, El Rancho del Rey Specific Plan,
Rancho del Rey Sectional Planning Area (SPA) I, Planned Community District Regulations,
Rancho del Rey Employment Park Design Guidelines, and PFFP, and approving the Air Quality
Plan Water Conservation Plan, Tentative Maps, street name change and Development
Agreement, and making certain Findings and Statement of Overriding Considerations; and,
WHEREAS, the City Council held the second reading of the Entitlements Ordinance
(approving the Development Agreement) on November 30, 1992; and,
WHEREAS, A General Condition of Approval of the Commercial Center project
requires that an Implementing Agreement or other similar agreement be entered into between
each of Major Retailers A, B, and C and the City prior to each retailer commencing
development; and,
WHEREAS, the Implementing Agreement stipulates that within 15 working days the City
and Retailer shall enter into a letter agreement defining Retailer's employment outreach
obligations, and such letter is hereby authorized to be executed by the City Manager on behalf
of the City; and,
NOW, THEREFORE, THE CITY COUNCIL DOES HEREBY FIND,
DETERMINE, RESOLVE AND ORDER AS FOLLOWS:
l. FSEIR Contents.
The FSEIR consists of the following:
A. "Final Supplemental Environmental Impact Report - Ranch del Rey Commercial
Center" (EIR 92-02) prepared by Robert Bein, William Frost & Associates (REF) and dated
October 5, 1992 SCH # 92051032, which contains the Draft Supplemental Environmental Impact
Report ("DSEIR") distributed date July 21,1992, revised to reflect responses made to comments
on ,the DSEIR, and the comments and responses to the DSEIR; and
rdrpc 1. wp
January 12, 1993
Reso approving Price Club Agmt
Page I
lIe - ?
B. Appendices (A through D) to Final Supplemental Environmental Impact Report.
C. Technical studies and information incorporated in the responses to comment.
II. FSEIR Reviewed and Considered.
The City Council of the City of Chula Vista has reviewed, analyzed and considered
FSEIR 92-02, the environmental impacts therein identified for this Project; the Candidate CEQA
Findings attached to the Entitlements Resolution as Attachment A, the proposed mitigation
measures contained therein, the Mitigation Monitoring and Reporting Program attached to the
Entitlements Resolution as Attachment B, and the Statement of Overriding Considerations which
is attached to the Entitlements Resolution as Attachment C prior to approving the Project.
III. Certification of Compliance with CEQA.
The City Council does hereby find that FSEIR 92-02, the Candidate CEQA Findings, the
Mitigation Monitoring and Reporting Program, and the Statement of Overriding Considerations
are prepared for this Project in accordance with requirements of the California Environmental
Quality Act, the State EIR Guidelines, and the Environmental Review Procedures of the City
of Chula Vista.
IV. Independent Judgement of City Council
The City Council finds that the FSEIR reflects the independent judgement of the City of
Chula Vista City Council.
V. Approval of Implementing Agreement
The City Council of the City of Chula Vista does hereby approve the Public Facilities
Finanacing and Implementing Agreement with Price Company in the form presented, authorizes
the City Manager in conjunction with the approval of the City Attorney, to make minor,
modifications thereto prior to presentation to the Mayor for execution, and does hereby authorize
the Mayor to execute the Implementing Agreement substantially in the form presented together
with such changes as may be approved by the City Manager and City Attorney.
VI. Findings re Consistency with the General Plan.
The City Council hereby finds that the Project is and will be consistent with the general
plan for the reasons advanced in the Entitlements Resolution which reasons are incorporated
herein by reference.
rdrpcl.wp
January 7, 1993
Reso approving Price Club Agmt
Page 2
//c-y
VII. CEQA Findings, Mitigation Monitoring Program, and Statement of Overriding
Considerations.
A. Adoption of Findings.
The City Council does hereby approve, accept as its own, incorporate as if set
forth in full herein, and make each and every one of the findings contained in the
"Findings of Fact Re Proposed Rancho Del Rey Commercial Center" attached to
the Entitlements Resolution as Attachment A.
B. Certain Mitigation Measures Feasible and Adopted.
As more fully identified and set forth in the master EIR for the Rancho del Rey
SPA I (EIR-87-0l) and the supplemental environmental document (EIR-92-02)
and in the CEQA Findings for this project, which is attached to the Entitlements
Resolution as Attachment A, the Council hereby finds pursuant to Public
Resources Code Section 21081 and CEQA Guidelines Section 15091 that the
mitigation measures described in the above referenced documents are feasible and
will become binding upon the entity (such as the project proponent, the City, or
the school district) assigned thereby to implement same.
C. Infeasibility of Alternatives.
As is also noted in the above referenced environmental documents described in
the above subparagraph B, alternatives to the project which were identified as
potentially feasible in the EIR were found not to be feasible except the Site Plan
Alternative which is hereby rejected because the Project, as mitigated, already
reduces the impact on traffic to a level of less than significance.
D Adoption of Mitigation Monitoring and Reporting Program.
As required by the Public Resources Code Section 21081.6, the City Council
hereby adopts Mitigation Monitoring and Reporting Program ("Program") set
forth in Attachment B to the Entitlements Resolution incorporated herein by
reference as set forth in full. The Council hereby finds that the Program is
designed to ensure that during project implementation the permittee/project
applicant and any other responsible parties implement the project components and
comply with the feasible mitigation measures identified in the Findings and the
Program.
E. Statement of Overriding Considerations.
rdrpcl.wp
January 7, 1993
Reso approving Price Club Agmt
Page 3
IIC-1
Even after the adoption of all feasible mitigation measures and any feasible
alternatives, certain significant or potentially significant environmental effects
caused by the project or cumulatively will remain. Therefore, the City Council
of the City of Chula Vista hereby issues, pursuant to CEQA Guideline Section
15093, a Statement of Overriding Considerations in the form set forth in
Attachment C, attached to the Entitlements Resolution and incorporated herein as
if set forth in full, identifying the specific economic, social, and other
considerations that render the unavoidable significant adverse environmental
effects acceptable.
p Notice of Determination
The EnvironmenW Review Coordinator of the City of Chula Vista is directed after City
Council approval of this Project to ensure that a Notice of Determination, together with a copy
of this resolution, its exhibits, and all resolutions passed by the City Council in connection with
this Project, is filed with the County Clerk of the County of San Diego.
Q~ ~o_
Chris Salomone
Community Development Director
Bruce M. Boogaard
City Attorney
Presented by:
rdrpc 1. wp
January 7, 1993.
Reso approving Price Club Agmt
Page 4
IIC-It?
ATIACHMENT A
PRICE CLUB
CHANGES TO AGREEMENT
DECEMBER 10, 1992 AGREEMENT AS PROPOSED
1. Minimum square footage of 136,000. 1. Minimum square footage of
120,000.
2. Price Club "agrees to construct and open 2. Price Club "currently intends to
for business. " construct and open for business. "
3. " ...in no event shall the interest rate 3. The interest rate has been fixed at
exceed 8%." 8%.
4. "Retailer ... shall provide a proactive 4. For a period of 10
approach to recruiting, training and/or years...retailer...shall provide a
hiring employees from the local proactive approach to recruiting,
community. This approach must include a training and/or hiring employees
significant effort to work with local from the local
providers including but not limited to community.. . Retailer shall work
SUDHS Adult Program and Southwestern with the local education and
College. .. " training providers as required by
the City of Chula Vista.
5. " . . . the (H Street) facility shall be deemed 5. In the event the H Street facility
permanently closed if it closes.. . for three closes due to force majeure, loan
consecutive months... unless.. .due repayment ceases until such time as
to.. . events of force majeure. " This the store reopens.
language could require the City to continue
to repay the loan even if the store closes
and does not reopen due to force majeure.
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MEMORANDUM
January 17, 1993
TO:
The Honorable Mayor and City Council
VIA:
FROM:
John D. Goss, City Manager (\ O.
Chris Salomone, Community Development Director fJJf
SUBJECT: Revisions to Price Club Public Facilities Financing and Implementation
Agreement
Attached are modifications to the Price Club Public Facilities Financing and Implementation
Agreement scheduled for Council consideration on January 19, 1993.
Specifically, attached items include: 1) the redlined Promissory Note; 2) the clean-copy revised
Promissory Note; 3) the redlined Agreement, and; 4) the clean-copy Agreement. (Note: the
Promissory Note is Exhibit 3 of the Agreement.) As indicated in Ms. Scully's cover letter, the
chan!?:es are of format and structure only. They simply fine-tune the Promissory Note mechanics
and correspondingly "clean-up" the Agreement itself. Nothing in these modifications are
inconsistent with staff's recommendation and the A-I13 report. Note that Exhibits 9 and 10,
providing for the method of fund disbursement, have also been added to the Agreement.
AGREEMENT CHANGES
Essentially, the changes to the Agreement entail deleting language under Sections C, "Repayment
of Loan", and H, "Definitions and Tenns", and inserting similar language in the Promissory
Note. However, a minor change has been made to the Force Majeure maximum closure period
for the new store, extending it from 360 days (page 22 of the original Agreement) to 24 months
(as now referenced in the Promissory Note, page 2). It is still the case that if the new facility
closes for reasons of force majeure, loan vayments will cease until it reopens. If it stays closed
for more than 24 months, the loan will be forgiven altogether.
Additionally, the period during which the City Manager and Price Club must execute a letter
agreement regarding Price Club's obligations concerning employment outreach has been reduced
to 15 business days (page 23).
PROMISSORY NOTE (EXHIBIT 3) CHANGES
While Section 2 has been revised to reflect an 8 % fixed interest rate on the loan to the City, it
should be noted that this term is already reflected in both the staff report and the Price Club
Agreement previously distributed. This change simply brings the Promissory Note into
conformance with the Agreement.
lie-I]
r
VJ
\)
Honorable Mayor and City Council
January 17, 1993
Page Two
The other changes primarily relate to the mechanics of calculating loan payments. They also
address the Force Majeure period, providing for: 1) a capped extension of the 18 month period
by which the new store must open - allowing a maximum 24 additional months for delays due
to force majeure (Section 6.1, page 2); and, 2) a maximum 24 month closure for delays due to
force majeure (Section 6.4, page 5). The maximum 90 day closure period for reasons other than
repairs or Force Majeure remains unchan!!ed. Should any of these 3 capped periods of closure
be exceeded, the City's obligation to repay the loan ceases.
EXHIBITS 9 AND 10
Exhibits 9 and 10 provide for the method of disbursement of funds for Public Improvements.
Exhibit 9 refers to the $1.892 million acquisition of on-site public improvements, using funds
loaned to the City by Price Club. Exhibit 10 refers to a maximum of $835,000 in progress
payments for the construction of off-site improvements on East H Street. These payments will
be made from non-General Fund City monies.
While the changes are almost exclusively of a format nature, staff recognizes that Council is
receiving them at a late date. Should Council wish to continue this item, representatives from
McMillin and Price Club will be available for questions at the January 19 meeting.
CLD/ak
cc: Bruce Boogaard, City Attorney
Sid Morris, Assistant City Manager
Cheryl Dye, Economic Development Manager
/Ie -)7/lle-t6
01/15/93
18:58
ft1 714 851 0739
SllR&H
1i!J002
SHEPPARD, MUWN, RICHTER & HAMPTON
... _HIP ...C;........""" _.....'tt<"....-<._-""""""'""
"'Q$ .....N...E:U!:.5 OFf'lGE:
JI"r;:IRl'Y-IEI6Hn-f FLOOR
~ GOUTl-f t-4OP~ ST...~ET
LOS ANGEa.&;5, ~~OA:NlA .0071
'0:13:) ~2Q-/7BO
^TTORN~ AT LAW
SEVENTH FLOOR
SAN I"~ANCIsc.O OFFK;E:
GevEN,.EENTH FLOOR
..OU. I!:MBARCADERO CI:~e.R
SAN FRANCISCO, CALII"ORNIA 904111
{.41")~:IilJ.4
-469~ MAcA.RTHtJ~ COURT
NEWPORT .EACH. CA.U"'O~IA S2:660
I€.LE:PHONE (7141 7S:<!-e-400
trACSIMILE m4) SSI-01'~g
~ DIEGO OFFICE
NINETEENTH "..OOR
501 WE$T al'tO~"'Y
SAN 01&<;;9. ~UI"OIltNIA 9210HlDOtf
(8Kl1' 938-6500
LOS Af'tGELES OF..-Il;r;;
~L.E SIolE:IlLAW Te:U:::l' 1~4
January ~5, ~993
OUR ""LI': ,,"UMBER
EGB-47835
VIA TBLBCOPXER: (619) 476-5310
Ks. Chery~ Dye
Econo~ic Development Manager
COllllllUJ1ity Deve10pment DepartJnent
CITY OF CHULA VISTA
276 Fourth Avenue
Chula Vista, california 91910
Re: Rancho del Rev Pro;ect - Revisions to Price Club
Aqreelllent
Dear Chery 1.:
Enclosed please find the following:
1. A marked and clean copy of the Promissory Note
(the "Note") to be executed by the city to evidence the 10an of
$1,892,000 to City from Price Club (Exhibit No. 3 to the Frice
Club Agreement). The changes from the initial draft of the Note
are of format and structure on1y. They do not change the
substantive terms of the loan agreement.
:) . A marked and clean copy of the proposed Price C1.ub
Agreement. The changes to the Price Club Agreement are non-
substantive in nature. The loan terms in the Agreement have been
deleted as they are set forth in the Note. Additional changes
to the Agreement inc1ude minor modifications to conform to the
Note, fi1.ling-in of b1anks and minor corrections.
3. Exhibits 9 and 10 to the Price Club Agree:ment.
These were not attached to any prior drafts. These are the
disbursement schedules establishing the manner in Whifthe city
viII disburse the $1,892,000 for the specified Public Improve-
ments and the $835,000 for the Specified Street Impro ants to
McMillin or their contractors.
Ile-15
01115/93 18: 59
'6'1 714 851 0739
SI!R&H
141003
SHEPPARD, MULLIN, RICHTER & HAMPTON
MS. Cheryl. Dye
January ~5, 1993
page 2
Copies of the Note and the Price Club Agreement have
been sent to Joe Sat~ and Don Howells of the Price Club under
separate cover.
:I bel.ieve that all of the documents on the agenda for
Tuesday, January 19, 1993 are now in final form.
very truly yours,
~
Marcia Scully
for SHEPPARD, MULLIN, RICHTER & HAMPTON
MS:kay
;::nclosura
S\lDl341SK.NS1
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PROMISSORY NOTE
$1,892,000.00
, 1993
Chu1a Vista, California
1. FOR VALUE RECEIVED, the CITY OF CHULA VISTA, a
municipal corporation having charter powers ("city"), promises
to pay to the order of THE PRICE COMPANY, a California
corporation ("Retailer"), at 4241 Jutland, San Diego,
California 92117, or at such other place as Retailer from time
to time may designate, the principal sum of One Million Eight
Hundred Ninety-Two Thousand and NO/100 Dollars ($1,892,000.00),
plus interest as specified in this Note. This Note evidences a
loan from Retailer to City made pursuant to that certain Public
Facilities Financing and Implementation Agreement (the
Agreement") entered into as of , 1993, by and among
city, Retailer and certain third parties. Capitalized terms
used herein have the same meaning as defined in the Agreement,
unless otherwise specified herein.
2. The principal sum outstanding from time to time
under this Note shall bear interest at the rate of eight
percent (8%) per annum. Any accrued interest not paid when due
shall bear interest at the rate of eight percent (8%) per
annum.
3. On each anniversary date of this Note (the
"original Due Dat'~"), ::ity shal _ :'lake .. principal reduction
payment equal to One Hundred Eighty-Nine Thousand Two Hundred
and NO/100 Dollars ($189,200.00), together with all accrued and
unpaid interest the (the "Annual Payment") until this Note is
paid in full except as otherwise provided herein. Interest
shall be calculated on the basis of a full calendar year and
actual days elapsed. The amount of any Annual Payment and/or
the date the same is due shall be subject to adjustment as
expressly provided in section 6, below.
4. All unpaid principal and all accrued and unpaid
interest shall be due and payable no later than the tenth
(10th) anniversary of the date of this Note (the "Original
Maturity Date"). Such original Maturity Date shall be subject
to adjustment as expressly provided in Section 6, below.
5. city may, 'at anytime and from time to time,
prepay some or all of the principal under this Note, without
penalty or premium.
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6. city's obligations under this Note shall be
subject to the following:
6.1 (A) In the event the New Facility is
not constructed on the Property with a minimum gross
floor area of 120,000 square feet and opened for
business within eighteen (18) months after the
Retailer acquires fee title to the Property which
eighteen (18) month period shall be extended for
delays due to Force Majeure (so long as such Force
Majeure delays do not exceed, cumulatively, twenty-
four (24) months, then as of the expiration of said
eighteen (18) month period (as may be extended due to
Force Majeure delays), the entire unpaid balance of
principal and interest accrued under this Note shall
be deemed forgiven by the Retailer;
(5) In the event the New Facility does
not open for business until after the first
anniversary of the date of this Note, the first
Annual Payment (together with any subsequent Annual
Payments) required under section 3, above, may be
deferred by the City until the date of such opening
for business; provided, however, that interest shall
continue to accrue during such deferral period.
(C) In the event that the New Facility
does not open for business within eighteen (18)
months after the Retailer acquires fee title to the
Property for reasons of Force Majeure, the Annual
Payment originally due after the expiration of such
eighteen (18) month period shall (when payable
following the deferral described above) be reduced by
a fraction, the numerator of which i~ the number of
days from the end of said eighteen ,~a) m~nth period
to the date that the New Facility opens and the
denominator of which is three hundred sixty-five
(365). The amount of the reduction in such Annual
Payment shall not reduce the total amount due from
City to Retailer under this Note, it being understood
that such reduced amount shall be deferred and paid
as provided in section 6.5, below.
6.2 (A) In the event the New Facility
opens for business and is thereafter Permanently
Closed prior to the Original Maturity Date, then as
of the Note Termination Date, the unpaid principal
balance of the Note shall be deemed forgiven by the
Retailer; provided, however, the City will remain
liable for the unpaid principal amount of the Note
pro-rated to the Note Termination Date, together with
such interest which has accrued on this Note as of
the Note Termination Date and remains unpaid. Thus,
the portion of the principal amount of the Note
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deemed forgiven shall be a fraction of the original
principal amount of this Note, the numerator of which
is the number of days from the Note Termination Date
to and including the original Maturity Date and the
denominator of which is the number of days from the
date of the Note to and including the Original
Maturity Date.
(B) Any principal and interest for
which the City remains liable, as provided above in
Section 6.2 (A), shall be paid by the City on or
before the date upon which the City's next Annual
payment would have been required but for the fact
that the New Facility has been Permanently Closed.
(C) In the event the New Facility
opens for business and is thereafter closed due to
Force Majeure for thirty (30) or more calendar days
(excluding holidays and other days when a majority of
Price Clubs in california are closed), as calculated
on a cumulative basis during the twelve (12) month
period immediately preceding the original Due Date of
any Annual payment, such Annual Payment shall be
reduced by a fraction, the numerator of which is the
number of days of such closure which fall within such
twelve (12) month period and the denominator of which
is three hundred sixty-five (365). The reduction in
such Annual Payment shall not reduce the total amount
due from city to Retailer under this Note, it being
understood that such reduced amount shall be deferred
and paid as provided in Section 6.5, below.
6.3 (A) In the event the Existing Facility
is Permanently Closed during the eight (8) year
period beginning on the Effective Date Q~ the
Agreement, then as of the Note Termination Date, the
unpaid principal balance of the Note shall be deemed
forgiven by the Retailer; provided, however, the City
will remain liable for the unpaid principal amount of
the Note pro-rated to the Note Termination Date,
together with such interest which has accrued on this
Note as of the Note Termination Date and remains
unpaid. Thus, the portion of the principal amount of
the Note deemed forgiven shall be a fraction of the
original principal amount of this Note, the numerator
of which is the number of days from the Note Termina-
tion Date to and including the eighth (8th)
anniversary of the Effective Date of the Agreement
and the denominator of which is the number of days
from the Effective Date of the Agreement to and
including the eighth (8th) anniversary of the
Effective Date of the Agreement.
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(B) Any principal and interest for
which the city remains liable, as expressly provided
above in Section 6.3 (A), shall be paid by the City
on or before the date upon which the city's next
Annual Payment would have been required but for the
fact that the Existing Facility has been Permanently
Closed.
(C) In the event the Existing Facility
is closed due to Force Majeure for thirty (30) or
more calendar days (excluding holidays and other days
when a majority of Price Clubs in California are
closed), as calculated on a cumulative basis during
the twelve (12) month period immediately preceding
the Original Due Date of any Annual Payment, such
Annual Payment shall be reduced by a fraction, the
numerator of which is the number of days of such
closure which fall within such twelve (12) month
period and the denominator of which is three hundred
sixty-five (365). The reduction in such Annual
Payment shall not reduce the total amount due from
City to Retailer under this Note, it being understood
that such reduced amount shall be deferred and paid
as provided in Section 6.5, below.
(D) Notwithstanding the aforemen-
tioned, in the event that Retail Sales in the
Existing Facility for any fiscal year of twelve (12)
consecutive calendar months is less than Sixty
Million Dollars ($60,000,000) and at any time
thereafter the Existing Facility is Permanently
Closed, or temporarily closed for any reason, this
Note shall not be deemed forgiven, deferred, or
prorated (as applicable) as provided in this section
6.3, above, and the city shall continue to be obl~-
gated to repay this Note as originally provided
above. In computing the amount of Retail Sales there
shall be added to the amount of actual Retail Sales,
an amount equal to the average daily amount of actual
Retail Sales for each day the Existing Facility is
opened during such twelve (12) consecutive month
period multiplied by the number of days during such
twelve (12) month period the Existing Facility is
closed for business (excluding holidays and other
days that a majority of Retailers in California are
not open for business).
(E) In the event that Retail Sales are
less than Sixty Million Dollars ($60,000,000) for any
twelve (12) consecutive calendar month period, as
provided above, the Retailer shall give the City
written notice of the actual amount of Retail Sales
within ninety (90) days after the end of such twelve
(12) month period. The City shall have the right to
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audit the books and records of the Existing Facility
at any time within six (6) months after the City
receives such notice to verify the amount of Retail
Sales.
6.4 (Al The New Facility (after it opens
for business), or the Existing Facility, as the case
may be, shall be deemed "Permanently Closed" for
purposes of this Note if the Price Club Facility is
closed for business or ceases to operate in substan-
tially the same manner as a majority of other Price
Clubs in California for a period (the "Closure
Calculation Period") of ninety (90) consecutive days
(including holidays or other days when a majority of
Price Clubs in California are closed) unless such
closure or change in the manner of operation is of a
temporary nature due to repairs, alterations,
construction or similar reason, or is temporary in
nature due to Force Majeure, provided such closure
due to Force Majeure does not exceed twenty-four (24)
consecutive months. A change in the Price Club name
in and of itself shall not be deemed to be a change
in the manner of operation for purposes of this Note.
(B) The "Note Termination Date" as
used in this Note shall mean the first day of the
Closure Calculation Period that the New Facility or
Existing Facility, as the case may be, is Permanently
Closed.
6.5 In the event that, pursuant to the
provisions of section 6.1, 6.2 or 6.3, above, payment
of any portion of an Annual Payment is deferred, the
Original Maturity Date shall be extended by the
LJgregate .....:.:nber ")f days during which the applicable
Price Club Facilities were closed (and/or failed to
open) so as to create such deferrals (the "Extended
Maturity Date") and the aggregated amount of such
deferrals shall be due and payable by the city on
such Extended Maturity Date.
7. All amounts payable under this Note are payable
in lawful money of the united States.
8. Each controversy, dispute or claim between the
City and Retailer arising out of or relating to this Note shall
be subject to the provisions of sections 7.1, 7.4 and 7.5 of
the Agreement. In the case of a conflict in payment terms
between this Note and the Agreement, the terms of this Note
shall control.
9. This Note is governed by the laws of the State
of California.
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10.
in accordance
Agreement.
Notices or other communications shall be given
with the provisions of Section 7.2 of the
11. This Note inures to and binds the heirs, legal
representatives, successors and assigns of City and Retailer.
12. City waives presentment, protest and demand,
notice of protest, notice of dishonor and notice of nonpayment
of this Note.
13. In the event the City fails to pay any Annual
Payment or other amount due under this Note when due and within
forty-five (45) days after written demand for same is made by
the Retailer, then notwithstanding the provisions of Section 2
above, such Annual Payment shall accrue interest at the rate
which is greater of ten percent (10%) or the Prime Interest
Rate plus four percent (4%) per annum from the date payment of
such Annual Payment was due to Retailer until the date such
Annual Payment is received by Retailer. For purposes of this
Section 13, the "Prime Interest Rate" shall mean the Wells
Fargo Bank Prime Interest Rate. It is further provided that
notwithstanding the provisions of this Section 13, in no event
shall the interest rate established by this Section 13 be
greater than the highest interest rate permitted by law.
"CITY"
CITY OF CHULA VISTA, a municipal
corporation having charter powers
By
,
Approved as to form:
Bruce M. Boogaard
,City Attorney
Marcia Scully
Special Counsel to City
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ITEM NUMBER:
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RESOLUTION NUMBER:
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ORDINANCE NUMBER:
OTHER:
ITEM NUMBER REFERENCED ABOVE WAS CONTINUED FROM
DATE:
(AGENDA PACKET SCANNED AT ABOVE DATE)
ITEM NUMBER REFERENCED ABOVE HAS BEEN CONTINUED TO
DATE:
MISCELLANEOUS INFORMATION:
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8 RANCHO DEL REY COMMERCIAL CENTER
9 PUBLIC FACILITIES FINANCING
AND IMPLEMENTATION AGREEMENT
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PRICE CLUB
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PASSED AND ADOPTED BY CITY COUNCIL
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3 RECITALS
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5 D.
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6 F.
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7 H.
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8 J.
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TABLE OF CONTENTS
.. .. .. .. .. .. .. .. .. .. .. .. .. .. .. ..
Purpose of the Agreement . . .
The property: Owner's Interest
Subdivision Map . . . . . . . .
Previous Land Use Entitlements
Request for Modification of Land Use Regulations
Environmental Review
Existing Price Club . . . .
City Review . . . . . . . .
Public Benefit .....
Agreement Subject to Conditions to Effectiveness
9 AGREEMENT. . . .
ARTICLE 1.
10 DEFINITIONS
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20
Paqe
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2
3
4
5
5
6
6
7
7
8
"CEQA" 8
"City" 8
"City Council" 8
"Day" or "Days" 8
"Design Guidelines" 8
"Commencement Date" 8
"Development" . . 8
"Effective Date" 9
"Exhibit" . . . . 9
"Existing Facility" 9
"Force Majeure" ...... . . . . . . . . . . .. 9
"New Facility" 9
"Owner" . .. ... 10
"Parties" .. ... 10
Intentionally Blank. 10
"Project" . . . . . . 10
"Property" .... 10
"Purchase Agreement" 10
"Retailer" ..... 11
21
ARTICLE 2.
EXHIBITS TO THIS AGREEMENT . . . . . . . . . . . . . . .
22
23
ARTICLE 3.
CONDITIONS TO EFFECTIVENESS
.. .. .. .. .. .. .. .. .. .. .. .. .. ..
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ARTICLE 4.
DESCRIPTION OF PROPERTY
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ARTICLE 5.
OBLIGATIONS OF THE PARTIES. .......
5.1
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6
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5.2
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Obligations of Retailer . .. .
A. Construction and Operation of a New Price
Club on the Property
Loan by Retailer to City . . .
Repayment of Loan . . . . . . .
Termination of Loan Repayment Obligations -
Failure to Open Price Club ......
Termination of Loan Repayment Obligation -
Closing of New Facility . . . . . .
Termination of Loan Repayment Obligation
- Closing of Existing Facility . . . . .
Reimbursement for Costs of Specified Street
Improvements ...
Definitions and Terms . . . . . .
DIF Fees . . . . .
Employment Outreach and Training
Upgrade of Existing Facility
B.
C.
D.
E.
F.
G.
H.
I.
J.
K.
Obligations of City
A. Acquisition of
Improvements
Certain Street and Public
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5.3 Obligations of Owner
A. Construction of the Public Improvements
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5.4 General Obligations . . . . . . . . . .
A. Anti-Discrimination During Construction
B. Compliance with Applicable Laws
C. Insurance....
D. Street Vacations . . . . . . .
ARTICLE 7.
GENERAL PROVISIONS ...
7.1 Attorneys' Fees
7.2 Notices ...
7.3 Joint and Several Liability
7.4 Reference . . . . .
7.5 Arbitration of Disputes
7.6 Applicable Law
7.7 Amendment
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ARTICLE 6.
DEFAULT
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6.1
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6.2
6.3
6.4
6.5
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24
25
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Option to Set Matter for Hearing or Institute
Reference Proceedings
Waiver . . . . . . . .
Remedies Upon Default
No Cross Defaults
city's Right to Repayment of the Purchase
Price for the Specified Street Improvements
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1 7.8
7.9
2 7.10
7.11
3 7.12
7.13
4 7.14
7.15
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Relationship of Parties
Third Party Litigation .
No Third Party Beneficiary
Time of Essence . _ . .
No Representations or Warranties
Integration
Severability
Captions . .
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3 EXHIBIT - 1
4 EXHIBIT - 2
5 EXHIBIT - .3
6 EXHIBIT - 4
7 EXHIBIT - 5
8 EXHIBIT - 6
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EXHIBIT - 7
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EXHIBIT - 8
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EXHIBIT - 9
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13 EXHIBIT - 10
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LIST OF EXHIBITS
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THE EXISTING PROPERTY MAP
THE DESCRIPTION OF THE PROPERTY
CITY PROMISSORY NOTE
PROPOSED PROPERTY MAP
CITY'S ESTOPPEL CERTIFICATE
LIST OF REQUIRED IMPROVEMENTS TO THE EXISTING
FACILITY
LIST OF SPECIFIED PUBLIC IMPROVEMENTS
LIST OF SPECIFIED STREET IMPROVEMENTS
DISBURSEMENT SCHEDULE FOR THE PURCHASE PRICE FOR
THE SPECIFIED PUBLIC IMPROVEMENTS
DISBURSEMENT SCHEDULE FOR PAYMENT OF THE PURCHASE
PRICE FOR THE SPECIFIED STREET IMPROVEMENTS ~,
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RANCHO DEL REY COMMERCIAL CENTER
PUBLIC FACILITIES FINANCING
AND IMPLEMENTATION AGREEMENT
PRICE CLUB
2
3
4
This Public Facilities Financing and Implementation
5
Agreement (the "Agreement") is made and entered into as of this
6
day of
, 199__, by and among the CITY OF CHULA VISTA, a
7
municipal corporation having charter powers ("city"), RANCHO DEL REY
8
PARTNERSHIP, a California general partnership (the "Partnership"),
9
RDR BUSINESS CENTER, LTD., a California limited partnership (the
10
"Business Center"), and THE PRICE COMPANY, a California corporation
11
("Retailer"), with reference to the recitals set forth below. For
12
purposes of this Agreement the Partnership and the Business Center
13
are jointly referred to herein as "Owner".
14
15
RECITALS
16
17
A. Purpose of the Aoreement. City, as a charter city,
18
is authorized pursuant to its self-rule powers to enter into
19
agreements pertaining to the furtherance of public purposes which
20
are municipal affairs.
City, Owner and Retailer desire to enter
21
into this Agreement to provide for the construction of specified
22
public improvements within City, to encourage private investment,
23
economic development including diversity of City's tax base, and
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job formation within the city.
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The Partnership
B.
The Propertv:
Owner's Interest.
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and the Business Center each hold fee title to portions of
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1 approximately 15.5 gross acres of real property (the "Property") .....,
2 within the City generally located approximately 1.5 miles east of
3 Interstate 805, 1 mile west of Otay Lakes Road, and bounded on the
4 north by Rice Canyon and on the south by East H street. The
5 Property is a part of a larger property generally known, for pur-
6 poses of this Agreement, as the Rancho del Rey Commercial Center.
7 The Property is generally shown on the "Existing Property Map"
8 attached hereto and incorporated herein by this reference as Exhibit
9 No. 1 and described for identification purposes only in the
10 "Description of the Property" attached hereto and incorporated
11 herein by this reference as Exhibit No.2.
The Property is the
12 subject of this Agreement. All of the Property is currently owned
13 by either the Partnership or The Business Center.
The current
14
ownership of the existing parcels which comprise the Property is
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15 illustrated on the Existing Property Map (Exhibit No.1). The
16 Partnership and The Business Center agree for purposes of this
17 Agreement to be jointly and severally bound by this Agreement and
18 to individually and jointly perform all obligations of the Owner
19 pursuant to this Agreement. The Property is a part of the Rancho
20 del Rey Planned Community. Owner and Retailer intend to enter into
21 a purchase agreement (the "Purchase Agreement") pursuant to which
22 the Property will be conveyed from Owner to Retailer.
23
24
C.
Subdivision Map.
Owner has submitted a proposed
25 Tentative SUbdivision Map (Tentative Tract Map No. 93-01) to City.
26 If Tentative Tract Map No. 93-01 is approved by City, the Property
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27 will be reparcelized into a single lot as shown on the "Proposed
28
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. 1 Property Map" attached hereto and incorporated herein as Exhibit
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2 No.4.
3
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D.
Previous Land Use Entitlements. The Property is part
5 of" the 2,450-acre EI Rancho del Rey Specific Plan (the "Specific
6 Plan") which was adopted by the City on August 8, 1978 and amended
7 by General Plan Amendment (GPA-83-7) on November 12, 1985. The
8 Specific Plan serves as the city's General Development Plan for the
9 area.
10
11
The original Specific Plan contained ten (10) sectional
12
planning areas (SPAs).
The Property is located within a part of
13
SPA I, generally referred to as the Rancho del Rey Employment Park.
14
Development of the Property is governed by:
15
16
1.
The Specific Plan;
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2.
The Rancho Del Rey SPA I sectional Planning Area
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(SPA) Plan adopted by the city on December 15, 1987 and amended
20
on August 7, 1990, November 19, 1991, and April 21, 1992.
21
22
3.
The Development Agreement entered into on
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January 5", 1988 by and between Rancho Del Rey Partnership and
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the City (the "SPA I Development Agreement") and recorded in
25
the Office of the County Recorder of San Diego County on May 1,
26
1989 as Document 89-227812.
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The Rancho Del Rey SPAs I, II and III Public ~
Facilities Financing Plan adopted on December 15, 1987 and
4.
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amended in July 1989 and January 15, 1991.
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5.
The Rancho Del Rey SPA I Planned Community
6
District Regulations.
7
8
6.
The Rancho Del Rey Employment Park Design
9
Guidelines.
E.
Request for Modification of Land Use Requlations.
12 Subsequent to the approval of the Existing SPA I Development
13 Agreement, Owner has submitted to city for City's consideration a
I
14 request for the following approvals which, if approved, would modify ~
15 the land use regulations applicable to the Property:
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1.
General Plan Amendment 93-01;
2.
Business Center Amendment to the Specific Plan;
3.
Business Center Amendment to the Rancho del Rey SPA I
Sectional Planning Area (SPA) Plan;
4.
Commercial Center Amendment to the Rancho del Rey
SPAs I, II and III Public Facilities Financing Plan (which
amendment pertains only to SPA I, Phase I);
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5.
Business Center Amendment to the Rancho del Rey SPA I
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community District Regulations;
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6.
Adoption of the new Rancho del Rey Business Center
5
Design Guidelines;
6
7
7.
Tentative Subdivision Maps No. 92-05 and 93-01;
8
9
8.
The Rancho del Rey SPA I Commercial Center Air
10
Quality Improvement Plan; and
11
12
9. The Rancho del Rey SPA I Commercial Center Water
13
Conservation Plan.
14
15
F.
Environmental Review. A Final Environmental Impact
16 Report ("EIR") was prepared for the Sectional Planning Area (SPA)
17 I Plan (EIR-87-1). It was certified by the City of Chula vista city
18 Council on December 15, 1987 by Resolution No. 13388. An Addendum
19 EIR to the original EIR-87-1 was prepared for the Revised Rancho del
20 Rey SPA I Plan and was certified on December 15, 1987. A Supplemen-
21 tal Environmental Impact Report (the "Supplemental EIR") has been
22 prepared for the Rancho del Rey Commercial Center (EIR-92-02). The
23 Supplemental EIR analyzes the effects of the amendment of the
24 various land use entitlements to redesignate the property from
25
employment park to mixed-use commercial.
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G.
Existinq Price Club.
Retailer currently owns and
28 operates as a Price Club membership warehouse club an existing
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1 approximately 112,000 square foot facility (the "Existing Facility") ~
2 located at 1144 Broadway, Chula vista and generally referred to as
3 the Broadway Store. It is Retailer's intent to continue to operate
4 the Existing Facility for a minimum of eight (8) years after the
5 Effective Date of this Agreement; provided, however, that Retailer
6 does not covenant, under this Agreement, to operate the Existing
7 Facility for any period of time.
8
9
H.
citv Review. The City has extensively reviewed the
10 terms and conditions of this Agreement and, in particular, has
11 specifically considered and approved the impact and benefits of this
12 Agreement upon the general welfare of the city. The terms and
13 conditions of this Agreement have been found by the City to be fair,
14 just, and reasonable, and to provide appropriate benefits to the......,
15 City. This Agreement will serve the best interests of the citizens
16 of the City, and the public health, safety, and welfare.
This
17 Agreement will ensure a desirable and functional community environ-
18 ment; provide effective and efficient development of public facili-
19 ties, infrastructure and services appropriate for the development
20 of the Property; help maximize effective utilization of resources
21 within the CitYi increase City tax revenues by the development of
22 the Property; promote the creation of jobs for City residents and
23 provide other public benefits to the City and its residents.
24
25
1.
Public Benefit.
The Parties acknowledge and agree
26 that the development of the Property will result in public benefit
.....
27 and further acknowledge and agree that this Agreement confers bene-
28 fits on the Owner and the Retailer.
The Parties intend by this
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... 1 Agreement to provide the consideration expressly set forth herein
2 to the public which the Parties agree shall balance the private
3 benefits conferred on the Owner and the Retailer and satisfy certain
4 direct and indirect public needs resulting from or relating to the
5 development of the Property, and provide public assurance that this
6 Agreement is fair, just, and reasonable.
7
8
J.
Aqreement Subiect to Conditions to Effectiveness.
9 The effectiveness of this Agreement is subject to the completion of
10 certain conditions precedent (the "Conditions to Effectiveness") set
11 forth in Article 3 below including but not limited to approval of
.
.
12 the proposed modifications to the land use entitlements listed in
13 Paragraph D herein above.
14
15 In the event that all of the Conditions to Effectiveness
16 are complied with, it is the intention of the parties to allocate
17 the costs of the construction and financing of certain public facil-
18 ities necessary to accommodate the proposed uses, and to provide for
19 pri vate investment, economic development, additional employment
20 opportunities for City residents, an increased tax base for City and
21 other public benefits all as provided in this Agreement.
22
23
AGREEMENT
24
.
.
25
NOW, THEREFORE, in consideration of the Recitals set forth
above and for other good and valuable consideration provided for
26
27
herein,
the
receipt
and
sufficiency
of which
are hereby
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agree as follows:
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acknowledged, the parties, respectively
20
23
24
1
1
....
2
ARTICLE 1.
3
DEFINITIONS
4
5
The following definitions apply only to their use within
6 this Agreement.
The definitions are intended to have substantive
7 effect:
8
9
1.1 "CEQA" means the California Environmental Quality
10 Act, California Public Resources Code sections 21000 et sea.
11
12
1.2 "City" means the City of Chula Vista, California.
13
14
1. 3 "City Council" means the City Council of the City Of~'
15 Chula vista.
16
17
1.4 "Day" or "Days" means a calendar day unless expressly
18 stated to be a business day.
19
1.5 "Design Guidelines" means the Rancho del Rey Business
21 Center Design Guidelines
adopted
by the ci ty
Council on
22
by Ordinance No.
25 occurs after the New Facility opens for business.
1.6 "Commencement Date" means the July 1 which first
26
27
28
1.7 "Development" means the improvement of the Property
~
for purposes of effecting the
structures, improvements
./'
J)C-J->
and facil-
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4It 1 ities comprising the Project including, without limitation:
2 grading, the construction of infrastructure and public facilities
4It
.
15
16
17
18
19
20
21
22
23
24
. 25
. 26
27
28
3 related to the Project whether located within or outside the
4 Property; the construction of structures and buildings; and the
5 installation of landscaping.
6
7
1.8 "Effective Date" means the date on which all of the
8 Conditions to Effectiveness set forth in Article 3 hereinbelow have
9 been fulfilled. city shall execute an Estoppel certificate substan-
10 tially in the form of the "City I s Estoppel certificate" attached
11 hereto and incorporated herein by this reference as Exhibit No. 5
12 as evidence of city's determination that all Conditions to
13 Effectiveness have been fulfilled.
14
1.9 "Exhibit" means an exhibit to this Agreement as
listed in Article 2 below.
All Exhibits are incorporated as a
substantive part of this Agreement.
1.10 "Existing Facility" means the existing Price Club
membership warehouse located at 1144 Broadway within the City.
1.11 "Force Majeure" is defined in section 5.1(H) (3)
below.
1.12 "New Facility" means the Price Club membership ware-
house to be constructed by Retailer on the Property in accordance
with the provisions of this Agreement.
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1.13 "Owner"
collectively
means
RANCHO
DEL
2 PARTNERSHIP, a California general partnership, the general partners
3 of which are McMillin Communities, Inc., a California corporation
4 formerly known as McMillin Financial, Inc., and Home Capital
5 Corporation, a California corporation and RDR BUSINESS CENTER, LTD.,
6 a California limited partnership, the general partners of which are
7 McMillin Commercial Industrial Development, Inc., a California
8 corporation, McMillin Communities, Inc., a California Corporation
9 and McMillin Development, Inc., a California corporation.
10
11
1.14 "Parties" means the City, Owner and Retailer and each
12 permitted successor or assign of City, Owner or Retailer. A "Party"
13
shall refer to any of the Parties.
14
.J....,
15
1.15 Intentionally Blank.
16
17
1.16 "Project" means the Development of the Property
18 pursuant to this Agreement including the construction of all private
19 improvements within the Property and all necessary public improve-
20 ments whether located on or off the Property.
21
22
1.17 "Property" means the real property described in
23 Exhibits No. 1 and 2.
24
25
1.18 "Purchase Agreement" shall mean an agreement of
purchase and sale with respect to the Property between the Owner and
27 the Retailer.
26
.1......
28
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.
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.
1
1.19 "Retailer" means the Price Company, a California
2 corporation and its successors and assigns.
10
11
12
14
3
4
5
6
ARTICLE 2.
EXHIBITS TO THIS AGREEMENT
The Exhibits to this Agreement are:
7
8
9
Exhibit 1:
Exhibit 2:
Exhibit 3:
Exhibit 4 :
Exhibit 5:
Exhibit 6:
Exhibit 7:
Exhibit 8:
Exhibit 9:
Exhibit 10:
13
15
16
17
18
19
20
21
22
The Existing Property Map.
The Description of the Property.
City Promissory Note
proposed Property Map.
City's Estoppel certificate
List of Required Improvements
List of Specified Public Improvements
List of Specified street Improvements
Disbursement Schedule for the Purchase
Price for the Specified Public Improvements
Disbursement Schedule for Payment of the
Purchase Price for the Specified Street
Improvements
ARTICLE 3.
23
CONDITIONS TO EFFECTIVENESS
24
The following are conditions precedent to the obligations
25
of the Parties hereunder:
26
27
28
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1
3.1 Approval by City of the General Plan Amendment (GPA-~
2 93-01).
3
4
3.2 Approval by City of the Rancho del Rey Business
5 Center Amendment to the Specific Plan.
6
7
3.3 Approval by City of the Business Center Amendment to
8 the Rancho del Rey SPA I Plan Amendment.
9
10
3.4 Approval by city of the Commercial Center Amendment
11 to the Rancho Del Rey SPAs I, II & III Public Facilities Financing
12 Plan which Amendment pertains only to SPA I, Phase I.
13
14
3.5 Approval by City Council Ordinance of the Business ~
15 Center Amendment to the Rancho Del Rey SPA I Planned Community
16 District Regulations.
17
18
3.6 Adoption by City of the proposed Rancho del Rey
19 Business Center Design Guidelines.
20
21
3.7 Approval by City of Tentative Tract Maps No. 92-05
22 and 93-01.
23
24 3.8 Approval by City of the Rancho del Rey SPA I
25 Commercial Center Water Conservation Plan.
26
27 3.9 Approval by City of the Rancho del ~
Rey SPA I
28 Commercial Center Air Quality Improvement Plan.
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.
.
.
9
10
11
12
. 13
. 14
15
16
17
18
19
20
21
22
23
24
.
.
1
3.10 Approval of the vacation of
acres of public
2 rights of way within the Property.
3
4
3.11 Validation.
initiation by the City of
The
5 appropriate procedures under Code of civil Procedure section 860,
6 et.~, in order to validate this Agreement and the obligations
7 hereunder and the issuance and execution of a final non-appealable
8 court order of validation.
3.12 Environmental Review. All environmental review and
documentation required by CEQA for completion of the project and
approval of this Agreement including but not limited to certifica-
tion of the Supplemental EIR (EIR No. 92-02) and adoption of any
required findings is complete.
3.13 Evidence of Financinq.
Owner and Retailer shall
submit to City evidence reasonably acceptable to City that each has
adequate funds, authorized to be expended on the project or has
obtained a commitment or commitments for construction financing
necessary for the construction of those public and/or private
improvements said party is required by this Agreement to build on
or to service the Property.
3.14 Payment of city Costs. Owner shall have reimbursed
25 City for the cost of consultant fees expended or incurred by City
26 in the preparation and review of this Agreement.
27
28
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1 3.15 Conveyance of property. Owner shall have conveyed~
2 fee title to the Property to Retailer and Retailer shall have
3 accepted fee title to the Property.
4
5 The parties acknowledge that certain of the Conditions to
6 Effectiveness set forth above involve discretionary approvals on the
7 part of the city. Nothing in this Agreement requires or otherwise
8 binds the City to take any particular actions relative to any of the
9 items set forth above.
In no event shall any exercise of City's
10 discretion to approve or disapprove any of the discretionary items
11 which are a Condition to the Effectiveness of this Agreement be
12 deemed to be a default or an act in bad faith by the City.
13
14
In the event that all of the Conditions to Effectiveness ~
15 are not satisfied within six (6) months after the date of this
16 Agreement or in the event that the City shall deny any of the
17 requested discretionary approvals this Agreement shall be of no
18 force and effect and no Party to this Agreement shall have any
19 rights or remedies relative to any other Party.
20
21
ARTICLE 4.
22
DESCRIPTION OF PROPERTY
23
24
The Property subject to this Agreement consists of
25 approximately 15.5 gross acres of real property generally located
26 approximately 1-1/2 miles east of I-80S, approximately 1 mile west
27
l-.
of Otay Lakes Road.
The Property is bounded on the north by Rice
28
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1 Canyon and on the south by East H street.
The Property is more
2 particularly described in Exhibits No.1 and 2.
3
4
ARTICLE 5.
5
OBLIGATIONS OF THE PARTIES
6
7
5.1 Obliqations of Retailer. Retailer hereby agrees to
8 perform the following:
9
10 A. Construction and Operation of a New Price Club
11 on the Propertv. Retailer hereby currently intends to construct and
12 open for business a minimum 110,000 square foot facility (the IINew
. 13 Facili ty") on the Property. It is intended that the New Facility
.
14 will commence operation as a Price Club membership warehouse on or
.
.
15 before the date which is 18 months after close of the escrow
16 conveying the Property from Owner to Retailer.
It is Retailer's
17 current intent to operate one hundred percent (100%) of the floor
18 area of the New Facility as a Price Club membership warehouse in
19 substantially the same manner as it operates a majority of its other
20 Price Club membership warehouses in the western united states for
21 a minimum of ten (10) years; provided, however, that Retailer does
22 not covenant, under this Agreement, to operate the New Facility for
23 any period of time.
24
25
B.
Loan bv Retailer to city.
In order to assist
26
the city pay for the cost of the Specified Public Improvements, the
27
Retailer shall loan the City the sum of ONE MILLION EIGHT HUNDRED
28 NINETY-TWO THOUSAND DOLLARS ($1,892,000) (the "Loan") through escrow
/IC-L-!2
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1 at the time escrow closes under the Purchase Agreement.
In the......
2 event escrow does not close under the Purchase Agreement for any
3 reason whatsoever including, but not limited to the default of
4 either the Owner or the Retailer under the Purchase Agreement, then
5 the Retailer shall be under no obligation to make the Loan to the
6 city and this Agreement shall be deemed terminated.
7
8
C.
Repayment of Loan. The Loan shall be repaid by
9 the City to the Retailer in ten (10) consecutive annual principal
10 installments of ONE HUNDRED EIGHTY-NINE THOUSAND TWO HUNDRED DOLLARS
11 ($189,200), together with interest accrued on the outstanding
12 principal balance at the rate of EIGHT PERCENT (8%) per annum (the
13 "Annual Payment").
The Loan sha 11 be ev idenced by the City's
14 promissory note (the "Note") in the form attached hereto as Exhibit......
15 No.3. The City shall have the right to prepay the Note in whole
16 or in part without penalty all as provided in the Note.
17
18
D.
Termination of Loan Repayment Obliaations
19 Failure to Open Price Club. The city's obligation to repay the Note
20 and any accrued interest thereon is conditioned upon the New
21 Facility being constructed on the Property with a minimum gross
22 floor area of 120,000 square feet and open for business within
23 eighteen (18) months after the Retailer acquires fee title to the
24 Property, which eighteen (18) month period shall be extended for
25 delays due to Force Majeure. In the event the New Facility does not
26 open for business until after the first Anniversary of the date of
27 the Note, the payment of the first Annual Payment by the City under ~
28 the Note shall be deferred until the date of such opening for
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. 1 business; provided, however, that interest on such Note shall
2 continue to accrue during such deferral period.
3
4
E.
Termination of Loan Repavment Obliaation
5 Closina of New Facilitv.
In the event the New Facility opens for
6 business and is thereafter "Permanently Closed" as defined in
7 section 5.1(H) (1) below prior to the tenth (10th) anniversary of the
8 date of the Note then as of the "Note Termination Date" as defined
9 in section 5.1(H) (2), the unpaid principal balance of the Note shall
10 be deemed forgiven by the Retailer; provided, however, the City will
11 remain liable for payments of principal and accrued interest pro-
12 rated to the Note Termination Date.
Thus the portion of the
.
.
13 principal amount of the Note deemed forgiven shall be a fraction the
14 numerator" of which is the number of days from the Note Termination
15 Date to and including the tenth (10th) anniversary of the date of
16 the Note and the denominator of which is the number of days from the
17 date of the Note to and including the tenth (10th) anniversary of
18 the date of the Note.
19
20 In the event the New Facility is temporarily closed due
21 to Force Majeure, the city's obligation to make installment payments
22 under the Note shall be suspended until such time as the New
23 Facility re-opens, provided that interest on such Note shall
24 continue to accrue during such deferral.
In the event the New
.
.
25 Facility is closed due to Force Majeure for thirty (30) or more days
26 during the twelve (12) month period immediately preceding the due
27 date of an Annual Payment the Note shall provide for the proration
28 of the first Annual Payment due after the New Facility reopens to
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14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1
1 reduce said payment in accordance with the number of days during the ~
2 year the New Facility was closed. The reduction in the first Annual
3 Payment after a Temporary Closure shall not reduce the total amount
4 due from City to Retailer under the Note.
5
6
Termination of Loan Repavment Obliqation
F.
7 Closinq of Existinq Facilitv.
8
9
1.
In the event the Existing Facility is
10
"Permanently Closed," as defined in Section 5.1(H) (1) below,
11
during the eight (8) year period beginning on the Effective
12
Date of this Agreement, then as of the Note Termination Date
13
as defined in Section 5.1(H) (2) below the unpaid principal
balance of the Note shall be deemed forgiven by the Retailer; ~
provided, however, the City will remain liable for payments of
principal and accrued interest pro-rated to the Note
Termination Date. Thus, the portion of the principal amount
of the Note deemed forgiven shall be a fraction the numerator
of which is the number of days from the Note Termination Date
to and including the eighth (8th) anniversary of the Effective
Date of this Agreement and the denominator of which is the
number of days from the Effective Date of this Agreement to and
including the eighth (8th) 'anniversary of the Effective Date
of this Agreement. Notwithstanding the aforementioned, in the
event that "Retail Sales" as defined in Paragraph 3 below in
the Existing Facility for any fiscal year of twelve (12)
consecutive calendar months is less than SIXTY MILLION DOLLARS
'-"
($60,000,000) and at any time thereafter the Existing Facility
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. 2
3
4
5
6
7
8
9
10
11
12
13
14
. 15
16
17
18
19
20
21
22
23
24
25
26
. 27
28
is permanently Closed, the Note shall n2t be deemed forgiven
and the City shall continue to repay the full amount of the
Note. In computing the amount of Retail Sales there shall be
added to the amount of actual Retail Sales, an amount equal to
the average daily amount of actual Retail Sales for each day
the Price Club is opened during such twelve (12) consecutive
month period multiplied by the number of days during such
twelve (12) month period the Existing Facility is closed for
business (excluding holidays and other days that a majority of
Price Clubs in California are not open for business).
2. In the event that Retail Sales is less than
SIXTY MILLION DOLLARS ($60,000,000) for any twelve (12) con-
secutive month period as provided in Paragraph 1 above, the
Retailer shall give the City written notice of the actual
amount of Retail Sales (as adjusted for any period in which the
Existing Facility is closed as provided in paragraph 1 above)
(the "Retail Sales Notice") within ninety (90) days after the
end of such twelve (12) month period. The city shall have the
right to audit the books and records of the Existing Facility
at any time within six (6) months after the City receives the
Retail Sales Notice to verify the amount of Retail Sales.
3 . The term Retail Sales as used in
Paragraph 1 above shall mean sales for which California Sales
Tax are paid pursuant to the California Revenue and Tax Code.
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G.
Reimbursement for Costs of Soecified street
2 Imorovements. Retailer shall reimburse the City the sum of EIGHT
3 HUNDRED THIRTY-FIVE THOUSAND DOLLARS ($835,0(\0) for Specified Street
4 Improvements only in the event that the Retailer acquired fee title
5 to the Property and the Existing Facility is Permanently Closed as
6 defined in section 5.1 (H) (1) within eight (8) years after the
7 Effective Date of this Agreement unless the Retail Sales in the
8 Existing Facility for any fiscal year of twelve (12) consecutive
9 calendar months is less than SIXTY MILLION DOLLARS ($60,000,000)
10 prior to the date the Existing Facility is Permanently Closed. The
11 amount of Retail Sales shall be computed pursuant to the provisions
12 of section 5.1(F) (1).
13
14
H.
Definitions and Terms.
15
16
1.
The New Facility (~fter it first opens for
17 business) or the Existing Facility, as the case may be, shall
18 be deemed "Permanently Closed" for purposes of this section 5.1
19 if the Price Club on such facility is closed for business or
20 ceases to operate in substantially the same manner as a major-
21 ity of other Price Clubs in the State of California for a
22 period (the "Closure Calculation Period) of ninety consecutive
23 (90) days (excluding holidays or other days when a majority of
24 Price Clubs in California are closed) unless such closure or
25 change in manner of operation is of a temporary nature due to
26 repairs, alterations, construction or similar reason or is
27 temporary in nature due to Force Majeure. Notwithstanding the
28 provisions of Paragraph 5.1(H)(3) below, for purposes of this
S)A013414K. NAIe
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.
.
.
1 Agreement and Section 5.1 (E) in particular, a Price Club
2
Facility shall be deemed to be Permanently Closed and the
3
City's obligation to repay the Note shall be terminated if such
Facility is closed due to Force Majeure for 720 consecutive
days. A change in the Price Club name in and of itself shall
4
5
6 not be deemed to be a change in the manner of operation for
7 purposes of this paragraph 1.
8
9
2.
The "Note Termination Date" shall mean the
10
first day of the Closure Calculation Period that the New
Facility or Existing Facility as the case may be is Permanently
11
12
Closed.
13
14
3. Except as expressly provided otherwise in
this Agreement, the time periods provided for in this
section 5.1 shall be deemed extended where delays are due to
15
16
17
war, insurrection, strikes, lockouts, riots, floods, earth-
18
quakes, fires, casualties, acts of God, acts of the public
enemy, epidemics, quarantine restrictions, freight embargoes,
litigation, unusually severe weather, inability to secure
19
20
21 necessary labor, materials or tools, delays of any contractor,
22 subcontractors or supplier, acts of the other party, acts or
23 the failure to act of the City of any other public or govern-
24 mental agency or entity or any other causes beyond the control
25 or without the fault of the Retailer (referred to herein as
26
"Force Majeure"). An extension of time for any such cause
27
28
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1 shall be for the period of the enforced delay and shall com-
2 mence to run from the time of the commencement of the cause.
3
4
1.
DIF Fees.
As a condition to obtaining a
5 building permit for the New Facility, the Retailer must pay the city
6 the transportation development impact fee (the "DIF") in the amount
7 of ONE HUNDRED NINETY-TWO THOUSAND DOLLARS ($192,000).
8
9
J.
Emplovment Outreach and Trainina. For a period
10 of ten (10) years after the date of the Note, Retailer in the opera-
11 tion of the New Facility shall provide a proactive approach to
12 recruiting, training and/or hiring employees from the local com-
13 munity.
In this regard, Retailer shall work with local education
14 and training providers with a goal of providing employment
15 opportunities to Chula vista residents.
within 15 business days
16 after the approval of this Agreement by City, Retailer and City
17 shall enter into a letter agreement further defining Retailer's
18 obligations pursuant to this paragraph. The parties hereby agree
19 and acknowledge that in the event of a default by Retailer of the
20 obligations of this Paragraph 5.1(J), City's sole remedy shall be
21 specific performance to enforce the provisions of this Paragraph J.
22
23
K.
Uparade of Existina Facilitv. Retailer intends
24 to upgrade the Existing Facility in the manner and within the time
25 set forth in the "List of Required Improvements" attached hereto and
26 incorporated herein by this reference as Exhibit No.6.
27
28
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8
9
10
11
12
. 13
. 14
15
16
17
18
1 5.2 Obliqations of citv. City hereby agrees to perform
2 the following:
3
4
A.
Acquisition of certain street and Public
5 Improvements. Provided City receives the ONE MILLION EIGHT HUNDRED
6 NINETY-TWO THOUSAND DOLLARS ($1,892,000) Loan from Retailer, City
7 shall acquire from Owner: (i) certain public improvements (the
"Specified Public Improvements") located on or servicing the
Property and more particularly described in the "List of specified
Public Improvements" attached hereto and incorporated herein by this
reference as Exhibit No.7, and (ii) certain street improvements
(the "Specified Street Improvements") as set forth in the "List of
specified Street Improvements" attached hereto and incorporated
herein as Exhibit No.8.
The "Purchase Price for the specified Public Improvements"
shall be ONE MILLION EIGHT HUNDRED NINETY-TWO THOUSAND DOLLARS
($1,892,000). The "Purchase Price for the Specified Street Improve-
19 ments" shall be EIGHT HUNDRED THIRTY-FIVE THOUSAND DOLLARS
20 ($835,000).
21
22
Owner and City shall mutually agree upon a method of
23 disbursement of the amounts described above, provided that such
24 disbursements shall be made to Owner or Owner's contractors as the
25 Specified Public Improvements and Specified Street Improvements are
~ 26 constructed and generally in accordance with the Disbursement
. 27 Schedule for the Purchase Price for the Specified Public Improve-
28 ments attached hereto as Exhibit No. 9 and incorporated herein by
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1 this reference and the Disbursement Schedule for payment of the""'"
2 Purchase Price for the Specified Street Improvements attached hereto
3 as Exhibit No. 10 and incorporated herein by this reference.
4
5 In the event that subsequent to the close of escrow under
6 the Purchase Agreement and receipt by City of the loan from Retailer
7 and prior to (i) payment of the full amount of the Purchase Price
8 for the Specified Public Improvements; (ii) payment of the full
9 amount of the Purchase Price for the Specified Street Improvements;
10 and (iii) the completion and commencement of operation of the New
11 Facility, Retailer defaults or otherwise determines to not construct
12 and/or open the New Facility, City shall:
13
14
continue to disburse to Owner or its Contractors ;....,
(a)
15 the Purchase Price for the Specified Public Improvements in
16 accordance with the Applicable Disbursement Schedule; and
17
18
(b) Cease to disburse any funds which have not been
19 previously disbursed as the Purchase Price for the Specified Street
20 Improvements.
21
22 In such event, Owner shall repay city within ninety (90)
23 days of the determination that the New Facility will not be com-
24 pleted or commence operation as required herein, any portion of the
25 Purchase Price for the Specified Street Improvements which has been
26 previously disbursed to Owner or Owner's Contractors.
27
J,..""
28
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1
5.3 Obliqations of Owner. Owner hereby agrees to perform
2 the following:
3
4
A.
Construction
Public
Improvements.
of
the
5 Provided that City receives the ONE MILLION EIGHT HUNDRED NINETY-
6 TWO THOUSAND DOLLARS ($1,892,000) loan from Retailer, Owner shall
7 construct the Specified Public Improvements, the Specified Street
8 Improvements and any and all other public improvements required by
9 the Purchase Agreement or City as a condition to Development of the
10 Property.
11
12
5.4 General Obliqations.
13
14
A.
Anti-Discrimination Durinq Construction. Owner
15 and Retailer for themselves, and their successors and assigns agree
16 that in the construction of the improvements on the Property and of
the related off-site public improvements provided for in this Agree-
ment, Owner and Retailer will not discriminate against any employee
or applicant for employment because of sex, marital status, race,
color, religion, creed, national origin or ancestry.
B.
Compliance with Applicable Laws.
The Owner,
Retailer and their respective successors and assigns shall carry out
the construction of the improvements on the Property and of the
related off-site public improvements in conformity with all
applicable laws.
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C.
Insurance.
Owner
and
Retailer
and
their
~
2 respective successors and assigns shall name City as additional
3 insured for all insurance policies obtained by Owner or Retailer for
4 this Project as pertains to their respective activities and opera-
5 tion of the Project.
Provided, however, that Retailer as a self-
6 insured entity and any other party which may be self-insured, hereby
7 agrees to hold City harmless and to defend and indemnify City
8 against and for any liability arising from their respective
9 activities on the Property except if such liability arises from the
10 act or omission of the City or any agency of the City.
11
12
D.
street Vacations.
All areas of streets which
13 are to be abandoned/vacated within the Property pursuant to
14 Section 66499.20\ of the SUbdivision Map Act shall revert to the ~
15 entity owning the Property at the time of such vacation at no cost
16 to Owner.
17
18
ARTICLE 6.
19
DEFAULT
20
21
If any Party defaults under this Agreement, the Party
22 alleging such default will give the breaching Party and all other
23 parties not less than thirty (30) days' notice of default in
24 writing.
The notice of default will specify the nature of the
25 alleged default and, where appropriate, the manner and period of
26 time in which said default may be satisfactorily cured. During any
27
period of cure, the Party charged will not be considered in default
I-...
28 for the purposes of institution of legal proceedings.
If the
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... 1 default is cured, then no default will exist and the noticing Party
2 will take no further action.
11
12
. 13
. 14
15
16
17
18
19
20
.
.
3
4
6.1 option to Set Matter for Hearinq or Institute
5 Reference Proceedinqs. After proper notice and the expiration of
6 the cure period, the noticing Party to this Agreement may institute
7 reference proceedings pursuant to section 7.4.
8
9
6.2 Waiver.
Except as otherwise expressly provided in
10 this Agreement, any failure or delay by a Party in asserting any of
its rights or remedies shall not deprive such Party of its right to
institute and maintain any actions or proceedings which it may deem
necessary to protect, assert or enforce any such rights or remedies.
6.3 Remedies Upon Default. Except as expressly provided
otherwise herein, in the event of a default by any Party to this
Agreement, the Parties shall have the remedies of damages or
specific performance, mandamus, injunction and other equitable
remedies.
21
6.4 No Cross Defaults. Except as expressly provided in
22 section 6.5 or elsewhere herein, the default of one party to this
23 Agreement shall not impair the rights or obligations of any other
24 party. Notwithstanding the provisions of this section 6.4, Retailer
25 shall comply with all legal conditions precedent to the issuance of
26 building permits and occupancy permits for the New Facility.
27
28
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6.5 citv's Riqht to Repavment of the Purchase Price for~
2 the Specified Street Improvements. City shall be entitled to mone-
3 tary damages from Owner to reimburse one hundred percent (100%) of
4 the Purchase Price for the Specified Street Improvements if
5 (i) Owner defaults on the Owner's obligations pursuant to this
6 Agreement; (ii) Owner defaults on the Owner's obligations to
7 Retailer pursuant to the Purchase Agreement which default results
8 in the inability of the Retailer to comply with the Retailer obliga-
9 tions as set forth in this Agreement; or (iii) Retailer fails to
10 complete construction and commence operation of the New Facility
11 within eighteen (18) months of the conveyance of the Property to
12 Retailer or any extension of the eighteen (18)' month period
13 authorized by this Agreement due to Force Majeure. Owner I s monetary
.J....
14 liability pursuant to this paragraph shall be limited to repayment
15 of 100% of the Purchase Price for the Specified Street Improvements
16 and the costs of litigation and attorneys' fees. Unless otherwise
17 provided herein, Owner shall make full payment to City of any sums
18 required by this Section 6.5 within ninety (90) days of the date on
19 which the New Facility is obligated to open.
Upon the timely
20 commencement of operation of the New Facility on the Property,
21 City's right pursuant to this paragraph to reimbursement from Owner
22 of the Purchase Price for the Specified Street Improvements shall
23 terminate.
24
25
ARTICLE 7.
26
GENERAL PROVISIONS
~
27
28
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7.1 Attornevs' Fees.
In the event of any conflict or
2 dispute concerning the enforcement or interpretation of any of the
3 terms or provisions of this Agreement, the prevailing party or par-
4 ties shall be entitled to receive from the non-prevailing party or
5 parties any and all reasonable costs and expenses incurred there-
6 with, including, without limitation, reasonable attorneys' fees.
7 Any actions which may be filed in the event of any such conflict or
8 dispute shall be filed in the superior Court of the state of
9 California, County of San Diego or in the United states District
10 Court, southern District of California.
11
12
7.2 Notices.
All notices or other communications
. 13 required or permitted hereunder shall be addressed as follows and
... 14 be in writing and shall be personally delivered, sent by overnight
15 mail (Federal Express, Express Mail or the like) or sent by regis-
.
.
16 tered or certified mail, postage prepaid, return receipt requested.
17
18
If to City:
City of Chula vista
276 Fourth Avenue
Chula Vista, California 91910
Attention: City Manager
19
20
21
with a copy to:
City of Chula vista
276 Fourth Avenue
Chula vista, California 91910
Attention: Bruce Boogaard, Esquire
City Attorney
22
23
24
Sheppard, MUllin, Richter & Hampton
4695 MacArthur Court, 7th Floor
Newport Beach, California 92660
Attention: Marcia Scully, Esquire
with a copy to:
25
26
27
The Price Company
4241 Jutland
If to Retailer:
28
)IC-3?
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San Diego, California 92117
Attention: Mr. Don Howells
..J.o.,
2
3
with a copy to:
Joseph R. Satz
Vice President-Counsel
The Price Company
4649 Morena Boulevard
P. O. Box 85466
San Diego, California 92138
4
5
6
7
If to Owner:
Rancho del Rey Partnership
2727 Hoover Avenue
National City, California 92050
Attention: Mr. Ken Baumgartner
8
9
with a copy to:
Home Capital Corporation
707 Broadway, suite 1017
San Diego, California 92101
Attention: President
10
11
12
13
Such written notices may be sent in the same manner to
such other persons and addresses as either Party may from time to...l.....,
14
15
time designate by mail.
16
17
7.3 Joint and Several Liabilitv.
If any Party consists
18 of more than one legal person, their obligations are joint and
19 several.
20
21
7.4 Reference.
Each controversy, dispute or claim
22 between the Parties arising out of or relating to this Agreement,
23 which controversy, dispute or claim is not settled in writing within
24 thirty (30) days after the "Claim Date" (as hereinafter defined),
25 will be settled by a reference proceeding in San Diego County,
26 California in accordance with the provisions of section 638 et sea.
27
J....,
of
California
the
Code
ci viI
of
Procedure,
their
or
successor
28 sections ("CCP"), which shall constitute the exclusive remedy for
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~ 1 the settlement of any controversy, dispute or claim concerning this
2 Agreement, including whether such controversy, dispute or claim is
3 subject to the reference proceeding and the Parties waive their
4 rights to initiate any legal proceedings against each other in any
5 court or jurisdiction other than the Superior Court of San Diego
6 county (the "court"). The referee ("Referee") shall be a retired
7 Judge of the Court selected by mutual agreement of the parties, and
8 if they cannot so agree within forty-five (45) days after the Claim
9 Date, the Referee shall be promptly selected by the presiding Judge
10 of the San Diego County Superior Court (or his representative). The
11 date on which the Referee is selected is herein called the
12 "Selection Date."
The Referee shall be appointed to sit as a
. 13 temporary judge, with all of the powers of a temporary judge, as
... 14 authorized by law, and upon selection should take and subscribe to
15 the oath of office as provided for in Rule 244 of the California
16 Rules of Court (or any subsequently enacted Rule).
The Referee
17 shall set the matter for hearing within sixty (60) days after the
18 Selection Date, and try any and all issues of law or fact and report
19 a statement of decision upon them, if possible, within ninety (90)
20 days of the Selection Date. Any decision rendered by the reference
21 will be final, binding and conclusive and judgment shall be entered
22 pursuant to CCP 644 in any court in the State of California having
. 23 jurisdiction. Any Party may apply for a reference at any time after
24 thirty (30) days following the date (the "Claim Date") one Party
25
notifies the other Parties of a controversy, dispute or claim; by
.
.
26
filing a petition for a hearing andjortrial.
All discovery
27
permitted by this Agreement (as more particularly provided below),
28 shall be completed no later than fifteen (15) days before the first
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1 hearing date established by the Referee.
The Referee may extend"'"
2 such period in the event of a Party's refusal to provide requested
3 discovery for any reason 'whatsoever, including, without limitation,
4 legal objections raised to such discovery or unavailability of a
5 witness due to absence or illness. No Party shall be entitled to
6 "priority" in conducting discovery. Depositions of a Party or its
7 affiliates may be taken by the other Party upon seven (7) days
8 written notice, and, requests for production or inspection of docu-
9 ments on a Party or its affiliates shall be responded to within ten
10 (10) days after service. All disputes relating to discovery which
11 cannot be resolved by the Parties shall be submitted to the Referee
12 whose decision shall be final and binding upon the Parties.
13
14
..I.
Except as expressly set forth in this Agreement, the ..,
15 Referee shall determine the manner in which the reference pro-
16 ceeding is conducted including the time and place of all hearings,
17 the order or presentation of evidence, and all other questions that
18 arise with respect to the course of the reference proceeding. All
19 proceedings and hearings conducted before the Referee, except for
20 trial, shall be conducted without a court reporter, except that when
21 any Party so requests, a court reporter will be used at any hearing
22 conducted before the Referee. The Party making such a request shall
23
have the obligation to arrange for and pay for the court reporter.
24
The costs of the court reporter at the trial shall be borne equally
25
by the Parties.
26
27
The Referee shall be required to determine all issues in
.J....
28
accordance with existing case law and the statutory laws of the
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1 state of California.
The rules of evidence applicable to
2 proceedings at law in the State of California will be applicable to
3 the reference proceeding. The Referee shall be empowered to enter
4 equitable as well as legal relief, to provide all temporary and/or
5 provisional remedies and to enter equitable orders that will be
6 binding upon the parties. The Referee shall issue a single judgment
7 at the close of the reference proceeding which shall dispose of all
8 of the claims of the Parties that are the subject of the reference.
9 The Parties hereto expressly reserve the right to findings of fact,
10 conclusions of law, and a written statement of decision.
11
12
7.5 Arbitration of Disputes.
,
IN THE EVENT THAT THE
13
ENABLING LEGISLATION WHICH PROVIDES FOR APPOINTMENT OF A REFEREE IS
14
REPEALED (AND NO SUCCESSOR STATUTE IS ENACTED), ANY DISPUTE BETWEEN
15 THE PARTIES THAT WOULD OTHERWISE BE DETERMINED BY THE REFERENCED
16 PROCEDURE HEREIN DESCRIBED WILL BE RESOLVED AND DETERMINED BY ARBI-
17 TRATION. THE ARBITRATION WILL BE CONDUCTED BY A RETIRED JUDGE OF
18 THE COURT, IN ACCORDANCE WITH THE CALIFORNIA ARBITRATION ACT,
19 SECTIONS 1280 AND 1294.2 OF THE CCP AS AMENDED FROM TIME TO TIME;
20 PROVIDED, HOWEVER, THAT NOTWITHSTANDING ANY PROVISION TO THE CON-
21 TRARY REGARDING DISCOVERY SET FORTH IN THE CALIFORNIA ARBITRATION
22 ACT, THE RIGHTS AND LIMITATIONS WITH RESPECT TO DISCOVERY AS SET
23 FORTH HEREINABOVE SHALL APPLY TO ANY SUCH ARBITRATION PROCEEDING.
24
25
"NOTICE:
BY INITIALLING IN THE SPACE BELOW YOU ARE
26
AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS
27
INCLUDED IN THE 'ARBITRATION OF DISPUTES' PROVISION
28
DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA
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1
1
LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO
.J.o..,
2
HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY
3
INITIALLING IN THE SPACE BELOW YOU ARE GIVING UP YOUR
4
JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS THOSE
5
RIGHTS ARE SPECIFICALLY INCLUDED IN THE 'ARBITRATION OF
6
DISPUTES' PROVISION.
IF YOU REFUSE TO SUBMIT TO ARBI-
7
TRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COM-
8
PELLED TO ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA
9
CODE OF CIVIL PROCEDURE. YOUR AGREEMENT TO THIS ARBITRA-
10
TION PROVISION IS VOLUNTARY." "WE HAVE READ AND UNDER-
11
STAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES ARISING
12
OUT OF THE MATTERS INCLUDED IN THE 'ARBITRATION OF
13
DISPUTES' PROVISION TO NEUTRAL ARBITRATION."
14
J....,
15
CITY
OWNER
RETAILER
16
17
7.6 Applicable Law. This Agreement will be construed and
18 enforced in accordance with the laws of the State of California.
19
20
7.7 Amendment.
No modification, waiver, amendment,
21 discharge, or change of this Agreement shall be valid unless the
22 same is in writing and signed by the party against which the
23 enforcement of such modification, waiver, amendment, discharge, or
24 change is or may be sought. Notwithstanding the foregoing, modifica-
25 tions, waivers, amendments, discharges, or changes of this Agreement
sought to be enforced against the City and which do not rise above
L....
27 the level of minor technical changes, corrections, extensions of
28 time not to exceed a cumulative total of 180 days, or clarifications
S\A013414l<.NAI(
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... 1 which do not substantively change the terms of this Agreement, may
2 be made by a writing executed by Owner, Retailer and the City
.
.
.
.
3 Manager, or his designee, upon approval of the City Attorney.
4
5
7.8 Relationship of Parties. It is understood that the
6 contractual relationship between City, Owner and Retailer .is such
7 that each party is an independent entity and not an agent of any
8 other party.
9
10
7.9 Third Partv Litiqation. In the event that prior to
11 fulfillment of all Conditions to Effectiveness as required by
12 Article 3 herein above, any court action or proceeding is brought
13 by any person not a party to this Agreement to challenge this
14 Agreement, or any portion thereof, and without regard to whether or
15 not the Retailer or Owner are a party to said action or proceeding,
16 any Party shall have the right to terminate this Agreement upon
17 thirty (30) days notice in writing to the other Parties given at any
18 time during the pendency of such action or proceeding prior to the
19 conveyance of the Property to Retailer.
20
21
If the Agreement is not terminated, Owner, Retailer and
22 City shall mutually defend, and equally share all expenses,
23 including attorneys' fees, to defend City from any claim, action or
24 proceeding against the city, its agents, officers, or employees to
25 attack, set aside, void, or annul the approval of this Agreement or
26 the approval of any permit or entitlement granted concurrent with
27 or pursuant to this Agreement. The City shall promptly notify Owner
28 and Retailer of any such claim, action or proceeding. The parties
S\A013414K.NAK
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shall mutually agree upon selection of counsel to defend such claim, ,~
2
action or proceeding.
3
4
7.10 No Third Partv Benef iciarv. The terms and provisions
5 herein contained shall be only for the benefit of the Parties and
6 their respective heirs, successors and assigns, and such terms and
7 provisions shall not inure to the benefit of any other party whoso-
8 ever, it being the intention of the Parties hereto that no one shall
9 be deemed to be a third party beneficiary of this Agreement.
10
11
7.11 Time of Essence. Time is of the essence with respect
12 to every provision hereof.
13
14
7.12 No Representations or Warranties.
No party hereto
~
15 makes any representations or warranties except as expressly set
16 forth in this Agreement.
17
18
7.13 Inteqration.
This Agreement and the exhibits
19 attached hereto shall constitute the entire Agreement between the
20 parties and supersede any and all prior written or oral agreements,
21 representations, and warranties between and among the parties and
22 their agents, all of which are merged into or revoked by this
23 Agreement, with respect to its subject matter.
24
25
7.14 Severabilitv.
In the event any term, covenant,
26
condition, provision, or agreement contained herein is held to be
.t......
27 invalid, void, or otherwise unenforceable, by any court of competent
28 jurisdiction, such holding shall in no way affect the validity or
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enforceability of any other term, covenant, condition, provision,
or agreement contained herein unless their enforcement under the
circumstances would be unreasonable, inequitable or otherwise
frustrate the purposes of this Agreement.
7.15 captions.
Article and section titles or captions
contained herein are inserted as a matter of convenience and for the
reference, and in no way define, limit, extend, or describe the
scope of this Agreement or any provision hereof. All reference to
section numbers herein shall mean the sections of this Agreement.
IN WITNESS WHEREOF, the parties have executed this
13 Agreement on the date first above written.
14
"CITY"
CITY OF CHULA VISTA, a municipal
corporation
By
J!c-~i
-37-
1 Approved as to content:
1,
A
2
3 Chris Salomone
Executive Director
4 Community Development Department
5
"RETAILER"
6
7
8
9
10
11
12
13
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18
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27
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S\A013414K.NAK
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THE PRICE COMPANY, a California
corporation
By
Its:
By
Its:
"OWNER"
......
RANCHO DEL REY PARTNERSHIP, a
California general partnership
By McMillin Financial, Inc., a
California corporation
General Partner
By
Its:
By
Its:
.L....
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.
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16
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20
1
By Resolution Trust Corporation, as
Receiver/Conservator [strike one]
for:
2
3
Home Capital corporation, a
California corporation,
General Partner
4
5
By
6
Its
7
8
By
9
Its
RDR BUSINESS CENTER, LTD., a
California limited partnership
By McMillin Commercial Industrial
Development, Inc., a California
corporation, a General Partner
By
Its
By
Its
By McMillin Communities, Inc., a
California corporation, a General
Partner
21
By
22
Its
23
24
By
25
Its
26
27
/ / C-t.?
28
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S\A013414K.NAK
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By McMillin Development, Inc., a ~
California corporation, a General .
Partner
By
Its
By
Its
~
~
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EXHIBIT "1"
.
RANCHO DEL REY BUSINESS CENTER
RDR.
'H'
LTD.
.
Price Club Parcel
RDR - RANCHO DEL REY PARTNERSHIP
LTD - RDR BUSINESS CENTER LIMITED
.
lie -~ 6
/...,-0.
LIt>.
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S}ACIU4UK,NAK
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EXHIBIT NO. 2
THE DESCRIPTION OF THE PROPERTY
Lot 3 of the City of Chula vista Tract No. 93-01 in the
City of Chula vista, County of San Diego, State of
California.
EXHIBIT NO. 2 -- Page 1
)/(-(;7'
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S}A01J41UoNAK
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EXHIBIT NO. 3
CITY PROMISSORY NOTE
EXHIBIT NO. 3 -- Page 1
/ Ie - ?O
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01-10-93/EGB-47835/KDJ
PROMISSORY NOTE
$1,892,000.00
January , 1993
Chula Vista, CaIIfornia
1. FOR VALUE RECEIVED, the CITY OF CHULA VISTA, a
municipal corporation having charter powers ("city"), promises
to pay to the order of THE PRICE COMPANY, a California
corporation ("Retailer"), at 4241 Jutland, San Diego,
California 92117, or at such other place as Retailer from time
to time may designate, the principal sum of One Million Eight
Hundred Ninety-Two Thousand and NO/100 Dollars ($1,892,000.00),
plus interest as specified in this Note. This Note evidences a
loan from Retailer to City made pursuant to that certain Public
Facilities Financing and Implementation Agreement (the
Agreement") entered into as of , 1993, by and among
City, Retailer and certain third parties.--capitalized terms
used herein have the same meaning as defined in the Agreement,
unless otherwise specified herein.
2. The principal sum outstanding from time to time
under this Note shall bear interest at the rate of eight
percent (8%) per annum.
3. On each anniversary of this Note, City shall
make a principal reduction payment equal to One Hundred Eighty-
Nine Thousand Two Hundred and NO/100 Dollars ($189,200.00),
together with all accrued and unpaid interest. Interest shall
be calculated on the basis of a full calendar year and actual
days elapsed. The amount of any given annual payment and/or
the date the same is due shall be subject to adjustment as
expressly provided in Section 6, below. Other than the annual
payments described above, there shall be no required periodic
payments.
4. All unpaid principal and all accrued and unpaid
interest shall be due and payable no later than the date (the
"Maturity Date") which is the tenth (lOth) anniversary of this
Note. Such Maturity Date shall be subject to adjustment as
expressly provided in Section 6, below.
5. City may, at anytime and from time to time,
prepay some or all of the principal under this Note, without
penalty or premium.
6. city's obligations under this Note shall be
subject to the following:
J\lI0233082.1IB6
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6.1 In the event the New Facility is not
constructed on the Property with a minimum gross ~
floor area of 120,000 square feet and opened for
business within eighteen (18) months after the
Retailer acquires fee title to the Property (which
eighteen (18) month period shall be extended for
delays due to Force Majeure, so long as such Force
Majeure delays do not exceed, cumulatively, three
hundred sixty (360) calendar days), then as of the
expiration of said eighteen (18) month period, the
entire unpaid balance of principal and interest
accrued under this Note shall be deemed forgiven by
the Retailer. In the event the New Facility does not
open for business until after the first anniversary
of this Note, the first annual payment (together with
any subsequent annual payments) required under
Section 3, above, may be deferred by the City until
the date of such opening for business; provided,
however, that interest shall continue to accrue
during such deferral period. Additionally, in the
event that the New Facility does not open for
business within eighteen (18) months after the
Retailer acquires fee title to the Property for
reasons of Force Majeure, the second annual payment
originally due after the expiration of such eighteen
(18) month period shall (when payable following the
deferral described above) be reduced by a fraction,
the numerator of which is the number of days ~.
following said eighteen (18) month period that the
New Facility fails to so open and the denominator of
which is three hundred sixty-five. The reduction in
such annual payment shall not reduce the total amount
due from City to Retailer under this Note, it being
understood that such reduced amount shall be paid as
provided in Section 6.5, below.
6.2 In the event the New Facility opens
for business and is thereafter Permanently Closed
prior to the Maturity Date, then as of the Note
Termination Date, the unpaid principal balance of the
Note shall be deemed forgiven by the Retailer;
provided, however, the City will remain liable for
the unpaid principal amount of the Note pro-rated to
the Note Termination Date, together with such
interest which has accrued on such pro-rated amount
as of the Note Termination Date and remains unpaid.
Thus, the portion of the principal amount of the Note
deemed forgiven shall be a fraction of the original
principal amount of this Note, the numerator of which
is the number of days from the Note Termination Date
to and including the original Maturity Date and the
denominator of which is the number of days from the
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date of the Note to and including the original
Maturity Date.
Any final 'amount which the city remains
liable for, as expressly provided above in this
section 6.2, shall be paid by the City on or before
the date upon which the city's next annual payment
would have been required but for the fact that the
New Facility has been Permanently Closed.
In the event the New Facility opens for
business and is thereafter temporarily closed due to
Force Majeure prior to the Maturity Date, the city's
obligation to make the annual payments required
pursuant to Section 3, above, shall be suspended
until such time as the New Facility re-opens,
provided that interest shall continue to accrue
during such deferral. In the event the New Facility
is so closed due to Force Majeure for thirty (30) or
more calendar days (as calculated on a cumulative
basis) during the twelve (12) month period
immediately preceding the original due date of any
such annual payment, such annual payment shall (when
payable following the deferral described above) be
reduced by a fraction, the numerator of which is the
number of days of such closure which fall within such
twelve (12) month period and the denominator of which
is three hundred sixty-five. The reduction in such
annual payment shall not reduce the total amount due
from city to Retailer under this Note, it being
understood that such reduced amount shall be paid as
provided in section 6.5, below.
6.3 In the event the Existing Facility is
Permanently Closed during the eight (8) year period
beginning on the Effective Date of the Agreement,
then as of the Note Termination Date, the unpaid
principal balance of the Note shall be deemed
fo~given by the Retailer; provided, however, the City
will remain liable for the unpaid principal amount of
the Note pro-rated to the Note Termination Date,
together with such interest which has accrued on such
pro-rated amount as of the Note Termination Date and
remains unpaid. Thus, the portion of the principal
amount of the Note deemed forgiven shall be a
fraction of the original principal amount of this
Note, the numerator of which is the number of days
from the Note Termination Date to and including the
eighth (8th) anniversary of the Effective Date of the
Agreement and the denominator of which is the number
of days from the Effective Date of the Agreement to
and including the eighth (8th) anniversary of the
Effective Date of the Agreement.
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Any final amount which the City remains
liable for, as expressly provided above in this
Section 6.3, shall be paid by the City on or before ~
the date upon which the City's next annual payment
would have been required but for the fact that the
Existing Facility has been Permanently Closed.
In the event the Existing Facility
temporarily closed due to Force Majeure prior to the
Maturity Date, the City's obligation to make the
annual payments required pursuant to Section 3,
above, shall be suspended until such time as the
Existing Facility re-opens, provided that interest
shall continue to accrue during such deferral. In
the event the Existing Facility is so closed due to
Force Majeure for thirty (30) or more calendar days
(as calculated on a cumulative basis) during the
twelve (12) month period immediately preceding the
original due date of any such annual payment, such
annual payment shall (when payable following the
deferral described above) be reduced by a fraction,
the numerator of which is the number of days of such
closure which fall within such twelve (12) month
period and the denominator of which is three hundred
sixty-five. The reduction in such annual payment
shall not reduce the total amount due from City to
Retailer under this Note, it being understood that
such reduced amount shall be paid as provided in
Section 6.5, below. ........
Notwithstanding the aforementioned, in the
e'-ent that Retail Sales in the Existing Facility for
any fiscal year of twelve (12) consecutive calendar
months is less than Sixty Million Dollars
($60,000,000) and at any time thereafter the Existing
Facility is Permanently Closed, or temporarily closed
as contemplated immediately above, this Note shall
DQt be deemed forgiven, deferred, or prorated (as
applicable) as provided in this section 6.3, above,
and the City shall continue to be obligated to repay
this Note as originally provided above. In computing
the amount of Retail Sales there shall be added to
t~e amount of actual Retail Sales, an amount equal to
the average daily amount of actual Retail Sales for
each day the Existing Facility is opened during such
twelve (12) consecutive month period multiplied by
the number of days during such twelve (12) month
period the Existing Facility is closed for business
(excluding holidays and other days that a majority of
Retailers in California are not open for business).
In the event that Retail Sales are less
than Sixty Million Dollars ($60,000,000) for any
twelve (12) consecutive month period, as provided
,.-.
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above, the Retailer shall give the City written
notice of the actual amount of Retail Sales within
ninety (90) days after the end of such twelve (12)
month period. The city shall have the right to audit
the books and records of the Existing Facility at any
time within six (6) months after the City receives
such notice to verify the amount of Retail Sales.
6.4 For the purposes of administering this
Note, it is understood that~ in determining whether a
Price Club Facility is Permanently Closed as a result
of Force Majeure, "360 days" shall mean three hundred
sixty cumulative calendar days, and that, in such
circumstances, the Note Termination Date shall be the
dat~ of the first day of those cumulative days.
6.5 In the event that, pursuant to the
provisions of section 6.1, 6.2 or 6.3, above, any
annual payments required under the terms of this Note
are reduced, the Maturity Date shall be extended by
the aggregated number of days during which the
applicable Price Club Facilities were closed (and/or
failed to open) so as to create such reductions, and
the aggregated amount of such reductions shall be due
and payable by the City on such adjusted Maturity
Date.
.
7. All amounts payable under this Note are payable
in lawful money of the united States.
8. Each controversy, dispute or claim between the
City and Retailer arising out of or relating to this Note shall
be subject to the provisions of Sections 7.1, 7.4 and 7.5 of
the Agreement. In the case of a conflict in payment terms
between this Note and the Agreement, the terms of this Note
shall control.
9.
of California.
This Note is governed by the laws of the State
10.
:In accordance
Agreement.
Notices or other communications shali be given
with the provisions of section 7.2 of the
11. This Note inures to and binds the heirs, legal
representatives, successors and assigns of City and Retailer;
provided, however, that neither party may assign this Note, or
assign or delegate any of its rights or obligations, without
the prior written consent of the other party in each instance.
"CITY"
.
CITY OF CHULA VISTA, a municipal
corporation having charter powers
J\II023308Z.1IIl6
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By
.....
Approved as to form:
Bruce M. Boogaard
City Attorney
Marcia Scully
Special Counsel to City
Approved as to content:
Chris Salomone
Executive Director
Community Development Department
.....
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S}AOUC1UoMAIC
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EXHIBIT NO. 4
PROPOSED PROPERTY MAP
EXHIBIT NO. 4 -- Page 1
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EXHIBIT NO. 5
CITY'S ESTOPPEL CERTIFICATE
EXHIBIT NO. 5 -- Page 1
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RANCHO DEL REY COMMERCIAL CENTER
CITY ESTOPPEL CERTIFICATE
TO DEVELOPER
-..
THIS ESTOPPEL CERTIFICATE ("Certificate") is made and
entered into this day of , 199 , by the CITY OF
CHULA VISTA, a municipal corporation (the "City"), with respect
to the following facts:
RECITALS
A. Rancho Del Rey Partnership, a California general
partnership and RDR Business Center, Ltd., a California limited
partnership (collectively, "Developer"), The Price Company and
City have entered into that certain PUBLIC FACILITIES FINANCING
AND IMPLEMENTATION AGREEMENT (the "Agreement") dated as of
, 1993. All capitalized terms not otherwise defined
herein shall have the same meanings as set forth in the
Agreement.
B. Pursuant to Article 3 of the Agreement, there were
created several Conditions to Effectiveness of the Agreement.
As provided in Section 1.18 of the Agreement, City is required
to execute this Certificate in order to evidence City'S
determination that the Conditions to Effectiveness have been
fulfilled.
-.
NOW, THEREFORE, City hereby certifies to Develc::>er
that:
All Conditions to Effectiveness were fulfilled as of
(the "Conditions Date").
CITY OF CHULA VISTA, a municipal
corporation
By
[Printed Name and Title]
~.
S\A013414Z.NAI
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EXHIBIT NO.6
LIST OF REOmRED IMPROVEMENTS TO THE EXISTING FACILITY
The Price Company will invest a minimum of $200,000 in physical improvements to the existing
Price Club store located on Broadway Avenue within an 18 month period.
EXHIBIT NO.6 -- Page 1
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EXIlIBrr NO.7
UST OF SPF.cIl'lto:n PUBLIC IMPROVEMENTS
City purchase of "Specified Public Improvements" at a cost of 51,892,000, shall include
improvements required by Tentative Maps numbers 92-5 and 95-1 and by conditions of approval
as contained in Resolution 16900 and Ordinance 2535, and all oLher associated public utilities.
Notwithstanding the above, "Specified Public Improvements" shall be limited to off-site public
improvements to East H Street in excess of those purchased by the City as delineated in Exhibit
No.8 (at a cost of 5835,000).
Jle -?:J-,
JAN-lj-B3 MON 15:08
COMMUNiTY DEVl:.LOPliI:NT
rAX NO. 6184760310
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EXHIBIT NO.8
J.IST OF SPECIFIED STREET IMPROVEMENTS
City purchase of specified street improvements shall include the following public
improvements (shown with related cost estimates):
Widening of Paseo del Rey, south of East H Street
$235,000
80,000
120,000
Right turn lane on north side of East H Street
Right tum lane on Paseo del Rfi:
Widening of Avila Way
320,000
Traffic Signal at Ticrra del Rey and East H Street
TOTAL
80 000
5835,000
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EXHIBIT NO. 9
DISBURSEMENT SCHEDULE FOR PAYMENT OF
PURCHASE PRICE FOR THE SPECIFIED PUBLIC IMPROVEMENTS
EXHIBIT NO. 9 -- Page 1
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EXHIBIT NO. 10
DISBURSEMENT SCHEDULE FOR PAYMENT OF
PURCHASE PRICE FOR THE SPECIFIED STREET IMPROVEMENTS
EXHIBIT NO. 10 -- Page 1
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------------..--=..:;-:::--:.:.~.~;c_;':"-_--.,,_-... ;..-..:...:::~- ..::-:~.______ __ ------=_:::-- ~ __
COUNCIL AGENDA STATEMENT
Item ) d-.
Meeting Date 1/19/93
SUBMTITED BY:
Report: Feasibility of Splitting Open Space Maintenance District 14, Bonita
Long Canyon
Director of Parks and Recr:.eati~
Director of Public Works ~
City Manageej'
(4/5ths Vote: Yes_No X)
Council Referral #2668
ITEM TITLE:
REVIEWED BY:
At the meeting of September 15, 1992, Council received written communication from Mr. and Mrs.
Harry Hoffman requesting that staff investigate the feasibility of dividing Open Space District #14
into two parts: 1) an area that is maintenance intensive and 2) an area that is in a natural state. This
report deals with. this issue and its potential impact on the open space landscape maintenance
districts.
RECOMMENDATION: That Bonita Long Canyon, Open Space District No. 14 remain as one open
space district.
BOARDS/COMMISSIONS RECOMMENDATION: Not applicable.
DISCUSSION:
In late 1985 the developer of Bonita Long Canyon Estates, McMillin Development, Inc., submitted
a letter of petition requesting formation of an open space maintenance district. The petition
complied with the Tentative Map conditions for the Bonita Long Canyon Project.
The entire Bonita Long Canyon Estate project, Units 1 through 7, make up Open Space District No.
14. There is a total of 650 acres within the entire subdivision boundary with 283.8 acres of dedicated
open space. As each subdivision unit was developed, the open space areas in each unit were phased
in and the cost of maintenance was shared by the homeowners in the district. Presently the 862
homes in District 14 are equally assessed.
Mr. and Mrs. Hoffman in their letter dated August 23, 1992 raised the issue of dividing Open Space
District No. 14 into two zones based on areas of varying level of maintenance and proximity to these
areas. Their letter referenced the highly manicured landscape (Code One area) along Corral Canyon
Road, is the major expense of the Open Space District. In review of the maintenance contract, the
landscape area along Corral Canyon Road is about 2.4 acres and accounts for only $8,820 of the
District's $177,940 maintenance contract and approximately 10% of the yearly utility cost of $89,960.
The largest cost attributed to this District's budget is Code Three areas. The Code Three areas are
landscaped manufacture sloped areas created during the grading of the project. There is a total of
44.44 acres of Code Three areas which cost $3,050 an acre to maintain or a total $135,542. This
amount will eventually decrease as the landscaping matures and no longer requires supplemental
irrigation. Generally speaking, the revegetated graded slopes can take up to 10 years before
supplemental irrigation is curtailed.
The Hoffman's suggestion to divide the district into areas of high maintenance and low maintenance
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Page 2, Item I~
Meeting Date 1119193
would be difficult to achieve because the high cost maintenance areas (Codes One and Three) are
dispersed throughout the Bonita Long Canyon Estates Unit 1-7 as illustrated below:
DISTRIBUTION OF OPEN SPACE LAND IN
BONITA LONG CANYON ESTATES UNIT 1-7
UNIT I UNIT 2 UNIT 3 UNIT 4 UNIT 5 UNIT 6 UNIT 7
CODE I .563 AC .9AC .9AC
2 .01 AC -- .01 AC
3 1.72 AC 5.6AC 8.1 AC 5.3AC 7.54AC 2.69 AC 11.5AC
4 -- --
5 25.4AC 44.4AC 22.2 AC 40.06 AC 43.18 AC 12.53AC 5!.19 AC
Consequently, such a split would result in a situation whereby certain residents would be burdened
with a higher assessment because they happen to reside in areas requiring higher labor and utility
costs. Conversely, those residing in areas of low maintenance or highly naturalized areas would incur
a substantially smaller assessment. This approach to assessments in open space landscape districts
is not consistent with past Council action. Past Council action has spread assessments equally
throughout purely residential districts. Moreover, staff is extremely concerned that a district split may
set a precedence in other districts wishing to achieve a smaller assessment through district
segmentation.
The Hoffmans' letter also suggests the older areas should not be assessed for the newer units open
space lands. Staff feels that the entire development should be treated as one cohesive neighborhood
because it is enhanced by the natural canyons throughout the subdivision. The general proximity of
all residences to the canyons combined with the trail system allows all residents of Bonita Long
Canyon Estates to enjoy these large open space preserves.
To effect the Hoffman request, the following procedures would be required to divide the existing
district into two parts:
1. Council approve a Resolution of Intent to change the organization of the district and approve
an engineer's report reflecting the change in organization pursuant to Section 22607 of the
Streets and Highways Code. At this time, Council sets the time and place for a public hearing
on the change.
2. After the Resolution of Intent is approved, notification of the public hearing is required.
This would entail mailing individual notices to all owners of assessed parcels at least 45 days
prior to the public hearing pursuant to the new law SB 773, which is effective January 1993.
Publication to notice the public hearing is also required.
3. After the appropriate notice is given, a public hearing is held to take any testimony on the
proposed change in organization. If a majority protest, by land area, exists, the Council
cannot overrule the protests and shall abandon the proceedings to change the organization
of the district. SB 773 deletes the provision in the code which previously allowed the Council
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Page 3, Item 1.:1.
Meeting Date 1119/93
to overrule a majority protest. On the other hand, if no majority protest exists, Council may
approve the resolution changing the organization of the district.
There exists the possibility that in reaction to the Hoffman request, owners of the larger more
spacious "estate" and custom lots would protest the rise in their assessments. Because Section 22593
of the Street and Highway Code specifies majority protest (by area) this would mean the newer
homes on larger lots would have a heavier weighted protest value. In essence, this would mean that
the last phases of this particular development (Bonita Long Canyon) which has the least density and
least established plant material would have a greater protest value because influence is based upon
area.
In this sense, Bonita Long Canyon is fairly typical of large phased developments in that usually the
higher density lower cost homes are developed early on 'and the lower density luxury homes
developed later. The Hoffman's reside in Unit 1 of Bonita Long Canyon, the first phase of the
subdivision with the highest density and most established plant material.
In summary, the Hoffman's letter raises a point which is echoed universally at the biannual
homeowners meetings with staff. Although most everyone enjoys the benefits of undeveloped open
space, no one really wants to pay for its maintenance especially residents whose lots are not
contiguous with open space. As noted earlier, should Council decide to split the existing Open Space
District 14 (Bonita Long Canyon) this would set a precedent inviting innumerable similar requests
from the 9,689 homeowners in all 19 City maintained landscape maintenance districts. This could
result in countless conflicts within existing Open Space District communities between those residing
in low density luxury lots and those residing in higher density housing. It has always been the goal
of the City for open space areas to bring communities together in the enjoyment of common areas
and not to divide communities in the search for lesser individual assessments.
Therefore, it is staffs recommendation that Bonita Long Canyon Estates Unit 1-7 should remain as
one Open Space Maintenance District. However, if Council directs staff to proceed with reorganizing
the boundaries of Open Space District 14, the procedures delineated previously would be required,
proper notification would be sent to all residents in the District and a public hearing date set.
A copy of this report has been provided to the Hoffmans, and they have been advised of the date
the report will be heard by Council.
FISCAL IMPACT: None, if the District remains unchanged.
OSDSPL TA13
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August 29, 1992
S83-1
Honorable Mayor & City
City of Chula Vista
276 Fourth Avenue
Chula Vista. California
Counci I
91910
Dear Mayor and City Council:
We are writing to you in regards to the Doen
Landscape Maintenance District assessments.
attendance at the June 13th public meeting.
Space and
We were in
We are Questioning the fact that our area is now for the most
part back to the natural state and only needing minimal
maintenance. However. the area UQ near"Corral Canyon gets
maintenance three to four times a week (per city staff at
June 13th meeting).
(
When we Questioned Donna at the public meeting regarding the
possibilitv of splitting this large district into two parts
(one that reQuires tne most maintenance and one that is
mainly back to the natural state), she indicated that they
had NOT considered this and therefore. you would not. She
stated that you went by their recommendation. We wonder what
our charge would be if this district were solit and were not
subsidizing the new area that requires more maintenance.
Since I could not get a direct answer to this Question from
staff, I would hope that you are concerned enough about the
taxpayers and their feeling and put this to city staff. We
feel that subsidizing the other area i. not right and we
therefore look to you for assistance in this matter.
Thanking you in advance for your cooperation and hoping to
hear from you in the near future in regards to these
Questions.
91902
WRITTEN COMM8...~~I!~t4. YUONS
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Sincerelv,
(
Mr. and Mrs. Harold
1651 Azusa Court
Bonita. California
Hof f mar
COUNCIL AGENDA STATEMENT
Item 13
Meeting Date 01/19/93
ITEM TITLE Information Report Regarding the Proposed Animal Shelter
Reconfiguration.
SUBMITTED BY Chief of Police ~\uV
REVIEWED BY City Managera' (4/Sths Vote: Yes_No.x.)
V Council RefemllllUB7
At the City Council meeting held on September 8, 1992, during the public hearing on reducing
the FY 1992-93 budget, Council expressed concern about the cost of temporarily relQCliting the
Chula Vista Animal Shelter. Staff was directed not to expend any funds for relocating the
shelter until alternatives were researched. Council suggested sharing shelter facilities with
County or placing the temporary facility on the future permanent site as two possible
alternatives. This report will provide Council with information on why staff has concluded the
facility cannot continue to operate at its present location without modification and compare
impacts from modifying the existing site to those of practical alternatives. Council Resolutions
16706, 16707 and 16708, adopted June 30, 1992, provide for funding and construction of the
Otay Valley Road Widening Project of which the Animal Shelter is a component.
RECOMMENDATION:
That a modular office building, moveable work room building and asphalt parking lot be erected
on the current Animal Shelter site.
BOARDS/COMMISSIONS RECOMMENDATION: None
DISCUSSION:
Background
In November, 1988, the City Council, acting as the City's Redevelopment Agency, accepted a
report which recommended, subject to further environmental review, adoption of a widening and
re-alignment of Otay Valley Road. The recommended re-alignment included a 2,000 foot radius
curve just east of the Animal Shelter which meets the City's criteria for a major road or prime
arterial (six-lanes and a 55 m. p.h. design speed). This magnitude of road is necessary to support
the planned development along the Otay Valley Road corridor. In order to effect the
construction of this curve, an existing office/workroom at the Animal Shelter will have to be
demolished. However, the road widening project will not require that the existing dog and cat
kennels at the Animal Shelter be demolished. At the City Council meeting held on September
8, 1992, during the public hearing on reducing the FY 1992-93 budget, Council expressed
concern about the cost of temporarily re-configuring the Chula Vista Animal Shelter. Staff was
directed not to expend any funds for reconfiguration of the shelter until alternatives were
researched.
13"1
Page 2 Item---L:1-
Meeting Date 01119/93
The Animal Shelter Reconfiguration Project (RD-205) was originally budgeted as a part of the
City's Capital Improvement Program (CIP) during FY 1990-91. In June of 1989, in a report
to the Redevelopment Agency, staff justified dissecting the Animal Shelter facility by stating
that, "because the Animal Shelter will eventually be relocated...it was not a priority to design
the roadway to avoid the facility." At that time, staff estimated the Animal Shelter would move
to the planned Corp Yard site in five years (1994). The project's cost estimates have been
updated annually as part of the CIP budget process, the most recent estimate was $187,200.
Animal Shelter Operations
The Animal Shelter is administered by a Senior Animal Control Officer under the direction of
the Chief of Police. The Animal Control Division responds to calls for animal control service
in Chula Vista, and, houses impounded animals from Chula Vista, National City and Imperial
Beach. Services are provided 24-hours-a-day, seven-days-per-week by a staff of seven persons
including four Animal Control Officers and three support staff. The shelter, located on Otay
Valley Road east of 1-805, has 72 dog kennels capable of housing 90 dogs and 18 cat kennels
capable of holding 35 cats. The facility includes kennels and an office/workroom building. All
animal control activities (i.e. impoundment, owner redemption, adoption and euthanasia) are
conducted according to applicable state law as contained in the California Humane Laws
Handbook.
During 1991, the animal shelter impounded over 8058 dogs, cats and other animals, a rate of
about 22 animals per day. Year-to-date in 1992, 8,201 animals have been impounded, a rate
of nearly 25 animals per day. Approximately 12.7% of these animals were redeemed by their
owners or adopted, the remainder were destroyed. Sections 31108 and 31752 of the California
Food and Agriculture Code mandate that no dog or cat shall be euthanized before 72 hours of
impoundment. Because of the volume of impounds, the three day minimum impound and Police
Department policy that articulates a preference for animal adoption whenever practical, the
shelter is at its 90 kennel capacity on a routine basis.
The Imperial Beach City Council has recently approved an agreement with the City of Chula
Vista for Chula Vista to provide a full range of animal control services in Imperial Beach. This
agreement will be brought forward for Council approval when staff receives signed documents.
Since the City already houses Imperial Beach animals, the new agreement will have not increase
the number of animals directed to the Animal Shelter.
Animal Shelter Reconfiguration Project Funding
Resolution 16706 authorized various appropriations and transfers to fund the City and
Redevelopment Agency's contributions to the Otay Valley Road Widening Project (ST-123).
In sum, a total of $5,244,779 in City and Redevelopment Agency funds were appropriated for
ST-123. This City/Redevelopment Agency "contribution" to ST-123 was funded by nine
different sources including the $187,200 originally appropriated for RD-205. In effect,
Resolution 16706 made RD-205 part of the larger ST-123.
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The remaining $7,887,649 required to complete ST-123 will be funded by Otay Valley Road
Assessment District assessments. The Animal Shelter property is within the Otay Valley
Assessment District and, therefore, will be assessed a total of $21,500. This sum will be paid
from the City and Redevelopment Agency contributions to ST-123.
Project Status
Resolution 16707 awarded the construction contract for Phase I of ST-123 to Granite
Construction of Lemon Grove. Granite Construction's bid of $4.319 million includes all costs
associated with the Animal Shelter Reconfiguration Project as proposed by staff. However, the
City's contract with Granite Construction for Phase I is contingent upon the issuance of the 1915
Act bonds authorized by Resolution 16708. These bonds are intended to provide initial funding
for the portion of ST-123 construction which will be paid for by assessments to properties within
the Otay Valley Road Assessment District. Although staff originally estimated that these bonds
would be delivered to the underwriter in mid-August, the recent Otay Valley Assessment District
lawsuit precluded the issuance of such 1915 Act bonds.
The underwriter has recently advised staff that the City may choose to proceed without knowing
all required environmental mitigation. Therefore, the underwriter has committed to completing
a preliminary draft of the Official Statement for City staff review in mid-January. Staff, the
underwriter, bond counsel and environmental consultant will be meeting in late January to
discuss this preliminary draft of the Official Statement. The Official Statement serves as a
disclosure statement for potential bond investors and, therefore, must be completed prior to bond
issuance. Because environmental constraints ares still being inventoried, the bonds have not
been issued and staff now estimates construction of ST-123 will not begin for two to four
months.
Alternative Interim Animal Shelter Solutions
A. Shared Use Facility with the County
One alternative staff investigated was to contract with the county for kennel space at its South
Bay facility on Sweetwater Road. Staff met with Hector Cezares, Assistant Director of County
Animal Control. Based upon discussions with Mr. Cezares, staff identified five issues Council
should consider in evaluating the this alternative.
1. Additional staffing requirements. The county does not have sufficient staffing to care for
Chula Vista's, National City's and Imperial Beach's animals. Therefore, if this alternative is
chosen, the two Kennel Attendants now on staff will be transferred from the Otay Valley Road
facility to the Sweetwater Road facility. The impact of this issue is negligible since the City
currently has these people on staff and would expect to retain them regardless of the alternative
chosen.
As a side note, in addition to National City and Imperial Beach, the City of San Diego has
expressed an interest in contracting with Chula Vista rather than the County for service to San
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Meeting Date 01/19/93
Ysidro/Otay Mesa and possibly even Paradise Hills. The advantage to San Diego is that our
service would be less expensive than the County's. The advantage to Chula Vista would be the
profit received by the City for this service plus the ability to ultimately have a larger facility
with more staff which would give the City more flexibility in providing better service to our
residents. Any permanent.move to the County facility would block the City's ability to provide
this additional service.
2. Additional kennel space requirements. There is not adequate kennel space at the County
facility to absorb the volume of animals form Chula Vista. If this alternative is chosen, new
kennels would have to be constructed at the Sweetwater Road facility. The fiscal impact of
having to construct new kennels is significant because animal kennels are not moveable. Without
the benefit of site plans or specific design documents, it is difficult to estimate kennel
construction costs. If kennels comparable to what now exist at the Otay Valley Road site were
built, construction would include a heated concrete slab, new fencing and gates, drainage and
a canopy. It is very unlikely this construction could be completed for less than $50,000. Staff
investigated the possibility of moving the existing kennels to the Sweetwater Road site. When
the concrete, demolition and moving costs associated with moving the kennels are totaled, they
would exceed the cost of building new kennels. County staff also indicated that any kennels
constructed on county property would become property of the county.
3. Lack of required office space. At this time, there is no office/administrative space available
at the Sweetwater Road facility. Therefore, if this alternative is selected, staff will have to make
provisions for administrative and office space for Animal Shelter staff. County staff indicated
that there was space to place a temporary modular building or trailer for use as an
office/administration facility. Other potential sites for office/administrative space include the
Police Department and the current Otay Valley Road site. If this alternative is selected, staff
would recommend that a temporary building be placed at the Sweetwater Road facility -- the
proportion of animals reclaimed or adopted will decrease if office space is sited elsewhere.
Keeping all animal control activity centralized at one location encourages adoption and
reclamation by virtue of "one-stop" convenience. Staff experience indicates that people are
much more likely to reclaim and adopt animals if the process is simple. The cost of a trailer
or modular building would depend primarily upon its interior design and the associated site
preparation costs (i.e., utilities, grading and slab work). However, it would cost approximately
$750 to $900 per month, or $9,000 to $10,800 annually, to lease such a temporary building.
4. Citizen Inconvenience. The Sweetwater Road facility is substantially further from the
majority of Chula Vista's residential population. If this alternative is chosen, people travelling
from the Hilltop area, for instance, would have to travel about 25 % further to the county facility
which is located in the 5800 block of Sweetwater Road. Those persons residing west of 805 and
south of Telegraph Canyon would also have a longer drive to the Sweetwater Road site. Only
those persons living east of Interstate 805 along the H Street corridor and to the north would
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benefit from siting the interim animal shelter on Sweetwater Road. Staff believes that longer
traveling distances could have a negative impact upon people's propensity to reclaim and adopt
pets.
5. County Impound Charges. The county has indicated that each animal impounded by the City
at the Sweetwater Road facility would be assessed a charge of approximately $40.00. This
assessment is payable by either: a) the individual redeeming or adopting an impounded animal,
this charge would be in addition to current City reclamation or adoption fees; or, b) by the City
in the event the animal is destroyed.
Recall from discussion above that the Chula Vista Animal Shelter impounded approximately 22
to 25 animals per day, and that of these animals, about 12.7% are reclaimed or adopted by
residents of Chula Vista and other South Bay communities. At a rate of 22 animal impounds
daily, a total of 8,030 animals would be impounded in one year. Multiplying the number of
animals impounded by the $40.00 assessment yields an annual unfunded liability of
approximately $321,000 to simply impound lost, stray and wild animals. If animals were
reclaimed at the rate currently observed, the City's net liability for unclaimed animals would be
approximately $280,408 annually. City-incurred expenses of this magnitude make joint-use of
the Sweetwater Road facility alternative prohibitively expensive.
The impact of this issue is very significant. If such assessments are included in adoption or
reclamation charges, fewer animals will be adopted and reclaimed. In turn, it is very likely that
more animals will have to be destroyed. Potential pet owners will seek to adopt their pets
elsewhere at substantially less cost and the proportion of animals adopted would decrease.
People who can not afford the $40.00 in additional fees will be less likely to reclaim their pets.
If this alternative is chosen, staff predicts the reclamation/adoption rate now observed will be
negatively impacted and, therefore, the unfunded liability cited above will increase.
In total, the first-year cost of the Shared Use Alternative is estimated to be $339,408. The first-
year estimate includes the costs of required office space at the same location as the kennels
($9,000), building the necessary kennel space ($50,000) and the per animal assessment of $40.00
per animal net of assessments paid by owners and adopters ($280,408). Subsequent years would
cost approximately $289,408 (first-year estimate net of the cost of building kennels. Funding
has not yet been identified for this alternative.
B. Temporary Facility on the Permanent Corp Yard Site
A second alternative investigated by staff was to put the temporary facility on the proposed
Public Works Corp Yard site. At this point in time, the property upon which the Corp Yard is
planned to be sited has not yet closed escrow. One of the escrow contingencies was an
environmental clearance by the City no later than January 22, 1993. Staff has retained a soil
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Meeting Date 01/19/93
contamination consultant who has concluded the evaluation of the property and staff is awaiting
the report. Staff is optimistic that any environmental issues with the property can be
successfully mitigated.
In the event that the property is declared environmentally clear, it will be at least twelve months
before the first facilities at the Corp Yard will be operational. A new Corp Yard Master Plan
will have to be developed because the existing plan was based upon siting the Corp Yard on a
different piece of property. The environmental impact report (EIR) and conditional use permit
(CUP) processes must be successful1y completed. Staff will be bringing forward
recommendations to fast-track Animal Shelter portion of the Corp Yard project, however, staff
still is projecting a twelve to twenty-four month time-line to bring the facility on-line.
C. Staff' Alternative
Staff from the Police, Community Development, Public Works, Planning and Building and
Housing Departments held a series of meeting in response to this Council Referral. As a result
of these meetings, staff developed an alternative to its original recommendation that will
minimize the cost of "permanent" improvements on the Otay Val1ey Road Animal Shelter site.
Staff reviewed the specifications for the office, workroom, parking lot and all associated site
preparation work in an attempt to identify al1 possible cost savings. As a result of these
discussions, staff has concluded that re-configuring the Otay Val1ey Road facility is the least
costly alternative which effectively meets both the Animal Shelter's and the community's needs.
The alternative staff is recommending has four main components. First this alterative calls for
a 750 square foot movable, custom workroom building to be constructed on the Otay Valley
Road site. Given the Corp Yard's projected time-line, twelve to twenty-four months, animal
shelter staff and the public will get substantial use from the building on the Otay Valley Road
site. Staff intends to move the workroom to the Corp Yard when it comes on-line thereby
reducing construction costs of the Corp Yard's Animal Shelter facilities. Second, this alternative
includes a 1,248 square foot trailer for use as administrative and office space. The staff
alternative also includes a parking lot and driveway. The moveable workroom, trailer and
parking lot will meet any applicable City design guidelines. Final1y, as a result of the grading
work associated with the road widening, a new sewer lateral and single pump sewage lift station
will be instal1ed at the reconfigured Animal Shelter. All of the aforementioned facilities and
their associated preparatory site improvements were included in contract tentatively awarded to
Granite Construction.
Staff is evaluating variety of ways to reduce the total cost of this alternative. Granite
Constructions original bid for the animal shelter portion of Phase I was approximately $250,000.
This bid included removal and disposal of exiting improvements at the Animal Shelter, grading,
earthwork, curbs, gutters, slab work, moveable custom building, trailer, parking lot and
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Meeting Date 01119/93
driveway. The workroom building is a functional structure both on the interior and exterior.
This type of design offers minimal opportunity to reduce construction costs, however, staff and
the contractor have agreed to pursue any possible cost reductions. The office trailer will be
either leased or purchased, whichever costs less. The contractor and staff are currently
evaluating this decision and will make a determination solely on cost since the trailer will be the
same in either case. In the parking lot portion of the project, only asphalt and concrete will
meet ADA requirements. Asphalt will be used because, in this application, it is less expensive.
Unfortunately, most of the cost associated with building the parking lot is associated with
preparatory work, not the chosen surface material. Additionally, only one of the two planned
driveways will be constructed. A single driveway can be designed to meet all applicable safety
standards and, furthermore, second driveway simply is not required given expected traffic
volumes. Staff estimates such cost reduction measures could reduce the total cost by 5 % to
10%. Staff will pursue all potential cost savings in the reconfiguration of the Otay Valley Road
site if this alternative is selected. Once again, funding for this alternative has been included in
the City's contribution to the Otay Valley Road Widening Project, ST-123.
Conclusions
1. Animal impound assessments make entering into a Joint Use Agreement with the County
cost prohibitive.
2. Until environmental clearance is gained, the property closes escrow and the EIR, CUP
and Design Review processes are favorably concluded, it would be premature for staff
to recommend siting facilities at the planned Corp Yard site.
3. The staff alternative will result in more cost effective provision of animal shelter
services.
fiSCAL IMPACT: The staff recommendation will result in expenditures of approximately
$250,000 from funds appropriated by Council Resolution 16706 for the
Otay Valley Road Street Widening Capital Improvement Project (ST-123).
13'?
PROCLAMATION
CITY OF CHULA VISTA, CALIFORNIA
PROCLAIMING THE EXISTENCE OF A LOCAL EMERGENCY
IN THE CITY OF CHULA VISTA, CALIFORNIA
WHEREAS, section 2.14.080 of the City of Chula Vista Municipal
Code empowers the City Council to proclaim the existence or
threatened existence of a local emergency when said City is
affected or likely to be affected by a vublic calamity; and
WHEREAS, said City Council has been requested by the City
Manager I serving as the Director of Emergency Services of said
City, to proclaim the existence of a local emergency therein, and
NOW, THEREFORE, the Ci ty Counci I does hereby proel aim that
conditions of peril to the safety of persons and property existed
in the city by virtue of heavy rains, mud slides and severe urban
flooding during the period of January 6 through 18, 1993; and
FURTHERMORE, the City Council does hereby declare that a state
of emergency existed throughout the City between January 7 and 18,
1993.
NOW, THEREFORE, it is hereby declar~j and ordered that a copy
of this Declaration be forwarded to tne state Director of the
Office of Emergency Services with a request that the Director find
it acceptable in accordance with provisions of the Natural
Assistance Act.
Dated this 19th day of January, '
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