HomeMy WebLinkAbout2009/12/15 Item 4
CITY COUNCIL
AGENDA STATEMENT
~\r~ CllY OF
.~& (HUlA VISTA
12/15/2009 ltem~
ITEM TITLE: RESOLUTION APPROVING THE FINAL MAP OF
MISSIONS AT SUNBOW, CHULA VISTA TRACT NO.
06-02 FOR CONDOMINIUM CONVERSION PURPOSES,
AND THE ASSOCIATED SUPPLEMENTAL
SUBDIVISION AGREEMEl'! ; .
SUBMITTED BY: DEPUTY CITY MANAGEItJl ~VELOPMENT SERVICES
DIRECTOR A I
REVIEWED BY: CITY MANAGER ~ (,LJ
/I
4/5THS VOTE: YES NO X
BACKGROUND
On June 13,2006, Council approved a Tentative Subdivision for Missions atSunbow.
The project consists of a condominium conversion of 336 multi-family units. Tonight's
action is strictly ministerial per the Subdivision Map Act Section 66474.1 and will allow
the Final Map to record, converting the existing apartments into condominiums.
ENVIRONMENT AL REVIEW
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 tmder Section 15378 of the State CEQA
Guidelines; therefore, pursuant to Section 15060(c)(2) of the State CEQA Guidelines the
activity is not subject to CEQA. Thus, no environmental review is necessary.
RECOMMENDATION
That City Council adopt the Resolution.
BOARDS/COMMISSION RECOMMENDATION
Not applicable.
DISCUSSION
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12/15/2009, Item~
Page 2 of3
Chula Vista Tract No. 06-02, Missions at Sunbow, is a 336 unit condominium project on
14.58 acres located at 825 East Palomar Street. The Project is a subdivision of Lot 247 of
Chula Vista Tract No. 90-07, a master planned development. Developer applied to the
City of Chula Vista Planning Commission for consideration of a Tentative Map of the
Property and obtained recommendation for processing PCS 06-02 to subdivide the
Property into a one-lot condominium with 336 units on May 10,2006. The City Council
of the City of Chula Vista approved a Tentative Subdivision Map and established
conditions of approval for the Project on June 13, 2006 by Resolution 2006-179
("Resolution").
City is willing, based on the premises, security, terms and conditions herein contained to
approve the Final Map of the property known as "Missions at Sunbow", as being in
substantial conformance with the Tentative Subdivision Map described in this
Agreement.
Tenant Notifications & Relocation Assistance: Under State law, condominium
conversions are required to give tenants notification at several stages during the mapping
process. The Developer agreed to comply with the following tenant notifications:
a. 10-day notice to all existing tenants of an application of a Public Report -
"Form C" (If submitted to State Department of Real Estate prior to Final Map
approval).
b. 10-day Notice to all existing tenants of Final Map approval- "Form D".
c. Notice to all prospective tenants of option to purchase/termination of tenancy
- "Form E",
d. 90-day Notice to all existing tenants of option to purchase/termination of
tenancy - "Form F".
e. 180-day notice to all existing tenants of intent to convert/termination of
tenancy - "Form G".
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. Staff has the reviewed the history of Planning Commissioners assigned to this
Project during Planning Commission and found that Pamela Bensoussan had served on
the board as a planning Commissioner, which creates a conflict of interest, pursuant to
California Code of Regulation Section (David Miller, Please revise this Paragraph.)
FISCAL IMP ACT
There is no impact to the General Fund. The HOA has paid all fees and other costs
associated with the proposed agreement.
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12/15/2009,ltem-':t-
Page3of3
ATTACHMENTS
1. Plat of Chula Vista Tract 006-02, Missions at Sunbow.
2. Developer's Disclosure Statement
j'\EngineerILANDDEVIProjectsllvbscellaJleous ProjectslMission at Sunbow\agenda\Al/3 for Missions at Sunbow J 2-15-09.doc
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CHULA VISTA TRACT NO. 06-02
MISSIONS AT SUNBOW
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LOT 1
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HUNSAKER
& ASSOCIATES
SAN 0 lEe 0, IN C
PLANNING 9707 WAPlES STREET
ENCINEERING San Diego, Ca 92121
SURVEYING I'H(eSB)S58-4500. FX(658)S58.1414
R:\06JZ\d:Map\CITY COUNCIL fXH/BIT.d'frgDMar- H-]0fJ7:06;J7
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Disclosure Statement
Pursuant to Council Policy 101-01, prior to any action upon matters that will require discretionary action by the Councii,
Planning Commission and all other official bodies of the City, a statement of disclosure of certain ownership or financial
interests, payments, or campaign contributions for a City of Chuta Vista election must be filed. The following information
must be disclosed:
1. List the names of all persons having a financial interest in the property that is the subject of the application or the
contract, e.g., owner, applicant, contractor, subcontractor, material supplier.
EQR-Missions at Sunbow, LLC
EOR-Flatlands. LLC
F.~~_QR~ ~l~~l~nA~~ Tn~
ERP Operating Limited Partnership
2. If any person* identified pursuant to (1) above is a corporation or~partnership, ljst the names .of all individuals with
a $2000 investment in the business (corporation/partnership) entity.
3. If any person* identified pursuant to (1) above is a non-profit organization or trust, iist the names of any person
serving as director of the non-profit organization or 35 trustee Of beneficiary or trustor of the trust.
N/A
4. Please identify every person, including any agents, employees, consultants, or independent contractors you have
assigned to repres~nt you before the City in this matter.
5. Has any person' associated with this contract had any financiai deaiings with an officiai" of the City of Chuta
Vista as it relates to this contract within the past 12 months. Yes_ No~
If Yes, briefly describe the nature of the financial interest the official" may have in this contract.
6. Have you made a contribution of more than $250 within the past twelve (12) months to a current member of tne
Chula Vista City Council? No ~ Yes _If yes, which Councii member?
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7. Have you provided more than $340 (or an item of equivalent value) to an official"': of the City of Chula Vista in the
past twelve (12) months? (This Includes being a source of income, money to retire a legai debt, gift, loan, etc.)
Yes_ NoL-
if Yes, which official" and what was the nature of item provided?
E~~nu~ LLC
Signature of Contractor/Applicant
~llR-Hissions at Sunbow, LL~
James G. Athasll VP
Print or type name of Contractor/Applicant
Date: 11/24/09
.
Person is defined as: any individual, firm, co-partnership, joint venture. association, social club, fraternal
organization, corporation, estate, trust, receiver, syndicate, any other county, city, municipality, district, or other
political subdivision, -or any other group or combination acting as a unit.
..
Official includes, but is not limited to: Mayor, Council member, Chuia Vista Redevelopment Corporation member,
Planning Commissioner, member of a board, commission, or committee of the City, employee, or staff members.
September 8, 2006
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RESOLUTION NO.
RESOLUTION APPROVING THE FINAL MAP OF
MISSIONS AT SUNBOW, CHULA VISTA TRACT NO.
06-02 FOR CONDOMINUUM CONVERSION
PURPOSES, AND THE ASSOCIA TED
SUPPLEMENTAL SUBDIVISION AGREEMENT
WHEREAS, Developer applied to the City of Chula Vista for the subdivision of a
14.58 acre parcel, located at 825 East Palomar Street in the City ofChula Vista, Tract No.
06-02 ("Property"), for the purpose of converting the Property into a one-lot
condominium with 336 multi-family units to be called "Missions at Sunbow" (the
"Project"); and
WHEREAS, the Property is a subdivision of Lot 247 of Chula Vista Tract No. 90-
07, a master planned development; and
WHEREAS, on May 10, 2006, the City of Chula Vista Planning Commission
considered the application and recommended that the City Council of the City of Chula
Vista approve a tentative map for the Project subject to certain conditions; and
WHEREAS, on June 13, 2006, the City Council of the City of Chula Vista
approved a Tentative Subdivision Map and established conditions of approval for the
Project on June 13,2006 by Resolution 2006-179 ("Resolution"); and
WHEREAS, Developer would like to record a Final Map for the Project: and
WHEREAS, Developer has signed a Supplemental Subdivision Improvement
Agreement ("SSIA") to be recorded on the Property with the County Recorder to ensure
compliance with all conditions; and
WHEREAS, City is willing, on the premises, security, terms and conditions
contained within the SSIA to approve the Final Map for the Project as being in
substantial conformance with the previously approved Tentative Subdivision Map; and
WHEREAS, tonight's action is strictly ministerial per the Subdivision Map Act
Section 66474. I.
NOW, THEREFORE, BE IT RESOL VED the City Council of the City of Chula
Vista does hereby approve the Final Map and the associated SSIA for Missions at
Sun bow, Chula Vista Tract No. 06-02, for condominium conversion purposes.
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BE IT FURTHER RESOLVED, that the City Clerk is hereby directed to record a
certified copy of this resolution and the associated SSIA with the Office of the San Diego
County Recorder.
Presented by:
Gary Halbert, AICP, PE
Deputy City Manager!
Director of Development Services
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THE A TT ACHED AGREEMENT HAS BEEN REVIEWED
. AND APPROVED AS TO FORM BY THE CITY
ATTORNEY'S OFFICE AND WILL BE
FORMALLY SIGNED UPON A PROV AL BY
HE CIT
Dated: 12- 10 ~o
STORM WATER MANAGEMENT FACILITIES MAINTENANCE
AGREEMENT WITH GRANT OF ACCESS AND COVENANTS
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RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
CITY OF CHULA VISTA
OFFICE OF THE CITY CLERK
276 FOURTH AVENUE
CHULA VISTA, CA 91910
Above Space for Recorder's Use
STORM WATER MANAGEMENT FACILITIES MAINTENANCE
AGREEMENT WITH GRANT OF ACCESS AND COVENANTS
(MISSIONS AT SUNBOW EY-431)
(PROPERTY OWNER - EQR_ MISSIONS AT SUNBOW, L.L.C. A DELAWARE LIMITED
L1ABLlTY COMPANY)
DEFINITIONS
"Agreement" means this Storm Water Management Facilities Maintenance
Agreement with Grant of Access and Covenants (SMFMA).
"Best Management Practices, or BMPs" means structural or non-structural pollution
prevention measures, such as site design, source control, and treatment control methods
required to minimize polluted runoff from the development during the post-development
phase of the project. BMPs include, but are not limited to, Storm Water Managem'ent
Facilities (SWMF).
"City" means the City of Chula Vista, an official of the City, or any designated staff
member acting on behalf of the City. The City Council, in Resolution No. 2008- 61, dated
February 19, 2008, has authorized the City Engineer to sign this Agreement on behalf of
the City.
"Inspection, Operation, and Maintenance Plan, or 10MP" means a description of
inspection, operation, and maintenance activities and schedules required to ensure proper
operation and effectiveness of the SWMF's into perpetuity, as required in the Chula Vista
Development Storm Water Manual. A copy of the 10MP, as amended from time-to-time,
shall be included in the Water Quality Technical Report for the project before issuance of a
construction permit, and a copy shall be maintained on file with the office of the City
Engineer and is attached herewith as Exhibit B. City may require amendments to the
10MP at its sole discretion.
"Owner" means the owner of Property signatory to this Agreement applying for a
development or redevelopment project that includes permanent BMPs, and all Owner's
successors in interest in Property, jointly (such as a Home Owners' Association) and/or
""individually.
"Property" means the property on which development is proposed, a legal
description of which is attached herewith as Exhibit A.
"Responsible Party" means Owner and any other person, corporation, or legal entity
accepting, in writing and in City approved form, responsibility on behalf of Owner.
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"Security" means any Bond, Cash Deposit, or Letter of Credit that City may require
from Owner as a result of Owner's failure to effectively maintain development's SWMF's,
and is to assure the faithful performance of the obligations of this Agreement.
"Storm Water Management Facilities" (SWMF's) means all onsite structural facilities
constructed for the treatment of project's storm water runoff, proposed as part of the
development project submittals, as approved by City prior to the issuance of a
development permit, or as amended with City's approval after the development is
complete.
AGREEMENT
This Agreement for the inspection, maintenance, and repair of certain Storm Water
Management Facilities is entered into between EQR_ MISSIONS AT SUNBOW, LLC
("Owner") and City for the benefit of City, Owner, successors in interest to City or Owner,
and the public generally.
Pursuant to City's urban runoff regulations, including Chula Vista Municipal Code,
Chapter 14.20 (the "Storm Water Management and Discharge Control Ordinance) and the
Chula Vista Development Storm Water Manual, Owner has prepared and submitted to City
a Water Quality Technical Report ("WQTR"), which is on file in the office of the City
Engineer. The WQTR proposes that storm water runoff from Property be detained and
treated by the use of permanent SWMF's which are identified in the WQTR as Treatment
Control BMPs.
The WQTR specifies the manner and standards by which the SWMF's must be
inspected, maintained, and repaired in order to retain their effectiveness. City requires
Owner to enter into Agreement for the installation, inspection, maintenance, and repair of
permanent SWMF's prior to the issuance of construction permits by City for work on
Property (Improvements). It is the purpose of this Agreement to assure that the SWMF's
are inspected, maintained, and repaired by creating obligations which are enforceable
against Owner. Owner hereby covenants and agrees with City as follows:
1. Maintenance of Storm Water Management Facilities. Owner shall install,
inspect, maintain, repair, and replace all SWMF's for the Improvements as required by the
Director of Public Works, or his/her designated representative ("Director). Maintenance
shall include inspection and servicing of SWMF's on the schedule determined necessary to
ensure the SWMF's retain their effectiveness. Owner shall maintain, repair and replace
the SWMF's until all obligations under this Agreement are transferred to, and assumed by,
another owner or entity, satisfactory to City. Owner shall grant Responsible Party
assuming any obligation under this Agreement all necessary access right. Owner shall
include a copy of the Inspection, Operation, and Maintenance Plan ("IOMP") for the
~SWMF's in the WQTR for the project and submit a copy to City, at the time this Agreement
is executed.
The IOMP shall describe employee training programs and duties, routine inspection,
service and operating schedules, maintenance frequency, and specific maintenance
activities. Through the IOMP, Owner may also designate a Responsible Party, satisfactory
to City, to maintain the BMPs. The IOMP may be amended from time-to-time by Owner,
,f.Dn
subject to City approval. Owner shall also be responsible for amending the IOMP upon
City's direction.
2. Record Keeping. The designation of a Responsible Party to maintain the
SWMF's does not relieve Owner of any of the obligations or duties under this Agreement.
Owner, its successors, or a designated Responsible Party, shall retain records of the
IOMP and maintenance and inspection activities for at least five years. Said records shall
be made available within 5 days, upon request by City.
3. Defense and Indemnity. Owner agrees to defend, indemnify, protect, and
hold harmless City, its agents, officers and employees, from and against all claims,
demands, causes of action, liability or loss asserted or established for damages or injuries
to any person or property arising out of the installation, inspection, maintenance, repair, or
replacement of the BMPs. Claims, demands, causes of action, liability or loss that arise
from, are connected with, or are caused or claimed to be caused by the acts or omission of
Owner, Owner's agents, officers and employees are covered.
Also covered are the claims, demands, causes of action, liability or loss arising from,
connected with, caused by, or claimed to be caused by the active or passive negligent acts
or omissions of City, its agents, officers, or employees which may be in combination with
the negligence of Owner, its employees, agents or officers, or any third party. Owner's
duty to defend, indemnify, protect and hold harmless shall not include any claims or
liabilities arising from the established sole negligence or sole willful misconduct of City, its
agents, officers or employees.
Owner further agrees that indemnification referred to above and the duty to defend City
requires Owner to pay any costs City incurs that are associated with enforcing the
indemnification provision, and defending any claims arising from the installation"
inspection, maintenance, repair, or replacement of the SWMF's. If City elects, at its sole
discretion, to conduct its own defense, participate in its own defense, or obtain
independent legal counsel in defense on any claim related to the installation, inspection,
maintenance, repair or replacement of the SWMF's, Owner agrees to pay the reasonable
value of attorney's fees and all of City's reasonable costs.
4. Insurance. Owner shall maintain a policy of liability insurance, as required
by and in an amount approved by, City. This policy, with City named as an additional
insured, will protect City from any potential claims, which may arise from the installation,
inspection, maintenance, repair or replacement of the SWMF's.
5. Notices. Owner agrees that it shall, prior to transferring ownership of any
land on which any of the SWMF's covered by this Agreement are located, and also prior to
transferring ownership of any such SWMF's, provide clear written notice of the above
maintenance obligations associated with that SWMF to the transferee. Owner further,
-= 'agrees to provide evidence that Owner has requested the California Department of Real
Estate to include in the public report issued for the development of Property, a notification
regarding the SWMF maintenance requirements described in this Agreement.
6. City's Right to Perform Maintenance. It is agreed that City shall have the
right, but not the obligation, to elect to perform any or all of the maintenance activities if, in
City's sole judgment, Owner has failed, after a five-day written notice (from the date of
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postmark or personal delivery) has been provided by City to Owner, to perform' the
maintenance as agreed. In cases where immediate threat to water quality is imminent, a
five-day notice will not be required. If City performs any of the maintenance activities, after
City has first (1) served notice to Owner in accordance with the provisions of Chula Vista
Municipal Code Chapter 1.40 to perform the maintenance activities and (2) Owner has
failed to do so within the reasonable time stated in City's notice, then Owner shall pay all
City costs incurred in performing said maintenance activities. Owner's obligation to pay
City's costs of performing maintenance activities is a continuing obligation and shall apply
whether or not City has required or used all or any portion of Security provided pursuant to
Paragraph 8.
7. Grant of Access. City will conduct inspections of the SWMF's from time-to-
time as required by the National Pollutant Discharge Elimination System Municipal Permit,
Order No. R9-2007-0001 and any re-issuances thereof, to ensure adequate maintenance
and effectiveness of the SWMF's. Owner grants to City a perpetual access to the SWMF's
for performing inspections or any of the maintenance activities specified in paragraph 1.
City shall have the right, at any time and without prior notice to Owner, to enter upon any
part of Property as may be necessary or convenient for inspection purposes. Owner shall
at all times maintain Property so as to make City's access clear and unobstructed. Owner
agrees to pay all inspection fees as may be established by City.
8. Security. If upon two inspections within any five-year period, City inspectors
determine that Owner has failed to effectively operate, maintain, or repair the SWMF's;
City may require Owner to provide City with Security to assure the faithful performance of
the obligations of this Agreement. Security may be in the form of a Bond, a Cash Deposit,
or a Letter of Credit in an amount equal to two-years' cost of maintaining the SWMF's, as
determined in the project WQTR and adjusted at 5% per annum. City may use Security to
provide funding for the cost to City to perform any of the maintenance activities for the.
development's SWMF's. City may use all or any part of Security at any time pursuant to
this Agreement. Should any portion of Security be used by the City, Owner shall deposit
additional funds or provide an additional Letter of Credit to City within thirty (30) days in the
amount used by City to bring the amount available back up to the amount specified. If
Security is a Cash Deposit, and a Substitute Cash Deposit or Letter of Credit is provided
that is acceptable to City, any amount of the Cash Deposit not used by City shall be
returned to Owner in accordance with City's accounting procedures. The Letter of Credit
shall be submitted on bank letterhead using City-approved form. Once Owner has
demonstrated effective operation, maintenance, and repair, as determined by City, the
Security shall be kept for one year for the first occurrence, and two years for the second
occurrence, after which time the Security shall be cancelled and any unused funds
returned to Owner.
9. Agreement Binds Successors and Runs with PROPERTY. It is
understood and agreed that the terms, covenants and conditions contained in this
=Agreement shall constitute covenants running with the land and shall be binding upon the
heirs, executors, administrators, successors and assigns of Owner and City and shall be
deemed to be for the benefit of all persons owning any interest in Property. It is the intent
of the parties that this Agreement be recorded and be binding upon all persons purchasing
or otherwise acquiring all or any lot, unit or other portion of Property, who shall be deemed
4I.!>fs
to have consented to and become bound by all the provisions of this Agreement. This
Agreement shall commence upon execution of this Agreement by all parties named in the
Agreement.
10. Enforcement. Failure to comply with the terms of this Agreement
constitutes a violation of the Chula Vista Municipal Code Chapter 14.20 "Storm Water
Management and Discharge Control" and may result in enforcement action pursuant to
City's storm water regulations and administrative procedures.
11. Governing Law and Severability. This Agreement shall be governed by
the laws of the State of California. Venue in any action related to this Agreement shall be
in the Superior Court of the State of California, County of San Diego, South County
Division. In the event that any of the provisions of this Agreement are held to be
unenforceable or invalid by any court of competent jurisdiction, the validity, and
enforceability of the remaining provisions shall not be affected by the judgment.
IN WITNESS WHEREOF, the parties have executed this Agreement on the_
day of December, 2009.
OWNER:
CITY OF CHULA VISTA:
EOR - MISSIONS AT SUNBOW, LLC, a
Delaware limited liability company
By: EOR - Flatlands, LLC, a Delaware
limited liability ccimpany, its sole member
By: ERP Operating Limited Partnership, an
Illinois limited partnership, its member
By: Equity Residential, a Maryland real
estate investment trust, its eneral partner
By:
APPROVED AS TO FORM:
By:
ames G. Athas,
Assistant Vice President
City Attorney
ATTEST:
City Clerk
Dated:
Attachments:
a.. Exhibit,f\: Legal Description for Property
:J.. Exhibiti): Inspection, Operation, and Maintenance Plan (IOMP)
50f6
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EXHIBIT A
STATE OF ILLINOIS )
) ss
COUNTY OF COOK )
I certify that I know or have satisfactory evidence that JI1 m I S~Q .3
signed this instrument, on oath stated that he was authorized to execute the instrument
and acknowledged it to be the free and voluntary act and deed of the said company, for
the uses and purposes mentioned in the instrument.
. ~t.Nl:l'bffi
"OF A Betty ,
Aman~a 'ate of l\\inolS
""otar)'fubhcIS~ ,uyI1,1OIO
1" . 'on'EX:Plrd'
My ConuntSSl
al seal hereto affixed on het~'Ylt.Q;{ d ,2009.
My appointment expires: S. \1 . \ D
(Print Name) A- .
NOTARY PUBLIC ip\and for the State
Illinois, residing in lJ'^\i rD[J, ()
~
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RECORDING REQUEST BY:
Developer.
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City Clerk
\\THEN RECORDED J'vLAJL TO:
CITY OF OlliLA VISTA
276 Fourth Avenue
Chub 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.
Above Space for Recorder's Use
SUPPLEMEN1AL SUBDIVISION IMPROVEMENT AGREEMENT
FOR l\IIISSIONS AT SUNBOW CONDOMINUIM CONVERSION
(Conditions: 1,3,4,7,11,16,17,18,20,21,23, and B Conditions of Resolution No. 2006-179)
This Subdivision Agreement ("Agreement"), dated , 2009, for purpose of
reference only and executed on the date signed by the last party hereto, is by and between THE CITY.
OF CHULA VISTA, California ("City") and EQR-Missions at Sunbow, LLC, a Delaware Limited
Liability Company ("Developers"). The City and Developers may be referred to herein individually
as "Party" and collectively as "Parties." This Agreement is entered with reference to the following:
RECITALS
A. This Agreement concerns and affects certain real property located in Chub Vista, California,
more particularly described on Exhibit "A" attached hereto and incorporated herein ("Property").
""==The Property is within approved Tentative Subdivision Map Chula Vista Tract No. 06-02, and for the.
. purpose of general description herein consists of 14.58 acres located at 825 East Palomar Street
("Project Site"). The Project is a subdivision of Lot 247 of Chula Vista Tract No. 90-07, a master
planned development. For purposes ofthis Agreement the term "project" shall also mean "Property".
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B. Developer applied to the City ofChula Vista Planning Commission for consideration ofa
Tentative Map ofthe Property and obtained recommendation for processing PCS 06-02 to subdivide
the Property into a one-lot condominium with 336 units on May 10, 2006.
C. The City Council of the City of Chula Vista approved a Tentative Subdivision Map and
established conditions of approval for the Project on June 13,2006 by Resolution 2006-179
("Resolution").
D. City is willing, on the premises, security, terms and conditions herein contained to approve
the final map of the property known Missions at Sunbow at 825 East Palomar, Chula Vista, CA
Street, as being in substantial conformance with the Tentative Subdivision Map described in this
Agreement.
E. The following defined terms shall have the meaning set forth herein, unless otherwise
specifically indicated:
1. For the purposes of this Agreement, "Final Map" means the final map for Missions at
Sunbow.
2. "Owner or Developer" means the person, persons or entity having a legal or an
equitable interest in the property or parts thereof and includes Owner's successors-in-
interest and its assignees of any property within the boundaries of the map. This
includes EQR-Missions at Sunbow, LLC, a Delaware Limited Liability Company,
and any and all owners of real property within the boundaries of the Property.
NOW, THEREFORE, in exchange for the mutual covenants, terms and conditions herein
contained, the parties agree as set forth below.
1. Agreement Applicable to Subsequent Owners.
a. Agreement Binding Upon Successors. This Agreement shall be binding upon
and inure to the benefit of the successors, assigns and interests of the parties as to any or all ofthe
Property until released by the mutual consent of the parties.
b. Agreement Runs with the Land. The burden ofthe covenants contained in this
Agreement ("Burden") is for the benefit of the Property and the City, its successors and assigns and
any successor in interest thereto. City is deemed the beneficiary of such covenants for and in its own
right and for the purposes of protecting the interest of the community and other parties public or
c:: c:cprivate, in whose,. favor and for whose benefit of such covenants running with the land have been,
provided without regard to whether City has been, remained or are owners of any particular land or
2
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interest therein. If such coven:mts are breached, the City shall have the right to exercise all rights
and remedies and to maintain any actions or suits at law or in equity or other proper proceedings to
enforce the curing of such breach to which it or any other beneficiaries of this Agreement and the
covenants may be entitled..
c. Developer Release on Assignment to Homeowner Association. If Developer
assigns any portion of the Project to a Homeowner Association ("HOA"), Developer may request to
be released from Developer's obligations under this Agreement, that are expressly assumed by the
HOA. Developer must obtain the written consent of the City to such release. Such assignment to the
HOA shall, however, be subject to this Agreement and the Burden of this Agreement shall remain a
covenant running with the land. The City shall not withhold its consent to any such request for a
release so long as the assignee acknowledges that the Burden of the Agreement runs with the land,
assumes the obligations ofthe Developer under this Agreement, and demonstrates, to the satisfaction
of the City, its ability to perform its obligations under this Agreement as it relates to the portion of
the Project which is being acquired by the Assignee.
d. Partial Release of Developer's Assignees. If Developer assigns any portion of
the Project subject to the Burden of this Agreement, upon request by the Developer or its assignee,
the City shall release the assignee of the Burden of this Agreement as to such assigned portion if
such portion has complied with the requirements of this Agreement to the satisfaction ofthe City and
such partial release will not, in the opinion of the City, jeopardize the likelihood that the remainder
ofthe Burden will not be completed or satisfied as intended by the conditions contained herein.
1. Condition No.1 - (General). In satisfaction of Condition No. I of the Resolution,
Developer hereby agrees that all of the terms, covenants and conditions contained herein shall be
binding upon and inure to the benefit of the heirs, successors, assigns and representatives of the
Developer as to :my or all of the Property.
2. Condition No.3. - (General). In satisfaction of Condition No.3 of the Resolution,
Developer agrees to coordinate with the City ofChula Vista Department of Planning and Building,
Development Planning division to schedule a meeting with the current tenants to present alternative
rental housing opportunities and assistance in relocation in conjunction with the presentation of the
'schedule for the phasing'ofthe conversion of the apartments to condominiums.
3. Condition No.4 (Tenant Notifications). In satisfaction of Condition No.4 of the
Resolution, Developer agrees to comply with all applicable noticing requirements set forth in
Government Code Section 66427.1. Applicant shall submit evidence to the Director of Planning and
Building that the following City of Chula Vista noticing forms have been delivered to the existing
and prospective tenants pet Section 66427.1 ofthe Subdivision Act or a schedule detailing required
future notifications:
a. I O-day notice to all existing tenants of an application of a Public Report - "Form C" (If
submitted to State Department of Real Estate prior to Final Map approval).
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b. 10-day Notice to all existing tenants of Final Map approval- "Form D".
c. Notice to all prospective tenants of option to purchase/termination of tenancy -
"Form E.
d. 90-day Notice to all existing tenants of option to purchase/termination of tenancy -
"Form F".
e. 180-day notice to all existing tenants of intent to convert/termination oftenancy- "Form
G".
4. Condition No.7 - (Recycling and Solid Waste Management Plan). In satisfaction of
Condition No.7 of the Resolution, Developer agrees to comply with the requirements of the City's
approved "Recycling and Solid Waste Management Plan" to the satisfaction of the City's
Conservation Coordinator. The plan shall demonstrate those steps the applicant will take to comply
with Municipal Code, including but not limited to Sections 8.24 and 8.25, and meet the State
mandate to reduce or divert at least 50 percent of the waste generated by all residential, commercial
and industrial developments. The Applicant shall contract with the City's franchise hauler
throughout the construction and occupancy phase of the project. The plan shall incorporate any trash
enclosure re-design required for compliance with the City's NPDES permit.
5. Condition No. 11- (NPDES). In satisfaction of Condition No. II of the Resolution,
Developer agrees to the following:
a. Comply with the requirements of the current Municipal Storm Water Permit (Order
No. 2001-01) issued by the San Diego Regional Water Quality Control Board
including revision of plans as necessary.
b. Indemnify, and hold harmless the City, its elected and appointed officers and
employees, from and against all fines, costs, and expenses arising out of non-
compliance with the requirements of the NPDES regulations, in connection with the
execution of any construction and/or grading work for the Project, whether the non-
compliance results from any action by the Applicant, any agent or employee,
subcontractors, or others. The applicant's indemnification shall include any and all
costs, expenses, attorney's fees and liability incurred by the City.
c.
To not protest the formation of a facilities benefit district or any other funding
mechanism approved by the City to finance the operation, maintenance, inspection,
and monitoring of NPDES facilities. This agreement to not protest shall not be
deemed a waiver ofthe right to challenge the amount of any assessment, which may
be imposed due to the addition of these improvements and shall not interfere with the
right of any person to vote in a secret ballot election.
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6. Condition No. 16- (Sewer Responsibility). In satisfaction of Condition No. 16 of the
Resolution, Developer agrees that the onsite sewer system shall be private. All sewer laterals shall
be privately maintained from each building and/or condominium unit to the City maintained public
sewer main within Medical Center Court.
7. Condition No. 17- (Sewer Maintenance). In satisfaction of Condition No. 17 of the
Resolution, Developer agrees that the Developer/Owner shall establish a homeowners association to
fund and oversee a contract for the maintenance 0 f the onsite private sewer system. The frequency of
maintenance ofthe sewer system shall be contained in the provisions of the Covenants, Conditions &
Restrictions (CC&Rs). The City Engineer and Director of Public Works shall approve the provisions
of the CC&Rs regarding the onsite private sewer system.
8. Condition No. 18- (Street Maintenance). In satisfaction of Condition No. 18 of the
Resolution, Developer agrees that streets and driveways within the development shall be private and
shall be maintained by the homeowners association. .
9. Condition No. 20- (CC&R). In satisfaction of Condition No. 20 of the Resolution,
Developer agrees to submit and record Covenants, Conditions, and Restrictions ("CC&Rs") as
approved by the City Attorney to the City Engineer and Director of Planning and Building. Said
CC&Rs shall include the following:
a. The creation of a Homeowner's Association CHOA"), which shall, among other
things, be responsible for maintaining all common facilities within the Project
including, but not limited to: walls, fences, water fountains, lightning structures, fire
sprinklers and alarm systems, paths, trails, access roads, drainage structures, water
treatment facilities, recreational amenities and structures, landscaping, trees, streets,
parking lots, driveways, and private sewage and storm drain systems.
b. Language stating that the landscaping shall be maintained by the HOA in a healthy
and thriving condition at all times.
c. A listing of all private facilities.
d. Language that indemnifies and holds harmless the City from any claims, demands,
causes of action liability or loss, including claims arising from the maintenance
activities of the HOA, including but not limited to private sewer spillage.
e. The City's right but not the obligation to enforce CC&Rs.
f. An insurance provision requiring the HOA to maintain a policy of comprehensive
general liability insurance written on a per-occurrence basis in an amount not less
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than one million dollars ($1,000,000) combined single limit. The policy shall be
acceptable to the City and name the City as additional insured.
g. Language stating that the City must approve any revisions to provisions of the
CC&Rs that may particularly affect the City. The HOA shall not seek approval
from the City of said revisions without the prior consent of one-hundred percent
(100%) of the holders of first mortgages and one-hundred percent (100%) of the
property owners.
h. Language stating that the HOA shall not seek to be released by the City of any
maintenance obligations without the prior consent of the City and one-hundred
percent (100%) of the holders of first mortgages and one-hundred percent (100%) of
the property owners - unless the Director of Planning and Building waives this
requirement.
1. Language stating that the HOA shall implement an education and enforcement
program to prevent the discharge of pollutants from all on-site sources into the
storm water conveyance system.
J. Language stating that the HOA shall maintain, in perpetuity, membership in an
advance notice service/system such as the USA Dig Alert Service and shall cause
any private facilities of the property owners or HOA to be marked out whenever
work is performed in the area.
k. Language stating that a NPDES provision for the perpetual and routine maintenance
of structural BNlPs, private sewer and storm drain facilities for the purpose of
preventing and in such a manner as to prevent the discharge of non-storm water
pollutants to the public storm water conveyance system. The CC&Rs shall include
the requirement to maintain records for the past 10 years ofBMP implementation,
inspections, and maintenance activities.
1. Language stating that the HOA shall fund and oversee a contract for the inspection
and maintenance of the onsite private sewer system and the frequency of
maintenance of the sewer system shall be subject to the approval of the City
Engineer and the Director of Public Works.
m. Language stating that the Trash and Recycling program requirements shall be
implemented to the satisfaction of the City's Conservation Coordinator.
n. Said CC&Rs shall be consistent with Chapter 18.44 of the Subdivision Ordinance,
and shall be recorded after approval By the California Department of Real Estate
concurrently with the fmal map.
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o. Language stating that the fire service lateral and water supply to buildings, including
the on-site fire hydrant, mllst be maintained and operational at all times to the
satisfaction of the Fire Marshall.
p. Include language and graphics showing that Sharp Hospital site, located north ofthe
. project, is master planned to have additional structures that will be constructed in the
future.
10. Condition No. 21- (BOA Budget). In satisfaction of Condition No. 21 ofthe Resolution,
Developer agrees to submit a Homeowners Association budget concurrently with the tenant
notification outlined in Condition No.4 for review and approval by the City Engineer for the
maintenance of private streets and drives, storm drains, sewage systems, electrical system, plumbing,
and roof. More specifically: said budget shall include the following provisions and maintenance
activities:
a. Streets mllst be sealed every 7 years and overlaid every 20 years.
b. Sewers must be cleaned once a year with a contingency for emergencies.
c. Red curbs/striping must be painted once every three years.
d. The Homeowners Association shail be responsible for service utilities including water
and sewer, and the billing and payment of these utility costs.
e. Storm Water quality facilities inspected prior to and after every rain event and cleaned as
necessary (twice a year minimum); media inserts replaced as recommended by the
manufacturer; with a contingency for emergencies. The budget shall also include a
monitoring program including sampling and preparation of an annual report, when
required by the City.
f. Establishment of a capital fund that will adequately cover the expected costs associated
wi th repairing or replacing the Project/complex's electrical system, plumbing system, and
roof.
g. Maintaining fire sprinklers, fire alarms, and fire protection equipment.
11. Condition No. 23- (Agreements). In satisfaction of Condition No. 23 of the Resolution,
Developer agrees to:
a) Defend, indemnify and hold harmless the City and its agents, officers, and employees, from
any claim, action or proceeding against the City, or its elected officials, officers or employees
to attack, set aside, void or annul any approval by the City, including approval by its
Planning Commission, City Councilor any approval by its agents, officers, or employees
with regard to this subdivision pursuant to Section 66499.37 ofthe State Map Act provided
the City promptly notifies the subdivider of any claim, action or proceeding and on the
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further canditian that the City fully caaperates in the defense.
b) Hald the City harmless from any liability far erasian, siltatian .or increased flaw .of drainage
resulting fram this project and spillage .of sewage generated by the prajectanto adjacent
public .or private streets .or inta offsite starm water canveyance systems.
c) Maintain starm water quality treatment measures in accardance with an approved
maintenance and inspectian plan.
d) Implement and sustain in perpetuity, a source cantrol starm water quality management
program as .outlined in the Water Quality Technical Report.
12. B Conditions - (Agreements). In satisfactian afB Canditians .of the Resalutian, Developer
agrees that the fallawing Canditians .of Appraval shall be satisfied priar ta sale .of the first
condaminium unit unless .otherwise noted:
a) Develaper shall provide e~idence .of campliance with the mast current requirements .of the
California Department .of Real Estate (DRE).
b) Correct any deficiencies listed in Attachment E, Property Candition Repart as needing
"immediate repair," and correct any violations identified by the Hausing lnspectian, to the
satisfaction .of the Directar .of Planning and Building.
c) Provide type 2A-lOBC fire extinguishers every 75 feet .of travel distance, and smake
detectors far each unit, ta the satisfactian .of the Chula Vista Fire Department.
d) All lighting shall meet the pratective current lighting standards .of the current Uniform
Building Code.
e) Demanstrate campliance with Sectian 17.24.40 and 17.24.050 ofthe Chula Vista Municipal
Code, by shawing that walls and ceilings meet the current Unifarm Building Cade standards
regarding fire and saund attenuatian ta the satisfactian .of the City Building Official and
Director .of Planning and Building. If said walls and ceiling da not meet said standards, then
the walls and ceiling shall be madified ta confarm ta the Uniform Building Cade.
f) Develaper shall .obtain a Canditional Use Permit far any an-site sales .or leasing office.
g) Submit evidence satisfactary to the Director of Planning and Building that the Applicant has
camplied with the approved hamebuyer assistance program requirements far existing
residents wha chaase ta purchase their candominium units, as stated in the Applicant's letter
dated February 24,2006 (attached).
h) Pravide ari illuminated directary map at the entrance ta the praject ta the satisfactian of the
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Fire Marshal.
13. Special Taxes and Assessments. The Develaper shall ensure that praspectivepurchasers
sign a "Natice .of Special Taxes and Assessments" pursuant ta Municipal Cade Sectian 5.46.020
regarding projected ta."Xes and assessments.
14. Satisfaction of Conditions. City agrees that the executian afthis Agreement canstitutes
partial .or full satisfactian afDevelaper's abligatian afCanditians: 1,3,4,7, II, 16, 17, 18,20,21,
23, and B Canditians (T.M. Exhibit C).
15. Unfulfilled Conditious. Develaper hereby agrees, unless .otherwise canditianed, that
Develaper shall camply with all unfulfilled canditians .of approval afT entative Map Resalutian Na.
2006-179, and shall remain in campliance with and implement the terms, conditians and provisians
therein.
16. Recording. This Agreement, .or an abstract shall be recarded simultaneausly with the
recardatian .of the Final Map.
17. Miscellaneous.
a. Notices. Unless .otherwise pr.ovided in this Agreement .or by law, any and all
natices required .or permitted by this Agreement .or by law ta be served an .or delivered ta either party
shall be in writing and shall be deemed duly served, delivered, and received when persanally
delivered ta the party t.o wham it is directed, .or in lieu thereaf, when three (3) business days have
elapsed fallawing depasit in the U.S. mail, certified .or registered mail, return receipt requested, first-
class p.ostage prepaid, addressed ta the address indicated in this Agreement. A party may change
such address far the purpase afthis paragraph by giving written natice .of such change ta the ather
party.
CITY OF CHULA VISTA
276 Faurth Avenue
Chula Vista, CA 91910
Attn: City Engineer
EQR-Missians at Sunbaw, LLC
Twa Narth Riverside Plaza, Suite 400
Chicaga, IL 60606
Attn: Legal Services, C.ond.ominium Mapping
::;; ~"A party may change such address far the purpase .of this paragraph by giving written n.otice .of such.
change ta the ather party in the manner pravided in this paragraph.
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b. Headings. All article headings are for convenience only and shall not affect the
interpretation of this Agreement.
c. Gender & Number. 'Whenever the context requires, the use herein of (i) the
neuter gender includes the masculine and the feminine genders and (ii) the singular number includes
the plural number.
d. Refereuce to Paragraphs. Each reference in this Agreement to a section refers,
unless otherwise stated, to a section this Agreement.
e. Iucorporation of Recitals and Exhibits. All recitals herein and exhibits attached
hereto are incorporated into this Agreement and are made a part hereof.
f. Covenants and Conditions. All provisions ofthis Agreement expressed as either
covenants or conditions on the part ofthe City or Developers, shall be deemed to be both covenants
and conditions.
g. Integration. This Agreement and any exhibits or references incorporated into this
Agreement fully express all understandings of the Parties concerning the matters covered in this
Agreement. No change, alteration, or modification ofthe terms or conditions of this Agreement, arid
no verbal understanding of the Parties, their officers, agents, or employees shall be valid unless made
in the form of a written change agreed to in writing by both Parties or an amendment to this
Agreement agreed to by both Parties. All prior negotiations and agreements are merged into this
Agreement.
h. Severability. In the event that any phrase, clause, paragraph, section or othet
portion ofthis Agreement shall become illegal, null or void, or against public policy, for any reason,
or shall be held by any court of competent jurisdiction to be illegal, null or void, against public
policy, or otherwise unenforceable, the remaining portions of this Agreement shall not be affected
and shall remain in force and effect to the fullest extent permissible by law.
i. Drafting Ambiguities. The Parties agree that they are aware that they have the
right to be advised by counsel with respect to the negotiations, terms and conditions of this
Agreement, and the decision of whether or not to seek advice of counsel with respect to this
Agreement is a decision that is the sole responsibility of each Party. This Agreement shall not be
construed in favor of or against either Party by reason of the extent to which each Party participated
in the drafting of the Agreement.
j. Conflicts Between Terms. If an apparent conflict or inconsistency exists between
"= "the main body ofthis Agreement and any exhibits, the main body of this Agreement shall control. If
a conflict exists between an applicable federal, state, or local law, rule, regulation, order, or code and
this Agreement, the law, rule, regulation, order, or code shall control. Varying degrees of stringency
10
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among the main body ofthis Agreement, the exhibits, and laws, rules, regulations, orders, or codes
are not deemed conflicts, and the most stringent requirement shall control. Each Party shall notify the
other immediately upon the identification of any apparent conflict or inconsistency concerning this
Agreement.
k. Compliance With Law. Developers shall, at its sole cost and expense, comply
with all the requirements of municipal, state, and federal authorities now in effect or which may
hereafter be in effect related to this Agreement.
I. Governing Law. This Agreement shall be construed in accordance with, and
governed by, the laws of the State of California. This Agreement shall be deemed made and entered
into in San Diego County, California.
m. Administrative Claims Requirements and Procedures. No suit or arbitration
shall be brought arising out of this Agreement, against the City unless a claim has first been
presented in writing and filed with the City and acted upon by the City in accordance with the
procedures set forth in Chapter 1.34 ofthe 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, Devi:1opers shall meet and confer in good faith with City for the purpose of
resolving any dispute over the terms of this Agreement.
n. Fees. In the event any action or proceeding shall be instituted in connection with
this Agreement, including without limitation the enforcement of any indemnification obligation
contained herein, the losing Party shall pay to the prevailing Party a reasonable sum for attorneys'
fees and costs incurred in bringing or defending such action or proceeding and/or enforcing any
judgment granted.
o. Jurisdiction and V en ue. 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 ofChula Vista.
q. Municipal Powers. Nothing contained in this Agreement shall be construed as a
limitation upon the powers of the City as a chartered city of the State of California.
r. No Waiver. No failure of the City to insist upon the strict performance by the
Developers of any covenant, term or condition of this Agreement, nor any failure to exercise any
_" ",right or remedy consequent upon a breach of any covenant, term, or condition of this Agreement,
shall constitute a waiver of any such breach of such covenant, term or condition. No waiver of any
default hereunder shall be implied from any omission to take any action on account of such default.
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The consent or approval to or of any act requiring consent or approval shall not be deemed to waive
or render unnecessary future consent or approval for any subsequent similar acts. No waiver of any
breach shall affect or alter this Agreement, and each and every covenant, condition, and term hereof
shall continue in full force and effect to any existing or subsequent breach.
s. Cumulative Remedies. All rights, options, and remedies of City contained in this
Agreement shall be construed and held to be cumulative, and no one ofthem shall be exclusive of
the other, and City shall have the right to pursue anyone or all of such remedies or to. seek damages
or specific performance in the event of any breach ofthe terms hereof or to pursue any otherremedy
or relief which may be provided by law or equity, whether or not stated in this Agreement.
t. Good Faith. The Parties promise to use their best efforts to satisfy all conditions
to this Agreement and to take all further steps and execute all further documents reasonably
necessary to put this Agreement into effect.
u. Assignability. Upon request of the Developer, any or all on-site duties and
obligations set forth herein may be assigned to developer's successor in interest if the City manager
in his/her sole discretion determines that such an assignment will not adversely affect the City's
interest. The City Manager in his/her sole discretion may, if such assignment is requested, permit a
substitution of securities by the successor in interest in place and stead of the original securities
described herein so long as such substituted securities meet the criteria for security as set forth
elsewhere in this agreement.
v. Capacity of Parties. Each signatory and Party to this Agreement 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, and agrees to hold the other Party or Parties hereto harmless if it is later
determined that such authority does not exist.
[NEXT PAGE IS PAGE ONE OF SIGNATURE PAGES]
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[P AGE ONE OF TWO SIGNATURE PAGES TO SUBDIVISION AGREEMENT FOR
MISSIONS AT SUNBOW COl'\l)OMINUlM CONVERSION]
CITY OF CHULA VISTA
Cheryl Cox
Mayor
Attest:
Susan Bigelow
City Clerk
Approved as to Form:
Ann Moore
City Attorney
,[NEXT PAGE IS PAGE TWO OF SIGNATURE PAGES]
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[PAGE TWO OF TWO SIGNATURE PAGES TO SUBDIVISION AGREEMENT FOR
MISSIONS AT SUNBOW CONDOMINUIM CONVERSION]
DEVELOPER/OWNER:
EQR - Missions at Sunbow, LLC
a Delaware limited liability company
By: EQR - Flatlands, LLC, a Delaware limited liability company, its sole member
By: ERP Operating Limited Partnership, an Illinois limited partnership,
its member
By: Equity Residential, a Maryland real estate investment trust, its
::"/~ ~~
James G. Athas
Its: Assistant Vice President
DATED: December _,2009
(ATTACH NOTARY ACKNOWLEDGMENTS)
STATE OF ILLINOIS )
) ss
COUNTY OF COOK )
I certify that I know or have satisfactory evidence thatJaXY\..Q.S fJrtl103 signed this
instrument, on oath stated that he was authorized to execute the instrument and acknowledged it to
be the free and voluntary act and deed of the said company, for the uses and purposes mentioned in
the instrument.
m. ~
,JFFICIAL SEAL"
Amanda A. Betty
Notary Public; State of Illinois
My Commission Esp1resMar17,2t110
WITNESS my hand and official seal hereto affixed on 'bQcexyk;(L'(? ,2009.
aVWUAC~ . (jrttL
(Print Name) , VlCla
NOTARY PUBLIC if: and for the St e of
Illinois, residing in !j)Jrn(\O
My appointment expires: '~jS' n'ID
4-29
List of Exhibits
Exhibit A
Legal Description of Property
Exhibit B
Property Condition Assessment
Report and Housing Inspection
Requirements
Exhibit C
TN[ Resolution No. 2006-179
4-30
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
Being a subdivision of Lot 247 ofChula Vista Tract No. 90-07, Sunbow, Phase lC, Units 5, 6, 13,
14 and 15 in the City ofChula Vista, County of San Diego, State of California, all according to Map
thereof No. 13917 filed in the Office of the County Recorder of San Diego January 19, 2000.
J:\Engineer\LANDDEV\Projects\Sunbow'u\1issions @Sunbow\SubdivisionAgreementMissionatSunbowv.2.doc
=.o=''''i=,
4-31