HomeMy WebLinkAbout1992/01/14 Item 7
COUNCIL AGENDA STATEMENT
Item Number 7
Meeting Date 'I ~ I tf2..
ITEM TITLE: Resolution I(,"'{,~proving a Revision of a Three Party Agreement
for Otay Ranch Development Processing between the City of Chula
Vista, Robert Bein, William Frost and Associates and Baldwin Vista
Associates, L.P. and Authorizing the Mayor to Execute Said
Agreement
VIA: General Manager, Otay Ranch Project
SUBMlTlhD BY: Deputy City Manager Krempl~
REVIEWED BY: City Manage~~ , ~ (4j5ths Vote: Yes_No X)
The City of Chula Vista is the agency designated in an agreement between Chula Vista and
the County of San Diego to approve consulting contracts for the Otay Ranch. The payment
schedule proposed in the latest Agreement approved by the City Council (November 12,
1991) needs to be revised per a request from Baldwin Vista Associates. Robert Bein,
William Frost and Associates (RBF) has reviewed this revised Agreement and agrees to all
of the terms and conditions stated therein. The County is supportive of this Contract
revision.
RECOMMENDA110N: Adopt a resolution modifying the existing Agreement with RBF
to include the revised payment schedule and authorizing the Mayor to sign the attached
Agreement.
BOARDS/COMMISSION RECOMMENDA110N: Not applicable.
DISCUSSION:
RBF has been under contract with the City of Chula Vista to provide planning services for
the Otay Ranch since August 1989. First and second modifications to the Agreement were
authorized by Council in February 1990, a third modification was approved in November
1990, a fourth modification was approved in April 1991 and a fifth modification entitled
"Second Three Party Agreement for Otay Ranch Development Processing" was approved
in November, 1991.
For information, the major purpose of the previous Agreements were as follows:
. Original Contract - August I, 1989: for planning services related to the Otay Ranch
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Page 2, Item No. 7
Meeting Date I / 1~/'12.
· Amendment #1 - February 13, 1990: additional work on goals and objectives as
requested by the Executive Staff Committee
· Amendment #2 - February 27, 1990: development of four Project Team alternatives
as requested by the Interjurisdictional Task Force
· Amendment #3 - November 13, 1990: RBF review of applicant's revised plans
· Amendment #4 - April 21, 1991: continuation of Task Force work program;
establishment of payment schedule
· Amendment #5 - November 12, 1991: continuation of Task Force work program
through June, 1992 and revision to payment schedule.
This modification is presented to the City Council due to the need to amend the payment
schedule approved in the November, 1991 Agreement. That Agreement had the City, upon
deposit by Baldwin Vista, paying RBF & Associates a fixed sum of $15,000.00 per month
even though RBFs invoices are exceeding that amount on a monthly basis. All monies were
then due and payable on January 2, 1992. Baldwin Vista, Ltd. requested, and RBF &
Associates agrees to, an amendment that revises the monthly payment to $50,000.00 and
extends the deferred amount to be payable, in full, to June 30, 1992.
The scope-of-work is not amended by this modification. The scope-of-work calls for
preparation of portions of the General Development Plan/Community Plan, continued work
on issue papers, providing assistance to the Project Team and the Executive Staff
Committee, attendance at public meetings as requested, providing input and review of
Implementation Plans and any other plan documents, environmental input and coordination
assistance and preparation of the General Plan Amendment Report. The scope-of-work also
provides for all the support work necessary for presentations to the Citizen and Technical
Committees plus outside groups which are interested in the project.
As part of the Three Party Agreement, an Otay Ranch trust fund is established. That is not
affected by this modification. The trust fund is designed to receive deposits and security
from the Applicant and to disburse assets of fund. The City's exposure to pay on this
Agreement is limited to the assets in this fund.
FISCAL IMPACT:
There will be no fiscal impact on the funds of the City because the Baldwin Company will
be funding this continuing scope-of-work.
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RESOLUTION NO. 1(, 1../ ~5
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING THE THIRD THREE PARTY
AGREEMENT FOR OTAY RANCH DEVELOPMENT
PROCESSING BETWEEN THE CITY OF CHULA VISTA,
ROBERT BEIN, WILLIAM FROST AND ASSOCIATES AND
BALDWIN VISTA ASSOCIATES, L.P. AND AUTHORIZING
THE MAYOR TO EXECUTE SAID AGREEMENT
WHEREAS, the City of Chula vista is the agency designated
to approve consulting contracts for the Otay Ranch; and
WHEREAS, additional work is being requested of Robert
Bein, William Frost and Associates over and above the original
scope-of-work; and
WHEREAS, the agreement has been reviewed by all parties
and is acceptable to RBF, Baldwin and the City.
NOW, THEREFORE, BE IT RESOLVED that the City Council of
the city of Chula vista does hereby approve a Third Three Party
Agreement for Otay Ranch Development Processing between the city of
Chula Vista, Robert Bein, William Frost and Associates and Baldwin
vista Associates, L.P., a copy of which is on file in the office of
the City Clerk.
BE IT FURTHER RESOLVED that the Mayor of the City of
Chula vista is hereby authorized and directed to execute said
Agreement for and on behalf of the City.
Presented by m by
Á
George Krempl, Deputy City Bruce M. Boogaa d, ity
Manager Attorney
C:\RS\RPF OIay Ranch
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Third Three Party Agreement
for otay Ranch
Development Processing
This Agreement ("This Agreement") is made this January 14,
1992 for the purposes of reference only, and effective as of the
date last executed between the parties, between the City of Chula
vista ("city") herein, a municipal corporation of the state of
California, Baldwin vista Associates, Ltd., a California Limited
Partnership, ("Applicant"), and Robert Bein, William Frost &
Associates ("Consultant"), Professional engineers, Planners &
Surveyors, and is made with reference to the following facts:
Recitals
Whereas, Applicant is the owner of a 22,700 acre parcel of
land located outside the current City limits for the city of
Chula Vista, and within the unincorporated area of the County of
San Diego, and is commonly known as the "Otay Ranch"; and,
Whereas, Applicant is the proponent of the development of
the Otay Ranch according to the concept plan and description
presented to the City Council ("otay Ranch Project") and made a
part of a Statement of Intentions adopted by the Council on April
25, 1989, and in that regard is the proponent of a General Plan
Amendment and General Development Plan application; and
Whereas, City has entered into a Memorandum of Understanding
("MOU") with the County of San Diego ("County") to provide for
the joint planning of the development of the otay Ranch through a
coordinated and cooperative effort of selected personnel from
both the City and the County ("Joint Project Team", or
alternatively "Team"); and,
Whereas, pursuant to said MOU, City is primarily responsible
for contracting for consulting services needed to plan for the
development of the Otay Ranch; and,
Whereas, in order to fulfil the need of the Team for
planning services, City entered into an agreement with Consultant
baldwn3e.wp RBF/City/Baldwin Agreement
January 10, 1992 Page 1
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on August 1, 1989 ("Original Agreement"), which agreement was
amended in writing on February 1, 1990 ("First Amendment"),
February 27, 1990 ("Second Amendment"), November 13, 1990 ( "Third
Amendment") , and April 21, 1991 ("Fourth Amendment"), all of
which shall herein be referred to as the "Agreement as Amended";
and,
Whereas, thereafter. the Darties entered into an aareement
on or about ADril 21. 1991 entitled "Three Partv Aareement for
Otav Ranch DeveloDment processina" ("First processina Aareement")
bv which thev terminated the Aareement as Amended and reDlaced
their riahts and duties with the First Processina Aareement: and.
Whereas. the term of the First processina Aareement has
eXDired and the estimated budaet limitations have been reached as
Drovided therein: and
Whereas. on November 12, 1991. the Darties entered into a
"Second Three Partv Aareement for Otav Ranch DeveloDment
processina which has now eXDired also: and
Whereas, Applicant owes Consultant, as a result of services
performed under Drior aareements the sum herein stated and
referred to as "Consultant's Bill for Previously-Provided
Services" and the parties recognize that Consultant has performed
all services required of it under the Agreement As Amended; and,
Whereas, parties desire to continue the services of
Consultant in connection with the planning of the development of
the Otay Ranch and desire to keep their contractual relationship
fFem ~Ris peiR~ eft according to the terms of this agreementT
£'uee,rt 'that. t.he~· atJrce 'Ëe pa}· the. ealaßee e\;ißIJ Ceß5\il t.aFrt 1;1ßàe.r
the. L~reemeßt. as hmeßåeå¡ 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; and,
NOW, THEREFORE, BE IT RESOLVED that the City, Applicant and
Consultant do hereby mutually agree as follows:
1- Establishment and ODeration of Otav Ranch Trust Fund.
A. city to Establish Otay Ranch Trust Fund.
city a~Fees ~e has established, as part of its books and
records accounting for financial transactions of the City, and
baldwn3e.wp RBF/City/Baldwin Agreement
January 10, 1992 Page 2
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related entities, a separate fund ("otay Ranch Trust Fund", or
"Trust Fund") which Bhall 19a II primarily designed to receive
deposits and security (including the Trust Deed herein
contemplated) from Applicant and to disburse assets of the fund,
including proceeds realized from the foreclosure of any security
devices,
(1) to pay for all expenses and/or expenditures incurred by
Team in connection with processing Applicant's application for
the development of the otay Ranch through the City and County;
and,
(2) to pay for all direct economic losses resulting from any
contractual relationship entered into by the City or Team in
connection with processing Applicant's application for the
development of the otay Ranch through the City and County
provided that
(a) such contractural relationship has been entered
into with the written consent or at the direction of Applicant or
the Applicant has accepted the benefits of the contractual
relationship without written objection after having knowledge
thereof; and
(b) either
(i) the loss is not the result of any negligence
or willful misconduct of the contracting party or
(ii) Applicant has consented to or directed the
actions by the contracting party giving rise to the loss.
To the extent that city asserts a loss to which Applicant has
consented to or directed, the city shall consult with Applicant
and will allow Applicant the opportunity, at Applicant's
election, to cure or to give its advice as to subsequent steps to
be taken to mitigate the loss.
B. Duty to Foreclose.
city agrees that, to the extent necessary to do so in order
to realize proceeds to meet the City's duty to pay for expenses
of the City and Team, and to the extent that Applicant is in
default of the terms of this agreement, city will foreclose upon
any security deposited with the City to secure the performance of
Applicant.
II. Duties Reaardina Consultant's Bill for Previous Iv Provided
services.
baldwn3e.wp RBF/city/Baldwin Agreement
January 10, 1992 Page 3
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This section II relates exclusively to the duties and rights
of Applicant, city and Consultant with regard to the payment of
Consultant's Bill for Previously Provided Services.
A. ADDlicant's Duties.
1. Dutv to Pav.
Applicant agrees to pay to city, for deposit to the
Trust Fund, for Consultant's Bill for Previously Provided
Services, Invoices dated in the months ~ June, ~~ly, h~~B~ aaå
SeptemBer, throuah December, 1991, the sum of $398,112.96
$460,428.86. (which includes ~e~ether ~ith interest to date
thereon at the rate of 12% per annum, compounded monthly, on the
outstanding balance due over 90 days from date of invoice)
accordina to the followina schedule: (1) $20.000 Der month
beainnina Januarv 21. 1992. (2) $50.000 Davment on Januarv 15.
1992 and (3) The remainina balance. all due and Davable on June
30. 1992. Dlus additional interest accrued.
2. Dutv·to Issue Note.
As a duplicate duty to pay city for Consultant's Bill
for Previously Provided Services, Applicant agrees to issue to
the City a Negotiable Note Secured by Trust Deed in the form
attached as Exhibit A.
3. Dutv to Secure Note.
Applicant agrees to cause one or more Deeds of Trust in
the form attached hereto as Exhibit B ("Trust Deed") to be
executed by the fee owners thereof for the purpose of securing,
in part, Applicant's obligations herein under said Note, and in
other part, all of Applicant's obligations under this Agreement.
a. Property. The real properties ("Property")
which are the subject matter of said Trust Deeds are commonly
known as:
12755 Dannan Court, San Diego, CA 92130,
12756 Dannan court, San Diego, CA 92130,
12777 Dannan court, San Diego, CA 92130,
and are legally described as set forth in the legal descriptions
of the property which is the subject matter of said Trust Deeds,
attached as Exhibit B-1 through B-3, inclusive.
b. Equity. Applicant warrants and represents
that the value of Applicant's equity in said Property is at least
$748,000.00 as of the effective date of this agreement and is
baldwn3e.wp RBF/City/Baldwin Agreement
January 10, 1992 Page 4
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free and clear of all encumbrances thereon, and that the amount
of all liens except taxes and assessments against said property
do not exceed $1,122,000, and are first deeds of trust against
the property held by the following persons in the following
currently due amounts:
(1) $390,000.00 to Western Financial Savings
Bank as to Parcel 3 of Parcel Map No. 15699.
(2) $366,000.00 to Western Financial Savings
Bank as to Parcel 4 of Parcel Map No. 15699.
(3) $366,000.00 to Western Financial Savings
Bank as to Parcel 5 of Parcel Map No. 15699.
c. Appraisal. Applicant shall bear the cost of
an appraisal of Property satisfactory to the City, and the cost
of a title report demonstrating that Applicant's Designee,
Baldwin Building Contractors, L.P., a California Limited
Partnership, is the fee owner and that there are no prior
encumbrances against title not shown above.
B. Citv's Duties.
1- Conditional Dutv to Pav Consultant.
On the condition that Applicant pays City as herein in
this section II, set forth above, or if, as a result of
prosecuting its foreclosure rights under the Trust Deed,
sufficient funds are realized, City agrees to pay to Consultant
the sum of $460,428.86, together with such interest as is
realized from Applicant's Duty to Pay for Consultant's Bill for
Previously-Provided Services as herein contained. The aeneral
funds of the citv shall not be liable to make this payment to
Consultant. and on Baldwin's failure to pav. Consultant's sole
remedv as to the Citv shall be limited bv the resources, whatever
thev mav be, in the otav Ranch Trust Fund. It shall be the
obliaation of the Citv to continuous Iv monitor all accumulated
costs incurred bv citv and Consultants. billed or otherwise. to
be paid from the otav Ranch Trust Fund and to notifv Consultant
within 3 davs if the accumulated costs exceed the total value of
assets held in the Trust Fund as stated herein.
C. Consultant's Duties.
In the event and on the condition that City pays
Consultant according to the terms herein provided, Consultant
agrees to accept same in consideration for all previously
provided services rendered to the Team in connection with, or
related to, the otay Ranch Project, including all services
baldwn3e.wp RBF/City/Baldwin Agreement
January 10, 1992 Page 5
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rendered under the Agreement as Amended.
Ð. Lareeme8~ as l~eftàeà is Termifta~eà.
All ri~htB and duties af the parties under ~hÐ
A~reemeßt aa ]~cßàeà are heresy terminated and dieehar!øà vithsHt
:Breaeh, Exacp~ as ~e Ceßaul~aßt'a datiee af inBuFan6c and
ißàemßity therein eSßtaineà ~~ieh ahall remain eate~aßàißg
aeeerdißg te i tB terms, aßå te the eJ!teß'E addressed B~f this
8greemeßt, are merged Barain.
III. Duties Relatina to processina of Application for
Development: provision of Consultina Services.
This section III relates to the rights and duties between
Applicant and the City for all costs associated with the
processing of the otay Ranch Project, and does not invplve the
rights and duties of Consultant as to consulting services, or
compensation therefore.
A. Applicant·' s Duties to Deposit Funds.
1. Dutv to Make Cash Deposits on Demand.
For the benefit of the City exclusively, Applicant
shall, 20 days after demand, deposit with the City for
application to the otay Ranch Fund, such cash amounts as City
shall, from time to time, demand for the purpose of paying all
processing costs incurred by the City and Team in processing
Applicant's application for development of the otay Ranch
Project.
2. Limits on Authoritv of citv to Demand Cash
Deposits.
city demand for funds to be placed on deposit shall be
reasonable based on expected cash flow and all unfunded
obligations of the Team which the Team expects to experience
based on existing and future contract commitments.
3. Dutv to Maintain Trust Asset Value at Proper Level.
Upon receipt of notice by City to Applicant of the need
to deposit, Applicant shall maintain on deposit with the city
sufficient cash or value on deposit with the City to provide for
the payment of all costs incurred by city, billed or otherwise,
in connection with its processing of Applicant's application for
the development of the otay Ranch Project, including all costs
incurred by the city under this agreement.
baldwn3e.wp RBF/City/Baldwin Agreement
January 10, 1992 Page 6
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4. Applicant Liabilitv.
Regardless of the adequacy of funds deposited,
Applicant shall be liable to City for all costs incurred by city
or Team for the City's processing of Applicant's application to
develop the otay Ranch Project, including but not limited to all
costs incurred by City in retaining the services of Consultant as
herein provided. .
5. Applicant Dutv to Deposit Performance Trust Deed.
Applicant shall cause deeds of trust in the form
attached hereto as Exhibit B, to be executed by the fee owners
thereof for the purpose of securing, in part, all of its duties
contained in this Agreement, including monetary or fiscal duties,
and deliver same to city.
a. Property. The real properties ("Property")
which are the subject matter of the Trust Deed are commonly known
as:
12755 Dannan Court, San Diego, CA 92130,
12756 Dannan Court, San Diego, CA 92130,
12777 Dannan Court, San Diego, CA 92130,
and are legally described as set forth in the legal
description of the property which is the subject matter of said
Trust Deed.
b. Equity. Applicant warrants and represents
that the value of Applicant's equity in said Property is at least
$748,000.00 as of the effective date of this agreement and is
free and clear of all encumbrances thereon, and that the amount
of all liens, except tax liens and assessments, against said
property do not exceed $1,122,000, and are first deeds of trust
against the property held by the following persons in the
following currently due amounts:
(1) $390,000.00 to Western Financial Savings
Bank as to Parcel 3 of Parcel Map No. 15699.
(2) $366,000.00 to Western Financial Savings
Bank as to Parcel 4 of Parcel Map No. 15699.
(3) $366,000.00 to Western Financial Savings
Bank as to Parcel 5 of Parcel Map No. 15699.
c. Appraisal. Applicant shall bear the cost of
an appraisal of Property satisfactory to the city, and the cost
of a title report demonstrating that Applicant's Designee,
Baldwin Building contractors, L.P., a California Limited
baldwn3e.wp RBF¡City¡Baldwin Agreement
January 10, 1992 Page 7
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Partnership, is the fee owner and that there are no prior
encumbrances against title not shown above, and that all
encumbrance holders have certified to the amount above listed.
6. Non-urocessinq RemedY.
In addition to any other remedies which City may have
for breach of this Agreement, breach of this Agreement by
Applicant in any manner, including but not limited to the failure
of Applicant for any reason to deposit funds on demand, shall be
grounds for the refusal of City and/or Team, and City and/or Team
is hereby authorized to refuse, to continue processing the otay
Ranch Project development application.
IV. Reconveyance Duties.
A. Within 10 days of/upon request by Applicant, City shall
execute a full reconveyance of the deeds of trust securing the
Note delivered to the City under the terms of this Agreement at
such time as the following conditions are satisfied: (1) the
Note is paid in full in the manner herein provided or Applicant
has deposited into the Trust Fund the sufficient amounts to
permit the payment of Consultant's bill for Previously Provided
Services as specified in section II.A.1 of this Agreement; and
(2), the city reasonably determines that there is sufficient cash
or other value on deposit with the City to provide for the
payment of all costs incurred by City, billed or otherwise, in
connection with its processing of Applicant's application for the
development of the otay Ranch Project, including all costs
incurred by the city under this agreement.
v. processinq of otay Ranch Proiect.
This section IV shall address the duties and rights of the
parties regarding the processing of the otay Ranch Project, and
compensation therefore.
A. Desiqnatinq Reuresentatives for Administration of
Contract.
1. The City hereby designates the city Manager, or his
written designee, ("city's Representative") as its representative
for the review and administration of the work performed by
Consultant herein required.
2. Consultant hereby designates John SuI lard as
Consultant's representative ("Consultant's Representative") to
the project for the duration of the project. No substitution for
this position shall be allowed without written approval from the
baldwn3e.wp RBF/City/Baldwin Agreement
January 10, 1992 Page 8
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City.
3. Applicant hereby designates Fred Arbuckle, or other
written designee of Greg Smith, as Applicant's representative
("Applicant's Representative") to the project for the duration of
the project.
B. Duties Relatina to processina.
1- Duties of ADDlicant.
a. Provide Information.
The Applicant of the project shall provide to the
Consultant, for the use by the Consultant, all site plans,
grading plans, architectural elevations, project description,
reports or any other documents, drawings, etc., which are
available and could be of assistance to the Consultant in
performing his services and preparing his Work Product.
b. . Permission to Access Pro;ect Area.
The Proponent shall also provide Consultant with
written permission for the Consultant and city staff to enter the
Project Area, make any tests, conduct any surveys or
reconnaissance necessary to permit the Consultant to perform the
services herein required of the Consultant.
2. Consultant Duties.
a. primarv Dutv.
On the condition that the Consultant is regularly
paid in accordance with the provisions of this Agreement, and
notwithstanding said condition, on the further condition that the
total amount due Consultant is less than $550,000, Consultant
shall continue to assist in the preparation of a General Plan
Amendment and General Development Plan/Community Plan ("GDP") for
the development of Otay Ranch, and in conjunction therewith,
perform the tasks set forth in "Scope of services, attached
hereto as Exhibit C, and incorporated herein by reference, as
same may be modified, added or reduced by the City.
b. Reductions in SCODe of Work.
City may from time to time reduce the Scope of
Work by the Consultant to be performed under this Agreement.
c. Additional SCODe of Work.
baldwn3e.wp RBF/City/Baldwin Agreement
January 10, 1992 Page 9
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In addition to performing the Defined Services
herein set forth, City may require Consultant to perform
additional consulting services related to the General Duties and
Scope of Services ("Additional Services"). Anv professional
consultina services or reimbursable services reauested bv Citv
above and beyond their Scope of Services may be provided bv
Consultant as Additional Services for an additional fee.
Additional Services reauire written authorization bv city on
Consultants' Additional Work Reauest Form. Consultant shall
invoice city month Iv for any Additional Services and all terms
and conditions of this Aareement applY. and specificallY city's
responsibility to review and approve of invoices within 15 days
of receipt. Interest will accrue on the unpaid balance of
Additional Services fees from 90 days from date of invoice. On
September 30. 1992. all fees for Additional Services. includina
interest are due and payable.
d. Standard of Care.
Consultant, in performing any Services under this
agreement, shall perform such services 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.
C. Duties Relatina to Compensation.
1- Dutv to Prepare Bill Monthlv.
Consultant shall prepare and submit to the City on the
twentY-fifth day of each month, a bill for its services rendered
in the prior month which bill shall contain the number of
authorized hours which Consultant or their agents or employees
shall have spent in executing the Scope of Work herein contained
in this section IV, which hours are to be extended by an hourly
rate factor calculated at 2.75 times the normal hourly wage paid
to said agent or employee. The extended cost of said individual
employees and/or agents shall be totalled on said bill. Said
bill shall also contain all reimbursable costs incurred during
said billing period.
2. Dutv to Set Hourlv Rate of Aaents or Emplovees.
Consultant shall not adjust the hourly rates or its
agents or employees as a result of this agreement. The hourly
rates of its agents or employees currently assigned, or expected
to be assigned to perform Consultant's duties under this
agreement are set forth in the attached Exhibit D. Consultant
warrants and represents that (1) Exhibit D truly and accurately
baldwn3e.wp RBF/City/Baldwin Agreement
January 10, 1992 Page 10
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reflects the hourly rates paid to such agents or employees as of
the date of this agreement, (2) that such hourly rates are
typical rates paid to similarly situated agents or employees in
the trade or industry of Consultant, and (3) that the amounts so
contained on Exhibit D have not been set as a result of this
Agreement.
3. Cocies of Consultant Billinas.
Consultant agrees to submit to Applicant by mail copies
of all billings submitted by Consultant for payment by the Trust.
However, if Applicant has any objections to the bills submitted,
Applicant will express its objection through the city within 15
days after receipt of same.
4. Dutv to Pay Bill.
On the condition that sufficient assets and resources
are in the otav Ranch Trust Fund. City shall pay the properly
calculated and prepared Consultant's bill on a monthly basis
within 30 days after receipt of same, except as herein provided.
The General Fund of the City shall not be obliaated to Day any
cortion of the services of Consultant. and Consultant's remedy
for non-cavment. as to the city. is limited solely to the
resources. whatever they may be. to the otay Ranch Trust Fund.
In the event of non-cavment due to a deficiency in the otay Ranch
Trust Fund of assets or other resources. city shall assian such
claim and security as it may have aaainst Acclicant to
Consultant. It shall be the obliaation of the city to
continuous Iv monitor all accumulated costs incurred bY City and
Consultants, billed or otherwise. to be caid from the otav Ranch
Trust Fund and to notify Consultant within 3 days if the
accumulated costs exceed the total value of assets held in the
Trust Fund as stated herein. Consultant has the riaht and
obliaation, crior to renderina services, to satisfY itself that
the assets and other resources. includina the security for
cavment. of the otay Ranch Trust Fund is sufficient and adeauate.
durina the term of this aareement, to meet the obliaations of the
otay Ranch proiect, includina the obliaations to cay Consultant
as crovided in this aareement. and may. ucon dissatisfaction.
reasonablY determined, may suscend services reauired of
Consultant under this aareement. The city has the obliaation, if
reauested by Consultant. to crovide information on the otay Ranch
account in reaards to balance and dissemination of funds within
the account.
5. city's Deferral Riahts.
a. Definitions. The monthly difference between
baldwn3e.wp RBF/City/Baldwin Agreement
January 10, 1992 Page 11
1-15
the proper amount billed by the Consultant for a given Deferral
Month and the amount paid on such bill shall be referred to as
the Monthly Deferral Amount, and the cumulative difference
between the proper amount billed by the Consultant in total, and
the amount paid on such bill shall be referred to as the
Cumulative Deferral Amount.
b. Deferral Right. City shall not be required to
pay any amount of Consultant's bill representinq services
performed dated in the months of Januarv throuqh June. 1992,
ge'Êel3er, Ns·:emser, Ðeeemser, inclusive, -i-9* ("Deferral Months"),
in excess of $30.000 $15,eee per month ~ft~il Jafttiary 2, 1992
until June 30, 1992 (at which time all previously billed amounts
and interest are due and payable). For that portion of
Consultant's bill representinq direct Iv reimburseable expenses as
permitted bv this Aqreement in the months of Januarv throuqh
June. 1992. citv shall pav same in full each month out of such
resources onlv as may be in the otav Ranch Trust Fund without
reqard to the monthlY limitation provided in this paraqraph.
c. . Interest on Deferred Amount. The Monthly
Deferral Amount shall bear interest from 90 days after billing at
the rate 12% per annum, compounded monthly, until paid on which
date all previously deferred amounts including accrued interest
is due and payable.
D. Miscellaneous Duties.
1- Insurance to city.
Consultant represents to and for the express benefit of
city that it and its agents, staff and consultants employed by it
are protected by worker's compensation insurance and the
Consultant has the coverage under public liability and property
damage insurance policies which this Agreement requires to be
demonstrated in the form of a certificate of insurance.
Consultant will provide, prior to the commencement of
the services required under this agreement the following
certificates of insurance to the City prior to beginning work:
a. statutory Workers Compensation coverage plus
$1,000,000 Employers liability coverage.
b. General and Automobile Liability coverage to
$1,000,000 combined single limit which names
City as an additional insured, and which is
primary to any policy which the City may
otherwise carry ("primary coverage"), and
baldwn3e.wp RBF/CitY/Baldwin Agreement
January 10, 1992 Page 12
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--..--
which treats the employees of the City in the
same manner as members of the general pUblic
("cross-liability coverage"). The cost of
such additional insurance shall be deemed as
a reimbursable cost to consultant.
c. Errors and Omissions insurance to $1,000,000
unless Errors and Omissions coverage is
included in the General Liability policy.
All policies shall be issued by a carrier that has a
Best's Rating of "A, Class V", or better, or shall meet with the
approval of the city's Risk Manager.
All policies shall provide that same may not be
canceled without at least thirty (30) days written notice to the
City.
2. Insurance to Applicant.
Consultant represents to and for the express benefit of
Applicant that it and its agents, staff and consultants employed
by it are protected by worker's compensation insurance and the
Consultant has the coverage under public liability and property
damage insurance policies which this Agreement requires to be
demonstrated in the form of a certificate of insurance.
Consultant will provide, prior to the commencement of
the services required under this agreement, the following
certificates of insurance directly to the Applicant prior to
beginning work:
a. statutory Workers Compensation coverage plus
$1,000,000 Employers liability coverage.
b. General and Automobile Liability coverage to
$1,000,000 combined single limit which names
Applicant as an additional insured, and which
is primary to any policy which the Applicant
may otherwise carry ("primary coverage"), and
which treats the employees of the Applicant
in the same manner as members of the general
public ("cross-liability coverage"). The
cost of such additional insurance shall be
deemed as a reimbursable cost to consultant.
c. Errors and Omissions insurance to $1,000,000
unless Errors and omissions coverage is
included in the General Liability policy.
baldwn3e.wp RBF/City/Baldwin Agreement
January 10, 1992 Page 13
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..~_...__. ---..-..-.
All policies shall be issued by a carrier that has a
Best's Rating of "A, Class V", or better, or shall meet with the
approval of the Applicant.
All policies shall provide that same may not be
canceled without at least thirty (30) days written notice to the
Applicant.
E. Term.
This Agreement should become effective upon execution as
authorized by the Mayor of the City, or his designee, and shall
terminate, if not terminated pursuant to other provisions
contained herein, or otherwise extended by all parties, on
June 30, 1992.
F. Financial Interests of Consultant:
Consultant warrants and represents that neither he, nor his
immediate family members, nor his employees or agents
("Consultant Associates"). presently have any interest, directly
or indirectly, whatsoever in the property which is the subject
matter of the Project, or in any property within 10 radial miles
from the exterior boundaries of the property which is the subject
matter of the Project, or ("Prohibited Interest") except as
listed on an attachment.
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 or
Consultant's associates. Consultant promises to advise city of
any such promise that may be made during the Term of this
Agreement, or for 12 months thereafter.
Consultant agrees that neither Consultant nor his immediate
family members, nor his employees or agents, shall acquire any
such Prohibited Interest within the Term of this Agreement, or
for 12 months after the expiration of this Agreement.
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.
G. Hold Harmless.
Consultant shall defend, indemnify and hold harmless the
Applicant and City, its elected and appointed officers and
employees, from and against all claims for damages, liability,
cost and expense (including without limitation attorneys' fees)
baldwn3e.wp RBF/city/Baldwin Agreement
January 10, 1992 Page 14
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-.".--....-..
arising out of the negligent conduct.of the Consultant, or any
agency 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, it 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.
H. Termination of Aareement for Cause.
If, through any cause, Consultant shall fail to fulfill in a
timely and proper manner his/her 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, become the property of the City, and Consultant shall be
entitled to receive just and equitable compensation for any work
satisfactorily completed on such documents and other materials up
to the effective date of Notice of Termination, not to exceed the
amounts payable hereunder, and less any damages caused City by
Consultant's breach.
I. Termination of Aareement for Convenience of citv.
city may terminate this Agreement at any time and for any
reason for 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.
Consultant shall suspend any additional work not expressly
directed by the city upon receipt of such notice. 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
baldwn3e.wp RBF/City/Baldwin Agreement
January 10, 1992 Page 15
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_.._~_._._---_.__. --
hereby expressly waives any and all claims for damages or
compensation arising under this Agreement except as set forth
herein.
1. Upon receipt of a request from Applicant for
suspension or termination of its Application, City will exercise
its privileges to terminate Consultant under this Agreement.
J. Assiqnabilitv.
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.
K. OwnershiD. Publication. ReDroduction 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 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.
L. IndeDendent 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, workers compensation benefits, injury leave or other
leave benefits.
M. Errors and Omissions.
baldwn3e.wp RBF/City/Baldwin Agreement
January 10, 1992 Page 16
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In the event that the City Engineer determines that the
Consultant's 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, or omissions in the plans or contract
specifications, Consultant shall reimburse City for the
additional expenses incurred by the City including engineering,
construction and/or restoration expense. Nothing herein is
intended to limit City's rights under other provisions of this
agreement.
N. Administrative Claims Reauirements 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 of Chula vista and
acted upon by the city of Chula Vista 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.
O. Attornev's Fees.
Should a dispute result in litigation, and the procedure for
claiming and resolving the dispute herein contained is adhered
to, 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.
P. Statement of Costs.
In the event that Consultant prepares a report or document,
or participates in the preparation of a report or document as a
result of the scope of work required of Consultant, Consultant
shall include, or cause the inclusion, 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.
,
Q. Consultant not authorized to ReDresent Citv.
Unless specifically authorized in writing by city, Consult-
ant shall have no authority to act as City's agent to bind City
baldwn3e.wp RBF/city/Baldwin Agreement
January 10, 1992 Page 17
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. ~.--._._--_.-
to any contractual agreements whatsoever.
R. 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 serve~
or deposited in the United states mail, addressed to such party,
postage prepaid, registered or certified, with return receipt
requested, at the addresses identified adjacent to the signatures
of the parties represented.
S. Entire Aareement.
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 writïng executed by the party against which
enforcement of such amendment, waiver or discharge is sought.
T. CaDacitv 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; that all resolutions or other actions have been taken
so as to enable it to enter into this Agreement.
U. Governina Law/Venue.
This Agreement shall be governed by and construed in
accordance with the laws of the state of California. Any action
arising under or relating to this Agreement shall be brought only
in the federal or state courts located in San Diego County, state
of California, and if applicable, the City of Chula Vista, or as
close thereto as possible. Venue for this Agreement, and
performance hereunder, shall be the City of Chula vista.
(End of Page. Next Page is Signature Page.)
baldwn3e.wp RBF/City/Baldwin Agreement
January 10, 1992 Page 18
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-- ..-. .-.-..-..-....
Signature Page
to
Agreement with
IN WITNESS WHEREOF, city, Consultant and Applicant have
executed this Agreement as of the date set forth adjacent to
their signature.
Dated: January 10, 1992 CITY OF CHULA VISTA
276 Fourth Avenue, Chula Vista, CA 91910
By: Tim Nader, Mayor
Attest:
Beverly Authelet,
City Clerk
A"t: ~o fo., JJ
Bruce M. Boogaard .'",--
city Attorney
Dated: Robert Bein, William Frost & Associates,
14725 Alton Parkway, Irvine, CA 92718
By: James E. McDonald, President
Dated: Baldwin vista Associates, L.P., a
California Limited Partnership, 11975 EI
Camino Real, Suite 200, San Diego, CA
92130
By: Baldwin Builders, Inc. , a
California Corporation, its
General Partner,
By: Greg smith, President
baldwn3e.wp RBF/City/Baldwin Agreement
January 10, 1992 Page 19
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Exhibit List
to
Three Party
for otay Ranch Development
Processing Agreement
Exhibit A. Note Secured by Trust Deed issued by Applicant to
City in the amount of Consultant's Bill for
Previously Provided Services ($460,428.86).
Exhibit B. Trust Deed Securing Note in Exhibit A, and
Performance, Including Monetary Performance, in
Agreement.
Exhibit C. Scope of Services of Consultant.
Exhibit D. Hourly Rates of Consultant's Employees and Agents
baldwn3e.wp RBF/city/Baldwin Agreement
January 9, 1992 Page 20
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-~._---"--_.__..._,..,_.._--..-
Exhibit A
Note Secured by Deed of Trust
$460,428.86 January 14, 1992 Chula Vista, California
For valuable consideration received, the Baldwin Vista Associates, Ltd.,
a California Limited Partnership ("Obligor"), does hereby promise to pay to the
City of Chula Vista, California, a chartered municipal corporation of the State
of California, or order, at Chula Vista, California, the sum of Four Hundred
Sixty Thousand, Four Hundred Twenty-Eight Dollars and 86/100 ($460,428.86) pIus
interest thereon, compounded monthly, at the rate of 12% per annum, according to
the fol1owing installment and payment schedule: $20,000 per month commencing
January 15, 1992 and continuing on the 1st day of each subsequent month
thereafter until June 30, 1992, at which time the entire remaining balance of
principal and interest shall be due and payable, and $50,000, as a single
isolated payment on January 15, 1992. Any payment received shall be first
credited to interest due, and the balance, if any, shall thereupon be applied to
the principal balance outstanding.
The obligations contained in this Note are secured by three Deeds of Trust,
each as to a separate parcel, bearing the same date as this Note, issued to
Spring Mountain Escrow, as Trustee, for the benefit of the City of Chula Vista,
Beneficiary, by Obligor or Obligor's designee, Baldwin Building Contractors, a
California Limited Partnership.
Obligor may prepåy this Note at any time or from time to time in any amount
without penalty.
Notwithstanding the aforementioned date the repayment of this obligation,
upon Obligor's conveyance of a fee interest in all or any portion of the parcel
or parcels whioh constitute the security for this Note, as identified in the Deed
of Trust above referenced, or the bankruptcy, reorganization, dissolution or
liquidation of Obligor, the outstanding principal balance of this Note pIus any
interest accrued thereon shall become immediately due and payable.
This note shall be payable in legal tender of the United States.
In the event that either party may be required to use the legal process in
order to collect an amount of money hereunder due, the prevailing party shall be
entitled to reasonable attorney's fees and court costs.
Dated: Baldwin Vista Associates, L.P., a California
Limited Partnership, 11975 El Camino Real, Suite
200, San Diego, CA 92130
By: Baldwin Builders, Inc., a California
Corporation, its General Partner,
By: Greg Smith, President
[attach notary acknowledgment]
baldwn5 . wp
î - 2.5
-..----.
Exhibit B-1
Baldwin Building Contractors, L.P.
Deed of Trust, No. 1
to Secure Note
and
Three Party Agreement for otay Ranch Development Processing
Recording Requested by:
City of Chula Vista,
California
and when recorded, mail to
City of Chula vista
276 Fourth Avenue
Chula Vista, CA 91910
Attention: City Clerk
For Off1c1al Use Only
Assessor Parcel No: 304-390-41
DEED OF TRUST AND ASSIGNMENT OF RENTS
THIS DEED OF TRUST, made this January 14, 1992, for the
purposes of reference, and effective as of the date executed by the
parties, between the Baldwin Building Contractors, L.P.. a
California Limited Partnership, herein called "Trustor", whose
address is 11975 El Camino Real, suite 200, San Diego, CA 92130,
Attention: Grea Smith, as desginee for Baldwin Vista Associates,
L.P., a California Limited Partnership, Spring Mountain Escrow
Inc., a California corporation, herein called "Trustee", and the
city of Chula Vista, herein called "Beneficiary", whose address is
276 Fourth Avenue, Chula Vista, California, as follows:
The Trustor irrevocably grants, transfers and assigns to
Trustee in trust, with power of sale, that property in San Diego
County, California, described as set forth in the attached Exhibit
1 to Deed of Trust, together with buildings, fixtures, equipment
and other assets located thereon or appurtenant thereto, and
together with the rents, issues and prof its thereof, subj ect,
however, to the right, power and authority given to and conferred
upon Beneficiary by paragraph (10) of the provisions attached
hereto as Exhibit 2 to Deed of Trust, to collect and apply such
rents, issues and profits,
baldwn6.wp Baldwin's Trust Deed
January 9, 1992 Page 1
1-2~
"-.---.-- -.----.-.-.-.-...-
FOR THE PURPOSE OF SECURING: (1) payment of the indebtedness
evidenced by one promissory note dated January 14, 1992, and
entitled: "Note Secured by Deed of Trust," and any extension or
renewal thereof, in an amount of $460,428.86, and executed by
Trustor's Designator, Baldwin Vista Associates, L.P., a California
Limited Partnership in favor of Beneficiary or order; (2)
performance by Trustor's Designator of its obligations as contained
in that Agreement between Trustor I s Designator, Benef iciary and
Robert Bein, William Frost & Associates, dated November 12, 1991,
and entitled "Second Three Party Agreement for Otay Ranch
Development Processing" also referred to herein as the "Subject
Agreement"; (3) performance by Trustor of each agreement of
Trustor as contained herein, including without limitation, those
set forth in Exhibit 2 hereto (related to the protection of the
security); and (3) performance under any agreements that are
secured by a trust deed, mortgage, lien, or other encumbrance
against the title to the property which is the subject matter of
this grant that is, or may be, superior to this Deed of Trust.
TO PROTECT 'J;'HE SECURITY OF THIS DEED OF TRUST, Trustor
agrees, by the execution and delivery of this Deed of Trust and the
Note and Subject Agreement secured hereby, that provisions (1) to
(14), inclusive, of Exhibit 2 hereby are adopted and incorporated
herein and made a part hereof as fully as though set forth herein
at length.
To the extent permitted by Law, all of the personal property
described in the deed of trust or mortgage shall be deemed to be
fixtures and part of the real property. As to any part of such
personal property not deemed or permitted by law to be fixtures,
the deed of trust or mortgage shall constitute a security agreement
under the Uniform Commercial Code.
The undersigned Trustor requests that a copy of any Notice of
Default and of any Notice of Sale hereunder be mailed to the
undersigned at his address hereinbefore set forth.
Dated: Baldwin Building Contractors, L.P., a
California Limited Partnership
by: Baldwin Builders; Inc., a
California Corporation, its General
Partner
by:
Greg Smith, President.
[attach notary acknowledgment]
baldwn6.wp Baldwin's Trust Deed
January 9, 1992 Page 2
,- :2.¡
_._u .__.__...._.__._._.___.~~m____'.
Exhibit 1 to Trust Deed
Legal Description of Subject Property
12755 Dannan Court, San Diego, CA 92130
Parcel 3 of Map 15699
Assessor Parcel No. 304-390-41
That real property situated in the city of San Diego, County of San
Diego, state of California, commonly known as Parcel 3 of Parcel
Map No. 15699, in the City of San Diego, County of San Diego, State
of Califonria, filed in the Office of the County Recorder of San
Diego County, June 8, 1989 as File No. 89-302414 of Official
Records.
baldwn6.wp Baldwin's Trust Deed
January 9, 1992 Page 4
Î - :2.¡
.-.--.
Exhibit 2 to Trust Deed
Standard provisions
To Protect the Security of This Deed of Trust, Trustor Agrees:
(1) To keep said property in good condition and repair; not
to remove or demolish any building thereon; to complete or restore
promptly and in good and workmanlike manner any building which may
be constructed, damaged or destroyed thereon and to pay when due
all claims for labor performed and materials furnished therefore;
to comply with all laws affecting said property or requiring any
alterations or improvements to be made thereon; not to commit or
permit waste thereof; not to commit, suffer or permit any act upon
said property in violation of law; to cultivate, irrigate,
fertilize, fumigate, prune, and do all other acts which from the
character or use of said property may be reasonably necessary, the
specific enumerations herein not excluding the general.
(2) To provide, maintain and deliver to Beneficiary such
certificates of fire, vandalism and malicious mischief insurance
satisfactory to and with loss payable to Beneficiary. The amount
collected under any fire or other insurance policy may be applied
by Beneficiary upon any indebtedness secured hereby and in such
order as Beneficiary may determine, or at option of Beneficiary the
entire amount so collected or any part thereof may be released to
Trustor.
Such application or release shall not cure or waive any
default or notice of default hereunder or invalidate any act done
pursuant to such notice. The provisions hereof are subject to the
mutual agreement of the parties as below set forth.
(3) To appear in and defend any action or proceeding
purporting to affect the security hereof or the rights or powers of
Beneficiary or Trustee; and to pay all costs and expenses,
including cost of evidence of title and· attorney's fees in a
reasonable sum, in any such action or proceeding in which
Beneficiary or Trustee may appear, and in any suit brought by
Beneficiary to foreclose this Deed.
(4) To pay: at least ten days before delinquency all taxes
and assessments affecting said property, including assessments on
appurtenant water stock; subject to the mutual agreements of the
parties as below set forth, to pay when due, all encumbrances,
charges and liens, with interest, on said property or any part
thereof, which appear to be prior or superior hereto; all costs,
fees and expenses of this Trust.
baldwn6.wp Baldwin's Trust Deed
January 9, 1992 Page 5
--, - 29
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Should Trustor fail to make any payment or to do any act as
herein provided, then Beneficiary or Trustee, but without
obligation so to do and without notice to or demand upon Trustor
and without releasing Trustor from any obligation hereof, may:
make or do the same in such manner and to such extent as either may
deem necessary to protect the security hereof, Beneficiary or
Trustee being authorized to enter upon said property for such
purposes; appear in and defend any action or proceeding purporting
to affect the security hereof or the rights or powers of
Beneficiary or Trustee; pay, purchase, contest or compromise any
incumbrance, charge or lien which in the judgment of either appears
to be prior or superior hereto; and, in exercising any such powers,
pay necessary expenses, employ council and pay his reasonable fees.
(5) To pay immediately and without demand all sums so
expended by Beneficiary or Trustee, with interest from date of
expenditure at the amount allowed by law in effect at the date
hereof, and to pay for any statement provided for by law in effect
at the date hereof regarding the obligation secured hereby any
amount demanded by the Beneficiary not to exceed the maximum
allowed by law at the time when said statement is demanded.
(6) That any award of damages in connection with any
condemnation for public use of or injury to said property or any
part thereof is hereby assigned and shall be paid to Beneficiary
who may apply or release such moneys received by Beneficiary in the
same manner and with the same effect as above provided for
disposition of proceeds o,f fire or other insurance. The provisions
hereof are subject to the mutual agreements of the parties as below
set forth.
(7) That by accepting payment of any sum secured hereby
after its due date, Beneficiary does not waive his right either to
require prompt payment when due of all other sums so secured or to
declare default for failure so to pay.
(8) That at any time or from time to time, without liability
therefor and without notice, upon written request of Beneficiary
and presentation of this Deed and said note for endorsement, and
without affecting the personal liability of any person for payment
of the indebtedness secured hereby, Trustee may: reconvey any part
of said property; consent to the making of any map or plat thereof;
join in granting any easement thereon; or join in any extension
agreement or any agreement subordinating the lien or charge hereof.
(9) That upon written request of Beneficiary stating that
all sums secured hereby have been paid, and upon surrender of this
Deed and said note to Trustee for cancellation and retention and
baldwn6.wp Baldwin's Trust Deed
January 9, 1992 Page 6
\-~D
..__..___'__.......__n._ __++u__,____
upon payment of its fees, Trustee shall reconvey, without warranty,
the property then held hereunder. The recitals in such
reconveyance of any matters of facts shall be conclusive proof of
the truthfulness thereof. The grantee in such reconveyance may be
described as "the person or persons legally entitled thereto." Five
years after issuance of such full reconveyance, Trustee may destroy
said note and this Deed (unless directed in such request to retain
them) .
(10) That as additional security, Trustor hereby gives to and
confers upon Beneficiary the right, power and authority, during the
continuance of these Trusts, to collect the rents, issues and
profits of said property, reserving unto Trustor the right, prior
to any default by Trustor in payment of any indebtedness secured
hereby or in performance of any agreement hereunder, to collect and
retain such rents, issues and profits as they become due and
payable. Upon any such default, Beneficiary may at any time
without notice, either in person, by agent, or by a receiver to be
appointed by a court, and without regard to the adequacy of any
security for the indebtedness hereby secured, enter upon and take
possession of said property or any part thereof, in his own name
sue for or otherwise collect such rents, issues and profits,
including those past due and unpaid, and apply the same, less costs
and expenses of operation and collection, including reasonable
attorney's fees, upon any indebtedness secured hereby, and in such
order as Beneficiary may determine. The entering upon and taking
possession of said property, the collection of such rents, issues
and profits and the application thereof as aforesaid, shall not
cure or waive any default or notice of default hereunder or
invalidate any act done pursuant to such notice.
(11) That upon default by Trustor in payment of any
indebtedness secured hereby or in performance of any agreement
hereunder, Beneficiary may declare all sums secured hereby
immediately due and payable by deli very to Trustee of written
declaration of default and demand for sale and of written notice of
default and of election to cause to be sold said property, which
notice Trustee shall cause to be filed for record. Beneficiary also
shall deposit with Trustee of this Deed, said note and all
documents evidencing expenditures secured hereby.
After the lapse of such time as may then be required by law
following the recordation of said notice of default, and of notice
of sale having been given as then required by law, Trustee, without
demand on Trustor, shall sell said property at the time and place
fixed by it in said notice of sale, either as a whole or in
separate parcels, and in such order as it may be determined, at
public auction to the highest bidder for cash in lawful money of
baldwn6.wp Baldwin's Trust Deed
January 9, 1992 Page 7
ì-3\
- --. -- -- -.....-
the united states, payable at time of sale. Trustee may postpone
sale of all or any portion of said property by public announcement
at such time and place of sale, and from time to time thereafter
may postpone such sale by public announcement at the time fixed by
the preceding postponement. Trustee shall deliver to such
purchaser its deed conveying the property so sold, but without any
covenant or warranty, express or implied. The recitals in such
deed of any matters or facts shall be conclusive proof of the
truthfulness thereof. Any person, including Trustor, Trustee, or
Beneficiary as hereinafter defined, may purchase at such sale.
After deducting all costs, fees and expenses of Trustee and
of this Trust, including cost of evidence of title in connection
with sale, Trustee shall apply the proceeds of sale to payment of:
all sums expended under the terms hereof, not then repaid, with
accrued interest at the amount allowed by law in effect at the date
hereof; all other sums secured hereby; and the remainder, if any,
to the person or persons legally entitled thereto.
(12) Benef iciary , or any successor in ownership of any
indebtedness secured hereby, may from from time to time, by
instrument in writing, substitute a successor or successors to any
Trustee named herein or acting hereunder, which instrument,
executed by the Beneficiary and duly acknowledged and recorded in
the office of the recorder of the county or counties where said
property is situated, shall be conclusive proof of proper
substitution of such successor or Trustee or Trustees, who shall,
without conveyance from the Trustee predecessor, succeed to all its
title, estate, rights, powers and duties. said instrument must
contain the name of the original Trustor, Trustee and Beneficiary
hereunder, the document number or the book and page where this Deed
is recorded and the name and address of the new Trustee.
(13) That this Deed applies to, inures to the benefit of, and
binds all parties hereto, their heirs, legatees, devices,
administrators, executors, successors, and assigns. The term
Beneficiary shall mean the owner and holder, including pledgees, of
the note secured hereby, whether or not named as Beneficiary
herein. In this Deed, whenever the context so requires, the
masculine gender includes the feminine and/or neuter, and the
singular number indicates the plural.
(14) That Trustee accepts this Trust when this Deed, duly
executed and acknowledged, is made a public record as provided by
law. Trustee is not obligated to notify any party hereto of
pending sale under any other Deed of Trust or of any action or
proceeding in which Trustor, Beneficiary or Trustee shall be a
party unless brought by Trustee.
baldwn6.wp Baldwin's Trust Deed
January 9, 1992 Page 8
î-32-
. .--...--.-.--....----.-...-......--
Recording Requested by:
city of Chula Vista,
california
and when recorded, mail to
City of Chula Vista
276 Fourth Avenue
Chula vista, CA 91910
Attention: City Clerk
For Off1c1al Use Only
Assessor Parcel No: 304-390-42
DEED OF TRUST AND ASSIGNMENT OF RENTS
THIS DEED OF TRUST, made this January 14, 1992, for the
purposes of reference, and effective as of the date executed by the
parties, between the Baldwin Building Contractors, L.P., a
california Limited Partnership, herein called "Trustor", whose
address is 11975 El Camino Real, suite 200, San Diego, CA 92130,
Attention: Greg Smith, as desginee for Baldwin vista Associates,
L.P., a California Limited Partnership, Spring Mountain Escrow
Inc., a California corporation, herein called "Trustee", and the
City of Chula Vista, herein called "Beneficiary", whose address is
276 Fourth Avenue, Chula vista, California, as follows:
The Trustor irrevocably grants, transfers and assigns to
Trustee in trust, with power of sale, that property in San Diego
County, California, described as set forth in the attached Exhibit
1 to Deed of Trust, together with buildings, fixtures, equipment
and other assets located thereon or appurtenant thereto, and
together with the rents, issues and profits thereof, subject,
however, to the right, power and authority given to and conferred
upon Beneficiary by paragraph (10) of the provisions attached
hereto as Exhibit 2 to Deed of Trust, to collect and apply such
baldwn7a.wp Baldwin's Trust Deed
January 9, 1992 Page 1
l - ;3
-------.---"--
rents, issues and profits,
FOR THE PURPOSE OF SECURING: (1) payment of the indebtedness
evidenced by one promissory note dated January 14, 1992, and
entitled: "Note Secured by Deed of Trust," and any extension or
renewal thereof, in an amount of $460,428.86, and executed by
Trustor's Designator, Baldwin Vista Associates, L.P., a California
Limited Partnership in favor of Beneficiary or order; (2)
performance by Trustor's Designator of its obligations as described
or referenced in Section IV of that Agreement between Trustor's
Designator, Beneficiary and Robert Bein, William Frost &
Associates, dated November 12, 1991, and entitled "Second Three
Party Agreement for Otay Ranch Development Processing" also
referred to herein as the "Subject Agreement"; (3) performance by
Trustor of each agreement of Trustor as contained herein, including
without limitation, those set forth in Exhibit 2 hereto (related to
the protection of the security); and (3) performance under any
agreements that are secured by a trust deed, mortgage, lien, or
other encumbrance against the title to the property which is the
subject matter of this grant that is, or may be, superior to this
Deed of Trust. .
TO PROTECT THE SECURITY OF THIS DEED OF TRUST, Trustor
agrees, by the execution and delivery of this Deed of Trust and the
Note and Subject Agreement secured hereby, that provisions (1) to
(14), inclusive, of Exhibit 2 hereby are adopted and incorporated
herein and made a part hereof as fully as though set forth herein
at length.
To the extent permitted by Law, all of the personal property
described in the deed of trust or mortgage shall be deemed to be
fixtures and part of the real property. As to any part of such
personal property not deemed or permitted by law to be fixtures,
the deed of trust or mortgage shall constitute a security agreement
under the Uniform Commercial Code.
The undersigned Trustor requests that a copy of any Notice of
Default and of any Notice of Sale hereunder be mailed to the
undersigned at his address hereinbefore set forth.
Dated: Baldwin Building Contractors, L.P., a
california Limited Partnership
by: Baldwin Builders, Inc., a
California Corporation, its General
Partner
by:
Greg Smith, President.
[attach notary acknowledgment]
baldwn7a.wp Baldwin's Trust Deed
January 9, 1992 Page 2
l- ~~
-.,. .....- ,.'.. .._,~-----_._..-
Exhibit 1 to Trust Deed
Legal Description of Subject Property
12755 Dannan Court, San Diego, CA 92130
Parcel 3 of Map 15699
Assessor Parcel No. 304-390-41
That real property situated in the city of San Diego, County of San
Diego, State of California, commonly known as Parcel 3 of Parcel
Map No. 15699, in the City of San Diego, County of San Diego, State
of Califonria, filed in the Office of the County Recorder of San
Diego County, June 8, 1989 as File No. 89-302414 of Official
Records.
baldwn7a.wp Baldwin's Trust Deed
January 9, 1992 Page 4
ï- 3S'
-.
Exhibit 2 to Trust Deed
Standard provisions
To Protect the Security of This Deed of Trust, Trustor Agrees:
(1) To keep said property in good condition and repair; not
to remove or demolish any building thereon; to complete or restore
promptly and in good and workmanlike manner any building which may
be constructed, damaged or destroyed thereon and to pay when due
all claims for labor performed and materials furnished therefore;
to comply with all laws affecting said property or requiring any
alterations or improvements to be made thereon; not to commit or
permit waste thereof; not to commit, suffer or permit any act upon
said property in violation of law; to cultivate, irrigate,
fertilize, fumigate, prune, and do all other acts which from the
character or use of said property may be reasonably necessary, the
specific enumerations herein not excluding the general.
(2) To provide, maintain and deliver to Beneficiary such
certificates of fire, vandalism and malicious mischief insurance
satisfactory to and with loss payable to Beneficiary. The amount
collected under any fire or other insurance policy may be applied
by Beneficiary upon any indebtedness secured hereby and in such
order as Beneficiary may determine, or at option of Beneficiary the
entire amount so collected or any part thereof may be released to
Trustor.
Such application or release shall not cure or waive any
default or notice of default hereunder or invalidate any act done
pursuant to such notice. The provisions hereof are subject to the
mutual agreement of the parties as below set forth.
(3) To appear in and defend any action or proceeding
purporting to affect the security hereof or the rights or powers of
Beneficiary or Trustee; and to pay all costs and expenses,
including cost of evidence of title and attorney's fees in a
reasonable sum, in any such action or proceeding in which
Benef iciary or Trustee may appear, and in any suit brought by
Beneficiary to foreclose this Deed.
(4) To pay: at least ten days before delinquency all taxes
and assessments affecting said property, including assessments on
appurtenant water stock; subject to the mutual agreements of the
parties as below set forth, to pay when due, all encumbrances,
charges and liens, with interest, on said property or any part
thereof, which appear to be prior or superior hereto; all costs,
fees and expenses of this Trust.
baldwn7a.wp Baldwin's Trust Deed
January 9, 1992 Page 5
l - 3"
'''"'M . __".__m..'_·"'_
Should Trustor fail to make any payment or to do any act as
herein provided, then Beneficiary or Trustee, but without
obligation so to do and without notice to or demand upon Trustor
and without releasing Trustor from any obligation hereof, may:
make or do the same in such manner and to such extent as either may
deem necessary to protect the security hereof, Beneficiary or
Trustee being authorized to enter upon said property for such
purposes; appear in and defend any action or proceeding purporting
to affect the security hereof or the rights or powers of
Beneficiary or Trustee; pay, purchase, contest or compromise any
incumbrance, charge or lien which in the judgment of either appears
to be prior or superior hereto; and, in exercising any such powers,
pay necessary expenses, employ council and pay his reasonable fees.
(5) To pay immediately and without demand all sums so
expended by Beneficiary or Trustee, with interest from date of
expenditure at the amount allowed by law in effect at the date
hereof, and to pay for any statement provided for by law in effect
at the date hereof regarding the obligation secured hereby any
amount demanded by the Beneficiary not to exceed the maximum
allowed by law at the time when said statement is demanded.
(6) That any award of damages in connection with any
condemnation for public use of or injury to said property or any
part thereof is hereby assigned and shall be paid to Beneficiary
who may apply or release such moneys received by Beneficiary in the
same manner and with the same effect as above provided for
disposition of proceeds of fire or other insurance. The provisions
hereof are subject to the mutual agreements of the parties as below
set forth.
(7) That by accepting payment of any sum secured hereby
after its due date, Beneficiary does not waive his right either to
require prompt payment when due of all other sums so secured or to
declare default for failure so to pay.
(8) That at any time or from time to time, without liability
therefor and without notice, upon written request of Beneficiary
and presentation of this Deed and said note for endorsement, and
without affecting the personal liability of any person for payment
of the indebtedness secured hereby, Trustee may: reconvey any part
of said property; consent to the making of any map or plat thereof;
join in granting any easement thereon; or join in any extension
agreement or any agreement subordinating the lien or charge hereof.
(9) That upon written request of Beneficiary stating that
all sums secured hereby have been paid, and upon surrender of this
Deed and said note to Trustee for cancellation and retention and
baldwn7a.wp Baldwin's Trust Deed
January 9, 1992 Page 6
(-~l
-,....-......-..--- "'-.----..-
upon payment of its fees, Trustee shall reconvey, without warranty,
the property then held hereunder. The recitals in such
reconveyance of any matters of facts shall be conclusive proof of
the truthfulness thereof. The grantee in such reconveyance may be
described as "the person or persons legally entitled thereto." Five
years after issuance of such full reconveyance, Trustee may destroy
said note and this Deed (unless directed in such request to retain
them) .
(10) That as additional security, Trustor hereby gives to and
confers upon Beneficiary the right, power and authority, during the
continuance of these Trusts, to collect the rents, issues and
profits of said property, reserving unto Trustor the right, prior
to any default by Trustor in payment of any indebtedness secured
hereby or in performance of any agreement hereunder, to collect and
retain such rents, issues and profits as they become due and
payable. Upon any such default, Beneficiary may at any time
without notice, either in person, by agent, or by a receiver to be
appointed by a court, and without regard to the adequacy of any
security for the indebtedness hereby secured, enter upon and take
possession of said· property or any part thereof, in his own name
sue for or otherwise collect such rents, . issues and profits,
including those past due and unpaid, and apply the same, less costs
and expenses of operation and collection, including reasonable
attorney's fees, upon any indebtedness secured hereby, and in such
order as Beneficiary may determine. The entering upon and taking
possession of said property, the collection of such rents, issues
and profits and the application thereof as aforesaid, shall not
cure or waive any default or notice of default hereunder or
invalidate any act done pursuant to such notice.
(11) That upon default by Trustor in payment of any
indebtedness secured hereby or in performance of any agreement
hereunder, Beneficiary may declare all sums secured hereby
immediately due and payable by delivery to Trustee of written
declaration of default·and demand for sale and of written notice of
default and of election to cause to be sold said property, which
notice Trustee shall cause to be filed for record. Beneficiary also
shall deposit with Trustee of this Deed, said note and all
documents evidencing expenditures secured hereby.
After the lapse of such time as may then be required by law
following the recordation of said notice of default, and of notice
of sale having been given as then required by law, Trustee, without
demand on Trustor, shall sell said property at the time and place
fixed by it in said notice of sale, either as a whole or in
separate parcels, and in such order as it may be determined, at
public auction to the highest bidder for cash in lawful money of
baldwn7a.wp Baldwin's Trust Deed
January 9, 1992 Page 7
\-3~
<-- ------"-,---_..__.._----,
the united states, payable at time of sale. Trustee may postpone
sale of all or any portion of said property by public announcement
at such time and place of sale, and from time to time thereafter
may postpone such sale by public announcement at the time fixed by
the preceding postponement. Trustee shall deliver to such
purchaser its deed conveying the property so sold, but without any
covenant or warranty, express or implied. The recitals in such
deed of any matters or facts shall be conclusive proof of the
truthfulness thereof. Any person, including Trustor, Trustee, or
Beneficiary as hereinafter defined, may purchase at such sale.
After deducting all costs, fees and expenses of Trustee and
of this Trust, including cost of evidence of title in connection
with sale, Trustee shall apply the proceeds of sale to payment of:
all sums expended under the terms hereof, not then repaid, with
accrued interest at the amount allowed by law in effect at the date
hereof; all other sums secured hereby; and the remainder, if any,
to the person or persons legally entitled thereto.
(12) Beneficiary, or any successor in ownership of any
indebtedness secur·ed hereby, may from from time to time, by
instrument in writing, substitute a successor or successors to any
Trustee named herein or acting hereunder, which instrument,
executed by the Beneficiary and duly acknowledged and recorded in
the office of the recorder of the county or counties where said
property is situated, shall be conclusive proof of proper
substitution of such successor or Trustee or Trustees, who shall,
without conveyance from the Trustee predecessor, succeed to all its
title, estate, rights, powers and duties. said instrument must
contain the name of the original Trustor, Trustee and Beneficiary
hereunder, the document number or the book and page where this Deed
is recorded and the name and address of the new Trustee.
(13) That this Deed applies to, inures to the benefit of, and
binds all parties hereto, their heirs, legatees, devices,
administrators, executors, successors, and assigns. The term
Beneficiary shall mean the owner and holder, including pledgees, of
the note secured hereby, whether or not named as Beneficiary
herein. In this Deed, whenever the context so requires, the
masculine gender includes the feminine and/ or neuter, and the
singular number indicates the plural.
(14) That Trustee accepts this Trust when this Deed, duly
executed and acknowledged, is made a public record as provided by
law. Trustee is not obligated to notify any party hereto of
pending sale under any other Deed of Trust or of any action or
proceeding in which Trustor, Beneficiary or Trustee shall be a
party unless brought by Trustee.
baldwn7a.wp Baldwin's Trust Deed
January 9, 1992 Page 8
¡- 37
Recording Requested by:
City of Chula Vista,
California
and when recorded, mail to
City of Chula Vista
276 Fourth Avenue
Chula Vista, CA 91910
Attention: City Clerk
For Off~c~al Use Only
Assessor Parcel No: 304-390-43
DEED OF TRUST AND ASSIGNMENT OF RENTS
THIS DEED OF TRUST, made this January 14, 1992, for the
purposes of reference, and effective as of the date executed by the
parties, between the Baldwin Building Contractors, L.P., a
California Limited Partnership, herein called "Trustor", whose
address is 11975 El Camino Real, suite 200, San Diego, CA 92130,
Attention: Greg Smith, as desginee for Baldwin Vista Associates,
L.P. , a California Limited Partnership, Spring Mountain Escrow
Inc. , a California corporation, herein called I'Trustee" , and the
City of Chula Vista, herein called "Beneficiary", whose address is
276 Fourth Avenue, Chula Vista, California, as follows:
The Trustor irrevocably grants, transfers and assigns to
Trustee in trust, with power of sale, that property in San Diego
County, California, described as set forth in the attached Exhibit
1 to Deed of Trust, together with buildings, fixtures, equipment
and other assets located thereon or appurtenant thereto, and
together with the rents, issues and profits thereof, subject,
however, to the right, power and authority given to and conferred
upon Beneficiary by paragraph (10) of the provisions attached
hereto as Exhibit 2 to Deed of Trust, to collect and apply such
rents, issues and profits,
baldwn8.wp Baldwin's Trust Deed
January 9, 1992 Page 1
ì. - '10
_.._.~~ .---~.-
FOR THE PURPOSE OF SECURING: (1) payment of the indebtedness
evidenced by one promissory note dated January January 14, 1992,
and entitled: "Note Secured by Deed of Trust," and any extension
or renewal thereof, in an amount of $460,42S.S6, and executed by
Trustor's Designator, Baldwin Vista Associates, L.P., a California
Limited Partnership in favor of Beneficiary or order; (2)
performance by Trustor's Designator of its obligations as described
or referenced in Section IV of that Agreement between Trustor's
Designator, Beneficiary and Robert Bein, William Frost &
Associates, dated November 12, 1991, and entitled "Second Three
Party Agreement for Otay Ranch Development Processing" also
referred to herein as the "Subject Agreement"; (3) performance by
Trustor of each agreement of Trustor as contained herein, including
without limitation, those set forth in Exhibit 2 hereto (related to
the protection of the security); and (3) performance under any
agreements that are secured by a trust deed, mortgage, lien, or
other encumbrance against the title to the property which is the
subject matter of this grant that is, or may be, superior to this
Deed of Trust.
TO PROTECT THE SECURITY OF THIS DEED OF TRUST, Trustor
agrees, by the execution and delivery of this Deed of Trust and the
Note and Subject Agreement secured hereby, that provisions (1) to
(14), inclusive, of Exhibit 2 hereby are adopted and incorporated
herein and made a part hereof as fully as though set forth herein
at length.
To the extent permitted by Law, all of the personal property
described in the deed of trust or mortgage shall be deemed to be
fixtures and part of the real property. As to any part of such
personal property not deemed or permitted by law to be fixtures,
the deed of trust or mortgage shall constitute a security agreement
under the Uniform Commercial Code.
The undersigned Trustor requests that a copy of any Notice of
Default and of any Notice of Sale hereunder be mailed to the
undersigned at his address hereinbefore set forth.
Dated: Baldwin Building Contractors, L.P., a
California Limited Partnership
by: Baldwin Builders, Inc., a
California Corporation, its General
Partner
by:
Greg Smith, President.
[attach notary acknowledgment]
baldwnS.wp Baldwin's Trust Deed
January 9, 1992 Page 2
I -4 (
." ~~_.._._--- ,.--.---"- -..-.
Exhibit 1 to Trust Deed
Legal Description of Subject Property
12777 Dannan Court, San Diego, CA 92130
Parcel 5 of Map 15699
Assessor Parcel No. 304-390-43
That real property situated in the City of San Diego, County of San
Diego, State of California, commonly known as Parcel 5 of Parcel
Map No. 15699, in the City of San Diego, County of San Diego, State
of Califonria, filed in the Office of the County Recorder of San
Diego County, June 8, 1989 as File No. 89-302414 of Official
Records.
baldwn8.wp Baldwin's Trust Deed
January 9, 1992 Page 4
ï-~
--...~._._..__....,.
Exhibit 2 to Trust Deed
Standard provisions
To Protect the Security of This Deed of Trust, Trustor Agrees:
(1) To keep said property in good condition and repair; not
to remove or demolish any building thereon; to complete or restore
promptly and in good and workmanlike manner any building which may
be constructed, damaged or destroyed thereon and to pay when due
all claims for labor performed and materials furnished therefore;
to comply with all laws affecting said property or requiring any
alterations or improvements to be made thereon; not to commit or
permit waste thereof; not to commit, suffer or permit any act upon
said property in violation of law; to cultivate, irrigate,
fertilize, fumigate, prune, and do all other acts which from the
character or use of said property may be reasonably necessary, the
specific enumerations herein not excluding the general.
(2) To provide, maintain and deliver to Beneficiary such
certificates of fire, vandalism and malicious mischief insurance
satisfactory to and with loss payable to Beneficiary. The amount
collected under any fire or other insurance policy may be applied
by Beneficiary upon any indebtedness secured hereby and in such
order as Beneficiary may determine, or at option of Beneficiary the
entire amount so collected or any part thereof may be released to
Trustor.
Such application or release shall not cure or waive any
default or notice of default hereunder or invalidate any act done
pursuant to such notice. The provisions hereof are subject to the
mutual agreement of the parties as below set forth.
(3) To appear in and defend any action or proceeding
purporting to affect the security hereof or the rights or powers of
Beneficiary or Trustee; and to pay all costs and expenses,
including cost of evidence of title and attorney I s fees in a
reasonable sum, in any such action or proceeding in which
Beneficiary or Trustee may appear, and in any suit brought by
Beneficiary to foreclose this Deed.
(4) To pay: at least ten days before delinquency all taxes
and assessments affecting said property, including assessments on
appurtenant water stock; subject to the mutual agreements of the
parties as below set forth, to pay when due, all encumbrances,
charges and liens, with interest, on said property or any part
thereof, which appear to be prior or superior hereto; all costs,
fees and expenses of this Trust.
baldwn8.wp Baldwin's Trust Deed
January 9, 1992 Page 5
,- 4-3
---.,.-.,---..,- .._--- ._- "."- _. ~_....,
Should Trustor fail to make any payment or to do any act as
herein provided, then Beneficiary or Trustee, but without
obligation so to do and without notice to or demand upon Trustor
and without releasing Trustor from any obligation hereof, may:
make or do the same in such manner and to such extent as either may
deem necessary to protect the security hereof, Beneficiary or
Trustee being authorized to enter upon said property for such
purposes; appear in and defend any action or proceeding purporting
to affect the security hereof or the rights or powers of
Beneficiary or Trustee; pay, purchase, contest or compromise any
incumbrance, charge or lien which in the judgment of either appears
to be prior or superior hereto; and, in exercising any such powers,
pay necessary expenses, employ council and pay his reasonable fees.
(5) To pay immediately and without demand all sums so
expended by Beneficiary or Trustee, with interest from date of
expenditure at the amount allowed by law in effect at the date
hereof, and to pay for any statement provided for by law in effect
at the date hereof regarding the obligation secured hereby any
amount demanded by the Beneficiary not to exceed the maximum
allowed by law at the time when said statement is demanded.
(6) That any award of damages in connection with any
condemnation for public use of or injury to said property or any
part thereof is hereby assigned and shall be paid to Beneficiary
who may apply or release such moneys received by Beneficiary in the
same manner and with the same effect as above provided for
disposition of .proceeds of fire or other insurance. The provisions
hereof are subject to the mutual agreements of the parties as below
set forth.
(7) That by accepting payment of any sum secured hereby
after its due date, Beneficiary does not waive his right either to
require prompt payment when due of all other sums so secured or to
declare default for failure so to pay.
(8) That at any time or from time to time, without liability
therefor and without notice, upon written request of Beneficiary
and presentation of this Deed and said note for endorsement, and
without affecting the personal liability of any person for payment
of the indebtedness secured hereby, Trustee may: reconvey any part
of said property; consent to the making of any map or plat thereof;
join in granting any easement thereon; or join in any extension
agreement or any agreement subordinating the lien or charge hereof.
(9) That upon written request of Beneficiary stating that
all sums secured hereby have been paid, and upon surrender of this
Deed and said note to Trustee for cancellation and retention and
baldwn8.wp Baldwin's Trust Deed
January 9, 1992 Page 6
l-~~
-"-_.. ...-
upon payment of its fees, Trustee shall reconvey, without warranty,
the property then held hereunder. The recitals in such
reconveyance of any matters of facts shall be conclusive proof of
the truthfulness thereof. The grantee in such reconveyance may be
described as "the person or persons legally entitled thereto." Five
years after issuance of such full reconveyance, Trustee may destroy
said note and this Deed (unless directed in such request to retain
them) .
(10) That as additional security, Trustor hereby gives to and
confers upon Beneficiary the right, power and authority, during the
continuance of these Trusts, to collect the rents, issues and
profits of said property, reserving unto Trustor the right, prior
to any default by Trustor in payment of any indebtedness secured
hereby or in performance of any agreement hereunder, to collect and
retain such rents, issues and profits as they become due and
payable. Upon any such default, Beneficiary may at any time
without notice, either in person, by agent, or by a receiver to be
appointed by a court, and without regard to the adequacy of any
security for the i~debtedness hereby secured, enter upon and take
possession of said property or any part thereof, in his own name
sue for or otherwise collect such rents, issues and profits,
including those past due and unpaid, and apply the same, less costs
and expenses of operation and collection, including reasonable
attorney's fees, upon any indebtedness secured hereby, and in such
order as Beneficiary may determine. The entering upon and taking
possession of said property, the collection of such rents, issues
and profits and the application thereof as aforesaid, shall not
cure or waive any default or notice of default hereunder or
invalidate any act done pursuant to such notice.
(11) That upon default by Trustor in payment of any
indebtedness secured hereby or in performance of any agreement
hereunder, Beneficiary may declare all sums secured hereby
immediately due and payable by delivery to Trustee of written
declaration of default and demand for sale and of written notice of
default and of election to cause to be sold said property, which
notice Trustee shall cause to be filed for record. Beneficiary also
shall deposit with Trustee of this Deed, said note and all
documents evidencing expenditures secured hereby.
After the lapse of such time as may then be required by law
following the recordation of said notice of default, and of notice
of sale having been given as then required by law, Trustee, without
demand on Trustor, shall sell said property at the time and place
fixed by it in said notice of sale, either as a whole or in
separate parcels, and in such order as it may be determined, at
public auction to the highest bidder for cash in lawful money of
baldwn8.wp Baldwin's Trust Deed
January 9, 1992 Page 7
1-4s
,...-- -.....---....----.--.-.,--.-.--
the United states, payable at time of sale. Trustee may postpone
sale of all or any portion of said property by pUblic announcement
at such time and place of sale, and from time to time thereafter
may postpone such sale by public announcement at the time fixed by
the preceding postponement. Trustee shall deliver to such
purchaser its deed conveying the property so sold, but without any
covenant or warranty, express or implied. The recitals in such
deed of any matters or facts shall be conclusive proof of the
truthfulness thereof. Any person, including Trustor, Trustee, or
Beneficiary as hereinafter defined, may purchase at such sale.
After deducting all costs, fees and expenses of Trustee and
of this Trust, including cost of evidence of title in connection
with sale, Trustee shall apply the proceeds of sale to payment of:
all sums expended under the terms hereof, not then repaid, with
accrued interest at the amount allowed by law in effect at the date
hereof; all other sums secured hereby; and the remainder, if any,
to the person or persons legally entitled thePeto.
(12) Beneficiary, or any successor in ownership of any
indebtedness secur·ed hereby, may from from time to time, by
instrument in writing, substitute a successor or successors to any
Trustee named herein or acting hereunder, which instrument,
executed by the Beneficiary and duly acknowledged and recorded in
the office of the recorder of the county or counties where said
property is situated, shall be conclusive proof of proper
substitution of such successor or Trustee or Trustees, who shall,
without conveyance from the Trustee predecessor, succeed to all its
title, estate, rights, powers and duties. Said instrument must
contain the name of the original Trustor, Trustee and Beneficiary
hereunder, the document number or the book and page where this Deed
is recorded and the name and address of the new Trustee.
(13) That this Deed applies to, inures to the benefit of, and
binds all parties hereto, their heirs, legatees, devices,
administrators, executors, successors, and assigns. The term
Beneficiary shall mean the owner and holder, including pledgees, of
the note secured hereby, whether or not named as Beneficiary
herein. In this Deed, whenever the context so requires, the
masculine gender includes the feminine and/ or neuter, and the
singular number indicates the plural.
(14) That Trustee accepts this Trust when this Deed, duly
executed and acknowledged, is made a public record as provided by
law. Trustee is not obligated to notify any party hereto of
pending sale under any other Deed of Trust or of any action or
proceeding in which Trustor, Beneficiary or Trustee shall be a
party unless brought by Trustee.
baldwn8.wp Baldwin's Trust Deed
January 9, 1992 Page 8
¡- 410
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. , EXHIBIT .C'
SCOPE OF SERVICES
0-. .
A Consultant agrees to perform the following Scope of Services as part of the General
Plan Amendment and General Development Plan/Co=unity Plan planning process
for the Otay Ranch. The scope is general in nature in that the final products will be
determined during the process through interacûon with the Technical, Citizen and
Executive Staff Committees. For this reason the scope is being prepared on a time
and materials basis, and actual costs may vary from estimated costs.
TASK 01 Perform research as directed by the Executive Staff Committee on issues
pertaining to the preparation of the General Plan Amendments and the
General Development Plan/Co=unity Plan for the Otay Ranch Project.
Research questions to be investigated and documented in the form of issue
or special study papers.
TASK 02 Provide assistance to Project Team for review of the Resource Management
Plan submitted by the applicant This review will include investigation of
concerns from other agencies and interested parties. Prepare an analysis of
the County of San Diego Resource Protection Ordinance as it relates to the
Resource Management Plan.
TASK 03 Conduct analysis for and prepare the texts, maps and graphics for the General
Plan Amendments and the General Development Plan/Co=unity Plan
. required for both the City and County. This .task also involves preparing
portions of the General Develópment Plan text as detailed on attached GDP
outline. This task will entail reviewing other consultants' w.ork on the
GDP /Co=unity Plan to assist the City of Cbula Vista and the County of
San Diego in conforming with the requirements of a General Development
Plan and CO=unity Plan.
TASK 04 Attendance at Citizen Committees on issues pertaining to the preparation of
the General Plan Amendments and the General Development
Plan/Co=unity Plan. 0
TASK 05
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. Robert Bem, William Frost & Associates November 7, 1991
Contract Agreement for IN 500295 Page 2 of 5
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TASK 06 Provide coordination, as requested by Executive Staff Committee, on regional
issues outside the Otay Ranch which have a continuing impact on the
planning of the Otay Ranch. Such coordination involves meeting with various
organizations and interested parties on issues such as the designation of SR-
125 as a toll road, the establishment of regional biological conservation areas
and wildlife corridors, the planning of the Otay Valley Regional Park, and the
study of fixed rail transit extension into the South Bay.
. TASK fJ7 Make presentations to groups interested in the planning of the Otay Ranch.
Such groups may include, but are not limited to, professional planning
organizations (i.e. American Planning Association), local citizen groups other
than the Citizen Committees, such as "Crossroads", and other interested
parties, as requested by the General Manager.
TASK 08 Attend and prepare staff reports, graphics and other material as required for
workshops and public hearings.
TASK 09 Provide environmental coordination. This effort involves weekly monitoring
of the progress of the Environmental Impact Review (Em) consultant, the
coordination of the EIRreview process and the preparation of staff reports.
This effort does not include production of environmental documentation.
..
TASK 10 Provide Public Facilities review and coordination. This effort involves
attempting to resolve differences between standards and policies of the City
of Chula Vista and County of San Diego. This work effort would continue
through adoption of the GDP /Co=unity Plan.
TASK 11 This task is a budgeted amount for anticipated work which may be requested
that is not included in the above taSks. Authorization of this work will be
made by signed "Additional Work Orders" to be approved by the General
Manager prior to initiation of the additional work. This budget is based upon
a 10% contingency estimate.
Exn USIONS
Work relating to traffic engineering and analysis is excluded from this Scope of Services.
The traffic consulting firm of JHK and Associates will be submitting a separate addendum
to the City .of Chula Vista for the associated traffic work items.
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- Robert Bein, William Frost & Associates November 7,1991
Contract Agreement for IN 500295 Page 3 of 5
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The scope is general in nature in that the final products will be determined during the
process through interaction with the Technical, Citizen and Executive Staff Committees.
For this reason the scope is being prepared on a time and materials basis, and actual costs
may vary from estimated costs.
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Robert Bein, William Frost & Associates November 7, 1991
.. Contract Agreement for IN 500295 Page 4 of 5
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EXHIBIT "D"
COMPENSATION
B. Qient agrees to compensate Consultant for such services as follows unless otherwise
agreed upon by both parties:
Monthly on a time and materials basis based upon 2.75 times the wages paid for all
personnel working on the project, with an iniûal estimated budget of $614,514.55,
which includes a 15% contingency for additional work requests outside the Scope of
Services. This budget amount is for authorizaûon purposes only. Should the total
of the monthly billings reach eighty percent (80%) of the budget amount, Client and
Consultant will review the status of the work to determine the need for an increase
in the budget amoUnt, and whether addiûonal budget authorizaûonto complete the
project is appropriate.
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~ Robert Bein, William Frost & Associates November 7, 1991
Contract Agreement for IN 500295 Page 5 of 5
EXHIBIT "Dft (Continued) --....
ESTlMAJED BUDGET
MONTH ESTIMA TRD BUDGET
July 1991 - 65,927.59
August 1991 82,797.92
September 1991 70,289.04
October 1991 50,000.00
November 1991 50,000.00
December 1991 50,000.00
January 1992 30,000.00
February 1992 30,000.00
March 1992 30,000.00
April 1992 30,000.00
May 1992 30,000.00
June 1992 30.000.00
Subtotal $549,014.55
,
Extra Work - 15% Contingency (October 1991-June 1992) 49,000.00
Estimated direct cost of reimbursable items (October 1991-June 1992) 16.500.00
TOTAL ~614.514.55
Addendum #5 is requesting that $614,514.55 be authorized and that billing will be on a time
and materials basis.
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~bert CJJei1l., William Prost ~c!3lssociates
PROFESSIONAL ENGINEERS, PLANNERS & SURVEYORS
EXHIBIT D
AVERAGE EMPLOYEE COMPENSATION SCHEDULE
Effective August 1, 1991
OFFICE PERSONNEL
Principal $ 45.00
Project Director 40.00
Structural Engineer 35.00
Project Manager/Engineer 31.00
Senior Engineer 29.00
Registered Engineer 27.00
Senior Designer 25.00
Design Engineer 24.00
Designer (CAD D) 22.00
Mapping Calculator 23.00
Designer/Planner 20.00
Senior Draftsman/Technician 19.00
Draftsman/Graphic Artist 17.00
Environmental Analyst 16.00
Engineering/Planning Aide 13.00
COMPUTER & OTHER SERVICE FEES
Computer Aided Design and Drafting 13.00
P.C. Work Station 5.00
Clerical 11.00
Consultation Relative to Legal Actions 82.00
Note:
Blueprinting. reproduction, messenger service and other direct expenses will be charged at cost. A subconsultant Management Fee of
fifteen (15) percent will be added to the direct cost of all subconsultant services to provide for the cost of administration, subconsultant
consultation, and insurance.
"Prg[essioTLa1 Service SiTLce 1944
71 NORTH FOURTH AVENUE' CHULA VISTA, CALIFORNIA 91910-1007' (619) 426-5400' FAX (619) 426-1575
OFFICES IN IRVINE. CORONA. PALM DESERT. SACRAMENTO· TEMECULA
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