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HomeMy WebLinkAbout2009/07/14 Item 5CITY COUNCIL AGENDA STATEMENT ~~~ CITY OF CHULA VISTA 7/14/09, Item S ITEM TITLE: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AN AMENDMENT TO THE MAINTENANCE AGREEMENT BETWEEN K. HOVNANIAN AT BELLA LAGO, BELLA LAGO, LLC, AND THE CITY OF CHULA VISTA FOR THE BASIN MAINTENANCE, GRADING MITIGATION, EROSION, SEDIMENTATION, AND NPDES COMPLIANCE WITH THE BELLA LAGO PROJECT AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE AMENDMENT OF THE GRANT OF EASEMENTS AND MAINTENANCE AGREEMENT FOR CHULA VISTA TRACT NO. 03-03, BELLA LAGO, BETWEEN K. HOVNANIAN AT BELLA LAGO, LLC, AND BELLA LAGO, LLC, AND THE CITY REGARDING MAINTENANCE OF PRNATE FACILITIES WITHIN THE PUBLIC RIGHT OF WAY. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE AMENDMENT TO SUBDNISION IMPROVEMENT AGREEMENT FOR CHULA VISTA TRACT N0. 03-03, BELLA LAGO, BETWEEN K. HOVNANIAN AT BELLA LAGO, LLC, AND BELLA LAGO, LLC. AND THE CITY. SUBMITTED BY: DEPUTY ITY MANAGER/DEVELOPMENT SERVICES DIItECT01 REVIEWED BY: CITY MANAGER 4/STHS VOTE: YES ^ NO SUMMARY K. Hovnanian would like to donate Lot "G" of Bella Lago Map No. 15339 to the U.S. Fish and Wildlife Service. In order to complete the donation, Lot °`G" must be excluded from all agreements between the City and K. Hovnanian. Title for the lot must be freed of all encumbrances by the City of Chula Vista, Bella Lago, LLC, and K. Hovnanian through Council Approval and a recorded resolution. Also, the City of Chula Vista, Bella Lago LLC, and K. Hovnanian desire to extend the term of the SIA for a period of two additional years. ENVIRONMENTAL REVIEW 5-1 7/14/09, Item '~ Page 2 of 3 The Environmental Review Coordinator has reviewed the proposed activity for compliance with the California Environmental Quality Act (CEQA) and has determined that the activity is not a "Project" as defined under Section 15378(b)(4) of the State CEQA Guidelines, because this action involves a governmental fiscal activity utilizing previously authorized funds, which will not result in a potentially significant physical impact on the environment; therefore, pursuant to Section 15060(c)(3) of the State CEQA Guidelines the activity is not subject to CEQA. Thus, no environmental review is necessary. RECOMMENDATION Council approves the Resolutions. BOARDS/COMMISSION RECOMMENDATION Not applicable. DISCUSSION The Bella Lago Subdivision, located just east of Rolling Hills Ranch, north of Proctor Valley Road, is required to dedicate certain lands to the US Fish and Wildlife Service as a condition of development. The Fish and Wildlife Service require that all lands offered for dedication be free and clear of any encumbrances. Tonight's action will amend the following agreements recorded against the Bella Lago project to detach them from lot "G", the azea to be dedicated to the US Fish and Wildlife Service as preserve lands. • The Bella Lago Basin Maintenance, Grading Mitigation, and Erosion, Sedimentation and NPDES Compliance Agreement dated June 14, 2005, and recorded July 28, 2005 as document no. 2005-0640362 of Official Records of the San Diego County Recorder. This agreement sets forth the developer's obligation to maintain the project during the build out period. • The Grant of Easements, License & Maintenance Agreement dated May 10, 2006, and recorded May 10, 2006 as document no. 2006-0331345 of Official Records of the San Diego County Recorder. This agreement sets for the HOA's requirements to maintain certain azeas within the public right of way. • The Subdivision Improvement Agreement approved by Resolution 2006-108 on April 11, 2006. This agreement sets forth the developer's obligation to construct the public infrastructure associated with the project. In addition to the detachment of Lot "G", the developer has requested that the term of the Subdivision Improvement Agreement be extended for a period of two yeazs to complete the partially improved project. The completion date is June 1, 2011 under this amended agreement and will provide the developer some relief during this economic downturn. DECISION MAKER CONFLICT Staff has reviewed the property holdings of the City Council and has found no property holdings within 500 feet of the boundaries of the property, which is the subject of this action. 5-2 7/14/09, Item S Page 3 of 3 FISCAL IMPACT There is no direct fiscal impact to the City. Costs associated with the processing of this item will be borne by the developer. Prepared 6y: Rima Thomas, Associate Engineer, Development Services Department J:\EngineerWGENDA\CAS2009\07-14-09\Council Agenda Statement for Bella Lago.doc 5-3 RESOLUTION NO. 2009- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AN AMENDMENT TO THE MAINTENANCE AGREEMENT BETWEEN K. HOVNANIAN AT BELLA LAGO, BELLA LAGO, LLC, AND THE CITY OF CHULA VISTA FOR THE BASIN MAINTENANCE, GRADING MITIGATION, EROSION, SEDIMENTATION, AND NPDES COMPLIANCE WITH THE BELLA LAGO PROJECT AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT WHEREAS, the City, Bella Lago, and Hovnanian entered into that certain Bella Lago Basin Maintenance, Grading Mitigation, and Erosion, Sedimentation and NPDES Compliance Agreement dated June 14, 2005, which was recorded July 28, 2005 as document no. 2005- 0640362 of Official Records of the San Diego County Recorder (the "Agreement"); and WHEREAS, the City, Bella Lago, and Hovnanian now desire to amend the Agreement to exclude from the legal description of the Bella Lago property and from the terms and provisions of the Agreement Lot G of Map No. 15339. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby approve the Amendment to the Basin Maintenance, Grading Mitigation, Erosion, Sedimentation, and NPDES Compliance Agreement (Bella Lago Grading) between the City of Chula Vista and K. Hovnanian at Bella Lago, and LLC, Bella Lago, LLC, a copy of which shall be kept on file in the office of the City Clerk. BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby authorized to execute said Agreement. Presented by: Approved as to form by: '~ -, `~ ~.~ ~ 'rc~~'~~L/J Gazy Halbert, P.E., AICP 1~~?~ i e ~~ Deputy City Manager /Director of Development Services Crt~Attorney 5-4 RESOLUTION N0.2009- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE AMENDMENT OF THE GRANT OF EASEMENTS AND MAINTENANCE AGREEMENT FOR CHULA VISTA TRACT NO. 03-03, BELLA LAGO, BETWEEN K. HOVNANIAN AT BELLA LAGO; LLC, AND BELLA LAGO, LLC, AND THE CITY REGARDING MAINTENANCE OF PRIVATE FACILITIES WITHIN THE PUBLIC RIGHT OF WAY WHEREAS, the City and Hovnanian entered into that certain Grant of Easements, License & Maintenance Agreement dated May 10, 2006, which was recorded May 10, 2006 as document no. 2006-0331345 of Official Records of the San Diego County Recorder (the "Agreement"); and WHEREAS, pursuant to the Agreement, the City granted to Hovnanian easements for landscape maintenance purposes upon, over and across the HOA Maintained Public Areas in order to facilitate the obligations of Hovnanian as set forth in Supplemental Subdivision Improvement Agreement, recorded on May 10, 2006 as document no. 2006-0331343 of Official Records of the San Diego County Recorder; and WHEREAS, the City and Hovnanian now desire to amend the Agreement to exclude from the legal description of the Property and from the terms and provisions of the Agreement Lot G of Map No. 15339. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby approve the amendment of the Grant of Easements and Maintenance Agreement for the grant of easements and maintenance for Chula Vista Tract No. 03-03, Bella Lago, a copy of which shall be kept on file in the office of the City Clerk. BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby authorized to execute said Agreement on behalf of the City of Chula Vista. Presented by: Approved as to form by Gary Halbert, P.E., AICP Deputy City Manager / Director of Development 5-5 RESOLUTION NO. 2009- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE AMENDMENT TO SUBDIVISION IMPROVEMENT AGREEMENT FOR CHULA VISTA TRACT NO. 03-03, BELLA LAGO, BETWEEN K. HOVNANIAN AT BELLA LAGO, LLC, AND BELLA LAGO, LLC, AND THE CITY WHEREAS, the City Council of the City of Chula Vista approved a Tentative Map for the subdivision of land known as Bella Lago, (CVT 03-03) with Resolution 2003-143; and WHEREAS, the City Council of the City of Chula Vista approved a Final Subdivision Map and a Subdivision Improvement Agreement for Bella Lago, (CVT 03-03) with Resolution 2006-108 on April 11, 2006; and WHEREAS, the Bella Lago Subdivision Improvement Agreement ("SIA") and the associated security was for the purpose of insuring the installation of improvements and/or land development work as required by the Title 18 of the Chula Vista Municipal Code for the subdivision pursuant to the Subdivision Map Act; and WHEREAS, the SIA required Subdivider to complete all Improvement Work, as defined in the SIA, on or before the second anniversazy date of Council approval of the SIA; and, WHEREAS, Subdivider has installed some improvements for the Bella Lago subdivision, but has not completed all of the Improvement Work, and has requested that the term of the Subdivision Improvement Agreement be extended for a period of two years to complete the Improvement Work; and, WHEREAS, the City of Chula Vista is desirous of extending the term of the SIA as long as the Subdivider agrees that all improvements will be completed to the city's satisfaction by June 1, 2011. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby approve the Amendment to the Subdivision Improvement Agreement ("SIA") between the City of Chula Vista and K. Hovnanian at Bella Lago, and LLC, Bella Lago, LLC, a copy of which shall be kept on file in the office of the City Clerk. Presented by: Gary Halbert, P.E., AICP Deputy City Manager /Director of Development Sei 5-6 Approved as to form by: THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY' S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL Dated: `~li f c) -n Amendment to Bella Lago Basin Maintenance, Grading Mitigation, and Erosion, Sedimentation and NPDES Compliance Agreement Between the City of Chula Vista, Bella Lago, LLC, and K. Hovnanian at Bella Lago, LLC 5-7 RECORDING REQUESTED BY AND WHEN RECORDED, MAIL TO: K. HOVNANIAN AT BELLA LAGO, LLC 800 N. Haven Ave., Suite 300 Ontario, California 91764 Attention: Legal Department SPACE ABOVE THIS AMENDMENT TO BELLA LAGO BASIN MAINTENANCE, GRADING MITIGATION, AND EROSION, SEDIMENTATION AND NPDES COMPLIANCE AGREEMENT This AMENDMENT TO BELLA LAGO BASIN MAINTENANCE, GRADING MITIGATION, AND EROSION, SEDIMENTATION AND NPDES COMPLIANCE AGREEMENT (this "Amendment') is made as of this day of , 2009, by and among the CITY OF CHULA VISTA, a Califomia municipal corporation ("City"), BELLA LAGO, LLC, a Califomia limited liability company (`Bella Lago"), and K. HOVNANIAN AT BELLA LAGO, LLC, a California limited liability company ("Hovnanian") with respect to the following facts: RECITALS A. The City, Bella Lago, and Hovnanian entered into that certain Bella Lago Basin Maintenance, Grading Mitigation, and Erosion, Sedimentation and NPDES Compliance Agreement dated June 14, 2005, which was recorded 7uly 28, 2005 as document no. 2005-0640362 of Official Records of the San Diego County Recorder (the "Agreement"), all the terms and provisions of which (including all exhibits) are incorporated herein by reference. B. The City, Bella Lago, and Hovnanian now desire to amend the Agreement to exclude from the legal description of the Bella Lago property and from the terms and provisions of the Agreement Lot G of Map No. 15339. NOW, THEREFORE, in consideration of the foregoing recitals and other valuable consideration, the receipt and sufficiency of which is hereby aclmowledged, the parties hereto agree as follows: 1. Lot G. Lot G, as depicted in Chula Vista Tract No. 03-03, Map No. 15339, recorded on May 10, 2006 at File No. 2006-0331344 of Official Records of the San Diego County Recorder, is excluded and released from the terms and provisions of the Agreement and from the legal description of the Bella Lago property. 2. Defined Terms. Capitalized terms not otherwise defined in this Amendment shall have the same meaning as set forth in the Agreement. Exhibit "A" to the Agreement, which is the legal description of the Bella Lago property, is replaced with the legal description set forth on Schedule 1 attached hereto. 3. Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be an original and all of which shall constitute one and the same instnrment. DOC#36901v2 _1_ 5-8 4. All Other Terms and Provisions. Except as expressly set forth herein, al] other terms and provisions of the Agreement shall remain unamended and in full force and effect. 5. Recordine. The parties to this Amendment shall cause the Amendment to be recorded in the Official Records of the County of San Diego. 6. Authority of Signatories. Each signatory and party to this Amendment warrants and represents to the other parties that it has legal authority, capacity and direction from its principal to enter into this Amendment, and that all resolutions and other necessary actions have been taken so as to enable it to enter into this Amendment jNext page is Signature Page] DOC#36901/2 _Z_ 5-9 Amendment to BeIla Lago Basin Maintenance, Grading Mitigation, and Erosion, Sedimentation and NPDES Compliance Agreement IN WITNESS WHEREOF, the parties to this Amendment have entered into this Amendment as of the day and year first above written. "BEi.i.A LAGD" BELLA LAGO, LLC, a California limited liability company By: BELLAGIO CAPITAL, INC., a California corporation, its grog Memb r By: /I Timothy W' son, Presi ent "CIT'Y" CITY OF CHULA VISTA, a municipal corporation By: Cheryl Cox, Mayor Attest: By: Donna Norris, City Clerk Approved as to form: By: Bart Miesfeld, City Attorney "HOVNANIAN" R. Hovnanian at Bella Lago, LC a California limited liabili om ny By: Name: ~ C(~ Its: iS 10 DOC#36901v2 -3- 5-10 SCHEDULEI LEGAL DESCRIPTION OF BELLA LAGO PROPERTY Lots I through 139, inclusive, and Lots A, B, C, D, E and F of Chula Vista Tract No. 03-03 Bella Lago, in the City of Chula Vista, County of San Diego, State of California, according to Map thereof No. 15339, filed in the Office of the County Recorder of the San Diego County, May 10, 2006. DOC#36901v2 ~_ 5-11 State of California County of ~I,it.~t-PiS o On ~iz.tk. ~- ~ 2C~ L`~ ,before me, i4ib~l~ ~. ~VF,t-ff~ q;r~ (~o{Z~ l~u,~ It c (insert name d title of the officer) Notary Public, personally appeazed ~ ima-Ff.~'1 '~ , l s o-h ,who proved to me on the basis of satisfactory evidence to be the petson($j whose name( is/aFe subscribed to the within instrument, and acknowledged to me that he/s executed the same in his/herltheir authorized capacity(ies), and that by his/herkheir signature(s) on the instrument the person{,sj, or the entity upon behalf of which the person(~j acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Notary Public MOON R WATERBURY Commisslon s 17B93BJ Notary Publlc - CaIlPOrnla son Dlogo county ~~ MyCarrm.EgynesFab2~,2012 (seal) State of California County of ~~MCI \(l0 On (IUf1C2. ~1, ?~X1q ,before me, M[1n_ ~m~Q.'`QZ,.I ~V~ ~'~~1C . insert name and title of th officer) Notary Public, personally appeared ~~m ~Qi'C'la ,who proved to me on the basis of satisfactory evidence to be the person( whose name(, is/sre-subscribed to the within instrument, and acknowledged to me that he/s§ekhey executed the same in his/herftheir authorized capacity(i and that by his,4ierftl:eir signature~'j on the instrument the person,(., or the entity upon behalf o which the person( acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. No tblic DOC#36901v2 _5_ 5-12 ynnnnm mmmxxunxiMONICA TELL~El mixx~u= __ COMM. #1801103 i Notary Public - California o a San Elernardino Ccunty t~Comm. Expires Jun. 10, 2012 i~umx x ,wxrmiNtx oxnrxrxixnwxx~ (seal) THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL Dated: C~~1 Amendment to Grant of Easements, License and Maintenance Agreement For Chula Vista Tract No. 03-03 Bella Lago Between the City of Chula Vista, and K. Hovnanian at Bella Lago, LLC 5-13 ..~~y n~~~~~~~y RECORDING REQUESTED BY AND WHEN RECORDED, MAIL TO: K. HOVNANIAN AT BELLA LAGO, LLC 800 N. Haven Ave., Suite 300 Ontario, California 91764 Attention: Legal Department AMENDMENT TO GRANT OF EASEMENTS. LICENSE & MAINTENANCE AGREEMENT CHULA VISTA TRACT NO. 03-03 BELLA LAGO This AMENDMENT TO GRANT OF EASEMENTS, LICENSE & MAINTENANCE AGREEMENT CHULA VISTA TRACT NO. 03-03 BELLA LAGO (this "Amendment") is made as of this day of 2009, by and between the CITY OF CHULA VISTA, a California municipal corporation ("City") and K. HOVNANIAN AT BELLA LAGO, LLC, a California limited liability company ("Hovnanian"), with respect to the following facts: RECITALS A. The City and Hovnanian entered into that certain Grant of Easements, License & Maintenance Agreement dated May 10, 2006, which was recorded May 10, 2006 as document no. 2006-0331345 of Official Records of the San Diego County Recorder (the "Agreement"), all the terms and provisions of which (including all exhibits) aze incorporated herein by reference. B. Pursuant to the Agreement, the City granted to Hovnanian easements for landscape maintenance purposes upon, over and across the HOA Maintained Public Areas in order to facilitate the obligations of Hovnanian as set forth in Supplemental Subdivision Improvement Agreement, recorded on May 10, 2006 as document no. 2006-0331343 of Official Records of the San Diego County Recorder, all terms and provisions of which (including all exhibits) aze incorporated herein by reference. E. The City and Hovnanian now desire to amend the Agreement to exclude from the legal description of the Property and from the terms and provisions of the Agreement Lot G of Map No. 15339. NOW, THEREFORE, in consideration of the foregoing recitals and other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. Lot G. Lot G, as depicted in Chula Vista Tract No. 03-03, Map No. 15339, recorded on May 10, 2006 at File No. 2006-0331344 of Official Records of the San Diego County Recorder, is excluded and released from the terms and provisions of the Agreement and from the legal description of the Property. 2. Defined Terms. Capitalized terms not otherwise defined in this Amendment shall have the same meaning as set forth in the Agreement. Exhibit "A" to the Agreement, which is the legal description of the Property, is replaced with the legal description set forth on Schedule 1 attached hereto. 3. Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be an original and all of which shall constitute one and the same instrument. DOCH36902v2 _1_ 5-14 4. All Other Terms and Provisions. Except as expressly set forth herein, a]] other terms and provisions of the Agreement shall remain unamended and in full farce and effect. 5. Recordine. The parties to this Amendment shall cause the Amendment to be recorded in the Official Records of the County of San Diego. 6. Authority of Sienatories. Each signatory and party to this Amendment warrants and represents to the other parties that it has legal authority, capacity and direction from its principal to enter into this Amendment, and that all resolutions and other necessary actions have been taken so as to enable it to enter into this Amendment. [Next page is Signature Page] DOCM3690Zv2 _2_ 5-15 Amendment to Grant of Easements, License & Maintenance Agreement IN WITNESS WHEREOF, the parties to this Amendment have entered into this Amendment as of the day and yeaz fast above written. "CITY" CITY OF CHULA VISTA, a municipal corporation By: Cheryl Cox, Mayor Attest: By: Donna Norris, City Clerk Approved as to form: By: Bart Miesfeld, City Attorney "HOVNANIAN" K. Hovnanian at Bella Lago, L a California limited liability c pa By: Name: Jim Pe vision P ident K. H an Co ~es of California, Inc. Its: Au rized Age DOC#36902v2 -3- 5-16 SCHEDULE 1 LEGAL DESCRIPTION Lots 1 through 139, inclusive, and Lots A, B, C, D, E and F of Chula Vista Tract No. 03-03 Bella Lago, in the City of Chula Vista, County of San Diego, State of California, according to Map thereof No. 15339, filed in the Office of the County Recorder of the San Diego County, May 10, 2006. DOCk36902v2 ~_ 5-17 State of Califomia County of SGN B¢rYtAYL'(~''1C~ On }'}~LrV1 20, 200`1 ,before me, l5l ' "`~ ~~ ' I (insert name and title of the officer) Notary Public, personally appeared c1t P ,who proved to me on the basis of satisfactory evidence to be the per og(s3-tvhose name subscribed to the within instrument, and acknowledged to me that~Cfthey-executed the same in r authorized capacityFi~}, and that by air signa[ure(~ on the instrument the person , or the entity upon behalf of which the personf~afacted, executed the mstrument. I certify under PENALTY OF PER.IURY under the laws of the State of California that the foregoing paragraph is true and correct. WI m hand and official seal. Notary Public CATHtE 2HOU Commission # 18191163 Notary Pu01ic -California z San BernardMa County M Comm. ras lka 21, 2012 r (seal) DOC#36902v2 -$- 5-18 THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL .~ ~ ~/- l~ ~~ ~ f ~ ~ ^ / C. i sfel<l'f --_~ ~ ` \ ity Attorney Dated: Amendment to Subdivision Improvement Agreement By and Between the City of Chula Vista, K. Hovnanian at Bella Lago, LLC, and Bella Lago, LLC 5-19 Recording Requested by: CITY CLERK When Recorded, Mail to: CITY OF CHULA VISTA 276 Fourth Avenue Chula Vista, CA 91910 No transfer tax is due as this is a conveyance to a public agency of less than a fee interest for which no cash consideration has been paid or received. Declarant AMENDMENT TO SUBDIVISION IMPROVEMENT AGREEMENT THIS "AMENDMENT TO SUBDIVISION IMPROVEMENT AGREEMENT" (the "Amendment"), is made and entered into this day of , 2009, by and between THE CITY OF CHULA VISTA, a municipal corporation, hereinafter called "City," K. Hovnanian at Bella Lago, LLC, a California Limited Liability Company, ("K. Hovnanian") and Bella Lago LLC, a California Limited Liability Company, ("Bella Lago") (K. Hovnanian and Bella Lago may be refesed to collectively in this Agreement as, "Subdivider"). This Amendment shall amend the "Subdivision Improvement Agreement," dated April 26, 2006, by and between the City, K. Hovnanian and Bella Lago (collectively, the "Parties"), with respect to the subdivision of land known as "Bella Lago." This Amendment is entered into with reference to the following Recitals, which Recitals constitute a part of this Amendment: RECITALS: WHEREAS, the City Council of the City of Chula Vista approved a Tentative Map for the subdivision of land known as Bella Lago, (CVT 03-03) with Resolution 2003-143; and, WHEREAS, the City Council of the City of Chula Vista approved a Final Subdivision Map and a Subdivision Improvement Agreement for Bella Lago, (CVT 03-03) with Resolution 2006-108 on April 11, 2006; and, WHEREAS, the Bella Lago Subdivision Improvement Agreement ("SIA") and the associated security was for the purpose of insuring the installation of improvements and/or land development work as required by the Title 18 of the Chula Vista Municipal Code for the subdivision pursuant to the Subdivision Map Act; and, WHEREAS, the SIA required Subdivider to complete all Improvement Work, as -1- 5-20 defined in the SIA, on or before the second anniversary date of Council approval of the SIA; and, WHEREAS, Subdivider has installed some improvements for the Bella Lago subdivision, but has not completed all of the Improvement Work, and has requested that the term of the Subdivision Improvement Agreement be extended for a period of two years to complete the Improvement Work; and, WHEREAS, the City of Chula Vista is desirous of extending the term of the SIA as long as the Subdivider agrees that all improvements will be completed to the city's satisfaction by June 1, 2011; and, WHEREAS, complete plans and specifications for the construction, installation and completion of said improvement work have been prepared and submitted to the City Engineer, as shown on Drawing Sets 04-100, inclusive on file in the office of the City Engineer; and WHEREAS, an estimate of the cost of constructing said improvements according to said plans and specifications has been submitted and approved by the City in the amount of FOUR MILLIONS, NINETY FIVE THOUSANDS, THREE HUNDREDS AND FORTY TWO, AND NO CENTS ($4,095,342.00); and WHEREAS, Subdivider previously famished and delivered to the City the following bonds: (i) Bond for Faithful Performance; (ii) Bond for Material and Labor; and (iii) Survey Monument Installation Bond, attached as Exhibits A, B, and C, respectively, to the SIA, (collectively, the "Bonds"); and WHEREAS, the Parties intend the Bonds to remain in full force and effect and, by their terms, the Bonds remain in full force and effect and are not altered by this Amendment. NOW, THEREFORE, THE CITY, BELLA LAGO AND K. HOVNANIAN MUTUALLY UNDERSTAND AND AGREE AS FOLLOWS: 1. EXTENSION OF TIME TO COMPLETE IMPROVEMENT WORK. Numbered paragraph 3. of the SIA is amended to read as follows: " 3. It is expressly understood and agreed that Subdivider will cause all necessary materials to be furnished and all Improvement Work required under the provisions of this contract to be done on or before June 1, 2011 (the "Completion Date"). The City Council may extend the Completion Date for a maximum of rivo additional yeazs, if the City Council determines that extending the time to complete the Improvement Work will not be detrimental to the public welfaze." 2. ALL OTHER PROVISIONS OF SIA REMAIN IN EFFECT. Except as specifically provided in this Amendment, the Bella Lago Subdivision Improvement Agreement and the Bonds remain in full force and effect. DOC#37390v1 -2_ 5-21 3. GENERAL PROVISIONS 3.1 Incorporation of Recitals. The Recitals of fact preceding this Amendment are true and correct and aze incorporated into this Amendment, in their entirety, by this reference. 3.2 Recordation. The City may record this Amendment in the Office of the County Recorder of San Diego County, California. 3.3 Notices. Demands and Communications Between the Parties. 3.3.1 Notices. Any and all notices submitted by any Party to any other Party pursuant to or as required by this Amendment shall be proper, if in writing and transmitted to the address of the Party set forth in Section 3.3.2 by one or more of the following methods: (a) messenger far immediate personal delivery; (b) a nationally recognized ovemight (one business day) delivery service (i.e., Federal Express, United Pazcel Service, etc.); or (c) registered or certified United States mail, postage prepaid, return receipt requested. Such notices may be sent in the same manner to such other addresses as either Party may designate, from time to time, by notice. Any notice shall be deemed to be received by the addressee, regardless of whether or when any return receipt is received by the sender or the date set forth on such return receipt, on the day that it is delivered by personal delivery, on the date of delivery by a nationally recognized ovemight courier service (or when delivery has been attempted twice, as evidenced by the written report of the courier service) or four (4) calendar days after it is deposited with the United States Postal Service for delivery, as provided in this Section 3.3. Rejection, other refusal to accept, the inability to deliver a notice because of a changed address of which no notice was given, or other action by a person to whom notice is sent, shall be deemed receipt of the notice by such person. Delivery of a notice to any courtesy copy recipient shall not be a prerequisite to the validity or effectiveness of any Notice. 3.3.2 Addresses. The following are the authorized addresses for the submission of notices to the Parties, as of the Effective Date: To the City: City Manager City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 To the Bella Lago: Attn: Tim Wilson Bella Lago, LLC 5566 Valerio Trail San Diego, CA 92130 Telecopier No.: 858-259-8962 Phone:858-259-8922 To K. Hovnanian: Attn: Chief Legal Officer 800 N. Haven Ave., Suite 300 Ontario, CA 91764 Telecopier Nc.: 909-944-7123 Phone:909-942-5888 DOCR37390v1 _3_ 5-22 3.4 Interpretation. No inference in favor of or against any Party shall be drawn from the fact that such Party has drafted any part of this Amendment. The Parties have all participated substantially in the negotiation, drafting, and revision of this Amendment, with advice from legal and other counsel and advisers of their own selection. 3.5 Govemine Law. The laws of the State of California shall govern the interpretation and enforcement of this Amendment, without application of conflicts of laws principles. The Parties acknowledge and agree that this Amendment is entered into, is to be fully performed in and relates to real property located in the City of Chula Vista, County of San Diego, State of California. All legal actions arising from this Amendment shall be filed in the Superior Court of the State in and for the County or in the United States District Court with jurisdiction in the County. 3.6 Binding_on Successors and Assiens. This Amendment shall be binding upon and inure to the benefit of the Parties and their respective legal representatives, successors and assigns. 3.7 No Other Renresentations or Warranties. Except as expressly set forth in this Amendment, no Pariy makes any representation or warranty material to this Amendment to any other Party. 3.8 Execution in Counteroarts. This Amendment may be executed in multiple counterpart originals, each of which shall be deemed to be an original, but all of which together shall constitute one and the same document. [Signatures blocks appear on the next page.] DOC#37390v1 _4_ 5-23 SIGNATURE PAGE ONE OF TWO AMENDMENT TO SUBDIVISION IMPROVEMENT AGREEMENT BELLA LAGO (CVT 03-03) IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed the day and year first hereinabove set forth. THE CITY OF CHULA VISTA Cheryl Cox Mayor ATTEST: Donna Norris City Clerk Approved as to form by: Bart Miesfeld City Attorney DOCN37390v1 _5_ 5-24 SIGNATURE PAGE TWO OF TWO SUBDIVISION IMPROVEMENT AGREEMENT BELLA LAGO (CVT 03-03) DEVELOPERS/OWNERS: K. Hovnanian at Bella Lago, LLC, a California limited liability company By: K. Hovnanian Compan~gs of alifomia, Inc., a Califomia comora n By: Jim DOCk37390v1 Bella Lago, LLC, a Califomia limited liability company By: Bellagio Capital, Inc., a California corporation By: Wilson, President -6- 5-25 SIGNATURE PAGE TWO OF TWO SUBDIVISION IMPROVEMEI~IT AGREEMENT BELLA LAGO (CVT 03-03) DEVELOPERS/OWNERS, K. Hovnanian at Bella Lago, LLC, a California limited liability company By: K. Hovnanian Companies of California, Inc., a California corporation By: Jim Perry, Authorized Agent DOC#3739Qv1 Bella Lago, LLC, a California limited liability company By: Bellagio Capital, Inc., a California c oratio By: G~ a--- Tim Wilson, esident -5- 5-26 State of California County of Sab~~~2~c On H,inx~r ~, ,g~~c ,before me, heaz,~ /1. ~,~1~ 1'u~~J.7o+n.:-u /~u.t,l~c (insert name and title of the o cer~Fi Notary Public, personally appeazed ~'; n~,•,~1-Eu,i ~ ; ~ 5 t51~ wbo proved to me on the basis of satisfactory evidence to b the person( whose nameO is/axe subscribed to the within instrument, and aclmowledged to me that he/slae~h~y executed the same in his/her/t~keir authorized capacity(ies), and that by hi~~a%i~,.on- signature{.s'j on the instrument the person(s'j, or the entity upon behalf of which the person(~j acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is tree and correct. WITNESS my hand and official seal. Notary Public MOON R. WAYERWRY CommbNOn # 77i9tSiJ Notary thole - Co111orMC Eau Ohpo County MrCOmnBiiothbZ$7D1Z (seal) State of California County of On before me, (insert name and title of the officer) Notary Public, personally appeazed who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/aze subscribed to the within instrument, and aclmowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERNRY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Notary Public (seal) DOC#37390v1 _'~_ 5-27 State of Califomia County of San $er~nArz~irip On ~A U ~~ ZAd °J ,before me, C.~'~ ~ ~ ~ ~ (insert name and title of the officer) Notary Public, personally appeazed ~ rri ~QSit~1 who proved to me on the basis of satisfactory evidence to be e person whose nom s 'fart subscribed to the within instrument, and acknowled ed to me that ~e $laek~ey- executed the same in weir authorized capacity(i~, and that by is signature(~j on the instrument the person~a'f or the entity upon behalf of which the person( acted, executed the ' strument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WI and official seal. CATNIE ZNOU Commisslon ~ 161J063 Notary puDlio • Callfarma San Bsmaralno Countg Comm. kaa 0 1 Notary Public (seal) State of Califomia County of On ,before me, (insert name and title of the officer) Notary Public, personally appeazed ,who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/aze subscribed to the within instrument, and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PER7URY under the laws of the State of California that the foregoing paragraph is tree and correct. WITNESS my hand and official seal. Notary Public (seal) DOC#37390v1 _7- 5-28