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HomeMy WebLinkAbout2005 12-13 CC JT AGENDA PKTFreterg Shaping tire Future Community Development Commission of National City AGENDA JOINT MEETING ADJOURNED REGULAR MEETING OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AND REGULAR MEETING OF THE COMMUNITY DEVELOPMENT COMMISSION OF NATIONAL CITY CITY COUNCIL CHAMBERS, CIVIC CENTER 1243 NATIONAL CITY BOULEVARD r December 13, 2005 at 6:00 p.m. OPEN TO THE PUBLIC Please complete a REQUEST TO SPEAK form prior to the commencement of the meeting, and submit it to the City Clerk. CITY COUNCIL MEMBERS ARE ALSO COMMISSIONERS OF THE COMMUNITY DEVELOPMENT COMMISSION (CDC) FOR THE CITY. THE CDC IS INVOLVED IN THE ADMINISTRATION OF HOUSING, REDEVELOPMENT, NUTRITION, AND ECONOMIC DEVELOPMENT PROGRAMS. FUNDING FOR THE CDC COMES MAINLY FROM TAX INCREMENT PROCEEDS AND GRANTS FROM THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (HUD). THE PUBLIC IS WELCOME AT ALL MEETINGS AND MAY CALL (619) 336-4250 IF THERE ARE ANY QUESTIONS REGARDING THIS AGENDA OR THE COMMUNITY DEVELOPMENT COMMISSION. UPON REQUEST, THIS AGENDA CAN BE MADE AVAILABLE IN APPROPRIATE ALTERNATIVE FORMATS TO PERSONS WITH A DISABILITY IN COMPUANCE WITH THE AMERICANS WITH DISABILITIES ACT. PLEASE CONTACT THE CITY CLERK'S OFFICE AT (619) 336-4228, TO REQUEST A DISABILITY -RELATED MODIFICATION OR ACCOMMODATION. NOTIFICATION 24 HOURS PRIOR TO THE MEETING WILL ENABLE THE CITY TO MAKE REASONABLE ARRANGEMENTS TO ENSURE ACCESSIBILITY TO THIS MEETING. COPIES OF COMMUNITY DEVELOPMENT COMMISSION MEETING AGENDAS AND MINUTES MAY BE OBTAINED THROUGH OUR WEBSITE AT: www,ci,national-clN.ca.us City of National City PUBLIC ORAL COMMUNICATIONS (three -minute time limit) 1. RESOLUTION: APPROVING A MEMORANDUM OF UNDERSTANDING BETWEEN METROPOLITAN TRANSIT SYSTEM, SAN DIEGO AND ARIZONA EASTERN RAILWAY COMPANY, CITY OF NATIONAL CITY AND NATIONAL CITY COMMUNITY DEVELOPMENT COMMISSION AND AUTHORIZING THE MAYOR TO EXECUTE THE AGREEMENT 1 Community Development Commission APPROVAL OF MINUTES Adjourned Regular Meeting of June 14, 2005 Regular Meeting of November 22, 2005 PUBLIC ORAL COMMUNICATIONS (three -minute time limit) CONSENT: 2. RATIFICATIONS: EXPENDITURES FOR THE PERIOD OF 11/11/05 THROUGH 11/30/05 OF $643,909.04 PUBLIC HEARINGS: 3. PUBLIC HEARING AND RESOLUTION NO. 2005-105: APPROVING NATIONAL CITY DOWNTOWN SPECIFIC PLAN CONSISTENCY REVIEW (DSP-2005-4) FOR A MIXED -USE DEVELOPMENT PROJECT ("PARK VILLAGE") LOCATED AT 1010, 1018, 1040 NATIONAL CITY BOULEVARD, 40 WEST PLAZA BOULEVARD, 25 WEST 11TH STREET, AND 1031 ROOSEVELT AVENUE (APN 555-113-04, 05, 08, 11, 12, 13) SUBJECT TO CONDITIONS OF APPROVAL AND BASED ON FINDINGS OF FACT. APPLICANT: NATIONAL CITY HOUSING PARTNERS, LLC. 4. PUBLIC HEARING AND RESOLUTION NO. 2005-107: APPROVING NATIONAL CITY DOWNTOWN SPECIFIC PLAN CONSISTENCY REVIEW (DSP-2005-2) FOR A MIXED -USE DEVELOPMENT PROJECT ("HARBOR VIEW") LOCATED AT 404 EAST 8TH STREET, 419 EAST 9TH STREET, AND 829 D AVENUE (APN 556-493-01, 02, 03, 05) SUBJECT TO CONDITIONS OF APPROVAL AND BASED ON FINDINGS OF FACT. APPLICANT: GULF UNLIMITED CORPORATION 5. PUBLIC HEARING AND RESOLUTION NO. 2005-110: PUBLIC HEARING OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY TO CONSIDER PUBLIC NECESSITY IN CONJUNCTION WITH THE ACQUISTION OF REAL PROPERTY LOCATED AT 25 WEST ELEVENTH STREET, OWNED BY PAUL R. BROCK AND A RESOLUTION OF NECESSITY OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY TO ACQUIRE REAL PROPERTY LOCATED AT 25 WEST ELEVENTH STREET, OWNED BY PAUL R. BROCK, BY EMINENT DOMAIN 6. PUBLIC HEARING AND RESOLUTION NO. 2005-111: PUBLIC HEARING OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY TO CONSIDER PUBLIC NECESSITY IN CONJUNCTION WITH THE ACQUISTION OF REAL PROPERTY LOCATED AT 1031 ROOSEVELT AVENUE, OWNED BY HENSCHEL TRUST AND A RESOLUTION OF NECESSITY OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL 2 CITY TO ACQUIRE REAL PROPERTY LOCATED AT 1031 ROOSEVELT AVENUE, OWNED BY HENSCHEL TRUST, BY EMINENT DOMAIN 7. PUBLIC HEARING AND RESOLUTION NO. 2005-112: PUBLIC HEARING OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY TO CONSIDER PUBLIC NECESSITY IN CONJUNCTION WITH THE ACQUISTION OF REAL PROPERTY LOCATED AT 1040 NATIONAL CITY BOULEVARD, OWNED BY YOUNG SOOK KIM AND A RESOLUTION OF NECESSITY OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY TO ACQUIRE REAL PROPERTY LOCATED AT 1040 NATIONAL CITY BOULEVARD, OWNED BY YOUNG SOOK KIM, BY EMINENT DOMAIN NON -CONSENT: 8. RESOLUTION NO. 2005-113: APPROVING THE FIRST AMENDMENT TO THE OWNER PARTICIPATION AGREEMENT BY AND BETWEEN THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY AND BEAUCHAMP FAMILY TRUST (AARB, LLC) FOR THE PARK VILLAGE PROJECT AND AUTHORIZING THE CHAIRMAN TO EXECUTE SAID AMENDMENT 9. RESOLUTION NO. 2005-114: APPROVING AN AGREEMENT WITH RICK ENGINEERING COMPANY FOR ENGINEERING SERVICES RELATED TO WIDENING AND NECESSARY IMPROVEMENTS TO BAY MARINA DRIVE IN THE NATIONAL CITY HARBOR DISTRICT AND AUTHORIZING THE CHAIRMAN TO EXECUTE THE AGREEMENT 10.RESOLUTION NO. 2005-115: APPROVING AN AGREEMENT WITH HARRIS & ASSOCIATES TO PROVIDE AS -NEEDED CIVIL ENGINEERING SERVICES AND AUTHORIZING THE CHAIRMAN TO EXECUTE THE AGREEMENT 11.RESOLUTION NO. 2005-116: APPROVING A MEMORANDUM OF UNDERSTANDING BETWEEN THE METROPOLITAN TRANSIT SYSTEM, THE SAN DIEGO AND ARIZONA EASTERN RAILWAY COMPANY, THE CITY OF NATIONAL CITY AND THE CITY COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY AND AUTHORIZING THE CHAIRMAN TO EXECUTE THE MEMORANDUM OF UNDERSTANDING 12.REPORT: STATUS REPORT ON THE AD HOC AFFORDABLE HOUSING TASK FORCE AND DIRECT COMMUNITY DEVELOPMENT COMMISSION STAFF TO PROCEED TO WORK WITH THE NEWLY FORMED TASK FORCE TO ASSESS NATIONAL CITY'S EXISTING AFFORDABLE HOUSING POLICIES AND TO FORMULATE RECOMMENDATIONS FOR HOUSING POLICIES THAT INCREASE, IMPROVE AND PRESERVE NATIONAL CITY'S SUPPLY OF AFFORDABLE HOUSING 13.RESOLUTION NO. 2005-117: APPROVING THE SECOND AMENDMENT TO THE AGREEMENT BY AND BETWEEN THE COMMUNITY DEVELOPMENT 3 COMMISSION OF THE CITY OF NATIONAL CITY AND UNIDEV, LLC AND AUTHORIZING THE CHAIRMAN TO EXECUTE SAID AMENDMENT 14.RESOLUTION NO. 2005-118: AUTHORIZING THE CHAIRMAN TO ENTER INTO AN AGREEMENT WITH CORNERSTONE BUILDING GROUP ON AN AS -NEEDED BASIS FOR CONSTRUCTION MANAGEMENT SERVICES FOR THE PLAYHOUSE ON PLAZA 15.REPORT: PROPOSED 2005 AMENDMENT TO THE NATIONAL CITY REDEVELOPMENT PLAN CDC ATTORNEY: EXECUTIVE DIRECTOR: CHAIRMAN/COMMISSIONERS: ADJOURNMENT: To the regular meeting of the CDC on January 9, 2006 at 6:00 p.m. in the Council Chambers at City Hall 4 City of National City, California COUNCIL AGENDA STATEMENT MEETING DATE December 13.2005 AGENDA ITEM NO. 1 ITEM TITLE Resolution — Approving a Memorandum of Understanding between Metropolitan Transit System, San Diego and Arizona Eastern Railway Company, the City of National City and the Community Development Commission of the City of National City and authorizing the Mayor to execute the Agreement. PREPARED BY Patricia Beard Redevelopment Projects Manager DEPARTMENT Community Development Commission EXPLANATION The development of the projects collectively known as Marina Gateway — including the redevelopment of Motivational Systems, Incorporated, MRW Group Hotel and Commercial Project and Harrison Avenue condominiums by the Olson Company require access to and removal of certain unused railroad tracks in the Harbor District of the National City Redevelopment Project. Since the approval of the Disposition and Development Agreements for the projects in 2004, Community Development Commission staff has been working with Metropolitan Transit System ("MTS") and San Diego and Arizona Eastern ("SDAE") to reach an agreement that would allow the CDC to complete its obligations egarding the railroad tracks so redevelopment can occur. The attached Memorandum of Understanding ("MOU"), approved earlier this year by MTS and SDAE, would allow the projects to go forward as desired. Environmental Review Categorically exempt from CEQA. Class I Section 15301 (existing facilities). CEQA is not applicable to this action. Financial Statement The City will acquire easements previously held by MTS and SDAE if the MOU is implemented Account No STAFF RECOMMENDATION Adopt the resolution approving the MOU with MTS, SDAE, City of National City and National City CDC BOARD I COMMISSION RECOMMENDATION Not applicable to this action ATTACHMENTS Background report 2. Proposed Notice of Exemption 3. Memorandum of Understanding 4. Resolution Resolution No. e_9M /O1Pfl BACKGROUND REPORT On December 17, 2002, the Community Development Commission approved a Disposition and Development Agreement with Robert Young for the consolidation and redevelopment of Motivational Systems on Cleveland Avenue between 20`h. and 23"s Streets. The Disposition and Development Agreement requires the removal of unused railroad spur tracks owned by San Diego Arizona Eastern Railway Company. On March 23, 2004 the Community Development Commission approved a Disposition and Development Agreement with the Olson Company for a redevelopment project on 1.26 acres at 835 Bay Marina Drive and intersected by unused railroad spur tracks of the San Diego Arizona Eastern Railway Company. This Disposition and Development Agreement requires the quit claim of the land occupied by the tracks to the Olson Company for inclusion in the project. On May 25, 2004 the Community Development Commission approved a Disposition and Development Agreement with MRW Group, Inc. to develop a hotel and commercial project on 6.32 acres located at the southeast corner of Bay Marina Drive and Harrison Avenue. The project site includes an inactive railroad spur and an active but unused line owned by the San Diego Arizona Eastern Railway Company. The project requires the removal of the abandoned railroad spur and access across the active but unused rail line within the project site. Since the approval of the Disposition and Development Agreements, Community Development Commission staff has been working with Metropolitan Transit System and San Diego Arizona Eastern Railway Company to reach an agreement that would allow the Community Development Commission to complete its obligations so that redevelopment can occur. The attached Memorandum of Understanding, approved earlier this year by Metropolitan Transit System and San Diego Arizona Eastern Railway Company, would allow the projects to go forward as desired. The primary points of the Memorandum of Understanding would allow the Community Development Commission, at its expense, to remove the railroad spur tracks from within redevelopment project sites in the National City Harbor District. It would also allow the Marina Gateway Hotel and Commercial project to utilize an active but unused track easement as a drive aisle for the project, and allow an at -grade crossing of this unused track for project access. The Community Development Commission would also be required to install new tracks connecting an San Diego Arizona Eastern Railway Company line crossing Bay Marina Drive at Harrison Ave, which would be completed with the upcoming improvements to Bay Marina Drive. The agreement sets forth that the Community Development Commission will install tracks, at the option of the railroad, connecting other existing railway lines north and south of Bay Marina Drive. The City of National City will acquire easements as a result of this Agreement; therefore a City Council action to approve the Memorandum of Understanding is needed. The attached exhibits to the Memorandum of Understanding are maps showing the actions anticipated with approval. ATTACHMENT 1 NOTICE OF EXEMPTION TO: County Clerk County of San Diego P.O. Box 1750 1600 Pacific Highway, Room 260 San Diego, CA 92112 Project Title: MOU between Metropolitan Transit System, San Diego and Arizona Eastern Railway Company, City of National City and National City Community Development Commission Project Location: Railroad tracks/easements in the vicinity of Bay Marina Drive, Cleveland Avenue and Harrison Avenue in National City, California. Contact Person: Patricia Beard Telephone Number: 619-336-4250 Description of Nature, Purpose and Beneficiaries of Protect: MOU entailing transfer of ownership, creation of easements, removal of unused railroad tracks, provisions for future use and maintenance Applicant: Community Development Commission Telephone Number: 619-336-4250 140 East 12t St, Ste B National City CA 91950 Exempt Status: ❑ Statutory Exemption. (State type and Section No., if applicable) ® Categorical Exemption. Class 1 Section 15301 (Existing Facilities) ❑ Not a project as defined in Section 15332 of CEQA ® Not subject to CEQA (Sec. 15061b3) Reasons why project is exempt: Minor alteration and Removal of unused existing railroad tracks. This project is not located in or near any habitat or natural areas and is entirely located within public rights of way and previously urbanized, developed private property. Future railway operations will not be impaired by this project. There is no expansion of any use in this project. The project will have no foreseeable impacts on the environment, e.g. air quality, habitat, noise, traffic etc. Date: 12-13-2005 NAME Patricia W. Beard Title Redevelopment Projects Manager Attachment 2 RESOLUTION NO. 2005-XX A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY APPROVING A MEMORANDUM OF UNDERSTANDING BETWEEN METROPOLITAN TRANSIT SYSTEM, SAN DIEGO AND ARIZONA EASTERN RAILWAY COMPANY, CITY OF NATIONAL CITY AND NATIONAL CITY COMMUNITY DEVELOPMENT COMMISSION AND AUTHORIZING THE MAYOR TO EXECUTE THE AGREEMENT WHEREAS, the National City Community Development Commission has approved Disposition and Development Agreements with Robert Young, the Olson Company and MRW Group, Incorporated for the redevelopment projects collectively known as Marina Gateway within the National City Redevelopment Project; and, WHEREAS, the development projects collectively known as Marina Gateway require access to and vacation and removal of certain unused railroad tracks within the project sites; and, WHEREAS, Metropolitan Transit System and San Diego Arizona Eastern Railway Company have approved a Memorandum of Understanding to allow access to and the removal of certain railroad tracks by the Community Development Commission to facilitate the redevelopment project; and WHEREAS, said Memorandum of Understanding sets forth terms and conditions that are acceptable to the Community Development Commission; and WHEREAS, by implementing the terms and conditions of the MOU, the City of National City will accept easements previously held by the Metropolitan Transit System and San Diego Arizona Eastern Railway Company; NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of National City hereby approves the Memorandum of Understanding between Metropolitan Transit System, San Diego and Arizona Eastern Railway Company, City of National City and National City Community Development Commission; and BE IT FURTHERED RESOLVED, that the City Council of the City of National City authorizes the Mayor to execute the Agreement. PASSED, APPROVED AND ADOPTED this 13th day of December, 2005. Nick Inzunza, Mayor ATTEST: Michael Dalla, City Clerk -2- STATE OF CALIFORNIA COUNTY OF SAN DIEGO CITY OF NATIONAL CITY I, Michael Dalla, City Clerk for the City of National City, do hereby certify that the foregoing Resolution No. 2005-xx was adopted at a joint meeting of the Community Development Commission of National City and the City Council of the City of National City held on December 13, 2005, by the following vote: AYES: NOES: ABSENT: ABSTAIN: Michael Dalla, City Clerk -3- 1255 Imperial Avenue, Suite 1000 San Diego, CA 92101-7490 (619) 231-1466 • FAX (619) 234-3407 tW/WIT .1.11 W Metropolitan Transit System MTS Doc. No. S200-06-291 (PC 50771) MEMORANDUM OF UNDERSTANDING BETWEEN THE SAN DIEGO METROPOLITAN TRANSIT SYSTEM, SAN DIEGO AND ARIZONA EASTERN RAILROAD, CITY OF NATIONAL CITY, AND COMMUNITY DEVELOPMENT COMMISSION OF THE CiTY OF NATIONAL CITY This Memorandum of Understanding (MOU) is made and entered into by and between the San Diego Metropolitan Transit System (MTS), a California public agency established under the Public Utilities Code, the San Diego and Arizona Eastern (SD&AE) Railway Company, a public benefit corporation whose sole member is MTS, the City of National City (City), and the Community Development Commission of the City of National City (CDC). WHEREAS, The City and the CDC are a municipal corporation and a community development commission respectively organized and existing under the laws of the State of California. The purpose of this MOU is to document the parties' understanding and responsibilities with respect to the redevelopment of properties in National City in the areas shown on Exhibit A attached (the Redevelopment Area) hereto while at the same time providing for current and future rail service through the Redevelopment Area for MTS and the SD&AE. 1. Except in and adjacent to the hotel site area (described as 'Parcel 3 Site Hotel Area" and 'Parcel 4 Site Hotel Area" on Exhibit A attached hereto), neither MTS nor SD&AE (for convenience, also hereinafter referred to as the Railroad) can find evidence of property ownership interests in the areas covered by the terms of this agreement. If, in the future, it is discovered that the Railroad has either fee title or an easement in any of the areas covered by this agreement, CDC shall pay the Railroad for the value of the property and the Railroad agrees to quitclaim any such interest to the CDC, as follows: a. For fee, the value of $12.00 per square foot. b. For an easement, the value of $6.00 per square foot. 2. All new track work, signals, crossing improvements, and demolition In areas owned or controlled by the Railroad, or which will be owned or controlled by Railroad, shall be done subject to plans and specifications approved by Railroad, by a contractor approved by Railroad and subject to the supervision of Railroad, all at the CDC's expense provided that the CDC shall have approved the cost of such work and demolition in advance of it being performed. Minimum design standards for all new track construction shall be Federal Railroad Administration Class 2, using 115-pound rail, at a minimum design speed of 25 miles per hour. 3. The Railroad shall be responsible for the maintenance of all new track and appurtenances at any at -grade crossings constructed pursuant to the terms of this MOU. As a condition precedent to the construction of any at -grade crossing, including the crossing at Bay Marina Drive and the private driveway south of the Hotel site (if subject to the California Public Utilities Commission's [PUC'sj jurisdiction), the City will apply to the PUC for a permit to construct an at -grade crossing at these locations. If the permit is issued, any safety Attachment 3 Mtoopoatan Randt System (MIS) is comprised of the Metropolitan Tan,it Development Bond (MTDB), a California pubic agency. San Diego Transit Whs.. and San Diego Toney, in codpera9dn with Chula Vista Trandt and Mdiwml City Transit. MTS is the taxicab aceninstrator far eight cities. MICE is owner of the San Dave and Mzcna Easton Railway Canpny. MTDB member agent -its i ntn,de. City of Chula Vista. City of Coronado. City of El Caton. City of i npenal Beach. City of la Mesa. City of Lemon Grove, City of National City. City of Poway, City of San Diego, City of Santee. and ,M County of San Diego. improvements required by the PUC, including, but not limited to, concrete crossing material, flashers, and warning devices, shall be installed pursuant to the terms of paragraph 2. a. The Railroad agrees to cooperate with the City in the application process, including the execution of a license, cost, and maintenance agreement between the City and the Railroad, which will address, among other things, the maintenance obligations of each party at the proposed crossing with the understanding that the Railroad will be responsible for maintenance of the rail, flashers, and warning devices (at City's expense) and the City will be responsible for maintenance of the roadway improvements. 4. The Railroad shall have no control over demolition of track in areas not owned or controlled by the Railroad. 5. Any arrangement entered into between the Port of San Diego, Burlington Northern Santa Fe (BNSF) Company, and the City shall not preclude Railroad from rail access within Bay Marina Drive to the terminal area along Harrison Avenue/Marina Way and the Coronado Railroad right-of-way. 6. Harrison Street/Ailey a. CDC shall remove the rail tracks in the alley between the "Motivational Systems. Inc. (MSI)' parcel and -MSi Parking Lot' parcel, and Parcel 1B and 1C ('Olson"), identified as "6.a. CDC to Remove Rail Tracks; all as shown on Exhibit A attached hereto. The removal will include the rail switch and appurtenances on the south side of Bay Marina Drive to the terminus of the tracks approximately 400 feet north of 23rd Street b. CDC, at the request of the Railroad and pursuant to plans developed by the Railroad, will install tracks and appurtenances across Bay Marina Drive to connect the existing tracks on the north and south side of Bay Marina Drive, identified as "6.b. CDC to Connect to Existing Tracks,' as shown on Exhibit A, subject to the terms of paragraphs 2 and 3. (1) At the option of the Railroad, in lieu of the terms of paragraph 1.b. above, the City agrees to cooperate with the San Diego Freight Rail Advisory Council (the 'Council') or other public agency as necessary in the project development and construction of the connection between the SD&AE main lines and the BNSF main lines across Marina Way in the general area between Bay Marina Drive and the Salt Marsh (as shown on Exhibit B attached hereto). Cooperation shall mean granting of right-of-way necessary from the City or CDC at no cost to the Council and affirmative support of the Council's at -grade crossing permit application from the PUC. c. The CDC will remove the tracks In Harrison Street north of 23rd Street beginning at the existing switch, which connects the track to the BNSF's main track, identified as *6.c. Remove Tracks North of 23rd Street Beginning at the Switch" as shown on Exhibit A. -2- 7. Hotel Site Area a. SD&AE will grant to the CDC a nonexclusive license for parking, drainage, access, and related purposes over the area identified as '7.a. Parking Area-SD&AE to Grant Parking License to CDC on 'Parcel 4 Site Hotel Area on Exhibit A. The license will provide that no parking will be allowed withinl0 feet of the centerline of the existing track and will further provide the CDC with the right to sublicense to the developer of the hotel site with prior approval of the Railroad. Any such license shall be revocable by the SD&AE upon 30 days' notice to the CDC. b. The CDC will install a private driveway at -grade across the tracks of Railroad at the location identified as "7.b. Storm Drain and Driveway License" on Exhibit A, subject to the terms of paragraphs 2 and 3. c. The CDC will install a storm drain below the tracks of Railroad at the location identified as 7.b. Storm Drain and Driveway License' on Exhibit A, subject to the terms of paragraphs 7.d., below. d. Prlor to development of any public improvements or off -site improvements related to development in the hotel site area, CDC shall prepare detailed plans for Railroad's review and approval, which approval shall ony pertain to improvements on the Railroad's property. All pipeline improvements under Railroad's tracks shall conform to American Railway Engineering and Maintenance of Way Association -recommended practices. e. Plats and legal descriptions for the easements described above shall be prepared by the City/CDC, subject to the review and approval of the Railroad. f. The value of the easement areas described in this paragraph and granted to the City and the CDC shall be $10.00 per square foot and shall be paid to the SD&AE by the CDC/City or the hotel developer prior to development of the hotel site. 8. Retaining Wall Easement SD&AE will grant an easement to the City for the existing retaining wall adjacent to Paradise Marsh, shown as 'Retaining Wall Easement' on Exhibit B. 9. Harbor Drive Rail Crossing City shall remove paving to top of rail elevation if requested by SD&AE if and when the rail lines crossing Harbor Drive are put back into service upon 30 days' written notice. City shall complete the removal of the paving no later than 90 days following the 30 days' written notice. Failure to remove the paving within this time period will result in the imposition of liquidated damages In the amount of $50 for every day the project is not completed within the aforementioned time schedule. The terms of paragraph 4.b are incorporated herein. -3- 10. This MOU represents the general agreement between the parties with respect to the Redevelopment Area. The parties agree to execute more specific agreements in the future as required to carry out the terms and conditions of this MOU. the costs of which are to be paid by the CDC. IN WITNESS WHEREOF. the parties hereto have caused this Memorandum of Understanding to be executed by their respective duly authorized representatives on this day of ,200 METROPOLITAN TRANSIT SYSTEM CITY OF NATIONAL CITY Chief Executive Officer Title: Approved as to form: COMMUNITY DEVELOPMENT COMMISSION Tiffany MTS General C nsel SAN DIEGO AND ARIZONA EASTERN RAILWAY COMPANY By: Title: SChamp/MOU SDAE.S200-06-291.CWILU 10/16/05 Attachments: Exhibit A - Redevelopment Area Exhibit B — MOU Area By: Title: -4- cdcnc— Iogo.gif L EXHIBIT A REDEVELOPMENT AREA S200-06-291 EXHIBIT B OU AREA w.... �.. sr os ...... Caomi Owlywrl Cambia. Ylymel CIS S200-06-291 -------- Not to Scale 1 RESOLUTION NO. 2005 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE A MEMORANDUM OF UNDERSTANDING BETWEEN METROPOLITAN TRANSIT SYSTEM, SAN DIEGO AND ARIZONA EASTERN RAILWAY COMPANY, THE CITY OF NATIONAL CITY, AND THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY WHEREAS, the Community Development Commission of the City of National City ("CDC") has approved Disposition and Development Agreements with Robert Young, the Olson Company and MRW Group, Incorporated for the redevelopment projects collectively known as Marina Gateway within the National City Redevelopment Project; and WHEREAS, the development projects collectively known as Marina Gateway require access to and vacation and removal of certain unused railroad tracks within the project sites; and WHEREAS, Metropolitan Transit System and San Diego Arizona Eastern Railway Company have approved a Memorandum of Understanding to allow access to and the removal of certain railroad tracks by the CDC to facilitate the redevelopment project; and WHEREAS, said Memorandum of Understanding sets forth terms and conditions that are acceptable to the CDC; and WHEREAS, by implementing the terms and conditions of the MOU, the City of National City will accept easements previously held by the Metropolitan Transit System and San Diego Arizona Eastern Railway Company. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of National City hereby authorizes the Mayor to execute the Memorandum of Understanding between Metropolitan Transit System, San Diego and Arizona Eastern Railway Company, the City of National City, and the Community Development Commission of the City of National City. Said Agreement is on file in the office of the City Clerk. PASSED and ADOPTED this 13th day of December, 2005. Nick Inzunza, Mayor ATTEST: APPROVED AS TO FORM: Michael Della, City Clerk George H. Eiser, Ill City Attorney ATTACHMENT 4 COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY December 13, 2005 AGENDA ITEM NO. 2 TO: CHAIRMAN AND BOARD MEMBERS (l FROM: BENJAMIN MARTINEZ, EXECUTIVE DIRECTOR VIA: JEANETTE LADRID PUTY RE�3TOR OF FINANCE AND ADMINISTRATION ��`;li�-J_ SUBJECT: RATIFICATIONS: EXPENDITURES FOR THE PERIOD OF 11/11/05 THROUGH 11/30/05 OF $643,909.04 Recommendation: Community Development Commission staff recommends that the Community Development Commission Board: RATIFY EXPENSES. Fiscal Impact: Total expenditures for the period of 11/11/05 THROUGH 11/30/05 amount to $643,909.04. Environmental Impact: Not Applicable. Background: See attached report. Community Development Commission Agenda Item No. 2 December 13, 2005 Page 1 of 1 Payee CDC AHLEE BACKFLOW SERVICE BATIZ.COM BATIZ.COM BATIZ.COM BENNE T PEJI DESIGN CAUFORNIA REDEVELOPMENT ASSOC CHRISTENSEN SCHWERDTFEGER CITY OF NATIONAL CITY CITY OF NATIONAL CITY CITY OF NATIONAL CITY CITY OF NATIONAL. CITY CORPORATE EXPRESS INC COUNTY OF SAN DIEGO CIIMMING, ELIZABETH DANKA EDAW, INC. EDAW, INC. ENVIRONMENTAL BUSINESS SOLUTION ENVIRONMENTAL BUSINESS SOLUTION ESTRADA LAND PLANNING ESTRADA LAND PLANNING FEDERAL EXPRESS FLAG CRAFTERS FOLEY & LARDNER GRAPHIC SOLUTIONS IIARRIS & ASSOCIATES JOBS AVAILABLE INC KATZ OKITSU & ASSOCIATES MAYER REPROGRAPHICS. INC. MAYER REPROGRAPHICS, INC. MECKY MYERS & ASSOCIATES NAZARENO, ANGELA OPPER & VARCO LLP OVERLAND PACIFIC & CUTLER. INC PETTY CASH - CDC PIP PRINTING SAFDIE RABINES ARCHTrECTS SAN DIEGO CLIPPING SERVICE SAN DIEGO CLIPPING SERVICE SAN DIEGO DAILY TRANSCRIPT SAN DIEGO NEIGHBORHOOD NEWS SAN DIEGO PUBLISHING CO. SO. COUNTY ECONOMIC DEV COUNCIL STATE COMPENSATION INSURANCE STUTZ, ARTIANO, SHINOFF SWEETWATER AUTHORITY TETRA TECH EM INC. THE STAR NEWS THE STAR NEWS II. S. HEAL'THWORKS MEDICALGRP. UNIDEV U.C. UNION TRIBUNE UNION TRIBUNE CDBG CITY OF NATIONAL CITY VERONICA TAM & ASSOCIATES FOR MEETING OF DECEMBER 13, 2005 RATIFICATION OF EXPENDITURES FOR PERIOD: 11/11/05 • 11/30/05 Desert ' on REPAIR TO FIRE EXTINGUISHING SYSTEM WEBSITE-DISCOVERY PHASE WEBSITE DEVELOPMENT WEBSITE DEVELOPMENT STOREFRONT IMPROVEMENT FACADE ANNUAL CRA MEMBERSHIP PROFESSIONAL SERVICES -PARK VILLAS-OCT 2005 DONATION: PIZAZZ & JAZZ CONCERT CITY ATTORNEY SALARY- PPE 5/23, 6/6, 6/20/05 CITY COUNCIL. SALARY- PPE 5/23 - 6/20/05 CUSTODIAL SERVICES-JUL, AUG, SEPT & O005 OFFICE SUPPLIES STAFF SERVICES-2501 CLEVELAND AVE- 7/1/05 - 9/29/05 FRAME AWARD RENTAL LEASE FEES WESTSIDE SPECIFIC PLAN/9/9/05 WESTSIDE SPECIFIC PLAN PROFESSIONAL SERVICES-BEAUCHAMP - SEPT 2005 GENERAL CONSULTING SERVICES FOR AUG 2005 PROF SERVICES -HIGHLAND AVE STREETSCAPE/PHASE II HIGHLAND AVE STREETSCAPE IMPROVEMENTS EXPRESS MAIL FILIPINO VILLAGE HOLIDAY BANNERS SERVICES FEES THROUGH 9/30/05 SERVICES FOR AUGUST 2005 H & A PROJECT-OCT 2005 CONSTRUCTION MGR AD: 9/19/05, I0/03/05 DOWNTOWN SPEC PLAN PROFESSIONAL SERVICES -HIGHLAND AVE HIGHLAND AVE MEDIANS KEYSTONE TRAILER PARK -RELOCATION COSTS MILEAGE REIMB-LA. FILIPINO VILLAGE PROFESSIONAL SERVICES -PARK VILLAGE GENERAL & MISC SERVICES-OCT 2005 REPLENISHMENT OF PETTY CASH PRINTING OF BUSINESS CARDS NC AQUATIC CENTER-OCT 2005 CUPPING SERVICES-OCT 2005 CUPPING SERVICES-NOVEMBER 2005 PROPOSALS/BIDS-STREETSCAPE ADVERTISING NC BLVD STREETSCAPE ADVERTISING JULY-OCT OF FY 05/06 WORKERS' COMP - OCT 2005 PROFESSIONAL SERVICES UTILITY BILL-909 NC BLVD NC BLVD IMPROVEMENT-AUG 2005 ADVERTISEMENT -HIGHLAND AVE MEDIANS NC BLVD STREETSCAPE ADVERTISEMENT PHYSICAL EXAM-X. DEL. VALLE SF,PTEMBER 2005 ADVERTISING NC BLVD STREETSCAPE RENEWAL NEWSPAPER SUBSCRIPTION SUBTOTAL - CDC: CDBG REIMBURSEMENT FOR 4TH QTR FY 04-05 CAPER -SERVICES THROUGH COMPLETION SUBTOTAL - CDBG: Chk No Amount 15492 $735.71 15452 3,125.00 15460 538.74 15495 2.800.00 15453 7,225.00 15498 4,450.00 15463 3,072.11 15454 500.00 15489 33,979.61 15490 46,315.21 15491 9,375.00 15464 360.03 15465 690.00 15466 54.00 15455 2,151.02 15479 18,265.18 15500 8,669.75 15467 220.91 15480 238.88 15468 2,228.05 15481 53,975.09 15469 44.61 15501 4,594.94 15456 3,503.16 15470 3,430.30 15502 3,387.50 15457 422.28 15504 310.00 15471 1,254.05 15482 1,376.45 15483 15,062.50 15507 65.48 15472 8,066.13 15508 230.00 15484 188.21 15485 366.35 15511 3,905.46 15486 58.68 15512 51.96 15474 92.80 15513 445.88 15514 695.00 15517 9,336.28 15475 5,149.79 15476 980.50 15518 236.62 15520 9,840.00 15487 240.88 15521 169.13 15523 120.00 15488 33,244.61 15524 516.00 15525 180.00 $306,534.84 15478 5133,192.67 15477 5,500.00 $138,692.67 Payee NUTRITION AIRGAS - WEST AT SYSTEMS WEST, INC. CAUFORNIA BAKING CO. CENTRAL MEAT & PROVISION JOSEPH WEBB FOODS MCGUIRE DISTRIBUTION MISSION UNIFORM SERVICE PADRE JANITORIAL SUPPLIES. INC REEDS RESTAURANT EQUIP. SVC. SANCHE7., MANUEL SBC/MCI SLETTENGRF,N, INGRID SYSCO SAN DIEGO 2004 TAX ALLOCATION BONDS BAKER & TAYLOR BOOKS ON TAPE BRODART CO BRODART CO QUALITY BOOKS. INC THOMSON GALE Y_.r?vft5: HOUSING ASSISTANCE PAYMENTS CITY OF NATIONAL CITY CITY OF NATIONAL CITY CITY OF NATIONAL CITY CORPORATE. EXPRESS INC EQUIFAX CREDIT INFORMATION SERVICES NAN MCKAY AND ASSOCIATES. INC. NATIONAL CITY COLLABORATIVE NATIONAL CREDIT REPORTING SBC/MCI STATE COMPENSATION INSURANCE THE FAIR HOUSING COUNCIL OF XEROX CORPORATION PAYROLL FOR MEETING OF DECEMBER 13, 2005 RATIFICATION OF EXPENDITURES FOR PERIOD: 11/11/05. 11/30/05 Description CONSUMABLES-NUTRITION CENTER ARMORED TRUCK SERVICES FOOD -NUTRITION CENTER FOOD -NUTRITION CENTER FOOD/CONS-NUTRITION CENTER FOOD -NUTRITION CENTER LINEN -NUTRITION CENTER SUPPLIES -NUTRITION CENTER EQUIPMENT REPAIRS -NUTRITION CENTER MILEAGE REIMB FOR OCT 2005 FAX BILL -NU TRITION CENTER REIMB FOR HALLOWEEN CANDY FOOD/CONS-NUTRITION CENTER SUBTOTAL - NUTRITION: BOOKS -LIBRARY VIDEOS -LIBRARY BOOKS -LIBRARY BOOKS -LIBRARY BOOKS -LIBRARY BOOKS -LIBRARY SUBTOTAL - 2004 TAX ALLOCATION BONDS: TOTAL - GENERAL FUND: MANUAL PAYMENTS POLICE FEES FOR AUG 2005 CITY ATTORNEY SAL PPE 5/23, 6/6, 6/20/05 POLICE FEES-SEPT 05 S8 OFFICE SUPPLIES S8 APPLICANT/TENANT CREDIT REPORTS FSS MB REVISION FSS PRGM ADMINISTRATION-SEPT 05 S8 SEX OFFENDER REGISTRATION/BACKGRND CK FAX CHARGES FOR 10/12/05-11/12/05 WORKERS' COMP - OCT 2005 2005-2006 FIRST QUARTER -FAIR HOUSING COPIER/FAX LEASE WCP55.00T 05 TOTAL - SECTION 8: PPE 11/18/2005 TOTAL - ADMINISTRATIVE REVOLVING FUND: Chk No Amount 15493 $38.18 15494 710.60 15497 586.25 15499 3,561.07 15503 5,471.35 15505 899.40 15506 197.73 15509 1,915.93 15510 184.05 15458 $54.32 15515 237.20 15516 50.57 15519 4,937.01 $18,843,66 15459 $248.26 15461 3,025.80 15462 883.88 15496 431.84 15473 698.43 15522 538.11 10084 10087 10088 10085 10089 10094 10090 10091 10092 10086 10095 10093 $5,826.32 $469,897.49 $15,900.48 6.491.40 16,987.27 3,764.15 151.80 111.87 149.00 4,233.33 180.00 30.84 981.85 7,750.00 435.15 557,167.14 $116,844.41 $116,844.41 TOTAL OF ALL FUNDS: $643 .04 COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY December 13, 2005 AGENDA ITEM NO. 3 TO: CHAIRMAN AND BOARD MEMBERS (� FROM: BENJAMIN MARTINEZ, EXECUTIVE DIRECTOR SUBJECT: PUBLIC HEARING AND RESOLUTION NO. 2005-105: APPROVING NATIONAL CITY DOWNTOWN SPECIFIC PLAN CONSISTENCY REVIEW (DSP-2005-4) FOR A MIXED -USE DEVELOPMENT PROJECT ("PARK VILLAGE") LOCATED AT 1010, 1018, 1040 NATIONAL CITY BOULEVARD, 40 WEST PLAZA BOULEVARD, 25 WEST 11TH STREET, AND 1031 ROOSEVELT AVENUE (APN 555-113-04, 05, 08, 11, 12, 13) SUBJECT TO CONDITIONS OF APPROVAL AND BASED ON FINDINGS OF FACT. APPLICANT: NATIONAL CITY HOUSING PARTNERS, LLC Recommendation: Community Development Commission staff recommends that the Community Development Commission Board: ADOPT Resolution No. 2005-105 approving National City Downtown Specific Plan Consistency Review (DSP-2005-4) for a mixed -use development project ("Park Village") located at 1010, 1018, 1040 National City Boulevard, 40 West Plaza Boulevard, 25 West 11th Street, and 1031 Roosevelt Avenue (APN 555- 113-04, 05, 08, 11, 12, 13) subject to conditions of approval and based on findings of fact. Applicant: National City Housing Partners, LLC. Fiscal Impact: The subject property is located within the National City Redevelopment Project Area. Consequently, the development of the property would result in an increase in tax increment within the Project Area. The current assessed value of the subject property is approximately $1.2 million. The proposed project has an estimated value of approximately $136.5 million, which would result in over $940,000 in additional annual tax increment to the Community Development Commission. Over $80,000 in annual sales tax revenue could be anticipated based on the proposed commercial square footage. Development impact fees would result in over $270,000 in Community Development Commission Agenda Item No. 3 December 13, 2005 Page 1 of 4 permit fees for the residential component, and over $28,000 for the commercial component. Development impact fees are allocated to Parks and Recreation, Library, Fire/EMS, and Police facilities. In addition, the project is located in the Morgan Square Property Based Improvement District, and would be assessed an annual fee of $240 per residential unit (a total of over $54,000 annually), as well as fees for the commercial component of the project. Environmental Impact: The project, if approved based on the recommended findings, would be consistent with the adopted Downtown Specific Plan. Pursuant to the California Environmental Quality Act, a Program Environmental Impact Report (PEIR) was certified for the Downtown Specific Plan and a Mitigation Monitoring and Reporting Program were adopted. The PEIR was intended to serve as adequate environmental documentation for those projects that comply with the development standards established by the specific plan. The project would be subject to any applicable mitigation measures as a condition of approval. Background: Project Site The subject property consists of six lots, which make up the entire block between National City Boulevard and Roosevelt Avenue, and between Plaza Boulevard and 11th Street. The block has approximately 250-feet of frontage along each street. The site totals 1.43 acres and is developed with miscellaneous commercial uses including used auto sales, auto repair, and a boxing studio. Surrounding land uses include Education Village to the north and retail commercial uses along the National City Boulevard corridor to the east and the blocks to the south and west of the site. Proposed Development The proposed project would redevelop the entire block. The proposed development would include a 257-foot tall, 24-story condominium tower with 189 residential units; low-rise buildings with 38 townhomes and live/work units; over 8,000 square feet of ground floor commercial space; and three levels of underground parking. The low-rise buildings would have a maximum height of approximately 40-feet and four stories. The tower would be located at the corner of National City Boulevard and 11t Street; the low-rise buildings would be located along National City Boulevard, Plaza Boulevard, and Roosevelt Avenue. Live/work units would be located on the ground floor along Plaza Boulevard and Roosevelt Avenue. Commercial space would create ground floor storefronts along National City Boulevard and 11th Street. The proposed buildings Community Development Commission Agenda Item No. 3 December 13, 2005 Page 2 of 4 would be built to the street property lines and would surround a landscaped garden courtyard that would be created in the center of the block. The residential unit mix for the tower would consist of 76 one -bedroom units, 101 two - bedroom units, and 12 penthouse units. Most floors would consist of five to six units arranged around a central lobby that would provide access to each unit. Most units would have balconies that face to the north or south. Three elevators and two stairwells would provide access to all floors and the basement levels. A lobby on the first level would be the main entrance on 11th Street. Residential amenities would be provided on the second level. The unit mix for the townhomes would consist of one- and two -bedroom units; the live/work units would consist of one -bedroom units. Proposed amenities would include the garden courtyard, an outdoor pool, and fitness center. A total of 402 parking spaces would be provided on three underground levels. Residential parking access would be provided by a driveway entrance on 11th Street; commercial parking would be accessed from a driveway on National City Boulevard. Analysis: Land Use The proposed development is consistent with the land use regulations of the Downtown Specific Plan. The project falls within Development Zone 6, which is generally located along the west side of National City Boulevard between Plaza Boulevard and 12th Street. The preferred land use for the zone includes "multi -family residential, street - oriented retail." The proposed project would achieve this land use objective. Development Standards The proposed project is consistent with the development standards of Development Zone 6, which allows a maximum floor area ratio (FAR) of 6.0 with no height limits. The project totals 350,238 gross square feet and would have an FAR of 5.6 and a maximum height of 257-feet. The parking requirement for the project is 290 spaces based on the unit mix and commercial square footage; the project would provide 402 spaces. Design Guidelines The proposed development is consistent with the design guidelines of the Downtown Specific Plan. An independent design review of the project was conducted by an outside architect, and is attached. Community Development Commission Agenda Item No. 3 December 13, 2005 Page 3 of 4 Conditions of Approval Recommended conditions of approval are incorporated into attached resolution to ensure that the project is developed in substantial conformance with the approved plans and that all necessary improvements are provided with the development of the project and consistent with the Downtown Specific Plan. Findings for Approval The Consistency Review process requires that the Community Development Commission Board make specific findings in order to approve a development project within the Downtown Specific Plan. The recommended findings for approval are incorporated into the attached resolution. With this, Community Development Commission staff recommends that the Community Development Commission Board adopt Resolution No. 2005-105 approving National City Downtown Specific Plan Consistency Review (DSP-2005-4) for a mixed -use development project ("Park Village") located at 1010, 1018, 1040 National City Boulevard, 40 West Plaza Boulevard, 25 West 11th Street, and 1031 Roosevelt Avenue (APN 555-113-04, 05, 08, 11, 12, 13) subject to conditions of approval and based on findings of fact. Applicant: National City Housing Partners, LLC. ATTACHMENTS: EXHIBIT 1 — Resolution No. 2005-105 EXHIBIT 2 — Design Review EXHIBIT 3 — Plans (DSP-2005-4), dated 11/22/05, previously distributed (11/22/05) Staff Member: Pe Community Development Commission Agenda Item No. 3 December 13, 2005 Page 4 of 4 RESOLUTION NO.2005-105 A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY (CDC) APPROVING NATIONAL CITY DOWNTOWN SPECIFIC PLAN CONSISTENCY REVIEW (DSP-2005-4) FOR A MIXED -USE DEVELOPMENT PROJECT ("PARK VILLAGE") LOCATED AT 1010, 1018, 1040 NATIONAL CITY BOULEVARD, 40 WEST PLAZA BOULEVARD, 25 WEST 11TH STREET, AND 1031 ROOSEVELT AVENUE (APN 555-113-04, 05, 08, 11, 12, 13) SUBJECT TO CONDITIONS OF APPROVAL AND BASED ON FINDINGS OF FACT. APPLICANT: NATIONAL CITY HOUSING PARTNERS, LLC WHEREAS, the applicant has filed an application for Downtown Specific Plan Consistency Review; and, WHEREAS, the adopted procedures for Consistency Review require the Community Development Commission Board to consider all development proposals at a public hearing; and, WHEREAS, the Community Development Commission Board considered the application at a duly advertised public hearing held on November 22, 2005 at which time oral and documentary evidence was presented; and, WHEREAS, at said public hearing the Community Development Commission Board considered the recommendation and findings of the staff report contained in Case File No. DSP-2005-4, which is incorporated herein by reference, along with the evidence and testimony at said hearing; and, WHEREAS, this action is taken pursuant to all applicable procedures required by State law and City law; and, WHEREAS, the action recited herein is found to be essential for the preservation of public health, safety, and general welfare; and, WHEREAS, the Community Development Commission Board desires to achieve the goals and implement the policies of the Downtown Specific Plan; and, WHEREAS, the Community Development Commission Board has determined that the adoption of the action recited herein, would further the goals and policies of the Downtown Specific Plan. NOW, THEREFORE, BE IT RESOLVED that the Community Development Commission Board finds that the testimony and evidence presented at the public hearing support the following findings: EXHIBIT 1 1. Basic Compliance — The project complies with the maximum height, minimum setback, maximum floor -area -ratio, maximum density (where applicable), minimum build -to -line, and minimum parking requirements and standards of the Specific Plan. The proposed project, as amended by the conditions of approval, complies with development standards of the Downtown Specific Plan Development Zone 6, including FAR, height, and parking. 2. Creating a Place for People — The project enhances the pedestrian experience with attractive and distinctive design and amenities. The project would create an interior garden courtyard that is accessible from the surrounding streets. The project would create storefronts or live/work entrances along surrounding street frontages to enhance the pedestrian experience, create visual interest, and appropriately interface public and private space. As a condition of approval, the project would result in offsite improvements that are consistent with the Downtown Specific Plan, including pedestrian oriented streetscape improvements. The projects design and architecture would create attractive and distinctive visual elements that would add to the urban landscape. 3. Enrich the Existing Downtown — The project enriches the qualities of the existing downtown by exhibiting a distinctive design that arises from and complements its setting, including the scale of the downtown, the block, and the street. The proposed project design and architecture is distinctive and is appropriate in the context of the adopted Downtown Specific Plan vision for the area. The projects variations in building scale, form, and massing compliments the surrounding area and integrates into the existing and proposed downtown urban landscape. Required off site improvements including streetscape elements would enhance the neighborhood. Retail and live/work storefronts would emphasize the pedestrian scale on the street frontages. 4. Make Connections — The project is integrated physically and visually with its surroundings. The project exhibits attention on how to get around by foot, bicycle, public transportation and automobile — in that order. The site is within walking distance to the amenities of the downtown, including the trolley, and the ground floor retail and live/work units introduce pedestrian shopping opportunities for the frontage along the site. Freeway access is nearby and convenient. The project would introduce residential property owners to the area and would result in increased pride of ownership, neighborhood responsibility, community ties, and deterrence of crime. The projects variation in scale, form, massing, and street wall treatment would integrate physically and visually into the existing and the proposed downtown urban landscape. Parking is completely enclosed, and vehicular access points are minimized to reduce vehicular- 2 pedestrian conflicts. The elimination of driveways and curb cuts improves the pedestrian experience along the sidewalks surrounding the site. The project's design emphasizes pedestrian movement around and through the site as opposed to the existing mix of uses and parcelization that hinders pedestrian movement. 5. Work with the Landscape — The project strikes a balance between the natural and man-made environment and utilizes each site's intrinsic resources — the climate, landform, landscape, and ecology to maximize energy conservation and create distinctive amenities. The project would not alter the existing landform, and would conform to the existing adjacent grades surrounding the site. The varied scale and massing of the project design takes advantage of proximity to the urban core and creates views to the bay and other vistas. The project would create a garden courtyard as a distinctive amenity to the block. Off site improvements including streetscape and landscape requirements would implement the design objectives of the Downtown Specific Plan. 6. Mix Uses and Forms — The project weaves together different building forms, uses, textures, and densities. The project would introduce mixed uses to the site and surrounding area. The project architecture and site design would create a variety of forms and massing, articulation in buildings, and the use of a range of materials, colors, and textures. The project's mix of unit types within different building forms creates a variety of intensity and density of development within the block. The buildings incorporate a variety of elements including commercial and live/work storefronts, tower elements, varied roof lines, awnings, overhangs, and balconies. 7. Design for Change — The project is designed for energy and resource efficiency; creating flexibility in the use of property, public spaces (including the sidewalk) and the service infrastructure and introduces or acknowledges through design: new approaches to transportation, traffic management and parking. The project introduces a new type of development to the neighborhood as envisioned in the Downtown Specific Plan. The project would attract business owners and homebuyers and would transform the underutilized site into a vibrant place for living and working in a new urban environment. The project would introduce mixed uses and compact development to the site, with shared uses and amenities. The project integrates residential, commercial, and live/work uses. All service infrastructure is contained and integrated into the site. Vehicular traffic would be controlled through minimal access into the site, reducing curb cuts and vehicular -pedestrian conflicts. Parking would be contained internally and below grade to reduce the amount of land area used for surface parking facilities and vehicular circulation. Furthermore, parking demand would be managed between the multiple uses of the site for efficiency. 3 BE IT FURTHER RESOLVED that the Community Development Commission Board finds that the project, based on the findings herein, would be consistent with the adopted Downtown Specific Plan for which a Program Environmental Impact Report was certified and a Mitigation Monitoring and Reporting Program adopted, and finds on the basis of the whole record that the project would not result in a new significant impact or substantial increase in the severity of previously identified impacts, and that this finding reflects the Community Development Commission Board's independent judgment and analysis. BE IT FURTHER RESOLVED that the Community Development Commission Board, in order to ensure that the project is developed in substantial conformance with the approved plans, that all necessary improvements are provided, and that the project be consistent with the Downtown Specific Plan, determines that the project shall be subject to the following conditions of approval: 1. Application of Conditions. The applicant shall comply with each condition of approval prior to occupancy unless otherwise specified. The interpretation of, and the determination of the applicant's compliance with, the conditions of approval shall rest solely with the City of National City. Any conflicting provisions of the conditions of approval may be clarified and modified as necessary by the City of National City. Minor modifications as to the implementation of the conditions of approval may be made by the City of National City. 2. Mitigation Measures. An Environmental Impact Report was certified and Mitigation Measures and a Mitigation Monitoring and Reporting Program were adopted for the Downtown Specific Plan under which this project was approved pursuant to the provisions of CEQA. 3. Approved Plan. The project site shall be developed and maintained in substantial conformance with the approved application and plans (DSP-2005-4), dated November 22, 2005, except as modified herein. 4. Other Approvals. The applicant shall secure all required approvals, permits, and entitlements, including but not limited to a condominium subdivision map. 5. Project Site. The applicant shall acquire all property and easements necessary for the development of the project site pursuant to the executed Development Agreement between the Community Development Commission and the Beauchamp Family Trust dated August, 16, 1982. 6. Design Review. The applicant shall address the findings of the project design review, dated October 17, 2005, and shall make the appropriate changes to the project design and architecture, subject to approval the City Council of the City of National City. 7. Landscape Plans. The applicant shall submit landscape and irrigation plans to the City of National City for approval and shall install and construct all improvements pursuant to the approved plans prior to occupancy. 8. Lighting Plans. The applicant shall submit lighting plans to the City of National City for approval and shall install and construct all lighting pursuant to the approved plans 4 prior to occupancy. Lighting shall be designed to provide adequate illumination for safety, security, identification, and direction as well as for landmark visibility of the primary buildings and/or significant features of the project. 9. Sign Program. The applicant may submit a sign program to the City of National City for approval or shall comply with Chapter 18.62, Signs and Outdoor Advertising Displays, of the Land Use Code of the City of National City. 10. Public Art Program. Public art elements are encouraged in the Design Guidelines of the Downtown Specific Plan. The project may incorporate public art elements. 11. Green Design. The applicant is encouraged to incorporate green design, energy efficiency, waste reduction, recycling, water conservation, and sustainable design in the project to the maximum extent feasible. 12. Public Improvements. The applicant shall provide public improvements pursuant to the executed Development Agreement between the Community Development Commission and the Beauchamp Family Trust dated August, 16, 1982. 13. Engineering Requirements. The applicant shall comply with all engineering requirements, including the listed requirements contained in the Engineering Department memorandum dated September 30, 2005, which do not conflict with the provisions of the executed Development Agreement between the Community Development Commission and the Beauchamp Family Trust dated August, 16, 1982. 14. Public Works Requirements. The applicant shall comply with all public works requirements, including the listed requirements contained in the Public Works Department memorandum dated September 20, 2005, which do not conflict with the provisions of the executed Development Agreement between the Community Development Commission and the Beauchamp Family Trust dated August, 16, 1982. 15.Covenants, Conditions, and Restrictions (CC&Rs). The applicant shall submit a declaration of covenants, conditions, and restrictions to the City of National City for approval prior to approval of a final subdivision map. The CC&Rs shall run with the land, clearly setting forth privileges and responsibilities, including maintenance, involved in the common ownership of buildings, streets, parking areas, walks, open spaces, recreation areas, utilities, and common areas and facilities. The CC&Rs shall allow the City of National City the authority but not the obligation to assume the maintenance of the property and assess the full cost, including overhead costs, as a lien against the property if said property is not adequately maintained pursuant to the CC&Rs. The CC&Rs shall include a determination that the funds provided by the maintenance provisions will be sufficient to cover all contemplated costs. The CC&Rs shall be approved as to form and content by the City Attorney of the City of National City. 16. Property Owners Association. A corporation, association, property owners' group, or similar entity shall be formed with the right to assess properties that are jointly owned with interests in the common areas and facilities in the entire development to meet the expenses of such entity, and with authority to control, and the duty to maintain, all such common areas and facilities. Such entity shall operate under recorded CC&Rs approved by the City of National City, which shall include compulsory membership of 5 all property owners and flexibility of assessments to meet changing costs of maintenance, repairs, and services. 17. Business Improvement District. Pursuant to the Implementation Program of the Downtown Specific Plan, all properties within the Morgan Square Business Improvement District shall be incorporated into and assessed as provided for in the district for purposes for which the district was formed. 18. Landscape Maintenance District. Pursuant to the Implementation Program of the Downtown Specific Plan, all properties within the boundaries of the Downtown Specific Plan shall be incorporated into a landscape maintenance district and assessed as provided for in the district for purposes for which the district was formed. 19. Parking District. Pursuant to the Implementation Program of the Downtown Specific Plan, all properties within the boundaries of the Downtown Specific Plan shall be incorporated into a parking district and assessed as provided for in the district for purposes for which the district was formed. 20. Acceptance of Conditions. The applicant and property owner shall sign and have notarized an Acceptance Form acknowledging and accepting all conditions of approval of this permit (DSP-2005-4). Failure to return the signed and notarized Acceptance Form within 30 days of approval of this permit shall automatically terminate this permit. The applicant shall record a Notice of Restriction on Real Property with the San Diego County Recorder. The Notice of Restriction shall provide that the conditions of approval of this permit are binding on all present and future interest or estate holders of the property. The Notice of Restriction shall be approved as to form by the City Attorney of the City of National City and signed by the City Manager of the City of National City prior to recordation. 21. Permit Expiration. This permit (DSP-2005-4) shall expire two (2) years after the effective date of approval unless prior to that date a request for a time extension has been filed in writing to the City of National City. The process for a time extension shall be the same as the process for application for the original permit. NOW, THEREFORE, the Community Development Commission Board adopts Resolution No. 2005-105 subject to conditions of approval and based on findings of fact contained herein. // // /1 // // PASSED AND ADOPTED this 13th day of December 2005. 6 ATTEST: Benjamin Martinez, Secretary APPROVED AS TO FORM: George H. Eiser, III, City -CDC Attorney Nick Inzunza, Chairman 7 perisic design studio 345 Sixth Avenue, San Diego, CA 92101 Date: 10/17/05 Tel: 619.338.0884 CBAE Llc. No. C25307 Client: City of National City Community Development Commission 140 E. 12th Street, Suite B National City, CA 91950-3312 Park Village Project Design Review DESIGN EVALUATION CRITERIA: ARCHITECTURE Aesthetics and Composition The four story portion is well designed and has a successful distinction between the expression of the street level and the residential units above. It creates a well executed layering of materials and proportions that breaks up the long Street Wall into human scaled facades. In sharp contrast, the modular grid of the tower is severe and homogenous in its proportions. For example, the solid portion of the balcony is the same in height as the space between windows from floor to floor exaggerating the sense of uniformity. Its symmetry draws attention to the parking entrance on National City Boulevard by equating it to the 11th Avenue side. The entrance to the tower has no presence on National City Boulevard as one would expect given the symmetry. On the 11th Avenue side, the entrance does not relate to the articulation of the vertical mass. It has a minimal connection to the pedestrian activity of the street as if the residential use were only to be reached by automobile. The base of the tower is covered with elements trying to look like the 4 story structures of the townhomes rather than the base of the tower and does not appear to be fully integrated with its tower. The curved top of the tower draws attention to a visually heavy solid mass of mechanical equipment. Exhibits a distinctive design that arises from and complements its setting, including the scale of the downtown, the block, and the street The live -work units on Roosevelt and Plaza have a very well proportioned sense of scale which would help to activate the pedestrian activity and sense of neighborhood. Note: There are several clocks on buildings in National City. It would be a visual landmark denoting the center of the National City Boulevard near the City Hall. The project has a very urban aesthetic and the type of established presence to be expected across the street from a civic center complex. Uses different building forms, textures, and densities The use of varied materials, including brick, metals, wood, concrete, glass, and stucco, creates a sophisticated layering of space and mass. This provides a great deal of relief in the facades. The limited use of well -placed color gives more impact to the selected elements. The larger mass consolidates the primary density of the project and allows a reduced height for the mass on the north side of the block along National City Boulevard to 4 stories and along the majority of its frontage. Introduces or acknowledges new design approaches to transportation, traffic management and parking Residential parking is accessed from 11th Street. However, commercial parking is accessed from National City Boulevard. Although the section on Development Zone #6 does not specifically address it, vehicular access along National City Boulevard is not permitted north of 8th Street and EXHIBIT 2 should be discouraged or even not permitted along this stretch of National City Boulevard because of the density and high volume of traffic. Designed for energy and resource conservation This cannot be evaluated based on the information provided in the packet. Minimizes the intrusion of the service infrastructure on the public space The design could easily absorb all of the major elements of the service Infrastructure within the limits of the site. Light Access Criteria/ Shadow Studies, impact on neighboring structures The tall mass is on the south side of the property. As a result, much of the shadows would be cast onto this block for most of the day. A shadow study report would be helpful to evaluate the impact on neighboring properties. URBAN DESIGN Enhances the pedestrian experience The two Plaza features at the two corners of Plaza Boulevard are successful design elements. The Garden Courtyard is not inviting to outsiders. It is primarily to be used by the residents of the building. Exceeds or meets the Streetscape Requirements While the landscape architecture appears to be developed to a schematic level, the intent seems to be satisfactory at this level and could be made to meet the Streetscape Requirements. Integrates physically and visually with its surroundings Exhibits attention to how to get around by foot, bicycle, public transportation and the car The project's close proximity to Kimball Park, bus stops, trolley stations, and freeway access makes this site very desirable. This type of density and proximity embraces the principles of smart growth and transit -oriented development. RECOMMENDATIONS: I recommend that the design be approved contingent upon the following revisions / refinements or the resolution of specific issues: 1. Please consider varying the thicknesses, proportions, and layers of the tower. Its modular grid is severe and homogenous in its proportions. For example, the solid portion of the balcony is the same in height as the space between windows from floor to floor giving the appearance of uniformity. 2. The entrance to the tower has no presence on National City Boulevard as one would expect given the symmetry. On the 11th Avenue side, the entrance does not relate to the articulation of the vertical mass. It has a minimal connection to the pedestrian activity of the street as if the residential use were only to be reached by automobile. 3. The base of the tower is covered with elements trying to look like the 4 story structures of the townhomes rather than the base of the tower. Please consider a new base that is more integrated with its tower. 4. The curved top of the tower draws attention to a visually heavy solid mass of mechanical equipment. Perhaps this could be reduced a bit. 2 COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY December 13, 2005 AGENDA ITEM NO. 4 TO: CHAIRMAN AND BOARD MEMBERS (� FROM: BENJAMIN MARTINEZ, EXECUTIVE DIRECTOR SUBJECT: PUBLIC HEARING AND RESOLUTION NO. 2005-107: APPROVING NATIONAL CITY DOWNTOWN SPECIFIC PLAN CONSISTENCY REVIEW (DSP-2005-2) FOR A MIXED -USE DEVELOPMENT PROJECT VIEW") LOCATED AT 404 EAST 8TH STREET, 419 EAST 91H STREET, AND 829 D AVENUE (APN 556-493-01, 02, 03, 05) SUBJECT TO CONDITIONS OF APPROVAL AND BASED ON FINDINGS OF FACT. APPLICANT: GULF UNLIMITED CORPORATION Recommendation: Community Development Commission staff recommends that the Community Development Commission Board: ADOPT Resolution No. 2005-107 approving National City Downtown Specific Plan Consistency Review (DSP-2005-2) for a mixed -use development project ("Harbor View") located at 404 East 8th Street, 419 East 9th Street, and 829 D Avenue (APN 556-493-01, 02, 03, 05) subject to conditions of approval and based on findings of fact. Applicant: Gulf Unlimited Corporation. Fiscal Impact: The subject property is located within the National City Redevelopment Project Area. Consequently, the development of the property would result in an increase in tax increment within the Project Area. The current assessed value of the subject property is approximately $430,000. The proposed project has an estimated value of over $20 million, which would result in over $130,000 in additional annual tax increment to the Community Development Commission. Over $13,000 in annual sales tax revenue could be anticipated based on the proposed commercial square footage. Development impact fees would result in over $75,000 in permit fees for the residential component, and over $46,000 for the commercial Community Development Commission Agenda Item No. 4 December 13, 2005 Page 1 of 4 component. Development impact fees are allocated to Parks and Recreation, Library, Fire/EMS, and Police facilities. In addition, the project is located in the Morgan Square Property Based Improvement District, and would be assessed an annual fee of $240 per residential unit (a total of over $15,000 annually), as well as fees for the commercial component of the project. Environmental Impact: The project, if approved based on the recommended findings, would be consistent with the adopted Downtown Specific Plan. Pursuant to the California Environmental Quality Act, a Program Environmental Impact Report (PEIR) was certified for the Downtown Specific Plan and a Mitigation Monitoring and Reporting Program were adopted. The PEIR was intended to serve as adequate environmental documentation for those projects that comply with the development standards established by the specific plan. The project would be subject to any applicable mitigation measures as a condition of approval. Background: Project Site The project site consists of four parcels that occupy most of the western half of the block located between D Avenue and E Avenue, and between 8th Street and 9th Street. The site has approximately 117 feet of frontage along 8th Street, 188 feet along D Avenue, and 55 feet along 9th Street. The site totals 25,514 square feet (0.6 acres) and is vacant except for one single-family residence on 9th Street. Surrounding uses include St. Mary's Catholic Church to the north of 8th Street, a strip commercial center and single-family residences to the east, offices and apartments to the west of D Avenue, and apartments to the south of 9th Street. Central Elementary School is located to the east of E Avenue. Proposed Development The proposed project would redevelop the entire site with a seven -story mixed use building consisting of 63 residential condominium units above retail and office space with underground parking. The commercial units would total 13,000 square feet on the ground floor and would create storefronts along 8th Street and 9th Street. The residential units would be located on the six floors above the commercial space. The unit mix for the residential condominiums would consist of three one -bedroom units, 35 two -bedroom units, and 25 three -bedroom units. The project is designed to step down in height from 8th Street to 9th Street. The building would range in height from 39 feet and three stories along 9th Street to a Community Development Commission Agenda Item No. 4 December 13, 2005 Page 2 of 4 maximum height of 85 feet and seven stories on 8th Street. An architectural tower feature would extend above the top floor level at the corner of 8th Street and D Avenue. The building would be built to the surrounding property lines along each street frontage and the adjacent alley. The residential units on each floor would be arranged around an open-air central walkway system and landscaped plaza on the second floor. Entrances to the units would be from these internal walkways. Balconies for most of the units would be provided along each of the outward -facing street walls of the project. Two elevators and two stairwells would provide access to each floor and the underground garage. Parking would be provided on the ground floor (21 spaces) and in an underground garage (75 spaces). Vehicular access to ground floor parking would be along the alley on the east side of the site; access to the underground garage would be provided from one driveway entrance on 9th Avenue. Analysis: Land Use The project site falls within Development Zones 9 and 10 of the Downtown Specific Plan. The proposed development would be consistent with the land use regulations of both zones. Development Zone 9 along 8th Street has a preferred land use of "mixed - use, with a significant density of multifamily residential overlaying the ground -level retail." Development Zone 10 along 9th Street has a preferred land use of "row homes or townhouses." The proposed project would achieve these land use objectives. Development Standards The proposed project is consistent with the development standards of Development Zone 9, which allows a maximum floor area ratio (FAR) of 5.0 and a maximum height of 90 feet. The project would have an FAR of 3.7 and a maximum height of 85 feet within Development Zone 9. The project is consistent with the 3.0 FAR limit for Development Zone 10—the project would have an FAR of 2.7 within the zone. The project meets the parking requirement based on the unit mix and commercial square footage proposed. The height for the project within Development Zone 10 would exceed the 36 foot maximum —the project proposes 39 feet. The applicant has requested an exemption for height pursuant to the exemption process outlined in the Downtown Specific Plan and the adopted Consistency Review Procedures. Specifically, the applicant has requested Exemption Finding 1 for a project that does not exceed the floor area ratio limit for the site. The findings for this exemption are found in the attached resolution. Community Development Commission Agenda Item No. 4 December 13, 2005 Page 3 of 4 Design Guidelines The proposed development is consistent with the design guidelines of the Downtown Specific Plan. An independent design review of the project was conducted by an outside architect, and is attached. Conditions of Approval Recommended conditions of approval are incorporated into attached resolution to ensure that the project is developed in substantial conformance with the approved plans and that all necessary improvements are provided with the development of the project and consistent with the Downtown Specific Plan. Findings for Approval The Consistency Review process requires that the Community Development Commission Board make specific findings in order to approve a development project within the Downtown Specific Plan. The recommended findings for approval are incorporated into the attached resolution. With this, Community Development Commission staff recommends that the Community Development Commission Board adopt Resolution No. 2005-107 approving National City Downtown Specific Plan Consistency Review (DSP-2005-2) for a mixed -use development project ("Harbor View") located at 404 East 8th Street, 419 East 9th Street, and 829 D Avenue (APN 556-493-01, 02, 03, 05) subject to conditions of approval and based on findings of fact. Applicant: Gulf Unlimited Corporation. ATTACHMENTS: EXHIBIT 1 — Resolution No. 2005-107 EXHIBIT 2 — Design Review EXHIBIT 3 — Plans (DSP-2005-2), dated 11/22/05, previously distributed (11/22/05) Staff Member: Pe Community Development Commission Agenda Item No. 4 December 13, 2005 Page 4 of 4 RESOLUTION NO. 2005-107 A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY (CDC) APPROVING NATIONAL CITY DOWNTOWN SPECIFIC PLAN CONSISTENCY REVIEW (DSP-2005-2) FOR A MIXED -USE DEVELOPMENT PROJECT ("HARBOR VIEW") LOCATED AT 404 EAST 8TH STREET, 419 EAST 9TH STREET, AND 829 D AVENUE (APN 556-493-01, 02, 03, 05) SUBJECT TO CONDITIONS OF APPROVAL AND BASED ON FINDINGS OF FACT APPLICANT: GULF UNLIMITED CORPORATION WHEREAS, the applicant has filed an application for Downtown Specific Plan Consistency Review; and, WHEREAS, the adopted procedures for Consistency Review require the Community Development Commission Board to consider all development proposals at a public hearing; and, WHEREAS, the Community Development Commission Board considered the application at a duly advertised public hearing held on November 22, 2005 at which time oral and documentary evidence was presented; and, WHEREAS, at said public hearing the Community Development Commission Board considered the recommendation and findings of the staff report contained in Case File No. DSP-2005-2, which is incorporated herein by reference, along with the evidence and testimony at said hearing; and, WHEREAS, this action is taken pursuant to all applicable procedures required by State law and City law; and, WHEREAS, the action recited herein is found to be essential for the preservation of public health, safety, and general welfare; and, WHEREAS, the Community Development Commission Board desires to achieve the goals and implement the policies of the Downtown Specific Plan; and, WHEREAS, the Community Development Commission Board has determined that the adoption of the action recited herein would further the goals and policies of the Downtown Specific Plan. NOW, THEREFORE, BE IT RESOLVED that the Community Development Commission Board finds that the testimony and evidence presented at the public hearing support the following findings: 1. Basic Compliance — The project complies with the maximum height, minimum setback, maximum floor -area -ratio, maximum density (where applicable), minimum EXHIBIT 1 build -to -line, and minimum parking requirements and standards of the Specific Plan. The project complies with all development standards except for height. However, the applicant has requested an exemption pursuant to the exemption process outlined in the Downtown Specific Plan and the adopted Consistency Review Procedures. Under Exemption Finding 1, the applicant proposes a reduced FAR in order to allow the project to transition in height and massing from the more intensive Development Zone 9 along 8th Street to the less intensive Development Zone 10 along 9m Street. The overall FAR for the project is significantly less than allowed by the development zones. 2. Creating a Place for People — The project enhances the pedestrian experience with attractive and distinctive design and amenities. The project would create storefronts or residential facades along surrounding street frontages to enhance the pedestrian experience, create visual interest, and appropriately interface public and private space. As a condition of approval, the project must provide offsite improvements that are consistent with the Downtown Specific Plan, including pedestrian oriented streetscape improvements. The project's design and architecture would create attractive and distinctive visual elements that would add to the urban landscape. 3. Enrich the Existing Downtown — The project enriches the qualities of the existing downtown by exhibiting a distinctive design that arises from and complements its setting, including the scale of the downtown, the block, and the street. The proposed project design and architecture is distinctive and is appropriate in the context of the adopted Downtown Specific Plan vision for the area. The scale, form, and massing of the project is appropriate and consistent with the existing and proposed downtown urban landscape. Required off site improvements including streetscape elements would enhance the neighborhood. Residential facades and retail storefronts would emphasize the pedestrian scale on the street frontages. 4. Make Connections — The project is integrated physically and visually with its surroundings. The project exhibits attention on how to qet around by foot, bicycle, public transportation and automobile — in that order. The site is within walking distance to the amenities of the downtown, and the ground floor commercial storefronts introduce pedestrian shopping opportunities for the frontage along the site. The project would introduce residential property owners to the area and would result in increased pride of ownership, neighborhood responsibility, community ties, and deterrence of crime. Parking is completely enclosed, and vehicular access points are minimized to reduce vehicular - pedestrian conflicts. The reduction of existing driveways and curb cuts improves the pedestrian experience along the sidewalks surrounding the site. 2 5. Work with the Landscape — The project strikes a balance between the natural and man-made environment and utilizes each site's intrinsic resources — the climate, landform, landscape, and ecology to maximize energy conservation and create distinctive amenities. The project would not alter the existing landform, and would conform to the existing adjacent grades surrounding the site. The varied scale and massing of the project design takes advantage of proximity to the urban core and creates a variety of views from the upper floors. The project would create a landscaped courtyard as a distinctive amenity. Off site improvements including streetscape and landscape requirements would implement the design objectives of the Downtown Specific Plan. 6. Mix Uses and Forms — The project weaves together different building forms, uses, textures, and densities. The project would introduce mixed uses to the site and surrounding area. The project architecture and site design would create a variety of forms and massing, building articulation, and the use of a range of materials, colors, and textures. The project creates a transition in massing and intensity from the commercial frontage on 8th Street to the residential frontage on 9th Street. The building incorporates a variety of elements including retail storefronts, residential facades, a tower element, varied roof lines, and balconies. 7. Design for Change — The project is designed for energy and resource efficiency., creating flexibility in the use of property, public spaces (including the sidewalk) and the service infrastructure and introduces or acknowledges through design: new approaches to transportation, traffic management and parking. The project introduces a new type of development to the neighborhood as envisioned in the Downtown Specific Plan. The project would attract business owners and homebuyers and would transform the underutilized site into a vibrant place for living and working in a new urban environment. The project would introduce mixed uses and compact development to the site, with shared uses and amenities. All service infrastructure is contained and integrated into the site. Vehicular traffic would be controlled through minimal access into the site, reducing curb cuts and vehicular -pedestrian conflicts. Parking would be contained internally and below grade to reduce the amount of land area used for surface parking facilities and vehicular circulation. BE IT FURTHER RESOLVED that the Community Development Commission Board finds that the project, based on the findings herein, would be consistent with the adopted Downtown Specific Plan for which a Program Environmental Impact Report was certified and a Mitigation Monitoring and Reporting Program adopted, and finds on the basis of the whole record that the project would not result in a new significant impact or substantial 3 increase in the severity of previously identified impacts, and that this finding reflects the Community Development Commission Board's independent judgment and analysis. BE IT FURTHER RESOLVED that the Community Development Commission Board, in order to ensure that the project is developed in substantial conformance with the approved plans, that all necessary improvements are provided, and that the project be consistent with the Downtown Specific Plan, determines that the project shall be subject to the following conditions of approval: 1. Application of Conditions. The applicant shall comply with each condition of approval prior to occupancy unless otherwise specified. The interpretation of, and the determination of the applicant's compliance with, the conditions of approval shall rest solely with the City of National City. Any conflicting provisions of the conditions of approval may be clarified and modified as necessary by the City of National City. Minor modifications as to the implementation of the conditions of approval may be made by the City of National City. 2. Mitigation Measures. The project (DSP-2005-2) shall be subject to and the applicant shall comply with all applicable mitigation measures of the adopted Mitigation Monitoring and Reporting Program of the certified Program EIR for the Downtown Specific Plan. 3. Approved Plan. The project site shall be developed and maintained in substantial conformance with the approved application and plans (DSP-2005-2), dated November 22, 2005, except as modified herein. 4. Other Approvals. The applicant shall secure all required approvals, permits, and entitlements, including but not limited to a condominium subdivision map. 5. Project Site. The applicant shall acquire all property and easements necessary for the development of the project site pursuant to the approved plan (DSP-2005-2). 6. Design Review. The applicant shall address the findings of the project design review, dated October 17, 2005, and shall make the appropriate changes to the project design and architecture, subject to approval of the City Council of the City of National City. 7. Landscape Plans. The applicant shall submit landscape and irrigation plans to the City of National City for approval and shall install and construct all improvements pursuant to the approved plans prior to occupancy. 8. Lighting Plans. The applicant shall submit lighting plans to the City of National City for approval and shall install and construct all lighting pursuant to the approved plans prior to occupancy. Lighting shall be designed to provide adequate illumination for safety, security, identification, and direction as well as for landmark visibility of the primary buildings and/or significant features of the project. 9. Sign Program. The applicant shall submit a sign program to the City of National City for approval, and all signs shall be designed and installed pursuant to the approved sign program. 4 10. Public Art Program. The applicant shall submit a public art program to the City of National City for approval and shall install, construct, or implement the approved public art program prior to occupancy. 11. Green Design. The applicant shall incorporate green design, energy efficiency, waste reduction, recycling, water conservation, and sustainable design in the project to the maximum extent feasible. The project shall be designed to exceed Title 24 requirements by at least ten percent. 12. Public Improvements. The applicant shall submit improvement plans for all adjacent public rights -of -way to the City of National City for approval. The plans shall be consistent with the Downtown Specific Plan, including the Open Space Framework, the Streetscape Master Plan, and the Design Guidelines. The improvements shall include but not be limited to streets, alleys, curbs and gutter, sidewalks, medians, parkways, landscape, street lights, street furniture, traffic control, utilities and other infrastructure. The applicant shall install and construct the improvements pursuant to the approved plan prior to occupancy. 13. Engineering Requirements. The applicant shall comply with all engineering requirements, including the listed requirements contained in the Engineering Department memorandum dated September 14, 2005. 14. Public Works Requirements. The applicant shall comply with all public works requirements, including the listed requirements contained in the Public Works Department memorandum dated September 12, 2005. 15. Fire Department Requirements. The applicant shall comply with all Fire Department requirements, including the listed requirements contained in the Fire Department memorandum dated September 12, 2005. 16. Covenants, Conditions, and Restrictions (CC&Rsl. The applicant shall submit a declaration of covenants, conditions, and restrictions to the City of National City for approval prior to approval of a final subdivision map. The CC&Rs shall run with the land, clearly setting forth privileges and responsibilities, including maintenance, involved in the common ownership of buildings, streets, parking areas, walks, open spaces, recreation areas, utilities, and common areas and facilities. The CC&Rs shall allow the City of National City the authority but not the obligation to assume the maintenance of the property and assess the full cost, including overhead costs, as a lien against the property if said property is not adequately maintained pursuant to the CC&Rs. The CC&Rs shall include a determination that the funds provided by the maintenance provisions will be sufficient to cover all contemplated costs. The CC&Rs shall be approved as to form and content by the City Attorney of the City of National City. 17. Property Owners Association. A corporation, association, property owners' group, or similar entity shall be formed with the right to assess properties that are jointly owned with interests in the common areas and facilities in the entire development to meet the expenses of such entity, and with authority to control, and the duty to maintain, all such common areas and facilities. Such entity shall operate under recorded CC&Rs approved by the City of National City, which shall include compulsory membership of 5 all property owners and flexibility of assessments to meet changing costs of maintenance, repairs, and services. 18. Business Improvement District. Pursuant to the Implementation Program of the Downtown Specific Plan, all properties within the Morgan Square Business Improvement District shall be incorporated into and assessed as provided for in the district for purposes for which the district was formed. 19. Landscape Maintenance District. Pursuant to the Implementation Program of the Downtown Specific Plan, all properties within the boundaries of the Downtown Specific Plan shall be incorporated into a landscape maintenance district and assessed as provided for in the district for purposes for which the district was formed. 20. Parking District. Pursuant to the Implementation Program of the Downtown Specific Plan, all properties within the boundaries of the Downtown Specific Plan shall be incorporated into a parking district and assessed as provided for in the district for purposes for which the district was formed. 21. Acceptance of Conditions. The applicant and property owner shall sign and have notarized an Acceptance Form acknowledging and accepting all conditions of approval of this permit (DSP-2005-2). Failure to return the signed and notarized Acceptance Form within 30 days of approval of this permit shall automatically terminate this permit. The applicant shall record a Notice of Restriction on Real Property with the San Diego County Recorder. The Notice of Restriction shall provide that the conditions of approval of this permit are binding on all present and future interest or estate holders of the property. The Notice of Restriction shall be approved as to form by the City Attorney of the City of National City and signed by the City Manager of the City of National City prior to recordation. 22. Permit Expiration. This permit (DSP-2005-2) shall expire two (2) years after the effective date of approval unless prior to that date a request for a time extension has been filed in writing to the City of National City. The process for a time extension shall be the same as the process for application for the original permit. NOW, THEREFORE, the Community Development Commission Board adopts Resolution No. 2005-107 subject to conditions of approval and based on findings of fact contained herein. II II // // // 6 PASSED AND ADOPTED this 13th day of December 2005. ATTEST: Benjamin Martinez, Secretary APPROVED AS TO FORM: George H. Eiser, III, City -CDC Attorney Nick Inzunza, Chairman 7 perisic design studio 345 Sixth Avenue, San Diego, CA 92101 Date: 10/17/05 Tel: 619.338.0884 CBAE tic. No. C25307 Client: City of National City Community Development Commission 140 E. 12th Street, Suite B National City, CA 91950-3312 Harbor View Condos Prolect Review DESIGN EVALUATION CRITERIA: ARCHITECTURE Aesthetics and Composition This block is actually located just east of the Development Zones # 9 and #10 of the Downtown Specific Plan which extend from A to D Avenues along 8th and 9t° Streets, so first it would need approvaVvariance from the City of National City to extend the adjacent zoning to include this site. The massing of the project is successful in the way it transitions in scale as it steps down toward 9t Avenue, however, the maximum height and FAR change in the middle of the block on the adjacent block to the west. Verify that the design is consistent with the allowable zoning envelope and FAR. The height along alley is carried across at six stories for the majority of the block; shadow studies should be considered as this will exceed the allowable zoning envelope. The rendering on the cover of the submittal doesn't correspond with the elevations in the packet. The base, middle, and top are articulated clearly In this design according to the rendering; the tile at the base and corner volume take away from the clarity of this reading. The corrugated awnings don't match well with the design of the elevations. The heights of the cornices are overly exaggerated. Corner access to the retail would help to reinforce the corner articulation above. The corner windows on the middle floors appear to be very contemporary and not in keeping with the style of the design. The base denies the corner articulation of the top floors. The balconies appear to be connected between the units. if partitions are intended, please present them in the design. Is the corner lot at 9t and D a separate legal lot? If so, verify the location of openings relative to the property on the 9'" Avenue elevation. Also, the cornice appears to be projecting into the corner property. What is the width of the alley? Verify the turning radiuses for perpendicular parking from alley and fire protection of openings on alley. The pedestrian ramp to the underground parking level is extremely steep. Doors are shown as swinging into the public right-of-way; they may need to be recessed and should be presented that way in these design drawings. Exhibits a distinctive design that arises from and complements its setting, including the scale of the downtown, the block, and the street The design complements its context in scale; however, it is not particularly distinctive. Its most distinctive element is the corner tower, the function of the tower is actually more of the same residential function while appearing to be a common space, such as a lobby, stair, etc... Uses different building forms, textures, and densities EXHIBIT 2 The character of the project intends to evoke a historical quality which can be successful, but, more often than not, Is not executed In a manner that is convincing resulting In a false appearance of history. The design does successfully offer relief to the masses through use of varying forms, textures, and densities. Introduces or acknowledges new design approaches to transportation, traffic management and parking The incorporation of transportation and parking is conventional. Parking is accessed from the alley and from 9th Avenue. Verify turning radiuses and required widths for perpendicular parking. Designed for energy and resource conservation This cannot be evaluated from the submittal package that was presented. Minimizes the intrusion of the service infrastructure on the public space The design could easily absorb all of the major elements of the service infrastructure within the limits of the site. URBAN DESIGN Enhances the pedestrian experience The project exhibits an appropriate scale that would enhance the pedestrian experience. However, the retail spaces are only located on the National City Boulevard side. Exceeds or meets the Streetscape Requirements While the landscape design appears to be developed to a schematic level, the intent seems to be adequate at this level to adequately meet the Streetscape Requirements. The packet includes a significant number of street trees, however, there are discrepancies between what is shown on the rendering and what is proposed on the floor plans and elevations. Integrates physically and visually with its surroundings Exhibits attention to how to get around by foot, bicycle, public transportation and the car The projects design mimics historical buildings from other. Often these new -old projects have a contrived aesthetic if not developed with a high attention to detail, sometimes appearing hokey. RECOMMENDATIONS: I recommend that the City of National City evaluate whether or not to extend the zoning of the Downtown Specific Plan to include this site. If the zone is extended, I recommend that the design be modified to incorporate the feedback from this project review or respond to the specific issues addressed. COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY December 13, 2005 AGENDA ITEM NO. 5 TO: CHAIRMAN AND BOARD MEMBERS St.) --- FROM: BENJAMIN MARTINEZ, EXECUTIVE DIRECTOR SUBJECT: PUBLIC HEARING AND RESOLUTION NO. 2005-110: PUBLIC HEARING OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY TO CONSIDER PUBLIC NECESSITY IN CONJUNCTION WITH THE ACQUISITION OF REAL PROPERTY LOCATED AT 25 WEST ELEVENTH STREET, OWNED BY PAUL R. BROCK AND A RESOLUTION OF NECESSITY OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY TO ACQUIRE REAL PROPERTY LOCATED AT 25 WEST ELEVENTH STREET, OWNED BY PAUL R. BROCK, BY EMINENT DOMAIN Recommendation: Community Development Commission staff recommends that the Community Development Commission Board: HOLD the Public Hearing of the Community Development Commission of the City of National City to consider public necessity in conjunction with the acquisition Real Property located at 25 West Eleventh Street, owned by Paul R. Brock; and, APPROVE a Resolution of Necessity of the Community Development Commission of the City of National City to acquire Real Property located at 25 West Eleventh Street, owned by Paul R. Brock, by eminent domain. Fiscal Impact: A developer deposit of $545,000 will be used for the acquisition from Account 900912. The developer will reimburse all legal and associated fees associated with the project. Community Development Commission Agenda Item No. 5 December 13, 2005 Page 1 of 3 Environmental Impact: The project is consistent with the Certified EIR for the National City Downtown Specific Plan and is consistent with Section 15180 of the California Environmental Quality Act Guidelines; these actions do not require additional analysis. Notification of the Property Owner: Owner participation rights for this property were extinguished as a result of an Owner Participation process carried out in 2003, resulting in the granting of an Owner Participation Agreement to Jim Beauchamp in February, 2004. On August 30, 2005, the Law Offices of Don Detisch, Special Counsel to the Community Development Commission, delivered a letter offering to purchase the property to Paul R. Brock, P. O. Box 1503, Chula Vista, CA 91912-1503. On November 9, 2005 a Notice of Intent to Adopt a Resolution of Necessity for the use of eminent domain was mailed to Paul R. Brock, in Chula Vista. The Community Development Commission received a letter dated November 22, 2005, from Robert M. Miller, Attorney for Mr. Brock, requesting to appear at the hearing and opposing the findings of the Resolution of Necessity. Background: The implementation of the National City Redevelopment Project Area is dependent upon the acquisition of blighted property that currently exists at 25 West Eleventh Street in the National City Downtown Specific Plan Area. The Community Development Commission's acquisition agent has attempted to acquire the above referenced property unsuccessfully, and has made an offer of just compensation to the property owner based on the professional appraisal prepared for the Community Development Commission. The subject property is located at 25 West Eleventh Street. It is in the best public interest with the least injury that the site be acquired to allow for the elimination of blight, the opportunity for redevelopment, the creation of additional jobs, and the increase of public benefit. The project will include the redevelopment of the site with the Park Village mixed -use condominium and retail project, approved by action of the Commission authorizing an Owner Participation Agreement with Beauchamp Family Trust on February 22, 2004. The use of eminent domain to facilitate redevelopment is necessary and appropriate. The developer was unable to acquire the site after extensive negotiations. The Community Development Commission was also unable to acquire the site after Community Development Commission Agenda Item No. 5 December 13, 2005 Page 2 of 3 negotiations. The project would result in annual tax increment revenues to the Community Development Commission of approximately $940,000. The project will provide new housing and retail opportunities for the community and significantly enhance the Downtown Area. In order for the Community Development Commission to exercise its power of eminent domain, the Community Development Commission must first conduct a Public Hearing of Necessity at which the property owners are entitled to appear and voice their concerns. The attached Resolution of Necessity sets -forth the public interest and necessity of the proposed use of eminent domain. The property owner has the opportunity to address these issues at the Public Hearing of Necessity held in conjunction with the consideration of this Resolution. The purpose of the Hearing is not to address the amount of compensation to be paid to the property owner. Attached hereto is a copy of the Notice of Intent to Adopt Resolution of Necessity to Acquire Certain Retail Property by Eminent Domain (Code of Civil Procedure, Section 1245.235) sent to Paul R. Brock. With this, Community Development Commission staff recommends that the Community Development Commission Board hold the Public Hearing of the Community Development Commission of the City of National City to consider public necessity in conjunction with the acquisition Real Property located at 25 West Eleventh Street, owned by Paul R. Brock and approve a Resolution of Necessity of the Community Development Commission of the City of National City to acquire Real Property located at 25 West Eleventh Street, owned by Paul R. Brock, by eminent domain. ATTACHMENTS: EXHIBIT 1 EXHIBIT 2 EXHIBIT 3 EXHIBIT 4 EXHIBIT 5 Staff member: Beard — Resolution No. 2005-110 — Notice of Intent — Site Map — Don Detisch letter re: CDC's offer to purchase — Written Request to Appear from Robert Miller Community Development Commission Agenda Item No. 5 December 13, 2005 Page 3 of 3 RESOLUTION NO. 2005-110 A RESOLUTION OF NECESSITY OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY (CDC) TO ACQUIRE THE REAL PROPERTY AT 25 WEST 11TM STREET, NATIONAL CITY, CALIFORNIA 91950 OWNED BY PAUL R. BROCK BY EMINENT DOMAIN FOR REDEVELOPMENT PURPOSES WHEREAS, the City Council of the City of National City, by adoption of Ordinance No. 95- 2095 on July 18, 1995, approved and adopted the Redevelopment Plan for the National City Redevelopment Project; and, WHEREAS, said Redevelopment Plan provides for the acquisition of real property, if necessary by eminent domain, including the real property commonly known and denominated as 25 West 11th Street National City, California, more particularly described in Exhibit "A" attached hereto and also depicted in the map(s) attached herein; and, WHEREAS, the Community Development Commission of the City of National City has served the owners of the real property located at National City, California with a Notice of Intent to Adopt a Resolution of Necessity to Acquire Real Property by Eminent Domain as required by California Code of Civil Procedure, Section 1245.235. A copy of the Notice is attached hereto as Exhibit "B"; and, WHEREAS, pursuant to the above referenced Notice, the Community Development Commission of the City of National City held a hearing on December 13, 2005, in the City Council Chambers, 1243 National City Boulevard, National City, California to consider acquiring the real property at 25 West 111h Street, National City, California, by eminent domain, for redevelopment purposes and provided all persons a reasonable opportunity to appear and be heard on the matters in Section 1240.030 of the California Code of Civil Procedure. NOW, THEREFORE, BE IT RESOLVED that the Community Development Commission of the City of National City, by a vote of two-thirds or more of its members, hereby finds, determines, declares and resolves as follows: 1. That the public interest, convenience and necessity require the proposed project; 2. That project is planned or located in a manner that will be most compatible with the greatest public good and the least private injury; 3. The property to be acquired as described herein is necessary for the proposed 1 EXHIBIT 1 project; 4. The offer required by Government Code Section 7267.2 together with the appraisal summary statement has been made to the owners of record which offer and appraisal summary statement was in a form and contained all of the disclosures required. (No evidence was presented contending that the appraisal summary statement was inadequate as a matter of law); 5. The real property to be taken is generally described as 25 West 11 m Street, National City, California and is more particularly described in Exhibit "A" attached hereto and made a part hereof which takes precedence over all other descriptions; 6. All conditions and statutory requirements necessary to exercise the power of eminent domain (the right to take) to acquire the property for the Project have been complied with by the Commission; 7. The Commission further finds and declares: a. The acquisition of the subject parcel is in conformity with the National City Redevelopment Project. b. The proposed acquisition for redevelopment of this site is planned in accordance with the National City Redevelopment Project and that the acquisition is necessary for the removal of blighting conditions and influences and to facilitate the redevelopment of property within the Project area. c. That said acquisition has been preceded by the review, adoption and certification of all appropriate environmental documents and reports. BE IT FURTHER RESOLVED, that the legal counsel for the Community Development Commission of the City of National City is hereby authorized and directed to commence such actions and proceedings of eminent domain in the Superior Court of the State of California, County of San Diego, as are necessary to acquire in fee, for the purpose and uses aforesaid, that certain real property commonly known as 25 West 11 m Street, which is situated in the City of National City, and within the County of San Diego, State of California. BE IT FURTHER RESOLVED, that the taking of said real property for redevelopment purposes, specifically, for removal of blight and the assemblage of properties, is authorized by Health and Safety Code Sections 33000, 333020, 333021, 33342, 33391, 33392 and 33691 and is a public use. BE IT FURTHER RESOLVED, that Sections 1240.010, 1240.110, 1240.210, 1240.510 and 1240.610 of the California Code of Civil Procedure, and Sections 37350.5 of the Government Code permit the acquisition referenced herein. 2 PASSED AND ADOPTED this 13th day of December 2005. ATTEST: By: Ben Martinez, Executive Director APPROVED AS TO FORM: By: Nick Inzunza, Chairman By: George H. Eiser, III, City/CDC Attorney 3 EXHIBIT "A" APN: 555-113-05 25 West 11th Street National City, California 91950 Paul R. Brock Legal Description (Full Take) All that certain property situated in the County of San Diego, State of California described as follows: Lots 9 and 10 and the Southeasterly 50 feet of lot 11 in Block 11 of National City in the City of National City, County of San Diego, State of California, according to Map thereof 348 filed in the Office of the County Recorder of San Diego County, October 2, 1882. 6,250 square feet 4 EXHIBIT "B" NOTICE OF INTENT TO ADOPT RESOLUTION OF NECESSITY TO ACQUIRE CERTAIN REAL PROPERTY BY EMINENT DOMAIN (Code of Civil Procedure, Section 1245.235) TO: Paul R. Brock P.O. Box 1503 Chula Vista, CA 91912-1503 Pursuant to the provisions of the California Code of Civil Procedure, Section 1245.235, you have been identified as an owner of certain real property, or interest therein, consisting of the real property and improvements located at 25 West 11* Street (Parcel No. 555-113-0500), which is proposed to be acquired by the Community Development Commission of the City of National City for redevelopment purposes. California Code of Civil Procedure, Section 1240.030 provides that the power of eminent domain may be exercised to acquire property for a proposed project only if the following conditions are established: a. The public interest and necessity require the project. b. The project is planned or located in the manner that will be most compatible with the greatest public good and the least private injury. c. The property sought to be acquired is necessary for the project. The Commission will also determine whether an offer was made pursuant to section 7267.2 of the government code. You are hereby notified that it is the intent of the Community Development Commission of the City of National City, at a hearing to be held on December 13, 2005 at 6:00 p.m. in the City Council Chambers, 1243 National City Boulevard, National City, California 91950, to adopt a Resolution of Necessity to Acquire by Eminent Domain. Said resolution will authorize the Community Page 1 of 2 Development Commission of the City of National City to acquire your real property, or interest therein, for redevelopment purposes, by the exercise of power of eminent domain, as authorized by Health and Safety Code Sections 33342 and 33391. You are further notified that if you file a written request to appear and be heard within fifteen (15) days of the mailing of this notice, you will have the right to appear and be heard concerning the above -quoted conditions set forth in California Code of Civil Procedure 1240.030 as they relate to the intent of the Community Development Commission of the City of National City to acquire your property. Failure to file a written request to appear and be heard by November 25, 2005, will result in a waiver of your right to appear and be heard. Your written request must actually be on file with the Executive Director of the Community Development Commission of the City of National City, as of the above -indicated filing date. Mere deposit of your request in the mail within this time limitation is not sufficient to avoid waiver. All such requests to appear and be heard must be filed with the Executive Director of the Community Development Commission of the City of National City, 140 East 12th Street, Suite B, National City, California 91950. For your convenience, the Board of the Community Development Commission of the City of National City will consider any written comments you may wish to submit to it, pursuant to this notice in lieu of your personal appearance at the hearing. Dated: November 9, 2005 By: -�-- Benjamin Martinez, Executive Director Page 2 of 2 GEORGE H. EISER, III (No. 065706) City/CDC Attorney COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY 140 E. 12th Street, Suite B National City, California 91950 Telephone (619) 336-4250 Facsimile: (619) 336-4286 PROOF OF SERVICE [CCP 1013A (3)] I, the undersigned, am employed in the County of San Diego, State of California. I am over the age of 18 and not a party to the within action; my business address is at 140 E. 12th Street, Suite B, National City, CA 91950. On November 9, 2005 I served the foregoing document(s) described as NOTICE OF INTENT TO ADOPT A RESOLUTION OF NECESSITY TO ACQUIRE CERTAIN REAL PROPERTY BY EMINENT DOMAIN on the parties in this action by placing true copies in a sealed envelope addressed as follows: Paul R. Brock P.O. Box 1503 Chula Vista, CA 91912-1503 [X] BY MAIL — as follows: I am "readily familiar" with the General Counsel's practice of collection and processing correspondence for mailing. Under that practice correspondence would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at National City, California in the ordinary course of business. The envelope was sealed and placed for collection and mailing on this date following our ordinary practices. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after the date of deposit for mailing an affidavit. [ ] BY FAX— as follows: I personally sent to the addressee's facsimile machine number a true copy of the above -described documents. Thereafter I sent a true copy in a sealed envelope addressed and mailed as indicated above. Executed on November 9, 2005 at National City California. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. NOTICE OF INTENT TO ADOPT RESOLUTION OF NECESSITY TO ACQUIRE CERTAIN REAL PROPERTY BY EMINENT DOMAIN (Code of Civil Procedure, Section 1245.235) TO: Paul R. Brock P.O. Box 1503 Chula Vista, CA 91912-1503 Pursuant to the provisions of the California Code of Civil Procedure, Section 1245.235, you have been identified as an owner of certain real property, or interest therein, consisting of the real property and improvements located at 25 West 11th Street (Parcel No. 555-113-0500), which is proposed to be acquired by the Community Development Commission of the City of National City for redevelopment purposes. California Code of Civil Procedure, Section 1240.030 provides that the power of eminent domain may be exercised to acquire property for a proposed project only if the following conditions are established: a. The public interest and necessity require the project. b. The project is planned or located in the manner that will be most compatible with the greatest public good and the least private injury. c. The property sought to be acquired is necessary for the project. The Commission will also determine whether an offer was made pursuant to section 7267.2 of the government code. You are hereby notified that it is the intent of the Community Development Commission of the City of National City, at a hearing to be held on December 13, 2005 at 6:00 p.m. in the City Council Chambers, 1243 National City Boulevard, National City, California 91950, to adopt a Resolution of Necessity to Acquire by Eminent Domain. Said resolution will authorize the Community Page 1 of 2 EXHIBIT 2 Development Commission of the City of National City to acquire your real property, or interest therein, for redevelopment purposes, by the exercise of power of eminent domain, as authorized by Health and Safety Code Sections 33342 and 33391. You are further notified that if you file a written request to appear and be heard within fifteen (15) days of the mailing of this notice, you will have the right to appear and be heard concerning the above -quoted conditions set forth in California Code of Civil Procedure 1240.030 as they relate to the intent of the Community Development Commission of the City of National City to acquire your property. Failure to file a written request to appear and be heard by November 25, 2005, will result in a waiver of your right to appear and be heard Your written request must actually be on file with the Executive Director of the Community Development Commission of the City of National City, as of the above -indicated filing date. Mere deposit of your request in the mail within this time limitation is not sufficient to avoid waiver. All such requests to appear and be heard must be filed with the Executive Director of the Community Development Commission of the City of National City, 140 East 12th Street, Suite B, National City, California 91950. For your convenience, the Board of the Community Development Commission of the City of National City will consider any written comments you may wish to submit to it, pursuant to this notice in lieu of your personal appearance at the hearing. Dated: November 9, 2005 By: Benjamin Martinez, Executive Director Page 2 of 2 GEORGE H. EISER, III (No. 065706) City/CDC Attorney COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY 140 E. 12th Street, Suite B National City, California 91950 Telephone (619) 336-4250 Facsimile: (619) 336-4286 PROOF OF SERVICE [CCP 1013A (3)] I, the undersigned, am employed in the County of San Diego, State of California. I am over the age of 18 and not a party to the within action; my business address is at 140 E. 12th Street, Suite B, National City, CA 91950. On November 9, 2005 I served the foregoing document(s) described as NOTICE OF INTENT TO ADOPT A RESOLUTION OF NECESSITY TO ACQUIRE CERTAIN REAL PROPERTY BY EMINENT DOMAIN on the parties in this action by placing true copies in a sealed envelope addressed as follows: Paul R. Brock P.O. Box 1503 Chula Vista, CA 91912-1503 [X] BY MAIL — as follows: I am "readily familiar" with the General Counsel's practice of collection and processing correspondence for mailing. Under that practice correspondence would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at National City, California in the ordinary course of business. The envelope was sealed and placed for collection and mailing on this date following our ordinary practices. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after the date of deposit for mailing an affidavit. [ ] BY FAX — as follows: I personally sent to the addressee's facsimile machine number a true copy of the above -described documents. Thereafter I sent a true copy in a sealed envelope addressed and mailed as indicated above. Executed on November 9, 2005 at National City California. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. mil, ELIZABETH CUMMING %CALM lilt IF All AN. 06 I345-733. RIR I 25 West 11 th Street ,.I,. LK1f ► "l t „i_,I. F. - 4 Atli I [s_e_ 114 MOP WS ■pN Ai NliQtf Ott ICU.IIT 6 AWED N, TO( COACT O TEE SiO,A ♦S>t]SOIS MCLS -, IP WNi r1E ISK P \A PG COMM xd L STREET' S , •n Y11ll^ _sp_' ' -A (r"IQ �� cos '�. I NOV u STREET t S. i MAP 348-NATIONAL CITY RE -FLED 10-46-1110 [ 1 ElT7wf'_*ir7 QM Ma r,11C7L CM221 MIN= CM IMMO CIN`r ia �r=.I _._ IN =IIM.= INNMI.MN -- et. NINEM.M NINE MUM NIMU.ee. NI MUNN MN --_._ --MIN MINN MINI SEP1eON EXHIBIT 3 LAW OFFICES of DON DETISCH Attorneys at Law Donald W. Detisch Jackie Ni Mhairtin Shelly Johnson, Paralegal/Notary Public August 30, 2005 VIA CERTIFIED MAIL Paul R. Brock P.O. Box 1503 Chula Vista, CA 91912-1503 RE: 25 West 11`h Street, National City, CA 91950 Dear Property Owner: 110 West A Street, Suite 750 San Diego, California 92101 Tel. (619) 515-1140 Fax (619) 235-9100 e-mail: detischlaw(isbcglobal.net The Community Development Commission of the City of National City has previously approved plans for the downtown National City redevelopment project. This project requires the acquisition of your property. Therefore, in exchange for fee title to the subject property, free and clear of any and all recorded or unrecorded adverse encumbrances or conditions, the Community Development Commission of the City of National City hereby offers to acquire your property located at 25 West I Ith Street, National City, California 91950, for the sum of $545,000. This offer is subject to the Commission's approval at its sole discretion of the proposed price and of the acceptance of a deed to the property free and clear of all encumbrances. If this contingent offer is acceptable to you we will prepare the necessary documents for your execution and will open an escrow at your earliest convenience. The Commission's offer is the full amount determined to be just compensation for the property and is based upon an independent appraisal made of your property by Robert Backer, MAI. The basis for that determination is explained in the attached Information and Appraisal Summary Statement. It is the Commission's hope that this price is agreeable to you and that the acquisition can begin immediately. The Commission's special counsel, Donald W. Detisch, will work with you in the acquisition of your property and answer any questions you may have regarding EXHIBIT 4 this letter and the Information and Appraisal Summary Statements. Mr. Detisch can be contacted at (619) 515-1140. This offer is further subject to and conditioned upon acceptable soils conditions and the absence from the property of toxic or hazardous substances and any other kind of soil or water contamination, and to the grant of a right -of -entry to the Commission for the purpose of conducting a soils, toxic and hazardous substances investigation of the subject property at Commissioner's expense. This offer may be subject to modification depending on the results of said investigation to the extent that the result of such investigation could have an impact on the value of the subject property. For your information, the Community Development Commission is a State Redevelopment Agency created by the City of National City to administer the National City Redevelopment Project. In that capacity, the Commission is authorized to make offers for acquisition of property on behalf of the Commission and to oversee the negotiation process as it pertains to your particular piece of property. In order to establish your eligibility or the eligibility of those occupying your property, for relocation purposes, it is requested that you acknowledge receipt of this offer by signing a copy of this letter and returning the same to Donald W. Detisch. Furthermore, by signing below, you are acknowledging receipt the appraisal summary statement, which is being provided to you with this offer. Your signature on the copy does not signify acceptance of this offer to settle the acquisition by the Commission, it only acknowledges receipt of the Commission's offer. Your cooperation in this matter will be _ eatly appreciated. cc: clients I hereby acknowledge receipt of the following: 1. Offer Letter; 2. Appraisal Summary Statement and Information Dated: Signed: SUMMARY OF THE BASIS FOR THE AMOUNT ESTABLISHED AS JUST COMPENSATION (accompanying offer made pursuant to Government Code § 7267.2) The following is a summary of the basis for the amount that the Community Development Commission of the City of National City established as just compensation, which was derived from an appraisal as approved by the Community Development Commission of the City of National City. The appraisal was made in accordance with the accepted appraisal principles, consistent with California valuation law. A statement of the appraisal process, which was the basis for the valuation conclusions, follows. Project: Downtown Redevelopment Area / Park Village Parcel No.: 555-113-05 Thomas Bros. No.: 1309-H2 Ownership Data: Name: Paul R. Brock Address: P.O. Box 1503, Chula Vista, CA 91912-1503 Phone: (619) 993-9190 Property Location: 25 West 11`h Street, National City, CA 91950 Legal Description: See attached legal description Land Area: 6,250 square feet Land Area of Portion Being Acquired: 6,250 square feet Improvements: Automotive repair facility and garage space Zoning: MLR (Light Industrial / Residential) Present Use: Automotive Repair / Machine Shop Highest and Best Use: Current Use Interest Being Valued: Fee Simple Effective Date of Value: August 1, 2005 Value of Interest Being Acquired: $545,000 TOTAL VALUE OF JUST COMPENSATION: $545,000 Fair Market Value Fair Market Value is defined, by California law, as the highest price on the date of valuation that would be agreed to by a seller, being willing to sell but under no particular or urgent necessity for so doing, nor obligated to sell, and a buyer, being ready, willing, and able to buy but under no particular necessity for so doing each dealing with the other with full knowledge of all the uses and purposes for which the property is reasonably adaptable and available. Highest and Best Use Highest and Best Use is defined as the reasonably probable and legal use of land that is legally permissible, physically possible, and financially feasible resulting in the highest value. Highest and Best Use analysis is used in the appraisal process to identify comparable properties and, where applicable, to determine whether the existing improvements should be retained, renovated, or demolished, The results of the Highest and Best Use are: Present Use — Automotive Repair / Machine Shop Applicable Zoning — MLR (Light Industrial / Residential) The subject is located within the National City Downtown Specific Plan, Zone 6. Highest and Best Use as if Vacant — Development in joinder with adjacent parcels. Highest and Best Use as Improved — Current Use Method of Calculation of Value: There are three conventional methods that can be used to estimate value of real property. These are the sales comparison approach, the cost approach, and the income approach. The sales comparison approach and the income approach were used by the appraiser to value the real property in this case. The appraiser considered these approaches to be the best indicators of fair market value for this property. Income Approach When using the income approach the appraiser determines a value for income producing property by converting the anticipated net income (rent) into a value by using a set of procedures. The appraiser considered this approach to be a good indicator of fair market value for this property because a majority of its improved area is leased. In this case, the appraiser used a capitalization rate of 5.55% and considered the following rents for the un-rented portion of the subject property: Comparable Rent 1: $1.06 Comparable Rent 2: $1.32 Comparable Rent 3: $0.95 y�s' .li��slgl':z<1��+� S'ilPi ��- SY,, •' }e t3FY.. Y Y • 1007 Service Place, Vista, CA 92084 • 4,746 square feet • Newer building, lease ended January 1, 2005 • 301 16th Street, San Diego, CA 92101 • 1,926 square feet • 25 West 11th Street, National City, CA 91950 • 2,625 square feet • Subject Property The income approach resulted in a value indication of $530,000. Sales Comparison Approach When using the sales comparison approach, the appraiser determines the fair market value of the property by comparing the sales price of recent transactions involving similar properties. In this case the appraiser considered five transactions (see attached comparable data sheets). These properties were found to be similar to the property because they had similar improvements. Based on these transactions a value of $210.00 per square foot was determined to represent the fair market value of the automotive repair portion of the subject property. The total value of this portion of the subject property is calculated below: $210.00/SF X 2,500 square feet = $525,000 Some consideration must be given to the garage occupied by the property owner. The appraiser has calculated the depreciated value of these additional improvements with the Marshall and Swift SwiftEstimator. This cost analysis resulted in a depreciated value of $30,127. The total value of the subject property as estimated by the sales comparison approach is calculated below: $525,000 + $30,127 = $555,127 Say, $555,000 (Rounded) Final Reconciliation The process of reconciliation involves the analysis of each approach to value. The quality of data applied, the significance of each approach as it relates to market behavior and defensibility of each approach are considered and weighed. In this appraisal, two approaches to value were applied. Value Indication Income Approach $530,000 Sales Comparison Approach $555,000 Income Approach This approach has been conducted utilizing current data pertaining to properties similar in nature to the subject. The data used in this analysis is of good quality and has resulted in an accurate analysis based on the subject's income potential. Sales Comparison Approach Improved properties built for automotive repair use have been compared to the similarly improved areas of the subject property. Price per improved square foot was selected as the best unit of comparison. The sales comparison analysis resulted in a narrow range of adjusted values, from which an estimated value of the subject property has been determined. TOTAL VALUE OF JUST COMPENSATION: $545,000 Legal Description All that certain property situated in the County of San Diego, State of California described as follows: Lots 9 and 10 and the Southeasterly 50 feet of lot 11 in Block 11 of National City in the City of National City, County of San Diego, State of California, according to map thereof no. 348, filed in the Office of the County Recorder of San Diego County, October 2, 1882. Comparable 1 Property Type: Retail - Garage Date: 1/5/2005 Location: 1007 Service Place, Vista, CA, Sale Price: $1,075,000 92084 Assessor's Parcel #: 180-184-21 Price Per Square Foot NL.A: $226.51 Grantor: Gardena Auto Center Financing: Cash Grantee: Loudon Corporation (et al) Marketing lime: 5 Days Deed: 2005-0008360 Data Source: CoStar Comps, Public Records Map Grid: 1108-A1 Database#: SDC-23008-05-0520 Property Rights: Fee Simple Confirmation: Neil Sideman (Buyer's Broker) Site Data Site Size (Square Feet): 18,125.00 Site Topography: Level Usable Site Size (Square 18,125.00 Zoning: C-1 Feet): Road Frontage: 100 Frontage Improvements: Sidewalks, Street Lights, Curbs and Gutters Utilities: City Water and Sewer, Traffic Count: 20,200 Electricity Improvement Data Improvements: Automotive Repair Building Number of Units: 1 Gross Building Area (SF): 4.746 Additional Buildings: None Net Leasable Area (SF): 4,746 Other Improvements: None Year Built: 1987 Coverage Ratio: 26% Condition: Good Images ,. • h -r-._. Notes This property was acquired by the existing tenant (Discount Tire). The site also has frontage on South Santa Fe Avenue, Service place is a cul-de-sac occupied by automotive repair/service facilities. It has been reported that the property sold at cap rate of 5.6%, this indicates that the property was leased at $1.06 per square foot per month. Items such as workbenches and lifts were included in the sale. The buyer's broker reports that this was an arms length transaction. The property was under the same ownership since 1989 prior to this transaction. Property Assessor's Property Comparable 2 Broker, County (Listing Type: Retail - Garage Date: 7/29/2004 Location: 225 West 9th Street, National Sale Price: $325,000 City, CA 91950 Parcel #: 555-081-16 Price Per Square Foot NLA: S178.57 Grantor: Smith Family Trust Financing: Conventional Grantee: Hobart & Freida Maze Trust Marketing Time: 44 Days Deed: 2004-0715339 Data Source: Inspection, Records, MLS Map Grid: 1309-G1 MLS#: 042019297 Rights: Fee Simple Confirmation: Vincent Provenzano Broker) Site Data Site Size (Square Feet): 3,049.00 Site Topography: Level Usable Site Size (Square 3,049.00 Zoning: MLR Feet): Road Frontage: -115' Frontage Improvements: Sidewalks, Street Ughts, Curbs and Gutters Utilities: City Water and Sewer, Traffic Count: Nominal Electricity Improvement Data Improvements: FreeStanding Automotive Number of Units: 1 Repair Gross Building Area (SF): 1,820 Additional Buildings: None Net Leasable Area (SF): 1,820 Other Improvements: Fenced Storage Area Year Built: 1965 Coverage Ratio: 60% Condition: Good images — — — -- ;, --"1 __... Notes This property is located near the subject property and has the same zoning designation. This site is within the Downtown Redevelopment Area but is not within one of the designated redevelopment zones of the Downtown Specific Plan. This particular site has been proposed to be part of the linear park that will run adjacent to 1-5. The transaction was arm's length and did not include the existing business. Items such as workbenches and lifts were included in the sale. This property was previously sold on May 1, 2000 for $95.000. Comparable 3 Property Type: Retail - Garage Date: 11/26/2003 Location: 4875 El Cajon Boulevard, San Sale Price: $550,000 Diego, CA 92115 Assessor's Parcel #: 471-281-23 Price Per Square Foot NLA: $203.70 Grantor. Minh N. Nguyen Financing: Conventional Grantee: Hong & Gang Huynh Marketing Time: Unknown Deed: 2003-1421211 Data Source: CoStar Comps, Public Records Map Grid: 1270-C4 Database#: SDC-36613-01-0420 Property Rights: Fee Simple Confirmation: See Notes Site Data Site Size (Square Feet): 5,898.00 Site Topography: Level Usable Site Size (Square 5,898.00 Zoning: CUPD-CU-2-3 Feet): Road Frontage: —52' Frontage Improvements: Sidewalks, Street Lights, Curbs and Gutters Utilities: City Water and Sewer, Traffic Count: 24,900 Electricity Improvement [Sate Improvements: Free Standing Automotive Number of Units: 1 Repair Gross Building Area (SF): 2.700 Additional Buildings: None Net Leasable Area (SF): 2,700 Other improvements: Fenced Storage Area Year Built: Unknown Coverage Ratio: 46% Condition: Average Images y. ,{{7 Notes This property is situated on a busy portion of El Cajon Boulevard near other automotive related properties. The property was purchased by the existing tenant in an arm's length transaction. Items such as workbenches and lifts were included in the sale. This property was previously sold on June 1, 1999 for $250,000. Despite numerous attempts to directly contact the parties involved in this transaction confirmation has not been obtained due to a language barrier. The data provided by CoStar is consistent with public record and is believed to be correct. Comparable 4 Property Type: Retail - Garage Date: 9/19/2003 Location: 140 Broadway, Chula Vista, Sale Price: $550,000 CA 91910 Assessor's Parcel #: 565-162-16 Price Per Square Foot NLA: $216.79 Grantor: Sergio F. Garcia (et al) Financing: Conventional Grantee: Benjamin & Imelda Castaneda Marketing Time: Unknown Deed: 2003-1157143 Data Source: CoStar Comps, Public Records Map Grid: 1309J6 Database#: SDC-07520-03-0420 Property Rights: Fee Simple Confirmation: See Notes Site Data Site Size (Square Feet): 6.000.00 Site Topography: Level Usable Site Size (Square 6,000.00 Zoning: CT Feet): Road Frontage: 50' Frontage Improvements: Sidewalks, Street Lights, Curbs and Gutters Utilities: City Water and Sewer, Traffic Count: 28,400 Electricity Improvement Data Improvements: Free Standing Auto Repair Number of Units: 1 Gross Building Area (SF): 2,537 Additional Buildings: None Net Leasable Area (SF): 2,537 Other Improvements: None Year Built: 1965 Coverage Ratio: 42% Condition: Good _ 111a99s . Notes This property is located on a heavily traveled portion of Broadway in the nearby City of Chula Vista. Items such as workbenches and lifts were included in the sale. Despite numerous attempts to directly contact the parties involved in this transaction confirmation has not been obtained due to a language barrier. The data provided by CoStar is consistent with public record and is believed to be correct. This property had been under the same ownership since 1962 prior to this transaction. 1 Comparable 5 Property Type: Retail - Garage Date: 4/15/2003 Location: 301 16th Street, San Diego, Sale Price: $510,000 CA 92101 Assessors Parcel #: 535-394-04 Price Per Square Foot NLA: $264.80 Grantor. Edith Torres Financing: Conventional Grantee: Toan Pham Marketing Time: 166 Days Deed: 2003-0429317 Data Source: CoStar Comps, Public Records Map Grid: 2003-0429317 Database#: SDC-42225-05-0320 Property Rights: Fee Simple Confirmation: Sam Patella (current listing broker) Site Data Site Size (Square Feet): 5,000.00 Site Topography: Level Usable Site Size (Square 5,000.00 Zoning: CCPD-C Feet): Road Frontage: 50' on 16th 100' on K Frontage Improvements: Sidewalk, Streetlights, Curbs and Gutters Utilities: City water and Sewer, Traffic Count 8,400 Electricity Improvement balta Improvements: Free Standing Auto Repair Number of Units: 1 Gross Building Area (SF): 1,926 Additional Buildings: None Net Leasable Area (SF): 1,928 Other Improvements: Fenced Storage Area Year Built: 1947 Coverage Ratio: 39% Condition: Average Image§ _t _. F ' _ 8 • Notes It is reported that this property sold at a 5.98% cap rate, which indicates that the rent at the time of this transaction was $1.32 per square foot per month. This was an arms length transaction with a third party buyer. The property is currently under contract for $1,150,000. The current contract price does not represent the value of the current use, the Highest and Best Use as Vacant of this site Is now development with offices and several condominiums. This property was also sold on April 1, 1997 for $175,000. Nov 22 05 01:09p Goebel Law Offices 6192394269 p.2 619/239.2611 LAW OFFICES OF LOUIS E. GOEBEL 110 West A Street, Suite 600 San Diego, California 92101 E-mail: rmm®goebellaw.com 0 0 0 November 22, 2005 Benjamin Martinez, . Executive Director Community Development Commission of the City of National City City of National City 140 East 12th Street, Suite B National City, CA 91950 FAX 619 239-4269 VIA EXPRESS MAIL Re: Objection to Resolution of Necessity to Acquire by Eminent Domain the Real Property and Improvements located at 25 West 11 ' Street Dear Mr. Martinez: This office represents Paul R. Brock whose property is affected by the acquisition for redevelopment purposes. We are advised that the Community Development Commission of the City of National City intends to hold a public hearing on December 13, 2005, to consider passage of a Resolution of Necessity to condemn our client's property for the above -referenced project. Our client objects to the passage of this Resolution of Necessity. We lodge the following objections concerning the matters addressed in California Code of Civil Procedures ections 1240.010, et seq. The requirements of California Code of Civil Procedure Section 1240.030 have not been met, specifically: (A) the public interest and necessity do not require the project; (B) the project is not planned or located in a manner that will be most compatible with the greatest public good and least private injury; and (C) the property sought to be acquired is not necessary for the project. In addition, we object on the following grounds: prior to this scheduled hearing, the Commission has made a predetermination to proceed with the project, regardless of the record considered at the hearing; the offer to acquire did not include compensation for all property interests taken or damaged; the environmental processing was not • EXHIBIT 5 Nov 22 05 01:09p Goebel Law Offices 6192394269 p.3 accomplished according to law; and notice of this hearing was inadequate. We request that this letter be placed in the record in connection with this matter. Very truly yours, LAW OFFICES OF LOUIS E. GOEBEL Robert M. Miller Attorney at Law rmm/ey cc: George H. Eiser, III, Esq. / CDC Attorney (via fax) Don Detisch, Esq. Paul R. Brock (via mail) 2 .. /.1 ,nn/1 7fT .. n0 r .nn sin non. COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY December 13, 2005 AGENDA ITEM NO. 6 TO: CHAIRMAN AND BOARD MEMBERS C\}-- FROM: BENJAMIN MARTINEZ, EXECUTIVE DIRECTOR SUBJECT: PUBLIC HEARING AND RESOLUTION NO. 2005-111: PUBLIC HEARING OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY TO CONSIDER PUBLIC NECESSITY IN CONJUNCTION WITH THE ACQUISITION OF REAL PROPERTY LOCATED AT 1031 ROOSEVELT AVENUE, OWNED BY HENSCHEL TRUST AND A RESOLUTION OF NECESSITY OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY TO ACQUIRE REAL PROPERTY LOCATED AT 1031 ROOSEVELT AVENUE, OWNED BY HENSCHEL TRUST, BY EMINENT DOMAIN Recommendation: Community Development Commission staff recommends that the Community Development Commission Board: HOLD the Public Hearing of the Community Development Commission of the City of National City to consider public necessity in conjunction with the acquisition of Real Property located at 1031 Roosevelt Avenue, owned by Henschel Trust; and, APPROVE a Resolution of Necessity of the Community Development Commission of the City of National City to acquire Real Property located at 1031 Roosevelt Avenue, owned by Henschel Trust, by eminent domain. Fiscal Impact: A developer deposit of $812,000 will be used for the acquisition from Account 900912. The developer will reimburse all legal and associated fees associated with the project. Community Development Commission Agenda Item No. 6 December 13, 2005 Page 1 of 3 Environmental Impact: The project is consistent with the Certified EIR for the National City Downtown Specific Plan and is consistent with Section 15180 of the California Environmental Quality Act Guidelines; these actions do not require additional analysis. Notification of the Property Owner: Owner participation rights for this property were extinguished as a result of an Owner Participation process carried out in 2003, resulting in the granting of an Owner Participation Agreement to Jim Beauchamp in February, 2004. On August 30, 2005, the Law Offices of Don Detisch, Special Counsel to the Community Development Commission, delivered a letter offering to purchase the property to Antonia E. Martin, Henschel Trust, 401 West A Street, Suite 1775, San Diego, CA 92101-7907. On November 9, 2005 a Notice of Intent to Adopt a Resolution of Necessity for the use of eminent domain was mailed to Henschel Trust, in San Diego. The Community Development Commission received a letter dated November 22, 2005, from Antonia E. Martin (Trustee) requesting to appear at the hearing and opposing the findings of the Resolution of Necessity. Background: The implementation of the National City Redevelopment Project Area is dependent upon the acquisition of blighted property that currently exists at 1031 Roosevelt Avenue in the National City Downtown Specific Plan Area. The Community Development Commission's acquisition agent has attempted to acquire the above referenced property unsuccessfully, and has made an offer of just compensation to the property owner based on the professional appraisal prepared for the Community Development Commission. The subject property is located at 1031 Roosevelt Avenue. It is in the best public interest with the least injury that the site be acquired to allow for the elimination of blight, the opportunity for redevelopment, the creation of additional jobs, and the increase of public benefit. The project will include the redevelopment of the site with the Park Village mixed -use condominium and retail project, approved by action of the Commission authorizing an Owner Participation Agreement with Beauchamp Family Trust on February 22, 2004. The use of eminent domain to facilitate redevelopment is necessary and appropriate. The developer was unable to acquire the site after extensive negotiations. The Community Development Commission December 13, 2005 Page 2 of 3 Agenda Item No. 6 Community Development Commission was also unable to acquire the site after negotiations. The project would result in annual tax increment revenues to the Community Development Commission of approximately $940,000. The project will provide new housing and retail opportunities for the community and significantly enhance the Downtown Area. In order for the Community Development Commission to exercise its power of eminent domain the Community Development Commission must first conduct a Public Hearing of Necessity at which the property owners are entitled to appear and voice their concerns. The attached Resolution of Necessity sets -forth the public interest and necessity of the proposed use of eminent domain. The property owner has the opportunity to address these issues at the Public Hearing of Necessity held in conjunction with the consideration of this Resolution. The purpose of the Hearing is not to address the amount of compensation to be paid to the property owner. Attached hereto is a copy of the Notice of Intent to Adopt Resolution of Necessity to Acquire Certain Retail Property by Eminent Domain (Code of Civil Procedure, Section 1245.235) sent to Antonia Martin, Trustee for the Henschel Trust. With this, Community Development Commission staff recommends that the Community Development Commission Board hold the Public Hearing of the Community Development Commission of the City of National City to consider public necessity in conjunction with the acquisition of Real Property located at 1031 Roosevelt Avenue, owned by Henschel Trust and approve a Resolution of Necessity of the Community Development Commission of the City of National City to acquire Real Property located at 1031 Roosevelt Avenue, owned by Henschel Trust, by eminent domain. ATTACHMENTS: EXHIBIT 1 EXHIBIT 2 EXHIBIT 3 EXHIBIT 4 EXHIBIT 5 Staff member: Beard — Resolution No. 2005-111 — Notice of Intent — Site Map — Don Detisch letter re: CDC's offer to purchase — Written Request to Appear from Antonia Martin Community Development Commission Agenda Item No. 6 December 13, 2005 Page 3 of 3 RESOLUTION NO. 2005-111 A RESOLUTION OF NECESSITY OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY (CDC) TO ACQUIRE THE REAL PROPERTY AT 1031 ROOSEVELT AVENUE, NATIONAL CITY, CALIFORNIA 91950 OWNED BY HENSCHEL TRUST BY EMINENT DOMAIN FOR REDEVELOPMENT PURPOSES WHEREAS, the City Council of the City of National City, by adoption of Ordinance No. 95- 2095 on July 18, 1995, approved and adopted the Redevelopment Plan for the National City Redevelopment Project; and, WHEREAS, said Redevelopment Plan provides for the acquisition of real property, if necessary by eminent domain, including the real property commonly known and denominated as 1031 Roosevelt Avenue, National City, California, more particularly described in Exhibit "A" attached hereto and also depicted in the map(s) attached herein; and, WHEREAS, the Community Development Commission of the City of National City has served the owners of the real property located at National City, California with a Notice of Intent to Adopt a Resolution of Necessity to Acquire Real Property by Eminent Domain as required by California Code of Civil Procedure, Section 1245.235. A copy of the Notice is attached hereto as Exhibit "B"; and, WHEREAS, pursuant to the above referenced Notice, the Community Development Commission of the City of National City held a hearing on December 13, 2005, in the City Council Chambers, 1243 National City Boulevard, National City, California to consider acquiring the real property at 1031 Roosevelt Avenue, National City, California, by eminent domain, for redevelopment purposes and provided all persons a reasonable opportunity to appear and be heard on the matters in Section 1240.030 of the California Code of Civil Procedure. NOW, THEREFORE, BE IT RESOLVED that the Community Development Commission of the City of National City, by a vote of two-thirds or more of its members, hereby finds, determines, declares and resolves as follows: 1. That the public interest, convenience and necessity require the proposed project; 2. That project is planned or located in a manner that will be most compatible with the greatest public good and the least private injury; 3. The property to be acquired as described herein is necessary for the proposed project; 1 EXHIBIT 1 4. The offer required by Government Code Section 7267.2 together with the appraisal summary statement has been made to the owners of record which offer and appraisal summary statement was in a form and contained all of the disclosures required. (No evidence was presented contending that the appraisal summary statement was inadequate as a matter of law); 5. The real property to be taken is generally described as 1031 Roosevelt Avenue, National City, California and is more particularly described in Exhibit "A" attached hereto and made a part hereof which takes precedence over all other descriptions; 6. All conditions and statutory requirements necessary to exercise the power of eminent domain ("the right to take") to acquire the property for the Project have been complied with by the Commission; 7. The Commission further finds and declares: a. The acquisition of the subject parcel is in conformity with the National City Redevelopment Project. b. The proposed acquisition for redevelopment of this site is planned in accordance with the National City Redevelopment Project and that the acquisition is necessary for the removal of blighting conditions and influences and to facilitate the redevelopment of property within the Project area. c. That said acquisition has been preceded by the review, adoption and certification of all appropriate environmental documents and reports. BE IT FURTHER RESOLVED, that the legal counsel for the Community Development Commission of the City of National City is hereby authorized and directed to commence such actions and proceedings of eminent domain in the Superior Court of the State of California, County of San Diego, as are necessary to acquire in fee, for the purpose and uses aforesaid, that certain real property commonly known as 1031 Roosevelt Avenue, which is situated in the City of National City, and within the County of San Diego, State of California. BE IT FURTHER RESOLVED, that the taking of said real property for redevelopment purposes, specifically, for removal of blight and the assemblage of properties, is authorized by Health and Safety Code Sections 33000, 333020, 333021, 33342, 33391, 33392 and 33691 and is a public use. BE IT FURTHER RESOLVED, that Sections 1240.010, 1240.110, 1240.210, 1240.510 and 1240.610 of the California Code of Civil Procedure, and Sections 37350.5 of the Government Code permit the acquisition referenced herein. !/ 2 PASSED AND ADOPTED this 13th day of December 2005 ATTEST: By: Ben Martinez, Executive Director APPROVED AS TO FORM: By: George H. Eiser, III, City/CDC Attorney 3 By: Nick Inzunza, Chairman EXHIBIT "A" APN: 555-113-04 1031 Roosevelt Avenue National City, California Antonia E. Martin, Trustee, Henschel Trust Legal Description (Full Take) All that certain property situated in the County of San Diego, State of California described as follows: Lots 6, 7 and 8 and all of 11 except the southerly 50 feet thereof in Block 11 of National City in the City of National City, County of San Diego, State of California, according to Map thereof 348 filed in the Office of the County Recorder of San Diego County, October 2, 1882. 9,375 square feet 4 EXHIBIT "Bn NOTICE OF INTENT TO ADOPT RESOLUTION OF NECESSITY TO ACQUIRE CERTAIN REAL PROPERTY BY EMINENT DOMAIN (Code of Civil Procedure, Section 1245.235) TO: Antonia E. Martin Herschel Trust 401 West "A" Street, Suite 1775 San Diego, CA 92101-7907 Pursuant to the provisions of the California Code of Civil Procedure, Section 1245.235, you have been identified as an owner of certain real property, or interest therein, consisting of the real property and improvements located at 1031 Roosevelt Avenue (Parcel No. 555-113-0400), which is proposed to be acquired by the Community Development Commission of the City of National City for redevelopment purposes. California Code of Civil Procedure, Section 1240.030 provides that the power of eminent domain may be exercised to acquire property for a proposed project only if the following conditions are established: a. The public interest and necessity require the project. b. The project is planned or located in the manner that will be most compatible with the greatest public good and the least private injury. c. The property sought to be acquired is necessary for the project. The Commission will also determine whether an offer was made pursuant to section 7267.2 of the government code. You are hereby notified that it is the intent of the Community Development Commission of the City of National City, at a hearing to be held on December 13, 2005 at 6:00 p.m. in the City Council Chambers, 1243 National City Boulevard, National City, California 91950, to adopt a Resolution of Necessity to Page 1 of 2 r i Development Commission of the City of National City to acquire your real property, or interest therein, for redevelopment purposes, by the exercise of power of eminent domain, as authorized by Health and Safety Code Sections 33342 and 33391. You are further notified that if you file a written request to appear and be heard within fifteen (15) days of the mailing of this notice, you will have the right to appear and be heard concerning the above -quoted conditions set forth in California Code of Civil Procedure 1240.030 as they relate to the intent of the Community Development Commission of the City of National City to acquire your property. Failure to file a written request to appear and be heard by November 25, 2005, will result in a waiver of your right to appear and be heard. Your written request must actually be on file with the Executive Director of the Community Development Commission of the City of National City, as of the above -indicated filing date. Mere deposit of your request in the mail within this time limitation is not sufficient to avoid waiver. All such requests to appear and be heard must be filed with the Executive Director of the Community Development Commission of the City of National City, 140 East 12th Street, Suite B. National City, California 91950. For your convenience, the Board of the Community Development Commission of the City of National City will consider any written comments you may wish to submit to it, pursuant to this notice in lieu of your personal appearance at the hearing. Dated: November 9, 2005 By: Benjamin Martinez, Executive Director Page 2 of 2 GEORGE H. EISER, III (No. 065706) City/CDC Attorney COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY 140 E. 12Ih Street, Suite B National City, California 91950 Telephone (619) 336-4250 Facsimile: (619) 336-4286 PROOF OF SERVICE [CCP 1013A (3)] I, the undersigned, am employed in the County of San Diego, State of California. I am over the age of 18 and not a party to the within action; my business address is at 140 E. 12t Street, Suite B, National City, CA 91950. On November 9, 2005 I served the foregoing document(s) described as NOTICE OF INTENT TO ADOPT A RESOLUTION OF NECESSITY TO ACQUIRE CERTAIN REAL PROPERTY BY EMINENT DOMAIN on the parties in this action by placing true copies in a sealed envelope addressed as follows: Antonia E. Martin Herschel Trust 401 West "A" Street, Suite 1775 San Diego, CA 92101-7907 [X] BY MAIL - as follows: I am "readily familiar" with the General Counsel's practice of collection and processing correspondence for mailing. Under that practice correspondence would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at National City, California in the ordinary course of business. The envelope was sealed and placed for collection and mailing on this date following our ordinary practices. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after the date of deposit for mailing an affidavit. [ ] BY FAX - as follows: I personally sent to the addressee's facsimile machine number a true copy of the above -described documents. Thereafter I sent a true copy in a sealed envelope addressed and mailed as indicated above. Executed on November 9, 2005 at National City California. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. ELIZABETH GUMMING NOTICE OF INTENT TO ADOPT RESOLUTION OF NECESSITY TO ACQUIRE CERTAIN REAL PROPERTY BY EMINENT DOMAIN (Code of Civil Procedure, Section 1245.235) TO: Antonia E. Martin Herschel Trust 401 West "A" Street, Suite 1775 San Diego, CA 92101-7907 Pursuant to the provisions of the California Code of Civil Procedure, Section 1245.235, you have been identified as an owner of certain real property, or interest therein, consisting of the real property and improvements located at 1031 Roosevelt Avenue (Parcel No. 555-113-0400), which is proposed to be acquired by the Community Development Commission of the City of National City for redevelopment purposes. California Code of Civil Procedure, Section 1240.030 provides that the power of eminent domain may be exercised to acquire property for a proposed project only if the following conditions are established: a. The public interest and necessity require the project. b. The project is planned or located in the manner that will be most compatible with the greatest public good and the least private injury. c. The property sought to be acquired is necessary for the project. The Commission will also determine whether an offer was made pursuant to section 7267.2 of the government code. You are hereby notified that it is the intent of the Community Development Commission of the City of National City, at a hearing to be held on December 13, 2005 at 6:00 p.m. in the City Council Chambers, 1243 National City Boulevard, National City, California 91950, to adopt a Resolution of Necessity to Page 1 of 2 EXHIBIT 2 Development Commission of the City of National City to acquire your real property, or interest therein, for redevelopment purposes, by the exercise of power of eminent domain, as authorized by Health and Safety Code Sections 33342 and 33391. You are further notified that if you file a written request to appear and be heard within fifteen (15) days of the mailing of this notice, you will have the right to appear and be heard concerning the above -quoted conditions set forth in California Code of Civil Procedure 1240.030 as they relate to the intent of the Community Development Commission of the City of National City to acquire your property. Failure to file a written request to appear and be heard by November 25, 2005, will result in a waiver of your right to appear and be heard. Your written request must actually be on file with the Executive Director of the Community Development Commission of the City of National City, as of the above -indicated filing date. Mere deposit of your request in the mail within this time limitation is not sufficient to avoid waiver. All such requests to appear and be heard must be filed with the Executive Director of the Community Development Commission of the City of National City, 140 East 12th Street, Suite B, National City, California 91950. For your convenience, the Board of the Community Development Commission of the City of National City will consider any written comments you may wish to submit to it, pursuant to this notice in lieu of your personal appearance at the hearing. Dated: November 9, 2005 By: 0) Benjamin Martinez, Executi a Director Page 2 of 2 GEORGE II. EISER, III (No. 065706) City/CDC Attorney COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY 140 E. 12a' Street, Suite B National City, California 91950 Telephone (619) 336-4250 Facsimile: (619) 336-4286 PROOF OF SERVICE [CCP I013A (3)] I, the undersigned, am employed in the County of San Diego, State of California. I am over the age of 18 and not a party to the within action; my business address is at 140 E. 12th Street, Suite B, National City, CA 91950. On November 9, 2005 I served the foregoing document(s) described as NOTICE OF INTENT TO ADOPT A RESOLUTION OF NECESSITY TO ACQUIRE CERTAIN REAL PROPERTY BY EMINENT DOMAIN on the parties in this action by placing true copies in a sealed envelope addressed as follows: Antonia E. Martin Herschel Trust 401 West "A" Street, Suite 1775 San Diego, CA 92101-7907 [X] BY MAIL — as follows: I am "readily familiar" with the General Counsel's practice of collection and processing correspondence for mailing. Under that practice correspondence would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at National City, California in the ordinary course of business. The envelope was sealed and placed for collection and mailing on this date following our ordinary practices. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after the date of deposit for mailing an affidavit. [ ] BY FAX — as follows: I personally sent to the addressee's facsimile machine number a true copy of the above -described documents. Thereafter I sent a true copy in a sealed envelope addressed and mailed as indicated above. Executed on November 9, 2005 at National City California. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. t.ACtotAAAA, ELIZABETH CUMMING 1 1-800-345-7334 SCRUM V11 OF MIMI 06 Y r 17) 1031 Roosevelt Ave t - _ t ' 1 a.b _ � urn 11 I SA W VIAS MEPAID T1AS OSi39614 RSPCISS CAC D MP aa+® ro1 11 man O Tit nu 6046. ASGQ11 S Mimi M.r 101 pigr 66.1 IOW SAMS*. a SAC.CIOIMI'� STREET' Zt _SP• y— ISA b — m♦ / STREET t • 555-1 1 NZYZEVANI G7a7r11?FT^ f711TEM1 MC73 fIra 3S'L7© -B-MEB- -__.8- �__MIS -8-MEM_ -B-B-EB- -B-B-._ -1=111= - -8- SM= - _MEM =1==== - -B-MEM —B-B-U_ -I--BBB -MMBBB- -B-B-BIB- -B-B-UB- -EMIU8- -MIME- -__.s I r- MAP 348-NATIONAL CITY RE -FLED SEP18MB EXHIBIT 3 LAW OFFICES of DON DETISCH Attorneys at Law Donald W. Detisch Jackie Ni Mhairtin Shelly Johnson, Paralegal/Notary Public August 30, 2005 VIA CERTIFIED MAIL Antonia E. Martin 401 West A Street, Suite 1775 San Diego, CA 92101-7907 RE: 1031 Roosevelt Avenue, National City, CA 91950 Dear Property Owner: 110 West A Street, Suite 750 San Diego, California 92101 Tel. (619) 515-1140 Fax (619) 235-9100 e-mail: detischlaw i)sbcglobal.net The Community Development Commission of the City of National City has previously approved plans for the downtown National City redevelopment project. This project requires the acquisition of your property. Therefore, in exchange for fee title to the subject property, free and clear of any and all recorded or unrecorded adverse encumbrances or conditions, the Community Development Commission of the City of National City hereby offers to acquire your property located at 1031 Roosevelt Avenue, National City, California 91950, for the sum of $812,000. This offer is subject to the Commission's approval at its sole discretion of the proposed price and of the acceptance of a deed to the property free and clear of all encumbrances. If this contingent offer is acceptable to you we will prepare the necessary documents for your execution and will open an escrow at your earliest convenience. The Commission's offer is the full amount determined to be just compensation for the property and is based upon an independent appraisal made of your property by Robert Backer, MAI. The basis for that determination is explained in the attached Information and Appraisal Summary Statement. It is the Commission's hope that this price is agreeable to you and that the acquisition can begin immediately. The Commission's special counsel, Donald W. Detisch, will work with you in the acquisition of your property and answer any questions you may have regarding EXHIBIT 4 this letter and the Information and Appraisal Summary Statements. Mr. Detisch can be contacted at (619) 515-1140. This offer is further subject to and conditioned upon acceptable soils conditions and the absence from the property of toxic or hazardous substances and any other kind of soil or water contamination, and to the grant of a right -of -entry to the Commission for the purpose of conducting a soils, toxic and hazardous substances investigation of the subject property at Commissioner's expense. This offer may be subject to modification depending on the results of said investigation to the extent that the result of such investigation could have an impact on the value of the subject property. For your information, the Community Development Commission is a State Redevelopment Agency created by the City of National City to administer the National City Redevelopment Project. In that capacity, the Commission is authorized to make offers for acquisition of property on behalf of the Commission and to oversee the negotiation process as it pertains to your particular piece of property. In order to establish your eligibility or the eligibility of those occupying your property, for relocation purposes, it is requested that you acknowledge receipt of this offer by signing a copy of this letter and returning the same to Donald W. Detisch. Furthermore, by signing below, you are acknowledging receipt of the appraisal summary statement, which is being provided to you with this offer. Your signature on the copy does not signify acceptance of this offer to settle the acquisition by the Commission, it only acknowledges receipt of the Commission's offer. Your cooperation in this matter will be great] a cc: clients I hereby acknowledge receipt of the following: 1. Offer Letter; 2. Appraisal Summary Statement and Information Dated: Signed: SUMMARY OF THE BASIS FOR THE AMOUNT ESTABLISHED AS JUST COMPENSATION (accompanying offer made pursuant to Government Code § 7267.2) The following is a summary of the basis for the amount that the Community Development Commission of the City of National City established as just compensation, which was derived from an appraisal as approved by the Community Development Commission of the City of National City. The appraisal was made in accordance with the accepted appraisal principles, consistent with California valuation law. A statement of the appraisal process, which was the basis for the valuation conclusions, follows. Project: Downtown Redevelopment Area / Park Village Parcel No.: 555-113-04 Thomas Bros. No.: 1309-H2 Ownership Data: Name: Antonia E. Martin, Trustee of the Henschel Trust dated November 23, 2004 Address: 401 West A Street, Suite 1775 San Diego, CA 92101-7907 Phone: (619)231-7575 Property Location: 1031 Roosevelt Avenue National City, CA 91950 Legal Description: See attached legal description Land Area: 9,375 square feet Land Area of Portion Being Acquired: 9,375 square feet Improvements: Masonry building and wood frame apartment Zoning: MLR (Light Industrial / Residential) Present Use: Mixed Use Highest and Best Use: Current Use Interest Being Valued: Leased Fee Effective Date of Value: August 1, 2005 Value of Interest Being Acquired: $812,000 TOTAL VALUE OF JUST COMPENSATION: $812,000 Fair Market Value Fair Market Value is defined, by California law, as the highest price on the date of valuation that would be agreed to by a seller, being willing to sell but under no particular or urgent necessity for so doing, nor obligated to sell, and a buyer, being ready, willing, and able to buy but under no particular necessity for so doing each dealing with the other with full knowledge of all the uses and purposes for which the property is reasonably adaptable and available. Highest and Best Use Highest and Best Use is defined as the reasonably probable and legal use of land that is legally permissible, physically possible, and financially feasible resulting in the highest value. Highest and Best Use analysis is used in the appraisal process to identify comparable properties and, where applicable, to determine whether the existing improvements should be retained, renovated, or demolished, The results of the Highest and Best Use are: Present Use — Mixed Use (commercial, light industrial and residential) Applicable Zoning — MLR (Light Industrial / Residential) The subject is located within the National City Downtown Specific Plan, Zone 6. Highest and Best Use as if Vacant — Development in joinder with adjacent parcels. Highest and Best Use as Improved — Current Use Method of Calculation of Value: There are three conventional methods that can be used to estimate value of real property. These are the sales comparison approach, the cost approach, and the income approach. The income approach was the approach used by the appraiser to value the real property in this case. The appraiser considered this approach to be the best indicator of fair market value for this property. Income Approach When using the income approach the appraiser determines a value for income producing property by converting the anticipated net income (rent) into a value by using a set of procedures. The appraiser considered this approach to be the best indicator of fair market value for this property because it is an income producing property whose true value is not reflected in comparable sales. In this case, the appraiser used a capitalization rate of 6.5% and considered the following rents for the residential and industrial portions of the subject property. The retail portion of the subject property is considered to be rented at market rate. Comparable Rent 1: $725 • 116 Palm Avenue, National City, CA 91950 • Approximately 630 square feet • 1 bedroom, 1 bathroom • Medium density apartments Comparable Rent 2: $825 • 1702-06 I Avenue, National City, CA 91950 • Approximately 672 square feet • 2 bedrooms, 1 bathroom • Triplex Comparable Rent 3: $975 • 2830 East 8`h Street, National City, CA 91950 • Approximately 700 square feet • 2 bedrooms, 1 bathroom • Duplex Comparable Rent 4: $975 • 1516 Roosevelt Avenue, National City, CA 91950 • Approximately 800 square feet • 2 bedrooms, 1 bathroom • Located in MLR zone, home occupation allowed. Comparable Rent 5: $1,250 • 1207 East 8th Street, National City, CA 91950 • 1,266 square feet • 2 bedrooms, 1 bathroom • Small house Comparable Rent 6: $1,400 • 521 L Avenue, National City, CA 91950 • Approximately 1,250 square feet • 2 bedrooms, 1 bath • Small house with garage • Recently remodeled Comparable Rent 7: $0.73/SF • 100 35`h Street Suite S, National City, CA 91950 • 3,354 square feet • Began June 2004, term of 36 months • Warehousing and light manufacturing Comparable Rent 8: $0.73/SF • 205 West 35th Street Suite A, National City, CA 91950 • 2,664 square feet • Began May 2004, term of 36 months Comparable Rent 9: $0.79/SF • 2827 Hoover Avenue Suite D, National City, CA 91950 • 1,570 square feet • Began March 2004, term of 36 months • Warehousing and administration for electrical contractor Comparable Rent 10: $0.73/SF • 436 West 8th Street Suite A, National City, CA 91950 • 2,400 square feet • Began March 2004, term of 24 months • Warehousing and distribution of laundry equipment Comparable Rent 11: $0.73/SF • 2827 Hoover Avenue Suites E&F, National City, CA 91950 • 2,590 square feet • Began March 2004, term of 36 months Comparable Rent 12: $0.73/SF • 1533 Wilson Avenue Suite A, National City, CA 91950 • 3,538 square feet • Began January 2004, term of 36 months Comparable Rent 13: $0.60/SF • 3039 Hoover Avenue, National City, CA 91950 • 13,420 square feet • Began January 2004, term of 60 months • Warehouse for shipyard repair operations The income approach resulted in a value indication of S812,000. TOTAL VALUE OF JUST COMPENSATION: $812,000 Legal Description All that certain property situated in the County of San Diego, State of California described as follows: Lots 6, 7 and 8 and all of 11, except the southerly 50 feet thereof in Block 11 of National City in the City of National City, County of san Diego, State of California, according to Map thereof 348 filed in the Office of the County Recorder of san Diego County, October 2, 1882. LAW OFF7033 OF Antonia E. Martin 401 WEST "A" STREET, SUITE 1775 SAN DIEGO, CALIFORNIA 92101-7901 TELEPHONE (619) 231-7575 FAX (619) 231-7593 EMAIL aemartin@ix.netcom,corn November 22, 2005 HAND DELIVERED Executive Director Community Development Commission of the City of National City 140 East 12th Street, Suite B National City, CA 91950 RE: Written Request to Appear and Be Heard Hearing Of CDC of City of National City December 13, 2005 6:00 PM 1031 Roosevelt Ave, National City, CA Parcel No. 555-113-0400 (per notice) Dear Sir/Madam: Having received the attached Notice of Intent to Adopt Resolution of Necessity to Acquire Certain Real Property by Eminent Domain at the above identified hearing, the undersigned hereby makes this written request to appear and be heard in opposition to the findings that the conditions specified in said notice have been established. ANTONIA E. MARTIN Trustee of the Henschel Trust Owner of 1031 Roosevelt Ave, National City, CA EXiHIBIT 5 COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY December 13, 2005 AGENDA ITEM NO. 7 TO: CHAIRMAN AND BOARD MEMBERS 6 FROM: BENJAMIN MARTINEZ, EXECUTIVE DIRECTOR SUBJECT: PUBLIC HEARING AND RESOLUTION NO. 2005-112: PUBLIC HEARING OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY TO CONSIDER PUBLIC NECESSITY IN CONJUNCTION WITH THE ACQUISITION OF REAL PROPERTY LOCATED AT 1040 NATIONAL CITY BOULEVARD, OWNED BY YOUNG SOOK KIM AND A RESOLUTION OF NECESSITY OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY TO ACQUIRE REAL PROPERTY LOCATED AT 1040 NATIONAL CITY BOULEVARD, OWNED BY YOUNG SOOK KIM, BY EMINENT DOMAIN Recommendation: Community Development Commission staff recommends that the Community Development Commission Board: HOLD the Public Hearing of the Community Development Commission of the City of National City to consider public necessity in conjunction with the acquisition Real Property located at 1040 National City Boulevard, owned by Young Sook Kim; and, APPROVE a Resolution of Necessity of the Community Development Commission of the City of National City to acquire Real Property located at 1040 National City Boulevard, owned by Young Sook Kim, by eminent domain. Fiscal Impact: A developer deposit of $1,450,000 will be used for the acquisition from Account 900912. The developer will reimburse all legal and associated fees associated with the project. Community Development Commission Agenda Item No. 7 December 13, 2005 Page 1 of 3 Environmental Impact: The project is consistent with the Certified EIR for the National City Downtown Specific Plan and is consistent with Section 15180 of the California Environmental Quality Act Guidelines; these actions do not require additional analysis. Notification of the Property Owner: Owner participation rights for this property were extinguished as a result of an Owner Participation process carried out in 2003, resulting in the granting of an Owner Participation Agreement to Jim Beauchamp in February, 2004. On August 30, 2005, the Law Offices of Don Detisch, Special Counsel to the Community Development Commission, delivered a letter offering to purchase the property to John Won and Jamie Yu Yi, 7321 Celata Lane, San Diego, CA 92129. Subsequently, Young Sook Kim received the property by quit claim deed from the Yi family. On November 9, 2005 a Notice of Intent to Adopt a Resolution of Necessity for the use of eminent domain was mailed to Young Sook Kim, in San Diego. The Community Development Commission has not, as of November 28, 2005, received a letter requesting to appear at the hearing and/or opposing the findings of the Resolution of Necessity. Background: The implementation of the National City Redevelopment Project Area is dependent upon the acquisition of blighted property that currently exists at 1040 National City Boulevard in the National City Downtown Specific Plan Area. The Community Development Commission's acquisition agent has attempted to acquire the above referenced property unsuccessfully, and has made an offer of just compensation to the property owner based on the professional appraisal prepared for the Community Development Commission. The subject property is located at 1040 National City Boulevard. It is in the best public interest with the least injury that the site be acquired to allow for the elimination of blight, the opportunity for redevelopment, the creation of additional jobs, and the increase of public benefit. The project will include the redevelopment of the site with the Park Village mixed -use condominium and retail project, approved by action of the Commission authorizing an Owner Participation Agreement with Beauchamp Family Trust on February 22, 2004. Community Development Commission Agenda Item No. 7 December 13, 2005 Page 2 of 3 The use of eminent domain to facilitate redevelopment is necessary and appropriate. The developer was unable to acquire the site after extensive negotiations. The Community Development Commission was also unable to acquire the site after negotiations. The project would result in annual tax increment revenues to the Community Development Commission of approximately $940,000. The project will provide new housing and retail opportunities for the community and significantly enhance the downtown area. In order for the Community Development Commission to exercise its power of eminent domain the Community Development Commission must first conduct a Public Hearing of Necessity at which the property owners are entitled to appear and voice their concerns. The attached Resolution of Necessity sets -forth the public interest and necessity of the proposed use of eminent domain. The property owner has the opportunity to address these issues at the Public Hearing of Necessity held in conjunction with the consideration of this Resolution. The purpose of the Hearing is not to address the amount of compensation to be paid to the property owner. Attached hereto is a copy of the Notice of Intent to Adopt Resolution of Necessity to Acquire Certain Retail Property by Eminent Domain (Code of Civil Procedure, Section 1245.235) sent to Young Sook Kim. With this, Community Development Commission staff recommends that the Community Development Commission Board hold the Public Hearing of the Community Development Commission of the City of National City to consider public necessity in conjunction with the acquisition Real Property located at 1040 National City Boulevard, owned by Young Sook Kim and approve a Resolution of Necessity of the Community Development Commission of the City of National City to acquire Real Property located at 1040 National City Boulevard, owned by Young Sook Kim, by eminent domain. ATTACHMENTS: EXHIBIT 1 EXHIBIT 2 EXHIBIT 3 — EXHIBIT 4 Staff member: Beard — Resolution No. 2005-112 — Notice of Intent Site Map — Don Detisch letters re: CDC's offer to purchase Community Development Commission Agenda Item No. 7 December 13, 2005 Page 3 of 3 RESOLUTION NO. 2005-112 A RESOLUTION OF NECESSITY OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY (CDC) TO ACQUIRE THE REAL PROPERTY AT 1040 NATIONAL CITY BOULEVARD NATIONAL CITY, CALIFORNIA 91950 OWNED BY YOUNG SOOK KIM BY EMINENT DOMAIN FOR REDEVELOPMENT PURPOSES WHEREAS, the City Council of the City of National City, by adoption of Ordinance no. 95- 2095 on July 18, 1995, approved and adopted the Redevelopment Plan for the National City Redevelopment Project; and, WHEREAS, said Redevelopment Plan provides for the acquisition of real property, if necessary by eminent domain, including the real property commonly known and denominated as 1040 National City Boulevard National City, California, more particularly described in Exhibit "A" attached hereto and also depicted in the map(s) attached herein; and, WHEREAS, the Community Development Commission of the City of National City has served the owners of the real property located at 1040 National City Boulevard, National City, California with a Notice of Intent to Adopt a Resolution of Necessity to Acquire Real Property by Eminent Domain as required by California Code of Civil Procedure, Section 1245.235. A copy of the Notice is attached hereto as Exhibit "B"; and, WHEREAS, pursuant to the above referenced Notice, the Community Development Commission of the City of National City held a hearing on December 13, 2005, in the City Council Chambers, 1243 National City Boulevard, National City, California to consider acquiring the real property at 1040 National City Boulevard, National City, California, by eminent domain, for redevelopment purposes and provided all persons a reasonable opportunity to appear and be heard on the matters in Section 1240.030 of the California Code of Civil Procedure. NOW, THEREFORE, BE IT RESOLVED that the Community Development Commission of the City of National City, by a vote of two-thirds or more of its members, hereby finds, determines, declares and resolves as follows: 1. That the public interest, convenience and necessity require the proposed project; 2. That project is planned or located in a manner that will be most compatible with the greatest public good and the least private injury; 3. The property to be acquired as described herein is necessary for the proposed project; 1 EXHIBIT 1 4. The offer required by Government Code Section 7267.2 together with the appraisal summary statement has been made to the owners of record which offer and appraisal summary statement was in a form and contained all of the disclosures required. (No evidence was presented contending that the appraisal summary statement was inadequate as a matter of law); 5. The real property to be taken is generally described as 1040 National City Boulevard, National City, California and is more particularly described in Exhibit "A" attached hereto and made a part hereof which takes precedence over all other descriptions; 6. All conditions and statutory requirements necessary to exercise the power of eminent domain ("the right to take") to acquire the property for the Project have been complied with by the Commission; 7. The Commission further finds and declares: a. The acquisition of the subject parcel is in conformity with the National City Redevelopment Project. b. The proposed acquisition for redevelopment of this site is planned in accordance with the National City Redevelopment Project and that the acquisition is necessary for the removal of blighting conditions and influences and to facilitate the redevelopment of property within the Project area. c. That said acquisition has been preceded by the review, adoption and certification of all appropriate environmental documents and reports. BE IT FURTHER RESOLVED, that the legal counsel for the Community Development Commission of the City of National City is hereby authorized and directed to commence such actions and proceedings of eminent domain in the Superior Court of the State of California, County of San Diego, as are necessary to acquire in fee, for the purpose and uses aforesaid, that certain real property commonly known as 1040 National City Boulevard , which is situated in the City of National City, and within the County of San Diego, State of California. BE IT FURTHER RESOLVED, that the taking of said real property for redevelopment purposes, specifically, for removal of blight and the assemblage of properties, is authorized by Health and Safety Code Sections 33000, 333020, 333021, 33342, 33391, 33392 and 33691 and is a public use. BE IT FURTHER RESOLVED, that Sections 1240.010,1240.110, 1240.210,1240.510 and 1240.610 of the California Code of Civil Procedure, and Sections 37350.5 of the Government Code permit the acquisition referenced herein. II /I 2 PASSED AND ADOPTED this 13th day of December 2005 ATTEST: By: Ben Martinez, Executive Director APPROVED AS TO FORM: By: Nick Inzunza, Chairman By: George H. Eiser, III, City/CDC Attorney 3 EXHIBIT "A" APN: 555-113-11 1040 National City Boulevard National City, California 91950 Young Sook Kim Legal Description (Full Take) All that certain property situated in the County of San Diego, State of California described as follows: Lots 12, 13, 14, 15, 16 and 17 all in Block 11 of National City, in the City of National City, County of San Diego, State of California, according to Map thereof 348 filed in the Office of the County Recorder of San Diego County, October 2, 1882. 15,625 square feet 4 EXHIBIT "B" NOTICE OF INTENT TO ADOPT RESOLUTION OF NECESSITY TO ACQUIRE CERTAIN REAL PROPERTY BY EMINENT DOMAIN (Code of Civil Procedure, Section 1245.235) TO: Young Sook Kim 13148 Ireland Lane San Diego, CA 92129 Pursuant to the provisions of the California Code of Civil Procedure, Section 1245.235, you have been identified as an owner of certain real property, or interest therein, consisting of the real property and improvements located at 1040 National City Boulevard (Parcel No. 555-113-1100), which is proposed to be acquired by the Community Development Commission of the City of National City for redevelopment purposes. California Code of Civil Procedure, Section 1240.030 provides that the power of eminent domain may be exercised to acquire property for a proposed project only if the following conditions are established: a. The public interest and necessity require the project. b. The project is planned or located in the manner that will be most compatible with the greatest public good and the least private injury. c. The property sought to be acquired is necessary for the project. The Commission will also determine whether an offer was made pursuant to section 7267.2 of the government code. You are hereby notified that it is the intent of the Community Development Commission of the City of National City, at a hearing to be held on December 13, 2005 at 6:00 p.m. in the City Council Chambers, 1243 National City Boulevard, National City, California 91950, to adopt a Resolution of Necessity to Page 1 of 2 Development Commission of the City of National City to acquire your real property, or interest therein, for redevelopment purposes, by the exercise of power of eminent domain, as authorized by Health and Safety Code Sections 33342 and 33391. You are further notified that if you file a written request to appear and be heard within fifteen (15) days of the mailing of this notice, you will have the right to appear and be heard concerning the above -quoted conditions set forth in California Code of Civil Procedure 1240.030 as they relate to the intent of the Community Development Commission of the City of National City to acquire your property. Failure to file a written request to appear and be heard by November 25, 2005, will result in a waiver of your right to appear and be heard. Your written request must actually be on file with the Executive Director of the Community Development Commission of the City of National City, as of the above -indicated filing date. Mere deposit of your request in the mail within this time limitation is not sufficient to avoid waiver. All such requests to appear and be heard must be filed with the Executive Director of the Community Development Commission of the City of National City, 140 East 12th Street, Suite B, National City, California 91950. For your convenience, the Board of the Community Development Commission of the City of National City will consider any written comments you may wish to submit to it, pursuant to this notice in lieu of your personal appearance at the hearing. Dated: November 9, 2005 By: Y Benjamin Martinez, Executive Director Page 2 of 2 GEORGE H. EISER, III (No. 065706) City/CDC Attorney COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY 140 E. 12th Street, Suite B National City, California 91950 Telephone (619) 336-4250 Facsimile: (619) 336-4286 PROOF OF SERVICE [CCP 1013A (3)] I, the undersigned, am employed in the County of San Diego, State of California. I am over the age of 18 and not a party to the within action; my business address is at 140 E. 12th Street, Suite B, National City, CA 91950. On November 9, 2005 I served the foregoing document(s) described as NOTICE OF INTENT TO ADOPT A RESOLUTION OF NECESSITY TO ACQUIRE CERTAIN REAL PROPERTY BY EMINENT DOMAIN on the parties in this action by placing true copies in a sealed envelope addressed as follows: Young Sook Kim 13148 Ireland Lane San Diego, CA 92129 [X] BY MAIL — as follows: I am "readily familiar" with the General Counsel's practice of collection and processing correspondence for mailing. Under that practice correspondence would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at National City, California in the ordinary course of business. The envelope was sealed and placed for collection and mailing on this date following our ordinary practices. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after the date of deposit for mailing an affidavit. [ ] BY FAX — as follows: I personally sent to the addressee's facsimile machine number a true copy of the above -described documents. Thereafter I sent a true copy in a sealed envelope addressed and mailed as indicated above. Executed on November 9, 2005 at National City California. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Fi.I7ABETH CUMMIN NOTICE OF INTENT TO ADOPT RESOLUTION OF NECESSITY TO ACQUIRE CERTAIN REAL PROPERTY BY EMINENT DOMAIN (Code of Civil Procedure, Section 1245.235) TO: Young Sook Kim 13148 Ireland Lane San Diego, CA 92129 Pursuant to the provisions of the California Code of Civil Procedure, Section 1245.235, you have been identified as an owner of certain real property, or interest therein, consisting of the real property and improvements located at 1040 National City Boulevard (Parcel No. 555-113-1100), which is proposed to be acquired by the Community Development Commission of the City of National City for redevelopment purposes. California Code of Civil Procedure, Section 1240.030 provides that the power of eminent domain may be exercised to acquire property for a proposed project only if the following conditions are established: a. The public interest and necessity require the project. b. The project is planned or located in the manner that will be most compatible with the greatest public good and the least private injury. c. The property sought to be acquired is necessary for the project. The Commission will also determine whether an offer was made pursuant to section 7267.2 of the government code. You are hereby notified that it is the intent of the Community Development Commission of the City of National City, at a hearing to be held on December 13, 2005 at 6:00 p.m. in the City Council Chambers, 1243 National City Boulevard, National City, California 91950, to adopt a Resolution of Necessity to Page 1 of 2 EXHIBIT 2 Development Commission of the City of National City to acquire your real property, or interest therein, for redevelopment purposes, by the exercise of power of eminent domain, as authorized by Health and Safety Code Sections 33342 and 33391. You are further notified that if you file a written request to appear and be heard within fifteen (15) days of the mailing of this notice, you will have the right to appear and be heard concerning the above -quoted conditions set forth in California Code of Civil Procedure 1240.030 as they relate to the intent of the Community Development Commission of the City of National City to acquire your property. Failure to file a written request to appear and be heard by November 25, 2005, will result in a waiver of your right to appear and be heard. Your written request must actually be on file with the Executive Director of the Community Development Commission of the City of National City, as of the above -indicated filing date. Mere deposit of your request in the mail within this time limitation is not sufficient to avoid waiver. All such requests to appear and be heard must be filed with the Executive Director of the Community Development Commission of the City of National City, 140 East 12th Street, Suite B, National City, California 91950. For your convenience, the Board of the Community Development Commission of the City of National City will consider any written comments you may wish to submit to it, pursuant to this notice in lieu of your personal appearance at the hearing. Dated: November 9, 2005 By:/ — Benjamin Martinez, Executive Director Page 2 of 2 GEORGE H. EISER, III (No. 065706) City/CDC Attorney COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY 140 E. 12th Street, Suite B National City, California 91950 Telephone (619) 336-4250 Facsimile: (619) 336-4286 PROOF OF SERVICE [CCP 1013A (3)] I, the undersigned, am employed in the County of San Diego, State of California. I am over the age of 18 and not a party to the within action; my business address is at 140 E. 12th Street, Suite B, National City, CA 91950. On November 9, 2005 I served the foregoing document(s) described as NOTICE OF INTENT TO ADOPT A RESOLUTION OF NECESSITY TO ACQUIRE CERTAIN REAL PROPERTY BY EMINENT DOMAIN on the parties in this action by placing true copies in a sealed envelope addressed as follows: Young Sook Kim 13148 Ireland Lane San Diego, CA 92129 [X] BY MAIL — as follows: I am "readily familiar" with the General Counsel's practice of collection and processing correspondence for mailing. Under that practice correspondence would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at National City, California in the ordinary course of business. The envelope was sealed and placed for collection and mailing on this date following our ordinary practices. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after the date of deposit for mailing an affidavit. [ ] BY FAX — as follows: I personally sent to the addressee's facsimile machine number a true copy of the above -described documents. Thereafter I sent a true copy in a sealed envelope addressed and mailed as indicated above. Executed on November 9, 2005 at National City California. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. ELIZABETH CUMMIN 6cM1i M 1/16 • M Mal 06 1-800-345-7334 Phi 1040 National City Boulevard fit r A IO HMI IaI -1 I sr. —Canty AY661\ no, mat s q NM IT_ ��-•�-j'.. "l� rs'w , . q. 413) ` —• m ; nan 1 S _ ,'; �Ms.r• — L 0•. i �1 yes s.r• • 3 ® !{ .._ I M 6 Zor I 66 M MS 4 C. �BQ RIM Mt, I6 V6UT 6 M Q_f •wH i V M9O011�& nook u6 oqG m I I a al 41 a- L STRUT' STREET = . Nal I r- MAP 348-NATIONAL CITY RE -PLED A-q-A eirairiioft ®.�lrJsJ?T7 —MENNEN- ---■— Ell MEM ----- OEM MEMO ----- IMMO MIN MIN MINN ----- ----- ---ems SEP18898 EXHIBIT 3 LAW OFFICES of DON DETISCH Attorneys at Law Donald W. Detisch Jackie Ni Mhairtin Shelly Johnson, Paralegal/Notary Public December 6, 2005 110 West A Street, Suite 750 San Diego, California 92101 Tel. (619) 515-1140 Fax (619) 235-9100 e-mail: detischlaw@sbcglobal.net VIA CERTIFIED MAIL/FIRST CLASS MAIL/HAND DELIVERY Young Sook Kim 13148 Ireland Lane San Diego, CA 92129 RE: 1040 National City Boulevard, National City, CA 91950 Dear Property Owner: The Community Development Commission of the City of National City has previously approved plans for the downtown National City redevelopment project. This project requires the acquisition of your property. Therefore, in exchange for fee title to the subject property, free and clear of any and all recorded or unrecorded adverse encumbrances or conditions, the Community Development Commission of the City of National City hereby offers to acquire your property located at 1040 National City Boulevard, National City, California 91950, for the sum of $1,450,000. This offer is subject to the Commission's approval at its sole discretion of the proposed price and of the acceptance of a deed to the property free and clear of all encumbrances. If this contingent offer is acceptable to you we will prepare the necessary documents for your execution and will open an escrow at your earliest convenience. The Commission's offer is the full amount determined to be just compensation for the property and is based upon an independent appraisal made of your property by Robert Backer, MAI. The basis for that determination is explained in the attached Information and Appraisal Summary Statement. It is the Commission's hope that this price is agreeable to you and that the acquisition can begin immediately. The Commission's special counsel, Donald W. Detisch, will work with you in the acquisition of your property and answer any questions you may have regarding this letter and the Information and Appraisal Summary Statements. Mr. Detisch can be contacted at (619)515-1140. EXHIBIT 4 This offer is further subject to and conditioned upon acceptable soils conditions and the absence from the property of toxic or hazardous substances and any other kind of soil or water contamination, and the grant of a right -of -entry to the Commission for the purpose of conducting a soils, toxic and hazardous substances investigation of the subject property at Commissioner's expense. This offer may be subject to modification depending on the results of said investigation to the extent that the result of such investigation could have an impact on the value of the subject property. For your information, the Community Development Commission is a State Redevelopment Agency created by the City of Nation City to administer the National City Redevelopment Project. In that capacity, the Commission is authorized to make offers for acquisition of property on behalf of the Commission and to oversee the negotiation process as it pertains to your particular piece of property. By way of background, an Owner Participation letter was sent to your predecessor in interest to which there was no reply. The CDC has now gone through a selection process and has approved a private developer to undertake the proposed project. In order to establish your eligibility or the eligibility of those occupying your property, for relocation purposes, it is requested that you acknowledge receipt of this offer by signing a copy of this letter and returning the same to Donald W. Detisch. Furthermore, by signing below, you are acknowledging receipt of the appraisal summary statement, which is being provided to you with this offer. Your signatures on the copy do not signify acceptance of this offer to settle the acquisition by the Commission, it only acknowledges receipt of the Commissioner's offer. Your cooperation in this matter will be greatly appreciated. cc: clients We hereby acknowledge receipt of the following: 1. Offer Letter; 2. Appraisal Summary Statement and Information Dated: Signed: Dated: Signed: SUMMARY OF THE BASIS FOR THE AMOUNT ESTABLISHED AS JUST COMPENSATION (accompanying offer made pursuant to Government Code § 7267.2) The following is a summary of the basis for the amount that the Community Development Commission of the City of National City established as just compensation, which was derived from an appraisal as approved by the Community Development Commission of the City of National City. The appraisal was made in accordance with the accepted appraisal principles, consistent with California valuation law. A statement of the appraisal process, which was the basis for the valuation conclusions, follows. Project: Downtown Redevelopment Area / Park Village Parcel No.: 555-113-11 Thomas Bros. No.: 1309-H2 Ownership Data: Name: Young Sook Kim Address: 13148 Ireland Lane San Diego, CA 92129 Phone: unknown Property Location: 1040 National City Boulevard National City, CA 91950 Legal Description: See attached legal description Land Area: 15,625 square feet Land Area of Portion Being Acquired: 15,625 square feet Improvements: Used car dealership and class B+ office space Zoning: CM (Medium Commercial) Present Use: Mixed commercial use Highest and Best Use: Current use Interest Being Valued: Fee Simple Effective Date of Value: August 1, 2005 Value of Interest Being Acquired: $1,450,000 TOTAL VALUE OF JUST COMPENSATION: $1,450,000 1 Fair Market Value Fair Market Value is defined, by California law, as the highest price on the date of valuation that would be agreed to by a seller, being willing to sell but under no particular or urgent necessity for so doing, nor obligated to sell, and a buyer, being ready, willing, and able to buy but under no particular necessity for so doing each dealing with the other with full knowledge of all the uses and purposes for which the property is reasonably adaptable and available. Highest and Best Use Highest and Best Use is defined as the reasonably probable and legal use of land that is legally permissible, physically possible, and financially feasible resulting in the highest value. Highest and Best Use analysis is used in the appraisal process to identify comparable properties and, where applicable, to determine whether the existing improvements should be retained, renovated, or demolished, The results of the Highest and Best Use are: Present Use — Mixed commercial use (used car dealership, office space) Applicable Zoning — CM (Medium Commercial) The subject is located within the National City Downtown Specific Plan, Zone 6. Highest and Best Use as if Vacant — Development in joinder with adjacent parcels. Highest and Best Use as Improved — Current Use Method of Calculation of Value: There are three conventional methods that can be used to estimate value of real property. These are the sales comparison approach, the cost approach, and the income approach. The income approach was the approach used by the appraiser to value the real property in this case. The appraiser considered this approach to be the best indicator of fair market value for this property. Income Approach When using the income approach the appraiser determines a value for income producing property by converting the anticipated net income (rent) into a value by using a set of procedures. The appraiser considered this approach to be the best indicator of fair market value for this property because it is an income producing property whose true value is not reflected in comparable sales. In this case, the appraiser used a capitalization rate of 5.5% and considered the following rents for office portions of the subject property. The used car dealership portion of the subject property is considered to be rented at market rate. Extraordinary Assumption: The appraiser has attempted to contact the property owner to confirm details regarding the subject's income and expenses. Despite numerous attempts, the property owner has disclosed minimal amounts of information. The data utilized in the appraisal is derived from the prior sale of the subject, its current listing and estimates made by the appraiser. This data is assumed to be correct. However, this appraisal should be reviewed for potential changes in the event that this data proves to be incorrect. _Col varab.le _Refit loot, s/[;tescr ptiipu Comparable Rent 1: $1.35 Comparable Rent 2: $1.45 Comparable Rent 3: $0.78 • 135 Civic Center Drive, National City, CA 91950 • Approximately 5,000 square feet • Currently available • Class A building • 2423 Hoover Avenue • 4,560 square feet • Currently available • Class A building • 2700 Hoover Avenue • 5,822 square feet • Available 9/2005 • Class C Building Comparable Rent 4: $1.15 • 401 Mile of Cars Way • 1,700 — 55,592 square feet • Various suites available • Class B building Comparable Rent 5: $1.10 • 404 Mile of Cars Way • 2,853 square feet • Two suites available • Class B building The income approach resulted in a value indication of $1,450,000. TOTAL VALUE OF JUST COMPENSATION: $1,450,000 IINNIKOMIsa Legal Description All that certain property situated in the County of San Diego, State of California described as follows: Lots 12, 13, 14, 15, 16 and 17, all in Block 11 of National City, in the City of national City, County of San Diego, State of California, according to Map thereof No. 348, filed in the office of the County Recorder of San Diego County, October 2, 1882. PROOF OF SERVICE I, the undersigned, am employed by the Law Offices of Don Detisch which is in the County of San Diego, State of California. I am over the age of 18 and not a party to the within action. My business address where the mailing occurs is 110 West "A" Street, Suite 750, San Diego, California 92101. I further declare that I am readily familiar with the business' practice for collection and processing of mail with the U.S. Postal Service this day in the ordinary course of business. On December 6, 2005, I served the foregoing document(s) described as: Offer Letter to Property Owner of 1040 National City Boulevard, National City, CA 91950 on the interested party(ies) in this action by placing a true copy thereof enclosed in a sealed envelope(s) addressed as follows: Young Sook Kim 13148 Ireland Lane San Diego, CA 92129 XXX MAIL I placed for collection each such envelope for mailing with the United States Postal Service. I know that each such sealed envelope was sealed and deposited with the postage thereon fully prepaid in the United States Postal Service on the same day this declaration was executed in the ordinary course of business. XXX CERTIFIED I placed each such sealed envelope, with postage thereon fully prepaid MAIL for certified mail, for collection in the United States Postal Service the same day as it is placed or collected FACSIMILE I caused the above -referenced document(s) to be transmitted by facsimile transmission to the above -named persons at the above -referenced facsimile telephone number(s). Attached to this declaration is a facsimile "Confirmation Sheet" c onfirming the status of transmission. PERSONAL I personally served the foregoing document(s) on the receptionist at the address indicated below I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on December 6, 2005, at San Diego, California. PROOF OF .cruvir F LAW OFFICES of DON DETISCH Attorneys at Law Donald W. Detisch Jackie Ni Mhairtin Shelly Johnson, Paralegal/Notary Public August 30, 2005 VIA CERTIFIED MAIL John Won and Jamie Ju Yi 7321 Celata Lane San Diego, CA 92129 110 West A Street, Suite 750 San Diego, California 92101 Tel. (619) 515-1140 Fax (619) 235-9100 e-mail: detischlaw n,sbcnlobal_net RE: 1040 National City Boulevard, National City, CA 91950 Dear Property Owners: The Community Development Commission of the City of National City has previously approved plans for the downtown National City redevelopment project. This project requires the acquisition of your property. Therefore, in exchange for fee title to the subject property, free and clear of any and all recorded or unrecorded adverse encumbrances or conditions, the Community Development Commission of the City of National City hereby offers to acquire your property located at 1040 National City Boulevard, National City, California 91950, for the sum of$1,450,000. This offer is subject to the Commission's approval at its sole discretion of the proposed price and of the acceptance of a deed to the property free and clear of all encumbrances. If this contingent offer is acceptable to you we will prepare the necessary documents for your execution and will open an escrow at your earliest convenience. The Commission's offer is the full amount determined to be just compensation for the property and is based upon an independent appraisal made of your property by Robert Backer, MAI. The basis for that determination is explained in the attached Information and Appraisal Summary Statement. It is the Commission's hope that this price is agreeable to you and that the acquisition can begin immediately. The Commission's special counsel, Donald W. Detisch, will work with you in the acquisition of your property and answer any questions you may have regarding this letter and the Information and Appraisal Summary Statements. Mr. Detisch can be contacted at (619) 515-1140. This offer is further subject to and conditioned upon acceptable soils conditions and the absence from the property of toxic or hazardous substances and any other kind of soil or water contamination, and to the grant of a right -of -entry to the Commission for the purpose of conducting a soils, toxic and hazardous substances investigation of the subject property at Commissioner's expense. This offer may be subject to modification depending on the results of said investigation to the extent that the result of such investigation could have an impact on the value of the subject property. For your information, the Community Development Commission is a State Redevelopment Agency created by the City of National City to administer the National City Redevelopment Project. In that capacity, the Commission is authorized to make offers for acquisition of property on behalf of the Commission and to oversee the negotiation process as it pertains to your particular piece of property. By way of background, an Owner Participation letter was sent to your predecessor in interest to which there was no reply. The CDC has now gone through a selection process and has approved a private developer to undertake the proposed project. In order to establish your eligibility or the eligibility of those occupying your property, for relocation purposes, it is requested that you acknowledge receipt of this offer by signing a copy of this letter and returning the same to Donald W. Detisch. Furthermore, by signing below, you are acknowledging receipt of the appraisal summary statement, which is being provided to you with this offer. Your signatures on the copy do not signify acceptance of this offer to settle the acquisition by the Commission, it only acknowledges receipt of the Commiss Your cooperation in this matte cc: clients We hereby acknowledge receipt of the following: 1. Offer Letter; 2. Appraisal Summary Statement and Information Dated: Signed: Dated: Signed: SUMMARY OF THE BASIS FOR THE AMOUNT ESTABLISHED AS JUST COMPENSATION (accompanying offer made pursuant to Government Code § 7267.2) The following is a summary of the basis for the amount that the Community Development Commission of the City of National City established as just compensation, which was derived from an appraisal as approved by the Community Development Commission of the City of National City. The appraisal was made in accordance with the accepted appraisal principles, consistent with California valuation law. A statement of the appraisal process, which was the basis for the valuation conclusions, follows. Project: Parcel No.: Thomas Bros. No.: Ownership Data: Name: Address: Phone: Property Location: Legal Description: Land Area: Land Area of Portion Being Acquired: Improvements: Zoning: Present Use: Highest and Best Use: Interest Being Valued: Effective Date of Value: Value of Interest Being Acquired: TOTAL VALUE OF JUST COMPENSATION: Downtown Redevelopment Area / Park Village 555-113-11 1309-H2 John Won Yi and Jamie Ju Yi 7321 Celata Lane San Diego, CA 92129 (858) 688-3316 (Agent: Teri S. Cho) 1040 National City Boulevard National City, CA 91950 See attached legal description 15,625 square feet 15,625 square feet Used Car Dealership and class B+ office space CM (Medium Commercial) Mixed commercial use Current Use Fee Simple August 1, 2005 $1,450,000 $1,450,000 Fair Market Value Fair Market Value is defined, by California law, as the highest price on the date of valuation that would be agreed to by a seller, being willing to sell but under no particular or urgent necessity for so doing, nor obligated to sell, and a buyer, being ready, willing, and able to buy but under no particular necessity for so doing each dealing with the other with full knowledge of all the uses and purposes for which the property is reasonably adaptable and available. Highest and Best Use Highest and Best Use is defined as the reasonably probable and legal use of land that is legally permissible, physically possible, and financially feasible resulting in the highest value. Highest and Best Use analysis is used in the appraisal process to identify comparable properties and, where applicable, to determine whether the existing improvements should be retained, renovated, or demolished, The results of the Highest and Best Use are: Present Use — Mixed commercial use (used car dealership, office space) Applicable Zoning — CM (Medium Commercial) The subject is located within the National City Downtown Specific Plan, Zone 6. Highest and Best Use as if Vacant — Development in joinder with adjacent parcels. Highest and Best Use as Improved — Current Use Method of Calculation of Value: There are three conventional methods that can be used to estimate value of real property. These are the sales comparison approach, the cost approach, and the income approach. The income approach was the approach used by the appraiser to value the real property in this case. The appraiser considered this approach to be the best indicator of fair market value for this property. Income Approach When using the income approach the appraiser determines a value for income producing property by converting the anticipated net income (rent) into a value by using a set of procedures. The appraiser considered this approach to be the best indicator of fair market value for this property because it is an income producing property whose true value is not reflected in comparable sales. In this case, the appraiser used a capitalization rate of 5.5% and considered the following rents for office portions of the subject property. The used car dealership portion of the subject property is considered to be rented at market rate. Extraordinary Assumption: The appraiser has attempted to contact the property owner to confirm details regarding the subject's income and expenses. Despite numerous attempts, the property owner has disclosed minimal amounts of information. The data utilized in the appraisal is derived from the prior sale of the subject, its current listing and estimates made by the appraiser. This data is assumed to be correct. However, this appraisal should be reviewed for potential changes in the event that this data proves to be incorrect. ri ft+ , Atilt 140411ontio> .: Comparable Rent 1: $1.35 Comparable Rent 2: $1.45 Comparable Rent 3: $0.78 • 135 Civic Center Drive, National City, CA 91950 • Approximately 5,000 square feet • Currently available • Class A building • 2423 Hoover Avenue • 4,560 square feet • Currently available • Class A building • 2700 Hoover Avenue • 5,822 square feet • Available 9/2005 • Class C Building Comparable Rent 4: $1.15 • 401 Mile of Cars Way • 1,700 — 55,592 square feet • Various suites available • Class B building Comparable Rent 5: $1.10 • 404 Mile of Cars Way • 2,853 square feet • Two suites available • Class B building The income approach resulted in a value indication of $1,450,000. TOTAL VALUE OF JUST COMPENSATION: $1,450,000 Legal Description All that certain property situated in the County of San Diego, State of California described as follows: Lots 12, 13, 14, 15, 16 and 17, all in Block 11 of National City, in the City of national City, County of San Diego, State of California, according to Map thereof No. 348, filed in the office of the County Recorder of San Diego County, October 2, 1882. COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY December 13, 2005 AGENDA ITEM NO. 8 TO: CHAIRMAN AND BOARD MEMBERS ,(1 FROM: BENJAMIN MARTINEZ, EXECUTIVE DIRECTOR SUBJECT: RESOLUTION NO. 2005-113: APPROVING THE FIRST AMENDMENT TO THE OWNER PARTICIPATION AGREEMENT BY AND BETWEEN THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY AND BEAUCHAMP FAMILY TRUST (AARB, LLC) FOR THE PARK VILLAGE PROJECT AND AUTHORIZING THE CHAIRMAN TO EXECUTE SAID AMENDMENT Recommendation: Community Development Commission staff recommends that the Community Development Commission Board: ADOPT the Resolution approving the First Amendment to the Owner Participation Agreement by and between the Community Development Commission of the City of National City and Beauchamp Family Trust (AARB, LLC) for the Park Village Project; and, AUTHORIZE the Chairman to execute said Amendment. Fiscal Impact: None with this Action. Environmental Impact: CEQA is not applicable. Background: An Owner Participation Agreement between the Community Development Commission and the Beauchamp Family Trust was approved on February 22, 2005. The Owner Community Development Commission Agenda Item No. 8 December 13, 2005 Page 1 of 2 Participation Agreement set forth the terms for development of the Park Village Project, proposed on the block bounded by National City Boulevard, Roosevelt Avenue, Plaza Boulevard, and 11th Street. The Project is a combination of high-rise and mid -rise mixed -use residential condominiums, retail, and subterranean parking that is envisioned as a major anchor in the revitalization of downtown National City. The proposed First Amendment to the Owner Participation Agreement provides for a revised Schedule of Performance (Exhibit "C") and Closing Date (December 14, 2006) to the Owner Participation Agreement. These schedule changes result from the lengthy negotiations required for acquisition of properties, including the potential acquisition and relocation of the California Youth Athletic Center facility. In addition, the First Amendment provides for a re -assignment of the development entity from the Beauchamp Family Trust to the AARB, LLC, a limited liability company owned by the Beauchamp Family Trust. The Beauchamp Family Trust will remain fully in control of the AARB, LLC, and will not be released of its obligations under the Owner Participation Agreement as a result of this re -assignment. No other substantive changes are contemplated by this Owner Participation Agreement Amendment. Under the revised schedule: acquisition will be completed by March 31, 2006, construction drawings will be submitted by August 16, 2006, and construction will commence by February 2, 2007 and be completed by November 7, 2007. With this, Community Development Commission staff recommends that the Community Development Commission Board adopt the Resolution approving the First Amendment to the Owner Participation Agreement by and between the Community Development Commission of the City of National City and Beauchamp Family Trust (AARB, LLC) for the Park Village Project; and, authorize the Chairman to execute said Amendment. ATTACHMENTS: EXHIBIT 1 EXHIBIT 2 EXHIBIT 3 EXHIBIT 4 — Resolution No. 2005-113 — First Amendment to the OPA — Revised Schedule of Performance — Assignment of OPA Community Development Commission December 13, 2005 Page 2 of 2 Agenda Item No. 6 RESOLUTION NO. 2000-113 A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY (CDC) APPROVING THE FIRST AMENDMENT TO THE OWNER PARTICIPATION AGREEMENT BY AND BETWEEN THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY AND BEAUCHAMP FAMILY TRUST (AARB, LLC) FOR THE PARK VILLAGE PROJECT AND AUTHORIZING THE CHAIRMAN TO EXECUTE SAID AMENDMENT WHEREAS, the Community Development Commission of the City of National City and the Beauchamp Family Trust entered into an Owner Participation Agreement dated February 22, 2005 for the purpose of constructing the Park Village mixed -use condominium and retail development; and, WHEREAS, due to delays in the implementation of the Owner Participation Agreement and a change in the ownership structure, it is appropriate to amend the Owner Participation Agreement to provide for an updated Schedule of Performance and re- assignment to the new ownership entity, AARB, LLC. NOW, THEREFORE, BE IT RESOLVED by the Community Development Commission that the Chairman is hereby authorized to execute the First Amendment to the Owner Participation Agreement. PASSED AND ADOPTED this 13th day of December 2005. ATTEST: Benjamin Martinez, Secretary APPROVED AS TO FORM: George H. Eiser, City/CDC Attorney Nick Inzunza, Chairman EXHIBIT 1 FIRST AMENDMENT TO OWNER PARTICIPATION AGREEMENT (Park Village Project) This FIRST AMENDMENT TO OWNER PARTICIPATION D2 c• em'}' AGREEMENT ("First Amendment") is entered into as ofNeaember . j 2005 by and between the COMMUNITY DEVELOPMENT COMMISSION OF NATIONAL CITY, a public body corporate and politic ("Agency") and THE BEAUCHAMP FAMILY TRUST dated 8-16-92 ("Owner"), A. Agency and Owner are parties to the Owner Participation Agreement dated February 22, 2005 ("OPA") for the redevelopment of real property in the area of National City bounded by l lth Street to the south, National City Blvd. to the east, Roosevelt Avenue to the west, and Plaza Blvd. to the north ("Site"). B. The OPA relates to the redevelopment of the Site, including construction of four buildings which will consist of approximately 212 residential condominiums, approximately 14,161 square feet of commercial space and approximately 389 parking spaces ("Project"). C. Capitalized terms used in this First Amendment are defined and set forth in the OPA, unless separately defined in this First Amendment. D. The parties have agreed to revise the schedule for the acquisition and possession of the remaining properties on the Site, which requires a corresponding revision of dates in the OPA and Exhibit C "Schedule of Performance" of the OPA. E. For financing reasons, Owner has formed AARB, LLC, a California limited liability company, in which Owner is the sole member, and desires to notify Agency pursuant to Section 8.3.3 of the OPA. NOW THEREFORE, in consideration of the foregoing recitals and the covenants and consideration in this First Amendment, Agency and Owner agree as follows: Section 1. Revise Schedule of Performance and Amend Section 3.6.4 of OPA . a. Exhibit C "Schedule of Performance" of the OPA is deleted in its entirety and replaced with the "Exhibit C "Schedule of Performance (Revised 11- 15-05)" attached hereto and incorporated herein as Attachment 1. b. Section 3.6.4 of the OPA is hereby amended to define the outside closing date ("Outside Date") as December 14, 2006. S 2y• EXHIBIT 2 [ 156511 v2/5042.011 ] 1 Section 2. Transfer to AARB, LLC. Owner formed AARB, LLC, a California limited liability company ("AARB") to develop the Project. The sole member of AARB is Alton B. Beauchamp, Trustee of the Beauchamp Family Trust dated August 16, 1982. Pursuant to Section 8.3.3 of the OPA ("Permitted Transfers"), Owner notifies Agency of (i) its transfer of ownership of existing and future acquired property in the Site to AARB and (ii) assignment of its interest in the OPA to AARB, LLC for development of the Project. Agency acknowledges notice of the transfer and receipt of the assignment and assumption agreement attached hereto and incorporated herein as Attachment 2. Section 3. Execution in Counterparts. This First Amendment may be executed in any number of counterparts, each of which, when executed and delivered, shall be deemed to be an original and all of which, taken together, shall be deemed to be one and the same instrument. Section 4. No Other Changes. Except as expressly provided to the contrary in this First Amendment, the terms of the OPA shall remain in full force and effect as written. All terms used herein and not defined herein, but defined in the OPA shall have the meaning given to such terms in the OPA. IN WITNESS WHEREOF, the Community Development Commission of National City as Agency, and The Beauchamp Family Trust (now AARB, LLC) as Owner, have signed this First Amendment to Owner Participation Agreement as of the date of the First Amendment. COMMUNITY DEVELOPMENT AARB, LLC, COMMISSION OF NATIONAL CITY, a California limited liability company a public body corporate and politic By: By: Name: Name: Title: Title: Approved as to form Approved as to form Agency Attorney Counsel to Owner [156511v2/5042.011] 2 ATTACHMENT 1 TO FIRST AMENDMENT TO OWNER PARTICIPATION AGREEMENT [ 156511 v2l5042.0111 (Exhibit C Schedule of Performance Revised 11-15-05) 3 EXHIBIT 3 EXHIBIT C SCHEDULE OF PERFORMANCE (Revised 11-15-05) GENERAL PROVISIONS 1. Approval and Execution February 22, 2005 Owner Participation Agreement ("Agreement") Agency shall consider this Agreement and, if approved, shall authorize, execute and deliver the Agreement to Owner. 2. Submission Previously submitted Basic Concept Drawings Owner shall submit Basic Concept Drawings to Agency. 3. Approval February 22, 2005 Basic Concept Drawings Agency shall approve the Basic Concept Drawings concurrently with approval of the Agreement. ACQUISITION AND POSSESSION 4. Acquisition and Possession February 22, 2005 through Remaining Properties on Site March 31, 2006 If appropriate and necessary, Agency shall be required to make the necessary Findings, notify existing property owners, conduct appropriate public hearings and take all necessary actions to vacate and acquire possession of the Remaining Properties. 5. Open Escrow Thirty (30) days after the Remaining Properties on Site effective date of an Order for Possession If applicable, Agency and Owner shall open an escrow for the purpose of Agency conveying Remaining Properties to Owner. [ I56513v 1 /5042.0111 1 6. Satisfy Conditions Precedent Ten (10) days before the Remaining Properties on Site Agency and Owner shall satisfy or waive all of their respective Conditions Precedent to Close of Escrow. 7. Close Escrow Remaining Properties on Site Agency shall either convey possession and/or fee title to the Remaining Properties to Owner and Escrow shall close. CONSTRUCTION 8. Submission Construction Drawings and approval Applications Owner shall submit to Agency Construction Drawings, including application materials required by City Planning Services to obtain City approvals for construction of Improvements. Close of Escrow No later than thirty (30) days after Agency acquires title to the Remaining Properties through negotiated purchase or through an Order of Possession and/or Final Order of Condemnation. August 16, 2006 9. Review and Approval August 17, 2006 through Construction Drawings December 14, 2006 Agency shall review, request modifications if necessary, and approve Construction Drawings. During this period of time Agency staff and Owner shall hold progress meetings to coordinate preparation, review and modification of Construction Drawings and applications. Building permits shall be issued. 9.1 First Plan Check Agency shall issue its first plan check with corrections required for Construction Drawings. September 13, 2006 9.2 Submit revised Construction Drawings October 18, 2006 [ 156513v 1/5042.011 ] Owner shall submit its revised Construction Drawings. 9.3 Second Plan Check Agency shall issue its second plan check with corrections required for Construction Drawings. 9.4 Submit revised Construction Drawings Owner shall submit its revised Construction Drawings. 9.5 Final Plan Check Agency shall issue its final plan check with corrections required for Construction Drawings. 9.6 Submit final Construction Drawings Owner shall submit its final revision of Construction Drawings. November 15, 2006 December 6, 2006 December 15, 2006 December 22, 2006 9.7 Issue Building Permits January 5, 2007 Building Permits shall be issued. 10. Commence Construction February 2, 2007 Owner shall commence construction of the Improvements on the Site. 13. Complete Construction November 7, 2007 Owner shall complete construction of the Improvements on the Site. [ 156513v 1 /5042.01 I I 3 ATTACHMENT 2 TO FIRST AMENDMENT TO OWNER PARTICIPATION AGREEMENT (Assignment of Owner Participation Agreement) [I56511v2/5042.0I1] 4 EXHIBIT 4 ASSIGNMENT OF OWNER PARTICIPATION AGREEMENT (Park Village) THIS ASSIGNMENT OF OWNER PARTICIPATION AGREEMENT (this "Assignment") dated November , 2005, is entered into by and between ALTON B. BEAUCHAMP, TRUSTEE OF THE BEAUCHAMP FAMILY TRUST dated 8-16-82 ("Assignor"), and AARB, LLC, a California limited liability company ("Assignee"), with reference to the following facts: A. Assignor, as "Owner," entered into that certain Owner Participation Agreement dated February 22, 2005 (the "OPA") with the Community Development Commission of National City, a public body, corporate and politic, as "Agency," to redevelop that certain real property in the area of National City bounded by 11th Street to the south, National City Blvd. to the east, Roosevelt Avenue to the west, and Plaza Blvd. to the north (the "Site"). B. For financing reasons, Assignor desires to assign its rights and obligations to redevelop the Site under the OPA to Assignee. NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Assignor and Assignee agree as follows: 1. Assignment. Assignor hereby assigns to Assignee the right to redevelop the Site as set forth in the OPA and all of its right, title and interest in and to the OPA. 2. Acceptance of Assignment. Assignee hereby accepts the above assignment and agrees to be bound by all of the terms and conditions of the OPA and other documents executed by Assignor, and to fully perform all terms and conditions of the OPA and other documents executed by Assignor. 3. Assumption of Obligations. Assignee hereby assumes those duties, obligations, liabilities, representations and warranties of Assignor under the OPA and other documents executed by Assignor in connection with the OPA, and shall be bound by all consents and approvals previously given by Assignor under the OPA. 4. No Release of Assignor. Assignor acknowledges that it is not released by this Assignment of its obligations under the OPA. 5. Assignor's and Assignee's Representations. Assignor and Assignee agree, represent and warrant, in compliance with the provisions of Section 8.3.3 of the OPA, as of the effective date of this Assignment, that Assignor is affiliated with, is a member of, and controls, or manages Assignee. 6. Authority of Signatories. Each of the individuals signing below on behalf of a party hereby represents and warrants that he is the officer or agent of the entity indicated, and has [151709v3/5299.008] 1 full power and authority to execute and deliver this assignment on behalf of the entity. IN WITNESS WHEREOF, the parties hereto have executed this Assignment effective the date set forth above. ASSIGNOR: ALTON B. BEAUCHAMP, Trustee Alton B. Beauchamp, Trustee The Beauchamp Family Trust, dated 8-16-82 ASSIGNEE: AARB, LLC A California limited liability company By: Alton B. Beauchamp, Trustee The Beauchamp Family Trust, dated 8-16-82 Member and Manager Alton B. Beauchamp, Member and Manager f 151709v3/5299.IX)Rj 7 COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY December 13, 2005 AGENDA ITEM NO. 9 TO: CHAIRMAN AND BOARD MEMBERS N-- FROM: BENJAMIN MARTINEZ, EXECUTIVE DIRECTOR SUBJECT: RESOLUTION NO. 2005-114: APPROVING AN AGREEMENT WITH RICK ENGINEERING COMPANY FOR ENGINEERING SERVICES RELATED TO WIDENING AND NECESSARY IMPROVEMENTS TO BAY MARINA DRIVE IN THE NATIONAL CITY HARBOR DISTRICT AND AUTHORIZING THE CHAIRMAN TO EXECUTE THE AGREEMENT Recommendation: Community Development Commission staff recommends that the Community Development Commission Board: ADOPT Resolution No. 2005-114 approving an Agreement with Rick Engineering Company for engineering services related to widening and necessary improvements to Bay Marina Drive in the National City Harbor District; and, AUTHORIZING the Chairman to execute the agreement. Fiscal Impact: This Agreement sets a "not to exceed" amount of $72,900 for services from the effective date until August 1, 2006. The Executive Director is authorized to extend the contract for not more than twelve (12) months if necessitated by non -Contractor caused delays, for example: extended review times for outside Agencies such as Caltrans or SDGE. Environmental Impact: The widening and improvements for Bay Marina Drive were analyzed as part of the Certified Environmental Impact Report for the Harbor District Specific Area Plan. Community Development Commission Agenda Item No. 9 December 13, 2005 Page 1 of 2 Background: In 2002, Rick Engineering Company engineered designs and specifications for widening and necessary improvements to Bay Marina Drive in the National City Harbor District. The widening and improvements were contemplated as part of the multiple redevelopment projects generally called "Marina Gateway" and were included in the Environmental Impact Report for the Harbor District Specific Area Plan. As the first project, the hotel and commercial center, in the Marina Gateway complex was recently approved, implementing the street improvements is now necessary. The improvements must be in place for the hotel to be able to open its doors once built. This contract would retain Rick Engineering Company to complete the project designs in accordance with current standards, to obtain the necessary permits for the project, to work with San Diego Gas and Electric Company regarding undergrounding of utility lines, writing bid documents and assisting in the selection of a construction contractor for the project. The Community Development Commission's on -call civil engineer, Harris & Associates, advised staff that retaining Rick Engineering Company for the completion of this engineering project would be more cost/time effective than engaging either Harris & Associates or another new firm to review the history of the project prior to proceeding. With this, Community Development Commission staff recommends that the Community Development Commission Board adopt Resolution No. 2005-114 approving an Agreement with Rick Engineering Company for engineering services related to widening and necessary improvements to Bay Marina Drive in the National City Harbor District and authorize the Chairman to execute the agreement. ATTACHMENTS: EXHIBIT 1 — Resolution No. 2005-114 EXHIBIT 2 — Proposed Agreement Staff member: Beard Community Development Commission Agenda Item No. 9 December 13, 2005 Page 2 of 2 RESOLUTION NO. 2005-114 A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF NATIONAL CITY (CDC) APPROVING AN AGREEMENT WITH RICK ENGINEERING COMPANY FOR ENGINEERING SERVICES RELATED TO WIDENING AND NECESSARY IMPROVEMENTS TO BAY MARINA DRIVE IN THE NATIONAL CITY HARBOR DISTRICT AND AUTHORIZING THE CHAIRMAN TO EXECUTE THE AGREEMENT WHEREAS, the Community Development Commission is implementing the National City Redevelopment Plan including the development of the Marina Gateway mixed -use complex in the National City Harbor District; and, WHEREAS, the Community Development Commission desires to employ a contractor to complete engineering services related to widening and necessary improvements to Bay Marina Drive to support the Marina Gateway complex development; and, WHEREAS, the widening and necessary improvements for Bay Marina Drive were required by and analyzed in the Certified Environmental Impact Report for the Harbor District Specific Area Plan; and, WHEREAS, the Community Development Commission has determined that Rick Engineering Company is a registered civil engineer and is qualified by experience and ability to perform engineering services for the project. NOW, THEREFORE, BE IT RESOLVED, that the Community Development Commission of National City hereby approves the Agreement with Rick Engineering Company for engineering services related to widening and necessary improvements to Bay Marina Drive in the National City Harbor District. BE IT FURTHERED RESOLVED, that the Community Development Commission of National City authorizes the Chairman to execute the Agreement. // // // // // // EXHIBIT 1 1 PASSED AND ADOPTED this 13th day of December 2005. ATTEST: Benjamin Martinez, Secretary APPROVED AS TO FORM: George H. Eiser, III, City -CDC Attorney 2 Nick Inzunza, Chairman RECEIVED =,.v 11 t [JV vgrT4(iurii y c;•jf AGREEMENT BY AND BETWEEN THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY AND RICK ENGINEERING COMPANY THIS AGREEMENT is entered into this 13th day of December, 2005, by and between the COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY, a municipal corporation (the 'CDC"), and RICK ENGINEERING COMPANY (the "CONTRACTOR"). RECITALS WHEREAS, the CDC desires to employ a CONTRACTOR to complete engineering related to the widening and necessary Improvements to Bay Marina Drive in the National City Harbor District. WHEREAS, the CDC has determined that the CONTRACTOR is a registered civil engineer and is qualified by experience and ability to perform the services desired by the CDC, and the CONTRACTOR is willing to perform such services. NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS FOLLOWS: 1. ENGAGEMENT OF CONTRACTOR. The CDC hereby agrees to engage the CONTRACTOR and the CONTRACTOR hereby agrees to perform the services hereinafter set forth in accordance with all terms and conditions contained herein. The CONTRACTOR represents that all services required hereunder will be performed directly by the CONTRACTOR or under direct supervision of the CONTRACTOR. 2. SCOPE OF SERVICES. The CONTRACTOR will perform services as set forth in the attached Exhibit A. The CONTRACTOR shall be responsible for all research and reviews related to the work and shall not rely on personnel of the CDC for such services, except as authorized in advance by the CDC. The CONTRACTOR shall appear at meetings cited in Exhibit A to keep staff and the Community Development Commission advised of the progress on the project. EXHIBIT 2 Revised October 2003 The CDC may unilaterally, or upon request from the CONTRACTOR, from time to time reduce or increase the Scope of Services to be performed by the CONTRACTOR under this Agreement. Upon doing so, the CDC and the CONTRACTOR agree to meet in good faith and confer for the purpose of negotiating a corresponding reduction or increase in the compensation associated with said change in services, not to exceed a factor of 10% from the base amount. 3. PROJECT COORDINATION AND SUPERVISION. Patricia Beard hereby is designated as the Project Coordinator for the CDC and will monitor the progress and execution of this Agreement. The CONTRACTOR shall assign a single Project Director to provide supervision and have overall responsibility for the progress and execution of this Agreement for the CONTRACTOR. Carl Hewings thereby is designated as the Project Director for the CONTRACTOR. 4. COMPENSATION AND PAYMENT. The compensation for the CONTRACTOR shall be based on monthly billings covering actual work performed. Billings shall include labor classifications, respective rates, hours worked and also materials, if any. The total cost for all work described in Exhibit A shall not exceed $72,900 (the Base amount) without prior written authorization from the Executive Director. Monthly Invoices will be processed for payment and remitted within thirty (30) days from receipt of invoice, provided that work is accomplished consistent with Exhibit A as determined by the CDC. The CONTRACTOR shall maintain all books, documents, papers, employee time sheets, accounting records, and other evidence pertaining to costs incurred and shall make such materials available at its office at all reasonable times during the term of this Agreement and for three (3) years from the date of final payment under this Agreement, for inspection by the CDC and for furnishing of copies to the CDC, if requested. 5. LENGTH OF AGREEMENT. Completion dates or time durations for specific portions of the Project are set forth in Exhibit B, to be completed by August 1, 2006. The Executive Director shall have the authority to extend this agreement for a period of twelve (12) months in the event that circumstances outside of the Contractor's control delay completion of the project. 6. DISPOSITION AND OWNERSHIP OF DOCUMENTS. The Memoranda, Reports, Maps, Drawings, Plans, Specifications and other documents prepared by the CONTRACTOR for this Project, whether paper or electronic, shall become the property of the CDC for use with respect to this Project, and shall be turned over to the CDC upon completion of the Project, or any phase thereof, as contemplated by this Agreement. Contemporaneously with the transfer of documents, the CONTRACTOR hereby assigns to the CDC and CONTRACTOR thereby expressly waives and disclaims, any copyright in, and the right to reproduce, all written material, drawings. plans, specifications or other work prepared under this agreement, except upon the 2 Revised October 2003 CDC's prior authorization regarding reproduction, which authorization shall not be unreasonably withheld. The CONTRACTOR shall, upon request of the CDC, execute any further document(s) necessary to further effectuate this waiver and disclaimer. The CONTRACTOR agrees that the CDC may use, reuse, alter, reproduce, modify, assign, transfer, or in any other way, medium or method utilize the CONTRACTOR's written work product for the CDC's purposes, and the CONTRACTOR expressly waives and disclaims any residual rights granted to it by Civil Code Sections 980 through 989 relating to intellectual property and artistic works. Any modification or reuse by the CDC of documents, drawings or specifications prepared by the CONTRACTOR shall relieve the CONTRACTOR from liability under Section 14 but only with respect to the effect of the modification or reuse by the CDC, or for any liability to the CDC should the documents be used by the CDC for some project other than what was expressly agreed upon within the Scope of this project, unless otherwise mutually agreed. 7. INDEPENDENT CONTRACTOR. Both parties hereto in the performance of this Agreement will be acting in an independent capacity and not as agents, employees, partners or joint venturers with one another. Neither the CONTRACTOR nor the CONTRACTOR'S employees are employee of the CDC and are not entitled to any of the rights, benefits, or privileges of the CDC's employees, including but not limited to retirement, medical, unemployment, or workers' compensation insurance. This Agreement contemplates the personal services of the CONTRACTOR and the CONTRACTOR's employees, and it is recognized by the parties that a substantial inducement to the CDC for entering into this Agreement was, and is, the professional reputation and competence of the CONTRACTOR and its employees. Neither this Agreement nor any interest herein may be assigned by the CONTRACTOR without the prior written consent of the CDC. Nothing herein contained is intended to prevent the CONTRACTOR from employing or hiring as many employees, or subcontractors, as the CONTRACTOR may deem necessary for the proper and efficient performance of this Agreement. All agreements by CONTRACTOR with its subcontractor(s) shall require the subcontractor to adhere to the applicable terms of this Agreement. 8. CONTROL. Neither the CDC nor its officers, agents or employees shall have any control over the conduct of the CONTRACTOR or any of the CONTRACTOR's employees except as herein set forth, and the CONTRACTOR expressly agrees not to represent that the CONTRACTOR or the CONTRACTOR's agents, servants, or employees are in any manner agents, servants or employees of the CDC, it being understood that the CONTRACTOR, its agents, servants, and employees are as to the CDC wholly independent contractors and that the CONTRAC- TOR's obligations to the CDC are solely such as are prescribed by this Agreement. 9. COMPLIANCE WITH APPLICABLE LAW. The CONTRACTOR, in the performance of the services to be provided herein, shall comply with all applicable 3 Revised October 2003 State and Federal statutes and regulations, and all applicable ordinances, rules and regulations of the City of National City, whether now in force or subsequently enacted. The CONTRACTOR, and each of its subcontractors, shall obtain and maintain a current City of National City business license prior to and during performance of any work pursuant to this Agreement. 10, LICENSES, PERMITS, ETC. The CONTRACTOR represents and covenants that it has all licenses, permits, qualifications, and approvals of whatever nature that are legally required to practice its profession. The CONTRACTOR represents and covenants that the CONTRACTOR shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement, any license, permit, or approval which is legally required for the CONTRACTOR to practice its profession. 11. STANDARD OF CARE. A. The CONTRACTOR, in performing any services under this Agreement, shall perform in a manner consistent with that level of care and skill ordinarily exercised by members of the CONTRACTOR'S trade or profession currently practicing under similar conditions and in similar locations. The CONTRACTOR shall take all special precautions necessary to protect the CONTRACTOR's employees and members of the public from risk of harm arising out of the nature of the work and/or the conditions of the work site. B. Unless disclosed in writing prior to the date of this agreement, the CONTRACTOR warrants to the CDC that it is not now, nor has it for the five (5) years preceding, been debarred by a governmental agency or involved in debarment, arbitration or litigation proceedings concerning the CONTRACTOR's professional performance or the furnishing of materials or services relating thereto. C. The CONTRACTOR is responsible for identifying any unique products, treatments, processes or materials whose availability is critical to the success of the project the CONTRACTOR has been retained to perform, within the time requirements of the CDC, or, when no time is specified, then within a commercially reasonable time. Accordingly, unless the CONTRACTOR has notified the CDC otherwise, the CONTRACTOR warrants that all products, materials, processes or treatments identified in the project documents prepared for the CDC are reasonably commercially available. Any failure by the CONTRACTOR to use due diligence under this sub -paragraph will render the CONTRACTOR liable to the CDC for any increased costs that result from the CDC's later inability to obtain the specified items or any reasonable substitute within a price range that allows for project completion in the time frame specified or, when not specified, then within a commercially reasonable time. 12. NON-DISCRIMINATION PROVISIONS. The CONTRACTOR shall not discriminate against any employee or applicant for employment because of age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. The CONTRACTOR will take positive action to insure that applicants are employed without regard to their age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. Such action shall include but not be limited to the following: employment, upgrading, demotion, transfer, recruitment or recruitment advertising, 4 Revised October 2003 layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. The CONTRACTOR agrees to post in conspicuous places available to employees and applicants for employment any notices provided by the CDC setting forth the provisions of this non-discrimination clause. 13. CONFIDENTIAL INFORMATION. The CDC may from time to time communicate to the CONTRACTOR certain confidential information to enable the CONTRACTOR to effectively perform the services to be provided herein. The CONTRACTOR shall treat all such information as confidential and shall not disclose any part thereof without the prior written consent of the CDC. The CONTRACTOR shall limit the use and circulation of such information, even within its own organization, to the extent necessary to perform the services to be provided herein. The foregoing obligation of this Section 13, however, shall not apply to any part of the information that (i) has been disclosed in publicly available sources of information; (ii) is, through no fault of the CONTRACTOR, hereafter disclosed in publicly available sources of information; (iii) is already in the possession of the CONTRACTOR without any obligation of confidentiality; or (iv) has been or is hereafter rightfully disclosed to the CONTRACTOR by a third party, but only to the extent that the use or disclosure thereof has been or is rightfully authorized by that third party. The CONTRACTOR shall not disclose any reports, recommendations, conclusions or other results of the services or the existence of the subject matter of this Agreement without the prior written consent of the CDC. In its performance hereunder, the CONTRACTOR shall comply with all legal obligations it may now or hereafter have respecting the information or other property of any other person, firm or corporation. CONTRACTOR shall be liable to CDC for any damages caused by breach of this condition, pursuant to the provisions of Section 14. 14. INDEMNIFICATION AND HOLD HARMLESS. The CONTRACTOR agrees to defend, indemnify, and hold harmless the Community Development Commission of the City of National City, Its officers and employees, against and from any and all liability, loss, damages to property, injuries to, or death of any person or persons, and all claims, demands, suits, actions, proceedings, reasonable attorneys' fees, and defense costs, of any kind or nature, including workers' compensation claims, of or by anyone whomsoever, resulting from or arising out of the CONTRACTOR's negligent performance of this Agreement. 15. WORKERS' COMPENSATION. The CONTRACTOR shall comply with all of the provisions of the Workers' Compensation Insurance and Safety Acts of the State of California, the applicable provisions of Division 4 and 5 of the California Government Code and all amendments thereto; and all similar state or Federal acts or laws applicable; and shall indemnify, and hold harmless the CDC and its officers, and employees from and against all claims, demands, payments, suits, actions, proceedings and Judgments of every nature and description, including reasonable attomey's fees and defense costs presented, brought or recovered against the CDC or its officers, employees, or volunteers, for or on account of any liability under any of said 5 Revised October 2003 acts which may be incurred by reason of any work to be performed by the CONTRACTOR under this Agreement. 16. INSURANCE. The CONTRACTOR, at its sole cost and expense, shall purchase and maintain, and shall require its subcontractors, when applicable, to purchase and maintain throughout the term of this agreement, the following insurance policies: ® A. If checked, Professional Liability Insurance (errors and omissions) with minimum limits of $1,000,000 per occurrence. B. Automobile insurance covering all bodily injury and property damage incurred during the performance of this Agreement, with a minimum coverage of $1,000,000 combined single limit per accident. Such automobile insurance shall include non -owned vehicles. C. Comprehensive general liability insurance, with minimum limits of $1,000,000 combined single limit per occurrence, covering all bodily injury and property damage arising out of its operation under this Agreement. D. Workers' compensation insurance covering all of CONSULTANT's employees. E. The aforesaid policies shall constitute primary insurance as to the CDC, its officers, employees, and volunteers, so that any other policies held by the CDC shall not contribute to any loss under said insurance. Said policies shall provide for thirty (30) days prior written notice to the CDC of cancellation or material change. F. Said policies, except for the professional liability and worker's compensation policies, shall name the CDC and its officers, agents and employees as additional insureds. G. If required insurance coverage is provided on a "claims made` rather than "occurrence" form, the CONTRACTOR shall maintain such insurance coverage for three years after expiration of the term (and any extensions) of this Agree- ment. H. Any aggregate insurance limits must apply solely to this Agree- ment. I. Insurance shall be written with only California admitted companies which hold a current policy holder's alphabetic and financial size category rating of not less than A VIII according to the current Best's Key Rating Guide, or a company equal financial stability that is approved by the City's Risk Manager. J. This Agreement shall not take effect until certificate(s) or other sufficient proof that these insurance provisions have been complied with, are filed with and approved by the CITY's Risk Manager. If the CONTRACTOR does not keep all of such insurance policies in full force and effect at all times during the terms of this Agreement, the CDC may elect to treat the failure to maintain the requisite insurance as a breach of this Agreement and terminate the Agreement as provided herein. 17. LEGAL FEES. If any party brings a suit or action against the other party arising from any breach of any of the covenants or agreements or any inaccuracies in any of the representations and warranties on the part of the other party arising out of this Agreement, then in that event, the prevailing party in such action or dispute, whether by final judgment or out -of -court settlement, shall be entitled to have 6 Revised October 2003 and recover of and from the other party all costs and expenses of suit, including attorneys' fees. For purposes of determining who is to be considered the prevailing party, it is stipulated that attorney's fees incurred in the prosecution or defense of the action or suit shall not be considered in determining the amount of the judgment or award. Attorney's fees to the prevailing party if other than the CDC shall, in addition, be limited to the amount of attomey's fees incurred by the CDC in its prosecution or defense of the action, irrespective of the actual amount of attomey's fees incurred by the prevailing party. 18. MEDIATION/ARBITRATION. If a dispute arises out of or relates to this Agreement, or the breach thereof, the parties agree first to try, in good faith, to settle the dispute by mediation in San Diego, California, in accordance with the Commercial Mediation Rules of the American Arbitration Association (the "AAA") before resorting to arbitration. The costs of mediation shall be borne equally by the parties. Any controversy or claim arising out of, or relating to, this Agreement, or breach thereof, which is not resolved by mediation shall be settled by arbitration in San Diego, California, in accordance with the Commercial Arbitration Rules of the AAA then existing. Any award rendered shall be final and conclusive upon the parties, and a judgment thereon may be entered in any court having jurisdiction over the subject matter of the controversy. The expenses of the arbitration shall be borne equally by the parties to the arbitration, provided that each party shall pay for and bear the costs of its own experts, evidence and attorneys' fees, except that the arbitrator may assess such expenses or any part thereof against a specified party as part of the arbitration award. 19. TERMINATION. A. This Agreement may be terminated with or without cause by the CDC. Termination without cause shall be effective only upon 60- day's written notice to the CONTRACTOR. During said 60-day period the CONTRACTOR shall perform all services in accordance with this Agreement. B. This Agreement may also be terminated immediately by the CDC for cause in the event of a material breach of this Agreement, misrepresentation by the CONTRACTOR in connection with the formation of this Agreement or the performance of services, or the failure to perform services as directed by the CDC. C. Termination with or without cause shall be effected by delivery of written Notice of Termination to the CONTRACTOR as provided for herein. D. In the event of termination, all finished or unfinished Memoranda Reports, Maps, Drawings, Plans, Specifications and other documents prepared by the CONTRACTOR, whether paper or electronic, shall immediately become the property of and be delivered to the CDC, and the CONTRACTOR shall be entitled to receive just and equitable compensation for any work satisfactorily completed on such documents and other materials up to the effective date of the Notice of Termination, not to exceed the amounts payable hereunder, and less any damages caused the CDC by the CONTRACTOR's breach, if any. Thereafter, ownership of said written material shall vest in the CDC all rights set forth in Section 6. E. The CDC further reserves the right to immediately terminate this Agreement upon: (1) the filing of a petition in bankruptcy affecting the CONTRACTOR; (2) a reorganization of the CONTRACTOR for the benefit of creditors; or (3) a business 7 Revised October 2003 reorganization, change in business name or change in business status of the CONTRACTOR. 20. NOTICES. All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered; or sent by overnight mail (Federal Express or the like); or sent by registered or certified mail, postage prepaid, return receipt requested; or sent by ordinary mail, postage prepaid; or telegraphed or cabled; or delivered or sent by telex, telecopy, facsimile or fax; and shall be deemed received upon the earlier of (i) if personally delivered, the date of delivery to the address of the person to receive such notice, (II) if sent by overnight mail, the business day following its deposit in such overnight mail facility, (ill) if mailed by registered, certified or ordinary mail, five (5) days (ten (10) days if the address is outside the State of California) after the date of deposit in a post office, mailbox, mail chute, or other like facility regularly maintained by the United States Postal Service, (iv) if given by telegraph or cable, when delivered to the telegraph company with charges prepaid, or (v) if given by telex, telecopy, facsimile or fax, when sent. Any notice, request, demand, direction or other communication delivered or sent as specified above shall be directed to the following persons: To the CDC: To the CONTRACTOR: Benjamin Martinez Executive Director Community Development Commission of the City of National City 140 East 12th Street, Suite B National City, CA 91950 Rick Engineering Company 5620 Friars Road San Diego CA 92110-2596 Notice of change of address shall be given by written notice in the manner specified in this Section. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given shall be deemed to constitute receipt of the notice, demand, request or communication sent. Any notice, request, demand, direction or other communication sent by cable, telex, telecopy, facsimile or fax must be confirmed within forty-eight (48) hours by letter mailed or delivered as specified in this Section. 21. CONFLICT OF INTEREST AND POLITICAL REFORM ACT OBLIGATIONS. During the term of this Agreement, the CONTRACTOR shall not perform services of any kind for any person or entity whose interests conflict in any way with those of the Community Development Commission of the City of National City. The CONTRACTOR also agrees not to specify any product, treatment, process or material for the project in which the CONTRACTOR has a material financial interest, either direct or indirect, without first notifying the CDC of that fact. The CONTRACTOR 8 Revised October 2003 shall at all times comply with the terms of the Political Reform Act and the National City Conflict of Interest Code. The CONTRACTOR shall immediately disqualify itself and shall not use its official position to influence in any way any matter coming before the CDC in which the CONTRACTOR has a financial interest as defined in Government Code Section 87103. The CONTRACTOR represents that it has no knowledge of any financial interests that would require it to disqualify Itself from any matter on which it might perform services for the CDC. ❑ If checked, the CONTRACTOR shall comply with all of the reporting requirements of the Political Reform Act and the National City Conflict of Interest Code. Specifically, the CONTRACTOR shall file a Statement of Economic Interests with the City Clerk of the City of National City In a timely manner on forms which the CONTRACTOR shall obtain from the City Clerk. The CONTRACTOR shall be strictly liable to the CDC for all damages, costs or expenses the CDC may suffer by virtue of any violation of this Paragraph 21 by the CONTRACTOR. 22. MISCELLANEOUS PROVISIONS. A. Computation of Time Periods. If any date or time period provided for in this Agreement is or ends on a Saturday, Sunday or federal, state or legal holiday, then such date shall automatically be extended until 5:00 p.m. Pacific Time of the next day which is not a Saturday, Sunday or federal, state or legal holiday. B. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute but one and the same instrument. C. Captions. Any captions to, or headings of, the sections or subsections of this Agreement are solely for the convenience of the parties hereto, are not a part of this Agreement, and shall not be used for the interpretation or determination of the validity of this Agreement or any provision hereof. D. No Obligations to Third Parties. Except as otherwise expressly provided herein, the execution and delivery of this Agreement shall not be deemed to confer any rights upon, or obligate any of the parties hereto, to any person or entity other than the parties hereto. E. Exhibits and Schedules. The Exhibits and Schedules attached hereto are hereby incorporated herein by this reference for all purposes. F. Amendment to this Agreement. The terms of this Agreement may not be modified or amended except by an Instrument in writing executed by each of the parties hereto. G. Waiver. The waiver or failure to enforce any provision of this Agreement shall not operate as a waiver of any future breach of any such provision or any other provision hereof. H. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. I. Entire Agreement. This Agreement supersedes any prior agree- ments, negotiations and communications, oral or written, and contains the entire agreement between the parties as to the subject matter hereof. No subsequent 9 Revised October 2003 agreement, representation, or promise made by either party hereto, or by or to an employee, officer, agent or representative of any party hereto shall be of any effect unless it is in writing and executed by the party to be bound thereby. J. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto. K. Construction. The parties acknowledge and agree that (i) each party is of equal bargaining strength, (ii) each party has actively participated in the drafting, preparation and negotiation of this Agreement, (iii) each such party has consulted with or has had the opportunity to consult with its own, independent counsel and such other professional advisors as such party has deemed appropriate, relative to any and all matters contemplated under this Agreement, (iv) each party and such party's counsel and advisors have reviewed this Agreement, (v) each party has agreed to enter into this Agreement following such review and the rendering of such advice, and (vi) any rule or construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement, or any portions hereof, or any amendments hereto. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first above written. COMMUNITY DEVELOPMENT OF THE CITY OF NATIONAL CITY OCK V 3/A:6t 2/n'6 CD (Two sutures r'Qquired for a stion) By: By Nick Inzunza, Chairman `�,(l'V'ame) 41, (Title) APPROVED AS TO FORM: George H. Eiser, Ill CDC Legal Counsel 10 { By: (Name) 'ice PPES6m- (Title) Revised October 2003 EXHIBIT A September 8, 2005 Revised: October 12, 2005 Ms. Patricia Beard Community Development Commission, City of National City 140 East 12th Street, Suite B National City, California 91950 SUBJECT: PROPOSAL FOR ENGINEERING SUPPORT FOR MARINA DRIVE BID PACKAGE (RICK ENGINEERING COMPANY JOB NUMBER 12861-K) Dear Pat: At your request, we are pleased to provide you with this proposal to provide engineering support services for the subject project. We propose to furnish the following services for the compensation listed below. SCOPE OF WORK 1. Provide engineering and computing support to revise construction drawings to show the proposed alignment of the driveway into the proposed Marina Gateway Hotel site on the improvement plans and revise the curb return profiles. 2. Provide engineering and computing support to revise construction drawings showing the traffic signal plans at Cleveland Avenue and Marina Drive. 3. Provide engineering and computing support to revise construction drawings showing proposed traffic control to reflect the new driveway location noted above. EXHIBIT "A" Ms. Patricia Beard September 8, 2005 Revised: October 12, 2005 Page 2 of 16 4. Provide engineering support to coordinate with Caltrans regarding the existing encroachment permit for the subject project. 'This assumes Caltrans will update the expired permit with no revisions. 5. Provide engineering support to coordinate with SDG&E regarding the proposed undergrounding of overhead utilities for the subject project. 6. Prepare an Opinion of Probable Construction Costs for the plan prepared for the widening of Bay Marina Drive. 7. Storm Water Pollution Prevention Plan (SWPPP) A. Prepare a Notice of Intent (NOI) and provide to Client for execution and submittal to the State Water Resources Control Board (SWRCB). Client to provide submittal fee. B. Prepare one SWPPP based on the information presented in the SWRCB Order No. 99-08-DWQ National Pollutant Discharge Elimination System (NPDES) General Permit No. CAS000002 (adopted August 19, 1999). The SWPPP will include the following: 1) Vicinity Map using GIS. 2) Exhibits showing existing and/or proposed grading, on -site erosion control measures, areas of cut and fill, major drainage patterns, points of discharge, existing and ultimate impervious areas, vegetated areas (existing), and post - construction Best Management Practices (BMPs). Three exhibits will be prepared which address the requirements of the SWPPP as follows: (a) Temporary BMPs for precise grading. (b) Post -construction BMPs. 3) A narrative description of the project; including size, areas by percent of impervious surfaces prior to and after completion of construction, corresponding runoff coefficients, assessment of potential pollutants of concern, construction practices to reduce pollutants, soils stabilization practices, desilting practices and post -construction BMPs. 4) A copy of the NOE and Waste Discharge Identification Number (WDID) for the project. Ms. Patricia Beard September 8, 2005 Revised: October 12, 2005 Page 3 of 16 5) Procedures to monitor, maintain and repair erosion and sediment control structures and post -construction BMPs. 6) Guidelines to train personnel to monitor and conduct inspections. 7) A copy of separate forms for amendments to the SWPPP, compliance certification, training logs, inspection checklists, contractors and/or personnel responsible for the compliance and implementation of the SWPPP. 8) A copy of the NPDES Permit, Change of Information (COD form, Notice of Termination (NOT) form, and excerpts from the California Regional Water Quality Control Board San Francisco Bay Region Erosion and Sediment Control Field Manual, Fourth Edition, August 2002. C. Provide coordination with the Client to obtain information necessary for completion of the SWPPP (ie, soils report information, drainage study and drainage map, owner information, site information, construction materials information, post-BMP information, etc.). D. Prepare a Storm Water Sampling and Analysis Strategy (SWSAS) based on the information presented in the Fact Sheet for Water Quality Order 99-08-DWQ, SWRCB, NPDES General Permit for Storm Water Associated with Construction Activity (General Permit): Sampling Analysis. 1) The SWSAS will identify storm water monitoring locations based on the assumed completion of grading, surface improvements, and drainage improvements pursuant to existing plans for grading and improvements. During all other interim conditions of project construction, the contractor will be responsible for determining and identifying on the SWSAS Location Map the locations where storm water leaves the site and where samples will be collected. 2) The SWSAS will include the following: a) List of objectives and narrative description regarding methods to meet objectives. b) List and description of sampling locations (included on the SWSAS Location Map). c) List of monitoring analytes and specific sampling requirements for the monitoring of analytes. Ms. Patricia Beard September 8, 2005 Revised: October 12, 2005 Page 4 of 16 d) Description of field sample collection methods. e) Description of possible visual observation of sample and source. f) Recommendations for quality assurance and quality control of samples. g) h) Description of reporting requirements. Sample collection record -keeping worksheets to include: (i) Sampling event records; (ii) Checklist of sampling equipment; (iii) Visual observation checklist. i) Identification of storm water monitoring locations from grading/ improvement plans / drainage study map. E. Provide services to attend one four-hour on -site SWPPP/SWSAS training session for contractor and owner and applicable on -site personnel. This training will include SWPPP/SWSAS implementation as well as other issues related to the Construction Storm Water General Permit. 8. Review Analytical Results Perform one review of the analyitical results provided by the Client from the Client's anlayitical laboratory after a storm event. Contact the analytical laboratory to resolve quality assurance /quality control issues, which may arise during the review of anlayitical results. Discuss results with the Owner or Contractor. Prepare a letter to the Client summarizing review of analytical laboratory results. This excludes summarizing any corrective actions performed by the Client as a result of Rick Engineering Company's review of analytical laboratory results. 9. Annual On -Site Training Provide services to attend one annuarl on -site SWPPP/SWSAS training session for Contractor and Owner. Ms. Patricia Beard September 8, 2005 Revised: October 12, 2005 Page 5 of 16 10. Miscellaneous Servies Associated with the SWSAS Provide assistance to Client and contractor in implenenting required actions in response to analayitical results (this item includes services required for field visits, preparation of corrective action reports, and processing of reports with the Regional Water Quality Control Board (RWQCB) or other agencies. 11. Change of Information (COD If required, complete a Change of Information (COD form pursuant to information provided by the Client to Rick Engineering Company regarding selling, acquisition of property or when a phase within a multi -family phase has been completed as it pertains to the Notice of Intent (NOI). 12. Notice of Terminiation (NOT) Prepare a Notice of Termination (NOT) 13. Bid Documents Provide engineering support to update bid documents based on the revised boilerplate provided by CDC on August 16, 2005, and repackage bid sets for contractors. 14. Construction Support Provide engineering support for construction administration on behald the Community Development Commission (CDC) to include the following: A. Bidding & Negotiation Phase Assist the CDC with the public bidding of the improvement package. Services to include the following: 1) Attend pre -bid meeting. 2) Interpret and clarify bid documents. 3) Review contractor bids. Ms. Patricia Beard September 8, 2005 Revised: October 12, 2005 Page 6 of 16 B. Construction Phase Provide construction support services to the CDC for all portions of the proposed improvements. Services to include the following: 1) Interpret/clarify construction documents for processing Requests for Information (RFI's) for concrete, asphalt, base materials, lighting, signal equipment, storm drain pipe and structures and landscaping and irrigation materials and equipment. 2) Distribute plan revisions. 3) Review of change order requests and prepare change order cost estimates. 4) Attend project status meetings and other requested meetings. 5) Perform general site observations. 6) Review/process show drawings and test reports. 7) Coordinate wet and dry utility and landscape and irrigation subconsultants. C. Project Closeout Phase Prepare and process through the City of National City as -built plans for the improvements. As -built plans will be based on a field site visit and on the construction records provided by contractors, subconsultants and public agencies. FEE Our fee for the above -described work would be on a time and materials basis per our current Schedule of Hourly Rates (attached) not to exceed the amount shown without your prior authorization. For progress billing purposes, the labor fee shall be divided as follows: 1. Driveway Alignment Construction Drawings $ 3,500.00 2. Traffic Signal Construction Drawings $ 8,000.00 3. Traffic Control Construction Drawings $ 1,000.00 4. Encroachment Permit $ 5,000.00 5. Coordination with SDG&E $ 5,000.00 Ms. Patricia Beard September 8, 2005 Revised: October 12, 2005 Page 7 of 16 6. Opinion of Probable Construction Cost 7. Storm Water Pollution Prevention Plan (SWPPP) 8. 9. 10. 11. 12. 13. 14. Review Analytical Results $ 1,000.00 $ 8,000.00 $ 1,000 per Storm Event Annual On -Site SWPPP Training $1,000 per Training Session Miscellaneous Services Associate with the SWSAS Change of Information (COI) Notice of Termination (NOT) Update Bid Documents Limited Construction Administration Support A. Bidding & Negotiation Support B. Construction Phase C. Project Closeout EXCEPTIONS Time & Materials Time & Materials Time & Materials $ 2,500.00 $ 4,250.00 $ 28,240.00 $ 6.410.00 Total: $ 72,900.00 Not included in either the above scope of work or fee are for the following items: 1. Changes in the scope of work directed and authorized start of work. services which may be necessary by the Client, in writing, after the 2. Environmental work of any nature. 3. Inspection services. 4. Job site safety services. 5. Preparation of a Post -Construction Storm Water Operation and Management Plan. Ms. Patricia Beard September 8, 2005 Revised: October 12, 2005 Page 8 of 16 6. Pre-, Post- and During Storm Event Inspections. (It is assumed that the superintendent will perform these inspections/reports.) 7. Meetings or consultation outside the above scope of work. 8. Collection of storm water samples. 9. Selection of, and coordination with analytical laboratory other than as specifically set forth above. 10. Amendments based upon new guidance or interpretation of regulations. 11. Soils engineering services. 12. Preparation of revisions to landscape and/or irrigation plans. 13. Preparation of revisions to electrical plans. 14. Construction adminstation for landscaping and irrigation and electrical plans. 15. As -built preparation. 16. Construction staking. Any printing and miscellaneous processing fees are extra and not a part of this agreement. Also not included are any items not specifically referred to above. Fees and expenses will be billed monthly as the work progresses and the net amount shall be due within thirty (30) days from the date of receipt of the invoice in the Client's office. The enclosed Standard Provisions of Agreement are incorporated herein and made a part of this agreement. If notice is delayed for any reason beyond sixty (60) days, it is understood by the parties that the terms and conditions contained herein are subject to revision. Ms. Patricia Beard September 8, 2005 Revised: October 12, 2005 Page 9 of 16 If you would like us to proceed on this work as outlined above, we ask that you please sign and return this agreement as our written authorization. If you have any questions regarding this agreement, please contact either Carl Hewings or me directly. Thank you for requesting Rick Engineering Company to provide these services. Sincerely, RICK ENGINEERING COMPANY John D. Goddard, Jr. Associate Principal RCE 33037 JDG:CSH:sr.K:Proposals\Marina Drive Attachments APPROVED BY: Signature Date EXHIBIT B Marina Drive Widening Schedule t �' -v'i s - cirri Update Construction Documents Notice to Proceed — 12/01/05 2 Months 02/01/06 City/Agency Review 02/01/06 1 Month 03/01/06 Public Bid Period Phase 03/01/06 1 Month 04/01/06 Construction Phase 04/01 /06 3 Months 07/01 /06 Project Close -Out 07/01/06 1 Month 08/01/06 These dates are tentative and dependent upon being given a Notice to Proceed for various tasks on or before the start date listed, COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY December 13, 2005 AGENDA ITEM NO. 10 TO: CHAIRMAN AND BOARD MEMBERS FROM: BENJAMIN MARTINEZ, EXECUTIVE DIRECTOR SUBJECT: RESOLUTION NO. 2005-115: APPROVING AN AGREEMENT WITH HARRIS & ASSOCIATES TO PROVIDE AS -NEEDED CIVIL ENGINEERING SERVICES AND AUTHORIZING THE CHAIRMAN TO EXECUTE THE AGREEMENT Recommendation: Community Development Commission staff recommends that the Community Development Commission Board: ADOPT Resolution No. 2005-115 approving an Agreement with Harris & Associates to provide as -needed civil engineering services; and, AUTHORIZE the Chairman to execute the Agreement. Fiscal Impact: This Agreement sets a "not to exceed" amount of $75,000 for services from the effective date until June 30, 2006. Environmental Impact: CEQA is not applicable. Background: On November 16, 2004, the Community Development Commission approved an Agreement with Harris & Associates to provide as -needed civil engineering services. Community Development Commission Agenda Item No. 10 December 13, 2005 Page 1 of 2 The firm provided engineering services for projects including: • National City Aquatic Center • Removal of railroad tracks for Marina Gateway and Motivational Systems, Incorporated ("MSI") projects • Highland Avenue plan check • Demolition of buildings vacated by MSI. • Las Palmas Park Mapping • Diaz development parking • Mapping of Pacific Steel site • 23rd & Harrison improvements design These services exhausted the Agreement budget of $50,000. Community Development Commission staff desires to continue working with Harris & Associates because the firm has been extremely responsive to requests and has provided various services at cost-effective rates. Among the projects currently known to require engineering assistance for the remainder of the fiscal year are: • Construction management/inspection for Highland Avenue • Parcel map plan checking • Project support for Bay Marina Drive improvements • Bidding and management services for the MSI demolition • Infrastructure study This Agreement would retain Harris & Associates to continue providing as -needed civil engineering support through the end of the current fiscal year. With this, Community Development Commission staff recommends that the Community Development Commission Board adopt Resolution No. 2005-115 approving an Agreement with Harris & Associates to provide as -needed civil engineering services and authorize the Chairman to execute the Agreement. ATTACHMENTS: EXHIBIT 1 — Resolution No. 2005-115 EXHIBIT 2 — Proposed Agreement Staff member: Beard Community Development Commission Agenda Item No. 10 December 13, 2005 Page 2 of 2 RESOLUTION NO. 2005-115 A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF NATIONAL CITY (CDC) APPROVING AN AGREEMENT WITH HARRIS & ASSOCIATES TO PROVIDE AS -NEEDED CIVIL ENGINEERING SERVICES AND AUTHORIZING THE CHAIRMAN TO EXECUTE THE AGREEMENT WHEREAS, the Community Development Commission is implementing the National City Redevelopment Plan; and, WHEREAS, the Community Development Commission desires to employ a contractor to provide as -needed civil engineering services related to various projects within the National City Redevelopment Project; and, WHEREAS, the Community Development Commission has determined that Harris & Associates is a registered civil engineer and is qualified by experience and ability to perform as -needed civil engineering services. NOW, THEREFORE, BE IT RESOLVED, that the Community Development Commission of the City of National City hereby approves the Agreement with Harris & Associates to provide as -needed civil engineering services. BE IT FURTHERED RESOLVED, that the Community Development Commission of the City of National City authorizes the Chairman to execute the Agreement. PASSED AND ADOPTED this 13th day of December 2005. ATTEST: Benjamin Martinez, Secretary APPROVED AS TO FORM: George H. Eiser, III, City -CDC Attorney Nick lnzunza, Chairman EXHIBIT 1 1 AGREEMENT BY AND BETWEEN THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY AND HARRIS & ASSOCIATES THIS AGREEMENT is entered into this 13th day of December, 2005, by and between the COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY, a municipal corporation (the "CDC"), and HARRIS & ASSOCIATES (the "CONTRACTOR"). RECITALS WHEREAS, the CDC desires to employ a CONTRACTOR to provide as needed civil engineering consulting services for projects within the National City Redevelopment Project. WHEREAS, the CDC has determined that the CONTRACTOR is an licensed engineering firm and is qualified by experience and ability to perform the services desired by the CDC, and the CONTRACTOR is willing to perform such services. NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS FOLLOWS: 1. ENGAGEMENT OF CONTRACTOR. The CDC hereby agrees to engage the CONTRACTOR, and the CONTRACTOR hereby agrees to perform the services hereinafter set forth in accordance with all terms and conditions contained herein, on an as -needed basis as determined by the Community Development Commission's Executive Director. The CONTRACTOR represents that all services required hereunder will be performed directly by the CONTRACTOR, or under direct supervision of the CONTRACTOR. 2. SCOPE OF SERVICES. The CONTRACTOR will perform services as set forth in the attached Exhibit "A". The CONTRACTOR shall be responsible for all research and reviews related to the work and shall not rely on personnel of the CDC for such services, except as authorized in advance by the CDC. The CONTRACTOR shall appear at meetings as requested by CDC and as cited in Exhibit "A" to keep staff and the Community Development Commission advised of the progress on the project. EXHIBIT 2 Revised August 2005 The CDC may unilaterally, or upon request from the CONTRACTOR, from time to time reduce or increase the Scope of Services to be performed by the CONTRACTOR under this Agreement. Upon doing so, the CDC and the CONTRACTOR agree to meet in good faith and confer for the purpose of negotiating a corresponding reduction or increase in the compensation associated with said change in services, not to exceed a factor of10% from the base amount. 3. PROJECT COORDINATION AND SUPERVISION. Patricia Beard hereby is designated as the Project Coordinator for the CDC and will monitor the progress and execution of this Agreement. The CONTRACTOR shall assign a single Project Director to provide supervision and have overall responsibility for the progress and execution of this Agreement for the CONTRACTOR. Javier Saunders thereby is designated as the Project Director for the CONTRACTOR. 4. COMPENSATION AND PAYMENT. The compensation for the CONTRACTOR shall be based on monthly billings covering actual work performed. Billings shall include labor classifications, respective rates, hours worked and also materials, if any. The total cost for all work described in Exhibit "A" shall not exceed $75,000. Monthly invoices will be processed for payment and remitted within thirty (30) days from receipt of invoice, provided that work is accomplished consistent with Exhibit "A"as determined by the CDC. The CONTRACTOR shall maintain all books, documents, papers, employee time sheets, accounting records, and other evidence pertaining to costs incurred and shall make such materials available at its office at all reasonable times during the term of this Agreement and for three (3) years from the date of final payment under this Agreement, for inspection by the CDC and for furnishing of copies to the CDC, if requested. 5. LENGTH OF AGREEMENT. The completion date for this Agreement shall be June 30, 2006. 6. DISPOSITION AND OWNERSHIP OF DOCUMENTS. Memoranda, reports, maps, drawings, plans, specifications and other documents prepared by the CONTRACTOR for this Project, whether paper or electronic, shall become the property of the CDC for use with respect to this Project, and shall be turned over to the CDC upon completion of the Project, or any phase thereof, as contemplated by this Agreement. Contemporaneously with the transfer of documents, the CONTRACTOR hereby assigns to the CDC, and CONTRACTOR thereby expressly waives and disclaims, any copyright in, and the right to reproduce, all written material, drawings, plans, specifications or other work prepared under this Agreement, except upon the CDC's prior authorization regarding reproduction, which authorization shall not be unreasonably withheld. The CONTRACTOR shall, upon request of the CDC, execute any further document(s) necessary to further effectuate this waiver and disclaimer. 2 Revised August 2005 The CONTRACTOR agrees that the CDC may use, reuse, alter, reproduce, modify, assign, transfer, or in any other way, medium or method utilize the CONTRACTOR's written work product for the CDC's purposes, and the CONTRACTOR expressly waives and disclaims any residual rights granted to it by Civil Code Sections 980 through 989 relating to intellectual property and artistic works. Any modification or reuse by the CDC of documents, drawings or specifications prepared by the CONTRACTOR shall relieve the CONTRACTOR from liability under Section 14 but only with respect to the effect of the modification or reuse by the CDC, or for any liability to the CDC should the documents be used by the CDC for some project other than what was expressly agreed upon within the Scope of this project, unless otherwise mutually agreed. 7. INDEPENDENT CONTRACTOR. Both parties hereto in the performance of this Agreement will be acting in an independent capacity and not as agents, employees, partners or joint venturers with one another. Neither the CONTRACTOR nor the CONTRACTOR'S employees are employees of the CDC and are not entitled to any of the rights, benefits or privileges of the CDC's employees, including but not limited to retirement, medical, unemployment, or workers' compensation insurance. This Agreement contemplates the personal services of the CONTRACTOR and the CONTRACTOR's employees, and it is recognized by the parties that a substantial inducement to the CDC for entering into this Agreement was, and is, the professional reputation and competence of the CONTRACTOR and its employees. Neither this Agreement nor any interest herein may be assigned by the CONTRACTOR without the prior written consent of the CDC. Nothing herein contained is intended to prevent the CONTRACTOR from employing or hiring as many employees or subcontractors as the CONTRACTOR may deem necessary for the proper and efficient performance of this Agreement. All agreements by CONTRACTOR with its subcontractor(s) shall require the subcontractor to adhere to the applicable terms of this Agreement. 8. CONTROL. Neither the CDC nor its officers, agents or employees shall have any control over the conduct of the CONTRACTOR, or any of the CONTRACTOR's employees except as herein set forth, and the CONTRACTOR expressly agrees not to represent that the CONTRACTOR or the CONTRACTOR's agents, servants or employees are in any manner agents, servants or employees of the CDC, it being understood that the CONTRACTOR, its agents, servants and employees are as to the CDC wholly independent contractors, and that the CONTRACTOR's obligations to the CDC are solely such as are prescribed by this Agreement. 9. COMPLIANCE WITH APPLICABLE LAW. The CONTRACTOR, in the performance of the services to be provided herein, shall comply with all applicable state and Federal statutes and regulations, and all applicable ordinances, rules and regulations of the City of National City, now in force. The CONTRACTOR, and each of 3 Revised August 2005 its subcontractors, shall obtain and maintain a current City of National City business license prior to and during performance of any work pursuant to this Agreement. 10. LICENSES, PERMITS, ETC. The CONTRACTOR represents and covenants that it has all licenses, permits, qualifications and approvals of whatever nature that are legally required to practice its profession. The CONTRACTOR represents and covenants that the CONTRACTOR shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement, any license, permit or approval which is legally required for the CONTRACTOR to practice its profession. 11. STANDARD OF CARE. A. The CONTRACTOR, in performing any services under this Agreement, shall perform in a manner consistent with that level of care and skill ordinarily exercised by members of the CONTRACTOR's trade or profession currently practicing under similar conditions and in similar locations. The CONTRACTOR shall take all special precautions necessary to protect the CONTRACTOR's employees and members of the public from risk of harm arising out of the nature of the work and/or the conditions of the work site. B. Unless disclosed in writing prior to the date of this agreement, the CONTRACTOR warrants to the CDC that it is not now, nor has it for the five (5) years preceding, been debarred by a governmental agency or involved in debarment, arbitration or litigation proceedings concerning the CONTRACTOR's professional performance, or the furnishing of materials or services relating thereto. C. The CONTRACTOR is responsible for identifying any unique products, treatments, processes or materials whose availability is critical to the success of the project the CONTRACTOR has been retained to perform, within the time requirements of the CDC, or, when no time is specified, then within a commercially reasonable time. Accordingly, unless the CONTRACTOR has notified the CDC otherwise, the CONTRACTOR warrants that all products, materials, processes or treatments identified in the project documents prepared for the CDC are reasonably commercially available. Any failure by the CONTRACTOR to use due diligence under this sub -paragraph will render the CONTRACTOR liable to the CDC for any increased costs that result from the CDC's later inability to obtain the specified items or any reasonable substitute within a price range that allows for project completion in the time frame specified or, when not specified, then within a commercially reasonable time. 12. NON-DISCRIMINATION PROVISIONS. The CONTRACTOR shall not discriminate against any employee or applicant for employment because of age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. The CONTRACTOR will take positive action to insure that applicants are employed without regard to their age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. Such action shall include but not be limited to the following: employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. The CONTRACTOR agrees to post in conspicuous 4 Revised August 2005 places available to employees and applicants for employment any notices provided by the CDC setting forth the provisions of this non-discrimination clause. 13. CONFIDENTIAL INFORMATION. The CDC may from time to time communicate to the CONTRACTOR certain confidential information to enable the CONTRACTOR to effectively perform the services to be provided herein. The CONTRACTOR shall treat all such information as confidential and shall not disclose any part thereof without the prior written consent of the CDC. The CONTRACTOR shall limit the use and circulation of such information, even within its own organization, to the extent necessary to perform the services to be provided herein. The foregoing obligation of this Section 13, however, shall not apply to any part of the information that (i) has been disclosed in publicly available sources of information; (ii) is, through no fault of the CONTRACTOR, hereafter disclosed in publicly available sources of information; (iii) is already in the possession of the CONTRACTOR without any obligation of confidentiality; or (iv) has been or is hereafter rightfully disclosed to the CONTRACTOR by a third party, but only to the extent that the use or disclosure thereof has been or is rightfully authorized by that third party. The CONTRACTOR shall not disclose any reports, recommendations, conclusions or other results of the services or the existence of the subject matter of this Agreement without the prior written consent of the CDC. In its performance hereunder, the CONTRACTOR shall comply with all legal obligations it may now or hereafter have respecting the information or other property of any other person, firm or corporation. CONTRACTOR shall be liable to CDC for any damages caused by breach of this condition, pursuant to the provisions of Section 14. 14. INDEMNIFICATION AND HOLD HARMLESS. The CONTRACTOR agrees to defend, indemnify, and hold harmless the Community Development Commission of the City of National City, its officers and employees, against and from any and all liability, loss, damages to property, injuries to, or death of any person or persons, and all claims, demands, suits, actions, proceedings, reasonable attorneys' fees, and defense costs, of any kind or nature, including workers' compensation claims, of or by anyone whomsoever, resulting from or arising out of the proportionate extent caused by the CONTRACTOR's negligent performance of this Agreement. 15. WORKERS' COMPENSATION. The CONTRACTOR shall comply with all of the provisions of the Workers' Compensation Insurance and Safety Acts of the State of California, the applicable provisions of Division 4 and 5 of the California Government Code and all amendments thereto; and all similar state or Federal acts or laws applicable; and shall indemnify, and hold harmless the CDC and its officers, and employees from and against all claims, demands, payments, suits, actions, proceedings and judgments of every nature and description, including reasonable attorney's fees and defense costs presented, brought or recovered against the CDC or its officers, employees or volunteers for, or on account of, any liability under any of said acts which may be incurred by reason of any work to be performed by the CONTRACTOR under this Agreement. 5 Revised August 2005 16. INSURANCE. The CONTRACTOR, at its sole cost and expense, shall purchase and maintain, and shall require its subcontractors, when applicable, to purchase and maintain throughout the term of this agreement, the following insurance policies: ® A. If checked, Professional Liability Insurance (errors and omissions) with minimum limits of $1,000,000 per occurrence. B. Automobile insurance covering all bodily injury and property damage incurred during the performance of this Agreement, with a minimum coverage of $1,000,000 combined single limit per accident. Such automobile insurance shall include non -owned vehicles. C. Comprehensive general liability insurance, with minimum limits of $1,000,000 combined single limit per occurrence, covering all bodily injury and property damage arising out of its operation under this Agreement. D. Workers' compensation insurance covering all of CONTRACTOR's employees. E. The aforesaid policies shall constitute primary insurance as to the CDC, its officers, employees, and volunteers so that any other policies held by the CDC shall not contribute to any loss under said insurance. Said policies shall provide for thirty (30) days prior written notice to the CDC of cancellation or material change. F. Said policies, except for the professional liability and worker's compensation policies, shall name the CDC and its officers, agents and employees as additional insureds. G. If required insurance coverage is provided on a "claims made" rather than "occurrence" form, the CONTRACTOR shall maintain such insurance coverage for three years after expiration of the term (and any extensions) of this Agree- ment. H. Any aggregate insurance limits must apply solely to this Agree- ment. I. Insurance shall be written with only California admitted companies which hold a current policy holder's alphabetic and financial size category rating of not less than A VIII according to the current Best's Key Rating Guide, or a company equal financial stability that is approved by the City's Risk Manager. J. This Agreement shall not take effect until certificate(s) or other sufficient proof that these insurance provisions have been complied with, are filed with and approved by the CITY's Risk Manager. If the CONTRACTOR does not keep all of such insurance policies in full force and effect at all times during the terms of this Agreement, the CDC may elect to treat the failure to maintain the requisite insurance as a breach of this Agreement and terminate the Agreement as provided herein. 17. LEGAL FEES. If any party brings a suit or action against the other party arising from any breach of any of the covenants or agreements, or any inaccuracies in any of the representations and warranties on the part of the other party arising out of this Agreement, then in that event, the prevailing party in such action or dispute, whether by final judgment or out -of -court settlement, shall be entitled to have and recover of and from the other party all costs and expenses of suit, including attorneys' fees. 6 Revised August 2005 For purposes of determining who is to be considered the prevailing party, it is stipulated that attorney's fees incurred in the prosecution or defense of the action or suit shall not be considered in determining the amount of the judgment or award. Attorney's fees to the prevailing party if other than the CDC shall, in addition, be limited to the amount of attomey's fees incurred by the CDC in its prosecution or defense of the action, irrespective of the actual amount of attorney's fees incurred by the prevailing party. 18. MEDIATION/ARBITRATION. If a dispute arises out of or relates to this Agreement, or the breach thereof, the parties agree first to try, in good faith, to settle the dispute by mediation in San Diego, California, in accordance with the Commercial Mediation Rules of the American Arbitration Association (the "AAA") before resorting to arbitration. The costs of mediation shall be borne equally by the parties. Any controversy or claim arising out of, or relating to, this Agreement, or breach thereof, which is not resolved by mediation shall be settled by arbitration in San Diego, California, in accordance with the Commercial Arbitration Rules of the AAA then existing. Any award rendered shall be final and conclusive upon the parties, and a judgment thereon may be entered in any court having jurisdiction over the subject matter of the controversy. The expenses of the arbitration shall be borne equally by the parties to the arbitration, provided that each party shall pay for,and bear the costs of, its own experts, evidence and attorneys' fees, except that the arbitrator may assess such expenses or any part thereof against a specified party as part of the arbitration award. 19. TERMINATION. A. This Agreement may be terminated with or without cause by the CDC. Termination without cause shall be effective only upon 60- day's written notice to the CONTRACTOR. During said 60-day period the CONTRACTOR shall perform all services in accordance with this Agreement. B. This Agreement may also be terminated immediately by the CDC for cause in the event of a material breach of this Agreement, misrepresentation by the CONTRACTOR in connection with the formation of this Agreement, or the performance of services, or the failure to perform services as directed by the CDC. C. Termination with or without cause shall be effected by delivery of written Notice of Termination to the CONTRACTOR as provided for herein. D. In the event of termination, all finished or unfinished memoranda reports, maps, drawings, plans, specifications and other documents prepared by the CONTRACTOR, whether paper or electronic, shall immediately become the property of, and be delivered to, the CDC, and the CONTRACTOR shall be entitled to receive just and equitable compensation for any work satisfactorily completed on such documents and other materials up to the effective date of the Notice of Termination, not to exceed the amounts payable hereunder, and less any damages caused the CDC by the CONTRACTOR's breach, if any. Thereafter, ownership of said written material shall vest in the CDC all rights set forth in Section 6. E. The CDC further reserves the right to immediately terminate this Agreement upon: (1) the filing of a petition in bankruptcy affecting the CONTRACTOR; (2) a reorganization of the CONTRACTOR for the benefit of creditors; or (3) a business reorganization, change in business name or change in business status of the CONTRACTOR. 7 Revised August 2005 20. NOTICES. All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered or sent by overnight mail (Federal Express or the like); or sent by registered or certified mail, postage prepaid, return receipt requested; or sent by ordinary mail, postage prepaid; or telegraphed or cabled; or delivered or sent by telex, telecopy, facsimile or fax; and shall be deemed received upon the earlier of (i) if personally delivered, the date of delivery to the address of the person to receive such notice, (ii) if sent by overnight mail, the business day following its deposit in such overnight mail facility, (iii) if mailed by registered, certified or ordinary mail, five (5) days (ten (10) days if the address is outside the State of California) after the date of deposit in a post office, mailbox, mail chute, or other like facility regularly maintained by the United States Postal Service, (iv) if given by telegraph or cable, when delivered to the telegraph company with charges prepaid, or (v) if given by telex, telecopy, facsimile or fax, when sent. Any notice, request, demand, direction or other communication delivered or sent as specified above shall be directed to the following persons: To the CDC: Benjamin Martinez Executive Director Community Development Commission of the City of National City 140 East 12th Street, Suite B National City, CA 91950 To the CONTRACTOR: Mr. E. Javier Saunders, P.E. Harris & Associates 750 B Street San Diego CA 92101 Notice of change of address shall be given by written notice in the manner specified in this Section. Rejection or other refusal to accept, or the inability to deliver because of changed address of which no notice was given, shall be deemed to constitute receipt of the notice, demand, request or communication sent. Any notice, request, demand, direction or other communication sent by cable, telex, telecopy, facsimile or fax must be confirmed within forty-eight (48) hours by letter mailed or delivered as specified in this Section. 21. CONFLICT OF INTEREST AND POLITICAL REFORM ACT OBLIGATIONS. During the term of this Agreement, the CONTRACTOR shall not perform services of any kind for any person or entity whose interests conflict in any way with those of the Community Development Commission of the City of National City. The CONTRACTOR also agrees not to specify any product, treatment, process or material for the project in which the CONTRACTOR has a material financial interest, either direct or indirect, without first notifying the CDC of that fact. The CONTRACTOR shall at all times comply with the terms of the Political Reform Act and the National City Conflict of Interest Code. The CONTRACTOR shall immediately disqualify itself and shall not use its official position to influence in any way any matter coming before the 8 Revised August 2005 CDC in which the CONTRACTOR has a financial interest as defined in Government Code Section 87103. The CONTRACTOR represents that it has no knowledge of any financial interests that would require it to disqualify itself from any matter on which it might perform services for the CDC. ❑ If checked, the CONTRACTOR shall comply with all of the reporting requirements of the Political Reform Act and the National City Conflict of Interest Code. Specifically, the CONTRACTOR shall file a Statement of Economic Interests with the City Clerk of the City of National City in a timely manner on forms which the CONTRACTOR shall obtain from the City Clerk. The CONTRACTOR shall be strictly liable to the CDC for all damages, costs or expenses the CDC may suffer by virtue of any violation of this Paragraph 21 by the CONTRACTOR. 22. MISCELLANEOUS PROVISIONS. A. Computation of Time Periods. If any date or time period provided for in this Agreement is or ends on a Saturday, Sunday or Federal, state or legal holiday, then such date shall automatically be extended until 5:00 p.m. Pacific Time of the next day which is not a Saturday, Sunday or Federal, state or legal holiday. B. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute but one and the same instrument. C. Captions. Any captions to, or headings of, the sections or subsections of this Agreement are solely for the convenience of the parties hereto, are not a part of this Agreement, and shall not be used for the interpretation or determination of the validity of this Agreement or any provision hereof. D. No Obligations to Third Parties. Except as otherwise expressly provided herein, the execution and delivery of this Agreement shall not be deemed to confer any rights upon, or obligate any of the parties hereto, to any person or entity other than the parties hereto. E. Exhibits and Schedules. The Exhibits and Schedules attached hereto are hereby incorporated herein by this reference for all purposes. F. Amendment to this Agreement. The terms of this Agreement may not be modified or amended except by an instrument in writing executed by each of the parties hereto. G. Waiver. The waiver or failure to enforce any provision of this Agreement shall not operate as a waiver of any future breach of any such provision or any other provision hereof. H. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. I. Entire Agreement. This Agreement supersedes any prior agree- ments, negotiations and communications, oral or written, and contains the entire agreement between the parties as to the subject matter hereof. No subsequent agreement, representation or promise made by either party hereto, or by or to an employee, officer, agent or representative of any party hereto, shall be of any effect unless it is in writing and executed by the party to be bound thereby. 9 Revised August 2005 J. Successors and Assigns. This Agreement shall be binding upon, and shall inure to the benefit of the successors and assigns of the parties hereto. K. Construction. The parties acknowledge and agree that (i) each party is of equal bargaining strength, (ii) each party has actively participated in the drafting, preparation and negotiation of this Agreement, (iii) each such party has consulted with, or has had the opportunity to consult with its own, independent counsel and such other professional advisors as such party has deemed appropriate, relative to any and all matters contemplated under this Agreement, (iv) each party and such party's counsel and advisors have reviewed this Agreement, (v) each party has agreed to enter into this Agreement following such review and the rendering of such advice, and (vi) any rule or construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement, or any portions hereof, or any amendments hereto. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first above written. COMMUNITY DEVELOPMENT OF THE CITY OF NATIONAL CITY HARRIS & ASSOCIATES (Corporation - signatures of two corporate officers) (Partnership - one signature) (Sole proprietorship - one signature) By: By: Nick Inzunza, Chairman (Name) (Title) APPROVED AS TO FORM: By: George H. Eiser, Ill (Name) CDC Legal Counsel (Title) 10 Revised August 2005 • • EXHIBIT A SCOPE OF WORK When and as directed by CDC, the firms shall perform consulting services for redevelopment projects to include, but not be limited to, the following: 1. Provide professional and technical civil engineering consultation and provide support services to the engineering effort, such as landscape architecture, traffic engineering, surveying, and plan checking services on an as needed basis. 2. Provide civil engineering design for CDC Capital Improvement Projects that are not subject to a separate RFQ by the CDC. 3. Evaluate existing utility systems and plan new utility systems to accommodate development. 4. Prepare "D" sheets and bid documents including special provisions and contract specifications. 5. Process engineering drawings and related engineering materials through the National City Public Works/Engineering Departments and other departments as appropriate so as to obtain all necessary permits. 6. Assist in the preparation of bid packages for construction projects. 7. Assist in the scheduling and conducting of the bidding process for construction projects. 8. Attend meetings appropriate to bidding and construction projects as may be directed by CDC. 9. Prepare legal descriptions, parcel maps, consolidation and street vacation maps, process maps, and conduct land surveys as necessary. 10. Provide record maps and prepare as -built drawings as may be required, and process them as necessary to obtain approvals. 11. Provide general drafting as required. 12. Provide landscape and irrigation design services. 13. Provide mechanical, structural, and traffic engineering services as necessary to design/review construction projects. 14. Provide estimating services for demolition, rehabilitation and construction of existing and/or new structures. 15. Provided electrical, mechanical, structural, and traffic engineering services as required. =VIJittii. SS A1, H EXHIBIT A Harris & Associates Schedule of Rates Staff Categories Hourly Rates Program/Project Management Executive Project Director $ 170.00 Senior Project Director $ 165.00 Program Manager $ 155.00 Technical Support Coordinator Program Support Coordinator $ 135.00 $ 135.00 Senior Project Manager $ 150.00 Project Manager $ 130.00 Senior Financial Engineer $ 135.00 Financial Engineer $ 125.00 Senior Project Engineer $ 120.00 Controls IT Specialist $ 135.00 Administrative Assistant $ 58.00 File Clerk $ 45.00 Biddability/Constructability Architectural Reviewer $ 115.00 Mechanical Reviewer $ 115.00 Electrical Reviewer $ 110.00 Structural Reviewer $ 135.00 Civil Reviewer $ 115.00 Assistant Project Manager Civil Design Scheduling $ 100.00 Senior Civil Designer $ 145.00 Civil Designer Assistant Civil Designer $ 120.00 $ 95.00 Senior Scheduler $ 135.00 Scheduler $ 120.00 Assistant Scheduler $ 95.00 Claims Management Senior Clams Manager $ 175.00 Claims Manager $ 160.00 EXHIBIT "A" COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY December 13, 2005 AGENDA ITEM NO. 11 TO: CHAIRMAN AND BOARD MEMBERS{1)--- FROM: BENJAMIN MARTINEZ, EXECUTIVE DIRECTOR SUBJECT: RESOLUTION NO. 2005-116: APPROVING A MEMORANDUM OF UNDERSTANDING BETWEEN THE METROPOLITAN TRANSIT SYSTEM, THE SAN DIEGO AND ARIZONA EASTERN RAILWAY COMPANY, THE CITY OF NATIONAL CITY AND THE CITY COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY AND AUTHORIZING THE CHAIRMAN TO EXECUTE THE MEMORANDUM OF UNDERSTANDING Recommendation: Community Development Commission staff recommends that the Community Development Commission Board: ADOPT Resolution No. 2005-116 approving a Memorandum of Understanding between the Metropolitan Transit System, the San Diego and Arizona Eastern Railway Company, the City of National City and the Community Development Commission of the City of National City; and, AUTHORIZE the Chairman to execute the Memorandum of Understanding. Fiscal Impact: This Memorandum of Understanding requires the Community Development Commission to appropriate funds for the removal of certain railroad tracks in the Harbor District of the National City Redevelopment Project. These appropriations will be brought forward for consideration following a public bidding process for the project. Environmental Impact: Categorically exempt. Class I Section 153401 (existing facilities). Not subject to CEQA. Community Development Commission Agenda Item No. 11 December 13, 2005 Page 1 of 3 Background: On December 17, 2002, the Community Development Commission approved a Disposition and Development Agreement with Robert Young for the consolidation and redevelopment of Motivational Systems on Cleveland Avenue between 20th and 23`d Streets. The Disposition and Development Agreement requires the removal of unused railroad spur tracks owned by San Diego Arizona Eastern Railway Company. On March 23, 2004 the Community Development Commission approved a Disposition and Development Agreement with the Olson Company for a redevelopment project on 1.26 acres at 835 Bay Marina Drive and intersected by unused railroad spur tracks of the San Diego Arizona Eastern Railway Company. The Disposition and Development Agreement requires the quit claim of the land occupied by the tracks to the Olson Company for inclusion in the project. On May 25, 2004 the Community Development Commission approved a Disposition and Development Agreement with MRW Group, Inc. to develop a hotel and commercial project on 6.32 acres located at the southeast corner of Bay Marina Drive and Harrison Avenue. The project site includes an inactive railroad spur and an active, but unused line owned by the San Diego Arizona Eastern Railway Company. The project requires the removal of the abandoned railroad spur and access across the active but unused rail line within the project site. Since the approval of the Disposition and Development Agreements, Community Development Commission staff has been working with Metropolitan Transit System and the San Diego Arizona Eastern Railway Company to reach an agreement that would allow the Community Development Commission to complete its obligations so that redevelopment can occur. The attached Memorandum of Understanding, approved earlier this year by the Metropolitan Transit System and the San Diego Arizona Eastern Railway Company, would allow the projects to go forward as desired. The primary points of the Memorandum of Understanding would allow the Community Development Commission, at its expense, to remove the railroad spur tracks from within redevelopment project sites in the National City Harbor District. It would also allow the Marina Gateway Hotel and Commercial project to utilize an active, but unused track easement as a drive aisle for the project, and allow an at -grade crossing of this unused track for project access. The Community Development Commission would also be required to install new tracks connecting a San Diego Arizona Eastern Railway Company line crossing Bay Marina Drive at Harrison Ave, which would be completed with the upcoming improvements to Bay Marina Drive. The Memorandum of Understanding sets forth that the Community Development Commission will install the tracks, at the option of the railroad, connecting other existing railway lines north and south of Bay Marina Drive. The City of National City will acquire easements as a result Community Development Commission Agenda Item No. 11 December 13, 2005 Page 2 of 3 of this Memorandum of Understanding; therefore a City Council action to approve the Memorandum of Understanding is also required. The attached exhibits to the Memorandum of Understanding are maps showing the actions anticipated with approval. With this, Community Development Commission staff recommends that the Community Development Commission Board adopt Resolution No. 2005-116 approving a Memorandum of Understanding between the Metropolitan Transit System, San Diego and Arizona Eastern Railway Company, the City of National City and the Community Development Commission of the City of National City and authorize the Chairman to execute the Memorandum of Understanding. ATTACHMENTS: EXHIBIT 1 — Resolution No. 2005-116 EXHIBIT 2 — Proposed Memorandum of Understanding EXHIBIT 3 — Proposed Notice of Exemption Staff member: Beard Community Development Commission Agenda Item No. 11 December 13, 2005 Page 3 of 3 RESOLUTION NO. 2005-116 A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF NATIONAL CITY (CDC) APPROVING A MEMORANDUM OF UNDERSTANDING BETWEEN THE METROPOLITAN TRANSIT SYSTEM, THE SAN DIEGO AND ARIZONA EASTERN RAILWAY COMPANY, THE CITY OF NATIONAL CITY AND THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY AND AUTHORIZING THE CHAIRMAN TO EXECUTE THE MEMORANDUM OF UNDERSTANDING WHEREAS, the Community Development Commission has approved Disposition and Development Agreements with Robert Young, the Olson Company and MRW Group, Incorporated for the redevelopment projects collectively known as Marina Gateway within the National City Redevelopment Project; and, WHEREAS, the development projects collectively known as Marina Gateway require access to and vacation and removal of certain unused railroad tracks within the project sites; and, WHEREAS, the Metropolitan Transit System and the San Diego Arizona Eastern Railway Company have approved a Memorandum of Understanding to allow the removal of certain railroad tracks by the Community Development Commission to facilitate the redevelopment project; and, WHEREAS, said Memorandum of Understanding sets forth terms and conditions that are acceptable to the Community Development Commission. NOW, THEREFORE, BE IT RESOLVED, that the Community Development Commission of the City of National City hereby approves the Memorandum of Understanding between the Metropolitan Transit System, the San Diego and Arizona Eastern Railway Company, the City of National City and the Community Development Commission of the City of National City. BE IT FURTHERED RESOLVED, that the Community Development Commission of the City of National City authorizes the Chairman to execute the Memorandum of Understanding. // // // // 1 EXHIBIT 1 PASSED AND ADOPTED this 13th day of December 2005. ATTEST: Benjamin Martinez, Secretary APPROVED AS TO FORM: George H. Eiser, III, City -CDC Attorney 2 Nick Inzunza, Chairman 1255 Imperial Avenue, Suite 1000 San Diego, CA 92101-7490 (619) 231-1466 • FAX (619) 234-3407 Metropolitan Transit System MTS Doc. No. S200-06-291 (PC 50771) MEMORANDUM OF UNDERSTANDING BETWEEN THE SAN DIEGO METROPOLITAN TRANSIT SYSTEM, SAN DIEGO AND ARIZONA EASTERN RAILROAD, CITY OF NATIONAL CITY, AND COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY This Memorandum of Understanding (MOU) is made and entered into by and between the San Diego Metropolitan Transit System (MTS), a California public agency established under the Public Utilities Code, the San Diego and Arizona Eastern (SD&AE) Railway Company, a public benefit corporation whose sole member is MTS, the City of National City (City), and the Community Development Commission of the City of National City (CDC). WHEREAS, The City and the CDC are a municipal corporation and a community development commission respectively organized and existing under the laws of the State of California. The purpose of this MOU is to document the parties' understanding and responsibilities with respect to the redevelopment of properties in National City in the areas shown on Exhibit A attached (the Redevelopment Area) hereto while at the same time providing for current and future rail service through the Redevelopment Area for MTS and the SD&AE. 1. Except in and adjacent to the hotel site area (described as 'Parcel 3 Site Hotel Area" and "Parcel 4 Site Hotel Area" on Exhibit A attached hereto), neither MTS nor SD&AE (for convenience, also hereinafter referred to as the Railroad) can find evidence of property ownership interests in the areas covered by the terms of this agreement. If, in the future, it is discovered that the Railroad has either fee title or an easement in any of the areas covered by this agreement, CDC shall pay the Railroad for the value of the property and the Railroad agrees to quitclaim any such interest to the CDC, as follows: a. For fee, the value of $12.00 per square foot. b. For an easement, the value of $6.00 per square foot. 2. All new track work, signals, crossing improvements, and demolition in areas owned or controlled by the Railroad, or which will be owned or controlled by Railroad, shall be done subject to plans and specifications approved by Railroad, by a contractor approved by Railroad and subject to the supervision of Railroad, all at the CDC's expense provided that the CDC shall have approved the cost of such work and demolition in advance of it being performed. Minimum design standards for all new track construction shall be Federal Railroad Administration Class 2, using 115-pound rail, at a minimum design speed of 25 miles per hour. 3. The Railroad shall be responsible for the maintenance of all new track and appurtenances at any at -grade crossings constructed pursuant to the terms of this MOU. As a condition precedent to the construction of any at -grade crossing, including the crossing at Bay Marina Drive and the private driveway south of the Hotel site (if subject to the California Public Utilities Commission's [PUC'sj jurisdiction), the City will apply to the PUC for a permit to construct an at -grade crossing at these locations. If the permit is issued, any safety EXHIBIT 2 MesvpoIten Transit System (MTS) is comprised of the Metropolitan Transit Development Board (MTDe). a California public agency. San Diego Transit Corp.. and San D,ego Trolley. Inc.. in cooperatton with Clads Vete Transit and Natlonel City Transit. MTS Is the tax, ab adrrinistratcr for eight cities. MTDB is owner of the San Diego ard Arizona Eastern Railway Company. NODES member agentaes include: City of Chub Vesta. City of Coronado. City of El Cajon. City of impend Beach. City of La Mesa, City ce Lemon Grove. City of Netwnal City. City of Poway. improvements required by the PUC, including, but not limited to, concrete crossing material, flashers, and warning devices, shall be installed pursuant to the terms of paragraph 2. a. The Railroad agrees to cooperate with the City in the application process, including the execution of a license, cost, and maintenance agreement between the City and the Railroad, which will address, among other things, the maintenance obligations of each party at the proposed crossing with the understanding that the Railroad will be responsible for maintenance of the rail, flashers, and warning devices (at City's expense) and the City will be responsible for maintenance of the roadway improvements. 4. The Railroad shall have no control over demolition of track in areas not owned or controlled by the Railroad. 5. Any arrangement entered Into between the Port of San Diego, Burlington Northern Santa Fe (BNSF) Company, and the City shall not preclude Railroad from rail access within Bay Marina Drive to the terminal area along Harrison Avenue/Marina Way and the Coronado Railroad right-of-way. 6. Harrison Street/Allev a. CDC shall remove the rail tracks in the alley between the "Motivational Systems, Inc. (MSI)" parcel and "MSI Parking Lot" parcel, and Parcel 1B and 1C ("Olson"), identified as "6.a. CDC to Remove Rail Tracks," all as shown on Exhibit A attached hereto. The removal will include the rail switch and appurtenances on the south side of Bay Marina Drive to the terminus of the tracks approximately 400 feet north of 23rd Street. b. CDC, at the request of the Railroad and pursuant to plans developed by the Railroad, will install tracks and appurtenances across Bay Marina Drive to connect the existing tracks on the north and south side of Bay Marina Drive, identified as "6.b. CDC to Connect to Existing Tracks," as shown on Exhibit A, subject to the terms of paragraphs 2 and 3. (1) At the option of the Railroad, in lieu of the terms of paragraph 1.b. above, the City agrees to cooperate with the San Diego Freight Rail Advisory Council (the "Council") or other public agency as necessary in the project development and construction of the connection between the SD&AE main lines and the BNSF main lines across Marina Way in the general area between Bay Marina Drive and the Salt Marsh (as shown on Exhibit B attached hereto). Cooperation shall mean granting of right-of-way necessary from the City or CDC at no cost to the Council and affirmative support of the Council's at -grade crossing permit application from the PUC. c. The CDC will remove the tracks in Harrison Street north of 23rd Street beginning at the existing switch, which connects the track to the BNSF's main track, identified as "6.c. Remove Tracks North of 23rd Street Beginning at the Switch" as shown on Exhibit A. -2- 7. Hotel Site Area a. SD&AE will grant to the CDC a nonexclusive license for parking, drainage, access, and related purposes over the area identified as "7.a. Parking Area-SD&AE to Grant Parking License to CDC" on 'Parcel 4 Site Hotel Area' on Exhibit A. The license will provide that no parking will be allowed withinl0 feet of the centerline of the existing track and will further provide the CDC with the right to sublicense to the developer of the hotel site with prior approval of the Railroad. Any such license shall be revocable by the SD&AE upon 30 days' notice to the CDC. b. The CDC will install a private driveway at -grade across the tracks of Railroad at the location identified as "7.b. Storm Drain and Driveway License" on Exhibit A, subject to the terms of paragraphs 2 and 3. c. The CDC will Install a storm drain below the tracks of Railroad at the location identified as "7.b. Storm Drain and Driveway License" on Exhibit A, subject to the terms of paragraphs 7.d., below. d. Prior to development of any public improvements or off -site improvements related to development in the hotel site area, CDC shall prepare detailed plans for Railroad's review and approval, which approval shall only pertain to improvements on the Railroad's property. All pipeline improvements under Railroad's tracks shall conform to American Railway Engineering and Maintenance of Way Association -recommended practices. e. Plats and legal descriptions for the easements described above shall be prepared by the City/CDC, subject to the review and approval of the Railroad. f. The value of the easement areas described in this paragraph and granted to the City and the CDC shall be $10.00 per square foot and shall be paid to the SD&AE by the CDC/City or the hotel developer prior to development of the hotel site. 8. Retaining Wall Easement SD&AE will grant an easement to the City for the existing retaining wall adjacent to Paradise Marsh, shown as 'Retaining Wall Easement' on Exhibit B. 9. Harbor Drive Rail Crossing City shall remove paving to top of rail elevation if requested by SD&AE if and when the rail lines crossing Harbor Drive are put back into service upon 30 days' written notice. City shall complete the removal of the paving no later than 90 days following the 30 days' written notice. Failure to remove the paving within this time period will result in the imposition of liquidated damages in the amount of $50 for every day the project is not completed within the aforementioned time schedule. The terms of paragraph 4.b are incorporated herein. -3- 10. This MOU represents the general agreement between the parties with respect to the Redevelopment Area. The parties agree to execute more specific agreements in the future as required to carry out the terms and conditions of this MOU, the costs of which are to be paid by the CDC. IN WITNESS WHEREOF, the parties hereto have caused this Memorandum of Understanding to be executed by their respective duly authorized representatives on this day of , 200 . METROPOLITAN TRANSIT SYSTEM CITY OF NATIONAL CITY Chief Executive Officer Approved as to form: SAN DIEGO AND ARIZONA EASTERN RAILWAY COMPANY By: Title: SChamp/MOU SDAE.S200-06-291.CW ILLI 10118/05 Attachments: Exhibit A - Redevelopment Area Exhibit B — MOU Area By: Title: COMMUNITY DEVELOPMENT COMMISSION By: Title: -4- cdcnc— togo.gif L EXHIBIT A REDEVELOPMENT AREA S200-06-291 EXHIBIT B MOU AREA lMti w'Iu.Tt F w� S200-06-291 •••••••••# mom—igightirpf edlliwft C4MINalq.Diedifaiaat Clair*" ofileilenal ttlq EXHIBIT B Not to Scale S200-06-291 B-2 NOTICE OF EXEMPTION TO: County Clerk County of San Diego P.O. Box 1750 1600 Pacific Highway, Room 260 San Diego, CA 92112 Project Title: MOU between Metropolitan Transit System, San Diego and Arizona Eastern Railway Company, City of National City and National City Community Development Commission Project Location: Railroad tracks/easements in the vicinity of Bay Marina Drive, Cleveland Avenue and Harrison Avenue in National City, California. Contact Person: Patricia Beard Telephone Number: 619-336-4250 Description of Nature, Purpose and Beneficiaries of Project: MOU entailing transfer of ownership, creation of easements, removal of unused railroad tracks, provisions for future use and maintenance Applicant: Community Development Commission Telephone Number: 619-336-4250 140 East 12th St, Ste B National City CA 91950 Exempt Status: ❑ Statutory Exemption. (State type and Section No., if applicable) ® Categorical Exemption. Class 1 Section 15301 (Existing Facilities) ❑ Not a project as defined in Section 15332 of CEQA ® Not subject to CEQA (Sec. 15061b3) Reasons why project is exempt: Minor alteration and Removal of unused existing railroad tracks. This project is not located in or near any habitat or natural areas and is entirely located within public rights of way and previously urbanized, developed private property. Future railway operations will not be impaired by this project. There is no expansion of any use in this project. The project will have no foreseeable impacts on the environment, e.g. air quality, habitat, noise, traffic etc. Date: 12-13-2005 NAME Patricia W. Beard Title Redevelopment Projects Manager EXHIBIT 3 COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY December 13, 2005 AGENDA ITEM NO. 12 TO: CHAIRMAN AND BOARD MEMBERS FROM: BENJAMIN MARTINEZ, EXECUTIVE DIRECTOR SUBJECT: REPORT: STATUS REPORT ON THE AD HOC AFFORDABLE HOUSING TASK FORCE AND DIRECT COMMUNITY DEVELOPMENT COMMISSION STAFF TO PROCEED TO WORK WITH THE NEWLY FORMED TASK FORCE TO ASSESS NATIONAL CITY'S EXISTING AFFORDABLE HOUSING POLICIES AND TO FORMULATE RECOMMENDATIONS FOR HOUSING POLICIES THAT INCREASE, IMPROVE AND PRESERVE NATIONAL CITY'S SUPPLY OF AFFORDABLE HOUSING Recommendation: Community Development Commission staff recommends that the Community Development Commission Board: RECEIVE AND FILE the status report on the Ad Hoc Affordable Housing Task Force; and, DIRECT Community Development Commission staff to proceed to work with the newly formed Task Force to assess National City's existing affordable housing policies, and to formulate recommendations for housing policies that increase, improve, and preserve the City's supply of affordable housing. Fiscal Impact: There will be no fiscal impact as a result of this action. Environmental Impact: CEQA is not applicable. Community Development Commission Agenda Item No. 12 December 13, 2005 Page 1 of 3 Background: On November 1, 2005, the Community Development Commission appointed eight National City residents to the newly formed Ad Hoc Affordable Housing Task Force. The purpose of the Task Force is to work with Community Development Commission staff to review existing affordable housing policies, and to provide recommendations to increase, improve, and preserve the City's supply of affordable housing. The Task Force consists of the following National City residents: • Ms. Carmen Gutierrez • Mr. Jessie Ramirez • Ms. Irma Tranquilino • Fr. Emmet Farrell • Ms. Sylvia Sanchez • Ms. Graciela Sanchez • Mr. Mario Lopez • Ms. Dolores Flores The first meeting of the Task Force shall take place in mid -January 2006. At the first meeting, the newly appointed members shall be sworn in, and Community Development Commission staff will present a proposed work plan and timeline for discussion. Housing topics or issues to consider may include: • Assessing the feasibility of implementing an inclusionary housing policy • Implementation of the new State density bonus requirements • Recommending affordable housing policies for the City's Housing Element • Assessing the need to establish an Affordable Housing Commission • Consider establishing a housing trust fund • Other related affordable housing strategies To assist in the effort, the Community Development Commission will consult with outside affordable housing experts, market and affordable housing developers, and economic and housing consultants. The experts will attend Task Force meetings and inform the Task Force about affordable housing strategies, tools and barriers to developing affordable housing, and case studies of successful affordable housing projects. The meetings and expert guidance will form the basis for assisting the Task Force in formulating recommendations to the City Council and the Community Development Commission for increasing, improving, and preserving National City's supply of affordable housing. The Task Force shall return with recommendations to the City Council and the Community Development Commission in the Fall of 2006. Before moving forward with this work effort, the Community Development Commission requests to provide any additional input or guidance. Community Development Commission Agenda Item No. 12 December 13, 2005 Page 2 of 3 With this, Community Development Commission staff recommends that the Community Development Commission Board receive and file this Status Report on the Ad Hoc Affordable Housing Task Force and direct Community Development Commission staff to proceed to work with the newly formed Task Force to assess National City's existing affordable housing policies, and to formulate recommendations for housing policies that increase, improve, and preserve the City's supply of affordable housing. Staff Member: Del Valle Community Development Commission Agenda Item No. 12 December 13, 2005 Page 3 of 3 COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY December 13, 2005 AGENDA ITEM NO. 13 TO: CHAIRMAN AND BOARD MEMBERS (� FROM: BENJAMIN MARTINEZ, EXECUTIVE DIRECTOR SUBJECT: RESOLUTION NO. 2005-117: APPROVING THE SECOND AMENDMENT TO THE AGREEMENT BY AND BETWEEN THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY AND UNIDEV, LLC AND AUTHORIZING THE CHAIRMAN TO EXECUTE SAID AMENDMENT Recommendation: Community Development Commission staff recommends that the Community Development Commission Board: ADOPT Resolution No. 2005-117 approving the Second Amendment to the Agreement by and between the Community Development Commission of the City of National City and UNIDEV, LLC and authorizing the Chairman to execute said amendment. Fiscal Impact: There is no fiscal impact associated with approving the amendment. Environmental Impact: CEQA is not applicable to this action. Background: On March 16, 2004, the Community Development Commission entered into an Agreement with UNIDEV, LLC to undertake services associated with preparing a conceptual land development plan for the proposed Senior Village Project. The proposed project encompasses a 7.1-acre area that contains the Community Development Commission -owned Kimball and Morgan Towers, which are located at Community Development Commission Agenda Item No. 13 December 13, 2005 Page 1 of 2 1317 and 1415 "D" Avenue. Envisioned for the area is an enhanced Senior Village campus that will include the development of approximately 160 low-income rental units, 320 affordable for sale units, and 100 assisted living units. The proposed project will also include the renovation of existing affordable rental units, a new recreation center, replacement of the existing Nutrition and Senior Centers, specialized retail uses, deck parking, and a new pedestrian oriented street that will link the existing residential complexes to the new development. On April 26, 2005, an Amendment was approved by the Community Development Commission to increase UNIDEV LLC's scope of services for implementing the Predevelopment Phase IA component of the proposed project. Since then, the actual expenditure of funds has differed from the Phase IA budget that was approved under the Agreement. As result, UNIDEV, LLC has requested that the Community Development Commission authorize variations in the line items of the Phase IA budget to allow UNIDEV, LLC the ability to invoice the Community Development Commission for other consultant services associated with implementing Phase IA of the proposed project. Although the proposed Second Amendment would authorize variations in the line items of the approved Phase IA budget, UNIDEV, LLC and the Community Development Commission have agreed that the total cost associated with implementing Phase IA shall not exceed the Phase IA budget that was approved by Amendment on April 26, 2005. With this, Community Development Commission staff recommends that the Community Development Commission Board adopt Resolution No. 2005-117 approving the Second Amendment to the Agreement by and between the Community Development Commission of the City of National City and UNIDEV, LLC and authorizing the Chairman to execute said agreement. ATTACHMENTS: EXHIBIT 1 — Resolution No. 2005-117 EXHIBIT 2 — Proposed Second Amendment Staff Member: Del Valle Community Development Commission Agenda Item No. 13 December 13, 2005 Page 2 of 2 RESOLUTION NO. 2005-117 A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF NATIONAL CITY (CDC) APPROVING THE SECOND AMENDMENT TO THE AGREEMENT BY AND BETWEEN THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY AND UNIDEV, LLC AND AUTHORIZING THE CHAIRMAN TO EXECUTE SAID AMENDMENT WHEREAS, in March 16, 2004, the Community Development Commission of the City of National City entered into an Agreement with UNIDEV, LLC to undertake services associated with preparing a conceptual land development plan for the proposed Senior Village Project; and, WHEREAS, the proposed Senior Village Project encompasses a 7.1-acre area that contains the Community Development Commission -owned Kimball and Morgan Towers, which are located at 1317 and 1415 "D" Avenue; and, WHEREAS, envisioned for the area is an enhanced Senior Village campus that will include the development new rental and for sale affordable units, the renovation of existing affordable rental units, a new recreation center, replacement of the existing Nutrition and Senior Centers, and specialized retail uses; and, WHEREAS, in April 26, 2005, an Amendment was approved by the Community Development Commission to increase UNIDEV, LLC's scope of services for implementing the Predevelopment Phase IA component of the proposed project; and, WHEREAS, since the expenditure of funds has differed from the approved Phase IA budget, the Community Development Commission authorizes variations in the line items of the Phase IA budget to allow UNIDEV, LLC the ability to invoice the Community Development Commission for other services associated with implementing Phase IA of the proposed project; and, WHEREAS, the Community Development Commission and UNIDEV, LLC agree that the total cost associated with implementing Phase IA of the proposed project shall not exceed the Phase IA budget that was approved by Amendment on April 26, 2005; and, WHEREAS, all other terms and provisions of the Agreement shall remain in full force and effect; and, NOW, THEREFORE, BE IT RESOLVED, that the Community Development Commission of the City of National City does hereby approve the Second Amendment to Agreement by and between the Community Development Commission of the City of National City and UNIDEV, LLC. BE IT FURTHERED RESOLVED, that the Community Development Commission of the City of National City authorizes the Chair to execute said amendment. 1 EXHIBIT 1 PASSED AND ADOPTED this 13th day of December 2005. ATTEST: Benjamin Martinez, Secretary APPROVED AS TO FORM: George H. Eiser, III, City -CDC Attorney Nick Inzunza, Chairman 2 EXHIBIT 1 SECOND AMENDMENT TO AGREEMENT BY AND BETWEEN THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY AND UNIDEV, LLC THIS SECOND AMENDMENT (this "Second Amendment") is entered into as of the 13th day of December 2005, by and between the COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY (the "CDC"), and UNIDEV, LLC (the "Contractor"). RECITALS WHEREAS, the CDC and the Contractor entered into a certain Agreement dated as of March 16, 2004 (the "Agreement") pursuant to which the CDC employed the Contractor to undertake certain services associated with the preparation of a conceptual land development plan for the proposed Senior Village Project (the "Project"), which is located on certain land owned by the CDC (the "Land") in the City of National City (the "City"); and WHEREAS, the CDC and the Contractor entered into a certain Amendment to Agreement, which was approved by the CDC on April 26, 2005 (the "Amendment"), pursuant to which the parties agreed to (a) an increase in the Contractor's scope of services, comprised of certain services (the "Additional Services") related to the implementation of the Predevelopment Phase IA component of the proposed Project ("Phase IA"), (b) the compensation due to the Contractor for performing the Additional Services, and (c) a budget for the implementation of Phase IA, which budget specifies certain expenditure amounts with respect to certain line items (the "Phase IA Budget"); and WHEREAS, the actual costs for certain of the line item expenditures have been or are anticipated to be either less or more than the amount(s) specified therefor in the Phase IA Budget; and WHEREAS, the Contractor and the CDC have agreed that (a) actual expenditures for items set forth in the Phase IA Budget may differ from the amount(s) specified therefor in the Phase IA Budget, (b) the compensation payable to the Contractor for performing the Additional Services may exceed the amount set forth in the Phase IA Budget, and (c) notwithstanding the foregoing subsections (a) and (b), the total costs associated with implementing Phase IA of the proposed Project shall not exceed the total Phase IA Budget. NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING PREMISES AND OTHER VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, THE PARTIES HERETO, FOR THEMSELVES AND THEIR SUCCESSORS AND ASSIGNS, DO MUTUALLY AGREE AS FOLLOWS: EXHIBIT 2 1 1. Phase IA Budget Allocation. It is understood and agreed by the parties hereto that (a) notwithstanding the allocation of certain expenditure amounts to specific line items set forth in the Phase IA Budget, the actual expenditures for such line items may differ from the amount(s) specified therefor in the Phase IA Budget, (b) the compensation payable to the Contractor for performing the Additional Services may exceed the amount set forth in the Phase IA Budget, and (c) notwithstanding the foregoing subsections (a) and (b), the total costs associated with implementing Phase IA of the proposed Project shall not exceed the total Phase IA Budget. 2. Contractor's Compensation. Rider C, Section 1.a of the Amendment is hereby amended by deleting the first sentence and inserting the following in lieu thereof: "The Contractor shall receive a monthly payment equal to Fifteen Thousand and No/100 Dollars ($15,000.00) (the "Monthly Payment") for performing its Additional Services for the Project; provided that the aggregate of all Monthly Payments shall not exceed the difference between (a) the total Phase IA Budget, and (b) the sum of all other fees and expenses payable pursuant to the Phase IA Budget (collectively, the "Other Phase IA Costs"); and, provided further that the final Monthly Payment shall equal the difference between (y) the total Phase IA Budget, and (z) the sum of all previous Monthly Payments plus the Other Phase IA Costs. 3. Miscellaneous. a. The Agreement, as amended by the Amendment, shall remain in full force and effect, as further amended by this Second Amendment. b. In the event of any conflict between the provisions of this Second Amendment and the provisions of the Agreement as amended by the Amendment, the provisions of this Second Amendment shall control. [remainder of page intentionally left blank] 2 IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment to Agreement as of the date and year first above written. COMMUNITY DEVELOPMENT COMMISSION UNIDEV, LLC OF THE CITY OF NATIONAL CITY By: By: Nick Inzunza Jim Edmondson Chairman President WITNESS/ATTEST: WITNESS/ATTEST: By: By: Benjamin Martinez Secretary APPROVED AS TO FORM: George H. Eiser, III, Legal Counsel 3 COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY December 13, 2005 AGENDA ITEM NO. 14 TO: CHAIRMAN AND BOARD MEMBERS FROM: BENJAMIN MARTINEZ, EXECUTIVE DIRECTOR VIA: ROBERT PAZ, DEPUTY DIRECTOR OF ECONOMIC DEVELOPMENT IZo° SUBJECT: RESOLUTION NO. 2005-118: AUTHORIZING THE CHAIRMAN TO ENTER INTO AN AGREEMENT WITH CORNERSTONE BUILDING GROUP ON AN AS -NEEDED BASIS FOR CONSTRUCTION MANAGEMENT SERVICES FOR THE PLAYHOUSE ON PLAZA Recommendation: Community Development Commission staff recommends that the Community Development Commission Board: ADOPT Resolution No. 2005-118 authorizing the Chairman to enter into an Agreement with Cornerstone Building Group to provide as -needed construction management services for the Playhouse on Plaza. Fiscal Impact: Under the terms of the proposed agreement, the total fee will not exceed $70,000. Funding is available and is budgeted in the current FY 2005-06 CDC Budget for the Playhouse on Plaza. Environmental Impact: CEQA not applicable. Background: On May 26th, 2005, the Community Development Commission closed escrow and purchased the Playhouse on Plaza. After inspection by Fire and Building and Safety staff, the property was not suitable for use. In order to assure the safety of the public, Community Development Commission Agenda Item No. 14 December 13, 2005 Page 1 of 2 immediate improvements are necessary to comply with the City's code enforcement and Fire safety requirements. The Community Development Commission allocated funds in the Fiscal Year 2005- 2006 Budget for the Playhouse on Plaza for the retrofit of the structure. Community Development Commission staff met with the Cornerstone Building Group, a respected firm currently working on the Art Center renovation. Under direction of a Community Development Commission project manager, Cornerstone will provide an assessment of the building which will include: a scope of work and construction estimate required to bring the building up to Code; a value engineered analysis on how to implement the scope of work; the management of the bidding process; and verification of the City of National City's inspection requirements. With this, Community Development Commission staff recommends that the Community Development Commission Board adopt Resolution No. 2005-118 authorizing the Chairman to enter into an Agreement with Cornerstone Building Group to provide as - needed construction management services for the Playhouse on Plaza. ATTACHEMENTS: EXHIBIT 1 — Resolution No. 2005-118 EXHIBIT 2 — Cornerstone Building Group proposal EXHIBIT 3 — Proposed Agreement Community Development Commission Agenda Item No. 14 December 13, 2005 Page 2 of 2 RESOLUTION NO. 2005-118 A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF NATIONAL CITY (CDC) AUTHORIZING THE CHAIRMAN TO ENTER INTO AN AGREEMENT WITH CORNERSTONE BUILDING GROUP ON AN AS -NEEDED BASIS FOR CONSTRUCTION MANAGEMENT SERVICES FOR THE PLAYHOUSE ON PLAZA WHEREAS, currently, the Community Development Commission of the City of National City desires to employ a contractor to provide as needed construction management services for the Playhouse on Plaza; and, WHEREAS, the Community Development Commission has determined that Cornerstone Building Group is a professional construction firm and is qualified by experience and ability to perform the services desired by the Community Development Commission, and Cornerstone Building Group is willing to perform such services. NOW, THEREFORE, BE IT RESOLVED, that the Community Development Commission of the City of National City hereby authorizes the Chairman to enter into an Agreement with Cornerstone Building Group to provide construction management services for the Playhouse on Plaza allocated in Project Account Number 900737 and not to exceed $70,000. PASSED AND ADOPTED this 13th day of December 2005. ATTEST: Benjamin Martinez, Secretary APPROVED AS TO FORM: George H. Eiser, III, City -CDC Attorney Nick Inzunza, Chairman EXHIBIT 1 Submitted to: National City CDC Nat f. 10, ZppS NovCfibe fir rtiee,in rr� EMEy fferSsn SSIO v STATEMENT Group nano{ Contracting ontbuilding C� Cornerstone ruc General arners t Itinr rsed on which the furyt of Cor's'y , arefocy r work; µl rVV a �,{t t>yy trust. Construction ruen�ounti ; S through rt °f and a Engineering. strong foundation deep as fetter tn' u strottr ��.rit)• Our uctiettt needs; is based on and integrity. and needs, se of pro) and those a erti. eorell tarur ea eagerness to rofQssirtu ie-p y nutin level of professional , do. well u_n�us u high level uit that w` niairit towers (r µ,iyicit Table of Content4..� Page Recent Project Experience 1 Key Team Members 4 Type of Services 7 Cost Summary 13 List of Projects 14 CORNERSTONE B 4Iding Qroup City of National City November 10, 2005 Robert Paz and Angela Nazareno CDC of National City 140 E. 12th Street, Suite B National City, CA 91950 Subject: Proposal to Provide Construction Management Service for projects within National City Dear Mr. Paz and Ms. Nazareno: We are honored to have the opportunity to offer our Construction Management services for the pending projects within National City. Cornerstone Building Group is a local company focused on building long term working relationships with clients. We are especially hopeful to form a long term relationship with the City of National City. We believe our extensive experience with maintaining diplomatic working relationships with Architects, Engineers, Trade Contractors, Government Officials and General Contractors will be most beneficial to not only meeting, but surpassing your project goals and needs. We have been successful in acquiring a team with high integrity and deep commitment in their -work and they are available to put their expertise forward to complete your projects within the accelerated schedule and specified budget; all while maintaining a high level of quality. Our team members expertise is as diverse as the various projects needed within downtown National City. Our presence and familiarity with the South San Diego Community fosters a deep commitment to not only see Downtown National City prosper, but to be involved in the overdue improvements. We believe these improvements will serve to benefit the local residents, business owners and local community as a whole. Please note that Cornerstone Building Group can provide services as a Construction Management (CM) Agency for project management and as a CM Multiple Prime Contractor as an alternate project delivery method. Thank you in advance for taking the time to learn more about the benefit of the services we offer to you. Respectfully, Cornerstone Building Group Mike Najera Rick Osgood Principal Partner Principal Partner CORNERSTONE Building Group Recent Projects. - National City Middle School, Castle Park and Granger Junior High Owner: Sweetwater High School District For both Castle Park and Granger Junior High School, $24 Million worth of major renovations was to be completed within a ten week timeframe. Despite working under a compressed schedule we finished ten days ahead of schedule with outstanding quality. Cornerstone Building Group provided Construction Management services to perform these major demolitions and renovations throughout classrooms, bathrooms, storage rooms and electrical rooms. Modernizations included architectural, structural, mechanical, plumbing and civil work. Renovations also included major site work and accessibility upgrades. National City Arts and Cultural Center Owner: City of National City Cornerstone Building Group is currently providing Pre -Construction services to convert an old library into an Arts and Cultural Center. Due to the restrictive budget we offered innovative solutions which included using floor tile with donors names, as well as acquiring money from Proposition 40, which has money set aside for historical renovations. This project was brought within the budget parameters by the use of creative budget and value analysis. As Construction Managers we will oversee civil site work, mechanical, electrical, additional parking, as well as the addition of a second level to the existing building. SDSU Parking Structure and Shuttle Shops Owner: San Diego Sate University Cornerstone Building Group provided General Contractor services for the demolition and renovations to Parking structure three; which involved concrete reinforcements, pressure grouting and earthwork. In addition, this project involved the new construction of shuttle stops to be used by students and faculty of the University. 1 Recent Projects Delta Road Owner: U.S. Navy Cornerstone Building Group used the Design -Build delivery method for the road realignment at a major intersection in Miramar. Work included erosion control of road; demolition of concrete, slabs and curbs; earthwork; asphalt; paving, stripping and irrigation. Design and Construction of Emergency Road and Drainage Repairs Owner: U.S. Navy Cornerstone Building Group used the Design -Build delivery method to demolish existing road and construct new road. Project involved addition of culvert and dissipator to repair and prevent road washout. Naval Medical Center Owner: U.S. Navy The project at the NICU Medical center involved both demolition and renovation of 4,500 sq ft of acoustic ceiling, lighting, fire protection system, ballasts, HVAC registers and grills. This work was done within the delicate work environment of the Neonatal Intensive Care Unit, which housed infants who were already in a fragile state of health. Therefore, creating a safe work environment for everyone was of utmost importance. Cornerstone Building Group handled all work concerning the design, planning, labor, transportation, materials and equipment supplies. This work took extraordinary diplomacy, unambiguous communication and strict guidance by all the rules and regulations specified by F.A.R. contracting. Our building, Quality Control and Safety expertise were most important in completing this project ahead of schedule and within budget; while upholding the highest level of quality. nriglillill CO RNERSTOPIE Bu11Akg group 2 Recent Projects VIP Lounge and Air Passenger Terminal Owner: U.S. Navy Cornerstone Building Group used the Design -Build delivery method to perform High -end renovations to an existing Air Passenger Terminal and VIP lounge; to be occupied by such dignitaries as the President of the United States. Careful coordination of trades and a diplomatic relationship with our client allowed for the project to be completed within the specified time frame and budget; despite the use of very high end materials and the Air Passenger Terminal remaining fully operational throughout construction. Cedros Seaside Homes Owner: Solana Beach Development LLC Cornerstone Building Group is providing Construction Management services for the complete construction of 23 single family residences. These million dollar plus homes are built and designed with luxury in mind. As Construction Manager's we altered the architectural design in order to create ocean views, which were originally over looked in the pre -construction layout of windows. Despite the delay in phase one and two of this project, due to owner financing issues, we have managed to coordinate trades so we are still on track to finish on time. Starbuck and Wells Fargo Owner: Jacobs Foundation Cornerstone Building Group provided Construction Management services for the construction of both a Starbucks and Wells Fargo facility for a non-profit organization. Despite a restrictive budget and very high local and Disadvantaged Business Enterprise goals; we met both project needs and goals. This project involved complete construction of two wood framed retail buildings; approximately 4,000 sq ft. in size. CORNERSTONE Bulking Group 3 Key Team Members Mike Najera Principal Partner Years of Experience Over 25 years Education Business Administration University of Phoenix Mr. Najera's choice of business in the building industry is a direct reflection of his desire to build better communities. A native and long-time resident of South San Diego County, Mr. Najera is deeply committed to achieving a positive impact within the local community. Mr. Najera hopes to continue to be in a position which enables him to provide his employees with a work environment where they are appreciated and highly esteemed, as well as providing the San Diego Community with a company which demands high standards of ethical and quality work. Mr. Najera's abilities as a leader are exemplified by his impressive rise from laborer to management positions within the construction industry. The vision of an entrepreneur and the aspiration to gain expertise in all facets of his industry equipped Mr. Najera with the strength to surpass all obstacles and advance through his field. His triumphs as a business leader have recently been recognized by way of winning the 2005 Entrepreneur of the Year Award and the 2004 Latino Builder of the Year Award. Rick Osgood Principal Partner Years of Experience Over 32 years Education B.S. Industrial Construction Management Colorado State University, Colorado Mr. Osgood holds over 32 years of experience within the Construction Industry and has been an owner within the industry since 1987. Mr. Osgood holds an impressive depth of knowledge in the construction industry; which comes from his very unique combination of formal education as well as field experience. As Co -Owner of Cornerstone Building Group, one of Mr. Osgood's greatest joys is the improved quality of life he has been able to create; not only for himself and his family, but for his employees as well. This improved quality of life translates into quality work and a deep commitment to every project from every one of Cornerstone Building Group's employees. Mr. Osgood was able to rise through the ranks as Construction laborer to manager at an impressive rate. Similarly, he is now facilitating the growth of his company in a correspondingly progressive speed. Mr. Osgood's experiences within all phases of the Construction Industry provide him with a deep understanding of everything it takes to be a good builder. CORNERSTONE BuUding Oroup 4 Key Team Member Bayani Abueg Senior Project Manager Years of Experience Over 17 yrs Education B.S. Degree, Civil Engineering San Diego State University, San Diego Mr. Abueg is registered as a Professional Civil Engineer throughout the Western region of the United States. For the past 17 years Mr. Abueg has been specializing in Construction Management, Project Management, Quality Control and Civil Engineering. As a Construction Manager, Mr. Abueg is well versed in Construction CPM schedules, monthly billings, evaluating change order requests. As a Senior project Manager, Mr. Abueg is experienced in preparing CPM schedules, budgets, contracts, contract modifications, billings and subcontractor payments. Mr. Abueg has proven to be an expert in failure analysis on distressed structures, construction materials evaluations, Geotechnical Engineering, Forensic Engineering, and Environmental Engineering. Mark Franko Project Manager, Estimator Years of Experience Over 20 years Education Civil Engineering San Diego State University, San Diego Mechanical Engineering California Polytechnic, Pomona Computer Information Sciences Coleman College, La Mesa Mr. Franko has a proven ability to be both proactive, responsive and cooperative in meeting the needs of the project and client alike. Throughout his 20 years of Construction Management experience within the San Diego Community, Mr. Franko has perfected his ability to monitor job cost, project schedules and safety issues; in order to ensure the smooth execution of each project. Mr. Franko's years of experience managing project superintendents, engineers and administrative staff have proven to be a valuable asset in ensuring projects are completed within budget, within the specified time frame and above average quality. CORNERSTONEOrouP Building 5 Key Team Members Frank Najera Superintendent Years of Experience Over 26 years Education Construction Management Certification San Diego State University, San Diego Mr. Najera's expertise within the construction industry is exemplified by his numerous project awards and stellar recommendations. Many of Mr. Najera's awards have been granted for the expertise and quality work he exemplified on historical renovation projects. He holds over 26 years of experience in Commercial and Residential building and has proven to be exceptionally knowledgeable in all phases of construction management; from project inception to construction completion. Complimenting Mr. Najera's experience are his countless training seminars and certifications. Mr. Najera's work ethic is one which gets the job done; with the highest regard for quality and cli- ent needs. As Superintendent Frank will support the Project Manager to assure open communications, budget, quality and safety are maintained. Dan Chandler Superintendent Years of Experience Over 32 years Education Construction Technology Southwestern College, Chula Vista As Superintendent Mr. Chandler has proven to be a highly experienced leader. Dan carries over 32 years of experience under his belt and is known for his natural ability to motivate a team focused on safety and effective working relationships. Although one of the most recent additions to Cornerstone Building Group, Mr. Chandler has already established his reputation as a man with a very high level of integrity for his work. He not only gets the job done, but he completes projects ahead of schedule; even when working under an already compressed timeframe. Much of Mr. Chandler's experience consists of but is not limited to major renovations and new construc- tion of professional office buildings, hospitals, custom homes and schools. Throughout the execution of these projects Mr. Chandler has perfected his ability to efficiently maintain daily records, review budgets, negotiate with subcontractors and vendors as well as schedule and direct all inspections with city officials. In addition, Mr. Chandler has mastered an ability to coordinate trades and maintain productive working relationships to ensure owner needs are not only met, but exceeded. CORNERSTON 6uilding Group 6 List of Projects Mike Naiera Sweetwater High School Modernization — Sweetwater Union High School District Mar Vista High School Modernization — Sweetwater Union High School District Arroyo Vista Elementary School — Chula Vista Elementary School District Chaparral High School Temecula Unified High School District UCSD, Club Med Dining Facility Remodel UCSD Matthews Dining Facility Conversion University of California at San Diego, Undergraduate Science Renovation University of California at San Diego, Bonner Hall Renovation University of California at San Diego, Galbraith Hall Renovation University of California at San Diego, Basic Science Building Renovations University of California at Los Angeles, Morgan Center Renovation University of California at Los Angeles, Campus High Rise Renovation United States Navy SW Division, BRACC Warehouse United States Navy SW Division, Paint Booth Relocation United States Navy SW Division, SPAWAR, OT1 / OT4 Renovations United States Navy, SW Division, New Youth Center United States Navy, SW Division , Area 62 Mess Hall Renovation United States Navy, SW Division New Bachelor Enlisted Quarters United States Navy, SW Division Building 777 Bachelor Enlisted Quarter Renovation United States Navy, SW Division Admiral Baker Golf Course New Club House United States Navy, SW Division Bachelor Enlisted Quarter Seismic Renovation United States Navy, SW Division Building 8 Renovation CO RN ERSTONE Building Group 14 Mike Naiera United States Navy, SW Division, Hanger 5 Electrical Distribution United States Navy, Hanger Reno Renovation United States Navy, SW Division, Area 24 Mess Hall Renovation City of San Diego, House of Hospitality Historic Renovation San Diego County Superior Court, Jacob Swartz Federal Court House Renovation San Diego County Superior Court, South County Regional Court House Renovation San Diego County Superior Court, East County Regional Court House Renovation Vista Irrigation District, Vista Operations Facility, Tilt -up Concrete San Diego Unified Port District, East and West Terminal Renovations State of California, Atascadero State Hospital Addition City of Perris, Cesar Chavez Library Rick Osgood RW Johnson Pharmaceutical Institute Phase II City of Encinitas Fire Station and Community Center RW Johnson Pharmaceutical Institute LAB Expansion San Diego City Schools, Garfield Elementary School Conversion Sweetwater High School Modernization — Sweetwater Union High School District Mar Vista High School Modernization — Sweetwater Union High School District Poway Aquatic Center Belen Elementary District, Belen Elementary School University of California, Oceanview Terrace Dining Facility University of California, Basic Science Building Renovations University of California, Thornton Hospital List of Projects 11°11411 CORNERSTOPIE Bullding Group 15 List of Projects. Rick Osgood University of California, Engineering Science Laboratory and Offices US Air/SDUPD, East Concourse and Rotunda Addition UCSD, Club Med Dining Facility Remodel & UCSD Matthews Dining Facility Conversion Scripps Health, Linear Accelerator Phases I and II U.S. Dept. of the Navy, BRAC Warehouse P-999U, Brooktree, Research Laboratory/Office Addition and Improvements University of New Mexico Parking Structure University of New Mexico, New Valencia Campus MCAS Twenty Nine Palms Co. Generation Plant Technical Vocational Institute, Phase 18 Albuquerque International Airport, Site Improvements, Eighty Acres Host Marriott / San Diego Unified Port District, East and West Terminal Concessions U.S. Dept. of the Navy, SPAWAR Renovations to Old Town Campus Buildings Albuquerque International Airport, Parking Facility Carlsbad Development Corp., Riverwalk Shopping Center Smith's Grocery Store Renovations and Addition Plastech inc. Manufacturing Facility IV Albertson's, Grocery Store Renovations PMI inc., Warehouse First National Bank, Montgomery Branch Home Club, Retail Store City of Albuquerque, Southside Sewage Site Utilities CORNERSTONE BuIW/nq Oroup 1A Rick Osgood City of Albuquerque, Vehicle Storage and Maintenance Facility City of Albuquerque, Liquid Waste Chlorination Facility Broadbent Development, Office Complex EG & G, Government Research Center El Fidel, El Fidel Historical Hotel Renovation Federal Housing and Urban Development Authority Saint Vincent Hospital, New Wing Moncor Development, Office Tower Park Square, Ten Story Office Tower Park Square Parking Garage Sunwest Bank, Ten Story Office Tower Wilson Hurley, Gallery/Residence North Fort Collins Custom Homes Bay Shore Apartments South College Custom Homes Red River Condominiums Horse Tooth Housing Development Cinderella City Shopping Center List of Projects CORNERSTOPiE a„�arg o�«,p 17 List of Projects Bavani Abueq Sector Support/Air Operations Facility, San Diego, CA ($22 mil) - Army Corps of Engineers Armory and Shops, MCAS Miramar, CA ($20 mil.) - U.S. Dept. of the Navy Design -Build Student Health Services at SDSU, San Diego, CA ($19 mil.) -CA State University Design -Build Force Operations Intelligence Ctr, Camp Pendleton, CA ($18 mil) Dept. of the Navy Design -Build Navy Seals Team Operations Facility, Coronado NAB, CA ($10 mil) — Dept. of the Navy Design -Build BioScience Center Addition at SDSU, San Diego, CA ($7 mil.) — CA State University Renovation of BEQs, Camp Pendleton, CA ($6 mil.) - U.S. Dept. of the Navy Repairs to Sewer Treatment Plants 1 & 12, MCB, Camp Pendleton, CA ($3 mil) — Dept. of the Navy Repairs to Hangar #5, MCAS Miramar, CA ($2.8 mil.) — U.S. Dept. of the Navy Repair/Improve Simulation Center, Camp Pendleton, CA ($2.5 mil) — Dept. of the Navy F/A 18 Flight Simulator, MCAS Miramar, CA ($2.4 mil.) - U.S. Dept. of the Navy Horton Elementary School, San Diego, CA ($1.5 mil) — San Diego Unified School District Design -Build Earthquake Repair, Twentynine Palms, CA ($1.5 mil) — Dept. of the Navy Design -Build Classroom Addition, Bldg. 1587, Twentynine Palms, CA ($1.4 mil) — Dept. of the Navy Replace Electrical Distribution, Camp Pendleton, CA ($1.3 mil) — Dept. of the Navy Drainage Repairs for Bldg 2257 and 2273, MCAS Miramar, CA ($450K) — Dept. of the Navy Pathology Laboratory, Twentynine Palms, CA ($430K) — Dept. of the Navy Repair Storm Damage to Santa Margarita Ranch House, Camp Pendleton, CA (100K) — V Griffin CORNERSTONE Building Group 18 AGREEMENT BY AND BETWEEN THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY AND CORNERSTONE BUILDING GROUP THIS AGREEMENT is entered into this 13th day of December, 2005, by and between the COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY, a municipal corporation (the "CDC"), and CORNERSTONE BUILDING GROUP (the "CONTRACTOR"). RECITALS WHEREAS, the CDC desires to employ a CONTRACTOR to provide remodeling and construction administration services on the Playhouse on Plaza. WHEREAS, the CDC has determined that the CONTRACTOR is a construction firm and is qualified by experience and ability to perform the services desired by the CDC, and the CONTRACTOR is willing to perform such services. NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS FOLLOWS: 1. ENGAGEMENT OF CONTRACTOR. The CDC hereby agrees to engage the CONTRACTOR, and the CONTRACTOR hereby agrees to perform the services hereinafter set forth in accordance with all terms and conditions contained herein, on an as -needed basis as determined by the Community Development Commission's Executive Director. The CONTRACTOR represents that all services required hereunder will be performed directly by the CONTRACTOR, or under direct supervision of the CONTRACTOR. 2. SCOPE OF SERVICES. The CONTRACTOR will perform services as set forth in the attached Exhibit "1". The CONTRACTOR shall be responsible for all research and reviews related to the work and shall not rely on personnel of the CDC for such services, except as authorized in advance by the CDC. The CONTRACTOR shall appear at meetings cited in Exhibit "1" to keep staff and the Community Development Commission advised of the progress on the project. The CDC may unilaterally, or upon request from the CONTRACTOR, from time to time reduce or increase the Scope of Services to be performed by the CONTRACTOR under this Agreement. Upon doing so, the CDC and the EXHIBIT 3 Revised August 2005 CONTRACTOR agree to meet in good faith and confer for the purpose of negotiating a corresponding reduction or increase in the compensation associated with said change in services, not to exceed a factor of 10% from the base amount. 3. PROJECT COORDINATION AND SUPERVISION. Robert Paz hereby is designated as the Project Coordinator for the CDC and will monitor the progress and execution of this Agreement. The CONTRACTOR shall assign a single Project Director to provide supervision and have overall responsibility for the progress and execution of this Agreement for the CONTRACTOR. Michael Najera thereby is designated as the Project Director for the CONTRACTOR. 4. COMPENSATION AND PAYMENT. The compensation for the CONTRACTOR shall be based on monthly billings covering actual work performed. Billings shall include labor classifications, respective rates, hours worked and also materials, if any. The total cost for all work described in Exhibit "1" ifiritate4AM. $7M; M (the Base amount) without prior written authorization from the Executive Director. Monthly invoices will be processed for payment and remitted within thirty (30) days from receipt of invoice, provided that work is accomplished consistent with Exhibit "1 "as determined by the CDC. The CONTRACTOR shall maintain all books, documents, papers, employee time sheets, accounting records, and other evidence pertaining to costs incurred and shall make such materials available at its office at all reasonable times during the term of this Agreement and for three (3) years from the date of final payment under this Agreement, for inspection by the CDC and for furnishing of copies to the CDC, if requested. 5. LENGTH OF AGREEMENT. Completion dates or time durations for specific portions of the Project are set forth in Exhibit "1". 6. DISPOSITION AND OWNERSHIP OF DOCUMENTS. Memoranda, reports, maps, drawings, plans, specifications and other documents prepared by the CONTRACTOR for this Project, whether paper or electronic, shall become the property of the CDC for use with respect to this Project, and shall be turned over to the CDC upon completion of the Project, or any phase thereof, as contemplated by this Agreement. Contemporaneously with the transfer of documents, the CONTRACTOR hereby assigns to the CDC, and CONTRACTOR thereby expressly waives and disclaims, any copyright in, and the right to reproduce, all written material, drawings, plans, specifications or other work prepared under this Agreement, except upon the CDC's prior authorization regarding reproduction, which authorization shall not be unreasonably withheld. The CONTRACTOR shall, upon request of the CDC, execute any further document(s) necessary to further effectuate this waiver and disclaimer. The CONTRACTOR agrees that the CDC may use, reuse, alter, reproduce, modify, assign, transfer, or in any other way, medium or method utilize the 2 Revised August 2005 CONTRACTOR's written work product for the CDC's purposes, and the CONTRACTOR expressly waives and disclaims any residual rights granted to it by Civil Code Sections 980 through 989 relating to intellectual property and artistic works. Any modification or reuse by the CDC of documents, drawings or specifications prepared by the CONTRACTOR shall relieve the CONTRACTOR from liability under Section 14 but only with respect to the effect of the modification or reuse by the CDC, or for any liability to the CDC should the documents be used by the CDC for some project other than what was expressly agreed upon within the Scope of this project, unless otherwise mutually agreed. 7. INDEPENDENT CONTRACTOR. Both parties hereto in the performance of this Agreement will be acting in an independent capacity and not as agents, employees, partners or joint venturers with one another. Neither the CONTRACTOR nor the CONTRACTOR'S employees are employees of the CDC and are not entitled to any of the rights, benefits or privileges of the CDC's employees, including but not limited to retirement, medical, unemployment, or workers' compensation insurance. This Agreement contemplates the personal services of the CONTRACTOR and the CONTRACTOR's employees, and it is recognized by the parties that a substantial inducement to the CDC for entering into this Agreement was, and is, the professional reputation and competence of the CONTRACTOR and its employees. Neither this Agreement nor any interest herein may be assigned by the CONTRACTOR without the prior written consent of the CDC. Nothing herein contained is intended to prevent the CONTRACTOR from employing or hiring as many employees or subcontractors as the CONTRACTOR may deem necessary for the proper and efficient performance of this Agreement. All agreements by CONTRACTOR with its subcontractor(s) shall require the subcontractor to adhere to the applicable terms of this Agreement. 8. CONTROL. Neither the CDC nor its officers, agents or employees shall have any control over the conduct of the CONTRACTOR, or any of the CONTRACTOR's employees except as herein set forth, and the CONTRACTOR expressly agrees not to represent that the CONTRACTOR or the CONTRACTOR's agents, servants or employees are in any manner agents, servants or employees of the CDC, it being understood that the CONTRACTOR, its agents, servants and employees are as to the CDC wholly independent contractors, and that the CONTRACTOR's obligations to the CDC are solely such as are prescribed by this Agreement. 9. COMPLIANCE WITH APPLICABLE LAW. The CONTRACTOR, in the performance of the services to be provided herein, shall comply with all applicable state and Federal statutes and regulations, and all applicable ordinances, rules and regulations of the City of National City, whether now in force or subsequently enacted. The CONTRACTOR, and each of its subcontractors, shall obtain and maintain a current City of National City business license prior to and during performance of any work pursuant to this Agreement. 3 Revised August 2005 10. LICENSES, PERMITS, ETC. The CONTRACTOR represents and covenants that it has all licenses, permits, qualifications and approvals of whatever nature that are legally required to practice its profession. The CONTRACTOR represents and covenants that the CONTRACTOR shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement, any license, permit or approval which is legally required for the CONTRACTOR to practice its profession. 11. STANDARD OF CARE. A. The CONTRACTOR, in performing any services under this Agreement, shall perform in a manner consistent with that level of care and skill ordinarily exercised by members of the CONTRACTOR's trade or profession currently practicing under similar conditions and in similar locations. The CONTRACTOR shall take all special precautions necessary to protect the CONTRACTOR's employees and members of the public from risk of harm arising out of the nature of the work and/or the conditions of the work site. B. Unless disclosed in writing prior to the date of this agreement, the CONTRACTOR warrants to the CDC that it is not now, nor has it for the five (5) years preceding, been debarred by a governmental agency or involved in debarment, arbitration or litigation proceedings concerning the CONTRACTOR's professional performance, or the furnishing of materials or services relating thereto. C. The CONTRACTOR is responsible for identifying any unique products, treatments, processes or materials whose availability is critical to the success of the project the CONTRACTOR has been retained to perform, within the time requirements of the CDC, or, when no time is specified, then within a commercially reasonable time. Accordingly, unless the CONTRACTOR has notified the CDC otherwise, the CONTRACTOR warrants that all products, materials, processes or treatments identified in the project documents prepared for the CDC are reasonably commercially available. Any failure by the CONTRACTOR to use due diligence under this sub -paragraph will render the CONTRACTOR liable to the CDC for any increased costs that result from the CDC's later inability to obtain the specified items or any reasonable substitute within a price range that allows for project completion in the time frame specified or, when not specified, then within a commercially reasonable time. 12. NON-DISCRIMINATION PROVISIONS. The CONTRACTOR shall not discriminate against any employee or applicant for employment because of age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. The CONTRACTOR will take positive action to insure that applicants are employed without regard to their age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. Such action shall include but not be limited to the following: employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. The CONTRACTOR agrees to post in conspicuous places available to employees and applicants for employment any notices provided by the CDC setting forth the provisions of this non-discrimination clause. 4 Revised August 2005 13. CONFIDENTIAL INFORMATION. The CDC may from time to time communicate to the CONTRACTOR certain confidential information to enable the CONTRACTOR to effectively perform the services to be provided herein. The CONTRACTOR shall treat all such information as confidential and shall not disclose any part thereof without the prior written consent of the CDC. The CONTRACTOR shall limit the use and circulation of such information, even within its own organization, to the extent necessary to perform the services to be provided- herein. The foregoing obligation of this Section 13, however, shall not apply to any part of the information that (i) has been disclosed in publicly available sources of information; (ii) is, through no fault of the CONTRACTOR, hereafter disclosed in publicly available sources of information; (iii) is already in the possession of the CONTRACTOR without any obligation of confidentiality; or (iv) has been or is hereafter rightfully disclosed to the CONTRACTOR by a third party, but only to the extent that the use or disclosure thereof has been or is rightfully authorized by that third party. The CONTRACTOR shall not disclose any reports, recommendations, conclusions or other results of the services or the existence of the subject matter of this Agreement without the prior written consent of the CDC. In its performance hereunder, the CONTRACTOR shall comply with all legal obligations it may now or hereafter have respecting the information or other property of any other person, firm or corporation. CONTRACTOR shall be liable to CDC for any damages caused by breach of this condition, pursuant to the provisions of Section 14. 14. INDEMNIFICATION AND HOLD HARMLESS. The CONTRACTOR agrees to defend, indemnify, and hold harmless the Community Development Commission of the City of National City, its officers and employees, against and from any and all liability, loss, damages to property, injuries to, or death of any person or persons, and all claims, demands, suits, actions, proceedings, reasonable attorneys' fees, and defense costs, of any kind or nature, including workers' compensation claims, of or by anyone whomsoever, resulting from or arising out of the CONTRACTOR's negligent performance of this Agreement. 15. WORKERS' COMPENSATION. The CONTRACTOR shall comply with all of the provisions of the Workers' Compensation Insurance and Safety Acts of the State of California, the applicable provisions of Division 4 and 5 of the California Government Code and all amendments thereto; and all similar state or Federal acts or laws applicable; and shall indemnify, and hold harmless the CDC and its officers, and employees from and against all claims, demands, payments, suits, actions, proceedings and judgments of every nature and description, including reasonable attorney's fees and defense costs presented, brought or recovered against the CDC or its officers, employees or volunteers for, or on account of, any liability under any of said acts which may be incurred by reason of any work to be performed by the CONTRACTOR under this Agreement. 16. INSURANCE. The CONTRACTOR, at its sole cost and expense, shall purchase and maintain, and shall require its subcontractors, when applicable, to 5 Revised August 2005 purchase and maintain throughout the term of this agreement, the following insurance policies: ® A. If checked, Professional Liability Insurance (errors and omissions) with minimum limits of $1,000,000 per occurrence. B. Automobile insurance covering all bodily injury and property damage incurred during the performance of this Agreement, with a minimum coverage of $1,000,000 combined single limit per accident. Such automobile insurance shall include non -owned vehicles. C. Comprehensive general liability insurance, with minimum limits of $1,000,000 combined single limit per occurrence, covering all bodily injury and property damage arising out of its operation under this Agreement. D. Workers' compensation insurance covering all of CONTRACTOR's employees. E. The aforesaid policies shall constitute primary insurance as to the CDC, its officers, employees, and volunteers so that any other policies held by the CDC shall not contribute to any loss under said insurance. Said policies shall provide for thirty (30) days prior written notice to the CDC of cancellation or material change. F. Said policies, except for the professional liability and worker's compensation policies, shall name the CDC and its officers, agents and employees as additional insureds. G. If required insurance coverage is provided on a "claims made" rather than "occurrence" form, the CONTRACTOR shall maintain such insurance coverage for three years after expiration of the term (and any extensions) of this Agree- ment. H. Any aggregate insurance limits must apply solely to this Agree- ment. I. Insurance shall be written with only California admitted companies which hold a current policy holder's alphabetic and financial size category rating of not less than A VIII according to the current Best's Key Rating Guide, or a company equal financial stability that is approved by the City's Risk Manager. J. This Agreement shall not take effect until certificate(s) or other sufficient proof that these insurance provisions have been complied with, are filed with and approved by the CITY's Risk Manager. If the CONTRACTOR does not keep all of such insurance policies in full force and effect at all times during the terms of this Agreement, the CDC may elect to treat the failure to maintain the requisite insurance as a breach of this Agreement and terminate the Agreement as provided herein. 17. LEGAL FEES. If any party brings a suit or action against the other party arising from any breach of any of the covenants or agreements, or any inaccuracies in any of the representations and warranties on the part of the other party arising out of this Agreement, then in that event, the prevailing party in such action or dispute, whether by final judgment or out -of -court settlement, shall be entitled to have and recover of and from the other party all costs and expenses of suit, including attorneys' fees. For purposes of determining who is to be considered the prevailing party, it is stipulated that attorney's fees incurred in the prosecution or defense of the action or 6 Revised August 2005 suit shall not be considered in determining the amount of the judgment or award. Attorney's fees to the prevailing party if other than the CDC shall, in addition, be limited to the amount of attorney's fees incurred by the CDC in its prosecution or defense of the action, irrespective of the actual amount of attorney's fees incurred by the prevailing party. 18. MEDIATION/ARBITRATION. If a dispute arises out of or relates to this Agreement, or the breach thereof, the parties agree first to try, in good faith, to settle the dispute by mediation in San Diego, California, in accordance with the Commercial Mediation Rules of the American Arbitration Association (the "AAA") before resorting to arbitration. The costs of mediation shall be borne equally by the parties. Any controversy or claim arising out of, or relating to, this Agreement, or breach thereof, which is not resolved by mediation shall be settled by arbitration in San Diego, California, in accordance with the Commercial Arbitration Rules of the AAA then existing. Any award rendered shall be final and conclusive upon the parties, and a judgment thereon may be entered in any court having jurisdiction over the subject matter of the controversy. The expenses of the arbitration shall be borne equally by the parties to the arbitration, provided that each party shall pay for,and bear the costs of, its own experts, evidence and attorneys' fees, except that the arbitrator may assess such expenses or any part thereof against a specified party as part of the arbitration award. 19. TERMINATION. A. This Agreement may be terminated with or without cause by the CDC. Termination without cause shall be effective only upon 60- day's written notice to the CONTRACTOR. During said 60-day period the CONTRACTOR shall perform all services in accordance with this Agreement. B. This Agreement may also be terminated immediately by the CDC for cause in the event of a material breach of this Agreement, misrepresentation by the CONTRACTOR in connection with the formation of this Agreement, or the performance of services, or the failure to perform services as directed by the CDC. C. Termination with or without cause shall be effected by delivery of written Notice of Termination to the CONTRACTOR as provided for herein. D. In the event of termination, all finished or unfinished memoranda reports, maps, drawings, plans, specifications and other documents prepared by the CONTRACTOR, whether paper or electronic, shall immediately become the property of, and be delivered to, the CDC, and the CONTRACTOR shall be entitled to receive just and equitable compensation for any work satisfactorily completed on such documents and other materials up to the effective date of the Notice of Termination, not to exceed the amounts payable hereunder, and less any damages caused the CDC by the CONTRACTOR's breach, if any. Thereafter, ownership of said written material shall vest in the CDC all rights set forth in Section 6. E. The CDC further reserves the right to immediately terminate this Agreement upon: (1) the filing of a petition in bankruptcy affecting the CONTRACTOR; (2) a reorganization of the CONTRACTOR for the benefit of creditors; or (3) a business reorganization, change in business name or change in business status of the CONTRACTOR. 20. NOTICES. All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered or sent by 7 Revised August 2005 overnight mail (Federal Express or the like); or sent by registered or certified mail, postage prepaid, return receipt requested; or sent by ordinary mail, postage prepaid; or telegraphed or cabled; or delivered or sent by telex, telecopy, facsimile or fax; and shall be deemed received upon the earlier of (i) if personally delivered, the date of delivery to the address of the person to receive such notice, (ii) if sent by overnight mail, the business day following its deposit in such overnight mail facility, (iii) if mailed by registered, certified or ordinary mail, five (5) days (ten (10) days if the address is outside the State of California) after the date of deposit in a post office, mailbox, mail chute, or other like facility regularly maintained by the United States Postal Service, (iv) if given by telegraph or cable, when delivered to the telegraph company with charges prepaid, or (v) if given by telex, telecopy, facsimile or fax, when sent. Any notice, request, demand, direction or other communication delivered or sent as specified above shall be directed to the following persons: To the CDC: Benjamin Martinez Executive Director Community Development Commission of the City of National City 140 East 12th Street, Suite B National City, CA 91950 To the CONTRACTOR: Michael Najera Cornerstone Building Group President 3590 Kettner Boulevard San Diego, CA 92101 Notice of change of address shall be given by written notice in the manner specified in this Section. Rejection or other refusal to accept, or the inability to deliver because of changed address of which no notice was given, shall be deemed to constitute receipt of the notice, demand, request or communication sent. Any notice, request, demand, direction or other communication sent by cable, telex, telecopy, facsimile or fax must be confirmed within forty-eight (48) hours by letter mailed or delivered as specified in this Section. 21. CONFLICT OF INTEREST AND POLITICAL REFORM ACT OBLIGATIONS. During the term of this Agreement, the CONTRACTOR shall not perform services of any kind for any person or entity whose interests conflict in any way with those of the Community Development Commission of the City of National City. The CONTRACTOR also agrees not to specify any product, treatment, process or material for the project in which the CONTRACTOR has a material financial interest, either direct or indirect, without first notifying the CDC of that fact. The CONTRACTOR shall at all times comply with the terms of the Political Reform Act and the National City Conflict of Interest Code. The CONTRACTOR shall immediately disqualify itself and shall not use its official position to influence in any way any matter coming before the CDC in which the CONTRACTOR has a financial interest as defined in Government Code Section 87103. The CONTRACTOR represents that it has no knowledge of any 8 Revised August 2005 financial interests that would require it to disqualify itself from any matter on which it might perform services for the CDC. 0 If checked, the CONTRACTOR shall comply with all of the reporting requirements of the Political Reform Act and the National City Conflict of Interest Code. Specifically, the CONTRACTOR shall file a Statement of Economic Interests with the City Clerk of the City of National City in a timely manner on forms which the CONTRACTOR shall obtain from the City Clerk. The CONTRACTOR shall be strictly liable to the CDC for all damages, costs or expenses the CDC may suffer by virtue of any violation of this Paragraph 21 by the CONTRACTOR. 22. MISCELLANEOUS PROVISIONS. A. Computation of Time Periods. If any date or time period provided for in this Agreement is or ends on a Saturday, Sunday or Federal, state or legal holiday, then such date shall automatically be extended until 5:00 p.m. Pacific Time of the next day which is not a Saturday, Sunday or Federal, state or legal holiday. B. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute but one and the same instrument. C. Captions. Any captions to, or headings of, the sections or subsections of this Agreement are solely for the convenience of the parties hereto, are not a part of this Agreement, and shall not be used for the interpretation or determination of the validity of this Agreement or any provision hereof. D. No Obligations to Third Parties. Except as otherwise expressly provided herein, the execution and delivery of this Agreement shall not be deemed to confer any rights upon, or obligate any of the parties hereto, to any person or entity other than the parties hereto. E. Exhibits and Schedules. The Exhibits and Schedules attached hereto are hereby incorporated herein by this reference for all purposes. F. Amendment to this Agreement. The terms of this Agreement may not be modified or amended except by an instrument in writing executed by each of the parties hereto. G. Waiver. The waiver or failure to enforce any provision of this Agreement shall not operate as a waiver of any future breach of any such provision or any other provision hereof. H. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. I. Entire Agreement. This Agreement supersedes any prior agree- ments, negotiations and communications, oral or written, and contains the entire agreement between the parties as to the subject matter hereof. No subsequent agreement, representation or promise made by either party hereto, or by or to an employee, officer, agent or representative of any party hereto, shall be of any effect unless it is in writing and executed by the party to be bound thereby. J. Successors and Assigns. This Agreement shall be binding upon, and shall inure to the benefit of the successors and assigns of the parties hereto. 9 Revised August 2005 K. Construction. The parties acknowledge and agree that (i) each party is of equal bargaining strength, (ii) each party has actively participated in the drafting, preparation and negotiation of this Agreement, (iii) each such party has consulted with, or has had the opportunity to consult with its own, independent counsel and such other professional advisors as such party has deemed appropriate, relative to any and all matters contemplated under this Agreement, (iv) each party and such parry's counsel and advisors have reviewed this Agreement, (v) each party has agreed to enter into this Agreement following such review and the rendering of such advice, and (vi) any rule or construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement, or any portions hereof, or any amendments hereto. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first above written. COMMUNITY DEVELOPMENT OF THE CITY OF NATIONAL CITY CORNERSTONE BUILDING GROUP (Corporation - signatures of two corporate officers) (Partnership - one signature) (Sole proprietorship - one signature) By: By: Nick Inzunza, Chairman Michael Najera President APPROVED AS TO FORM: By: George H. Eiser, III Rick Osgood CDC Legal Counsel CEO 10 Revised August 2005 Type of Services Cornerstone Building Group believes that the successful completion of a project rests on a strong foundation of accurate planning; combined with a teamwork mentality. In our experience the professionals involved in the building process can have somewhat differing goals and concerns. It is critical to coordinate between the architects vision, the owners unique project goals and project needs according to the builder; from the inception of a project. -(,-) TRUC t t`.-'!'-i iiA ,iva,GEMEN AGENCY Pre -Construction Services for National City Scheduling Cost Control Cost Estimating Budgeting Minimizing of Change Orders Constructability Reviews Managing and Coordination of Bidding Process Value Engineering Construction Phase Services for National City Full Supervision and Coordination of Contractors Conduct Weekly Progress and Owners Meetings, as well as distribute Meeting Minutes Update and Re -Issue the Master Project Schedule Maintain a Cost Control System and Report Format Maintain All Cost Accounting Records Obtain Progress Photographs Review and Reconcile Contractors Schedule of Values Develop Cash Flow Reports and Forecasts Maintain and Monitor copies of all Plans, Shop Drawings, Submittals, as well as Operations and Maintenance Manuals Prepare and Distribute Project Status Reports Provide Quality Assurance CORNERSTONE Building Group EXHIBIT 1 7 Type of Services Post -Construction Services for National City Work Directly With Client to Coordinate the Arrival and Installation of Owner Furnished Materials into the Master Project Schedule Coordinate With Subcontractors and Manufacturers in Order to Schedule Necessary Training for End Users, Maintenance and Operations Staff Conduct 10-month Warranty Inspection Assist In Warranty Problem Resolution If Applicable Compile all Contractor Turn -Over Items Review Operating Instructions and Maintenance Manuals for Mechanical and Electrical Equipment Ensure that Contractors Sign Final Lien Releases and Conform to all Closeout Requirements O'ONS 1 R j T iON N'}ANAGEiM EN MULT i' LE Pulls. Pre -Construction Services for National City Project Master Schedule Cornerstone will prepare and provide a Master Project Schedule using the Critical Path Method (CPM) that will coordinate and integrate the Contractor's services, the Architect's services, the services of other pre -bid consultants, and the Client's responsibilities with anticipated construction schedules. Site Evaluation, Plan Review, Preliminary and Detailed Estimates, Budget -Schematic Design Development Cornerstone Building Group will provide an initial assessment of the Project and Project Budget requirements and with the Client's assistance, prepare preliminary estimates of construction. Cornerstone Building Group shall prepare an updated and more detailed project budget of the project construction cost as the Trade Contractor bids come in and are analyzed. This budget shall serve to define the amount of contingency in the project while at the same time keeping within the Guaranteed Maximum Price of the Project. Value Engineering, Construction Material Evaluation, Construction Methods Analysis Cornerstone Building Group will analyze the budget and note any potential budget shortfalls or surpluses and recommend cost reductions and/or value engineering as well as furnish the Client with cost evaluations of alternative materials and systems. Bidding Strategies, General Conditions, Project Scoping Cornerstone Building Group will notify the Client on the most effective and resourceful separation of the project into subcontracts for various categories of work, and convey Cornerstone Building Group's optimal method for selecting trade contractors. CORNERSTONE Building Group 8 Type of Services Project Accounting and Management Systems Cornerstone Building Group shall develop the project accounting and budget management systems to track costs. BID AND AWARD SERVICES Bidder Interest, Advertisements, Pre -Bid Conferences In an effort to keep the cost of the project low and maximize the contingency conversion to savings at the end of the project, Cornerstone Building Group will capitalize upon our team members' strong local ties in the county to establish and maintain contact with potential bidders on a continual basis throughout the bid period. Our team will: (1) conduct a telephone campaign to stimulate and maintain interest in bidding on the Project; (2) check the references and experience of the bidders; (3) pre -qualification of trades as necessary and as requested; (4) prepare and place notices and advertisements to solicit bids as required; (5) issue bid documents to bidders; (6) establish bid schedules; (7) conduct pre -bid conferences to familiarize bidders with the bid documents, management techniques and any special systems, materials or methods; and (8) receive questions from bidders and with the issuance of addenda. (9) Prepare bid matrixes within each trade to determine best Trade Contractor value (10) Issue Letters of Intent (if required) and AGC Long Form Subcontracts to successful bidders. Construction Services for National City On Site Services Cornerstone Building Group will provide all necessary jobsite professionals to successfully manage and oversee the construction of the project. These professionals include, but are not necessarily limited to, Project Management, Supervision, Safety, Administration, Quality, QA, QC, and Engineering. These onsite professionals will be billed using the rates as denoted in the Cost Summary. These rates shall include all direct costs of those professionals such as payroll taxes, health insurance, vacation and sick pay, vehicle costs, personal computer and phone costs, etc. However, indirect costs such as project bonus costs if so required shall be subject to negotiation and final agreement by both parties. Other general requirements such as temporary facilities, office supplies, blueprinting, etc. will be billed out at direct cost with invoice backup. Trade Contractor costs will also be billed out at direct cost with invoice backup. It is not anticipated that the Contractor will provide self performed trade work; however, if this does become necessary, costs will be billed out at time and material direct costs with an invoice and payroll backup. CPM Project Scheduling Cornerstone Building Group will update the Master Project Schedule incorporating the ac- tivities of the Trade Contractors on the project including; activity sequence and duration, al- location of labor and materials, processing of shop drawings, product data and samples, and delivery of products requiring long lead time procurement. We will remain consistent with the Master Project Schedule distributed to the Trade Contractors and utilize construc- tion schedules provided by each of the separate trade contractors. This update will include the Client occupancy requirements, showing and scheduling portions of the project having CORNERSTONE 8 UlClrg Oroup 9 Type of Servicee- occupancy priority. Our team will also update and reissue the Master Project Schedule as required to show current conditions and revisions required by actual experience. Budget Control Cornerstone Building Group will provide regular monitoring of the approved estimate of Construction Cost, showing actual costs for activities in progress and estimates for uncompleted tasks. Our team will identify variances between actual and budgeted or estimated costs, and will advise the Client whenever project costs exceed budgets or estimates. Cornerstone Building Group will maintain cost accounting records on authorized work performed under unit pricing costs, additional work performed based on actual costs of labor and materials, or other work requiring supplemental accounting records. Schedule of Values, Monthly Billing Procedures The Cornerstone Building Group team shall review and reconcile each Trade Contractor's schedule of values for the purpose of revising and refining the approved estimate of construction cost. Furthermore, our team will incorporate approved changes as they occur, and develop cash flow reports and financial forecasts as needed by the Client. Our team shall develop and implement strict procedures for the review and processing of applications for payment by Trade Contractors for progress and final payments. Preconstruction Conference, Weekly Progress, Pre -Task, New Subcontractor Orientation, Subcontractor Foreman and Appropriate Safety Meetings Cornerstone Building Group shall schedule and conduct pre -construction conferences for the benefit of the subcontractors to orient the subcontractors to the various reporting procedures and site rules prior to commencement of actual construction. The Cornerstone Team shall conduct weekly construction and progress meetings to discuss such matters as procedures, progress problems, and scheduling. Cornerstone Building Group will prepare and promptly distribute minutes of meetings. Project Record Documents Cornerstone Building Group shall maintain a current updated record copy of all plans, drawings, specifications, permits and other Contract Documents for the Project, including addenda and change orders. In addition a copy of Title 24 of the California Code of Regulations, the most recent edition of the California Building Code, OSHA Regulations, Subcontractor Safety Plans, Contractor Safety Plans, MSDS information, other pertinent regulatory information and prevailing wage rate tables (if applicable) on the project site at all times during the progress of the Project. Document Control, Change Order Review Cornerstone Building Group will maintain at the project site, on a current basis, a copy of all Contract Documents and other subcontracts relating to the project including but not limited to the following: plans, drawings, specifications, addenda, change orders, shop drawings, product data, submittals, samples, Requests for Information, Architect's Supplemental Instructions, Purchase Orders, materiaVequipment applicable handbooks, maintenance & operating manuals and instructions and other modifications, and items marked by the contractor (and regularly checked by the Inspector) to record all changes made during construction. CORNERSTOPIE Buuding Group 10 Type of Services Other related documents and revisions that arise out of the contracts or works including: records in duplicate of the following: (1) principal building layout lines; (2) elevations at the bottoms of footings; and (3) floor levels and key site elevations certified by each contractor's on -site subcontractors or personnel. Insurance Certificates, Permits and Bonds All insurance coverage shall be provided by the Client via the Owner Supplied Insurance Program (OSIP). Cornerstone Building Group shall provide no insurance coverage for this project. Cornerstone Building Group shall develop and implement procedures for the ongoing review of required insurance coverage by subcontractors, including the review of additional insured endorsements as required by the OSIP. Cornerstone Building Group shall also verify that all required permits and bonds are obtained from all Subcontractors. Subcontractor Controls Cornerstone Building Group will staff the project(s) accordingly to insure that from all perspectives the subcontractors will be supervised and managed to insure a safe and productive jobsite that will support an on time and on budget completion. This shall include but not be limited to strict subcontractor payment control based on subcontractor performance and subcontractor fiscal responsibility. This is of course assuming prompt payment by Client to Contractor. Post -Construction and Project Close -Out Services for National City Relocation and Move In Cornerstone Building Group shall work directly with the Client to coordinate and build into the Master Project Schedule the arrival an installation of owner furnished materials and F&E. Cornerstone Building Group will insure that construction decisions are made that do not adversely affect the move in process. User Training The Cornerstone Building Group team will coordinate and schedule with subcontractors and manufacturers training for the end users if so required. Pre -Punch List and Punch List Within adequate time to make corrections, Cornerstone Building Group will prepare a "Pre - Punch List" list of subcontractor's defective and incomplete work and implement a program to correct said work prior to Client and Architect "Punch List" Inspection. Cornerstone Build- ing Group will notify the architect and the Client in determining when the project is substan- tially complete. Cornerstone Building Group shall prepare for the Architect and Client a Punch List of the remaining defective and uncompleted work with a recommendation of the times within which the Trade Contractors shall complete uncompleted items and monitor its timely completion. riljr)ILI CORMERSTOPiE BWlolog Droop 11 Type of Services As -Built Documents Cornerstone Building Group will create procedures for record drawings for the project. The record drawings shall include the following: deviations from the original plans and drawings for the project made during construction, details in the construction not previously shown on such plans or drawings, changes to existing conditions or existing conditions found to differ from those shown on the original plans and drawings, the actual installed position of equipment, piping, conduits, light switches, electric fixtures, circuiting, ducts, dampers, access panels, control valves, drains, openings and stub outs, and such other information as he Client, architect or inspector may reasonably request from time to time. Project Closeout and Warranties It is understood and agreed that the Client shall provide the complete insurance coverage for this project via the OSIP, thereby carrying the complete liability for future claims against the project. However, Cornerstone Building Group will conduct a 10-month Warranty In- spection and assist the Client with warranty problem resolution and other claims against the Client for defective work or performance after completion of the construction. Cornerstone Building Group will compile all Trade Contractor turn -over items, obtain and review Operat- ing Instructions and Maintenance Manuals on Mechanical and Electrical Equipment. Final Lien Releases Cornerstone Building Group will ensure that subcontractors sign Final Lien Releases and conform to all other closeout requirements in the construction documents. Over the years we have found that there are no magic solutions to construct a building. What it takes to complete construction projects in a successful manner is daily personal commitment to planning, organizing and follow up and this is exactly what you will receive from the Cornerstone Building Group Team. CORNERSTONE Bullding Group 12 Cost Summary A recent report by the Construction Industry Institute (CII) revealed that cooperative relationships and mutual trust among parties involved in Construction Projects is directly related to lower project costs and timely completion. Unfortunately, although some construction companies may seem to be a better bargain based on fees alone, they will attempt to make up for what they see as a lost profit margin through future change orders. Because Cornerstone Building Group truly believes in establishing a long lasting working relationship with the City of National City, we are committed to being honest and upfront during all phases of the construction process; starting with our hourly rates. Within these fees lies the expertise and ability to prevent unexpected and oftentimes costly problems throughout the Construction process. Construction Management Services Team Member Principal Project Executive Senior Project Manager Project Manager Senior Construction Manager Construction Manager Scheduler Estimator Superintendent Project Engineer Project Administrator Hourly Rates ($) 190 150 125 110 125 110 110 110 110 80 60 rifigiral CORNERSTOPIE [Su1lAing Droop 13 COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY December 13, 2005 AGENDA ITEM NO. 15 TO: CHAIRMAN AND BOARD MEMBERS FROM: BENJAMIN MARTINEZ, EXECUTIVE DIRECTOR SUBJECT: REPORT: PROPOSED 2005 AMENDMENT TO THE NATIONAL CITY REDEVELOPMENT PLAN Recommendation: Community Development Commission staff requests direction from the Community Development Commission Board as to if, and if so to what extent, the Board desires to initiate an amendment to the Redevelopment Plan. Abstention of Members of the City Council and the Community Development Commission Board; Legally -Required Participation: The Political Reform Act of the State of California prohibits a public official from participating in a governmental decision in which the official has a disqualifying conflict of interest. Generally, a public official has a conflict of interest if the decision will have a reasonably foreseeable material financial effect on one or more of the official's economic interests. As such, the City Attorney has prepared a memorandum, dated February 22, 2005 (attached as Exhibit 3), which addresses this matter. Fiscal Impact: Not applicable. Environmental Impact: None with this Action. Background: On September 21, 2004, during a Joint Public Hearing of the City Council and Community Development Commission Board, the proposed Amendment to the National City Redevelopment Plan was first introduced. At that time, the proposal was to extend eminent domain authority over all commercial and industrial zoned properties in the Redevelopment Project Area for 12 years. A series of additional joint public hearings, Community Development Commission Agenda Item No. 15 December 13, 2005 Page 1 of 2 meetings and workshops were conducted in order to provide an opportunity for Community Development Commission staff presentations and public testimony. Based upon community input and direction from the City CounciVCommunity Development Commission Board, the proposed eminent domain boundaries were adjusted to follow existing commercial and industrial corridors. In addition, the number of years for eminent domain authority was reduced to 10 years. On July 26, 2005, the City Council and Community Development Commission Board conducted a Joint Public Meeting to consider the proposed 2005 Amendment. Upon the conclusion of the public testimony and discussion, the City CounciVCommunity Development Commission Board identified several revisions to the proposed 2005 Amendment. To allow CDC staff and the redevelopment consultant an opportunity to review the revisions, the matter was continued. On August 9, 2005, Community Development Commission staff provided the City CounciVCommunity Development Commission Board with a status report as to the revisions discussed at the July 26, 2005, Joint Public Meeting. Also, Community Development Commission staff advised on August 9, 2005, that if the 2005 Amendment to expand eminent domain area was pursued, a video of blight should be produced as additional documentation. However, due to the cost of producing such a video, Community Development Commission staff would like to engage the City Council and Community Development Commission Board in a discussion to determine if, and if so to what extent, the board desires to initiate an amendment to the Redevelopment Plan. ATTACHMENT: Exhibit 1 — Memorandum dated February 22, 2005 from City Attorney Agenda Item No. 15 Community Development Commission December 13, 2005 Page 2 of 2 TO: Mayor and City Council DATE: February 22, 2005 FROM: City Attorney SUBJECT: Amendment of Redevelopment Plan: Abstention of Members of the City Council and the CDC Board; Legally -Required Participation I request that the following statement be made part of the record pertaining to the proposed Amendment of the Redevelopment Plan: The legislative body of the City of National City is the City Council. As authorized by the Community Redevelopment Law of the State of California, the City Council is also the governing board of the Community Development Commission (the CDC). The Community Redevelopment Law provides that a redevelopment plan may be amended by the adoption of an ordinance by the. City Council after a joint public hearing of the City Council and the members of the board of the CDC. In National City, no other body is available to hold a hearing or to adopt an ordinance amending the redevelopment plan. The Political Reform Act of the State of California prohibits a public official from participating in a governmental decision in which the official has a disqualifying conflict of interest. Generally, a public official has a conflict of Interest if the decision will have a reasonably foreseeable material financial effect on one or more of the official's economic interests. Pursuant to Section 18704.2 of Title 2, Division 6 of the California Code of Regulations, real property in which a public official has an economic interest is directly involved in a governmental decision if the decision is to adopt or amend a redevelopment plan, and the real property in which the official has an interest Is located in the boundaries of the redevelopment area. Pursuant to Section 18705.2 of Title 2, Division 6 of the California Code of Regulations, where a public official has an interest in real property which is directly involved in a governmental decision, the financial affect of that on the real property is presumed to be material, unless the presumption is rebutted. The residences of Mayor lnzunza, Councilman Parra and Councilwoman Zarate are located in the redevelopment project area. Additionally, Mayor Inzunza has an ownership interest in a duplex residence located at 1416 East 16th Street, also within the project area. A decision to amend the redevelopment plan is being considered by the Amendment of Redevelopment Plan February 22, 2005 Page 2 City Council. Pursuant to the provisions of the Political Reform Act and of. Title 2, Division 6 of the California Code of Regulations, Mayor lnzunza, Councilman Parra and Councilwoman Zarate have determined to abstain from participating in the decision to amend the redevelopment plan, because that decision may have a material financial effect on their real property interests located in the project area. Because the abstentions of Mayor lnzunza, Councilman Parra and Councilwoman Zarate result in less than a quorum being available to consider adoption of the ordinance amending the redevelopment plan, the concept of legally required participation" must be invoked. This concept allows a disqualified official to be re - qualified by a random selection process,and allows a quorum to be present and for the re -qualified official to participate in the decision -making process until it is completed. This process was followed when the proposed Amendment to the Redevelopment Plan was considered at the January 4, 2005 meetings of the City Council and the CDC Board. The process resulted in Councilwoman and Board Member Zarate being requalified to participate. 7)g004. GEORGE EISER, Ill City Attorney GHE/gmo cc: City Manager Executive Director, CDC City Clerk