HomeMy WebLinkAbout2010/02/02 Item 8
CITY COUNCIL &
REDEVELOPMENT AGENCY
ACENDASTATEMENT
ITEM TITLE:
SUBMITTED BY:
REVIEWED BY:
".\If.- . ....
...:::? .~ CITYOF
:~ 'f'~ CHULA VISTA
FEBRUARY 2, 2010
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Item '~-
JOINT RESOLUTION OF THE CITY COUNCIL AND THE
REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA
APPROVING THE SECOND AMENDMENT TO THE RELOCATION
AGREEMENT BY AND AMONG THE CITY OF CHULA VISTA,
THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA
VISTA, THE SA.N DIEGO UNIFIED PORT DISTRICT AND ROHR,
INC., OPERATING AS GOODRICH AEROSTRUCTURES, AND
AUTHORIZING THE CITY MANAGER/EXECUTIVE DIRECTOR
TO EXECUTE THE SECOND AMENDMENT TO THE
RELOCATION AGREEMENT ON BEHALF OF THE CITY AND THE
REDEVELOPMENT AGENCY /,~
DIRECTOR OF D~~rMENT SERVICE,/J1!I
CITY MANAGER
4/STHS VOTE: YES D NO I X
SUMMARY
On July 13, 1999, the City of Chula Vista ("City") the Chula Vista Redevelopment Agency
("Agency") the San Diego Unified Port District ("Port"), and Rohr, Incorporated (DBA as BF
Goodrich Aerospace Aerostructures Group, or "Goodrich") entered into a Relocation Agreement.
The purpose of the agreement was to coordinate a series of land transfers intended to facilitate the
relocation and consolidation of Goodrich's operations to the north side of the proposed H Street
extension in the Bayfront Redevelopment Project Area. The agreement, among other provisions,
included restrictions on the types of land uses that would be allowed adjacent to the Goodrich
facility. The Second Amendment to the Relocation Agreement would provide certain rights and
assurances to Goodrich to address their concerns related to land uses that are contemplated in the
Chula Vista Bayfront Master Plan ("CVBMP") or in conjunction with any other land use
amendments on the Chula Vista Bayfront.
ENVIRONMENTAL REVIEW
Notwithstanding any term or condition of this Second Amendment to the Relocation Agreement,
the Port, City and Agency fully reserve all discretion to take or not take any discretionary actions
upon completion of the envirorunental and public review process for the CVBMP or any other land
use amendments on the Chula Vista Bayfront. Nothing in this Second Amendment to the
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FEBRUARY 2, 2010, Item 8
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Relocation Agreement is intended or shall be interpreted to limit the reservation of discretion or to
commit the Port, City or Agency to take any discretionary actions or to commit the parties,
individually or collectively, to any specific course of action, that would result in the present
approval of, or commitment, to any aspect of the CVBMP or any other project. The Environmental
Review Coordinator has reviewed the proposed activity for compliance with the California Quality
Act ("CEQA") and based on the foregoing has determined that there is no possibility that the
activity may have a significant effect on the environment; therefore, pursuant to Section
15061(b)(3) of the State CEQA Guidelines, the activity is not subject to CEQA. Thus, no
environmental review is necessary.
RECOMMENDATION
Adopt the Resolution and authorize the City Manager/Executive Director to execute the Second
Amendment to the Relocation Agreement.
BOARDS/COMMISSION RECOMMENDATION
Not applicable
DISCUSSION
During the community planning process for the CVBMP, the Citizens' Advisory Committee
recommended merging an independent planning effort that was underway by the North C.V.
Waterfront L.P. ("Pacifica") for the Mid-Bayfront properties, into the overall planning effort for the
CVBMP. As a result of that consolidated planning process, a recommendation was made to shift
high-density residential land uses to the centrally located Harbor District and away from the more
environmentally sensitive Sweetwater District. The shift in residential uses would require an
exchange of Pacifica's Sweetwater District properties for Port-administered properties in the Harbor
District (the Port's trust obligations prohibit residential development on property it administers).
Residential land uses in the Harbor District and the exchange of the Pacifica and Port properties
were components of the Proposed Project described in the Revised Draft Environmental Impact
Report ("EIR") for the CVBMP circulated for public comment in May 2008.
Following its review of the EIR, Goodrich expressed concerns that the Proposed Project, or any
other contemplated land use plan placing residential uses in proximity to its facility, could result in
undesirable impacts on its industrial operations. In addition, the proximity of residential
development to its facilities would conflict with provisions of the Relocation Agreement.
City, Agency and Port staff, along with outside counsel, have been in discussions with Goodrich
representati ves for several months in an effort to understand and address their concerns.
As a result of those discussions, a Second Amendment to the Relocation Agreement ("Second
Amendment") has been drafted to include the following:
. The Port will cause an Easement Agreement to be recorded on its CVBMP holdings
acknowledging the presence and continuance of Goodrich's industrial operations and its
attendant noise, light, odors, etc.
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FEBRUARY 2, 2010, Item 8
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. The Port will execute and record a Memorandum of Disclosure for the proposed residential
parcels prior to the Close of Escrow of the Port's land exchange with Pacifica.
. The City/Agency (subject to the reservation of its discretion) will condition the approval of
the residential development project on the use of specific design and/or construction
techniques or standards, related to:
o Foundation systems
o Grading
o Vapor intrusion
o Prohibition of underground structures
o Interior noise levels
o Air conditioning
o Development sequencing/phasing
o Landscape screening/fencing/buffering
o Location
. Cooperation to ensure that development activities do not interfere with Environmental
Remediation Activities underway or planned as part of the Relocation Agreement
. Consultation on development plans to avoid or minimize impacts on the groundwater or
Environmental Remediation Activities
. Measures to avoid or reduce the lateral migration of groundwater in underground utility
corridors
. Measures to reduce potential vertical migration of contaminants
. Mitigation related to storm drain lines
. The use of risk-based remediation standards specific to proposed land uses
The Second Amendment contemplates the negotiation and execution of several subsequent
agreements, including:
I. Cooperative Remediation Agreement - This agreement between the City/ Agency and
Goodrich would allocate Agency resources to remediation and/or environmental protection
related to Goodrich's industrial operations
2. Goodrich Development Agreement Amendment - This amendment would extend the term
and the rights within the existing Development Agreement between the City and Goodrich
The Second Amendment to the Relocation Agreement balances the needs of a broad range of
constituents and supports the Chula Vista Bayfront concepts originally envisioned by the Citizens'
Advisory Committee in 2003.
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
CURRENT YEAR FISCAL IMP ACT
There are no current year direct tiscal impacts to the City or the Redevelopment Agency as a result
of this action.
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FEBRUARY 2,2010, Item 8
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ONGOING FISCAL IMPACT
There are no ongoing fiscal impacts to the City or the Redevelopment Agency as a result of this
action.
A TT ACHMENTS
1. Second Amendment to the Relocation Agreement
2. Relocation Agreement, July 13, 1999
Prepared by: Dennis Stone. Economic Development Officer
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THE A IT ACHED AGREEMENT HAS BEEN REVIEWED
AND APPROVED AS TO FOR1\1 BY THE CITY
ATTORNEY'S OFFICE AND WILL BE
FORMALL Y SIGNED UPON APPROVAL BY
THE CITY COUNCIL
I/~~/;O
/ /
SECOND AMENDMENT TO RELOCATION AGREENIENT
BETWEEN THE CITY OF CHULA VISTA,
REDEVELOPMENT AGE}.JCY OF THE CITY OF CHULA VISTA,
SAN DIEGO UNIFIED PORT DISTRICT, AND ROHR INC.
Dated:
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Attachment 1
SECOND AMENDMENT TO RELOCA nON AGREEMENT
THIS SECOND AMENDMENT TO RELOCA nON AGREEMENT (hereinafter referred
to as "Amendment") is made and entered into effective this _ day of February, 2010, by and among
the CITY OF CHULA VISTA, a municipal corporation ("city"), REDEVELOPMENT AGENCY
OF THE CiTY OF CHULA VISTA, a redevelopment agency formed pursuant to Health and Safety
Code 99 33000 et seq. ("Agency"), SAN DIEGO UNIFIED PORT DISTRICT, a Port District
formed pursuant to Harbors and Navigations Code App. 1, 99 I et seq. (hereinafter referred to as
"Port") and ROHR, INC., operating as Goodrich Aerostmctures, a Delaware corporation and wholly
owned subsidiary of The Goodrich Corporation (hereinafter referred to as "BFG' or "Goodrich").
All references in this Amendment to "City/Agency" shall refer collectively to City and Agency.
City, Agency, Port and Goodrich are from time to time hereinafter referred to individually as a
"party" and collectively as the "parties." Except as set forth in this Amendment, capitalized terms
will have the meanings assigned to them in the Relocation Agreement (defined below), and section
references are to sections of the Relocation Agreement.
Recitals
A. Relocation Agreement. Goodrich, Port and City/Agency have entered into that
certain Relocation Agreement, dated July 13, 1999, and the tirst Amendment to Relocation
Agreement, dated November 1, 1999 (collectively, the "Relocation Agreement").
B. Purpose of Relocation Agreement. The purpose of the Relocation Agreement was,
among other things, to facilitate the redevelopment of the South Campus in a manner consistent with
the Industrial Business Park designation contained in the Port's Master Plan
C. Chula Vista Bayfront Master Plan. In 2002, Port, City and Agency joined together
to create a master plan for the approximately 556-acre Chula Vista Bayiront located on the
southeastern edge of San Diego Bay in the City of Chula Vista, surrounding the new campus. That
master plan is the subject of the Revised Draft Environmental Impact Report for the Chula Vista
Bayfront Master Plan and Port Master Plan Amendment (UPD # 83356-EIR-658; SCH #
2005081077) ("DEIR"). The project described in the DEIR is known as the Chula Vista Bayfront
Master Plan ("CVBMP"). Port and City/Agency are the Lead Agency and the Responsible
Agencies, respectively, as those terms are defined in California Public Resources Code 99 21000 et
seq.
D. CVBMP Land Uses. Components of the CVBMP may include: a signature park,
opeh space areas and cultural use; improved visual corridors to San Diego Bay; a resort and
convention center and other hotels; residential and mixed-use office/commercial recreation uses;
waterfront retail uses and public gathering spaces around the harbor; a new commercial harbor and
improved navigation channels; a public promenade and bike trail through the entire bayfront; and
large buffer zones to protect adjacent sensitive resources.
E. Residential and Mixed-Use Office/Commercial. A further component of the
CVBMP may include a proposed exchange ofland owned by the Port commonly known as Parcels
HP-5, H-13, H-14 and H-15, more particularly described in Exhibit A to this Amendment ("Port
Exchange Property"). The Project, as described in the DEIR, designates a portion of the Port
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Exchange Property (Parcels HP-5, H-13 and H-14) ("Residefltial Parcels") for residential use
consisting of up to I ,500 multi-family units ("Residefltial Compofleflt") with the balance (Parcel H-
IS) designated for mixed-use office/commercial.
F. Goodrich's Oppositio"n to CVBMP. Goodrich has expressed to the Port its
opposition in principle to the CVBMP based on concerns regarding incompatibilities between the
Residential Component and Goodrich's manufacturing and related operations on the New Campus,
and inconsistencies between the Residential' Component and provisions of the Relocation
Agreement. In a letter to Port from its legal counsel, Bingham McCutchen LLP dated August 6,
2008 ("Oppositiofl Letter"), Goodrich stated its opposition to the CVBMP and the contents of the
DEIR. Goodrich's opposition to the CVBMP and comments to the DEIR included, without
limitation, issues associated with the presence of Hazardous Substances, project impacts on soil and
groundwater contamination, potential land use conflicts, noise and vibration impacts, air
quality/odors and issues associated with the project's compliance with the Public Trust Doctrine.
G. Amendment of Relocation Agreement. The parties now wish to amend the
Relocation Agreement as set forth below for the purpose of addressing, among other things,
Goodrich's opposition to the CVBMP and its comments on the DEIR, and expressly permitting the
Project Actions (as defined below) in the event the Port certifies and City/ Agency approve a final
environmental impact report for the Chula Vista Bayfront Master Plan and Port Master Plan
Amendment consisting of the DEIR and other materials required by S 15132 of Title 14, Chapter 3,
California Code of Regulations, notwithstanding any inconsistencies between those approvals and
the provisions of the Relocation Agreement. Subject to Recital H, below, the Port has also agreed to
execute and record against the Residential Parcels certain easements, disclosures, releases and
covenants designed and intended to reduce potential costs and liabilities to Goodrich resulting from
potential incompatibilities between its ongoing and future operations and the Residential
Component. Subject to Recital H, below, the City/Agency have also agreed to condition the
approval of any residential development on the Residential Parcels as set forth below in order to
avoid or mitigate incompatibilities between such development and the ongoing operation of the New
Campus, and to facilitate the prompt and cost-effective remediation of environmental conditions
within the CVBMP area.
H. Reservation of Discretion. The parties to this Amendment understand, acknowledge
and agree that, notwithstanding the terms and conditions of this Amendment, (i) certain actions
(collectively, "Discretioflary Actiofls") incidental to matters described in this Amendment may
require the exercise of discretion by one or more party pursuant to CEQA and (ii) such Discretionary
Actions cannot iawfully be committed to by contract pursuant to CEQA and cases interpreting
CEQA. The parties acknowledge that the environmental and public review process for the
Discretionary Actions are currently ongoing and that the Port, City and Agency have not taken or
committed to take any or all ofthe Discretionary Actions and, notwithstanding any term or condition
of this Amendment, the Port, City and Agency fully reserve all discretion to take or not take any of
the Discretionary Actions upon completion of the environmental and public review process (such
reservation by Port; City and Agency is hereinafter called, "Reservatiofl of Discretiofl ''). Nothing in
this Amendment is intended or shall be interpreted to limit tlie Reservation of Discretion or to
commit the Port, City or Agency to take any of the Discretionary Actions or to commit the parties,
individually or collectively, to any specific course of action, that would result in the present approval
of, or commitment, to any aspect of the CVBMP. The Reservation of Discretion shall apply to all
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contemplated legislative and quasi-judicial actions in connection with the Discretionary Actions
including, without limitation, approval ofland use entitlements or permits, disposition of interests in
land, CEQA compliance, and the making of findings and determinations required by law. In the
event that the Port, City or Agency take or fail to take one or more of the Discretionary Action, any
such action or inaction shall not constitute a breach of such party's obligations under this
Amendment or of any express or implied covenant herein.
NOW, THEREFORE, the parties agree as follows:
1. Related Agreements; Conditions Precedent. The effectiveness of this Amendment
is conditioned upon and subject to the execution, delivery and effectiveness of the following
agreements:
1.1 Cooperative Remediation Agreement by and between City/Agency and
Goodrich.
1.2 Amendment of Development Agreement by and between City/Agency and
Goodrich.
2. Use Covenants. If the Port, City and/or Agency proceed with implemcntation of the
"Proposed Project" or any of the "Project Alternatives" or any combination of the "Proposed
Project" or "Project Alternatives," as those terms are defined in the DEIR, the Port, City and Agency
each contemplate taking one or more ofthe following Discretionary Actions:
2.1 Certification of a final Environmental Impact Report contammg the
information contained in the DEIR and additional information required by SS 15362 and 15132 of
California Code of Regulations Title 14, Chapter 3; .
2.2 Amending the Port Master Plan and Chula Vista Bayfront Master Plan
consistent with the CVBMP;
2.3 Amending the City General Plan, Bayfront Specific Plan, and Local Land Use
Program consistent with the CVBMP;
2.4 Consummating the exchange of the Port Exchange Property for the land
commonly known as Parcels S-I, S-2, S-3, SP-I, SP-2 and SP-3;
2.5 Approving coastal development permits, specific plans, tentative maps,
planned development permits, and final maps consistent with the CVBMP;
2.6 Issuing permits for construction of public and private improvements and the
use and occupancy of such improvements, consistent with the CVBMP;
2.7 Conveying land and interests in land, including ground leases, to third-parties
in connection with the development of parcels within the project boundaries of the CVBMP,
consistent with the CVBMP; and
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2.8 Taking such other and further actions as Port, City and Agency determine, in
their sole discretion, to be necessary for the implementation, build-out, completion, occupancy and
use of the CVBMP.
The foregoing actions are collectively called "Project Actions." If and to the extent any of the
Project Actions are inconsistent with or violative of any term, covenant, condition, requirement,
undertaking or other provision on the part of the Port, City or Agency contained in the Relocation
Agreement (anyone or more of said terms, covenants, conditions, requirements, undertakings or
other provisions are hereinafter individually and collectively called "Use Covenants"), the Use
Covenants are hereby deemed amended for the specific purpose of permitting the Project Actions;
provided, however, that nothing in this Second Amendment is intended or shall be interpreted to
permit any actions or approvals that are not necessary for the implementation, build-out, completion,
occupancy and use ofthe CVBMP and that are inconsistent with or violative of any Use Covenants.
3. Confirmation of Relocation Agreement; Withdrawal of Objections.
3.1 Relocation Agreement Confirmed. Except as set forth in this Amendment,
the Relocation Agreement is hereby confirmed. If for any reason the Port or City elect not to
approve any of the actions described in Sections 2.1, 2.2, 2.3 and 2.4 of this Amendment, (i) such
election will not constitute a breach of the Port's or City's respective obligations under this
Amendment and (ii) the parties will negotiate diligently and in good faith to revise this Amendment
as necessary to reflect the changed circumstances resulting from that election.
3.2 Withdrawal of Objections. Goodrich agrees to withdraw, and hereby
withdraws, the objections lodged by it to the proposed CVBMP, including, without limitation, the
objections to the proposed residential development on the Residential Parcels and to the contents of
the DEIR set forth in correspondence from its legal counsel, Bingham McCutchen LLP and its
consultant CH2M Hill. Goodrich further agrees not to object to or oppose approval ofthe CVBMP,
the Land Exchange (in substantially the fo~ described in the DEIR) by any responsible agency or
approving authority including, without limitation, the California State Lands Commission and the
California Coastal Commission, any other coastal development permit consistent with the DEIR and
CVBMP by any other responsible agency or approving authority, or to bring any administrative or
judicial challenge to such approvals. Goodrich will cause its legal counsel to assist Port in
responding to the Opposition Letter.
4. Easements, Covenants and Disclosures.
4.1 Easement Disclosure and Release Agreement. Concurrent with the close of
escrow of the Exchange Agreement, Goodrich shall execute and Port shall cause the grantee of the
Port Exchange Property to execute the Easement, Disclosure and Release Agreement ("Easement
Agreement"), a copy of which is attached as Exhibit B. Promptly thereafter, the Port shall cause the
Easement Agreement to be recorded in the office of the San Diego County Recorder (and will
provide Goodrich with copies of the recorded document).
4.2 Memorandum of Disclosure. Prior to close of escrow of the Exchange
Agreement, Port shall cause the grantee of the Port Exchange Property to execute the Memorandum
of Disclosure ("Disclosure ]}!emorandum"), a copy of which is attached as Exhibit C. Promptly
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thereafter, Port shall cause the Memorandum of Disclosure to be recorded in the office of the San
Diego County Recorder (and will provide Goodrich with copies of the recorded document).
5. H Street Extension.
5.1 H Street Implementation Agreement. Pursuant to the letter agreement
among the Port, the City/Agency and Goodrich, dated May 6, 2008, a copy of which is attached as
Exhibit D, the December 31, 2009 deadline for completion of the H Street Extension has been
extended to December 31, 2012, and the Port has agreed to use its best efforts to begin the
construction process for this project by December 31, 20 I O. Section 4.2 of the Relocation
Agreement is amended accordingly.
5.2 Rick Engineering Study. The Port has commissioned a new study regarding
the H Street Extension, which is intended to substitute for the H Street Boyle Study and is currently
being prepared by Rick Engineering Company ("Rick Engineering Study"). The Rick Engineering
Study shall address such matters as (i) the design, engineering and construction of H Street from
Interstate 5 to Marina Parkway; (ii) traffic signals, setbacks, access to the Goodrich Facility
(including heavy vehicle and equipment access), buffering, fencing, lighting, security and related
matters designed to ensure conformity between the H Street Extension and the southern boundary of
the New Campus; (iii) relocation of above- and below-ground utilities; and (iv) installation oftraftic
signals, sidewalks and related improvements as may be reasonably necessary to facilitate vehicle and
pedestrian access along the fully developed Bayfront. Upon completion and approval of the Rick
Engineering Study by the Port, Goodrich and the City/Agency, the Rick Engineering Study shall be
substituted for the H Street Boyle Study for all purposes under the Relocation Agreement.
5.3 Marina Park.vay Realignment; Marina Wedge Parcel. The Port has
expressed interest in purchasing from Goodrich, and including in the CVBMP, that portion of Port
Parcel 2 described in Exhibit E (the "Marina Wedge Pared'), and Goodrich and the Port are
currently negotiating the terms of a purchase agreement for the Marina Wedge Parcel. The
obligations and deadlines concerning the Marina Parkway Realignment described in Section 4.3 of
the Relocation Agreement shall be suspended pending such negotiations. Subject to the execution
of a mutually acceptable purchase agreement between Goodrich and the Port and conveyance of the
Marina Wedge Parcel to the Port, the parties agree that the Marina Parkway Realignment, as
described in said Section 4.3, shall no longer be required, and that the Port shall have no further
obligations regarding the Marina Parkway Realignment as of the date of conveyance of the. Marina
Wedge Parcel to the Port; provided, however, that if a mutually acceptable purchase agreement
between Goodrich and the Port concerning the Marina Wedge Parcel has not been fully executed on
or before December 31, 20 I 0, (or such other deadline as may be mutually agreed upon between
Goodrich and the Port), the provisions of said Section 4.3 shall be reinstated and the Port shall
proceed with the extension of Marina Parkway in accordance with said Section 4.3.
6. Covered Areas. The location and configuration of the Covered Areas shall be as
described and depicted in Exhibit F, and Section 6.5 and Exhibit E of the Relocation Agreement are
amended accordingly.
7. Residential Development. Subject to the Reservation of Discretion, City/Agency
shall condition the approval of any residential development on the Residential Parcels upon the all of
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the following (either through conditions of approval of development or by binding, written contract,
or some combination thereof):
7.1 Development Features.
i. Foundation Svstems. The foundation system of the residential
development shall consist of a pile-supported concrete slab mat foundation system substantially in
conformance with the structural concept narrative prepared by Geocon Incorporated ("Structural
Concept Narrative"), a copy of which is attached as Exhibit G. An alternative foundation design
may be substituted for the foregoing system provided such design has no greater potential impact on
the direction, flow rate or vertical movement of the underlying groundwater, or on the dilution or
concentration of chemical constituents in the groundwater.
ii. Grading. The grading plan for the Property shall be performed in such
a way as to minimize depth of soil penetration.
111. Sequencing of Development. The sequence of development of the
Property shall generally be from the south to north, with the first residential buildings constructed on
the southerly portion ofH -14 (anticipated to commence in 20 14) and the last on the northerly portion
ofH-13.
iv. Vapor Intrusion. A vapor barrier shall be installed beneath all
habitable structures consisting of a brownfield membrane liner, or "liquid boot," and buildings and
structures shall be designed with adequate rneasures to avoid or mitigate vapor intrusion.
v. No Underground Structures. No subterranean garages or other
underground spaces intended for use or occupancy that lie within or penetrate the groundwater shall
be permitted on the Residential Parcels.
vi. Interior Noise Levels. All housing unit living spaces (including,
without limitation, bedroom, living room, dining room, family room, home office, den or kitchen)
that face the New Campus shall have exterior and interior features necessary to ensure compliance
with the interior noise standards in the City of Chula Vista noise ordinance (Chapter 19.68 of the
City Municipal Code, or successor ordinance). For purposes of this Amendment, a housing unit
living space shall be deemed to face the New Campus only if: (i) the direction perpendicular to the
plane of any exterior wall of the living space is closer to north than to west or east; and (ii) there is
no other building on the property between the window and the New Campus that is at least the same
height as the living space.
vii. Air Conditioning. Air conditioning or other mechanical ventilation
systems shall be installed in all housing units that have living spaces (defined as bedrooms, living
rooms, dining rooms, family rooms or kitchens) with windows facing the New Campus.
7.2 Location of Development. No residential dwelling unit on the Residential
Parcels shall be constructed within 1,200 feet of the northern boundary of the "H" Street right-of-
way.
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7.3 Compatibility. In addition to the specific requirements listed above in this
Section 7, the City/ Agency shall consider, and require as a condition of approval of residential
development, where reasonable or appropriate, fencing, landscaping, screening, and/or buffer areas
designed to minimize incompatibilities between the Residential Component and ongoing operation
of the New Campus.
8. Integration of Development and Remediation Activities.
8.1 Cooperation. Port, Goodrich and City/Agency shall cooperate, work
together, and use their collective best efforts to ensure that any site development, construction, or
other activities in conjunction with implementation of the CVBMP shall be integrated with and shall
not interfere with Environmental Remediation Activities within the Bayfront that have been
performed or will be performed pursuant to the Relocation Agreement.
8.2 Consultation. Prior to approving or carrying out any site development,
construction or related activities (including, without limitation, installation of infrastructure or
utilities) that involve the construction of new structures, expansion or modification of the
foundations of existing structures, trenching or digging for placement of utility lines or other
purposes, and/or other actions that may impact the groundwater or impede or interfere with
Environmental Remediation Activities, Port and City/Agency shall meet and confer with each other
and with Goodrich (and, as appropriate, with the project proponent and with their respective
environmental consultants) to review the development plans and discuss what actions and
restrictions may be reasonably necessary to avoid or minimize impacts on the groundwater or the
Environmental Remediation Activities.: For purposes of this Section 8, the information to be
reviewed as part of the development plans shall include, at a minimum, the following:
i. Conceptual site development plans showing buildings and foundation
type (e.g., spread footings, mat, slab-on-grade, or pilings).
ii. Any proposed excavation; concrete, asphalt, and landscaped areas; and
location and plans for subsurface utility lines.
111. A schcdule describing when planned construction or site development
activities are anticipated to be performed.
iv. Any proposed relocation of or modifications to existing Remediation
Facilities that are part of the Environmental Remediation Activities on the Bayfront. "Remediation
Facilities" include groundwater monitoring wells, groundwater circulation wells, peizometers, and
treatment infrastructure, including all above- and below-ground structures, equipment, piping,
materials, utilities and storage areas that have been constructed, or that may in the future be
constructed, within the Bayfront to implement the Environmental Remediation Activities.
v. Plans describing how groundwater encountered or removed in
connection with the development activities will be managed during and after the proposed activities.
9. Development Conditions; Health and Safety. Port and City/Agency shall condition
the proposed development upon implementation of measures reasonably designed to mitigate risks to
human health and the environment from Hazardous Substances during site development and
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construction actlVllIes, protect the integrity of existing Remediation Facilities, and minimize
potential or actual conflicts between the proposed activities and the Environmental Remediation
Activities. Such measures may include, as appropriate to the development activities, some or all of
the following:
(a) Establishment of OSHA-compliant health and safety plans, training, and worker
protection objectives for construction workers who may directly contact soil or groundwater
containing Hazardous Substances (e.g., during site preparation, grading, foundation
construction, or landscape installation) to effectively comply with the applicable
environmental laws and regulations;
(b) Preparation of a hazardous substance management, handling, storage, disposal, and
emergency response plan to address hazardous substances encountered during development
and construction activities, including an approved plan for groundwater extractions, soil
excavation, control of contaminant releases to the air, and offsite transport or onsite
treatment, specifically including:
(i) Procedures to characterize and manage site soil during construction excavation
and trenching activities, including excavated soil screening procedures in designated
areas and protocols for sampling, handling, treatment, re-use and/or disposal of
visibly contaminated or odorous soil encountered during site development.
(ii) Procedures to minimize dewatering and to characterize and manage extracted
groundwater, including protocols for sampling, handling, treatment and/or disposal
of potentially impacted groundwater.
(c) Implementation of site development and construction impact mitigation measures,
including control of dust generation at the site, decontamination of equipment, and
prevention of sediment leaving the site in storm water runoff through SWPPP BMPs;
(d) Implementation of procedures for managing underground storage tanks and other
subsurface structures encountered during site development activities, including a protocol for
notifYing Goodrich if any tanks or subsurface structures attributable to their historic activities
are found, in which case a consultation about the most efficient method for the removal and
disposal of such structure or tank and responsibility therefore will be implemented;
(e) Implementation of procedures to protect existing Remediation Facilities and to ensure
access to all such facilities upon reasonable notice for sampling, operation, maintenance,
removal and replacement of pumps, and well sealing during and after site development.
(t) Contingency plans identifYing actions to be taken in the event that the site development
or construction activities result in damage to any Remediation Facilities in a manner that
causes the release of untreated groundwater.
9.1 Placement and Relocation of Remediation Facilities. In conjunction with
the Environmental Remediation Activities, Remediation Facilities have been and will be installed in
various locations on the Bayfront. The parties acknowledge that required relocation of Remediation
Facilities could interfere with, delay or otherwise adversely affect the Environmental Remediation
N73228193.6
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Activities, and hence that careful placement of such Remediation Facilities has been and will
continue to be necessary to minimize the necessity for relocation of such facilities to accommodate
development or construction activities. Port, City! Agency and Goodrich shall cooperate and work
together to ensure appropriate placement of Remediation Facilities in light of planned development
and to minimize required relocation of Remediation Facilities in connection with any proposed
development activities. Goodrich or its environmental consultants shall provide the project
proponent[ s] and the approving authority (Port or City! Agency) with detailed drawings showing the
location of Remediation Facilities to enable their integration into the site development and
construction design plans. To the maximum extent possible, potential conflicts between the planned
development and the location of existing Remediation Facilities shall be identified and resolved
during the design stage. If necessary, the relocation of wells currently located on Port Exchange
Property will be coordinated and paid for in accordance with the cost-sharing provisions of the
Relocation Agreement. In thc event relocation of Remediation Facilities on property other than the
Port Exchange Property becomes necessary to accommodate development or construction activities,
the approving authority (Port or City!Agency) shall provide reasonable notice to Goodrich of the
required relocation of such Remediation Facilities. Under such circumstances, Goodrich or its
environmental consultant shall complete (at the project proponent's expensc), the design and
implementation of any necessary changes to the Remediation Facilities, such as closing existing
monitoring wells, installing and developing any replacement groundwater wells, and installing and
connecting any rerouted pipelines or other system components that require relocation. Goodrich
shall work with the project proponent and the approving authority to coordinate the schedule for
relocation ofthe Remediation Facilities with the site development and construction schedule. Ifany
Remediation Facilities, after being located by mutual consent of the parties, are damaged or
destroyed by as a result of construction activities, or if any Remediation Facilities must be relocated
after having been placed by mutual consent of the parties, such repair or relocation shall be done at
the expense ofthe party who either was responsible for the damage or destruction, or at the cxpense
of the project proponent whose plans require their relocation, as the case may be. The cost for the
abandonment or removal of Remediation Facilities once remedial activities have been concluded to
the satisfaction of the Regional Water Quality Control Board or other environmental oversight
agency with appropriate jurisdiction shall be borne as provided by the cost sharing provisions of the
Relocation Agreement. It is the express intent of the parties that, wherever reasonably possible,
future Remediation Facilities will be located in areas identified in the CVBMP as future sites of
public and private rights-of-way and that such Remediation Facilities will be installed only after
initial completion of improvements to such rights-of-way.
10. Reducing Potential for Lateral Groundwater Migration in Utility Corridors.
The parties acknowledge that groundwater at the Bayfront is typically located at approximately 5 to
12 feet below ground surface, and that ifutilities (particularly stonn drain and sanitary sewer lines)
are buried below the groundwater, it is possible that groundwater containing contaminants may
migrate through utility backfill material. Accordingly, the following mitigation measures shall be
utilized during installation of new utilities to reduce the potential for the lateral migration of
Hazardous Substances in groundwater in utility backfill:
10.1 Avoidance of Groundwater. If reasonably possible based on infrastructure
needs and design requirements, utilities shall be placed in trenches located above the water table.
A/73228193.6
8-14
10.2 Backfill. Utility trenches below the water table shall be backfilled with low
permeability backfill and/or cutoff features (made of bentonite, concrete, or other low permeability
material) or shall incorporate other features designed to minimize lateral migration of groundwater.
10.3 Other Measures. Measures other than those described in this Section may
be employed if shown to the satisfaction of the approving authority to be effective in avoiding or
mitigating the potential for lateral migration of groundwater in utility corridors.
11. Reducing Potential for Vertical Migration of Contaminants. The parties
acknowledge that construction methods have the potential to create conduits for the migration of
shallow, chemically-impacted groundwater to deeper groundwater. Accordingly, in locations in
which there is chemically-impacted shallow groundwater, mitigation measures such as properly
driven piles shall be utilized to minimize the potential for cross-contamination of groundwater
bodies. Other mitigation measures may be employed if shown to the satisfaction of the approving
authority to be effective in reducing the potential for driving impacted soil deeper or creating vertical
conduits for groundwater migration.
12. Storm Drain Lines. The parties acknowledge that groundwater contmmng
Hazardous Substances can infiltrate into storm drain lines at cracks, pipe joints or other areas and
could create a pathway for groundwater containing Hazardous Substances to other areas of the
Bayfront or to the Bay. The San Diego Regional Water Quality Control Board has issued Cleanup
and Abatement Order No. 98-08 based on concerns regarding potential migration of contaminants
through storm drain conveyance systems on the Bayfront. Accordingly, the following mitigation
measures shall be employed for all storm drain lines newly installed in connection with Bayfront
development:
12.1 Watertight Lines. Storm drain lines and their joints shall be designed and
installed to be watertight. Following installation, a hydrostatic leakage test or other equivalent
pressure test or other acceptable test protocol shall be performed on each length of storm drain line
to confirm that the line is watertight.
12.2 Avoidance of Existing Lines. New storm drain lines installed in connection
with any uses that may be approved as part of the CVBMP shall not be interconnected with existing
South Campus storm drain lines; provided, however, that nothing herein shall prohibit
interconnection of new storm drain lines with the existing lines beneath J Street and Marina
Parkway.
13. Other Amendments.
13.1 Restrictions On Adjacent Land Uses. Section 6.3.1 is amended as follows
(new text underscored):
"6.3.1 Port Jurisdiction and Control Over Land Uses. Except as
proposed in the Proposed Proiect (defined in the DEIR). and except for
transient day care for hotel guests incidental to hotel uses. the Port shall use
reasonable efforts to avoid approving or facilitating Sensitive Receptors on
the South Campus or on Parcels HP-ll. H-3 and H-9 of the CVBMP."
N7322S193.6
8-15
A/73228193.6
B.2 Risk-Based Standards.
!. Section 7.1.3 is amended as follows (new text underscored):
"7.1.3 Risk-Based Standards. The parties agree that. with respect to all
properties subiect to the remediation provisions of this Section 7 except the
Port Exchange Property (Parcels HP-5. H-13. H-14 and H-15),
Environmental Remediation Activities implemented pursuant to this
Agreement shall be based on risk-based decisionrnaking and shall utilize the
most cost-effective, risk-based, industrial use remediation standards and
techniques possible to implement Environmental Remediation Activities.
With respect to the Port Exchange Propertv. if the exchange described in
Recital E is approved and implemented. Environmental Remediation
Activities shall utilize the most cost-effective. risk-based. remediation
standards and techniques possible for the land uses proposed for the Port
Exchange Propertv."
11. Section 7.1.4 is amended as follows (new text underscored):
"7.1.4 Environmental Objectives. The parties agree that. with respect to
all properties subiect to the remediation provisions of this Section 7 except
the Port Exchange Propertv, Environmental Remediation Activities will be
designed to facilitate development consistent with the Port's Master Plan
utilizing risk-based standards. With respect to the Port Exchange Propertv. if
the exchange described in Recital E is approved and implemented.
Environmental Remediation Activities shall utilize the most cost-effective.
risk-based. remediation standards and techniques possible for the land uses
proposed for the Port Exchange Propcrtv."
111. Section 7.5.1 is amended as follows (new text underscored):
"(a) The parties agree to cooperate and coordinate in good faith and to use
best efforts to achieve. with respect to all properties subiect to the
remediation provisions of this Section 7 except the Port Exchange Property,
the most cost-effective, risk-based, industrial use remediation standards
possible for the South Campus, the New Campus and any othcr Bayfront
property. With respect to the Port Exchange Propertv. if the exchange
described in Recital E is approved and implemented. Environmcntal
Remediation Activities shall utilize the most cost-effective. risk-based.
remediation standards and techniques possible for the land uses proposed for
the Port Exchange Property."
IV. Section 7.5.4 is amended as follows (new text underscored):
"7.5.4 Industrial Use Standard. "Industrial Use Standard" shall mean,
with respect to all propertics subiect to the remediation provisions of this
Scction 7 except the Port Exchange Property, the remediation standard
adopted by the agency or agencies with relevant oversight responsibility,
8-16
1-\/73228193.0
either (i) on its or their own initiative, or (ii) in response to a request from the
Port and BFG for the most cost-effective, risk-based, industrial use
remediation standards and techniques for a development project in
accordance with the Port's Master Plan. The Port and/or BFG shall
cooperate in any reasonable appeals from agency decisions, provided neither
the Port nor BFG shall be required to participate in the appeal. For purposes
of clarification, "industrial use" is not intended to be narrowly construed to
mean only heavy industrial (i.e. smokestack industries), but may include
other commercial, retail, hotel and similar uses. With respect to the Port
Exchange Property. the parties acknowledge that. if the exchange described
in Recital E is approved and implemented. these parcels shall no longer be
subiect to the Port Master Plan. but shall be developed in accordance with the
land-use designations applied bv the City/ Agencv. Accordinglv. the
"Industrial Use Standard" for the Port Exchange Property shall be the
standard adopted bv the agency or agencies with relevant oversight
responsibility. either 0) on its or their own initiative. or (ii) in response to a
request from the BFG and the Citv/ Agency for the most cost-effective. risk-
based remediation standards and techniques for development in accordance
with the City's General Plan and Bayfront Specific Plan."
13.3 Management.
1. Section 7.1.7 is amended as follows (new text underscored):
"7.1. 7 Management. Whenever this Agreement provides that Remediation
Activities are to be undertaken pursuant to joint decision making, such
Remediation Activities shall be effectuated according to the joint decisions of
BFG and the Port (and the Citv/Agencv. with respect to matters within the
Citv/Agency's iurisdiction and control. including. without limitation.
remediation of the Port Exchange Propertv), irrespective of which party has
current management responsibility for such Remediation Activities."
11. Section 7.3(a) is amended as follows (new text underscored):
"(a) General. BFG, in active consultation with the City/Agency regarding
matters of consequence to the City/ Agencv' s interests. shall manage South
Campus Environmental Remediation Activities until no longer required to do
so as provided below, at which time the Port shall become solely responsible
for management of South Campus Environmental Remediation Activities:"
13.4 Costs of Irrigation and Ponds. Section 7.2.6 is amended as follows (new
text underscored):
7.2.6 Costs Associated With Irrigation and Ponds. The Port will require
any South Campus developer. and the City/Agencv will require any
developer of the Port Exchange Property. to meet and confer with BFG
concerning any planned irrigation activities and/or ponds on South Campus
8-17
or Port Excham~e Property and to consider any comments BrG may have
concerning such activities or ponds. After such meeting:
(a) with respect to developer irrigation activities, ifBFG and the Port or
City/Agency, as applicable. determine that reasonable protective measures
should be undertaken to address potential impacts to soils or groundwater or
to South Campus Environmental Remediation Activities, the developer will
be required to install those protective measures and the costs of those
protective measures will be allocated pursuant to Sections 7.2.1 and 7.2.2
above;
(b) with respect to permanent ponds, the developer will be required to
install lined ponds and BFG shall bear no responsibility for the costs of such
liners;
(c) bioswales and other features designed for retention and percolation of
water shall not be located in the areas described in Exhibit H;
(d) provided, however, that developer will not be precluded from
implementing a reasonable industry standard irrigation plan for the South
Campus and this Southern California Region.
13.5 Cooperation - Port Exchange Property. Section 7.5.1 (d)(1) is amended as
follows (new text underscored):
"(d) With respect to activities on the Rados and Agency parcels and the
Port Exchange Property if the exchange described in Recital E is approved and implemented:
(1) With respect to the Rados and Agencv Parcels, BFG and the
Agency shall meet and confer, shall exchange information
about successful applications of cost-effective, risk-based,
and/or industrial use standards and other useful information,
shall develop proposed least cost industrial use remediation
plans for development proposals contained in development
plans in order to match cost-effective environmental
strategies with land-use development programs, and shall
cooperate in presenting remediation proposals to relevant
agencies. With respect to the Port Exchange Properlv, the
parties shall meet. confer and cooperate in the same manner.
except that the v shall iointlv develop and propose the most
cost-effective, risk-based remediation standard appropriate for
development proposals contained in development plans for
the Port Exchange Propertv."
14. Exhibits. The following exhibits are attached and made a part of this Amendment as
though fully set forth herein:
A/73228193.6
8-18
N73228193.6
Exhibit A:
Exhibit B:
Exhibit C:
Exhibit D:
Exhibit E:
Exhibit F:
Exhibit G:
Exhibit H:
Legal Description of Port Exchange Property.
Easement Disclosure and Release Agreement.
Memorandum of Disclosure.
Letter Agreement Re H Street Extension
Legal Description of Marina Wedge Parcel
Covered Areas
Structural Concept Narrative
Percolation Features - Areas to be Avoided
[Remainder of page intentionally left blaflk.]
8-19
IN WITNESS WHEREOF, this Amendment has been executed by the parties as of the day
and year tirst above written.
Port:
SAN DIEGO UNIFIED PORT DISTRICT
By:
Executive Director
City:
CITY OF CHOLA VISTA, a municipal corporation
By:
Mayor
Redevelopment Agency:
REDEVELOPMENT AGENCY OF THE CITY OF
CHULA VISTA, a redevelopment agency
By:
Chair
Goodrich:
. ROHR, INC., operating as GOODRICH
AEROSTRUCTURES, a Delaware corporation and
wholly owned subsidiary of THE GOODRICH
CORPORA nON
By:
Name:
Its:
Approved as to form:
City/Agency Attorney
Approved as to form:
Port Attorney
N73228 193.6
8-20
EXHIBIT A
LEGAL DESCRIPTION OF PORT EXCHANGE PROPERTY
The land referred to herein is situated in the State of Cali fomi a, County of San Diego, and described
as follows:
PARCEL 1
THAT PORTION OF THE TIDELANDS AND SUBMERGED OR FILLED LANDS OF THE
BAY OF SAN DIEGO, IN THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE
OF CALIFORNIA L YING WESTERLY OF THE ORDINARY HIGH WATER MARK OF SAN
DIEGO BAY, AS SAID ORDINARY HIGH WATERMARK WAS FIXED AND ESTABLISHED
BY THAT AGREEMENT RECORDED JUNE 22, 1953, IN BOOK 4897, PAGE 408 OF
OFFICIAL RECORDS OF SAID COUNTY. TOGETHER WITH THOSE PORTIONS OF
FRACTIONAL QUARTER SECTIONS 170 AND 171 OF THE RANCHO DE LA NACION IN
,
THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA,
ACCORDING TO MAP THEREOF BY MORRILL, FILED AS MAP NO. 166 IN THE OFFICE
OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, SAID PORTIONS BEING MORE
P ARTICULARL Y DESCRIBED AS FOLLOWS:
BEGIl'I'NING AT THE INTERSECTION OF THE WESTERLY LINE OF THE EASTERLY
170.00 FEET OF SAID FRACTIONAL QUARTER SECTION 170 WITH THE NORTHERLY
LINE OF "J" STREET, AS SHOWN ON RECORD OF SURVEY NO. 917 ON FILE IN THE
OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, SAID POINT ALSO
BEING THE BEGINNING OF A TANGENT 940.00 FOOT RADIUS CURVE CONCAVE
SOUTHEASTERLY; THENCE ALONG SAID NORTHERLY LINE, SOUTHWESTERLY
ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 01007'57" A
DISTANCE OF 18.58 FEET; THENCE CONTINUING ALONG SAID NORTHERLY LINE,
SOUTH 72012'10" WEST 446.53 FEET TO A POINT HEREIN AFTER REFERED TO AS
POINT "A"; THENCE LEAVING SAID NORTHERLY LINE, SOUTH 17047'56" EAST 13.00
FEET; THENCE SOUTH 72012'10" WEST 634.21 FEET; THENCE NORTH 62051'20" WEST
28.26 FEET; THENCE NORTH 17054'50" WEST 1365.90 FEET; THENCE NORTH 26046'42"
EAST 20.04 FEET; THENCE NORTH 72005'04" EAST 249.60 FEET TO THE BEGINNING OF A
TANGENT 2034.00 FOOT RADIUS CURVE CONCAVE NORTHWESTERLY; THENCE
NORTHEASTERL Y ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE
OF 01017'22" A DISTANCE OF 45.77 FEET; THENCE NORTH 70047'42" EAST 284.67 FEET
TO THE BEGINNING OF A TANGENT 416.00 FOOT RADIUS CURVE CONCAVE
SOUTHEASTERLY; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE
THROUGH A CENTRAL ANGLE OF 13034'46" A DISTANCE OF 98.59 FEET; THENCE
NORTH 84022'28" EAST 235.18 FEET TO A POINT HEREINAFTERREFERED TO AS POINT
"B"; THENCE CONTINUING NORTH 84022'28" EAST 409.95 FEET TO A POINT ON SAID
WESTERLY LINE OF THE EASTERLY 170.00 FEET OF QUARTER SECTIONS 170 AND 171;
THENCE ALONG SAID WESTERLY LINE, SOUTH 17050'01" EAST 1293.96 FEET TO THE
POINT OF BEGINNING.
N73228 193.6
8-21
EXCEPTING THEREFROM:
THAT PORTION LYING WESTSTERL Y OF THE FOLLOWING DESCRIBED LINE:
BEGINNING AT THE ABOVE DESCRIBED POINT "A"; THENCE NORTH 1 r47'56" WEST
215.08 FEET TO THE BEGlNNING OF A TANGENT 1100.00 FOOT RADIUS CURVE
CONCA VE EASTERLY; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE
THROUGH A CENTRAL ANGLE OF 15058'10" AN ARC DISTANCE OF 306.59 FEET;
THENCE TANGENT TO SAID CURVE NORTH 01049'46"WEST 568.46 FEET TO THE
BEGINNING OF A TANGENT 2000.00 FOOT RADIUS CURVE CONCAVE WESTERLY;
THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL
. ANGLE OF 03047'46" AN ARC DISTANCE OF 132.51 FEET; THENCE TA.1'JGENT TO SAID
CURVE NORTH 05037'32"WEST 160.00 FEET TO THE ABOVE DESCRIBED POINT "B".
ALSO EXCEPTING THEREFROM:
THAT PORTION OF FRACTIONAL QUARTER SECTION 170 OF THE RANCHO DE LA
NACION, IN THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, ACCORDING TO MAP THEREOF BY MORRILL, FILED AS MAP NO. 166IN
THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, SAID PORTION
BEING MORE PARTICULARL Y DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE WESTERLY LINE OF THE EASTERLY
170.00 FEET OF SAID FRACTIONAL QUARTER SECTION 170 WITH THE NORTHERLY
LINE OF '')'' STREET, AS SHOWN ON RECORD OF SURVEY NO. 917 ON FILE IN THE
OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, SAID POINT ALSO
BEING THE BEGINNING OF A TANGENT 940.00 FOOT RADIUS CURVE CONCAVE
SOUTHEASTERL Y; THENCE ALONG SAID NORTHERLY LINE, SOUTHWESTERLY
ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 01007'57" A
DISTANCE OF 18.58 FEET; THENCE CONTINUING ALONG SAID NORTHERLY LINE,
SOUTH 72012'10" WEST 446.53 FEET; THENCE LEAVING SAID NORTHERLY LINE,
NORTH 17047'56" WEST 1.00 FEET; THENCE NORTH 72012'10" EAST 154.51 FEET TO THE
BEGINNING OF A TANGENT 1939.00 FOOT RADIUS CURVE CONCAVE
NORTHWESTERL Y; THENCE NORTHEASTERLY ALONG THE ARC OF SAlD CURVE
THROUGH A CENTRAL ANGLE OF 03024'36" A DISTANCE OF 115.40 FEET; THENCE
NORTH 68047'34" EAST 195.60 FEET TO A POINT ON SAID WESTERL Y LINE OF THE
EASTERL Y 170.00 FEET OF QUARTER SECTION 170; THENCE ALONG SAID WESTERL Y
LINE, SOUTH 17050'01" EAST 15.88 FEET TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM ALL DEPOSITS OF MINERALS, INCLUDING OIL AND GAS, IN
SAID LAND, TOGETHER WITH THE RIGHT TO PROSPECT FOR, MINE AND REMOVE
SUCH DEPOSITS FROM SAID LA.1"JDS, AS RESERVED BY THE STATE OF CALIFORNIA IN
STATUTES 1962, 1ST EXTRA SESSION, CHAPTER 67.
PARCEL 2
THAT PORTION OF THE TIDELANDS AND SUBMERGED OR FILLED LANDS OF THE
BAY OF SAN DIEGO, IN THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE
N7322819J.6
8-22
OF CALIFORNIA LYING WESTERLY OF THE ORDINARY HIGH WATER MARK OF SAN
DIEGO BAY, AS SAfD ORDINARY HIGH WATERMARK WAS FIXED AND ESTABLISHED
BY THAT AGREEMENT RECORDED JUNE 22, 1953, IN BOOK 4897, PAGE 408 OF
OFFICIAL RECORDS OF SAID COUNTY. TOGETHER WITH THOSE PORTIONS OF
FRACTIONAL QUARTER SECTIONS 170 AND 171 OF THE RANCHO DE LA NACION, IN
THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA,
ACCORDING TO MAP THEREOF BY MORRILL, FILED AS MAP NO. 166 IN THE OFFICE
OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, SAID PORTIONS BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE WESTERLY LINE OF THE EASTERLY
170.00 FEET OF SAID FRACTIONAL QUARTER SECTION 170 WITH THE NORTHERLY
LINE OF "J" STREET, AS SHOWN ON RECORD OF SURVEY NO. 917 ON FILE IN THE
OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, SAID POINT ALSO
BEING THE BEGINNING OF A TANGENT 940.00 FOOT RADIUS CURVE CONCAVE
SOUTHEASTERLY; THENCE ALONG SAID NORTHERLY LINE, SOUTHWESTERLY
ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 01007'57" A
DISTANCE OF 18.58 FEET; THENCE CONTINUING ALONG SAID NORTHERLY LINE,
SOUTH 72012'10" WEST 446.53 FEET TO A POINT HEREIN AFTER REFERRED TO AS
POINT "A"; THENCE LEAVING SAID NORTHERLY LINE, SOUTH 17047'56" EAST 13.00
FEET; THENCE SOUTH 72012'10" WEST 634.21 FEET; THENCE NORTH 62051'20" WEST
28.26 FEET; THENCE NORTH 17054'50" WEST 1365.90 FEET; THENCE NORTH 26046'42"
EAST 20.04 FEET; THENCE NORTH 72005'04" EAST 249.60 FEET TO THE BEGINNING OF A
TANGENT 2034.00 FOOT RADIUS CURVE CONCAVE NORTHWESTERLY; THENCE
NORTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE
OF 01017'22" A DISTANCE OF 45.77 FEET; THENCE NORTH 70047'42" EAST 284.67 FEET
TO THE BEGINNING OF A TANGENT 416.00 FOOT RADIUS CURVE CONCAVE
SOUTHEASTERLY; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE
THROUGH A CENTRAL ANGLE OF 13034'46" A DISTANCE OF 98.59 FEET; THENCE
NORTH 84022'28" EAST 235.18 FEET TO A POINT HEREINAFTER REFERED TO AS POINT
"B"; THENCE CONTINUING NORTH 84022'28" EAST 409.95 FEET TO A POINT ON SAID
WESTERLY LINE OF THE EASTERLY 170.00 FEET OF QUARTER SECTIONS 170 AND 171;
THENCE ALONG SAID WESTERLY LINE, SOUTH 17050'01" EAST 1293.96 FEET TO THE
POINT OF BEGINNING.
EXCEPTING THEREFROM:
THAT PORTION LYING EASTERLY OF THE FOLLOWING DESCRIBED LINE:
BEGINNING AT THE ABOVE DESCRIBED POINT "A"; THENCE NORTH 17047'56" WEST
215.08 FEET TO THE BEGINNING OF A TANGENT 1100.00 FOOT RADIUS CURVE
CONCAVE EASTERLY; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE
THROUGH A CENTRAL ANGLE OF 15058'10" Ai'! ARC DISTANCE OF 306.59 FEET;
THENCE TANGENT TO SAID CURVE NORTH 0I049'46"WEST 568.46 FEET TO THE
BEGINNING OF A TANGENT 2000.00 FOOT RADIUS CURVE CONCAVE WESTERLY;
THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL
Af73228t91.6
8-23
ANGLE OF 03047'46" AN ARC D[STANCE OF [32.5[ FEET; THENCE TANGENT TO SAID
CURVE NORTH 05037'32"WEST 160.00 FEET TO THE ABOVE DESCRlBED POINT "B".
EXCEPTING THEREFROM ALL DEPOSITS OF MINERALS, INCLUDING OIL Ai'JD GAS, IN
SAID LAND, TOGETHER WITH THE RlGHT TO PROSPECT FOR, MINE AND REMOVE
SUCH DEPOS[TS FROM SAID LANDS, AS RESERVED BY THE STATE OF CALIFORNIA IN
STATUTES [962, 1ST EXTRA SESSION, CHAPTER 67.
PARCELIA
THAT PORTION OF FRACTIONAL QUARTER SECTION 170 OF THE RANCHO DE LA
NACION, IN THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, ACCORDING TO MAP THEREOF BY MORRlLL, FILED ASMAPNO.166IN
THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, SAID PORTION
BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE WESTERLY LINE OF THE EASTERLY
170.00 FEET OF SAID FRACT[ONAL QUARTER SECTION 170 WITH THE NORTHERL Y
LINE OF "J" STREET, AS SHOWN ON RECORD OF SURVEY NO. 917 ON FILE IN THE
OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, SAID POINT ALSO
BEING THE BEGINNING OF A TANGENT 940.00 FOOT RADIUS CURVE CONCAVE
SOUTHEASTERL Y; THENCE ALONG SAID NORTHERLY LINE, SOUTHWESTERLY
ALONG THE ARC OF SAlD CURVE THROUGH A CENTRAL ANGLE OF OJOO7'57" A
. DISTANCE OF 18.58 FEET; THENCE CONTINUING ALONG SAID NORTHERLY LINE,
SOUTH 72012'10" WEST 446.53 FEET; THENCE LEAVING SAID NORTHERLY LINE,
NORTH Ir47'56" WEST 1.00 FEET; THENCE NORTH 72012'10" EAST 154.51 FEET TO THE
BEGINNING OF A TANGENT 1939.00 FOOT RADIUS CURVE CONCAVE
NORTHWESTERL Y; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE
THROUGH A CENTRAL ANGLE OF 03024'36" A DISTANCE OF 115.40 FEET; THENCE
NORTH 68047'34" EAST 195.60 FEET TO A POINT ON SAID WESTERLY LINE OF THE
EASTERL Y 170.00 FEET OF QUARTER SECTION 170; THENCE ALONG SAID WESTERL Y
LINE, SOUTH 1 r50'01" EAST 15.88 FEET TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM ALL DEPOSITS OF MINERALS, INCLUDING OIL AND GAS, IN
SAID LAND, TOGETHER WITH THE RIGHT TO PROSPECT FOR, MINE AND REMOVE
SUCH DEPOSITS FROM SAID LAi'JDS, AS RESERVED BY THE STATE OF CALIFORt'JIA IN
STATUTES 1962, 1ST EXTRA SESSION, CHAPTER 67.
PARCEL2A
THAT PORTION OF THE TIDELANDS AND SUBMERGED OR FILLED LANDS OF THE
BA Y OF SAN DIEGO, IN THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE
OF CALIFORNIA LYING WESTERLY OF THE ORDINAR Y HIGH WATER MARK. OF SAN
DIEGO BAY, AS SAID ORDINARY HIGH WATER l'vlARK. WAS FIXED AND ESTABLISHED
BY THAT AGREEMENT RECORDED JUNE 22, 1953, IN BOOK 4897, PAGE 408 OF
OFFICIAL RECORDS OF SAID COUNTY. TOGETHER W[TH THAT PORTION OF
FRA.CTIONAL QUARTER SECTION 170 OF THE RA.NCHO DE LA NAC[ON, IN THE CITY
Ni3228193.6
8-24
--_.
OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO
. .
MAP THEREOF BY MORRILL, FILED AS MAP NO. 166 IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY, SAID PORTION BEING MORE P ARTICULARL Y
DESCRIBED AS FOLLOWS:
BEGINNING AT STATION 117 OF THE ORDINARYHlGH WATERMARK OF SAN DIEGO
BA Y, AS SAID ORDINARY HIGH WATER MARK WAS FIXED AND ESTABLISHED BY
THAT AGREEMENT RECORDED JUNE 22, 1953 IN BOOK 4897, PAGE 406, OF OFFICIAL
RECORDS, SAN DIEGO COUNTY AND AS SHOWN ON MISCELLANEOUS MAP NO. 217
ON FILE IN THE OFFICE OF SAID COUNTY RECORDER; THENCE SOUTHERL Y ALONG
SAID ORDINARY HIGH WATER MARK SOUTH 07004'12" EAST 491.51 FEET TO THE
TRUE POINT OF BEGINNING, SAID POINT BEING THE BEGINNING OF A NON-
TANGENT 540.00 FOOT RADIUS CURVE CONCAVE NORTHWESTERLY TO WHICH A
RADIAL LINE BEARS SOUTH 16030'24" EAST; THENCE LEAVING SAID ORDINARY HIGH
WATER MARK NORTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A
CENTRAL ANGLE OF 01017'26" A DISTANCE OF 12.16 FEET; THENCE NORTH 72012'10"
EAST 69.09 FEET; THENCE SOUTH 38054'52" WEST 23.69 FEET; TI-IENCE SOUTH 72012'10"
WEST 568.21 FEET; THENCE NORTH 62051'20" WEST 28.26 FEET; THENCE NORTH
17"54'50" WEST 531.94 FEET TO THE POINT OF CUSP OF A TANGENT 540.00 FOOT
RADIUS CURVE CONCAVE NORTHEASTERL Y; THENCE SOUTHEASTERLY ALONG THE
ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 88035'34" A DISTANCE OF
834.97 FEET TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM ALL DEPOSITS OF MINERALS, INCLUDING OIL AND GAS, IN
SAID LAND, TOGETHER WITH THE RIGHT TO PROSPECT FOR, MINE AND REMOVE
SUCH DEPOSITS FROM SAID LANDS, AS RESERVED BY THE STATE OF CALIFORNIA IN
STATUTES 1962, 1 ST EXTRA SESSION, CHAPTER 67. (End of Legal Description)
N73228193.6
8-25
AJ73228193.6
EXHIBIT B
EASEMENT, DISCLOSURE AND RELEASE AGREEMENT
8-26
Recorded at the request of and after
recordation mail to:
Attn:
Space above this line for Recorder's use only
EASEMENT, DISCLOSUREAl"'D RELEASE AGREEMENT
THIS EASEMENT, DISCLOSURE AND RELEASE AGREEMENT
("Agreement") is entered into as of , 2010, by and
between the ("Grantor") and ROHR,
INC., operating as Goodrich Aerostructures, a Delaware corporation ("Goodrich").
Grantor and Goodrich are referred to herein individually as a "party" and collectively
as the "parties."
RECITALS
A. Grantor is the fee simple owner of certain real property in the City of
Chula Vista, California, as more particularly described in Exhibit B-1 ("Property").
B. Goodrich is the fee simple owner of certain real property located in the
vicinity of the Property and more particularly described in Exhibit B-2 (the
"Goodrich Property"), upon which Goodrich owns and operates an aircraft
manufacturing plant ("Goodrich's Facility").
C. The operation of Goodrich's Facility and all related operations and
ancillary uses during the day or night, including, but not limited to, manufacturing
and related operations (including all activities associated with the research,
development, manufacture, assembly, processing, testing, servicing, repairing, storage
and/or distribution of products and component parts and all activities incidental
thereto, including electricity cogeneration and waste operations), accessory uses and
buildings (including off-street parking and loading facilities, administrative, executive
and financial offices, facilities maintenance, and incidental services) and all other uses
of the same general character as the foregoing ("Goodrich's Operations"), create
sounds, sights, illumination, vibration, air emissions, dust, odors, traffic, and other
disturbances that are or may be audible, visible or otherwise perceptible on Grantor's
Property. Goodrich's Facility and Goodrich's Operations are collectively referred to as
"Goodrich's Facilities and Operations." All sounds, lights, sights,
illuminations, viewshed impacts, vibrations, dust, debris, noises, air emissions, odors,
fumes, traffic, inconvenience, fear, interference ",ith sleep or communication, other
disturbances and any and all other effects that are or may be alleged to be caused by
AJ73228193.6
8-27
or incident to Goodrich's Facilities and Operations, whether existing now or occurring
in the future, are collectively referred to as the "Operational Impacts."
D. Grantor and Goodrich \\Iish to put future owners and potential owners of
the Property on notice of current and future Operational Impacts and provide for the
continued operation of Goodrich's Facility on the Goodrich Property free of Claims or
Complaints (as defined below) arising from or related to Goodrich's Facilities and
Operations. Further, Grantor, on behalf of itself and all future owners of any interest
in the Property, desires to release Goodrich from liability arising from Goodrich's
Facilities and Operations.
E. The parties intend that the covenants contained in this Agreement shall
run \\lith the land and bind future owners of the Property and inure to the benefit of
future owners of the Goodrich Property.
NOW, THEREFORE, in this factual context, the parties intending to be legally
bound, agree as follows:
EASEMENT
1. Grant of Easement. Grantor, for good and valuable consideration, hereby
grants and conveys to Goodrich and its successors and assigns a perpetual, non-
exclusive easement ("Easement") over, under, across and upon the Property for the
Operational Impacts. This Easement shall be appurtenant to and for the express
benefit of the Goodrich Property and shall further be deemed in gross, being conveyed
to Goodrich for the benefit of Goodrich and its successors and assigns. This Easement
shall attach to subdivided lots, parcels, subparcels, condominiums, cooperatives,
community apartments, stock cooperatives or other subdivided, segregated or
collective real estate interests in the Property. No conduct or use of the Property by
Grantor, its successors or assigns, shall be construed to establish prescriptive rights in
Grantor or its successors or assigns as to the Goodrich Property or Goodrich's
Facilities or Operations.
2. Rightto Impose Noise. Fumes and Other Consequential Effects of Operation of
Goodrich's Facility on the PropertY. For, as a result of, or in connection \\lith
Goodrich's Facilities and Operations, Goodrich shall have the rightto cause or create,
or allow to be caused or created on the Goodrich Property, and to subject the
Property, or any structure or improvement on the Property to the Operational
Impacts.
3. Limitation. The Easement granted hereunder shall not be construed, and is
not intended, to permit any Operational Impacts that, as to the Property or its
residents, would violate any federal, state or local human health or safety standard
applicable to Goodrich's Facilities and Operations (collectively, "Health and Safety
Standards"). Inquiries or requests for enforcement of Health and Safety Standards
made by Grantor or its successors or assigns to federal, state or local agencies with
regulatory authority over Goodrich's Facilities and Operations shall not be considered
a violation of this Agreement.
Al73228193.6
8-28
4. Acknowledgements. Grantor understands and acknowledges that the
Operational Impacts may increase or change in character over time, and that
notwithstanding such change, this Agreement shan continue to permit and authorize
such Operational Impacts over, under, across and upon the Property.
5. No Claims or Complaints. This Agreement grants to Goodrich, for the benefit
of Goodrich's Facility and Operations, the right to use, maintain, repair, improve and
continue Goodrich's Facilities and Operations free of complaints, claims, actions,
causes of action, administrative or regulatory proceedings and/ or litigation, whether
for monetary damages, injunctions, declaratory judgments, regulatory enforcement or
other relief, by or on behalf of Grantor and Grantor's successors and assigns, either
directly or indirectly, arising out of or relating to Operational Impacts, whether based
on personal injury, damage to real or personal property, diminution in value of
property, private or public nuisance, or any other legal or equitable ground ("Claims
or Complaints"), except for Claims or Complaints arising from gross negligence or
willful misconduct of Goodrich or its employees or agents acting at or under its
direction and control. Grantor hereby covenants and agrees not to initiate or pursue,
directly or indirectly, any Claims or Complaints or to encourage, support, assist or
abet any other person or entity in making any such Claims or Complaints.
6. Waiver and Release of Liabilitv. Grantor and its successors and assigns waive
and release any Claims or Com plaints they may now have or that they may have in the
future against Goodrich and its successors and assigns due to the Operational
Impacts, including future increases in the volume or changes in the type, manner or
location of Goodrich's Facilities and Operations. Furthermore, Goodrich and its
successors and assigns shall have no duty to avoid or mitigate impacts that could give
rise to Claims or Complaints through physical modification of Goodrich's Facilities
and Operations or establishment or modification of operational procedures or
restrictions. The foregoing nOhvithstanding, this Agreement shall not operate to
deprive Grantor and its successors and assigns of any rights they may from time to
time have against Goodrich arising from gross negligence or willful misconduct of
Goodrich or its employees or agents acting at or under its direction and control.
7. Indemnification In Event of Breach. In the event, Grantor or its successors or
assigns breach any provision of this Agreement, to the fullest extent permitted by law,
the breaching party ("Breaching Party") shall indemnify, defend, protect and hold
harmless Goodrich and its officers, directors, employees, agents, successors and
assigns from and against any and all claims, liabilities, losses, damages, costs and
expenses (including reasonable legal fees and costs) arising directly or indirectly out
of breach of any provision of this Agreement. Nothing in this provision shall be
construed to mean that a non-breaching Grantor, successor or assign shall be
required to indemnify Goodrich and its officers, directors, employees, agents,
successors and assigns for the actions of a Breaching Party.
8. Covenants Run v\.ith the Land. The covenants contained in this Agreement
shall constitute covenants running vvith the land and equitable servitudes and shall
bind Grantor's successors and assigns, including, without limitation, purchasers of
subdivided lots, parcels, subparcels, condominiums, cooperatives, community
AJi3223193.6
8-29
apartments, stock cooperatives or other subdivided, segregated or collective real
estate interests of the Property, each as a servient tenement, for the benefit of
Goodrich's Property, and for the benefit of Goodrich and its successors and assigns.
9. Termination of the Easement. Upon the permanent discontinuance of
industrial uses on the Goodrich Property, Grantor or its successors or assigns may
request in writing that the then-owner of the Goodrich Property, through the
applicable legal procedure, vacate or terminate the Easement and this Agreement.
The then-owner of the Goodrich Property shall not unreasonably refuse to comply
with such a written request.
10. Preamble. Recitals. Exhibits. References herein to "this Agreement" shall
include the preamble, recitals and exhibits.
11. Recording. This Agreement shall be recorded in the Office of the Recorder of
the County of San Diego.
12. Notice to Successors Owners of Property. Grantor and each of its successors
and assigns shall provide the notices described in this Section 12. Failure of Grantor
or any of its successors or assigns to provide the notices and acknowledgements in
accordance with this Section 12 shall constitute a material breach of this Agreement
by such party.
a. Notice of Easement Agreement. Grantor and each of its successors and
assigns shall provide written notice and a copy of this Agreement to, and shall
obtain written acknowledgement of receipt of such notice and copy from, all
purchasers, assignees, transferees, or other successors in ownership of all or
any portion of the Property including, without limitation, purchasers of
subdivided lots, parcels, subparcels, condominiums, cooperatives, community
apartments, stock cooperatives or other subdivided, segregated or collective
real estate interests.
b. Covenants. Conditions and Restrictions. In the event Grantor or any
successor or assign records (or causes to be recorded) Covenants, Conditions
and Restrictions or other similar instruments ("CC&Rs") against the Property,
such Grantor, successor or assign shall incorporate the disclosure language in a
form substantially similar to the language included in Exhibit B-3. The
CC&Rs shall also provide that this disclosure language cannot be amended
without the consent of the then-owner of the Goodrich Facility, unless
industrial uses have been permanently discontinued on the Goodrich Property.
c. Real Estate Disclosure. Grantor and each of its successors and assigns
shall provide, as part of a standard real estate disclosure document, to each
purchaser of any subdivided lots, parcels, subparcels, condominiums,
cooperatives, community apartments, stock cooperatives or other subdivided,
segregated or collective real estate interests in the Property, the disclosure
language in a form substantially similar to the language included in Exhibit E-
3.
A/73228193.6d
8-30
13. Prevailing Partv Entitled to Attornevs' Fees. If any party hereto commences an
action or proceeding to enforce or interpret any terms or condition of this Agreement,
the prevailing party shall be entitled to recover reasonable attorneys' fees and costs
incurred, including the costs of any consultants or experts, and the costs of enforcing
any judgment, award or settlement in such proceeding or action.
14. Binding Upon Successors. This Agreement, and all of its terms, conditions,
covenants, rights and obligations, shall be binding upon and shall inure to the benefit
of the successors (by merger, consolidation or othef\\iise) and assigns of each of the
parties, as well as the successors in ownership of the Property and the Goodrich
Property, respectively.
15. Entire Agreement: Waivers. This Agreement contains the entire agreement
between the parties relating to the subject matter hereof and integrates all of the
terms and conditions mentioned herein or incidental hereto. Any prior agreements,
promises, negotiations or representations relating to the subject matter hereof and
not expressly set forth in this Agreement are of no force or effect. This Agreement
may not be modified, amended, terminated or abandoned except by a written
instrument executed by the parties. Any and all waivers of the provisions of this
Agreement must be in writing and signed by an authorized representatives of the
party against which the waiver is sought to be enforced. The waiver by a party of any
term, covenant, agreement or condition contained in this Agreement shall not be
deemed to be a waiver of any subsequent breach of the same or any other term,
covenant, agreement or condition;" nor shall any custom or practice which may grow
up between the parties in the administration of this Agreement be construed to waive
or lessen the right of either party to insist upon performance in strict accordance with
all of its terms.
16. Specific Performance. The parties agree that there is no adequate monetary
remedy available in case of breach or default of obligations under this Agreement.
Accordingly, the parties agree that specific performance shall be available to enforce
any of the obligations under this Agreement and the defaulting or breaching party
agrees not to contest any effort to obtain any order of specific performance of these
obligations.
17. No Waiver or Disclaimer. A failure to utilize or to enforce any term or
provision of this Agreement or any facility described in this Agreement shall not
constitute a waiver or disclaimer of any interest or right under the terms of this
Agreement.
18. Construction. The headings and captions contained in this Agreement are
inserted solely for convenience of reference shall in no way define, limit or describe
the scope or intent of this Agreement. The words "include" or "including" mean
include or including \\iithout limitation. The singular includes the plural; "shall" is
mandatory, and "may" is permissive. The parties acknowledge and agree that each of
the parties and each of the parties' attorneys have participated fully in the negotiation
and drafting of this Agreement. No presumption shall arise from the fact that
particular provisions were or may have been drafted by a specific party, and prior
A/73228 193.6
8-31
versions or drafts of this Agreement shall not be used to interpret the meaning or
intent of and provision of this Agreement.
19. Further Assurances. Each of the parties to this Agreement agrees that it shall
cooperate as necessary and shall execute such additional documents and take such
action as may reasonably be necessary or desirable in order to fully carry out the
objectives of this Agreement.
20. Severability. If any provision of this Agreement is held invalid, void or
unenforceable, the remainder of this Agreement shall not be affected and shall remain
in full force and effect, unless amended or modified by mutual consent of the parties.
21. Exhibits. The following attached exhibits are incorporated herein and made a
part hereofby this reference:
Exhibit B-1:
Exhibit B-2:
Exhibit B-3:
Legal Description of the Property
Legal Description of the Goodrich Property
Notice to Future Owners and Potential Purchasers
I
22. Counterparts. This Agreement may be executed in multiple identical
counterparts, each of which shall be deemed an original, and counterpart signature
pages may be assembled to form a single original document.
IN WITNESS WHEREOF, the parties have executed this Easement, Disclosure and
Release Agreement effective as of the date first written above.
GRANTOR
GOODRICH
ROHR, INC., operating as Goodrich
Aerostructures, a Delaware corporation
By:
Name:
Title:
By:
Name:
Title:
N73228193.6
8-32
A/73228193.6
Exhibit B-1
LEGAL DESCRIPTION OF THE PROPERTY
8-33
Exhibit B-2
LEGAL DESCRIPTION OF THE GOODRICH PROPERTY
AJ73228193.6
8-34
Exhibit B-3
NOTICE TO FUTURE OWNERS AND POTENTIAL PURCHASERS
CC&Rs.
The Property is situated in the vicinity of property upon which Rohr, Inc., operating
as Goodrich Aerostructures, a Delaware corporation, owns and operates an aircraft
manufacturing plant, located south of F Street/Lagoon Drive, west of Bay Boulevard, and
north of the westerly extension of H Street (the "Goodrich Property"). Goodrich has the
right, to the extent permitted by law, to operate its business seven days per week, twenty-
four hours per day. Goodrich's business includes, without limitation, manufacturing and
related operations (including all activities associated with the research, development,
manufacture, assembly, processing, testing, servicing, repairing, storage and/or
distribution of products and component parts and all activities incidental thereto, including
electricity cogeneration and waste operations), accessory uses and buildings (including off-
street parking and loading facilities, administrative, executive and financial offices, facilities
maintenance, and incidental services) and other uses of the same general character as the
foregoing. Over time, there may be a change in the specific industrial use of the Goodrich
Property. At any time of any given day, the operation of Goodrich's business and all related
operations and ancillary uses during the day or night, including, but not limited to, heavy
equipment access and maintenance and repair, may create sounds, lights, sights,
illuminations, viewshed impacts, vibrations, dust, debris, noises, air emissions, odors,
fumes, traffic, inconvenience, fear, interference with sleep or communication, and other
disturbances that are or may be audible, visible or otherwise perceptible on the Property
and that may impact upon your use and enjoyment of the Property. In particular, you may
A/73228193.6
8-35
be subjected to (1) loud noises from manufacturing or fabrication processes, or from trucks
or other motor vehicles, (2) odors generated during manufacturing orfabricating processes,
or exhaust fumes from trucks or other motor vehicles, (3) vibrations generated during
manufacturing or fabricating processes, and (4) lights from buildings, public areas (such as
parking areas or driveways), or trucks at all hours of the day or night.
To understand the full range of uses permitted at the Goodrich Property and the
various impacts upon your use and enjoyment of the Property, or the value of the Property,
resulting from the Project's proximity to the Goodrich Property, you should review the City
of Chula Vista zoning ordinance or consult a representative of the City of Chula Vista.
Addendum to Real Estate Disclosure Form.
The Property is situated in the vicinity of property upon which Rohr, Inc., operating
as Goodrich Aerostructures, a Delaware corporation, OWTIS and operates an aircraft
manufacturing plant, located south of F Street/Lagoon Drive, west of Bay Boulevard and
north of the westerly extension of H Street (the "Goodrich Property"). Goodrich has the
right, to the extent permitted by law, to operate its business seven days per week, twenty-
four hours per day. Goodrich's business includes, without limitation, manufacturing and
related operations (including all activities associated with the research, development,
manufacture, assembly, processing, testing, servicing, repairing, storage and/or
distribution of products and component parts and all activities incidental thereto, including
electricity cogeneration and waste operations), accessory uses and buildings (including off-
street parking and loading facilities, administrative, executive and financial offices, facilities
maintenance, and incidental services) and other uses of the same general character as the
foregoing. Over time, there may be a change in the specific industrial use of the Goodrich
A/73228193.6
8-36
Property. At anytime of any given day, the operation of Goodrich's business and all related
operations and ancillary uses during the day or night, including, but not limited to, heavy
equipment access and maintenance and repair, may create sounds, lights, sights,
illuminations, viewshed impacts, vibrations, dust, debris, noises, air emissions, odors,
fumes, traffic, inconvenience, fear, interference with sleep or communication, other
disturbances that are or may be audible, visible or otherwise perceptible on the Property
and that may impact upon your use and enjoyment of the Property. In particular, you may
be subjected to (1) loud noises from manufacturing or fabrication processes, or from trucks
or other motor vehicles, (2) odors generated during manufacturing or fabricating processes,
or exhaust fumes from trucks or other motor vehicles, (3) vibrations generated during
manufacturing or fabricating processes, and (4) lights from buildings, public areas (such as
parking areas or driveways), or trucks at all hours of the day or night.
To understand the full range of uses permitted at the Goodrich Property and the
various impacts upon your use and enjoyment of the Property, or the value of the Property,
resulting from the Project's proximity to the Goodrich Property, you should review the City
of Chula Vista zoning ordinance or consult a representative of the City of Chula Vista.
By initialing on the line below, you hereby affirm that prior to your acquisition of the
Property, you received notice of the potential impacts to you resulting from the Project's
proximity to the Goodrich Property, and have knowledge of the full range of impacts th'at
such proximity to the Goodrich Property may have upon your use and enjoyment of the
Property or the value of the Property.
BUYER:
N73228l93.6
8-37
EXHIBIT C
MEMORANDUM OF DISCLOSURE
AJ73228193.6
8-38
Recorded at the request of and after
recordation mail to:
Attn:
Space above this line for Recorder's use only
MEMORANDUM OF DISCLOSURE
This MEMORANDUM OF DISCLOSURE (this "Memorandum") is made effective as of
, 20_, by ("Owner") as to the real
property described in Exhibit C-l attached hereto (the "Property") to provide notice of
certain disclosures, as provided below, to Owner and all successor owners ofthe Project Site
(as defined below).
WITNESSETH:
1. Disclosures. The Property is sihlated to the north of certain real property
owned by Owner described in Exhi~it C-2 ("Owner's Property"). The location of the
Property relative to Owner's Property is generally depicted on the map attached as Exhibit
C-3. The Property is currently owned by Rohr, Inc., operating as Goodrich Aerostrucrures,
a Delaware corporation ("Goodrich"). Goodrich owns and operates an aircraft
manufacruring facility on the Property. The operation of Goodrich's facility and all related
operations and ancillary uses occur 24 hours per day and include, v\ithout limitation,
manufacturing and related operations (including all activities associated with the research,
development, manufacture, assembly, processing, testing, servicing, repairing, storage
and/ or distribution of products and com ponent parts and all activities incidental thereto,
including electricity cogeneration and waste operations), accessory uses and buildings
(including off-street parking and loading facilities, administrative, executive and financial
offices, facilities maintenance, and incidental services) and other uses of the same general
character as the foregoing. Goodrich's operations create sounds, sights, illumination,
vibration, air emissions, dust, odors, viewshed impacts, traffic, and other disrurbances that
are or may be audible, visible or otherwise perceptible on Project Site and may impact the
use and enjoyment of owners and occupants of the Project Site, and cause inconvenience,
interference \\ith sleep or communication or other disrurbances. In particular, you may be
subjected to (1) loud noises from manufacturing or fabrication processes, or from trucks or
other motor vehicles, (2) odors generated during manufacruring or fabricating processes, or
exhaust fumes from trucks or other motor vehicles, (3) vibrations generated during
manufacturing or fabricating processes, and (4) lights from buildings, public areas (such as
parking areas or driveways), or trucks at all hours of the day or night. Over time, these
operational impacts may increase or change in character, and there may be a change in the
specific industrial use of the Goodrich Property.
A/73228193.6
8-39
2. Easement. Owner has granted Goodrich an easement covering the Project
Site that gives Goodrich the ongoing right to cause noise, dust, air emissions and other
operational impacts visible, audible or otherwise perceptible on the Project Site. This
easement ",ill be binding on successor owners of any portion of the Project Site (including
owners of condominiums or other similar property interests). The easement grants
Goodrich the right to cause these impacts free of complaints, claims, lawsuits, or
administrative or regulatory proceedings (whether for monetary damages, injunctions,
regulatory enforcement or other relief) by or on behalf of Owner and successor owners of
any portion of the Project Site (but does not include claims or suits arising from gross
negligence or willful misconduct of Goodrich or its employees or agents). By virtue' of the
easement, Owner and successor owners of the Project Site have waived and released any
claims, now or in the future, against Goodrich and its successors and assigns due to the
operations of the Goodrich facility (including future increases in the volume or changes in
the type, manner or location of these operations). The full range of uses permitted at the
Goodrich facility, their potential impact on the Project Site, the waivers and releases
applicable to owners of the Project Site and other matters covered by the easement are set
forth in the document granting the easement, entitled "Grant of Easement and Release
Agreement," which Owner acknowledges having reviewed and executed.
3. Amendment. This Memorandum may be amended and/or removed of record
only by a quitclaim or similar instrument executed in recordable form by Goodrich or its
successor in interest in ownership of the Property.
IN WITNESS WHEREOF, Owner has caused this Memorandum to be executed as of the
date first above written.
By:
Name:
Its:
A/73228193.6
8-40
Exhibit C-l
Legal Description of the Property
N73228193.6
8-41
Exhibit C-2
Legal Description of Owner's Property
A/73228193.6
8-42
Exhibit C-3
Map depicting location of the Property relative to Owner's Property.
N7322S193.6
8-43
N73228193.6
EXHIBIT D
LETTER AGREEMENT RE H STREET EXTENSION
8-44
,.
. .
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~
Unified Port
of San Die~o
(:z-)
EXHIBIT 0
r
3165 Pacific Highway, San Diego, CA 92101
P.O. Box 12~~~~yO/~2112-0488
619.68~VcEUndiego.org
MAY 0 9 Z008
May 6, 2008
SAN DIEGO UNIAED
PORT D1S"lRICT
REAL ESTATE
Mr. Gary Sullivan
Goodrich Aerostructures Group
850 Lagoon Drive
Chula Vista, CA g 1910
Dear Mr. Sullivan:
~ ~ ~
3 Q
~ ~
z
?
Re: RELOCATION AGREEMENT by and among CITY OF CHULA VISTA,
REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA,
SAN DIEGO UNIFIED PORT DISTRICT and ROHR, INC. operating as
BF GOODRICH AEROSPACE AEROSTRUCTURES GROUP (District Clerk's
Document No. 39466; Filed August 5, 1999)
As discussed during a recent meeting at the Port's Administration Building on
March 5, 2008, the District would like Goodrich to consent to the following
cha'nge in the deadline mentioned in paragraph 4.2 of the Relocation Agreement
for completing the H Street Extension:
Port shall use its best efforts to complete the H Street Extension
on or before the earlier to occur of (a) December 31, 2012, or
(b) the completion of Bayfront development projects that require
the H Street Extension to address cumulative traffic impacts. Port
will also use its best efforts to begin construction on this project
by June 30, 2010.
This . extension in the deadline from December 31, 2009, to
December 31, 2012, would allow the District the opportunity to integrate this
project into the infrastructure design for the Chula Vista Bayfront Master Plan.
If Goodrich concurs with the above restated deadline for the completion of the
H Street Extension, please arrange to have the appropriate officer sign this
letter on behalf of Goodrich Aerostructures Group. Furthermore, this agreement
will not be effective until all parties to the above referenced Relocation
Agreement have signed this letter.
ORIGINAL
San Diego Unified Port District
i..' "[~
-...
Mr. Gary Sullivan
May 5, 2008
Page 2
This agreement may be executed in multiple counterparts, each of which shall be
deemed to constitute an original and all of which taken together shall constitute
one and the same instrument.
Sincerely,
~9-'~
Randa J. Coniglio
Director, Real Estate
Rohr, Inc., operating as Goodrich Aerostructures Group,
a Delaware Corporation and wholly owned subsidiary
:: T':(f::g~
Print Name: !;ft/I(} ~ Uh771?NOc...A
Print Title: 0cc- ~5 /,!C7Vt :- C'"ifex./c/'...-f1..- 1"7-f'A./-1-6c:""'L
Date:
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City of Chula Vista, a municipal corporation
"By ~"/ r:??7~
Print Name: SC 0 -rT r'"' L L =-H
Print Title: ~S<T~{A _"'I c.T~ A.o\4 _ .....c~
Date:
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Red~t Agency of the City of Chula Vista
By ~
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Print Name: C;.~ ~ C'/'~, b:#
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Document No. 287324
8-46
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EXHIBIT E
LEGAL DESCRIPTION OF MARINA WEDGE PARCEL
THOSE PORTIONS OF THE TIDELANDS AND SUBMERGED OR FILLED LANDS OF THE BAY OF SAN
DIEGO, TOGETHER WITH PORTIONS OF TIDELANDS AVENUE NOW MARINA PARKWAY AND "G"
STREET AS DESCRIBED IN DEED TO CITY OF CHULA VISTA BY DEED RECORDED OCTOBER 10,1966
AS DOCUMENT NO. 163052, ALL IN THE CITY OF CHULA VISTA, IN THE COUNTY OF SAN DIEGO,
STATE OF CALIFORNIA, SAID PORTIONS BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT STATION NO. 107 ON THE MEAN HIGH TIDE LINE OF THE BAYOF SAN DIEGO, AS SAID
MEAN HIGH TIDE LINE IS SHOWN ON MISCELLANEOUS MAP NO. 217 ON FILE IN THE OFFICE OF THE
COUNTY RECORDER OF SAN DIEGO COUNTY; THENCE ALONG SAID MEAN HIGH TIDE LINE SOUTH
58027'22" EAST A DISTANCE OF 20.76 FEET TO THE NORTHERLY LINE OF SAID MARINA PARKWAY,
SAID POINT BEING THE TRUE POINT OF BEGINNING; THENCE ALONG THE EASTERLY LINE OF SAID
MARINA PARKWAY SOUTH 58027'22" EAST 85.21 FEET TOTHE BEGINNING OF A NON-TANGENT 20.00
FOOT RADIUS CURVE CONCAVE SOUTHEASTERLY, TO WHICH A RADIAL LINE BEARS NORTH
33014'23" WEST; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL
ANGLE OF 71 008'21" A DISTANCE OF 24.83 FEET; THENCE SOUTH 14022'44" EAST 269.52 FEET TO THE
BEGINNING OF A TANGENT 4740.00 FOOT RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE
SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 03031 '56" A
DISTANCE OF 292.21 FEET; THENCE SOUTH 17054'40" EAST 535.06 FEET TO THE POINT OF CUSP OF
A TANGENT 1125.55 FOOT RADIUS CURVE CONCAVE SOUTHWESTERLY; THENCE LEAVING SAID
MARINA PARKWAY, NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL
ANGLE OF 19051'55" A DISTANCE OF 390.24 FEET; THENCE NORTH 3r46'35" WEST 748.69 FEET TO
THE BEGINNING OF A NON-TANGENT 313.69 FOOT RADIUS CURVE CONCAVE SOUTHEASTERLY, TO
WHICH A RADIAL LINE BEARS NORTH 57032'26" WEST; THENCE NORTHEASTERLY ALONG THE ARC
OF SAID CURVE THROUGH A CENTRAL ANGLE OF 04010'37" A DISTANCE OF 22.87 FEET; THENCE
NORTH 17048'00" WEST 66.00 FEET TO A POINT ON THE NORTHERLY LINE OF SAID "G" STREET;
THENCE ALONG THE NORTHERLY LINE OF SAID "G" STREET AND MARINA PARKWAY, NORTH
72012'00" EAST 194.00 FEET TO THE BEGINNING OF A TANGENT 20.00 FOOT RADIUS CURVE
CONCAVE NORTHWESTERLY; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE
THROUGH A CENTRAL ANGLE OF 86034'44" A DISTANCE OF 30.22 FEET; THENCE NORTH 75037'16"
EAST 60.00 FEET; THENCE SOUTH W22'44" EAST 1.46 FEET; THENCE NORTH 75037'16" EAST 14.25
FEET TO THE TRUE POINT OF BEGINNING.
EXCEPTING THEREFROM ALL DEPOSITS OF MINERALS, INCLUDING OIL AND GAS, IN SAID LAND,
TOGETHER WITH THE RIGHT TO PROSPECT FOR, MINE AND REMOVE SUCH DEPOSITS FROM SAID
LANDS, AS RESERVED BY THE STATE OF CALIFORNIA IN STATUTES 1962 1ST EXTRA SESSION,
CHAPTER 67.
SAID PARCEL CONTAINS 4.082 ACRES
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EXHIBIT F
COVERED AREAS
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H1STORICAL HIGH TIOE
NOTEs
'.lOCAnONsANDD....ENSlONSOF
SITEFEATURESAAEAPI'RD.QI.lArE.
1. HOR"'OI<TAl OATU" mR THE ~HOJECTIS
NOftTtl.....ERICANOATUMOF'""'lNAD.J/
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COVERED AREA
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CHUL.AV STA,CALlfOR"1A
SITE PLAN
COVERED AREAS
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EXHIBIT G
STRUCTURAL CONCEPT NARRATIVE
tV73228193.6
8-50
Exhibit G
GEOCON
fNCQRPO!tATED
GEOTtCHNICAl CONSULTANTS 0
Project No. 07731-22-01
June 20, 2008
Pacifica Companies
1785 Hancock Street, Suite 100
San Diego, California 92110
Attention:
Ms. Allison Rolfe
Subject:
CHULA VISTA BA YFRONT
CHULA VISTA, CALIFORNIA
LAND EXCHANGE COMPARISON
Dear Ms. Rolfe:
In accordance with your request, we have prepared this letter outlining our assumptions regarding the
proposed land exchange at the Chula Vista Bayfront. For the purposes of this letter, we have separated
the costs into three sections; foundation sup'port, remedial grading and vapor barriers.
Our assessment of the Port properties Parcels H-I3, H-14 and H-15 is based on geotechnical
information derived from the report titled Preliminary Geotechnical Investigation. Chula Vista
Bayfront, Chula Vista, California dated February 1,2008 (Project No. 07731-22-01). Information from
the report titled Geotechnical Engineering Investigation. Chula Vista Ba}1ront Redevelopment
Project. Mid Bayfront Area. Chula Vista. California, dated January 23, 1987 (Project No. 0-3202-
T06) was used to evaluate the portion of the Sweetwater parcel. Our assessment of deep foundation
support was derived from the Structural Concept Narrative, Gaylord Resort ond Convention Center.
Chula Vista, California prepared by Magnusson Klemencic Associates.
SECTION 1 - FOUNDATION SUPPORT
The mid-rise hotel narrative from the Magnusson Klemencic Associates document assumes a 28-foot
column spacing with additional piles in the building core. Each column is assumed to be supported by
4 piles. Copies of portions of this document are attached as Figures I and 2. For the purposes of our
estimate, we assumed a 25-foot column spacing with no core with a similar 4-pile-cap. Refinement of
this estimate would likely require a preliminary design by a structural engineer. The pile length of
60 feet is based upon auger displacement piles recently installed at the new Liberty Station hotel site
where similar soil conditions (30 feet of soil over Bay Point Formation) exist. The cost of $80 per
lineal foot of IS-inch-diameter pile was based on a conversation with Mr. George Burrough of Condon
Johnson & Associates (85S-503-7890). Following installation of piles, a system of pile caps, grade
beams and a structural floor slab would need to be installed.
6900 Flanders Drive . San Diego, ,California 92121.2974 . Telephone (858) 558-6900 . Fa)',. (858) 558.6159
8-51
An equivalent area (18 acres) of the Sweetwater Parcel was assumed. This area was approximately 650
feet west of Bay Boulevard from 600 feet north to 600 feet south of E Street (see Figure 3). Within this
area, medium dense to dense Bay Point Formation is approximately I foot below existing grade. We
have assumed that the mid-rise residential condominiums, office and hotel structures could be
supported on a mat foundation. A mat foundation is a single thickened concrete slab that spreads the
structure loads over the entire building footprint. Most high rise structures in downtown San Diego are
supported on mat foundations founded in Bay Point Formation. There is a possibility that the proposed
mid-rise residential condominiums, office and hotel structures could be supported on less costly spread
footing foundations depending on loads and allowable settlements. We have assumed that the cost of a
mat foundation would be similar to a system of pile caps, grade beams and structural floor slabs
needed at the Port site. Refinement of the cost difference would also require a preliminary design by a
structural engineer.
SECTION 2 - REMEDIAL GRADING
Grading at Parcels H-13, H-14 and H-15, will consist of removal and recompaction of the soils above
groundwater elevation. We estimate the removal depth will be 5 to 6 feet. Since the buildings will be
supported on piles, we have reduced the total site area by the area of the buildings. The cost per cubic
yard of remedial grading ranges from $1.00 to $2.50 per cubic yard depending on the size of the
grading operation, whether wet soils are present and other factors. We have used a cost of $1.25 per
cubic yard and a depth of 6 feet.
In addition, the current grading plans indicate the Parcel H-13, H-14 and H-15 site will be raised by
approximately 3Y, feet using import fill soils (see Figure 4). Costs of import soil are highly variable
depending on the availability. Based on a c'onversation with Mr. Freddie Willert of Willert Contracting
(619-520-1403), a cost of$6.00 per cubic yard (placed and compacted) is appropriate.
At the Sweetwater site, the majority of the site will be lowered to establish final grades (see Figure 3).
We have assumed I foot of removal and recompaction to process topsoils over the approximately
25 percent (southeast comer) of the site where grades will be raised to establish final grades. Remedial
grading of the surficial soils will be followed by placement of cut material to raise the southeast comer
to proposed final grades. Approximately 60,000 cubic yards will be exported and 78,000 cubic yards
of soil will be placed in the southeast comer. Because the Bayfront area will require significant import
soils, no cost has been assigned to export the 60,000 cubic yards. A cost of $1.25 per cubic yard was
assigned to the 78,000 cubic yards of cut/fill in the southeast comer.
SECTION 3 - VAPOR BARRIER
We understand that contamination is present at Parcels H-13, H-14 and H-15. In general, H-13 and
H-14 had only minor impacts and H-15 had fairly significant impacts. This impacted soil could have
cost implications for grading and structure design. No cost associated with grading has been assigned.
Vapor risk analyses have apparently been performed and would likely require updates to model the
end use of the site. Because the end use will likely be habitable structures, the most common
mitigation of vapor risk for buildings is the installation of a brown-field membrane/liner also called
"liquid boot". The cost of an installed "liquid boot" system is generally between $3.00 and $4.50 per
square foot of building area.
Project No. 07731-22.01
- 2-
June" 20, 2008
8-52
Should you have any questions regarding this letter, or if we may be of further service, please contact
the undersigned at your convenience.
Very truly yours,
~~A<ED
Joseph 1. Vettel
GE 2401
JJV:dmc
Attachments:
Figures 1 through 4
(2) Addressee
,
,
Project No. 07731-22-01
June 20, 200S
- 3-
8-53
MAG~IUSSON
KLEMENC1C
",~50CiAlfS ~
MI[).RISF HOTFI NARRATlVF
GENERAL DESCRIPTION
The mid-rise hotel building is anticipated to be approximately 70 feet in width ond 220' in length. The
building is anticipated to be approximately 13 stories in height. It is assumed that the central corrid6r is
approximately 8 feet in width and the typical room measures 14 by 28 feet. A cost~in-place concrete
framing system was selected for the baseline system.
GRAVITY FRAMING SYSTEM
The horjzontal floorframing system is anticipated to be a 7.5.inch.thick post.tensioned two-way
concrete slob. The quantity allowances for the slab include 0.9 pounds of post-tension coble and 2.1
pounds of mild reinforcing per square foot of slab area. Stud rails or "shear band" in-slab shear
reinforcement shall be assumed at all columns. An allowance should be made for 12 rails at interior
columns and 9 rails at edge columns.
For miscellaneous framing around all openings larger than 5'-011' x 5' -011 that are not otherwise
supported with adjoining edge columns or walls, assume 18" x 24/1 beams with 180 pounds of
reinforcing steel per cubic yard of concrete.
The interior columns are anticipated to be 18" x 32" mild-reinforced columns and the exterior columns
are anticipated to be 18/1 x 28" mild-reinforced columns. All columns are anticipated to contain 450
pounds of reinforcing steel per cubic yard of concrete. The columns ere anticipated to be located at
roughly equal spacings across the width of the building and be spaced at 28' -0' on center (two room
modules) olong the length of the building.
See the canceptual mid-rise hotel partial framing plan (Figure 15) for additional information.
LATERAL FORCE-RESISTING SYSTEM
The conceptual lateral force-resisting system for the mid-rise hotel building is comprised of two concrete
shear wall cores, one located near each end of the building. At each core, the short walls (those
parallel with the length of the building) are anticipated to be 24-inches thick and the long walls
(perpendicular to the length of the building) ore anticipated to be 18-inches thick. All core walls are
anticipated to contain 425 pounds of reinforcing steel per cubic yard of concrete.
See the canceptual mid-rise hotel lateral force-resisting system plan (Figure 16) far additional
information.
FOUNDATION SYSTEM
At each of the column locations, 0 four-pile group is anticipated. To tie the piles together and distribute
the column loads to each of the piles unjformly, a 3.5-foot-thick pile cap measuring 7' -0" x T_On with
100 pounds of reinforcing steel per cubic yard of concrete will be used at each pile group.
Strucfural Concept Narrative
'.'." ?;;.~,pj;;'~~~~
Gaylord R~.;ort and Convention Center, Chula Vista, Cali"fornie
8-54
FIGURE 1
.,;
MAGNUSSON
KLEMENCIC
~SSOCIArES
11
.
At both of the shear wall care lacatians, a pile-supported mat foundation is anticipated. An S-foot-thick
mat foundation measuring 60'-0" x 100'-0" with 225 pounds of reinforcing steel per cubic yard of
concrete is anticipated at each core. A total of 100 piles ore anticipated to support each of the cores.
The slab an grade is anticipated to be a 7.5-inch-thick mild-reinfarced two-way slab with 4 pounds of
reinforcing steel per square foot of slab area.
See the conceptual mid-rise hotel partial foundation plan (Figure 17) far additional information.
ALTERIIATIVE SYSTEM OPTIONS
There are many alternative system options that could be evaluated for the mid-rise hotel component of
the project in the search for further efficiencies and structural cost. A conceptual discussion of some of
these options follows.
. A steel-framed option could be used in lieu of the two-way post-tensioned concrete flat plate option.
For the floors, slob on steel deck or precast planks could be used. Alternatively, a staggered truss
framing system could be used. These options could be configured without a significant penalty in
floor-ta-flaar height.
. The latera! system could be adjusted to include not only the concrete core elements. Additional
shear walls, moment frames, or steel braced frames could be added as appropriate to reduce
demand on the core or improve the foundation conditions. If a steel framing system is selected, the
lateral force resisting system could be" comprised of braced frames and steel moment frames,
staggered trusses and steei moment frames, or a similar combination.
HIGH-RISF HOTFI NARRATIVF
GENERAL DESCRIPTION
The high-rise hatel building is anticipated to be approximately 70 feet in width and 220' in iength. The
building is anticipated ta be between 30 and 35 stories in height. It is assumed that the central corridor
is approximately 8 feet in width and the typical room measures 14 by 28 feet, A cast~in.place concrete
framing system was seleded for the baseline system.
GRAVITY fRAMING SYSTEM
The horizontal floor framing system is anticipated to be a 7.S-inch-thick post-tensioned tvvo~way
concrete slob. The quantity allowances far the slab include 0.9 pounds of post-tension cable and 2.1
pounds of mild reinforcing per square foot of slab area. Stud rails or "shear band" in-slab shear
reinforcement shall be assumed at all columns, An allowance should be made for 12 roils at interior
columns and 9 roils at edge columns.
For misceHaneous framing around all openings larger than 5'_0'" x 5'-0" that are not otherwise
supported with adioining edge columns or walls, assume 18" x 24" beams with 180 pounds of
reinforcing steel per cubic yard of concrete.
Structural Concept Narrative
'~':,Y?~~~;;;:k~,: :gt) ::S~~fj;~,g~~~;~;~}.~)1fDiI10S~~_tj(:t~;:.~.:'{, ~~~~"'''l~:;..;3..:', ~.'ti:. ~:,?!> ;~.-;;:~~'2i3}~: :t;:~l~.i~~~~.TI
Gaylord Resort and Convention Center, Chula Vista, California
FIGURE 2
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Attachment 2
RELOCATION AGREEMENT
by and among
CITY OF CHULA VISTA
REDEVELOPMENT AGENCY OF TIIE CITY OF CHULA VISTA
SAN DIEGO UNIFIED PORT DISTRICT
and
ROHR, INC.,
operating as BFGOODRICH AEROSPACE AEROSTRUCTURES GROUP
/170) 10. ,3
8-60
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TABLE OF CONTENTS
Section I. RECIT ALS............................................ ...................... ........ .... ........................ I
1.1 Existing BFG Campus. ................................................................................... I
1.2 Redevelopment and Eminent Domain. .....__...............__..__............................... I
1.3 Purpose of Agreement and Related Agreements..;........................................... I
1.4 Reservation of Discretion.. ..................... ..... ......... ....... ............ ........................ 2
Section 2. DEFINITIONS ...... ............... ..... .... ....................... ...... ............. ........................ 2
Section 3. LAND TRANSFER AGREEMENTS............................................................ 10
3.1 Land Transfer Agreement Between Port and BFG. ........................................10
3.1. I South Campus Transfers................................................................. 11
3. 1.2 Port Parcels. ..................................................................................... I I
3.1.3 SDG&E Property. ............................................................................ 11
3.1.4 MTDB Property. .............................................................................. 12
3.1.5 Approval of Land Transfer by State Lands Commission................... 13
3.1.6 Title Exceptions. .............................................................................. I3
3.2 Land Transfer Agreement Between Agency and BFG. ........................ I3
3.2.1 Agency Parcel. ................................................................................. 13
3.2.2 Rados Parcel. ..__............................................................................... 13
3.3 Transfer and Acceptance of Property .............................................................. 14
3.3 1 Property Transferred to Port. ........................................................... 14
3.3.2 Property Transferred to BFG. ........................................................... 15
3.4 Indemnities After Closing Date...................................................................... 17
3.4.1 Port Indemnity. ............................................................................... 17
3.4.2 BFG Indemnity. .............................__............................................... 17
3.5 Environmental Matter>. ..... ...........................___............................__................ 17
3.6 Port-Agency Agreement. ................................................................................ 18
3.6. I Appropriation. ..........................................__..................................... 18
3.62 Funding. ...... ............................................... ..__........ .... ...................... 18
3.6.3 Utilization of Funds.......................................................................... 19
3.6.4 Repayment Obligation...................................................................... 19
3.7 Other Pre Closing Obligations and Actions. ....................................................19
3.7.1 BFG Subleases. ............................................................................... 19
3.7.2 BFG Ground Lease with SDG&E..................................................... 20
3.7.3 BFG Lease With MTDB. ................................................................. 20
3.7.4 Vacation of Marina Parkway. ........................................................... 20
3.7.5 Lot Line Adjustments. ...................................................................... 20
3.7.6 Certificates of Compliance. .............................................................. 20
3.8 Other Provisions. ............................................................................................ 21
3.9 Form of Deeds. ............................................................................................... 21
Section 4. BFG RELOCATION ..............__.....................................................................21
4.1 Relocation Period. ..........................................................................................21
106711-OOOO141744lll.01
8-61
TABLE OF CONTENTS
(continued)
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4.2 H Street Extension. ......................................................................................... 22
4.3 Marina Parkway Realignment. ............ .......... ...... .... ...................... .................. 22
4.4 Relocation Schedule. ... ................. .................... ............. .................... .............23
4.4.1 Adjustments to Relocation Schedule................................................ 23
4.5. BFG Occupancy of South Campus During Relocation Period. ........................ 24
4.6 Termination of Obligations Concerning the South Campus. ............................ 24
4.7 Utilities and Services. ..................................................................................... 24
Section 5. RELOCATION AND NEW CAMPUS FINANCE ASSISTANCE................. 24
5.1 Payments. .......................................................................................................24
5.2 Post-Closing Adjustments. ....... ...................... ...... ........... ......... ....... ................24
5.3 Reimbursement of South Campus Property Taxes........................................... 25
5.4 New Campus Industrial Financing Assistance. ................................................ 25
5.4.1 Annual Installments.......................................................................... 25
5.4.2 Relocation Period Payments. ...........................................................25
5.4.3 Post-Relocation Period Payments. .................................................... 25
5.4.4 Port Contribution........................... ................ ...................................26
5.4.5 Port Loan Repayment....................................................................... 26
5.4.6 Payments to BFG Starting in Fiscal Year 2010/2011
Limited to Actual Receipts. ......................................,...................... 27
5.4.7 Adjustments and Maximum Payment. .............................................. 27
5.4.8 In G~eral. .............;......................................................................... 28
5.4.9 Special Indemnity........... ....... .................... .................... ...................28
Section 6. NEW CA.\1PUS AND SOUTH CAMPUS DEVELOPMENT ........................ 28
6.1 Development Agreement. ............................................................................... 28
6.1.1 Permitted Uses. ................................................................................ 28
6.1.2 Subsequent Approvals. ..................................................................... 29
6. 1.3 Application of Subsequently Enacted Rules, Regulations
and Official Policies. ........................................................................ 29
6.1.4 Other Governmental Permits, Approvals and Services...................... 29
6.1.5 Adjacent Land Uses. ........................................................................ 30
6.1.6 Infrastructure, Fees and Exactions. .................................................. 30
6.1.7 Prior City Commitments................................................................... 30
.6.1.8 Term. ............................................................................................... 30
6.2 BFG Obligatioos............................................................................................. 30
6.2.1 Rados/Agency Parcels Use and Development................................... 30
6.2.2 No Challenges; Cooperation. ............................................................ 32
6.2.3 New Campus Master Plan. ............................................................... 32
6.3 Port Cooperation. ........ ........ ....... ...................................... ...............................32
6.3.1 Port Jurisdiction and Control Over Land Uses. ................................. 32
6.3.2 No Challenges..................................................................................32
6.4 Port and Cityl Agency Agreements Regarding South Campus Development.... 33
6.4.1 MasterPlan Amendment. ................................................................. 33
106111.00001411.:&.411.\>1
II
8-62
TABLE OF CONTENTS
( continued)
6.4.2 Master Plan Amendment. ................................................................. 33
6.4.3 RFP Process and Project Approval. ..................................................33
6.5 Covered Areas..................m................................................................ 33
Section 7. ENVIRONMENTAL MANAGEMENT .......................................................... 34
7.1 General Principles............... ..... ................................. ..m........................... ...... 34
7.1.1 Cooperation...................................................................................... 34
7.1.2 Development Objectives. ................................................................. 34
7.1.3 Risk-Based Standards. ...................................................................... 34
7.1.4 Environmental Objectives. ............................................................... 35
7.1.5 Shared Costs. ..............................................:.................................... 35
7.1.6 Manifests. ........................................................................................ 35
7.1.7 Management. ..............................................:.................................... 35
7.1.8 No Waiver....................................................................................... 35
7.2 Allocation of Environmental Costs: South Campus........................................ 35
7.2.1 General.. .................. ..... ..... ..................... ......................................... 35
7.2.2 Allocation. .................................................... ...... ........................ ..... 36
7.2.3 Costs After Transfer. ........................................................................ 36
7.2.4 Costs Associated With Importation of Dredged Material. ................. 37
7.2.5 Costs Associated With Dredging. ..................................................... 37
7.2.6 Costs Associated WIth Irrigation and Ponds. .................................... 37
7.2.7 Costs Associated With Grading. ....................................................... 37
7.2.8 Costs in Excess ofIndustrial Use Standards...................................... 38
7.2.9 Costs Associated With Underground Storage Tanks Costs. ..............38
7.2.10 Costs Associated With Demolition. ................................................ 38
7.2.1] Costs Associated with Groundwater Monitoring. ............................ 38
7.2.12 Costs Associated With Construction Dewatering. .......... ..... ............ 39
7.2.13 Cost Limitation. .............................................................................39
7.2.14 Contamination Discovery Cutoff ................................................... 39
7.3 Management ofEnvirorunental Matters: South Campus................................. 39
7.3.1 Management Responsibilities and Activities..................................... 39
7.4 Allocation of Environmental Costs and Management Responsibilities
for Other Identified Properties. ....................................................................... 46
7.4.1 Port Parcels and SDG&E Land North ofH Street............................. 46
7.4.2 Rados Parcel and City ParceL....................................................... 49
7.4.3 Costs Associated With Dredged Material. ........................................ 50
7.4.4 Costs Associated With Dredging. ..................................................... 50
7.4.5 Contamination Discovery Cutoff. ..................................................... 50
7.5 Other Terms and Conditions........m..................................................... 50
7.5.1 Cooperation.. ........ .......... .................................................................. 50
7.5.2 Permitting. ....................................................................................... 52
7.5.3 Plans. ............................................... ........ ............................. ........... 52
7.5.4 Industrial Use Standard. ................................................................... 53
7.6 Indemnity and Other Provisions...................................................................... 53
7.6.1 General. ........................................................................................... 53
106711-000014 174418.0l
iii
8-63
TABLE OF CONTENTS
(continued)
7.6.2 Internal Costs. ............................................. ..... ................. ............... 53
7.6.3 Consequential Damages. ................................................................. 53
7.6.4 Penalties and Fines........................................................................... 53
7.6.5 Other Funds. .................................................................................... 54
Section 8. CLOSING ....................................................................................................... 54
8.1 Closing; Closing Date..................................................................................... 54
Section 9. GENERAL PROVlSIONS .............................................................................. 54
9.1 Claims and Fees............................................................................................ 54
9.1.1 Indemnity Obligations. ..................................................................... 54
9.1.2 Notice of Third Party Claims............................................................ 55
9.2 Force Majeure. ............................................................................................... 55
9.2.1 Notice. ............................................................................................. 55
9.2.2 Efforts to Minimize. ......................................................................... 55
9.2.3 Option to Terminate. ........................................................................ 55
9.3 Time of the Essence........................................................................................56
9.4 lodependent Contractors. ................................................................................56
9.5 Dispute Resolution. ........................................................................................ 56
9.5.1 Mediation.... ............................................................... ...................... 56
9.5.2 Institution of Legal Action. .............................................................. 56
9.5.3 Arbitration of Specified Disputes. ...........................,........................ 56
9.6 No Joint Venture. ......................................................................................... 57
9.7 Applicable Law. ............................................................................................. 57
9.8 Notices. ............................. ..... ...... ...... ..................................................... ....... 57
9.9 Rules of Construction. .................................................................................... 58
9.10 Severability............ .............. ................................................. .... ................... 59
9.11 Entire Agreement, Waivers, Amendments. .....................................:............. 59
9.12 Further Action. ............................................................................................. 59
9.13 Exhibits. ...................................................................................................... 59 .
9.14 Parties to Bear Their Own Costs. .................................................................. 59
9.15 Captions. .. ...................... .............................................................................. 60
9.16 Assumption of Responsibility. ...................................................................... 60
9.17 Successors and Assigns................................................................................ 60
9.18 Third Parties. ................................................................................................ 60
106711-000014 174488.01
IV
8-64
RELOCA nON AGREEMENT
THIS RELOCATION AGREEMENT (hereinafter referred to as "Agreement") is
made and entered into effective this J3lh day of July, 1999 ("Effective Date''), by and among the
CITY OF CHULA VISTA, a municipal corporation ("City"), REDEVELOPMENT AGENCY
OF THE CITY OF CHULA VISTA, a redevelopment agency formed pursuant to Health and
Safety Code SS 33000 et seq. ("Agency"), SAN DlEGO UNIFlED PORT DISTRICT, a Port
District formed pursuant to Harbors and Navigations Code App. 1, SS 1 et seq. (hereinafter
referred to as "Port") and ROHR, INC., operating as BFGoodrich Aerospace Aerostructures
Group, a Delaware corporation and wholly owned subsidiary of The BFGoodrich Company
(hereinafter referred to as "BFG''). All references in this Agreement to "City/Agency" shaH
refer collectively to City and Agency. City, Agency, Port and BFG are from time to time
hereinafter referred to individually as a "party" and collectively as the "parties."
The parties agree as follows:
Section 1. RECITALS
1.1 Existing BFG Campus. BFG, Port and Agency own certain real property at
the Chula Vista Bayfront (the "Bayfront", as further defined in Section 2.8), in the City ofChula
Vista, California. BFG is the owner of a manufacturing facility on real property located at the
Baytrom, as depicted on the attached Exhibit A (the "Existing Campus," as further defined in
Section 2.45).
1.2 Redevelopment and Eminent Domain. The Port wishes to realign BFG and
Port ownership interests at the Bayfront to improve opportunities for development of Port
tidelands consistent with the Port's tidelands trust. Realignment of the ownership interest of
BFG and the Port will result in acquisition of property uniquely situated to afford the Port
substantially greater Bayfront development opportunities. Accordingly, the Port has indicated its
intention, subject to compliance with all applicable California Jaws, to acquire the "BFG
Property" (as defined in Section 2.10) by power of eminent domain, since BFG has not
expressed any interest in the sale or other disposition of the BFG Property. By executing and
delivering this Agreement, the Pon and BFG agree to avoid the necessity of eminent domain
proceedings, and to cause the realignment of the BFG Property and related properties, all as set
forth herein.
1.3 Purpose of Agreement and Related Agreements. The purpose of this
Agreement is to set forth the fundamental terms oftbe parties' contract concerning certain land
transfers, relocation of BFG's facilities to the "New Campus" (as depicted in the attached
Exhibit B and as defined in Section 2.71), creation of public thoroughfares, management of
1 0&111.000cn 5 ~n405.09
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8-65
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environmental issues, and development and use of the propeny comprising the New Campus and
the South Campus. The parties intend to enter into the following additional agreements
containing further detailed terms and conditions regarding these matters (the "Related
Agreements"):
(a) Port-BFG Land Transfer Agreement;
(b) Agency-BFG Land Transfer Agreement;
(c) Development Agreement;
(d) Tidelands Use and Occupancy Permit; and
(e) Right of Entry Permit.
1.4 Reservation of Discretion. BFG acknowledges and agrees that,
notwithstanding the terms and conditions of this Agreement, Port, City and Agency reserve their
discretion to approve or disapprove all future actions contemplated hereby which require by law
the exercise of discretion and which Port, City and Agency cannot lawfully be committed to by
contract (collectively, "Discretionary Actions"). Such reservation of discretion shall apply to all
contemplated legislative and quasi-judicial actions including, without limitation, approval ofland
use entitlements, CEQA compliance, the exercise of eminent domain, code enforcement and the
making of fIndings and determinations required by law. In the event that Port, City or Agency
shall take or fail to take any Discretionary Action with respect to. the subject matter of this
Agreement., any such action Dr inaction shall not constitute a breach of such party's obligations
under this Agreement.
Section 2. DEFINITIONS
In this Agreement, unless the context otherwise requires:
2.1 ''ADR Provider" shall have the meaning set forth in Section 9 .5.1
2.2 "Affected party" shall bave the meaning set forth in Section 9.2.1.
2;3 "Agency" means the Redevelopment Agency of the City of Chula Vista, a
political subdivision in the State of California exercising governmental functions and powers and
organized and existing under the Community Redevelopment Law of the State of California
(Health and Safety Code Sections 33000, et seq.).
2r4 "Agency-BFG Land Transfer Agreement" means the Land Transfer
Agreement between Agency and BFG described in Section 3.2.
2;5 "Agency Fund" shall have the meaning set forth in Section 3.6.1
105711.OOlXt'l.S 112<W5.0Sl
2
8-66
2.6 "Agency Pared" means the real propeny Agency owns on Bay Boulevard
south of Lagoon Drive, comprising approximately 3.65 acres, as shown on tbe Site Map attached
as Exhibit C.
2.7 "Agreement" means this Relocation Agreement.
2.8 "Bayfront" means the propeny located in the City of Chula Vista; California
bounded by F Street and Lagoon Drive to the north, Interstate 5 to the east, J Street and Marina
Parkway to the south, and the San Diego Bay to the west.
2.9 "BFG" means Robr, Inc., operating as BFGoodrich' Aerospace
Aerostructures Group, a Delaware corporation and wholly owned subsidiary of The BFGoodrich
Company.
2.10 "BFG Property" means the real property owned in fee by BFG located
south of the northerly boundary of the proposed H Street Extension comprising approximately
37.58 acres and as more particularly shown on the Site Map attached as Exhibit C.
2.11 "BFG Relocation" means the relocation and consolidation, of BFG's
facilities and operations from the South Campus to the New Campus as described in Sections 4
and 5.
2.12 "BFG Subleases" shall have the meaning set forth in Section 3.7.1.
2.13 "CEQA" means the California Environmental Quality Act, Public
Resources Code ~9 21000 et seq. and the Guidelines promulgated thereunder.
2.14 "CHGC" shall have the meaning set forth in Section 3.7.1.
2.15 "City" means the City of Chula Vista, a municipal corporation having
charter powers.
2.16 "City/Agency" shall have the meaning set forth In the introductory
paragraph of this Agreement.
2.17 "Oaims and Fe",," shall have the meaning set forth in Section 9.1.1.
2.18 "Oosing" shall have the meaning set forth in Section 8.1.
2.19 "Oosing Date" shall have the meaning set forth in Section 8.1.
2.20 "Combined Campus Available Revenues" shall have the meaning set forth
in Section 5.4.4.
2.21 "Combined Campus Base ReJ'Cnues" shall bave the meaning set forth in
. Section 5.4.4.
2.22 "Costs" shall have the meaning set forth in Section 7.2.1.
106711,0000151n.c:rs.08
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2.23 "CtJVeI'ed Areas" shall have the meaning set forth in Section 6S
2.24 "Deferred Obligation" shall have the meaning set forth in Secti 5.4.6.
2.25 "Demolition" shall have the meaning set forth in Section 7.2.10 I
2.26 "Development Agreement" shall have the meaning set fonh in S~ion 6.1.
2.27 "Development Agreement Effective Date" shall have the meaning set forth
in Section 6.1.1. I
2.28 "Development Agreement Statute" means Title 7, Chapter 4, Ircle 2.5,
~~ 65864 through 65869.5 of the Government Code.
t
2.29 "Development Plan" sball have the meanIng set i forth m
Section 7.3.1(g)(I)(i). I
I
,
2.30 "Disapproved Exception" shall bave the meaning set forth in Se~tion 3.1.6.
2.31 "Discretionary Actions" shall have the meaning set forth in sec~on 1.4.
2.32 "Dispute" shall have the meaning set forth in Section 9.5.1. !
i
2.33 "Easement Area" shall have the meaning set forth in Section 6.~ I (b).
2.34 "Effective Date" means the effective date of this Agreement asllset forth in
the introductory paragraph hereof.
;
2.35 "Entry Statement" shall have the meaning set forth in Section 6.~.1(b).
2.36 "Environmental Conditions" means the presence of Hazardous fUbstances.
2.37 "Environmental Oaims" means any lawsuits or claims or reqUIrements of
government agencies (including, without limitation, all cost recovery actions, suits, p oceedings,
administrative orders, causes of action, judgments, injunctions, settlements, fines 0 penalties)
made by any person or entity resulting from. concerning, or arising out of or in co ion with
Environmental Conditions, Environmental Releases or Environmental Remediation Activities.
Provided, however, that Environmental Claims shall not include fines or penalties im osed upon
a specific party by a government agency hased on unreasonable actions by that party. I
2.38 "Environmental Costs" means the Costs resulting from. con~erning, or
arising out of or in connection with Environmental Conditions, Environmenta Releases,
Environmental Remediation Activities, and Environmental Claims; provided ho ever that
Environmental Costs shall specifically not include consequential, or punitive damages
I
2.39 "Environmental Laws" means any federal, state or local I w, statute,
regulation, rule, ordinance, permit. prohibition, restriction, requirement, agreement, consent or
approval, or any determination, directive, judgment, decree or order of any executive,
administrative or judicial authority at any federal, state or local, level (whether now existing or
'067'T'\.QCQC15 "720405.011
4
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subsequently adopted or promulgated) relating to (a) environmental andlor toxic contamination
or pollution or (b) the protection of the environment, natural resources or public heallh or safety
from hazardous substances, materials, wastes, pollutants or contaminants.
2.40 "Environmental Matters" means all matters concerning, or arisi g out of or
in connection with Environmental Conditions, Environmental Claims, Environmehtal Costs,
Environmental Releases andlor Environmental Remediation Activities. I
2.41 "En~'ironmental Release" means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposihg into the
environment of any Hazardous SUb. stance, including the abandonment or discarding(Of barrels,
containers. and other receptacles containing any Hazardous Substance.
2.42 "Environmental Remediation Activities" means the in estigation,
administration, compliance, mitigation, remediation, cleanup or related actions reSl\lting from,
concerning, or arising out of or in connection with Environmental Conditions, EnVironmental
Claims or Environmental Releases.
2.43
Section 3. 1.1 (b).
"Excluded BFG Property" means the property de cribed In
2.44 "Existing Approvals" means all Project Approvals applicable to the real
property cornprisingthe New Campus as of the Development Agreement Effective D e.
2.45 "Existing Campus" means that certain real property owned 0 leased by
BFG described in Exhibit A. including the property leased from the Port, S &E, and
SD&AERC, located at the Bayfront on which BFG currently operates a manufacturin facility.
2.46 "Existing Rules, Regulations and Official Policies" shall have e meaning
set forth in Section 6.1.1.
2.47 "FIScal Year" shall have the meaning set forth in Section 5.4.2.
2.48 "Force Majeure'"shall have the meaning set forth in Section 9.2
2.49 "Foster" shall have the meaning set forth in Section 3.7.1.
2.50 "Funding Request" shall have the meaning set forth in Section 3 6.2.
2.51 "General Plan" means the City ofChula Vista General Plan.
2.52 "H Street Bayle Study" shall have the meaning set forth in Secti n 4.2.
2.53 "H Street Extension" means the H Street Extension dJscribed in
Section 4.2 and sball include substantially all of the project elements (includirig without
limitation, utility lines and infrastructure) as depicted by the H Street Boyle Study.
101571 Ul000151n40S.~
5
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2.54 "Hazardous Substance" means any material, waste, chemical, compound,
substance, mixture, or byproduct that is identified, defined, designated, listed, tricted or
otherwise regulated under Environmental Laws as a "hazardous constituent,~ "hazardous
substance," "hazardous waste constituent,~ "infectious waste,~ "medical waste,~ "b ohazardous
waste," "extremely hazardous waste," "pollutant," "toxic pollutant," "chemical onstituent,~
"solid waste," or "contaroinant," or any other formulation intended to classify su stances by
reason of properties that are deleterious to the environment, natural resources or pub ic health or
safety including wi~hout limitation, i~tability,. infectiousness,. c.o~osiveness, r~~oactivity,
carcinogemclty, tOXICIty, and reproduCllve tOXICIty. Without hmltmg the generahty of the
foregoing, Hazardous Substances shall include any form of natural gas, as well as any petroleum
products or any fraction thereof; and any substance that, due to its characteristics Ol interaction
with one or more other materials, wastes, chemicals, compounds, Substances, ix"tures, or
byproducts, damages or threatens to damage the environment, natural resources or p blic health
or safety, or is required by any law or public entity to be remediated, including emediation
which such law or public entity requires in order for real property to be put to any lawful
purpose.
2.55
2.56
Section 7.5.4.
2.57
2.58
2.59
Section 5.4.4.
2.60
Section 5.4.1.
2.61
"Industria' Impacts" shall have the meaning set forth in Section 6.1.5.
"ltUlustria' Use Standm-d" shall have the meaning s forth In
"Injured Party" shall have the meaning set forth in Section 9.2.
"Installme/IJ" shall have the meaning set forth in Section 5.4.1.
"Installmt!nt Amount Dut!" shall have the meaning s t forth In
"Installment Payment Date" shall have the meaning s t forth in
"Interim Use Period" shall have the mel!ning set forth in Sectio 6.2.1(a).
2.62 "Land Transfer Agreements" means the Agency-BFG La d Transfer
Agreement and the Port-BFG Land Transfer Agreement described in Section 3. I
2.63 "Long Term LeIlSe" means the lease described in Section 3. 1.2(1)(i).
2.64 "Marina ParkH>ay Boyle Study" shall have the meaning t forth in
2.65 "Marina ParkH>ay Realignment" shall have the meamng
in
Section 4.3.
Section 4.3.
2.66 "Master PlDn" shall mean the Master Plan of the Port District as amended
from time to time.
loe'1,1.CllXIG1S ,n405.O~
6
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. I
2.67 "MTDB" means the Metropolitan Transit Development Board.
2.68 "MTDB Leases" means the Commercial Lease dated September 19. 1957,
between SD&AERC and Rohr Aircraft Corporation, and the Railroad Lease Agredment dated
February 12,1998, between SD&AERC and BFG.
2.69 "MTDB Parcel" means the real property described in Section 3. .4(a).
2. 70 "MTDB Railway" shall have the meaning set forth in Section 3. .4(b).
2.71 "New Campus" means the real property north ofH Street on hich BFG
will consolidate and relocate its facilities (including the property to be acquired by B G pursuant
to this Agreement), as shown an Exhibit B, comprised initially of the property awn d in fee by
BFG, the Rados Parcel, the Agency Parce~ the SDG&E Parcel, Part Parcell and P rt Parcel 2.
The MTDB Parcel (or any of the ather foregoing properties) shall be included in the efinition of
New Campus if it is transferred to BFG subsequent to Closing. In the event BFG el s to close
without receiving title to (or a possessory interest in) one or more of the foregoing pr perties, the
New Campus shall not include such properties unless title to (or a possessory int st in) such
properties is subsequently acquired.
2.72 "New Campus Industrial Financing Assistance" shall have e meaning
set forth in Section 5.4.
2.73 "New Rules" shall have the meaning set forth in Section '6. 1.3.
2.74 "Notifying Party" shall have tbe meaning set forth in Section 9. .2.
2.75 "Option Notice" shall have the meaning set forth in Section 6.2. (c)(3).
2.76
Section 62.1(c)(I).
"Original Purchase Price" shall have the meaning s
forth m
2.77 "Parties" shall have the meaning set forth in the introductory aragraph of
this Agreement.
2.78 "Permitted Uses" means all uses far which tbe Existing Campus is
currently used, including, without limitation, manufacturing and related operations ( eluding all
activities associated with the research, development, manufacture, assembly, proces 'ng. testing,
servicing, repairing, storage and/or distribution of products and component parts and 1 activities
incidental thereto), accessory uses and buildings (including off-street parking fnd loading
facilities, administrative, executive and financial offices and incidental servicjs, such as
restaurants to serve employees) and all other uses of the same general character as t~e foregoing
in each case that are consistent and in compliance with the Rules, Regulations and Official
Policies applicable to the Existing Campus as of the Closing Date; provided, h6wever, that
nothing herein shall be construed to permit any uses which are inconsistent with I blic health
and safety.
10l5711.000CIl5172405.og
7
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~" ..""'. m_ w. s~ Di"" U.i.ol Port DiMct f"mol ",,1_ m ""
San Diego Unified Port District Act, Harbors and Navigation Code App. 1,99 1 el se '.
'I
,
2.80 "Port-BFG Land Transfer Agreement" means the Lan Transfer
Agreement between Port and BFG described in Section 3.
2.81 "Pon Loan" shall have the meaning set fortb in Section 5.4.4.
I
!
I
I
I
;1
I,
.
,I
2.82 "Port Parcell," "Pon Parcel 2, " and "Pon Parcels" means th parcels of
real property to be transferred by Port to BFG described in Section 3.1.2.
2.83 "Port Property Agreements" means (a) the Lease between t City and
Rohr Aircraft Corporation dated March 20, 1959; (b) the Tidelands Use and OCCUPjncy Permit
dated April 15, 1997, between Port and BFG; and (c) the Tidelands Use and Occup ncy Permit
dated April 25, 1997. between Port and BFG.
2.84 "Project Appruvais" means all General Plan and Specific Plan d signations,
policies and procedures, zoning, owner participation agreements. design review, p~rce] maps,
tentative and fmal subdivision maps, environmental approvals (including CEQA ap~ovals), lot
line adjustments, building permits, grading permits, preliminary and final developrpent plans,
certificates of occupancy and all other land use. environmental and building approvaIs, permits
and entitlements applicable to the property comprising the New Campus. I
2.85 "Rados Option" shall have the meaning set forth in Section 6.2. I (c).
2.86 "Rados Option Purchase Price" shall have the meaning s forth in
Section 6.2.1(c)(I).
2.87
Section 6.2. 1 (c)(2).
"Rados Option Term" shall bave the meaning set forth In
2.88
Section 3.2.2(a).
"Rados Parcel" means the parcel of real property d
2.89 "Receiving Party" shall have the meaning set forth in Section 7. .5.
2.91 "Relocation Period" shall have the meaning set forth in Section .1.
2.90 "Related Agreements " means the agreements described in Seetio 1.3.
in
2.92 "Relocation Schedule" means the schedule for relocation of BFG's
facilities described in Section 4.4.
2.93 "REP" shall have the meaning set forth in Section 4.1.
2.94 "RFP" shall have the meaning set forth in Section 6.4.3.
2.95 "Responding Party" shall have the meaning set forth in Section 1.2.
10S711.0000151'T.:!.4050li1
8
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2.96 "Rules, Regulations and Official Policies" means the rules, egulations,
ordinances, laws, general or specific plans, zoning. performance standards and offi ial policies
governing development, design, density and intensity of use, permitted u es, growth
management, environmental review, construction and building standards (with the xception of
the Uniform Building Code and similar uniform safety regulations, which may chan from time
to time) and design criteria relating to development or use of real property.
2.97 "SD&AERC" means the San Diego & Arizona Eastern Railway ompany.
2.98 "SDG&E" means the San Diego Gas & Electric Company.
2.99 "SDG&E Lease" shall have the meaning set forth in Section 3.7 2.
2.100 "SDG&E Land" means the land that is the subject of the SD &E Lease
between BFG and SDG&E covering the SDG&E Parcel and property owned by S G&E south
of the New Campus as shown on Exhibit A.
2.101
"SDG&E Lines" shall have the meaning set forth in Section 3. .3(b).
"SDG&E Parcel" means the parcel of real property dbscribed In
2.102
Section 3.1.3(a).
2.103 "Sensitive Receptors" shall have the meaning set forth in Secti n 6.1.5.
2.104 "SLC" means the California State Lands Commission.
2.105 "Site Map" means the site map shown on Exlu'bit C.
2.106 "South Campus" means the ponion of the Existing campUj located on
property south of the nonherly boundary of the proposed H Street Extension, includi g the South
Campus Leased Property, as shown on Exhibit A
2.107 "South Campus Environmental Claims" shall have the meaning set fonh
in Section 7.2.1. 1
2.108 "South Campus Environmental Conditions" shall have the eaning set
forth in Section 7.2.1.
Section 7.2.1.
2.109 "South Campus Environmental Costs" shall have the meaDin set forth in
2.110 "South Campus Environmental Rdeases" shall have the reaning set
forth in Section 7.2.1. I.
2.111 "South Campus Errvironmental Remediation Activities" shall have the
meaning set forth in Section 7.2.1.
Section 4.6.
2.112 "South Campus Leased Property" shall have the meaning et forth in
1oe711.0C00151~.09
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2.113 .Sp.dfio Pi~. m..J tim B,_, S...fio PI," or 1 Ci~ or
Chula Vista. I
2.114 "StructRres" shall have 1e meaning set forth in Section 7.2.10.
2.115 "Subs~qu~nt Approvals" I shall have the meaning set forth in Se tion 6.1.2.
2.116 "Title Notice" shall havere meaning set forth in Section 3.1.6. .
2.117 "Transfer Activities" shajl have the meaning set forth in Sectio 3.6.1.
2.118 "Tranifer Approval" sh~l have the meaning set forth in Sectiol 3.1.5.
2.119 "Transfer Notice" shall +ve the meaning set forth in Section 3.1.4(c).
I
2.120 "Transfer Payments" 111 have the meaning set forth in Secti n 5.1.
2.121 "Transfer Propanes means the properties to be transferred in
accordance with Section 3.
2.122 "rooP" shall have the eaning set forth in Section 4.1.
2.123 "Underground
meaning set forth in Section 7.2.9.
of Hazardous Substances" shal have the
2.124 "Underground Storag Tanks" shall have the meamng et forth In
Section 7.2.9.
2.125 "Underground Tank R gulations" shall have the meaning et forth in
Section 7.2.9.
Section 3. LAND TRANSFER AGREEMEN~S
The parties shall enter into "La d Transfer Agreements" concerning the transfer
of certain real property described in this Sect' n 3 (UTranifer Properties") all up n the terms
and conditions described in this Section 3.
3.1 Land Transfer Agrcocome Between Port and BFG. Port an BFG shall
enter into the "Port-BFG Land Transfer A ument" containing the terms an conditions
described in this Section 3 and such other erms as may be necessary or cust mary for a
transaction of this nature.
'06111.0c:lCO\51nt.05,0Sl
;10
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i
I
3.1.1 South Campus T nsfers.
(a) Property to be ransferred to the Port. BFG shall transfer to
the Port the BFG Property including n buildings and improvements locat d thereol1,
except for the Excluded BFG Property ( etined below).
(b) Excluded BFG Property. Prior to the expiratipn of the
Relocation Period, BFG shall remov from the BFG Property' persona! property,
furnishings, fixtures, machinery, equip ent, inventory, tools and the like (thel "Excluded
BFG Property") and such property S II not be transferred by BFG to the rort. BFG
shall repair any damage to structural e ements of buildings (walls, ceiling, foundations
and utility services) on the South Camp s caused by removal of trade fixtur s, provided
that such buildings are not intended b the Port to be demolished within 120 days of
BFG's relocation from the building.
3.1.2 Port Parcels.
(a) Property to be ransferred to BFG. The Port shall transfer to
BFG the following real property ("Pon arcels''):
(i) Port Par I. The Port shall transfer to BFG portion of
the real property currently ground leas d by BFG from the Port under the ease dated
Marcb 20, 1959, between the City an ROM Aircraft Corporation (the" ong Term
Lease''), comprising approximately 9.9 acres, located north of the H Stre Extension
and east of Marina Parkway, as show on Exhibit C ("Port Parcell''). P rt Parcel I
includes buildings, improvements, fiX! res and personal property, which arI~e currently
owned, and will continue to be owned, BFG.
(ii) Port Pare 12. The Port shall transfer to B G the real
property, comprising approximately 5 acres, located west of Port Pare 11, in the
triangular area from the easterly edge 0 the existing Marina Parkway right-otway, north
of the H Street Extensiol1, and continui west to include portions of the exisF,g Marina
Parkway and G Street rights-of-way an the Port-owned parcels west, south and north of
such rights-of-way, as shown on Exhibi C ("Port Parcel ]''). Pon Parcel 2 shall include
any buildings and improvements 10 aled thereol1, including one (1) Iloundwater
monitoring well and related equipment.
(iii) Se arate eels. The Port shall, at no cost to B G, take all
steps necessary to create and convey t BFG the Port Parcels as separate I al parcels
according to applicable law.
3.1.3 SDG&E Property
(a) Property to be Transferred to BFG. The Port sbal convey to
BFG the land located within the New Campus comprising approximately 7.!cl acres as
shown on Exhibit C (the "SDG&E Pdrcelj. Tbe SDG&E Parcel is part of a larger
parcel of property recently acquired by te Port from SDG&E. The Port shal~ at no cost
106711.000015'12.(5.09 11
8-75 __.. ..
to BFG, take all steps necessary to cr e and convey to BFG the SDG&E Parcel as a
separate legal pared according to appli able law.
(b) Condition of S G&E ParceL The Port and BFG a knowledge
that the SDG&E Parcel currently centa os above-ground electrical transmissi n lines and
towers, related equipment, an undergr und natural gas line and an undergr und hot oil
line (collectively, the "SDG&E Lines' . BFG acknowledges that the conv yance shall
not include the SDG&E Lines. The S G&E Parcel shall be conveyed to BF subject to
an existing easement for Continued use fthe portions of the SDG&E Parcel n which the
SDG&E Lines are currently located more fully set forth in that cert' Quitclaim
Deed, Easement Reservation and Cov nant Agreement between SDG&E d the Port
previously delivered to BFG and record d in the Official Records of San Die County.
3.1.4 MTDB Property.
(a) Prnperty to be ransferred to BFG. The Port shall use its best
efforts to acquire and convey to BFG, 0 cause to be conveyed to BFG, the la d currently
owned by SD&AERC between H Stre and Lagoon Drive, as shown on Emit C (the
"MTDB Ptucel'). City/Agency shall reasonably cooperate with Port's M B Parcel
acquisition efforts:
(b) Condition of M DB Panel. The parties acknowle ge that the
MTDB Parcel currently contains an a 've rail line and related equipment ( lIective1y.
the "MTDB Railway''), and the MTDB Railway must be legally vacated an abandoned
by MTDB and all users of the MTDB 'lway prior to transfer. to BFG. T e Port shall
use its best efforts to cause the vacati n and abandonment of the MTDB ilway by
MTDB and all users of the MTDB ilway, City/Agency shall reasonablcooperate
with Port's MTDB Railway vacation an abandonment efforts,
(c) Purchase of the TDB Property. Promptly after P rt acquires
or secures the right to acquire the MT B Parcel. Port shall provide BFG ~'tten notice
(the "Transfer Notice'') evidencing B G's opportunity to acquire the M B Parcel
from, or through, Port. The parties a knowledge that the sum of $212,57 (equal to
$2_00 per square foot for the 2.44 acrclI06.286.4 square foot parcel), has bee prepaid by
BFG for the MTDB Parcel as a good aith estimate of its "fair market value." Within
thirty (30) days after delivery of the Tr fer Notice, BFG or Port may elecEy written
notice to the other to seek an adjustme t (up or down) of the $212,573 pre ayment for
the MTDB Parcel. based upon the "fair arket value" of the MTDB Parcel in its then "as
is" condition at the time of delivery of t e Transfer Notice. Promptly thereaft . Port and
BFG shall negotiate in good faith for a period of thirty (30) days to attempt~o mutually
agree upon the "fair market value" ofth MTDB Parcel. 1fthe parties are una Ie to agree
upon a determination of "fair market ue," then prior to the expiration 0 the 3D-day
negotiation period, Port and BFG sh I mutually appoint one (1) MAl ~Praiser to
determine the "fair market value" of th MTDB Parcel which shall be bindin upon both
parties. Upon detennination of the "fai market value" of the MTDB Parcel ($212,573,
or otherwise), or promptly thereafter, BFG shall acquire the MTDB Par el from or
through Port, and an appropriate cash djustment shall be made in the evtt the "fair
106711.COOO15172-'OS.:tSI
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I
mm. ~.Iu," of ", MIDB P~~I;, ow,,"'" '" b, """'. mia' ".1 $212.573
based upon the foregoing criteria. If e Port is unable to acquire the MTDB Parcel
within two years after the Closing Date, or upon prior request by BFG, the prJpayment of
$212,573 shall be repaid by the Port to FG within 30 days.
3.1.5 Approval of d Transfer by State Lands Commission. The
parties acknowledge that completion 0 the land transfers between Port an~ BFG will
require certain approvals by the SLC Ii the Port Parcels to be conveyed to ~FG free of
the public trust (collectively, the "T. nsfer Approval''). Such detenninfltions may
include appropriate fmdings by the S that the Port Parcels are no longer useful for
trust purposes. The parties shall use th ir best efforts to finalize and execute Ithe Related
Agreements as rapidly as possible and bort shall use its best efforts to expeditiously seek
the Transfer ApprovaL I
3.1.6 Title Exceptions. Each transferee party shall review the status of
title witb respect to the Transfer Prope . es which such transferee party will eceive, for
purposes of determining whether th~e are any title exceptions encum ering such
Transfer Properties which the transfer party reasonably elects to have rem ed. On or
before September 8, 1999, each transfi ee party shall provide written notice (the "Jitle
Notice") to the other parties to this Areement describing each exception hich such
transferee reasonably elects to have rj':rnoved from its respective Transfe Properties
(each, a "Disapproved Exception'). Eal::h party to this Agreement shall. pri01to Closing:
(i) remove from any Transfer Property (r.-bether owned, or not owned, by suc~ party) any
Disapproved Exception pursuant to hich such party is a beneficiary'ind (ii) use
commercially reasonable efforts to re ve from any then-owned Transfer operty any
Disapproved Exceptions that benefit thi d panies.
3.2 Land Tnmsfer Agreemen Between Agency and BFG. The f'gency and
BFG shall enter into a Land Transfer Agreem nt ("Agency-BFG Land Transfer A reement')
upon the terms and conditions described in this Section and such other tenns as may be
necessary or customary for a transaction of this ature_
3.2.1 Agency Parcel.
(a) Property to be ransferred to BFG. The Agency s aU transfer
to BFG tbe "Agency Parcel." I
(b) Condition of Ag ncy Parcel. The Agency Parcel shall be cleared
and graded by the Agency without co to BFG_ Unless the parties other' 'se agree,
grading shall be to the contours reasona ly required by BFG_
(c) Purchase Price. The purchase price to be paid by BF
for the Agency Parcel is $1,271,952. he purchase price shall be paid to
the funds deposited by the Port into Esc ow for BFG's account pursuant to S
to Agency
ency from
tion 3.6.1.
3.2.2 Rados Parcel.
10en ~ .tXXXJl5 ,n~cs,CB
3
8~77
(3) Property to be ransferred to BFG. The Agency shall arrange
for the transfer to BFG of the land c endy owned by Rados Bros. and located at the
corner of Bay Boulevard and Lagoon Drive, comprising approximately 3 02 acres, as
shown on Exhibit C (the "Rados Parce ").
(b) Condition of dos Parcel. The Rados Parcel shall be cleared
and graded by the Agency, without cas to BFG. Unless BFG and the AgenCy otherwise
agree, grading shall be to the contours r asonably required by BFG.
(c) Acquisition of dos Parcel BFG and the Agency acknowledge
that the Rados Parcel is currently priva ely owned. If a voluntary acquisition cannot be
arranged between the Agency and the er of the Rados Parcel allowing th~ transfer of
the Rados Parcel to BFG on the Clo ing Date, then the Agency shall agendize for
consideration by the Agency Board a esolution of Necessity which, if adopted by the
Agency Board, would authorize the ac uisition of the Rados Parcel by eminent domain.
BFG acknowledges and agrees that by ntering into this Agreement, the Agency has not
precommitted itself to commencement f eminent domain proceedings with respect to the
Rados Parcel and. the Agency reserve the right, in its sole discretion to approve or
disapprove a Resolution of Necessity 'th respect thereto. In the event that Agency is
not able to acquire the Rados Parcel v untarily, and either elects not to pursue eminent
domain or is unsuccessful in its pursui and as a result is unable to deliver an Order of
Possession for the Rados Parcel as of e Closing, BFG shall have the option, in its sole
discretion., of electing either to (i) term nate this Agreement, or (ii) receive One Million
Fifty- Two Thousand Four Hundred an Nine Dollars ($1,052,409) in lieu of acquisition
of the Rados Parcel. If; as of the Closi g Date, BFG elects to receive $1,05~409 in lieu
of the Rados Parcel, and the Agency las withdrawn all or part of this amount out of
Escrow pursuant to Section 3.6.2. Ag ncy shall pay the amount of such withdrawal
directly to BFG within 10 days of rec ipt of notification of BFG's election, and BFG
shall withdraw the balance (if any) up t the amount of $1,052.409 out of Esorow. In no
event shall Agency's disapproval of a Resolution of Necessity with respect to the Rados
Parcel constitute an Agency breach of i obligations hereunder. In the event that Agency
approves a Resolution of Necessity wit respect to the Rados Parcel, Agency agrees to
file a condemnation a~ion within twen (20) days of such approval and exercise best
efforts to expeditiously obtain an Order f Possession with respect thereto.
(d) Purchase Price. he purchase price to be paid by BFG to Agency
for the Rados Parcel shall be the amou t paid by Agency to the private owner thereof,
whether determined through a volunt agreement, by settlement, or through a court
proceeding. provided, however, in no e ent shall said purchase price exceed the amount
paid to the Cityl Agency pursuant to S tion 3.6.1 for all Transfer Activities minus the
amount paid to the Agency for the eney Parcel pursuant to Section 3.2,I(c). The
purchase price shall be paid to Agency om the funds deposited by the Port into Escrow
for BFG's account pursuant to Section 3 6.1.
3.3 Transfer and Acceptance 0 Property "A.-Is."
3.3.1 Property Transfe cd to Port.
'IOS711.0000151nCOS.09
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8-78
(a) Acknowledgmen of "As-Is" Transfer. Port acknowledges and
agrees that the BFG Property is to be conveyed to and accepted by Pon in an "as-is"
condition, with all faults, and that, e"Fept as to those representations and warranties
expressly set forth in the Port-BFG Und Transfer Agreement, neither BFG. City or
Agency, nor any of their agents or empl yees has made any representations or warranties
of any kind in connection with any matt r related to the condition, value. fitness or use of
the BFG Property.
(b) Release. Pon ereby waives. releases, acquits, and forever
discharges BFG, to the maximum ex! nt permitted by law, of and from any claims,
actions, causes of action, demands, rig s, liabilities, damages, losses, costs, expenses or
compensation whatsoever, direct or indi ect, known or unknown, foreseen or unforeseen.
that now exist or that may arise in the ture on account of or in any way growing out of
or connected with the ownership. use r occupancy of the BFG Property or the South
Campus Leased Property prior to the losing Date, including, without limitation, the
physical and environmental condition including, without limitation an Environmental
Condition) of the property and any s elures or improvements located thereon. In
connection with the foregoing release, P rt acknowledges and expressly waives any of its
rights under California Civil Code secti n 1542. which provides as follows:
"A general release does not extend to claims which tbe
creditor does not know 0 suspect to exist in his favor at the
time of executing the rei ase, which if known by him must
bave materially affected . s settlement with the debtor."
Notwithstanding the foregoing, the a knowledgment and release set fonh in- these
Sections 3.3.1(a) and (b) are not inten ed to. and shall not, release or discharge any
duties, obligations, liabilities, represent tions or warranties of BFG that are expressly set
forth in this Agreement or the Pon-B Land Transfer Agreement. including, but not
limited to, the provisions of Section 7 h recf
3.3.2 Property Transfe red to BFG.
(a) Acknowledgmen of "As-Is" Transfer. BFG acknowledges and
agrees that the Pon Parcels and the SO &E, MTDB, Agency and Rados Parcels are to be
conveyed to and accepted by BFG in an Uas-is" condition, with all faults, and that. except
as to those representations and WaIT ties expressly set forth in the Port-BFG Land
Transfer Agreement and the Agency-B G Land Transfer Agreement, neither Port, City
or Agency, nor any of their agents r employees has made any representations or
warranties of any kind in connection ith any matter related to the condition, value,
fitness or use of any of such properties.
(b) Release.
(i) Pon. BF hereby waives, releases, acquits, and forever
discharges Port to the maximum exte t permitted by law, of and from any claims,
actions, causes of action, demands, rig s, liabilities, damages, losses, costs, expenses or
loe1"lHXXXJ,51n..05.0G
5
8 79
compensation whatsoever, direct or indurect, known or unknown, foreseen or unforeseen,
that now exist or that may arise in the ~ture on account of or in any way growing out of
or connected with the ownership, use ~ occupancy of the Port Parcels and the SDG&E
and MTDB Parcels prior to the date the property in question is conveyed to BFG
including, without limitation, the ph sical and environmental condition (includin8,
without limitation an Environmental ,andition) of the property and any structures or
improvements located thereon. In Iconnection with the foregoing release, BFG
acknowledges and expressly waives any of its rights under California Civil Code
section 1542, wbich provides as foUows
"A general release doe not extend to claims which the
creditor does not know 0 suspect to exist in his favor at the
time of executing the reI ase, which if known by him must
bave materially affected is settlement with the debtor."
Notwithstanding the foregoing, the a knowledgment and release set forth in these
Sections 3.3.2(a) and 3.3.2(b)(i) are no intended to, and shall not, release or discbarge
any duties, obligations, liabilities, repre enlations or warraIlties of Port that are expressly
set forth in this Agreement or the Port-SFG Land Transfer Agreement, including, but not
limited to, the provisions of Section 7 h reof
(ii) Ci / A en . BFG hereby waives, releases, acquits, and
forever discharges City/Agency to the aximum extent permined by law, of and from
any claims, actions, causes of action, d mands, rights, liabilities, damages, losses, costs,
expenses or compensation whatsoever, irect or indirect, known or unknown, foreseen or
unforeseen, tbat now exist or that may arise in the future on account of or in any way
growing out of or connected with the wnership, use or occupancy of the Agency and
Rados Parcels and the vacated portion 0 Marina Parkway (and H Street to the extent any
vacated portion thereof is acquired by FG) prior to the date the property in question is
conveyed to BFG including, without Ii itation, the physical and environmental condition
(including, without limitation an Envi onmental Condition) of the property and any
structures or improvements located the eon. In connection with the foregoing release,
BFG acknowledges and expressly wai s any of its rights under California Civil Code
section 1542, which provides as follows
"A general release does not extend to claims which the
creditor does not know 0 suspect to exist in his favor at the
time of executing the reI ase, which if known by him must
have materially affected is settlement with the debtor."
Notwithstanding the foregoing, the a knowledgment and release set forth in these
Sections 3.3.2(a) and 3.3.2(b)(ii) are no intended to, and shall nol, release or discharge
any duties, obligations, liabilities, repre ntations or warranties of City/Agency that are
expressly set forth in this Agreement, r the Agency-BFG Land Transfer Agreement,
including but not limited to, the provisio s of Section 7 hereof.
,0000".OOOO'lS ln~.Oi
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8-80
3.4 Indemnities After Oosing Pate.
3.4.1 Port Indemnity. Port shall release, discharge, indemnify, defend
and hold harmless BFG from all claims, liabilities, losses, costs, and expenses (including,
without limitation, Environmental C sts resulting from an Environmental Release
occurring after the Closing Date) resuh ng from the Port's ownership, use or occupancy
of the BFG Property and the South C mpus Leased Property on and after the Closing
Date. Provided, however that, with respect to South Campus property that BFG
continues to occupy after the Closing ate (pursuant to a Tidelands Use and Occupancy
Pennit and/or a Right of Entry Permit) during the Relocation Period, BFG shall release.,
discharge, indemnify, defend and hold armless Port from all claims, liabilities, losses,
costs, and expenses (including, withou limitation, Environmental Costs) resulting from
the acts or omissions ofBFG after the losing Date and during the term of any Tidelands
Use and Occupancy Permit and/or Righ of Entry Permit.
3.4.2 BFG Indemnity.
(a) Port. BFG shal release, discharge, indemnify, defend and hold
harmless Port from all claims, liabilitie , losses, costs, and expenses (including, without
limitation, Environmental Costs resulti from an Environmental Release occurring after
the Closing Date) resulting from BFG's ownership, use or occupancy of the Port Parcels,
the SDG&E Parcel and the MTDB Par e~ on and after the date the property in question
is conveyed to BFG. Provided, how ver, that this release shall not include claims,
liabilities. losses, costs, and expense (including, without limitation, Environmental
Costs) resulting from the acts or omissi ns of Port after the Closing Date, and Port shall
release, discharge, indemnify, defend a d hold harmless BFG from all claims, liabilities, .
losses, costs, and expenses (including, 'thout limitation, Environmental Costs) resulting
directly from such acts.
(b) Agency. BFG sh II release, discharge, indemnify, defend and hold
harmless Agency from all claims, lia ilities, losses, costs, and expenses (including,
without limitation, Environmental C sts resulting from an Environmental Release
occurring after the Closing Date) result ng from BFG's ownership, use or occupancy of
the Agency and Rados Parcels and the aeated portion of Marina Parkway (and H Street,
to the exient any vacated portion there f is acquired by BFG) on and after the date the
property in question is conveyed to B ; provided, however, that this release shall not
include claims, liabilities, losses, co ,and expenses (including, without limitation,
Environmental Costs) resulting from t acts or omissions of Agency after the Closing
Date, and Agency shall release, disch ge, indemnify, defend and hold harmless BFG
from all claims, liabilities, losses, co s, and expenses (including, without limitation,
Environmental Costs) resulting directly om such acts. This release and indemnity shall
also include the City but only with resp ct to the vacated portion of Marina Parkway and
H Street to the extent any vacated portio of H Street is acquired by BFG.
3.5 Environmentsl Matten. The responsibilities of the Port, City/Agency and
BFG for the performance, management and costs of Environmental Matters and activities arising
in connection with or concerning (a) thb BFG Property shall be as set forth in
1D671'.OOOO151T2tOS.Oi
7
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I
I
:1
~
Sections 7_1, 7-2,7.3,7.5 and 7.6; and (b) the Port Parcels and SDG&E, MTDB, Agency and
Rados Parcels shall be as set forth in Section .1, 7-4, 7.5 and 7.6. To the extent of anv conflict
between Sections 3.1 through 3-4, on the 0 e hand, and Section 7, on the other hand, the
provisions of Section 7 shall control.
3,6 Port-Agency Agreement.
3.6.1 Appropriation. P 'or to or concurrent \Vith Port's execution of this
Agreement, Pon shall appropriate and deposit into the Escrow Three Million Dollars
($3,000,000.00) as the Port's sole contri ution towards the following financial obligations
of the City andlor the Agency (collecti ely, the "Transfer Activities"): (i) acquisition of
the Rados Parcel, (ii) transfer of the A ency and Rados Parcels to BFG, (iii) delivery of
'title policies and endorsements for the ency and Rados Parcels as reasonably requested
by BFG under the Agency-BFG T fer Agreement, (iv) preparation of Phase 1 and
Phase II environmental reports for thergency and Rados Parcels, and (v) clearing and
grading of the Agency and Rados Parcels and Environmental Costs related to
Environmental Remediation Activitie on the' Agency and Rados Parcels required
pursuant to Sections 32. I (b), 3_2_2(b) and 7-42 hereof pon and City acknowledge that,
of the Three Million Dollars ($3,000,0 0.00) deposited hereunder, (a) One Million Two
Hundred Seventy One Thousand Nine undred and Fifty Two Dollars ($1,271,952.00) is
being deposited for the account of BF to be paid to Agency at Closing for the Agency
Parcel; (b) One Million Fifty Two Thousand Four Hundred and Nine Dollars
($1,052,409_00) is being deposited fo the account of BFG to be paid to Agency at
Closing for the Rados Parcel in the ev TIt that, at Closing, Agency has assigned to BFG
an Order of Possession of the Rados P cel and rights to after-acquired title in the event
of condemnation; and (c) the balance 0 the Three Million Dollars ($3,000,000_00), (Six
Hundred Seventy Five Thousand Six Hundred Thirty Nine Dollars ($675,639.00)) is
being deposited for the account of Age y (to be segregated and maintained in a separate,
subescrow account denominated the "A ency Fund") to be applied toward the Agency's
costs of the Transfer Activities, includi g, without limitation, any costs of acquisition of
the Rados Parcel in excess of $1,052,4 9. The Agency's appraised value for the Rados
Parcel is $972,400; the Agency shall b basing any Agency offers to acquire the Rados
Parcel on such value_ Notwithstanding any other provision of tbis Agreement, under no
circumstances shall BFG or the Port b required to pay Agency any amount other than
the amounts set forth in this Section 3. _1 for tbe Transfer Activities, and the Agency's
obligation to perform tbe Transfer A ivities shall exist and continue irrespective of
whether the amounts specified in this Section 3.6.1 are sufficient to fund all of the
Transfer Activities.
3.6.2 Funding. Prior t tbe Closing Date, Agency may seek from the
Agency Fund advances for out-of-poc et costs to be incurred by the City and/or the
Agency directly related to the Transfe Activities. As a condition to any advance, the
Agency shall submit to the Port and the scrow holder a written request for funds (each, a
"Funding Request") setting forth the d e of any out-of-pocket expense, the nature of the
expense, any invoices supporting the expense, and any other information reasonably
requested by the Port. All Funding R quests shall be reasonably approved by tbe Port
within five (5) business days after recei t; provided that Agency may not submit Funding
,087",000Q1517:'A05.0i
8
81 82
Requests more frequently than four tim s per calendar month. Following Pon's approval
of a Funding Request. the escrow hold r shall promptly deliver funds from the Agency
Fund to Agency in the amount of the I pproved Funding Request. At the Closing, the
escrow holder shall deliver to the Ag ncy the balance of the funds remaining in the
Agency Fund.
3.6.3 Ulilizationof F nds. Agency may utilize funds in the Agency
Fund for reasonable and necessary out- f-pocket expenses incurred directly in connection
with or arising out of the Transfer Acti .ties, including, without limitation, fees for third
party consultants and contractors; fund required for the acquisition or condemnation of
the Rados Parcel; and closing costs itle insurance, escrow fees and transfer taxes)
related to the transfer of the Agency an Rados Parcels to BFG. Agency may not utilize
the funds for internal expenses relat~ to the Transfer Activities including, without
limitation, general overhead; salaries r personnel expenses; fees paid to third party
consultants if the services of such thi party consultants could have been reasonably
provided by City or Agency; and pho ocopying, telephone and other office expenses.
Agency shall maintain reasonable cords of out-of-pocket expenses incurred in
connection with the Transfer Activities. Any remaining funds in the Agency Fund at the
Closing shall be delivered to the Agenc and may be used in Agency's sole discretion for
any purpose whatsoever; provided, h 'ever, in the event that BFG elects to receive
$1,052,409 in lieu of the Rados Parce pursuant to Section 3.2.2(c), then Port shall be
reimbursed out of Escrow any remain. g funds in the Agency Fund after Agency has
used such funds as are necessary to pe orm its remaining Transfer Activities obligations
hereunder with respect to the Agency P reel.
3.6.4 Repayment Obi gation. In the event that the Closing does not
occur in accordance with this A ment, unless otherwise agreed by Port and
Cityl Agency any and all advances mad by Port to the Agency shall be deemed to be a
loan from the Port to the Agency, and hall bear interest at the rate of six percent (6%)
per annum, from the date of the advanc until paid in full. Any and all advances shall be
due and payable by the Agency to th Port within sixty (60) days after the scheduled
Closing Date. Agency shall promptly nter into a promissory note or other evidence of
such loan, upon the request of the Port in accordance with the terms and conditions set
forth above and upon other commercial reasonable terms as requested by the Port.
3.7 Other Pre Closing Obligat ons and Actions.
3.7.1 BFG Subleases. .or to the Closing Date, Port shall notify BFG in
writing of its decision whether to termi ate or leave in place the Sublease between BFG
and Community Health Group of CaJ fornia ("CHGC") dated June 6, J994, and the
Month-to-Month Sublease Agreement between BFG and Foster Properties ("Foster")
dated July 24, 1998 (collectively the BFG Sub/eases"). Any rent received by BFG
under the BFG Subleases after Janu I, J 999, shall be remitted to Port as of the
Closing, and thereafter within 30 days f receipt by BFG. If Port elects to terminate one
or both leases, BFG shaJl cooperate (at 0 cost to BFG) in effectuating such terminations,
including giving 30 or 60 days' notice t CHGC andlorFoster, as applicable.
1Cle711.00001S1720405.ai
9
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3.7.2 BFG Groud Lase with SDG&E. There is an existing ground
lease between BFG and SDG&E co ering the SDG&E Parcel and other property
formerly owned by SDG&E shown 0 Exhibit A (the "SDG&E Lease") to which the
Port is successorto SDG&E in owners p of the subject property. The Port shall forgive
all rent due under the SDG&E Lease fr m January I, 1999, through the date such lease is
terminated. The SDG&E Lease shall b terminated in accordance with Section 4.6 of this
Agreement. .
3.7.3 BFG Lease Wit MTDB. There are existing lease agreements
betWeen BFG and MTDB concerning portion of the MTDB Parcel and other property
owned by MTDB as shown on Exhibit (the "MTDB Leases"). The Port shall assume
responsibility for all rent due to MfDB om BFG under the MTDB Leases applicable to
the South Campus from January I, 1999 through the Closing Date.
3.7.4 Vacation of Ma oa Parkway. The transfer of Port Parcel 2 to
BFG will require the vacation of ponio of the public roads known as Marina Parkway
and G Street. Prior to Closing. the City shall, at its sole cost. process the vacation of the
current alignment of Marina Parkway orth of the proposed H Street Extension, vacate
G Street east of the new alignment of. arina Parkway as shown on the Marina Parkway
Boyle Study, and convey the underlyin property to the Port, whereupon the Port, in the
exercise of its land use authority, shall te separate legal parcels corresponding to Port
Parcel] and Port Parcel 2. The vacated sections of Marina Parkway and G Street shall be
closed, and traffic diverted onto Sandpi er Way and G Street; provided, however, that in
the event that. after Closing, the va ted section of Marina Parkway and G Street
continue to be used for through traffi . Port shall lease to BFG, at no cost to BFG.
equivalent property for use as parking ntil such time as the vacated sections of Marina
Parkway and G Street are closed to th ough traffic. The exact size, configuration and
legal description of Port Parcel I and ort Parcel 2 shall be determined in accordance
with the final realignment plans for Marina Parkway, which shall be finalized in
sufficient time to permit the convey ce to the Port as provided above. The final
configuration of Port Parcel 2 is subjec to BFG's reasonable approval, and shall in no
event be less than 3.3 net useable acres. n1ess a smaller parcel size is acceptable to BFG,
in its sole discretion. In addition, the P rt, at its sole cost, shall grant City an easement
for right-of-way over an area agreed to y Port and City as the likely final alignment of
Marina Parkway from north of Sandpip Way to G Street. The parties shall cooperate to
adjust the easement location to the exte t required by the ultimate final Marina Parkway
alignment.
3.7.5 Lot Line Adjust ents. Upon application by BFG, with the Port's
full cooperation, City shall process lot line adjustments/subdivisions necessary for the
extension of H Street, the realignme t of G Street and Marina Parkway, and the
conveyance of the Port Parcels and the G&E and MTDB Parcels to BFG.
3.7.6 Certificates of C mplillDce. Upon BFG's request, City shall use
its best efforts expeditiously to proc ss certificates of compliance pursuant to the
California Subdivision Map Act confir ng that the Port Parcels, the SDG&E Parcel, and
1tXl711.000CI15172.405.09
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8 84
the MTDB Parcel constitute separate I gal parcels upon and after the transfers provided
for herein.
3.8 Other Provisions. The L nd Transfer Agreements shall contain such other
terms and conditions as are typically induded in real property transfer agreements of a similar
nature, subject to the terms of this Agreement. The applicable parties shall negotiate these terms
in good faith; provided, however, that the matt rs of (a) the condition of title; (h) the condition of
the property; (c) Environmental Maners; and ( ) the other matters specifically described in this
Agreement shall be incorporated into the La d Transfer Agreements in aCcordance with the
terms of this Agreement.
3.9 Form of D~ds. TheTran~fer Properties shall be conveyed by standard title
company grant deeds, except for (i) tbe SDG&E Parcel which shall be conveyed by quitclaim
deed, (ii) the Rados Parcel which may be conv yed by assignment of an Order of Possession and
rights to after-acquired title in the event of con emnation, and (iii) the MTDB Parcel which may,
or may not, be conveyed by a grant deed de ending upon the method of its acquisition. In
addition, the Rados Parcel and Agency P cel shall be transferred subject. to the non-
discrimination covenants required by Californi Health and Safety Code Section 33446.
Section 4.
BFG RELOCA nON
It is the intention of the partie that the relocation and consolidation of BFG's
facilities and operations from the South Campu to the New Campus (the "BFG Relocation") be
conducted in an orderly manner, as ditecte by BFG in its sole discretion, subject to the
provisions of this Section 4. BFG shall be so ely responsible for the management of the BFG
Relocation.
4.1 ReI.ocation Period. : The eriod from January I, 1999 through January I,
2003, shall be referred to herein as the "Re ocation Period" As of the Closing Date and
throughout the balance of the Relocation Perio ,BFG and the Port shall enter into (I) a Tidelands
Use and Occupancy Permit ("TUOP'') With r pect to Building 45 and any other portion of the
South Campus which is utilized exclusively r BFG's ongoing business purposes, and (ti) a
nonexclusive Right of Entry Permit ("ReP'') ith respect to any portion of the South Campus
which BFG no longer actively utilizes for 0 going business purposes. It is understood and
agreed that as BFG concludes business activit es on portions of the South Campus during the
Relocation Period, BFG will provide the Po with written notification of that fact, and the
subject property shall be removed from the OP, at which time BFG shall surrender its
exclusive possessory rights to such portions f the South Campus in favor of nonexclusive
possessory rights under the REP. At such time as B FG no longer requires nonexclusive
possessory rights to portions of the South Ca pus under the REP, BFG shall provide the Port
with written notification of that fact. and th REP shall terminate only as to those unused
portions of the South Campus. Notwithstand ng the foregoing, any TUOP or REP for South
Campus property shall terminate no later than e end of the Relocation Period. Under the terms
and conditions of the TUOP, BFG shall t>e obli ated to pay one hundred fifty percent (150%) of
fair market rental value for any property 0 the South Campus which BFG continues to
exclusively occupy. actualiy or constrUctively, allowing the expiration of the Relocation Period.
Constructive occupancy shall mean any use r occupancy of a portion of the South Campus
106711.00:::01$ 172m5.C9
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8~85
which has a material, adverse effect ujllon a larger area of the South Campus, such as the
occupancy of a single building which materiall ,adversely impacts a viable development project
which encompasses the occupied building.
4,2 H Street Extension, The H Street Extension (including appropriate heavy
vehicle and other access to and from the: H St eet Extension and the New Campus, with traffic
signals, setbacks and related matters design to ensure confonnity between the H Street
Extension and the southern boundary offue N w Campus) ("H Street Extension") as shown on
Exhibit F hereto shall conform to the alignmen described as Alignment 1, Profile C, in the Boyle
Engineering Feasibility Study dated June: I, 1 7, (the "H Street Boyle Study''). Upon request
by City, Port, at its sole cost, shall grant City a easement for right-of-way over the alignment for
the H Street Extension reflected in the H Stre t Boyle Study. The H Street Extension shall be
completed by Port at Port's sole cost. Upon ruest, BFG and City/Agency shall cooperate with
Port concerning the planning of the H Street!' Extension; provided, however, that no actions
concerning the H Street Extension (inllluding, without limitation, changes in the land-use
designations for the proposed H Street Extensi~'n) or construction west of Bay Boulevard shall be
commenced during the Relocation Period wit out BFG's prior written consent. City/Agency
shall cooperate with the Port to provide for imely extension of H Street including, without
limitation, (i) all aspects of design, planning, engineering and construction of H Street from
Interstate 5 to Marina Parkway with appropri te setbacks and buffers; (ii) relocation of above
and below ground utiJities; and (iii) install tion of traffic signals, sidewalks and related
improvements as may be reasonably neeess to facilitate vehicle and pedestrian access along
the fully developed Bayfront. Port shall :use i best efforts to complete the H Street Extension
on or before the earlier to occur of (a) .J?ece ber 3 I, 2009, or (b) the completion of Bayfront
development projects that require the H Street Extension to address cumulative traffic impacts.
If, for whatever reason, Port has insufficient fu ds to complete the H Street Extension in a timely
manner, Port agrees to meet and confer with ity to develop a plan for expediting such proj ect
using alternative funding sources. Such fundin sources may include fund s allocated by the Port
for capital improvement projects as set forth in that certain Memorandum of Understanding
between Port and City that was approved by Po on June 20, 1995.
4.3 Marina Parkway Reali nmeDl. The realignment of Marina Parkway
(including appropriate heavy vehicle and Other ccess to and from Marina Parkway and the New
Campus, with traffic signals, setbacks and relat d matters designed to ensure conformity between
Marina Parkway and the western bound of the New Campus) ("Marina Parkway
Realignment'') as shown on Exhibit G h~reto esulting from the land transfer between the Port
and BFG shall be in accordance with th Marina Parkway Realignment Study dated
November 13, 1998 completed by Boyle Eng neering (the "Marina Parkway Boyle Study').
The Marina Parkway Realignment shall be co pleted by Port at Port's sole cost. In conjunction
with the realignment of Marina Parkway, Port d City shall have the right to "cap" and leave in
place any and all utilities located beneath th current configuration of G Street and Marina
Parkway. City and Agency shall cooperate 'th Port to provide for timely realignment of
Marina Parkway including, without limitati n, (i) assistance with creation of temporary
easements and dedication of new streets i~ the I cation of the newly configured Marina Parkway;
(ij) all aspects of design, planning. enginee ng and construction of Marina Parkway with
appropriate setbacks and buffers; (iii) reloca on of above and below ground utilities; and
(iv) installation of traffic signals, sidewalks a d related improvements as may be reasonably
10671'.0CCl01S ,n405 09
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necessary to facilitate vehicle and pedestfian a cess (including heavy vehicle access to the New
Campus) along the Bayfront. Port shaJ' use ts best efforts to complete the Marina Parkway
Realignment on or before the earlier tD occur f (a) December 31,2003, or (b) the completion
date of Baytront development projects that re 're the Marina Parkway Realignment to address
cumulative traffic impacts. The parties $hall se their best efforts to ensure that the realigned
Marina ParJ...-way is cDntiguous with the: west boundary of Port Parcel 2 (with appropriate
setbacks and buffers). In the event that :the r aligned Marina Parkway is not thus contiguous,
Port shall convey to BFG the land in-between t e western boundary of Port Parcel 2 and the final
realigned Marina Parkway, an appropriate adjustment shall be made to the purchase price of Port
Parcel 2 pursuant to Section 5.2, and the!prop rty thus conveyed shall be treated in all respects
under this Agreement and the Related Agreem nts as if such property had been included in the
conveyance of Port Parcel 2.
4.4 Relocation ScheduleJ The parties shall agree upon a schedule ("Relocation
Schedule') under which BFG will relocate i s operations and permanently vacate the South
Campus which BFG agrees to accomplish b no later than the expiration of the Relocation
Period. Notwithstanding anything herein to the contrary, in the event of any disagreement
between the parties concerning the compIet on of the BFG Relocation or the Relocation
Schedule (provided that BFG completes /the B G Relocation by no later than the expiration of
the Relocation Period), BFG's decision concer ing the completion of the BFG Relocation or the
Relocation Schedule shall be final and bincting pon the parties. Concurrently with the execution
of this Agreement, BFG shall provide thel Port d City! Agency with BFG's current preliminary
draft Relocation Schedule, which is pro,}jded or discussion purposes only and which shall be
updated periodically. It is anticipated tfuj.t the elocation Schedule will be revised and updated
on a periodic basis, with such updates being pr vided to the Port and City! Agency for discussion
purposes only. .
4.4.1 Adjustmenis to elocatioo Schedule. BFG agrees to meet and
confer with Port and City! Agencj to e ectuate adjustments to the Relocation Schedule
that are oot adverse to BFG in the eve t that potential redevelopment opportunities for
the property south of H Street arise ear ier than currently anticipated, including, without
limitation, the vacating of specificiporti ns of the BFG Property in order to accommodate
the Port's development objective$. Fu hermore, .in the event Port elects to commenCe
the H Street Extension during ,the elocation Period or Port and BFG agree to
accommodate redevelopment or inte' use opportunities on the South Campus during
the Relocation Period, and such: acti 'ty causes a material adverse impact upon the
Relocation Schedule, then Port slball p y to BFG its reasonable and actual incremental
costs of accelerating the Reloqation Schedule to accommodate such construction
activities including, without Iimitati , the additional cost of vacating buildings,
relocating equipment, and storing :suppIies in advance of the initial time table set forth in
the Relocation Schedule. Finally, ;the I location Period shall be extended for any failure
of Port or the City/Agency, follDwin written notice from BFG that such failure is
interfering with BFG's Relocatiori Act ities, to transfer property andlor provide access
or utilities. to the New Campus in; a ti ely fashion, and such failure prevents BFG from
completing necessary Relocation Activi ies prior to the end of the Relocation Period.
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4.5 BFG Occupancy of South Campus During Relocation Period. Beginning
January 1, 1999, and throughout the Relobatio Period, except for BFG's payment of ground rent
in the total amount of $50,000 to the Port for e year 1999 for the area currently ground leased
for "Building 45," BFG shall incur no (or, i it does incur, shall be reimbursed by Port for)
ground rent, building rent, possessory irjterest taxes and property taxes associated with BFG's
use and occupancy of the land and imprqvem ts comprising the South Campus. BFG shall be
responsible for costs incurred in connectlion 'th its business operations on the South Campus
during the Relocation Period, including ]~bor, aterials, and utility costs. The parties shall enter
into, amend, and terminate such agreeme~ts (i cluding the Tidelands Use and Occupancy Permit
and the Right of Entry Permit reference4 in ction 1.3) as may be necessary to appropriately
implement the terms of this Agreemen~ con erning the BFG Relocation and the Relocation
Period.
4.6 Termination of Ob~gati us Coocerning tbe Soutb Campus. BFG and
Port shall enter into such agreements as jmay e necessary and appropriate to terminate BFG's
occupancy and obligations concerning that p rtion of the South Campus not owned by BFG
("South Campus Leased Property''), efltectiv not later than the completion of the Relocation
Period, that are consistent with the terjns h eof These agreements shall include, without
limitation, termination of tJ?e Port Properity A eements, termination of the SDG&E Lease, and
termination of the MTDB Leases applicahle to e South Campus.
4.7 Utilities and Services. Pri
shall meet and confer with BFG to exPlore
Station" to a location off of the New C~us.
r to the expiration of the Relocation Period, City
e feasibility of relocating the "G Street Pump
Section 5.
,
RELOCATION AND mjw C MPUS FINANCE ASSISTANCE
5.1 Payments. In consi4erati n of the property transfers and BFG's relocation
costs, the Port and BFG shall make the ~aym ts described in Exhibit D at Closing ("Transfer
Payments''). ;
5.2 Post-Closing Adjus~men s. The parties acknowledge that the Transfer
Payments are, in part, based upon the ~stima ed size of the Transfer Properties as shown on
Exhibit D and the contemplated con:figu~tion fH Street and Marina Parkway. Upon, or up to
three (3) years after the Closing, followin~ co letion of new or updated surveys, any party may
submit a written request to adjust the Trinsfer Payments to account for any difference between
the actual and estimated size of the Tnj,nsfer Properties andlor configuration of H Street and
Marina Parkway. Following receipt of ari adju troent request, the affected parties shall promptly
negotiate in good faith to make any nece~sary ash adjustment to the Transfer Payments. Unless
otherwise agreed by the affected parties,; the h adjustment shall be based on the difference
between the actual size of the subject pr~perty conveyed relative to its estimated size shown on
Exhibit D. For example (for illustrative jpurp ses only), the estimated size of Port Parcell, as
shown on Exhibit D. is 9.99 acres, or 435,164 quare feet, and the purchase price of $3,481,312
is calcu]ated based on a value of $8.00 Hef sq are foot (435,164 x $8.00 = $3,481,312). If the
actual size of Port Parcel ] as conveyed ~ere .5 acres, or 413,820 square feet. unless BFG and
the Port otherwise agreed, the purchase price ou]d be $3,3]0,560 (413,820 square feet x $8.00
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= $3,310,560), and BFG would be eniit1ed a cash payment from the Port of $170.755
($3,481,312 - $3,310,560 = $170,752). :
,
5.3 Reimbursement Of~i uth ampus Property Taxes. BFG shall (within 30
days of submission of an invoice therefo by FG) be reimbursed by the Port for any property
taxes (including possessory interest t s) i curred by BFG concerning the South Campus
attributable to tax years or portions there9f fall' g within the Relocation Period.
5.4 New Campus Indus~'rial inancing Assistance. BFG currently expects to
spend approximately $50 million in ca ital . vestment on the New Campus. Its Board of
Directors has authorized approximatel $45 million for capital expenditures on the New
Campus. In connection therewith, subject to terms and conditions set forth in this Section, in
addition to the Transfer Payments to be ~ade lly Port and BFG, Agency shall provide financing
assistance to BFG with respect to indu~trial ranufacturing facilities, and related offices and
ancillary support facilities, and equipmeht ne1"ly developed, rehabilitated, or installed on the
New Campus during the Relocation Perio~ ("Nr Campus Industrial Financing Assistance").
5.4.1 Annual In~tall"1ents. The New Campus Industrial Financing
Assistance shall be comprised of fash payments delivered to BFG in annual installments
(each an "Installment," collectitely 'IInstallments"). Installments shall be due and
payable on January 15th of each ~ear b~ginning with the first January 15th following the
Closing Date (estimated to be Janiary 1 ,2000), and ending with January IS, 2025 (each
an "Installment Payment Date'')) Ag cy shall have no obligation to make Installment
payments after January 15, 2025. i
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5.4.2 Relocation Peri d Payments. Installments due and payable to
BFG on Installment Payment Date beginning with January IS, 2000, through
January 15, 2003, respectively sh~ll be determined based upon property tax information
derived from the immediately piecedi g County fiscal year (July I through June 30)
("Fiscal Year''). The amount dud and ayable shall be equal to the positive difference, if
any, between (a) the amount of p~op taxes 'paid by BFG to all taxing agencies with
respect to the New Campus for t~e im ediately preceding Fiscal Year; and (b) the sum
of one percent (1%) of the eounl' As ssor's valuation of (i) real and personal property
located on the New Campus as 0 the r51 day after the Closing Date, plus two percent
(2%) per year with respect to ch r al property; (ii) South Campus equipment and
facilities that have been relocated, to th New Campus as of June 30 of the immediately
preceding Fiscal Year; and (iii) a~y rea property contemplated as being part of the New
Campus by this Agreement thattS ac uired by BFG after the Closing Date by on or
before June 30 of the immedia ly p eceding Fiscal Year. For partial Fiscal Year
1999/2000 the above calculations all e modified by multiplying each figure within the
calculation by a fraction deterrni~ed b dividing the number of days within the period
from the Closing Date to June 30, i2000'lbY three hundred sixty-five (365).
5.4.3 Post-Reloe ion Period Payments. Installments due and payable
to BFG on Installment .Payment ates!beginning on January 15, 2004 through January
15, 2025 shall be equal to the ositi:r difference, if any, betWeen (a) the amount of
property taxes paid by BFG to al ta;"i g agencies witb respect to the New Campus for
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Fiscal Year 200212003; and (b) tf. su of one percent (1%) of the County Assessor's
valuation of (i) real and personal rope y located on the New Campus as of the first day
after the Closing Date plus two p cent (2%) per year with respect to such real property;
(ii) South Campus equipment an faeil ties that have been relocated to the new Campus
as of June 30, 2003; and (iii) anj( real property contemplated as being part of the New
Campus by this Agreement that [is ac uired by BFG after the Closing Date by on or
before June 30, 2003. Installmern pa ents calculated under this Section 5.4.3 shall be
subject to adjustments in accorda~ce w h the terms and conditions of Sections 5.4.6 and
5.4.7, below. .
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5.4.4 Port Cootn utio . In the event that property tax revenues actually
received by the Agency from the ew ampus and Somh Campus, less amounts required
to be set-aside and used for low and oderate income housing pursuant to California
Health and Safety Code Section 33342 (the "Low Income Set-Aside") for any Fiscal
Year commencing with Fiscal Y ar 19 9/2000 and ending with Fiscal Year 2009/20 I 0
("Combined Campus Available eve es'') do not exceed the Agency property tax
revenues actually received from he N Campus .and South Campus for Fiscal Year
1998/1999 ("Combined Campus ase evenues") by an amount equal to or greater than
the Installment payment due and paya Ie to BFG with respect to such Fiscal Year as
determined under Section 5.4.2 d 5.4 3, above ("Installment Amount Due"), the Port
agrees to loan to the Agency, up n Ag ncy request, an amount equal to the amount by
which the Installment Amount I Due exceeds the positive difference betWeen the
Combined Campus Available Re'4:nues for such Fiscal Year and the Combined Campus
Base Revenues ("Port Loan''). j\gen 's obligation to pay to BFG any portion of an
Installment Amount Due with re1pect 0 which the Agency has requested a Port Loan
pursuant to the terms of this Secti9n sha I be contingent upon Port payment to th.e Agency
of such Port Loan proceeds. !
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5.4.5 Port Loan ~epa ment. Port Loan amounts shall accrue interest
annually at the Port's pooled inter~t ra e adjusted quarterly from the date of payment to
BFG of the relevant lnstallmen Am unt Due, until repaid. The Agency shaU be
obligated to repay the Port Lo i a maximum of ten (10) annual installments
commencing January 15, 2010, thro ,h January 15, 20]9. Agency's Port Loan
repayment obligation in each ye sh I be an amount equal to the lesser of (a) the
positive difference, if any, betwe~(i) e Combined Campus Available Revenues for the
preceding Fiscal Year, less Agenc 's In tallment obligatton to BFG with respect to such
Fiscal Year, and Combined Ca us gency Base Revenues, and (b) twenty percent
(20%) of the then-outstanding POrf Lo balance. Notwithstanding the foregoing, in the
event that during Fiscal Years ~9991 000 through 2009/2010 the Agency incurs an
"Accrued Surplus Balance" (defi ed in Section 5.4.6, below), regardless of whether or
not such Accrued Surplus Balanc has een spent by the Agency, such amounts shall be
deemed a credit balance "availabl .. fo use for timely payments of annual installments
on the Port Loan on up to 20% of th then-outstanding Port Loan balance, until the
"credit balance" is exhausted. nle s otherwise approved by the Port, Combined
Campus Available Revenues shall be us d to satisfY this Port Loan repayment obligation
as a priority to all other uses or 0 ligat ons, excluding, however, Agency obligations to
pay debt service with respect to isti g or refunded BayfrontITown Centre I Project
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Area tax allocation bonds and cll 'ficates of participation. Any partial payments of the
Port Loan shall be credited first t aC~ed interest and then to principal. In thc event that
the Port Loan is not fully repaid' acc rdance with the terms of this Section with tho: last
installment due on January 15, 2 19 Y remammg Port Loan balance shall be forgiven.
At City/Agency's election, repai amounts shall be contributed towards the H Street
Extension capital improvement ~roje or another joint Pan and City/Agency project
agreed to by the parties. i
5.4.6 Payments tl' BF Starting in Fiscal Year 201012011 Limited to
Actual Receipts. 1f after subtrtcting any required Port Loan repayment required in
accordance with Section 5.4.5, th remaining Combined Campus Available Revenues for
any Fiscal Year commencing wi Fis al Year 2010/2011 and ending with Fiscal Year
2023/2024 do not equal or excekd C mbined Campus Agency Base Revenues by an
,
amount equal to or greater than ~e 1 stallment Amount Due, an amount equal to the
amount by which the Install ment I Arno nt Due exceeds the positive difference between
the remaining Combined CampUs Av 'Iable Revenues for such Fiscal Year and the
Combined Campus Agency Ba,$e R venues ("Deferred. Obligation'') shall not be
immediately due and payable, bu~ shall be paid, plus interest at the rate of six and three-
founhs percent (6.75%) per ~m, ut of first available future Combined Campus
Available Revenues. Future Co,"bine Campus Available Revenues shall be used to
repay the Deferred Obligations ip pri rity to all other uses or obligations, excluding,
however. Agency obligations to ~ay debt service with respect to existing or refunded
Bayfrontrrown Centre 1 Project Ar~a tax allocation bonds and certificates of
participation, and Agency obligatIons 1 repay the Pan Loan pursuant to Section 5.4.5,
above. Any panial payments of pefe ed Obligations shall be credited first to accrued
interest and then to principal. In! the ent that any Deferred Obligations are not fully
repaid pursuant to the terms of this Se ion with the last installment due and payable on
January 15, 2025, any remain~g D(jferred Obligation amounts shall be forgiven.
Notwithstanding the foregoing, n~ Insdallment amount otherwise due shall be deferred
hereunder in the event that ther~ are urplus Combined Campus Available Revenues,
from previous Fiscal Y ears whic~ were not required to be used by Agency for purposes
of making previous lnstallment p,yrne ts to BFG under Sections 5.4.2 and 5.4.3, above,
or Pan Loan payments under ~ectio 5.4.5, above (collectively, "Accrued Surplus
Balance''). Rather, regardless ofr--het r or not such Accrued Surplus Balance has been
spent by the Agency, such amou~s s I be deemed a credit balance "available" for use
for tImely payments of Installm6ms e to BFG, until the credit balance, if any, is
exhausted. !
5.4. 7 Adjustmen~ and Maximum Payment. If in any Fiscal Year from
2005/2006 through 2023/2024 wilh res ect to which an Installment payment is due and
payable, Agency Property Tax REenu s from the New Campus fall below an amount
equal to Agency Property Tax eve ues in Fiscal Year 2004/2005 from the New
Campus, then the Installment aIDO nt ot erwise due and payable to BFG shall be reduced
by an amount equal to the positivd diffe ence between AgencyProperty Tax Revenues in
Fiscal Year 2004/2005 and the arbounfl of Agency Propeny Tax Revenues received for
such Fiscal Year. The parties agtee t t the maximum Installment Payment ca1c~lated
under Section 5.4.3 shall not exfeed amount calculated based upon a maXlmum
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taxable investment in industrial I nufa ring facilities, and related offices and ancillary
support facilities, and eQuipment1ewly developed, rehabilitated, or installed on the New
Campus during the Relocation Peliod $55 million ("Maximum Taxable Investment").
The Agency's current estimate ffr th maximum Installment Amount based upon the
Maximum Taxable Investment is 1459, 00.
5.4,8 In ~neral~i For purposes of Sections 5 4.1 through 5.4.7, above,
"property taxes" shall include e 0 ership and possessory interest taxes assessed
against real and personal prop rty, but shall exclude any special taxes, special
assessments or fees which mig app ar on BFG's property tax bill. Property tax
information required for calculat ns reunder shall be derived to the extent possible
from the County Assessor Audi or, appropriate. In the event that all of the tax
information necessary for the dete "na 'on of an Installment amount in any given Fiscal
Year, or for any other determinat on r uired under this Section 5.4, is not available in
time to allow for the timely calcu ation and payment of such Installment by the relevant
Installment Payment Date, any yme due shall be made based on the then available
information, subject to modificati n on all relevant tax information is obtained.
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5.4.9 Special Iniemn ty. In consideration of Agency provision of
financing assistance under this S ction 5, BFG agrees to release, discharge, indemnify,
defend and hold harmless Agenc fro all claims, liabilities, losses, costs and expenses
(including without limitation Env' onm ntal Costs) arising out of Agency's provision of
financial assistance under this Se.cjtion . In consideration of the Port Loan pursuant to
Section 5.4.4, BFG agrees to rei~ase, ischarge, indemnify, defend and hold harmless
Port from all claims, liabilities, Iqsses, osts and expenses (including without limitation
Environmental Costs) arising out qfthe ort Loan.
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Section 6. NEW CAMPUS AND SOUTH C pus DEVELOPMEJIi.
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6.1 Development Agree ent. The Cityl Agency and BFG shall negotiate and
process for City Council/Agency Bo rd onsideration a development agreement (the
"Dtn>elopment Agreement") governing se d development of the property comprising the
New Campus as authorized by the 0 velo ment Agreement Statute. The Development
Agreement shall address such issues as I nd e rights and obligations, infrastructure matters,
public financing, environmental issues, revel pment and related matters, and, in keeping with
the above objectives, shall contain in subs tia Iy similar form the provisions set forth below.
,
6.1.1 Permitted qses. Provided that BFG is not in default under this
Agreement or the Development Aj;reeent (excepting minor or inconsequential matters
not affecting the substance of the]agr ements), and subject to the terms and conditions
set forth below, BFG shall have e v sted right to implement all Permitted Uses and
operations on the New Campus hat e consistent with the Rules, Regulations and
Official Policies existing as of the ffect ve date (the "Development Agreement Effective
Date") of the Development Agre~ment (the "Existing Rules, Regulations and Official
Policies").
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6.1.2 SUbsequentlAPP va Is. In connection with the Relocation and any
New Campus development. BFG hail e obligated to obtain any and all permits required
under the Existing Rules, Regul ions and Official Policies. City! Agency shall use its
best efforts promptly to proces and I implement all additional "Project Approvals"
reasonably necessary to impleme t the BFG Relocation to the New Campus and to fulfill
the goals, objectives, policies an plan shown and described in this Agreement and the
Development Agreement ("Sub. eque t Approvals'~ consistent with Existing Rules.
Regulations and Official Policies Cit /~ency shall cooperate and diligently work to
process to completion any Subs uent Approvals (including any and all initial studies
and environmental assessments $d an lyses (if any) required under CEQA) which are
required by law in connection y.,ith e BFG Relocation and implementation of the
Permitted Uses on the New Cam us. uch cooperation shall include, without limitation:
a) Scheduling, convening and co c1uding all required public hearings; and b) Processing
in an expeditious manner and actordance with Existing Rules, Regulations and
Official Policies all applications f< r Sucsequent Approvals. The City!Agericy shall retain
its discretionary authority as sufsequent Approvals, provided, however, such
approvals shall be regulated by thr Exis ing Rules, Regulations and Official Policies.
6.1.3 AppIicatio I of ubsequentIy Enacted Rules, Regulations and
Official Policies. Rules, Regula ons apd Official Policies enacted or modified after the
Development Agreement Effecti e Dade ("New Rules') shall be applicable to the New
Campus only insofar as they do not cpnflict with the Existing Rules, Regulations and
Official Policies, and only if th ir application will not materially modify, prevent or
impede the Permitted Uses or imp ir any of the rights granted BFG under this Agreement
or the Development Agreement. y such New Rules that materially limit or restrict the
rate or timing of development on he N w Campus shall be presumed to conflict with the
Existing Rules, Regulations and ffici Policies. Provided, however, that this shall not
preclude the application to the N~w C pus of such subsequently enacted New Rules as
are (a) specifically mandated d re uired by changes in state or federal laws or
regulations adopted after the Effe ive ate of the Development Agreement as provided
in Government Code Section 658 9.5; ) specifically mandated and required by a court
of competent jurisdiction; or (c) requi ed as a result of facts, events or circumstances
presently unknown or unforesee Ie t at would have a material adverse impact on the
health or safety of the surroundin com unity.
6.1.4 Other Go\~rnm ntal Permits, Approvals and Services. BFG
shall apply in a timely manner f9r suc other permits and approvafs as may be required
by other governmental or quas -gov mental agencies having jurisdiction over the
implementation of any aspect of he P rmitted Uses on, or provision of services to, the
New Campus (including, without limit . on, districts and special districts providing flood
control, sewer, water and/or fir prot 'on and agencies having jurisdiction over air
quality, solid wastes, and hazard us w stes and materials). City/Agency shall cooperate
with BFG in its efforts to obtain ch p rmits and approvals and City/Agency shall use its
best efforts to work with other g6vern ental and quasi-governmental agencies so as to
limit to the e,:tent possible the $posi ion of additional conditions, fees, dedications or
exactions by or through suc~ ag cies; provided, however, in no event shall
City! Agency's obligations hereunper re uire City/Agency to incur out-of-pocket costs.
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6.1.5 Adjacen I La d Uses. City!Agency acknowledges that
implementation and operation of~he P, rmitted Uses on the New Campus will result in
noise, light, vibration and oth r e eets normally associated with industrial and
manufacturing activities of the type carried out by BFG ("Industrial Impacts'}
City! Agency shall consider such imp cts when processing permits for the following
operations (the "St!nsitive Rt!c tors on property adjacent to the New Campus:
residential projects, schools, hos itals, convalescent homes, hospices, retirement homes
and daycare centers.
6.1.6 Infrastruet fe, ees and Exactions. City! Agency shall use best
efforts to miOlmlze or eliminat . any Cityl Agency imposed public fees, dedications,
exactions Of costs (including, wi out Ii itation, development fees, infrastructure fees, or
processing fees) that could be i~urr by BFG in connection with relocation of its
operations or additional develop ent f the New Campus in accordance with Existing
Rules. Regulations and Official Poli ies or that would otherwise result from such
relocation, consolidation, and the all tion of relocation and consolidation-related New
Campus improvements. I
6.1. 7 Prior City
previous commitnients related
concerning the improvement cost
of Lagoon Drive.
om itments. City acknowledges and reaffirms all
r' bursements or credits due to BFG by City
prey ously incurred by BFG for the northern one-haIf
6.1.8 Term.
twenty (20) years after the Develo
of the Development Agreement shall expire
Agreement Effective Date.
6.2 BFG Obligations.
Agreement, BFG agrees as follows:
con . deration of City! Agency agreements under this
6.2.1
Pa eels Use and Development.
(a) Tempofll Use or Parking and Open Storage. BFG shall not
be prevented by the Cityl Agenc fro utilizing the Rados and Agency Parcels for
parking and the Agency Parcel ~ r op n storage for a period of six (6) years after the
Effective Date of this Agreementl(the 'Interim Use Period"). However, BFG shall be
required to obtain all appropriate perm1s from the Cityl Agency in order to allow open
storage and parking on the Ag ncy arcel and parking on the Rados Parcel, and
Cityl Agency retains the right to i pos reasonable conditions on such uses. During the
Interim Use Period, BFG agrees 0 us its best efforts (a) to minimize and screen open
storage of equipment and materi ,an (b) not to use the perimeter of the New Campus
for open storage. BFG agrees no to u e the Rados Parcel for open storage at any time
and acknowledges and agrees that such se shall not be permitted.
(b) City Ease ent r Enbanced Landscaping and Entry Feature
at Northeast Corner of Rados Pare I. Prior to the Closing, CitylAgency shall be
granted an easement over a po ion f the Rados Parcel as identified on Exhibit H
attached hereto ("Easement Art! "). he easement shall be for the installation and
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maintenance of a Bayfront Red~eloP ent Project Area "entry statement" which may
include enhanced landscaping, ter eatures, statuary, monument signs and/or other
quality architectural, features (En17:\' Statement'). City!Agen~y shall, bear the
construction and mam!enance cts f the Entry Statement. Pnor to CIty! Agency
installation of an Entry Slatemen, BF shall bear all costs related to improvements or
maintenance of the Easement Ar . I the event that a BFG Development Project or
City! Agency proposal for an En St tement requires an adjustment to the Easement
Area, the parties agree to meet, and nfer with the goal of developing a mutually
agreeable adjustment that woul reas nably accommodate each party's development
needs.
(r) Agency Option 0 Reaquire Rados. In the event that by the end
of the Interim Use Period, BFG Ihas ot committed to the development of the Rados
Parcel into a permanent use ~hat i integrated with an industrial and/or office
development project on the Ne~ C pus, Agency shall have the option ("Rados
Option '') to reacquire the Rados plu-cel n the terms and conditions set forth below:
(I) Purdhase rice.
The RadO~OPt on purchase price ("Rados Option Purchase
Price") sh I b the sum of (1) $1,052,409, (the "Original
Purchase 'u" (2) six percent (6%) of the Original Purchase
Price multi lied y the number of years BFG owns the Rados
Parcel prio to ency exercise of the Rados Option; and (3) the
County's t en m st recent appraised value of any improvements
installed on the dos Parcel.
(2) 0 t n T m.
If the Rad s Op 'on is triggered (as provided above), the Rados'
Option (" ados Option Term'") shall commence upon the
exp.iration t the Interim Use Period an~ shall ~xpire on the date
fallmg five (5) _ ears thereafter. NotwIthstandmg the foregoing,
the Rados ptio shall terminate prior to the expiration of the
Rados Opti n T in the event that (i) BFG requests in ""riting
that the Ag ncy urchase the Rados Parcel for the Rados Purchase
Price and t e Ag ncy fails to exercise the Rados Option pursuant
to Section .2.I(d)(3) within sixty (60) days after such request; or
(ii) during he ltidos Option Term, Agency approves an Owner
Panicipatio Agrbement for the development of the Rados Parcel.
(3) 0 t on E lercise.
'0571UlOOll's,n~.og
Agency sh ) ex cise its option rights hereunder by notifying BFG
in writing f its intent to do so ("Option Notice''). The parties
shall then teet d confer to prepare all necessary conveyance
documents rn te s consistent with the terms hereof The Rados
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Parcel shallbe ansferred in its then "as-is" condition. Agency
shall bear II st dard escrow costs. The transfer shall occur
within Din,y (9 ) days after the date of the Option Notice. The
Rados Op on P rchase Price shall be paid in casb at close of
escrow.
(4) Ret tion ofRi hIs.
Notwithst I diog the foregoing, BFG shall retain the right to
convey the Rad s Parcel to a third party at any time; provided,
however, t at th Rados Option to reacquire., unless previously
terminated, shall n with the land and be binding upon such third
party. In ditio City! Agency shall retain the right to reacquire
the Rados at any time pursuant to its powers of eminent
domain.
6.2.2 No ChaUcn es; ooperation. BFG shall not oppose, challenge or
seek conditions or mitigation measure in connection with land use permits and other
approvals necessary for devel pme t of projects proposed within the Bayfront
Redevelopment Project Area con isten with, or less impactive than, the Existing Rules,
Regulations and Official Policies appli ble thereto. In addition, BFG shall reasonably
cooperate with City! Agency in it pro essing, approval and implementation of adjacent
developments to the extent necess ry a d reasonable to encourage land use., infrastructUre
and traffic compatibility. Notwi' stan ing the foregoing, BFG shall reserve the right to
oppose., challenge or seek condi ions or mitigation measures in connection with any
project or activity that has a ma . al, adverse impact on the uses or operations of the
New Campus; provided, howev ,that this shall not include a right to challenge based
upon market competition.
6.2.3 New Ca pus
City! Agency a master plan for th Ne
processing permits for such impro erne
aster Plan. BFG agrees to submit to the
Campus showing vertical improvements prior to
ts.
6.3 Port Cooperation. Itho gh Port will not be a party to the Development
Agreement, where such cooperation is r ason bly necessary, Port agrees 10 cooperate in good
faith (at no additional cost to the Port) with BFG and City during the Relocation Period to
implement the provisions oflhe Develop ent greement.
6.3.1 Port Jurisd ctio and Control Over Land Uses, The Port shall
use reasonable efforts to avoid ap rovl g or facilitating Sensitive Receptors on the South
Campus.
6.3.2 No Challen es. art acknowledges that, in order to continue the
same Permitted Uses on the Ne Ca pus as it previously engaged in on the South
Campus, BFG may be required obt 'n certain land use permits and other approvals
from City or other agencies. Duri g th tenn of the Development Agreement specified in
Section 6.1.8, Port shall not oppor ch llenge or seek conditions or mitigation measures
,oe711.00001'.i 1]2.405.09
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.,
In connection with any such I d se permits and other approvals necessary for
implementation of such Permit Us s on the New Campus; provided, however that
such limitation shall not apply 0 di erent or expanded uses on the New Campus;
provided, further that such limita ion s II not apply to Port's discretionary authority as
lead agency or otherwise in pur uing EQA compliance. Similarly, during the same
period, BFG shall not oppose, calle e or seek conditions or mitigation measures in
connection with annexation of e B G Property into the Port's Master Plan, or in
connection with land use permits and ther approvals necessary for development of the
South Campus consistent with th Po's Master Plan, including industrial, commercial.
hotel, waterfront, open space and ecr 'onal uses.
Agreements Regarding South Campus
6.4
Development.
6.4.1 In General Po and City/ Agency agree that one of the primary
purposes of this Agreement is to acilit te the redevelopment of the South Campus to its
highest and best use in a rnanne co istent with the Port's "Industrial Business Park"
land use designation. Towards at en , subject to the restrictions contained in Sections
4, 6 and 7 ofthis Agreement, Po Ci and Agency agree to work together to encourage
the redevelopment of the South amp]]s and to limit uses of the existing South Campus
improvements beyond the Reloca ion ptriod to short term interim uses.
6.4.2 Master PI n A endment. Port agrees to expeditiously process
and present for Port Board appr val a Master Plan Amendment for the South Campus
which imposes the Port's exist g "ndustrial Business Park" land use designation
thereon. Port stair agrees to exer ise b st efforts to complete the process by no later than
May 1,2001.
6.4.3 RFP Proce. and Project Approval. Prior to issuance of a Request
for Proposal CRFP") with respect the outh Campus, Port staff shall meet and confer with
City/Agency staff in order to de elop RFP for the South Campus and the Bayfront
generally to be issued by the Port i soli iting developer interest in the South Campus. Port
agrees to expeditiously issue su RF and diligently process responSive development
proposals obtained with respect th reto. In addition. Port staff shall meet and confer with
City/Agency staff to discuss mutu goal and concerns prior to Port staff's recommending to
the Board of Port Commissioners app val of a specific project or projects for the South
Campus. At City/Agency request Port shall also schedule with the City Council/Agency.
Board joint public hearings 0 any proposed project for purposes of considering
CityiCouncil/ Agency Board and publi input on such project Notwithstanding the
foregoing, the Port shall reserve, t the aximum extent permitted by law, sole discretionary
land use approval over South C us de elopment.
6.5 Covered Areas. Th two 2) blacked-out areas marked on the map attached
as Exhibit E are the "Covered Areas." Aft r completion of the site characterization to be
conducted for the South Campus, and PJor to Closing, the Port and BFG shall meet and confer
to consider mutually agreeable revisions if an .) to the Covered Areas. The Covered Areas shall
be incorporated into any RFP(s) for the outh ampus and the Bayfront issued by the Port to the
extent such RFP(s) may affect one (or mire) 0 the Covered Areas. The RFP(s) will be prepared
I
108711.0C0013172405_0$
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.,
I
I'
,I
"
I
in a manner to encourage developers ~ av id any penetration of existing soils within the
Covered Areas by either: (i) avoiding de!velop ent in Covered Areas; or (ii) developing above-
ground Structures within the Covered eas hicb do not involve any penetration of the soils,
including, without limitation, buildings with slab-on-grade foundations, roads, sidewalks or
parking areas. Port shall meet and confe with developers to consider appropriate modifications
to any Development Plan, or portions the eor, avoid penetration of the soil within the Covered
Areas, and Port shall advise BFG of y d velopment constraints which may require soil
penetration within any Covered Areas. 0110 'ng the submittal of the above-referenced RFP(s)
and Port's reasonable attempts to modi . any Development Plan (following meetings with the
developer and consulting with BFG) to void soil penetration within any Covered Area, to the
extent that the avoidance of soil penet ion i or under the Covered Areas causes a material,
adverse impact on the Development Plan lor th financing of such Development Plan, then South
Campus Environmental Costs associated with necessary Environmental Remediation Activities
within the Covered Areas shall be al ocat pursuant to Sections 7.2. I and 7.2.2, below.
Notwithstanding the foregoing, nothin her in shall preclude installation of below-ground
utilities in connection with development with. Covered Areas of above-ground structures that
do not involve penetration of the soils, d an South Campus Environmental Costs associated
. with Environmental Remediation Activ' ies ising out of such installation of below-ground
utilities shall be allocated pursuant to Se ions .2.1 and 7.2.2, below.
Section 7,
ENVIRONMENTAL
'A
Redevelopment of the B yfro t may require investigation, management and
remediation of environmental conditioi erms and conditions concerning environmental
investigation, management, remediation d co t responsibility are set out below.
7,1 General Principles.
7.1.1 Cooperatio . T e parties recognize the paramount importance of
maintammg a' cooperative rela onshi to achieve effective implementation of the
environmental management pro sions of this Section 7. To this end, the parties will
maintain regular, periodic corn unic tions among those involved in implementing
Section 7. Regular meetings will be hId. The parties will meet and confer in order to
develop mutually agreeable posi ions 0 present to agencies and other third parties in
implementing this Agreement. I lem nting measures to help assure the maintenance of
this cooperative relationship are stout n Section 7.5 below.
7.1.2 Developme to' ectives. The Port desires to provide for timely
development of the South Camp san, to that end, the parties agree that development
activities may commence during he R location Period, provided that such activities do
not interfere with BFG operatio and relocation activities. If Port and BFG agree in
advance to such development a ivitie, and if such activities adversely affect BFG's
operations or relocation activities, Port hall compensate BFG for such adverse effects.
7.1.3 Risk-Bas Standards. The parties agree tbat Environmental
Remediation Activities implemen ed pJrsuant to this Agreement shall be based on risk-
based decisionmaking and shall ilize he most cost-effective, risk-based, industrial use
10e711.000Cl1S172405 oa
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remediation standards and techni es p ssible to implement Environmental Remediation
Activities.
7.1.4 Environme tal bjectives. The parties agree that Environmental
Remediation Activities will be esign d to facilitate development consistent with the
Port's Master Plan utilizing risk-b sed s andards.
7.1.5 Sbared Cos~s. Af more particularly described in Sections 7.2 and
7.3 below, South Campus EhviroClffiental Costs to remediate South Campus
Environmental Conditions in lorderl to implement Port first-time post-Closing
Development Plans under this A ee ent are shared costs, the allocation of which is
described in Section 7.2.2 below.
7.1.6 Manifests. y azardous waste manifest required to be executed
by any party in relation to Enviro ment I Remediation Activities on the South Carnpu s or
on the New Campus shall be exe ted y the party or parties responsible for causing the
Environmental Condition, rath t the party or parties responsible for the
Environmental Costs or enviro ental anagement with respect to such Environmental
Condition. If, after a diligent alte pt t do so, the party or parties responsible for causing
the Environmental Condition ca not e identified, BFG shall execute the pertinent
hazardous waste manifest. No ing . n this Section 7.1.6 shall alter or amend any
provisions of this Agreement reg ding !location of Environmental Costs.
7.1. 7 Manage. ent. Whenever th,s Agreement provides that
Remediation Activities are to b und rtaken pursuant to joint decision making, such
Remediation Activities shall be e ectU ted according to the joint decisions of BFG and
the Port. irrespective of which arty current management responsibility for such
Remediation Activities.
7.1.8 No Waiver. Noth ng in this Agreement shall constitute a waiver of
rights or remedies pursuant to CO tract r applicable laws with respect to Environmental
Conditions in, on, or under prope y oth r than the New Campus or South Campus.
7.2 Allocation of Enviro
7.2.1 General. E ecti e as of the date of this Agreement, and subject to
the conditions set out in Section 7.2. through 7.2.14 below, BFG and the Pan shall
share, in the manner described n Se tion 7.2.2 below, all costs, fees, out-of-pocket
expenses, losses, liabilities an da ages (collectively, "Costs'') resulting from,
concerning, or arising out of or' conn ction with: (i) "Environmental ConditiollS" in,
on, from or under the South Cam us (i eluding, without limitation, the buildings on the
South Campus) regardless of 0 .gin ithin the South Campus or outside the South
Campus (collectively, "S uu. Campus Environmental Conditions''),
(ii) "Environmental Releases" i ,0 from or under the South Campus (including,
without limitation, the buildings on e South Campus) (collectively "South Campus
Environmental Releases''), (iii) " nvi nmental Remediation Activities" in, on, around,
from or under the South Camp s (in luding, without limitation, the buildings on the
1001,'.OO0lr.5'72ACl5-Qi
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,;
South Campus) (collectively "So th C 'Pus EnvironfMntal RefMdiation Activities''),
or (iv) "Environmental Oaims" resu ing from, concerning, or arising out of or in
connection with South Campus viron ental Conditions, South Campus Environmental
Releases or South Campus Envir nme tal Remediation Activities (collectively, "South
Campus Environmentnl Oaims' . Th Costs resulting from, concerning or arising out
of or in connection with South C us Environmental Conditions, South Campus
Environmental Releases, South Cam uS Environmental Remediation Activities and
South Campus Environmental Cl ims a e defined to be "South Campus Environmental
Costs." Tbe costs oftecbnical co sulta ts and legal counsel selected jointly by BFG and
tbe Port pursuant to Section 7.3 (b) b low shall be allocated pursuant to Section 7.2.2
below.
7.2.2 Allocation. The llocation of South Campus Environmental Costs
is as follows:
(a) For South amp s Environmental Costs from $0 to $3 million,
BFG is liable for 50 percent of s ch C sts and the Port is liable for 50 percent of such
Costs.
(c) For South' amp s Environmental Costs greater than $4 million to
$5 million, BFG is liable for 30 p rcent of such costs and the Port is liable for 70 percent
of such Costs.
us Environmental Costs from greater than
or 40 percent of such Costs and the Port is liable
(b)' For South
$3 million to $4 million, BFG is I able
for 60 percent of such Costs.
(d) For South amp s Environmental Costs greater than $5 million,
BFG is liable for 100 percent of ch C sts.
BFG shall be responsible for
so that this allocation can be e
pbotocopy such records during no
BFG.
aml records of South Campus Environmental Costs
ecru ted. Port shall have tbe right to review and
. al usiness hours, upon reasonable advance notice to
7.2.3 Costs Aft Tra sfer. After transfer of ownership of the BFG
Property to the Port, BFG shall n t be 1 able for, and the Port shall be solely responsible
for, any South Campus Environm ntal osts which result from, concern, or arise out of
or in connection with South Ca pus nvironmental Conditions that occur after such
transfer, wbether as a result of a ions by Polt, by subsequent owners or operators of
South Campus or by any third p ; p ovided, however, that subject to Section 7.2.14,
BFG shall remain solely respons ble fc r any South Campus Environmental Costs that
result from, concern, or arise out for n connection witb South Campus Environmental
Conditions that occur in whole 0 in p as a result of BFG's activities, but only to the
extent of such BFG activities, .~fter ch transfer and until BFG vacates the South
Campus or the portion thereof to 1hich uch costs pertain.
10671'000015 1nA05 09
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7.2.4 Costs Asso iated With Importation of Dredged Material. BFG
shalJ not be responsible for Sout Carn us Environmental Costs resulting from or arising
out of or in connection with imp atio of dredged or fill material containing Hazardous
Substances by or at the direction of an pany other than BFG whether such importation
occurs prior to or subsequent to t e exetution oftills Agreement
7.2.5 Costs Asso iate With Dredging. Dredging by the Port in San
Diego Bay and in the Chula Vist Yac t Harbor shall not result in any obligations under
this Agreement. If Port dredging activi ies cause a water channel to be cut into the South
Campus, the New Campus, or an oth Bayfront property or cause a material change in
the shoreline, the Port shall be solely sponsibJe for any South Campus Environmental
Costs that result from such "'11 r ch nel or shoreline dredging. If any other Port
dredging activities on the South amphs, New Campus, or any other Bayfront property
result in South Campus Enviro ental Costs due to changes in groundwater flow or to
the shoreline beneath or adja eot ~o the South Campus, these South Campus
Environmental Costs shall be a locattd pursuant to Sections 7.2.1 and 7.2.2 above.
Digging or trenching in connecti n wit~ installation of underground utilities shall not be
construed as dredging, and shallot copstitute an Environmental Release for which City,
Port or BFG may be liable with espe. to any impact upon soils or groundwater. Any
South Campus Environmental Co s ca sed by digging or trenching on the South Campus
by City or Port in connection wi inst lation of underground utilities shall be allocated
pursuant to Section 7.2.1 and Se ion 7. .2 above.
7.2.6 Costs Ass date With Irrigation and Ponds. The Port will
require any South Campus dev loper to meet and confer with BFG concerning any
planned irrigation activities an or onds on South Campus and to consider any
comments BFG may have conc ing s cb activities or ponds. After such meeting:
(a) with resp~ to d veloper irrigation activities, if BFG and the Port
determine that reasonable prote ve m sures should be undertaken to address potential
impacts to soils or groundwat or to South Campus Environmental Remediation
Activities, the developer will bel requ red to install those protective measures and the
costs of those protective measure will be allocated pursuant to Sections 7.2.1 and 7.2.2
above.
(b) with resp to p<l>nds, the developer will be required to install lined
ponds and BFG shall bear no resp nsib Jlity for the costs of such liners;
. (c) provided, owe er, that developer win not be precluded from
implementing a reasonable indus s ndard irrigation plan for the South Campus and
this Southern California Region.
7.2.7 Costs Associate With Grading. If any grading activities cause
South Campus Environmental C I sts, ese costs will be allocated pursuant to Sections
7.2.1 and 7.2.2 above; provided, owe er, if the Port conducts grading activities without
consultation with and receiving itte~ approval by BFG within thirty (30) days (which
approval shalJ not be unreasona ly w'thbeld) and these grading activities cause South
10l!$711,0Q:).J't51n<105.09
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Campus Environmental Costs, th n th Port shall be solely responsible for such South
Campus Environmental Costs.
7.2.8 Costs in E cess f Industrial Use Standards. In no event shall
BFG be responsible for any Sou h Ca pus Environmental Costs that exceed the costs
required to perform South Cam us E vironmental Remediation Activities to achieve
Industrial Use Standards for the S uth arnpus and the Port shall bear and be responsible
for tbe incremental South C pus nvironmental Costs of such South Campus
Environmental Remediation Acti 'ties i excess ofIndustrial Use Standards.
7.2.9 Costs Assoc ated ith Underground Storage Tanks Costs. Any
Environmental Costs incurred for e c sure and removal of underground storage tanks,
and their associated piping and di pens rs, that are subject to regulation pursuant to Ca!.
Health & Safety Code 925 et seq. ("Underground Storage of Hazardous
Substances") and 23 Cal. C de egs.!is 2610 et seq. ("Underground Tank
Regulations") (hereafter "Under roun Storage Tanks") located on the South Campus
shall be considered South C . pus vironmental Costs subject to allocation in
accordance with Sections 7.2.1 d 7.2 2 above. The parties agree that if Underground
Storage Tanks exist on the Sou Carn us that qualify under the Underground Storage
Tank Cleanup Fund established p sua t to Health & Safety Code SS 25299.10 et seq.,
then the Port and BFG shall subm' and oindy pursue the processing ofthe application(s)
to the State Water Resources Con reI B~ard and the costs of preparing and pursuing this
application (or applications) shall be eq ally shared by BFG and the Port. The Port and
BFG shall submit applications . any similar fund established by a public agency or
governmental body for remediat" n, c osure andlor removal of Underground Storage
Tanks, and the costs of preparing d p suing these applications shall be equally shared
by BFG and the Port. Any reim se ent received by either BFG or the Port from the
Underground Storage Tank Fun and any similar funds established for remediation,
closure andlor removal of Under ound Storage Tanks will be paid to BFG and the Port
in proportion to their respective s ares f such expenses pursuant to Sections 7.2.1 and
7.2.2 above.
7.2.10 Costs Asso iated With Demolition. The Port shall be responsible
for the dismantling, demolition and removal (collectively "Demolition") of any
structures (excluding Undergroun Stor ge Tanks) and all associated materials (including
without limitation asbestos, lead- ased paint, and light ballasts) located on the South
Campus, including the Demolitio of, ithout limitation, buildings, pads, foundations,
parking lots, roads, sewers, sto s ers, utility trenches, and fences (collectively
"Structures"); provided, however, if an South Campus Structures are contaminated with
materials other than asbestos, lea -base paint, and/or light ballasts, the Port shall meet
and confer with BFG concemi th handling and disposal of such contaminated
Structures and any increased D moli ion costs associated with those contaminated
materials shall be allocated pursua t to ections 7.2.1 and 7.2.2 above.
7.2.11 Costs Ass ciate with Groundwater Monitoring. If the Port
becomes responsible for the mana erne t of groundwater monitoring in wells located on
the South Campus pursuant to Se tion .3.1(a){1), the Environmental Costs required to
100711.DCOO15172A05.0Ie
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.i
perform the sampling, testing, d re orting activities described in Section 7.3. J(a)(I)
shall be allocated pursuant to Sec 'ons .2.1 and 7.2.2 above.
7.2.12 Costs 550ci ted With Construction Dewatering. Any
increased South Campus Em.u-o men I Costs associated with temporary construction
dewatering activities shall be all cate pursuant to Sections 7.2.1 and 7.2.2 above. If
permanent dewatering operations are ermined to occur by the Regional Water Quality
Control Board, San Diego Reg; n, a d if the Port allows a developer to install and
operate permanent dewatering 0 erati ns on the South Campus, any increased South
Campus Environmental Costs th t res It from, arise out of or in connection with such
permanent dewatering operations hall te borne solely by the Port
7.2.13 Cost Lim tatio . Irrespective of whether BFG or the Port has
management responsibility purs ant tb Section 7.3, BFG and the Port shall not be
responsible under this Agreemen for alny South Campus Environmental Costs except as
expressly provided for in Section 7.2 d 7.3.
7.2,14 CORtami ation Discovery Cutoff. To the extent that BFG is
liable for South Campus Enviro men at Conditions, it shall be liable only for South
Campus Environmental Conditi ns th t are discovered within 15 years after Closing,
except that BFG's liability for So th C pus Environmental Conditions that exist on any
portion of the South Campus shall be satisfied upon completion, pursuant to a
Development Plan. of the Port fir -tim . post Closing development of that portion of the
South Campus; provided, however, tha , notwithstanding any prior termination of BFG's
responsibility under Section 7 fa Sou h Campus Environmental Remediation Activities
or South Campus Environmental Cost, BFG shall also be liable for any South Campus
Environmental Condition that s dis overed within an area where such' first-time
development has been complete if at Environmental Condition is discovered within
the aforesaid ] 5 years and req ires emediation to comply with the Industrial Use
Standard that applied to that first time evelopment, in which case responsibility for the
management and cost of such rem diation shall be allocated pursuant to Section
7.3. 1 (a)(4). For South Campus E viro ental Conditions that come within the discovery
period established by this Sectio 7.2. 4, BFG shall have management responsibility for
such South Campus Environment I Co ditions until its responsibility for such Conditions
is terminated or a particular exe ptio applies in accordance with Section 7.3. I and the
South Campus Environmental osts 'nc:urred in meeting this responsibility shall be
allocated pursuant to Sections 7.2 1,7. .2 and 7.3.
7.3 Management of Env ron ental Matters: South Campus.
7.3, I Manageme t Re ponsibilities and Activities.
(a) General. shall manage South Campus Environmental
Remediation Activities until no Inger equired to do SO as provided below, at which time
the Port shall become soleI res onsible for management of South Campus
Environmental Remediation Acti ities:
10671'.OOOO151n~05.09
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,067".oo:xn5,72405.09
(1) No Further Acti n Letter' ertificate of Com I tion' r Similar
Document. If South Campus Environmental Remediation
Activities un erlllken pursuant to a Development Plan under
governmen age cy oversight, BFG management responsibility
shall termi ate pan tbe issuance of a no funher action letter,
eertifieatio of mpletion, or similar document by the oversight
agency, a d, rthermore, BFG's responsibility under this
Section 7 or t aspect of South Campus Environmental
Remediatio etivities and for those South Campus
Environme tal sts shall terminate and be satisfied upon such
event N t by way of limitation of the foregoing, if the
performanc of South Campus Environmental Remediation
Activities r ults in a government agency determination that the
only rema' ing t sks to be performed are the periodic sampling of
groundwat mo itoring wells, the testing of samples from the
monitoring well, and the preparation and submission to the
agency of r port on the results of such sampling and testing, then
the Port sb:in as me responsibility for conducting this sampling,
testing, an rep rting and the costs of such activities shall be
allocated p rsu t to Sections 7.2.1 and 7.2.2 above; provided,
however, t t i as a result of such groundwater monitoring
additional outh Campus Environmental Remediation Activities
are require. by a overnment agency, then:
(i) sh I have management responsibility for such
edia on Activities if the Remediation Activities are for
con ition that occurred as a result of BFG activities, but
onl to extent of such BFG activities, and the costs of
sue Re ediation Activities shall be allocated pursuant to
Se .ons .2.1 and 7.1.2 above; and
(ii) the ort hall have management responsibility for and be
resp nsib e for the costs of such Remediation Activities if
the em iation Activities are for conditions that occurred
as a resu] of Pon activities, but only to the extent of such
Po activ ties.
(2)
Investi ati Re orts. If the only South Campus Environmental
Remediatio Ac ivities required by the appropriate government
oversight 8 ency are investigation activities, BFG's management
responsibili y for such South Campus Environmental Remediation
Activities 0 re uired shall terminate by a letter documenting
submission of t e fmal repon of investigation to the oversight
agency, a d, ermore, BFG's responsibility under this
Section 7 r. r So th Campus Environmental Costs shall terminate
and be sa isfied to tbe extent of such required investigation
activities. his c ndition shall conclusively be determined to have
I
.1
o
8t104
1D611Ul0OO1S t72405.CB
(4)
(5)
,
occurred if lfter e passage of one year from the submission of the
final report of in estigation to the oversight agency, the oversight
agency has Inot r quired the perfonnance of any additional South
Campus Enviro ental Remediation Activity.
Discrete pl. ect A rovals. In the event that South Campus
Environme 'tal R mediation Activities occur in stages or discrete
elements 0 pare Is, then the tennination of BFG's management
responsibili pu ant to Sections 7.3.I(a)(1) or 7.3.1(a)(2) shall
occur for e ch such stage or element or parcel as documented for
or approv by t e oversight agency by the methods described in
Sections 7. .1(a) ]) or 7.3. ] (aX2), above, and, furthermore, BFG's
responsibili.Y u der this Section 7 for South Campus
Environmedtal C sts shall terminate and be satisfied to the extent
i
of such stag or e ement or parcel.
(3)
Reo ener d S bse uent Event Provisions. If any Section
7.3. ] (a)(I)- 3) .gency documentation contains a reopener
prOVlSlon d t e condition occurs that triggers the reopener
provision r a . scovery of a South Carnpu s Environmental
Condition s pursuant to Section 7.2.14, and either or both of
these event requ es tbe performance of additional South Campus
Environme. tal R mediation Activities, then:
(i) if h an event occurs as a result of BFG activities, BFG
shal have management responsibility for such Remediation.
Acti ities, but only to the extent of such BFG activities,
unti com letion of such management responsibilities is
achi ved' a manner provided for by Sections 7.3.](a)(]),
7.3. (a)(2, or 7.3. ] (a)(3) above, and South Campus
Envtronm ntal Costs for such Remediation Activities shall
be locat d pursuant to Sections 7.2.] and 7.2.2 above; and
(ii) ifsu h an vent occurs as a result of Port activities, the Port
shal ha e management responsibility and shall be
resp nsibl for the costs of such Remediation Activities,
but nly t the extent of such Port activities.
BFG Post- rans r Res onsibilities. After transfer of ownership
of the BFG Prop rty to the Port, BFG shall have no management
responsibili y (0 any other obligation Or responsibility, as
provided in Secti n 7.2.3) for any South Campus Environmental
Remediatio Acti ities that result from, concern or arise from or in
co~ection Iwith any South Campus Environmental Condition
whIch occUrs a r such transfer of BFG Property to the Port;
provided, hpwev r, that, in addition to its responsibillties under
Sections 'i1.3.l ()(1)-(4) above, BFG shall remain solely
1
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106711.??oo15172.&05.09
responsibl for
directly or ndir
to BFG's ivit
South Cam us:
y South Campus Environmental Costs that result
tly from activities of BFG, but only in proportion
s, after such transfer and until BFG vacates the
(6) Port Post- rans Except for the management
obligations ofB G expressly provided for in Sections 7.3. I (a)(1)-
(5) above, er ransfer of ownership of the BFG Property to the
Port, manageme t responsibility for South Campus Environmental
Conditions Sou Campus Environmental Releases, and South
Campus E viro mental Remediation Activities is to be borne
solely by e Po
(7) No BFG ana ement Res onsibilities Re ardin St ndards in
Excess 0 Ind strial Use Standards. Notwithstanding the
provisions f Se tions 7.3.I(a)(1}-(5) above, BFG shall have no
manageme res onsibility for any South Campus Environmental
Rernediati A vities required to achieve standards in excess of
Industrial Standards fot' the South Campus; provided,
however, t il termination of BFG management responsibility
pursuant t Se .ons 7.3.1(a)(1)-(5) above, BFG may elect to
manage, to the ent of any writing signed by an officer of BFG
and by givi g 30 days' written notice thereof to the Port, any such
South C . us nvironmental Remediation Activities required to
achieve s dard in excess of Industrial Use Standards for the
South Cam us.
Selection of Te hnic I and Legal Consultants. The technical
consultants and egal counsel retained by the Port and BFG for
implementing Sou Ca pus Environmental Remediation Activities shall
be selected joint! by t e Port and BFG, after meeting. and conferring;
provided, howeve, tha neither the Port nor BFG is precluded from
retaining technical cons ltants and legal counsel of its own., at its own
expense, to assist i in i plementing this Agreement.
(b)
Demolition Activ' its. e Demolition of any Structures located on the
South Campus s all b the responsibility of the Port and shall be
performed by the ort; rovided, however, that before the Port removes
any soils, except or re idual soils that are directly associ ated with the
Structures and are neces arily removed with the Structures, the Port shall
consult with BF con . ng such soils. If the Port demolishes any
Structure that re Its n exposing contaminated soils beneath such
Structure, the Port shall place a cap (temporary or otherwise) over such
soils until the Port egin the process of constructing new Structures in the
area of the S cture s) to be demolished in accordance with a
Development Plan. Ifth POIt chooses to demolish a Structure earlier than
would be necess und r an applicable Development Plan, then the Port
(c)
.,
2
8 106
;
shall be responsibI I for
that result from sui earl
y increased South Campus Environmental Costs
Dem9lition action.
(d) d Storage Tanks. Closure and removal of any
anks located on the Soutb Campus shall be
performed by BF. application or applications to the Underground
Storage Tank Clea up F nd or any other similar fund shall be submitted
and pursued by BF and the Port when required by Section 7.2.9 above.
(e)
Irrigation Activiti
a reasonable indu st
this Southern Calif, rnia
e Port shall not be precluded from implementing
dard irrigation plan for the South Campus and
egion.
(I)
Well Installation,
lion, Maintenance and Closure.
(1) To carry out the nagement provisions of thi.o; Section 7.3, BFG
may need t insta I, operate, maintain or close one or more wells to
monitor or extra groundwater or soil vapor. After receipt of
reasonable dvan notice from BFG, the Port and the City agree
to grant, 0 rea nable terms, access to portions of the property
within the Bay ant, or adjacent thereto, under their control,
including e BF Property after its transfer, for the installation,
operation, aint nance and closure of groundwaler monitoring,
soil vapor 0 extr ction wells.
(2) Consistent .th i s cooperation responsibilities under Section 7.5
below, BF sh II not install, operate, maintain or close a
groundwate mon taring, soil vapor, or extraction well in a manner
that unreas nab I interferes with tbe activities or property of the
Port or its t nants
(g) . Port Bona Fide D velo r Exemption
(i)
(1) Criteria. This exe ptio from Section 7.3 management of environmental
matters requiremen s sh I apply if the following criteria are met:
10e711 ,00001$ 1n-405.Oi
(ii)
e and viable development plan exists for the
pus or a portion of tbe South Campus and the
Bo d of ort Commissioners has selected, in accordance
with its e tablished and normally applicable procedures, a
qual fled eveloper to implement this development plan
(call tiv y "Development Plan '');
The Dev~lopment Plan requires the implementation of
Sout Ca pus Environmental Remediation Activities in
ord to achieve the land usee s) established by the
Dev lopm nt Plan;
3
8 107
.;
1~1'.000015172"05.ce
(4)
(5)
(iii)
Mo e tham one remediation option, other than the no action
opti II. bxists to implement such South Campus
Em ron ntal Remediation Activities; and
(iv)
The G-selected South Campus Environmental
edia on Activity would by itself materially adversely
affe t im lementation of the Development Plan by, for
exa pie, materially affecting the time of completion or
mat rial I affecting the scope of the development.
(2)
Decisions 0 Gr ater Than $5.6 Million. If at the time the above
criteria are met, South Campus Environmental Costs have not
exceeded $ .6 m llion (and implementation of the South Campus
Environme tal R mediation Activity desired by the Port would not
cause such osts 0 exceed $5.6 million), the Port may select the
least costly Sout Campus Environmental Remediation Activity
that will i pie ent the Development Plan while reasonably
eliminating the material adverse impact to the development
project.
(3)
Decisions bove $5.6 Million But No Greater Than $7 Million.
If at the ime the above criteria are met, South Campus
Environm al Csts have exceeded $5.6 million but are no greater
than $7 .lIion (or implementation of the South Campus
Environme al R mediation Activity desired by the Port would
cause such costs to exceed $5.6 million but not to exceed $7
million), th n the Port shall not have the right to select the South
Campus E viro ental Remediation Activity without BFG's
concurrence In such event, the Port and BFG shall meet and
confer in an atte pt to select a mutually agreeable South Campus
Environmen al R mediation Activity that complies with Section
7.1.3. If the Port d BFG are unable to agree on a South Campus
Environmen al R ediation Activity, the matter shall be submitted
to binding bitrat on pursuant to Section 9.5.3 below.
Decisions 7 Million. If at the time the above criteria are
met, South us Environmental Costs have exceeded $7
million (or mple entation of the South Campus Environmental
Remediatio Acti ity desired by the Port would cause such costs to
exceed $7 illion, then the Port shall not have the right to select
the South C mpu Environmental Remediation Activity, and BFG
shall have e sol and exclusive right to select the South Campus
Environmen al Re ediation Activity.
lmplemen tion osts. The costs incurred in implementing the
South campts En ironmental Remediation Activity selected under
this Section 1.3.1 ) shall be South Campus Environmental Costs,
8 108
i
10e'711.1)C(XJ15 rnoC05.OV
allocated t to Sections 7.2. I and 7.2.2 above. The
provisions .ons 7. I, 7.2, 7.3, 7.5 and 7.6 shall apply to the
implement ion f the selected South Campus Environmental
Remediatio Act\ ity except to the extent that those provisions are
inconsisten with this Section 7.3. I (g).
(b) Port-Directed Re edialion
(I) This Secti n 7. (h) is an exemption from the prOVISIOns of
Section 7.3 ing management of environmental matters.
(2)
(iii)
(iv)
The require
of this Section 7.3(b) are as follows:
FIRST:
(i)
Wit . n th rty (30) days following the demolition of any
buil ing n the South Campus, BFG shall ccmmence an
add' ional environmental evaluation (which may include, if
app opnate, reasonable surface and subsurface
inve tigatjon) in the area of the demolished building.
Wit in nibety (90) days following the demolition, BFG in
con !)Itati with the Port shall prepare a plan for
Env ronm ntal Remediation Activities for the pertinent
area (or n explanation as to why no remediation is then
nec ssary , and shall submit it to the Port for review.
(ii)
In t e ev nt .the Port agrees with the proposed plan. for
Env ronm ntal Remediation Activities, then BFG shall
sub it su h plan to the applicable environmental agencies
for evie andlor approval, and thereupon, within sixty
(60) days following receipt of all required governmental
app ovals and permits, BFG shall commence the
rem diati n.
ln t e eve t the Port disagrees with the BFG proposal, then
the ort ay direct a different plan for Environmental
Re ediat on Activities, provided that the estimated cost of
suc plan (together with all other activities directed by the
Port un r this Section 7.3 (h)) shall not exceed
$1, 0,0 Thereupon, BFG sball submit such Port plan
to t e ap licable environmental agencies for review and/or
app oval, and thereafter, within sixty (60) days following
rece pt of all required governmental approvals and permits,
BF sh 1 commence the remediation described in the
Port s pIa
I
I
I
. i
FlOg
SECOND:
(v)
(vi)
(vii)
(viii)
Wi 'n th rty (30) days following the delivery by the Portto
BF<l1 of e detailed schematic plans of the Port's approved
dev~lope , BFG shall commence an additional
env ronm ntal evaluation which may include, if
app opria e, reasonable surface and subsurface
inv stiga on in the areas where such plans call for the
con~trU on or installation of buildings or other
imp ove ents.
Wi in nety (90) days following the receipt of such
scb mati plans, BFG in consultation with the Port shall
pre are plan for Environmental Remediation Activities
for the oresaid areas (or an explanation as to why nO
re diati n is then necessary), and submit it to the Port for
revi w.
eot the Port agrees with the proposed plan for
ental Remediation Activities, then BFG shall
sub it s ch plan to the applicable environmental agencies
for revie and/or approval, and thereupon, within sixty
(60 day following receipt of all governmental approvals
and perm s, BFG shall commence the remediation.
In t e ev rit the Port disagrees with the BFG proposal. then
the Port may direct a different plan for Environmental
Re edia on Activities, provided that the estimated cost of
pI (together with all other activities directed by the
und r this Section 7.3(h)) shall not exceed $1,000,000.
Th p BFG shall submit such Port plan to the
app icabl environmental agencies for review and/or
app oval, and thereafter, within sixty (60) days following
rec ipt 0 all required governmental approvals and permits,
BF sh I commence the remediation described in the
Po 'spl
The said
allocation of
S cction 7.2 2, an
of Section . 3 (g)
,000 shall be a shared cost pursuant to the
outh Campus Environmental Costs under
shall also be counted for purposes of application
(3)
7.4 Allocation of Envir orne tal Costs aod Management Respoosibilities for
Other Identified Properties.
7.4.1 Port Parcel aod SDG&E Land North orB Street.
106nuxxm5172405.C9
46
I 8 110
,
.i
(a) Managem nl ponsibility. BFG shall have environmental
management responsibility for pe orm' g Environmental Remediation Activities. if BFG
determines that such activities are n ssary, for the Port Parcels and that part of the
SDG&E Land that is located nortlh ofH Street.
(b) Cost AJloc tion.
(ii)
1De71'.0000151n.tOS_09
(1)
L
G shall not be responsible for any Environmental
. ng to Port Parcel No. 1 that result from, concern
se from or in connection with Environmental
Con irion existing prior to BfG's ground lease of POlt
Par el N - 1, and the Port shall be responsible for such
En ronm ntal Costs, provided, however, that the Port's
resp nsib. ity for the costs of such Environmental
Re edia n Activities:
(A) I be limited to those Environmental
R ediation Activities necessary to achieve
, .
ln~ustnal Use Standards,
(B) sh II extend only until the types of requirements set
o in Sections 7.3.1 (a)(I)-(3) above are met by the
po~ and
(C) if the agency documentation of the .types of'
re uirements set out in Sections 7.3.I(a)(l) _ (3)
ab ve contains a reopener provision and the
co dition occurs that triggers the reopener provision
or a discovery of an Environmental Condition
oc urs pursuant to Section 7.4.5, and either or both
of these events requires the performance of
En ironmental Remediation Activities, then the
Po shall be responsible for the Costs of such
En ironmental Remediation Activities in the
pr portion to the extent to which each, directly or
in 'rectly, caused such Costs.
BFG shall be solely responsible for Environmental Costs
relat ng to Port Parcel No. 1 that result fro m, concern, or
arise from or in connection with Environmental Conditions
caus d by FG or third parties that first occurred after BFG
exec ted ground lease for Port Parcel No. I; provided,
how ver, hat BFG's responsibility for the costs of such
Envi onm ntal Remediation Activities:
7
I 8 111
.1
(A)
sh II be limited to
R mediation Activities
In ustrial Use Standards,
those Environmental
necessary to achieve
(B) sh II extend only until the types of requirements set
o t in Sections 7.3.](a)(I)-(3) above are met by
B G, and
(C) if the agency documentation pursuant to
S ctions 7.3. I (a)(1)-(3) above contains a reopener
prbvision and the condition occurs that triggers the
re pener provision or. a discovery of an
E vironmental Condition occurs pursuant to
S ction 7.4.5, and either or both of these events
re uires the performance of Environmental
R mediation Activities. then BFG shall be
re ponsible for the costs of such Environmental
R mediation Activities.
(2) Port Parcel No. and SOG&E Land North ofH Street. BFG shall
not be res onsib e for any Environmental Costs relating to Port
Parcel No. or at portion of the SOG&E Land north ofH Street
that result from, concern, or arise from or in connection with
Environme tal onditions existing prior to transfer of these
properties t BF and the Port shall be solely responsible for such
Environme tal osts; provided, however, that the Port's
responsibir y fo the costs of such Environmental Remediation
Activities:
(i) shal be limited to those Environmental Remediation
Act vities necessary to achieve Industrial Use Standards,
(ii) shal exte d only until the types of requirements set out in
S ions .3. I (a)(I )-(3) above are met by the Port; and
(iii) if t e ag ncy documentation of the types of requirements
set out i Sections 7.3.I(a)(I)-(3) contains a reopener
pro ision and the condition occurs that triggers the
reo ener provision or a discovery of an Environmental
Co ditio occurs pursuant to Section 7.4.5, and either or
bot of these events requires the performance of
En ron ental Remediation Activities, then:
(A)
fo a condition that existed prior to transfer of the
pr perty to BFG, the Port shall be solely
re ponsible for the costs of such Environmental
R mediation Activities, and
10ImUJOCC151'l'2<lCS.l>>
4&
8 112
.,
(B) fi r a condition that occurs after transfer of tbe
p operty to BFG, BFG shall be solely responsible
fi the costs of sucb Environmental Remediation
A tivities.
Provided, however, that any En iron ental Costs which are incurred to remediate an
Environmental Condition that ex sts i on or under Port Parcel No.2 or SDG&E Land
Nonh of H Street and that resuIfud fr m BFG activities, but only to the extent of such
BFG activities, shall be costs ttat ar allocated pursuant to Sections 7.2 I and 7.2,2
above.
7.4_2 Rados Pare I and Agency Parcel.
(a) Trigger. en shal] complete investigation and clean-up of
Environmental Conditions in os an Agency parcel soils within the earlier of (1) six
months of a request by BFG (0 as s on as possible thereafter if the investigation and
clean-up cannot be completed, espit Agency's diligent efforts, within such 6-month
time period); or (2) the time r uired by an agency order directing remediation of the
Rados and/or the Agency Parcel( ).
(b) Scope of espo sibility. Agency's management and remediation
obligations shall be limited to soi s.
(c) Scope of nves igation. Agency shall conduct a Phase II-type
investigation. with a scope subj t to FG's reasonable approval to determine whether
Environmental Conditions exist i soil on or beneath the Rados and Agency Parcels,
(d) Cleanup. Age cy shall perform any necessary Environmental
Remediation Activities based 0 risk based decisionmaking to utilize the most cost-
effective, risk-based remediation stand ds and techniques possible. The level of clean-
up for which Agency shall be r pons' Ie shall be limited to that necessary to allow for
the use of the parcels for parking, offie . industrial or similar uses.
(e) Cost Resp Dsib lity. Agency' shall be responsible for all costs of
investigation and Environmental Rem diation Activities as required by subsections (a)
through (d) above. Agency sh I no be responsible for Environmental Remediation
Activities or Environmental Clai s:
(1)
(2)
for ont . nant conditions in groundwater;
for envir nmental conditions caused by BFG, its agents,
rep esent tives or independent contractors;
(3)
for envir nmental conditions caused after Closing, except
fur envi omental conditions caused by the Agency in
pe ormi g Environmental Remediation Activities or
oth rwis .
1am1.OD:XM5 'n~,OI
49
-113
(f) Completio. ency shall exercise best efforts to obtain a No
Further Action letter from the ount' (or other governmental oversight agency with
jurisdiction) that determines that "no her action" is required at the two parcels with
respect to Environmental CondO 'ons of the soils. Agency's obligations under this
Section 7.4.2 shall terminate wi resp t to any portion of the parcels for which Agency
obtains such a No Further Action etter.
7.4.3 Costs Ass date With Dredged Material. BFG shall not be
responsible for Environmental C sts r suIting from, or arising out of or in connection
with importation of dredged or fil mat rial containing Hazardous Substllnces by or at the
direction of any party other t BF onto the New Campus or any other Bayfront
property (excluding the South Ca pus hich is addressed in Section 7.2.4), whether such
importation occurs prior to or sub eque t to the execution of this Agreement.
7.4.4 Costs Asso iate With Dredging. Except for the cost exclusions
associated with dredging activiti set ut in Section 7.2.5 above (which shall be equally
applicable to the New Campus), if other dredging activities on Bayfront property
result in Environmental Costs ssoci led with the New Campus due to changes in
groundwater flow or to the sho eline beneath or adjacent to the New Campus, these
Environmental Costs shall be alJo ted ursuant to Sections 7.2.1 and 7.2.2 above.
7.4.5 Contamina 'on iscovery Cutoff. To the extent that Port and/or
City/Agency are liable for En' nm ntal Conditions on the New Campus, the Port
and/or City/Agency shall be Ii Ie Iy for Environmental Conditions on the New
Campus that are discovered withi 15 ears after Closing, except that the Port and/or the
City's1Agency's liability shall b sati fled upon BFG's completion of first-time, post-
Closing permanent development whic shall not include interim uses, such as'parking or
storage) of that portion of the New Campus; provided, however, that Port and/or
City/Agency shall also be liabl for y Environmental Condition that is discovered
within an area where such rst-ti e development has been completed if that
Environmental Condition is di cove d within the aforesaid 15 years and requires
remediation to comply with the Indu rial Use Standard that applied to that first-time
development.
7.5 Other Terms and C nditi os.
7.5.1 Cooperlltio
(a) The partie agre to cooperate and coordinate in good faith and to
use best efforts to achieve the m st co -effective, risk-based, industrial use remediation
standards possible for the Sout Ca pus, the New Campus and any other Bayfront
property.
(b) The parties agr to meet and confer and to cooperate in proposing
and implementing any Enviro ental Remediation Activity developed pursuant to this
Agreement.
108111.0lXxnS1720105.<lO
50
I 8 114
i
(c) With respe 10 ctivities on the Soulh Campus and Port Parcels
and SDG&E Land North ofH Sir et:
(I)
BF and the Port shall meet and confer, shall exchange
info mati n about successful applications of cost-effective,
risk base , and/or industrial use standards and other useful
info ati n, shall develop proposed least cost industrial use
rem diati n plans for Pon or third-party development
pro osals approved by the Board of Port Commissioners
(inc din Development Plans for the South Campus) in
ord to D1atch cost-effective environmental strategies with
land use lIevelopment programs, and shall cooperate in
pres ling remediation proposals to relevant agencies.
(2)
e Port shall cooperate in good faith with each
ding any communications or interactions with,
or pear ces hefore, agencies with oversight or other
resp nsibi ity for the properties listed above. The goal is to
reae agr ement on the substance of the communication or
the ppe lance. All written communications shall be senl
to s ch a ncies only after BFG and Ihe Port have met and
co ed regarding such communications and exchanged
draftis of ritten communications for review and comment
All" ilte communications and other documents shall be
exc nge between BFG and the Port within a reasonable
time prior to submission of the communication to allow for
revi w d exchange of comments. All discussions
been FG and the Pan regarding oral communications
shall nC r within a reasonable time prior to the
tion with the agency. If emergency
circ mst ces preclude such prior review, then the Port or
BF shall notity the other of the communication as soon as
prac 'cab] thereafter and provide the other with a copy of
any wri n communications. Final copies of any
com uni tion with an agency shall be sent to the other
p . BF and the Port shall meet and confer a reasonable
time prio to making any appearance before or meeting
with age cies with oversight responsibility for the
prop ies isted above,
(I)
ivities On the Rados and Agency parcels:
(d)
e Agency shall meet and confer, shall exchange
about successful applications of cost-effective,
and/or industrial use standards and other useful
shall develop proposed least cost industrial use
plans for development proposals contained in
10e711.00CO~51n0:l.Oi
I 8 115
i
dev lop nt plans in order to match cost-effective
env onm ntal strategies with land-use development
pro am and shall cooperate in presenting remediation
pro osals to relevant agencies.
(2) and the Agency shall cooperate in good faith with
eac other regarding any communications or interactions
wit , or ppearances before, agencies with oversight or
oth r res onsibility for the properties listed above. The
go is 0 reach agreement on the substance of the
co muni ation or the appearance. All written
co muni ations shall be sent to such agencies only after
SF and the Agency have met and conferred regarding
sue co unications and exchanged drafts of written
co muni ations for review and comment. All written
co muni ations and other documents shall be exchanged
be een FG and the Agency within a reasonable time
prio to ubmission of the communication to allow for
revi d exchange of comments. All discussions
be BFG and the Agency regarding oral
co uni ations shall occur within a reasonable time prior
to e c mmunication with the agency. If emergency
circ ms ces preclude such prior review, then the Agency
or . FG s all notify the other of the communication as soon
as ctic ble thereafter and provide the other with a copy
of y itten communications. Final copies of any
muni ation with an agency shaH be sent to the other
p FG and the Agency shall meet and confer a
reas nabl time prior to making any appearance before or
ng 'th agencies with oversight responsibility for the
ertie listed above.
(e) . With resp e San Diego Regional Water Quality Control
Board proceeding to redesignate e a signed beneficial uses of the aquifer beneath the
South Campus and the New Cam us, e parties will cooperate in good faith and use best
efforts to achieve redesignation.
7.5.2 enever a permit or approval of a government
agency is necessary to fulfill pro sion of Section 7, the parties shall cooperate in
good faitb to the maximum extent possi Ie to secure such permit or approval.
7.5.3 Plans.
Demolition actiVIties are unde
appropriate, health and safety
transportation plans, groundwate
federal, state, or local law. The
with the other parties and provid
en ver Environmental Remediation Activities or
en by any party, such party shall prepare, as
lans demolition plans, air monitoring plans, soil
de atering plans, and any other plans required by
rty reparing such plans shall coordinate in good faith
the ther parties with a reasonable time to review and
1CllJ711,OOOO1S 11'241)!U>>
52
8 116
.1
comment on such plans in draft fi
agency(ies).
fore the final plan is submitted to the appropriate
7.5.4 Industrial se S ndard. "Industrial Use Standard" shall mean
the remediation standard adopte by e agency or agencies with relevant oversight
responsibility, either (i) on its or eir 0 initiative, or (ii) in response to a request from
the Port and BFG for the most cost- ective, risk-based, industrial use remediation
standards and techniques for a d e10p ent project in accordance with the Port's Master
Plan. The Pan and/or BFG 11 co perate in any reasonable appeals from agency
decisions, provided neither the Po nor FGshall be required to participate in the appeaL
For purposes of clarification, "ind tria use" is not intended to be narrowly construed to
mean only heavy industrial (i. . s okestack industries), but may include other
commercial, retail, hotel and simil
7.6 Indemnity and Othe
7.6.1 General. as otherwise expressly provided herein to the
contrary, whenever this Agreeme ection 7 or otherwise) specifies that Port or BFG
shall be responsible or liable, in wale r in part, for any Environmental Costs relating to
the South Campus, the Port Pare s an or the SDG&E Parce~ the party assigned such
responsibility or liability shall rei ase, ischarge, indemnify and hold harmless the other
party (port or BFG, as applicable fro all or that portion of said Environmental Costs
for which the indemnifying party s re onsible or liable. Except as otherwise expressly
provided herein to the contrary,. henljver this Agreement (in Section 7 or otherwise)
specifies that City and/or Agency on the one hand, or BFG, on the other hand, shall be
responsible or liable, in whole 0 in p for any Environmental Costs relating to the
Agency or Rados Parcels, the pa assi ed such responsibility or liability shall release,
discharge, indemnify and hold hrless the other party (City and/or Agency or BFG, as
applicable) from all or that p 'on of said Environmental Costs for which the
indemnifying party is responsible r liab e.
7.6.2 Internal Cos s. E ch party will be responsible for its Own internal
costs and also for the costs of its e viron ental consultants and legal counsel, whether on
staff or external consultants or cou el.
7.6,3 Consequent aI D mages. No party to this Agreement shall be
liable or responsible for any con uent al damages incurred by any other party that are
caused by or result from irnpleme ation of this Agreement, including, without limitation
from delays in Environmental R medi tion Activities resulting from, concerning, or
arising out of or in connection w th th South Campus, Port Parcels, SDG&E Parcel,
Rados Parcel, or Agency Parce~ 0 fro the performance of environmental management
responsibilities as set out in Seetio s 7.3 and 7.4 above.
7.6.4 Penalties an Fin . Notwithstanding anything in this Agreement
to the contrary, no party shall be Ii ble t the other party for penalties or fines imposed by
a government agency if such pen ties r fines result from unreasonable actions of the
party incurring the penalty.
~;
10l511'.OOOO15172-405.0lli
3
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! 8 117
.i
7.6.5 Other Fun s. y monies or other consideration that any party to
this Agreement receives (the" cervi g Party") from a third party, including but not
limited to insurance proceeds, Ii r pa ment or reimbursement of Environmental Costs
resulting from, concerning, or . ing 0 of or in connection with properties described in
this Agreement or for any other urpo e, shall be solely for the account of, and remain
the sole and separate property, f, th Receiving Party (excluding, however, monies
received with respect to South amp s Environmental Costs from the Underground
Storage Tank Fund or any othe fun identified in Sections 7.2.9 or 7.3. I(d), which
monies shall be distributed in a cord nee with Section 7.2.9 above), and shall not be
included in any way in the ac unti g for or sharing of such Environmental Costs
pursuant to this Section 7, and sh I not otherwise be included as an offset to or reduction
of any other liability or obliga ion hich any party to this' Agreement has to the
Receiving Party.
Section 8.
CLOSING
8.1 Oosing; Closing ate. It is the intention of the parties that all the
transactions and agreements contemplat ein (with the exception of the transfer of the
MTDB Parcel) shall be concluded thrall a ncurrent closing (the "Qosing"). It is also the
intention of the parties that"the Closing 0 cur n later than September 8, 1999, or such other date
as is mutually agreed to among the pani s (th "aosing Date"). Unless the parties otherwise
agree, the Closing shall not occur un ess d until: (a) this Agreement and the Related
Agreements have been approved by the g vernmg bodies of each of the parties; (b) the Board of
Port Commissioners has reviewed a site' hara erization of the South Campus and has exercised
its sole and absolute discretion to proce d . h the transactions and agreements contemplated
herein based upon the results of the site erization and to submit them for approval by the
SLC; (c) the SLC has approved the land trans ers set forth in Sections3.1.J and 3.1.2 and all
other transactions and agreements cont mpl ed herein for which SLC approval is legally
required; and (d) except for minor and icon quential matters, all of the obligations of each
party to each of the other parties under s ement and the Related Agreements that are due
prior to or contemporaneously with the CI sing have been met.
Section 9.
GENERAL PROVISION
9.1 Claims and Fees.
bUga ions. In each provision in this Agreement where
any party has agreed to assume, S are 0 retain, or to indemnify and hold any other party
harmless from, a liability or oblig tion, uch assumption, sharing, retention or indemnity
and hold harmless of the other sha 1 be eemed to mean an assumption, sharing, relention
of and bold harmless from, and inde nity against. all liability, losses, costs, expenses
and damages which the party ind mni ed hereunder may suffer from the failure of the
indemnifying party to payor pecti rm such assumption, sharing, retention and
indemnification, and all reasonabl alto eys' fees incurred in connection therewith, and
costs of investigation, defense, settl ent, judgments and collection thereof (such
liability, losses, costs, expenses an da ges are referred to as "Qaims and Fel!S').
10E1711.00001' 112~.Olil
4
8 118
9.1.2 Notice of T ird arty Claims. The party seeking enforcement of
the obligations hereunder (the "N fifyi g Parry") shall notify the other (the "Responding
Party") within 10 days of the N tifyin Party's receipt of writtea notice from any third
party of any act, omission or CCUIT nee with respect to which the Notifying Party
intends to seek Claims and Fees n acc rdance with this Agreement, and if requested by
the Responding Party, shall als su ly to the Responding Party all records, data,
contracts and documents reaso bly lated to such third party claim to enable the
Responding Party to evaluate sue clai for purposes hereof Both panies shall attempt
to agree upon a mutually satisfa ry a omey to represent them and to agree upon which
party shall control the defense 0 the laim and shall have the authority to approve any
proposed settlement or compromise. If no such agreement can be reached, or if the
Responding Party does not reply to th Notifying Party within 10 days from the date of
such notice, each party may desi nate s own attorney, whose fees shall be compensable
as a Claim and Fee to the p who is later determined to be entitled to be paid its
Claims and Fees by the other. ethe or not any such agreement can be reached or the
Responding Party does or does not eply, each party shall reasonably cooperate in
providing information and testim ny t assist in the defense of the matter, and the costs
thereof (including out-of-pocket pen es) shall be a part of the Claims and Fees which
shall be paid by the party who i I lat determined to be responsible therefor under the
assumptions or retentions ofliab. ity a other provisions for indemnification under this
Agreement.
9.2 Force Majeure. No party shall be held responsible or liable for an inability
to fulfill any obligation under this Ag erne t by reason of an act of God, natural disaster,
accident, breakage or failure of equipme t. thil-d-party litigation, strikes, lockouts or other labor
disturbances Dr disputes of any char cter. interruption of services by suppliers thereof,
unavailability of materials or labor, ra onin or restrictions on the use of utilities or public
transportation whether due to energy sho age or other causes, war, civil disturbance, riot, or by
any other severe and unforeseeable occu enc that is beyond the control of that party (a U F01'Ct
Majeure").
9.2.1 Notice. y (tbe "Affected Party") relying on a Force
Majeure shall (x) give the othe pani s written notice thereof within 15 days of first
becoming aware of the existenc of ch, (y) take all such actions as are reasonably
necessary or beneficial to termin te th act of Force Majeure as promptly as reasonably
possible and (z) request, in writi g, an extension of time which shall be granted for the
anticipated period of the enforce del y, or for such longer period as may be mutually
agreed upon.
9,2.2 Efforts to ini ize. The panies shall use their reasonable best
efforts to minimize potential adv se e ects from such Force Majeure.
9.2,3 Option to crm nate. In the event that the act of Force Majeure
(x) cannot be terminated within 3 da from the date of notice thereof and the continued
inability thereafter of the Affecte Party' to comply with the provisions of this Agreement
shall cause the failure ofrnaterial consi eration to another party (the "Injured Party''), or
(1) involves the failure of the p y to ake any of the land transfers provided for herein,
106711,COOO151770i05,C>>
.j
55
8 119
then, in either such event, the I Jured Party shall have the right in its sole discretion,
notwithstanding any other provisi n of his Section 9.2, to terminate this Agreement upon
providing written notice of such t in tion to the other parties.
9.3 Time of the Essence Tim is of the essence of =h and every obligation of
the parties under this Agreem ent.
9.4 Independent Contra tors Each party is an independent contractor and shall
be solely responsible for the employmen , acts omissions, control and directing of its employees.
Except as expressly set forth herein, n thin contained in this Agreement shall authorize or
empower any party to assume or create y ligation or responsibility whatsoever, express or
implied, on behalf of or in the name of y 0 er party or to bind any other party or make any
representation, warranty or commitment n be alf of any other party.
9.5 Dispute Resolution.
9.5.1 Mediation. event of any dispute or disagreement between or
among the parties arising out elating to the terms, conditions, interpretation,
enforceability, performance, br any other aspect of this Agreement or any of the
Related Agreements {"Dispute suc parties shall first attempt to resolve the Dispute
informally. In the event the isput is not resolved informally, prior to and as a
precondition to the initiation of y Ie al action or proceeding, the parties shall refer the
Dispute for mediation to the ne est r gional office of Judicial Arbitration & Mediation
Service Inc. (JAMS), or any su.1 esso thereto or, if none, to the American Arbitration
Association (AAA) (the "ADR Pro do"). The Dispute shall be mediated through
informal, nonbinding joint confe ence andlor separate caucuses with an impartial third
party mediator who will seek gui e the parties to a consensual resolution of the
Dispute. The mediator shall be s lecte by mutual agreement of the parties from a list of
mediators witll significant exp ence n real estate matters to be provided by tile ADR
Provider. If the parties are un Ie to ee upon the mediator, the ADR Provider shall
select the mediator. The mediati n pr ceeding shall be conducted within 30 days (or any
mutually agreed longer period) er r ferral, and shall continue until any party involved
concludes, in good faith, that th re is 0 reasonable possibility of resolving the Dispute
without resort to a legal action 0 proc eding. All costs of the mediation shall be shared
equally by the parties involved. Each party shall bear its own attorneys' fees and other
costs incurred in connection with the ediation.
9.5.2 Ill5titution of al Action. In the event the parties are unable to
resolve the Dispute through m in addition to any other rights or remedies, any
party may institute a legal actio to c e, correct or remedy any default, to enforce any
covenants or agreements here; or 0 enjoin any threatened or attempted violation
thereof, to recover damages for al y de ault, or to obtain any remedies consistent with the
purpose of this Agreement.
of pecified Disputes. Any dispute or controversy
concerning or relating to vir omental management matters described in
Section 7.3.1(g)(3) that is not r solve by mediation in accordance with Section 9.5.1
106711.llOOO'51724OS.00
56
8 120
I
shall be resolved by arbitration in accordance with the terms and procedures set forth in
this Section 9.5.3. l
(a) Selection 0 ArbItrator. The Port and BFG shall jointly select an
arbitrator who shall have the fI lIowlng qualifications and experience: (i) licensed
professional engineer; (ii) fifteen (15) 1ears' experience in environmental remediation,
(iii) experience with risk-based nvir~?mental remediation, and (iv) experience with
industrial use remediation standar s and techniques. .
(b) Proceeding. T arbitration shall be conducted in the San Diego
office of JAMS (or AA.A, as app icabl ) in accordance with its commercial arllitration
rules, except as specifically modi ed b this Section 9.5.3. If at any time JAMS ceases
to exist, the arllitration shall b co ducted by the local branch of the American
Arbitration Association in accor ance -ith its commercial arbitration rules, except as
specifically modified by this Se tion .5.3 The panies shall be entitled to conduct
discovery in accordance with Cali omi Code of Civil Procedure S 1283.05, except that
the permission of the arllitrator is ot n essary to conduct depositions. The parties shall
each pay fifty percent (50%) ofth fees barged for the arbitration.
(c) Governing Law. The arbitrator shall base his/her decision 10
accordance with the law of the Sta e of alifornilL
9.6 No Joint Venture. N thi
form of business organization between th p
or partnership.
in this Agreement shall be deemed to create any
es, including, without limitation, a joint venture
9.7 Applicable Law. his eement shall be construed and enforced in
accordance with the laws of the State ofC ifomia.
9.8 Notices. All notices, em I ds and correspondence required or provided for
under this Agreement shall be in writing. nd d livered in person, sent by certified mail, postage
prepaid or sent by a nationally recogn' d 0 ernight courier that provides documentation of
delivery.
Notices to the Port sball be add sed as follows:
San Diego Unified Port Di rict
3165 Pacific Highway
P.O. Box 120488
San Diego, CA 92112-048
Attention: Executive Direc r
With a copy to:
San Diego Unified Port District
3165 Pacific Highway
P.O. Box 120488
10871~ ,0000151724C5.(9
,
,
i
,
,
,
, I
7
8 121
San Diego, CA 92112-048
Attention: Port Attorney
Notices to the City shall b addr ssed as follows:
City ofChula Vista
276 Fourth Avenue
Chula Vista, CA 9191 0
Attention: City Manager
Notices to BFG shall be a dress d as follows:
BFGoodrich Aerospace A rost ctures Group
850 Lagoon Drive
Chula Vista, CA 91910-2 98
Attention: Art Sellgren
With a copy to:
McCutchen, Doyle, Bro & E ersen
1331 N. California Blvd., uite 00
P.o. Box V
Walnut Creek, CA 94596.
Attention: Geoffrey Rob. son
And a copy to:
BFGoodrich Aerospace A ro crures Group
850 Lagoon Drive
Chula Vista, CA 91910-2 98
Attention: Group Counsel
A party may change its a dres by giving notice in writing to the other party in
the manner provided above. Thereafter, otic s, demands and other correspondence peninent to
this Agreement shall be addressed and tr smi ted to the new address.
9.9 Rules of CODstru tion The singular includes the plural; "shall" is
mandatory, and "may" is permissive. e pies acknowledge and agree that each of the parties
and each of the parties' attorneys have artic. ated fully in the negotiation and drafting of this
Agreement. In cases of uncertainty as to the eaning, intent or interpretation of any provision of
this Agreement, the Agreement shall he ons ed without regard to which of the parties caused,
or may have caused, the uncertainty to exist No presumption shall arise from the fact that
particular provisions were or may have. been drafted by a specific party, and prior versions or
drafts of this Agreement shall not be us to i terpret the meaning or intent of this Agreement or
any provision hereof.
106711.1)00015172m5..08
58
I 8 122
.1
9.10 Sev~rability. If ail pro 'sion of this Agreement is held invalid, void or
unenforceable but the remainder of the. greement can be enforced without failure of material
consideration to any party, then this Agr erne t shall not be affected and it shall remain in full
force and effect, unless amended' or modifi e by mutual consent of the panies. Provided,
however, that if the invalidity or unenfordeabili y of any provision of this Agreement results in a
material failure of consideration, then thl-'Ipany adversely affected thereby shall have the right in
its sole discretion to terminate this Agreement pon providing written notice of such termination
to the other parties
9.11 Entire Agreement, WlIi ers, Amendments. This Agreement, together
with the attached exhibits, constitutes re understanding and agreement of the panies.
This Agreement integrates all of the te onditions mentioned herein or incidental hereto,
and supersedes any and all prior versi ns 0 drafts of this or any other agreement and all
negotiations or previous agreements, in ludin but not limited to, the Letter of intent dated
August 6, 1998, between the panies with resp to all or any pan of the subject matter hereof.
T 0 th~ extent that there are conflicts or co istencies between this Agreement and any prior
agreement (including, without limitation the P n Propeny Agreements), the provisions of this
Agreement shall prevail. All waivers of e pr visions of this Agreement must be in writing and
signed by authorized representatives of th Po City and BFG, The waiver by any pany of any
term, covenant, agreement or condition ntain d in this Agreement shall not be deemed to be a
waiver of any subsequent breach of sa e or any other term, covenant, agreement or
condition, nor shall any custom or pra I tice hich may grow up among the parties in the
administration of this Agreement be cons ed 0 waive or lessen the right of any party to insist
upon performance in strict accordance wit all If the provisions oflhis Agreement.
9.12 Further Action. E cb p agrees to take all further actions reascnably
necessary to implement this Agreement.
9.13 Exhibits. The folio ing hibits are incorporated herein and made pan of
this Agreement.
Exhibit A:
Exhibit B:
Exhibit C:
Exhibit D:
Exhibit E:
Exhibit F:
Exhibit G:
Exhibit H:
Existing Ca pus reference: Section I. I)
New Cam s (ref; rence: Section 1.3)
Site Map (r feren e: Section 2.105)
Transfer Pa ment (reference: Section 5. I)
Covered Ar s (r ference' Section 2.23)
H Street E nsio (reference: Section 4.2)
Marina P kwa Realignment (reference: Section 4.3)
RadosPar Eas ment Area (reference: Section 6.2. 1 (b))
9.14 Parties to Bear The r
Agreement, each party to this Agreement shall
attorneys' and consultants' fees, incurred' con
analysis and due diligence related to this gree
106711,000015 ,n~oa
n Costs. Except as specifically set forth in this
ear its own costs, including, without limitation,
ection with any negotiations, strategic planning,
ent.
9
I 8 123
i
'.15 C.p'i_ Th. bol. "'" ",d.~ i. <hi, A",.m." = 001.1, ,,,
convenience of reference and shall not Ject e meaning or interpretation of any of the terms of
this Agreement.
9.16 Assumption of Re pons bility. Except as otherwise expressly provided
herein to the contrary, whenever this A~eeme t specifics that Port or BFG shall be responsible
or liable for any cost, activity or other ci ligati n, such allocation of responsibility or liability is
intended to exist and apply only as be een Oil and BFG and shall not create or expand any
responsibility or liability to any other pahy, a d shall not preclude any claims for responsibility
or liability against any other party. I
9.17 Successors and As igns. No interest in any right or remedy of any party
under or relating to this Agreement i sub~:ct to any assignment, hypothecation or other
alienation, whether voluntary or by opera ion or law, without the express prior written consent of
each party against whom such right or erne may be enforced, which each such party may
grant or withhold in its absolute discret on. y purported, assignment without such consent
shall be null and void.
9.18 Third Parti"s, No bing n this Agreement, whether express or implied, is
intended to do any of the following:
,(a) confer any bene , ri ts or remedies under or by reason of this
Agreement on any persons other than the, expre~s patties to it;
(b) relieve or discharg the bligation or liability of any person not an express
party to this Agreement; or
lD07'UXlQ(l151n405,08 60
I 8 124
,I
(c) give any persoo ot
subrogation or action against any party to this
express party to this Agreement any right of
greement.
IN WITNESS WHEREOF, this A
and year first above written.
Port:
City:
Redevelopment Agency:
BFG:
Approved as to form:
Approved as to form:
10Cl711,OOOO151n40!5,09
ent has been executed by the parties as of the day
S
OF CHULA VISTA, a municipal corporation
By:
Mayor
RE EVELOPMENT AGENCY OF THE CITY OF
C A VISTA, a redevelopment agency
By:
INC.. operating as BFGOODRlCH
AE OSP ACE AEROSTRUCTURES GROUP, a
Dela are corporation and wholly owned subsidiary
ofT BFGOODRlCH COMP ANY
By:
Na~r:
Its:
I
81125
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Ex ibit A
(refer need . n Section I. I )
. stin Campus
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EXHIBIT A
CAMPUS
8 127
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N W CAMPUS
8~129
Ex 'bit C
(refere ed' Section 2.105)
Sit Map
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SITE MAP
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( refe~
Price/SF Amount Payable
by Port to BFG2
Port Acquisition of
orBFG's South Campus: nla nla $16.467.5 W
BFG Property Acquisitions: Amounts Payable
by BFG to Port, City
From City:
Agency Parcel 3.65 $ 8.00 SI,271,952
Rados Parcel 3.02 $ 8.00 $1,052,409
From Pori:
~ort Parcel 9.99 $ 8.00 $3,481,315
Port Parcel 2 (5.0 gross acres) 3.3 $ 8.00 $1,149,984
SDG&E Parcel 7.41 $ 2.00 $645,559
MmB Parcel 2.44 $ 2.00 $212.573
Total $7,813.792
Cash Balance to BFG at Closing $8.653.721
I Acreage and resulting purchase prices subject
aceordance wilh Section 5.2.
post osing adjustmenl based upon verified parcel sizes, in
2 Port is also depositing inlO escrow $675,63910
and/or disbulSed purSWllt to Section 3.6.3.
app ed loward Transfer Activities pursuant 10 Section 3.6.1
3 This figure is based upon (i) a valuation of$8.0
37.58...= parcel size, subjeCllo post Closing alij
the Agency and Rados Parcels; and (iii) an i
per uare fool for the BFG Propeny based upon an estimated
wider Section 5.2; (ii) a paving allowance of $871,636 for
buyd wn of S2,500,000.
4 The price to be paid by BFG for Port Pam:l 2l: based
parcel, equal 10 3.30 acres.
1al7,1lXD:ltS 172<tOS_OO 1
n the current estimate of the net usable acres of the
.1 8-132
Ex ibit E
(ref ere ced i Section 2.23)
over Areas
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AONltiISTRATlV[ orntES - ONE -smln' WOOO STRUCT\lRf
ornCES ..,.,0 C,I,f'"(T(RlA - TWO-SlOItr SlVCCO STRUCT\JfI€
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INSPECTION FAClUTY _ QNE:_STOR'1 U(l~ ...,0 COfCRETE STAUCTlJR't:
TRI,NSPORTAflON f,l(;IUTY - Of'€-'S1ORY '-I[,Hl STRlJCnJR[
PROOUCTIQN rAOUTY - LPRGE ONE-STORY BLOCK SJRllCT\JRE
IRAHSPOR'TAnQN OFfICE - ONE-sr~y BLOC/( SmUCTURt:
GL.W10 SH.f.O< - SlUll ONE-STtlR'l' UITAl STJlUCruRE
orner fACILIT't lL'SlD TO THE C11Y Of DtUlA VlSTA
ONE STORY u(TAl STRUCTURE
PRQOUCnON OCIUTY - ONE STOlI'I' STEEL RlelD FftWlI: STRl.ICThRE
a\J.AlJ1'Y A!iSlJR,I.hC( F}rClurt - otiE-STOffY WOOD SlRUCME
GAIIAGE - OtiC-STOOl' I..lLTAL. 5IJUCl1.JR[
SAlVAGE YARD Offlc( - TR..qER
TRAN$POIH,I,TlOtl !HOP - ONE. srORr ...rfAl. SlRUCTV~E
WAREHOUSE - lNfGE ONE-sn:m CONCRrn TILT-UP STRUCTURE
WAA(HOUSE _ ~r.e: ONE-STORY COflCREIT TltJ-UP smUCT\JR(
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PROPOSED F1)TURE EXTENSION OF
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(CLASS 2 COLLECTOR)
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I) The blacked-out area marked on t e att ched map of this Exhibit H is the Easement
Are<!. The map is not to scale.
2) The size of the Easement Area 5 all n t exceed 1,500 square feet, without BFG's
prior approval.
3) City/Agency and BFG shall meet d co fer prior to BFG's development of the Rados
Parcel, or City! Agency's instaIlati n of an "entry statement" in the Easement Area.
The panies shall use best effons to insur design and architectural compatibility among
the entry statement and parcel dev lopm n1.
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AMENDMENT TO RELOCA nON AGREEMENT
THIS AMENDMENT TO RELOCATION AGREEMENT (hereinafter referred to
as "Amendment'') is made and entered into effective this 1st day of November, 1999, by and
among the CITY OF CHULA VISTA, a municipal corporation ("City''), REDEVELOPMENT
AGENCY OF THE CITY OF CHULA VISTA, a redevelopment agency formed pursuant to
Health and Safety Code 99 33000 et seq. ("Agency''), SA...'\! DIEGO UNIFIED PORT
DISTRICT, a Port District formed pursuant to Harbors and Navigations Code App. 1, 99 1 et
seq. (hereinafter referred to as "Port'') and ROHR, INC., operating as BFGoodrich Aerospace
Aerostructures Group, a Delaware corporation and wholly owned subsidiary of The BFGoodrich
Company (hereinafter referred to as "BFG''). All references in this Amendment to
"City/Agency" shall refer collectively to City and Agency. City, Agency, Port and BFG are
from time to time hereinafter referred to individually as a "party" and collectively as the
ljJarties. "
A. BFG, Port and City/Agency have entered into that certain Relocation
Agreement dated July 13, 1999 (the "Relocation Agreement'').
below.
B. The parties now wish to amend the Relocation Agreement as set forth
NOW, THEREFORE, the parties agree as follows:
1. All references in the text and captions of Section 7.3. 1 (g)(3) and (4) to "$7
Million" are changed to "$12 Million."
2. Section 7.2.]2 is amended by deleting the second sentence and replacing it
with the following: "Permanent dewatering activities shall not be permitted in connection with
the development of the South Campus.n
3. The following is added as new Section 7.2.15:
"7.2.15 Onsite Incineration. Onsite incineration shall not be permitted
in connection with South Campus Environmental Remediation Activities."
4. The following is added to the end of Section 7.5.1(c)(2):
"Responsive compliance with agency directives shall be required,
provided that this shall in no way alter or diminish any of BFG's 'or the
Pon's tights under this Agreement or under law."
5. Except as expressly amended hereby, the Relocation Agreement shall
remain unmodified and in full force and effect. As of the effective date of this Amendment, the
term "Relocation Agreement" shall mean the Relocation Agreement as amended by this
Amendment.
301216S9,1/14230-003Q
8-141
....-.....----.. --.-.---..- "--'--
6. This Amendment has been drafted through a joint effort of the parties and
their counsel and no provision hereof shall be construed in favor of or against any of the parties
by virtue of any rule of construction in favor of the non-drafting party.
6. This Amendment constitutes the parties' entire agreement and
understanding with respect to all matters referred to in this Amendment. There are no
representations, agreements, understandings or covenants among the parties relating to the
subject matter of this Amendment except as specifically set forth in this Amendment. This
Amendment integrates all of the ;erms. and conditions mentioned herein or incidental hereto, and
supersedes any and all prior versions or drafts of this Amendment and all discussions and
negotiations preceding it. No amendment or modification of this Amendment shall be effective
unless expressly set forth in writing and executed by the parties. This Amendment may be
executed in counterparts.
IN WITNESS WHEREOF, this Amendment has been executed by the parties as
of the day and year first above written.
Port:
SAN DIEGO UNIFIED PORT DISTRICT
~~~~fl{l-
Its:
City:
CITY OF CHULA VISTA, a municipal corporation
By:
Mu//i-< .MnZ;;
Mayor
Redevelopment Agency:
REDEVELOPMENT AGENCY OF THE CITY OF
CHULA VISTA, a redevelopment agency
By:
~~
Chair
BFG:
ROHR, INC., operating as BFGOODRICH
AEROSPACE AEROSTRUCTURES GROUP, a
Delaware corporation and wholly owned subsidiary
of THE BFGOODRlCH COMPANY
By:
Name:
Its:
't;.,~
G.A.Iolt.~,",
P.u ~;1'lbA.r
30121689.1
2
8-142
APPROVED AS TO FORM:
~iLnag
3012'6139.1
3
8-143 .
COUNCIL RESOLUTION NO.
AGENCY RESOLUTION NO.
JOINT RESOLUTION OF THE CITY COUNCIL AND THE
REDEVELOPMENT AGENCY OF THE CITY OF CHULA
VISTA APPROVING THE SECOND AMENDMENT TO THE
RELOCATION AGREEMENT BY AND AMONG THE CITY OF
CHULA VISTA, THE REDEVELOPMENT AGENCY OF THE
CITY OF CHULA VISTA, THE SAN DIEGO UNIFIED PORT
DISTRlCT AND ROHR, INC., OPERATING AS GOODRICH
AEROSTRUCTURES, AND AUTHORIZING THE CITY
MANAGER/EXECUTIVE DIRECTOR TO EXECUTE THE
SECOND AMENDMENT TO THE RELOCATION AGREEMENT
ON BEHALF OF THE CITY AND THE REDEVELOPMENT
AGENCY
WHEREAS, the City of Chula Vista, a municipal corporation ("City"),
Redevelopment Agency of the City of Chula Vista, a redevelopment agency formed
pursuant to Health and Safety Code SS 33000 et seq. ("Agency"), San Diego Unified Port
District, a Port District formed pursuant to Harbors and Navigations Code App. I, SS I et
seq. (hereinafter referred to as "Port") and ROHR, Inc., operating as Goodrich
Aerostructures, a Delaware corporation and wholly owned subsidiary of The Goodrich
Corporation (hereinafter referred to as "BFG" or "Goodrich") (collectively "the Parties")
have entered into a certain Relocation Agreement, dated July 13, 1999, and the first
Amendment to Relocation Agreement, dated November I, 1999 (collectively, the
"Relocation Agreement"); and
WHEREAS, the purpose of the Relocation Agreement was, among other things,
to facilitate the redevelopment of the South Campus of Goodrich on the Chula Vista
Bayfront in a manner consistent with the Industrial Business Park designation contained
in the Port's Master Plan; and
WHEREAS, in 2002, Port, City and Agency joined together to create a master
plan for the approximately 556-acre Chula Vista Bayfront located in the City on the
southeastern edge of San Diego Bay, surrounding the new Goodrich campus; and
WHEREAS, said master plan is commonly known as the Chula Vista Bayfront
Master Plan ("CVBMP") and Port Master Plan Amendment ("PMP A"); and
WHEREAS, the CVBMP and PMPA are the subject of the Revised Draft
Environmental hnpact Report (UPD # 83356-EIR-658; SCH # 2005081077) ("DEIR");
and
WHEREAS, the Port and City/Agency are the Lead Agency and the Responsible
Agencies, respectively, as those terms are detined in California Public Resources Code
SS 21000 et seq.; and
8-144
WHEREAS, a component of the CVBMP may include a proposed exchange of
land owned by the Port commonly known as Parcels HP-5, H-13, H-14 and H-15; and
WHEREAS, as described in the DEIR, a portion of Parcels HP-5, H-13 and H-14
are designated for residential use consisting of up to 1,500 multi-family units; and
WHEREAS, Goodrich has expressed its opposition in principle to the CVBMP or
any other land use designation that may have the potential to create incompatibilities
between residential development and Goodrich's manufacturing and related operations,
and inconsistencies between the proposed residential development and provisions of the
Relocation Agreement; and
WHEREAS, the parties now wish to amend the Relocation Agreement for the
purpose of addressing, among other things, Goodrich's opposition to the CVBMP and
any other land use designation that may have the potential to create incompatibilities with
Goodrich's manufacturing and related operations.
NOW THEREFORE BE IT RESOLVED, that the City Council and
Redevelopment Agency of the City of Chula Vista do hereby approve the Second
Amendment to the Relocation Agreement and hereby authorize the City
Manager/Executive Director to execute the same.
Presented by
Approved as to form by
Gary albe . , A C , PE
Deputy City Manager/Director of
Development Services
Bart Mie
p~ City Attorney
8-145