Loading...
HomeMy WebLinkAbout2007 CON CDC Marina Gateway / Sycuan - 6th Amendment DDAFinal draft dated 6-28-07 SIXTH AMENDMENT TO DISPOSITION AND DEVELOPMENT AGREEMENT THIS SIXTII AMENDMENT TO DISPOSITION AND DEVELOPMENT AGREEMENT (this "Amendment") is entered into as of June 19, 2007, by and between the COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY, a public body, corporate and politic (the "CDC"), on the one hand, and MARINA GATEWAY DEVELOPMENT COMPANY, LLC, a California limited liability company (the "Developer") and SYCUAN TRIBAL DEVELOPMENT CORPORATION, a Tribally chartered corporation ("STDC") on the other (CDC, Developer and STDC are sometime referred to herein as the "Parties") and amends that certain Disposition and Development Agreement dated May 18, 2004 previously entered into by the Parties (the "Original DDA") as previously amended by that certain First Amendment to Disposition and Development Agreement dated February, 2005 (the "First Amendment"), that certain Second Amendment to Disposition and Development Agreement dated February 200E (the "Second Amendment"), that certain Third Amendment to Disposition and Development Agreement dated June 29, 2006, (the "Third Amendment") that certain Fourth Amendment to Disposition and Development dated (erroneously) March 31, 2007, (the "Fourth Amendment") and that certain Fifth Amendment to Disposition and Development dated March 31, 2007, (the "Fifth Amendment") (collectively, the Original DDA, First Amendment, Second Amendment, Third Amendment, Fourth Amendment and Fifth Amendment are referred to herein as the "DDA"), with reference to the following: RECITALS A. The Developer and STDC have agreed that STDC shall no longer take direct title to any portion of the Site at the Closing. Therefore, Developer shall be the only party to this Agreement with the CDC. B. The PMP is largely completed, a post closure monitoring and maintenance plan (the "PCMMP") has been prepared in draft form, a draft Covenant to Restrict Use of Property (the "Restrictive Covenant") has been prepared and no Additional Remedial Work is currently anticipated for the Site. C. The CDC and Developer desire to formalize the Developer's financial responsibility for certain Site improvements made by the California Integrated Waste Management Board (CIWMB) while the CIWMB was performing certain environmental rcmediation activities on a portion of the Site. D. The Parties desire to amend the DDA to reflect the above facts and to make certain other changes to the DDA all as set forth below. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree to amend the DDA as follows: SDCA_299040.2 Final draft dated 6-28-07 1. Section 2 of the Recitals on page 1 of the DDA is deleted and replaced in its entirety with the following: The CDC and Developer desire by this Agreement for the Developer to purchase the Site from the CDC, and for the Developer to cause to construct on the Site an approximate 173 room three star hotel with a restaurant; an approximate 4000 square foot restaurant; an approximate 16,000 square foot office/commercial/tourist space; a 1000 square foot public vista point; all with associated parking and on -site improvements (the "Improvements"). 2. The following new definition is added to Section 100 as follows: "Three star hotel" means a hotel meeting the quality and amenity requirements sufficient to achieve an American Automobile Association 3 Diamond rating (AAA 3 Diamond rating). 3. Section 201.2 is deleted and replaced in its entirety with the following: 201.2 Title to the Site shall he deeded to Developer. Developer may create a new tentative map for the Site, by lot line adjustments, to delineate "pads" for the hotel, restaurant and commercial building (the "Parcelization"). CDC shall reasonably cooperate with and assist the Developer to accomplish the Parcelization within 9 months of the Closing Date. 4. The first sentence of Section 202.4 is deleted and replaced with the following: This transaction shall close ("Closing") on or before July 31, 2007 (the "Outside Date"). 5. Section 205.1(a) is deleted. 6. Section 205.1(e) is deleted and replaced in its entirety with the following: (e) Design Approvals. Except for the approximate 4000 square foot restaurant, the Developer has obtained approval by the City of the Site Plan Drawings and Site Plan application as set forth in Section 302 hereof. With respect to the approximate 4000 square foot restaurant, the Developer shall have obtained (i) approval by the CDC of any revisions to the approved Concept Plans as set forth in Section 302 hereof, and (ii) approval by the Executive Director of the CDC, which approval shall not be unreasonably withheld, of the quality level of the restaurant. 7. Section 205.1(j) is amended to read: SDCA 299040.2 Final draft dated 6-28-07 (j) General Contractor Contract: Developer shall have provided to CDC a copy of a valid and binding contract with a duly licensed general contractor reasonably acceptable to thc Executive Director for the construction of Improvements, certified by the Developer to be a true and correct copy thereof. 8. Section 205.1(k) is deleted and replaced in its entirety with the following: (k) Ilotel Developer/Operator. CDC has approved STDC and the Pacifica Hotel Group as the operator of the hotel. Developer shall have provided to CDC a copy of a valid and binding contract between Developer and the Pacifica Hotel Group, or one of its affiliates, reasonably acceptable to the Executive Director for the development/operation of the hotel portion of the Improvements as a three star hotel certified by the Developer to be a true and correct copy thereof. The hotel shall achieve and maintain a three star hotel rating. 9. Section 205.2(f) is deleted. Section 205.2(j) is deleted and replaced in its entirety with the following: 10. Section 205.2(j) is deleted and replaced in its entirety with thc following: (i) Demolition of the Existing Improvements. All existing improvements shall have been demolished and all existing debris cleared from the Site prior to transfer to the Developer. However, prior to the Closing, Developer may remove the concrete slab which exists under several inches of soil where the southern to middle portions of the hotel are to be built. The Developer is prohibited from any off -site movement/disposal of soil and shall handle the soil in accordance with regulatory requirements, if applicable, and at CDC's on -site consultant's direction. CDC shall credit Developer, against the Purchase Price, for the cost of the slab removal. CDC will provide on site environmental monitoring during the slab removal and take any necessary steps to obtain the No Further Action Letter.. Should Developer not acquire the Site, the CDC shall promptly reimburse the Developer for the cost of the slab removal and all associated excavation work. During excavation, Developer shall comply with all local, state and federal regulations including but not limited to permits, the control of dust emissions, erosion, and storm water management. Developer shall also provide insurance certificates and/or bonds to the satisfaction of the CDC Risk Manager and/or City Engineer prior to conducting any on site work. Following excavation of the slab, CI)C 3 SDCA_299040.2 Final draft dated 6-28-07 shall prepare a Post Closure Addendum Report and submit it to the San Diego County Department of Environmental Health. (k) Further, prior to Closing, if CDC acquires title to the property for the right of way to the east of Railcar Plaza, and which runs South from Bay Marina Drive to the railroad track switch that would exist behind the proposed hotel, Developer may remove the Railroad tracks in that right of way. CDC shall credit Developer, against the Purchase Price, for the cost of this track removal. If Developer removes the track after the Closing, CDC shall promptly reimburse the Developer for its costs incurred in removing the track. Should Developer not acquire the Site, the CDC shall promptly reimburse the Developer for the cost of the track removal. 11. (Section 208.3 is deleted and replaced in its entirety with the following: 208.3 CDC's Performance of Remedial Work. The Developer shall be at no cost or expense in completing the Remedial Work in compliance with the PMP. To date, CDC has borne the costs of completing the work as identified in the PMP, and has proposed that the regulatory agency approve closing the Site and issue a No Further Action letter that will confirm the inception of Polanco Act immunities for the work which has been completed. The CDC shall have continuing obligations to take any actions necessary to obtain the No Further Action letter. To the extent that continuing monitoring of groundwater is required prior to the issuance of a "No Further Action" letter encompassing the groundwater and providing for the appropriate abandonment of on -site wells, the CDC shall hold the Developer, and their successors, hannless from all costs related thereto. CDC's continuing obligations shall end with the issuance of a final No Further Action letter, or Certificate of Completion, or other document that addresses all issues but for those continuing maintenance and monitoring obligations in the PCMMP. The Developer shall succeed to CDC's obligations for all the activities noted in the PCMMP, and shall faithfully follow all Site restrictive covenants that may be included in the Restrictive Covenant that will be recorded pursuant 10 California Civil Code section 1471. 12. The first sentence of Section 402 of the DDA is deleted and replaced in its entirety with the following: 4 SUCA. 299040.2 Final draft dated 6-28-07 Unless Developer obtains approval from the applicable government authorities, for a term commencing upon the Conveyance and ending upon July 18, 2040, the Developer hereby covenants and agrees for itself, its successors, its assigns and all voluntary and involuntary successors in interest to the Site, or any part thereof, that the Site will only be used for an approximate 173 room three star hotel with food and beverage service; an approximate 4000 square foot restaurant; an approximate 16,000 square foot office/commercial/tourist space; a 1000 square foot public vista point; all with associated parking and on -site improvements. 13. The reference in the second sentence of Section 2 of Attachment No. 3 (Grant Deed) to "an approximately 150 room 3 star hotel" is deleted and replaced with the following: "an approximately 173 room three star hotel". 14. The first sentence of Attachment No. 5 (Scope of Development) is deleted and replaced in its entirety with the following: Developer will develop the Site with an approximate 173 room three star hotel with food and beverage service; an approximate 4000 square foot restaurant; an approximate 16,000 square foot office/commercial/tourist space; a 1000 square foot public vista point; all with associated parking and on -site improvements. 15. Recital B on page 2 of Attachment No. 8 is deleted and replaced in its entirety with the following: B. The CDC and Developer have previously entered into that certain Disposition and Development Agreement dated May 18, 2004 ("DDA") the provisions of which are incorporated herein by reference and pursuant to which the Owner has purchased the Site from the CDC for the purpose of constructing an approximate 173 room three star hotel with food and beverage service; an approximate 4000 square foot restaurant; an approximate 16,000 square foot office/commercial/tourist space; a 1000 square foot public vista point; all with associated parking and on -site improvements (the "Improvements"). 16. The first sentence of Section 1.1.A on page 3 of Attachment No. 8 is deleted and replaced in its entirety with the following: For a term commencing upon the date of the recording of this Agreement and ending upon July 18, 2040 (the "Termination Date") the Owner hereby covenants and agrees for itself, its successors, its assigns and all voluntary and involuntary successors in interest to the Site, or any part thereof, that the Site shall only be 5 SDCA_299040.2 Final draft dated 6-28-07 used for an approximate 173 room three star hotel with food and beverage service; an approximate 4000 square foot restaurant; an approximate 16,000 square foot office/conunercial/tourist space; a 1000 square foot public vista point; all with associated parking and on -site improvements. All the remaining terms of this section in the original DDA shall remain in full force and effect. As necessary, the remainder of the terms of Attachment No. 8 will be made to be consistent with the DDA. 17. At the request of the Parties, the C1WIVIB, while performing the Remedial Work and grading plan for the environmental remediation and capping project on the "North Fill Bank", installed certain improvements specific to the planned development of the Site by the Developer and that would not have been necessary for the CIWMB to complete its work. Developer shall pay $382,998.08 for those improvements, as itemized on Attachment No. 9 to this Amendment. Developer shall deposit $382,998.08 into escrow, with appropriate instructions, executed by the parties, that the money shall he released to the CWIMB or CDC, upon (i) CWIMB and CDC, each, directing Escrow, in writing, to pay either agency S382,998.08; and (ii) CWLMB and CDC, each, acknowledging Developer's payment in full and releasing Developer from all obligations in connection with that payment. 18. The approved PCMMP for the Site and draft Restrictive Covenant are attached hereto as Attachment No. 11. Pursuant to Section 205.2(e) of the DDA, Developer hereby approves the PCMMP and Restrictive Covenant. Pursuant to Section 3.03 of the Restrictive Covenant, the CDC hereby provides written disclosure to the Developer that there is a closed disposal site on a portion of the Site and that the Developer as the new property owner will be responsible for certain post maintenance and regulatory compliance. In the event the Site is conveyed to the Developer after the recording of the Restrictive Covenant, the CDC and Developer agree that the Grant Deed shall contain substantially the following notice as required by Section 3.04 of the Restrictive Covenant: NOTICE: THE INTEREST CONVEYED HEREBY IS SUBJECT TO AN ENVIRONMENTAL. RESTRICTION AND COVENANT TO RESTRICT USE OF PROPERTY ABOVE TI{E CAPPED AREA, RECORDE D IN TIIE OFFICIAL RECORDS OF THE SAN DIEGO COUNTY RECORDER'S OFFICE. ON , AS DOCUMENT NO.: IN FAVOR OF AND ENFORCEABLE BY THE DEPARTMENT OF ENVIRONMENTAL HEALTH, COUNTY OF SAN DIEGO. Developer agrees to include the notice set forth above in each and all deeds and leases for any portion of the Site. 6 SDCA_299040.2 Final draft dated 6-28-07 19. All references to "Additional Remedial Work" and to the `New PMP" in the DDA are deleted. 20. An assessment district may he established to pay for the cost of maintenance, repairs and replacements of landscaping improvements planned for the medians and parkways along Bay Marina Drive (a "Landscaping District"). Developer will not object to or otherwise impede the formation of a Landscaping District. Likewise, Developer will not object to or otherwise impede the formation of a Tourism Business Improvement District that includes the Site. 21. Each person executing this Amendment represents and warrants that he or she has the authority to bind the party for which he or she is signing. 22. All capitalized terms in this Amendment shall have the same meaning as set forth in the DDA unless otherwise defined herein. 23. This Amendment may be executed in one or more counterparts. Facsimile copies of this executed Amendment shall he treated the same as "wet ink" originals. Remainder of Page Intentionally Left Blank 7 SDCA 299040.2 Final draft dated 6-28-07 IN WITNESS WIIEREOF, the Parties have executed this Amendment to he effective as of the date first set forth above. CDC: COMMUNITY DEVELOPMENT COMMISSION OF THE OF THE CITY OF NATIONAL CITY, a public body, corporate and politic By: ATTEST: APPROVED AS TO FORM: George H. riser, III Legal Counsel Ron Morrison, Chairman Signature Page to Sixth Amendment to Disposition and Development Agreement 8 SDCA 2990402 Final draft dated 6-28-07 DEVELOPER: MARINA GATEWAY DEVELOPMENT COMPANY, I.J C, a California limited liability company By: MR Man By: Its: STDC: Nevada corporation, r SYCL:AN TRIBAL DEV ,LOPMENT CORPORATION, a T , ally chartered corporation By: Its:AY/tie--1 7 71)c.e.Eee eirW i,Pnt gry 7-.? - .2co7 Signature Page to Sixth Amendment to Disposition and Development Agreement 9 SDCA_299040.2 ATTACHMENT NO. 9 CIWMB SITE IMPROVEMENT COSTS FOR WHICH DEVELOPER TS RESPONSIBLE Tasks Project/ Developer's Cost Finish Grade/Subgrade Preparation $10,498.27 _ $107,282.36 Drainage Inlets and Pipe Curb & Gutter $58,408.35 CI II Aggregate Base $60,132.55 Asphaltic Concrete Paving $65,668.01 Electrical $81,008.54 � '+AA{` }. y j d ..Y P 9 '-�i i �'in ttb:', Attachment No. 9 SDCA 299040.2 ATTACHMENT NO. 11 DRAFT POST -CLOSURE MONITORING AND MAINTENANCE PLAN DRAFT COVENANT TO RESTRICT USE OF PROPERTY RECORDING RF,QUESTED BY: Community Development Commission City of National City 140 E. 12th Avenue National City, California 91950 Attn: Redevelopment Director WHEN RECORDED, MAIL TO: Dept. of Environmental Health County of San Diego 1255 Imperial Ave, 3rd Floor San Diego, California 92101 Attn: Sayareh Amirehrahimi, Chief Southern California Cleanup Operations SPACE ABOVE THIS LINE RESERVED FOR RECORDER'S LSE COVENANT TO RESTRICT USE OF PROPERTY (Health and Safety Code section 25355.5) ENVIRONMENTAL RESTRICTION (Civil Code section 1471) For Property at: 2501 and 2510 Cleveland Ave. National City, California San Diego County Assessor's Parcel Nos.: 559-160-03, -09, -11, and -21 This Covenant and Agreement ("Covenant") is made effective as of , 2006 by and between the Community Development Commission of the City of National City, a body corporate and politic (the "Covenantor"), the current owner of property situated in National City, County of San Diego, State of California, described in Exhibit "A", and depicted in Exhibit "B", NEED TO SEE EXHIBIT B attached hereto and incorporated herein by this reference (the "Property"), and the Department of Environmental IIealth, County of San Diego (the "Department") which has been appointed as the "administering agency" for the mitigation of Attachment No. 11 Page 1 environmental conditions at the Property pursuant to Health and Safety Code sections 25260, et seq. (the "Unified Agency Review of Hazardous Sites Law"). Pursuant to Civil Code section 1471 (c) the Department has determined that this Covenant is reasonably necessary to protect present or future human health or safety or the environment as a result of the presence on the land of hazardous materials as defined in Health and Safety Code ("II&SC") section 25260. The Covenantor and the Department, collectively referred to as the "Parties", hereby agree that pursuant to Civil Code section 1471 and II&SC sections 25355.5 and 25222.1 that the use of the Property he restricted as set forth in this Covenant and that this Covenant shall run with the land. ARTICLE I STATEMENT OF FACTS 1.01 The Property is more particularly described and depicted in Exhibit "A", attached hereto and incorporated herein by this reference. The Property is located in the area now generally hounded by Paradise Marsh to the south, Bay Marina Drive to the north, the I-5 Freeway to the east, and Marina Way to the west, City of National City, County of San Diego, State of California. This property is more specifically described as San Diego County Assessor's Parcel Nos.: 559-160-03, -09, -11, and -21. 1.02 The Property Mitigation Plan (PMP) prepared and approved under the oversight of the Department, provides that a deed restriction he required as a result of the "capping in place" of materials on a portion of the Property which required remediation. The location and extent of the "capped" area of the Property below which hazardous materials are located is indicated in Exhibit "B". The PMP identifies burn ash constituents, including lead, arsenic, chromium, copper, mercury, zinc, polychlorinated biphenyls, and naphthalene, which are hazardous substances as defined in H&SC Section 25316, which are hazardous materials as defined in II&SC Section 25260, and which will remain at elevated levels in the fill materials to depths of approximately 24 to 26 feet below grade of the ground surface (bgs) of portions of the Property below the "cap" and the pavement above it. The Department approved the PMP on April 16, 2003, which requires the recording of this Deed Restriction on the Property with the County of San Diego, as detailed in the Final PMP prepared by Environmental Business Solutions, Inc., a division of SCS Engineers, as approved by the Department. As a result of the assessments and mitigation activities that have been conducted to date, the previously referended hazardous materials and hazardous substances, as defined in H&SC sections 25316, arc found onsite. These hazardous materials/substances are located at the Property as follows: At depths of (1 to 2 feet bgs; Asphaltic pavement and clean imported fill soil. At depths of 02 to 26 feet bgs; Burn ash mixed with soil. These contaminants may pose a threat to human health if the cap is damaged or penetrated. Based on the Final PMP the Department concluded that use of the Property does not present an unacceptable threat to human safety or the environment if the integrity of the cap that has been placed over the hazardous materials is maintained. Attachment No. 11 Page 2 ARTICLE II DEFINITIONS 2.01 Department. "Department" means the Department of Environmental Health for the County of San Diego and includes its successor agencies, if any. 2.02 Owner. "Owner" means the Covenantor, its successors in interest, and their successors in interest, including heirs and assigns, who at any time hold title to all or any portion of the Property. 2.03 Occupant. "Occupant" means Owners and any person or entity entitled by ownership, leasehold, or other legal relationship to the right to occupy any portion of the Property. ARTICLE III GENERAL PROVISIONS 3.01 Restrictions to Run with the Land. This Covenant sets forth protective provisions, covenants, restrictions, and conditions (collectively referred to as "Restrictions"), subject to which the Property and every portion thereof shall be improved, held, used, occupied, leased, sold, hypothecated, encumbered, and/or conveyed. Each and every Restriction: (a) runs with the land pursuant to H&SC Sections 25355.5 and Civil Code Section 1471; (b) inures to the benefit of and passes with each and every portion of the Property; (c) is for the benefit of, and is enforceable by the Department; and (d) is imposed only upon the that portion of the Property depicted in the attached Exhibit "B". 3.02 Binding upon Owners/Occupants. Pursuant to H&SC Section 25355.5(a)(1)(C), this Covenant binds all owners of the Property, their heirs, successors, and assignees, and the agents, employees, and lessees of the owners, heirs, successors, and assignees. Pursuant to Civil Code Section 1471(b), all successive owners of the Property arc expressly bound hereby for the benefit of the Department. 3.03 Written Notice of the Presence of Hazardous Substances. Prior to the sale, lease or sublease of the Property, or any portion thereof, the owner, lessor, or sublessor shall give the buyer, lessee, or sublessee notice that hazardous substances arc located on or beneath the Property, as required by H&SC Section 25359.7. 3.04 incorporation into Deeds, Leases and Subleases. From and alter the date of recordation of this Covenant, the Restrictions set forth herein shall be incorporated by reference in each and all deeds and leases for any portion of the Property. Further, each Owner or Occupant shall include in any instrument conveying any interest in all or any portion of the Property, including but not limited to deeds, leases, and mortgages, a notice which is in substantially the following form: NOTICE: TILE INTEREST CONVEYED HEREBY IS SUBJECT TO AN ENVIRONMENTAL. RESTRICTION AND COVENANT TO RESTRICT USE Attachment No. 11 Page 3 OF PROPERTY ABOVE THE CAPPED AREA, RECORDED IN THE OFFICIAL. RECORDS OF THE OFFICE OF TIIE SAN DIEGO COUNTY RECORDER ON [DATE] , FILE NO. , IN FAVOR OF AND ENFORCEABLE BY THE DEPARTMENT OF ENVIRONMENTAL, HEALTH, COUNTY OF SAN DIEGO. 3.05 Conveyance of Property. The Owner shall provide notice to the Department not later than thirty (30) days after any conveyance of any ownership interest in the Property (excluding mortgages, liens, and other non -possessory encumbrances). The Department shall not, by reason of this Covenant, have authority to approve, disapprove, or otherwise affect proposed conveyance, except as otherwise provided by law, by administrative order, or by a specific provision of this Covenant. ARTICLE IV RESTRICTIONS 4.01 Prohibited Uses. The portions of the Property described in Exhibit B overlying the capped materials shall not be used for any of the following purposes: (a) A residence, including any mobile home or factory built housing, constructed or installed for use as residential human habitation. (b) A hospital for humans. (c) A public or private school for persons under 21 years of age. (d) A day care center for children. 4.02 Soil Management. (a) No activities that will disturb the soil (e.g., excavation, grading, removal, trenching, filling, earth movement or mining) shall be allowed on that portion of the Property above the capped area indicated in Exhibit `B" without an appropriate Soil Management Plan and a Health and Safety Plan approved by the Department. (b) Any contaminated soils brought to the surface by grading, excavation, trenching or backfilling shall be managed in accordance with all applicable provisions of state and federal law. (c) The Owner shall provide the Department written notice at least fourteen (14) days prior to any building, filling, grading, mining or excavating in the Property soils. 4.03 Access for Department. The Department and its designees, upon reasonable notice to Owner and Owner's tenants, shall have reasonable right of entry and access to the Property for inspection, monitoring, and other activities consistent with the purposes of this Covenant as deemed reasonably necessary by the Department in order to protect the public Attachment No. 11 Page 4 health or safety, or the environment. The Department shall indemnify Owner and its tenants and hold Owner and its tenants harmless from all liability and damages arising from such inspection, monitoring, and other activities. ARTICLE V ENFORCEMENT 5.01 Enforcement. Failure of the Covenantor, Owner or Occupant to comply with any of the Restrictions specifically applicable to it shall be grounds for the Department to require that the Covenantor or Owner, as applicable, modify or remove any improvements ("Improvements" herein shall mean all buildings or other improvements placed thereon) constructed or placed upon any portion of the Property in violation of the Restrictions. Violation of this Covenant shall be grounds for the Department to file civil or criminal actions as provided by law. ARTICLE VI VARIANCE, TERMINATION, AND TERM 6.01 Variance. Covenantor, or any other aggrieved person, may apply to the Department for a written variance from the provisions of this Covenant. Such application shall be made in accordance with II&SC Section 25233 as implemented by the Department pursuant to H&SC Section 25264. 6.02 Termination. Covenantor, or any other aggrieved person, may apply to the Department for a termination of the Restrictions or other terms of this Covenant as they apply to all or any portion of the Property. Such application shall be made in accordance with H&SC Section 25234, as implemented by the Department pursuant to H&SC Section 25264. 6.03 Term. Unless ended in accordance with the Termination paragraph above, by law, or by the Department in the exercise of its discretion, this Covenant shall continue in effect in perpetuity. ARTICLE VII MISCELLANEOUS 7.01 No Dedication Intended. Nothing set forth in this Covenant shall be construed to he a gilt or dedication, or offer of a gift or dedication, of the Property, or any portion thereof to the general public or anyone else for any purpose whatsoever. Further, nothing set forth in this Covenant shall be construed to effect a taking under federal or state law. 7.02 Department References. All references to the Department include successor agencies/departments or other successor entity. 7.03 Recordation. The Covenantor shall record this Covenant, with all referenced Exhibits, with the County Recorder's Office for the County of San Diego within ten (10) days of the Covenantor's receipt of a fully executed original. Attachment No. 11 Page 5 7.04 Notices. Whenever any person gives or serves any Notice ("Notice" as used herein includes any demand or other communication with respect to this Covenant), each such Notice shall he in writing and shall he deemed effective: (1) when delivered, if personally delivered to the person being served or to an officer of a corporate party being served, or (2) three (3) business days after deposit in the mail, if mailed by United States mail, postage paid, certified, return receipt requested: To Owner: To Department: Community Development Commission of National City 1243 National City Blvd. National City, CA 91950-3312 Attn: Redevelopment Director Department of Environmental Health County of San Diego 1255 Imperial Avenue San Diego, CA 92101 Attn: Site Assessment and Mitigation Division Any party may change its address or the individual to whose attention a Notice is to be sent by giving written Notice in compliance with this paragraph. After conveyance of this Property by the Covenantor future Notices shall be the responsibility of the owner of record as identified in the County Recorder's official books. 7.05 Partial Invalidity. If any portion of the Restrictions or other term set forth herein is determined by a court of competent jurisdiction to be invalid for any reason, the surviving portions of this Covenant shall remain in full force and effect as if such portion found invalid had not been included herein. 7.06 Statutory References. All statutory references include successor provisions. IN WITNESS WHEREOF, the Parties have executed this Covenant to be effective as of the date first written above. Attachment No. 11 Page 6 ATTEST: , CDC Secretary APPROVED AS TO FORM: CDC Counsel CDC: COMMUNITY DEVELOPMENT COMMISSION OF THE OF THF. CITY OF NATIONAL CITY, a public body, corporate and politic By: Ron Morrison, Chairman COUNTY OF SAN DIEGO, DEPARTMENT OF ENVIRONMENTAL IIEALTH By: Name: Title: Attachment No. l 1 Page 7 STATE OF CALIFORNIA ) )ss. COUNTY OF On _, 200_, before me, , personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to he the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ics), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Attachment No. 11 Page 8 (SEAL) STATE OF CALIFORNIA ) )ss. COUNTY OF On , 200 , before me, _ , personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Attachment No. 11 Page 9 (SEAL) EXHIBIT A Legal Description of the Property APN 559-160-03 The westerly 125.00 feet (measured at right angles to the westerly line thereof) of Tract "A" of the Chamber of Commerce Industrial Lands No. 1, in the City of National City, County of San Diego, State of California, according to Map thereof No. 1731, filed in the Office of the County Recorder of San Diego County, June 9, 1922. Together with those portions of 8th Avenue adjoining said Tract "A" on the west, as vacated and closed to public use by Resolution 1064 of the Board of Trustees of the City of National City, said portions being described as follows: That portion of the easterly 40.00 feet of said 8th Avenue lying southerly of the westerly prolongation of the northerly line of said Tract "A", and northerly of the easterly prolongation of the southerly line of 25th Street, and that portion of the east half of said 8th Avenue lying southerly of the easterly prolongation of 25th Street, and northerly of the westerly prolongation of the southerly line of said Tract "A". APN 559-160-11 Lots 1 to 10 inclusive, and Lots 13 to 22, inclusive, Block 282 of National City, in the City of National City, in the County of San Diego, State of California, according to Map No. 348, filed in the Office of the County Recorder of San Diego County, October 2, 1882. Also the westerly 50.00 feet of 8th Avenue adjoining the above block on the east, and the northerly 40.00 feet of 26th Street adjoining on the south together with the alley in said block, as closed by Resolution No. 1064 on July 20, 1926. Also that portion of the south half of 25th Street adjoining said Block 282 on the north and lying between the northwesterly prolongation of the easterly and westerly lines of said Block 282. APNs 559-160-09 and -21 All those portions of Tract "A" and "B" of Chamber of Commerce Industrial Lands No. 1, according to Map thereof No. 1731, and Lots 1 through 5, 18, 19, 20, 23, and 24 in Block 232 of National City, according to Map thereof No. 348, said maps being in the City of National City, County of San Diego, State of California, and filed in the Office of the County Recorder of San Diego County, together with that portion of the easterly 40.00 feet of 8th Avenue lying westerly of and adjoining said Lots 1 through 5 of said Map No. 348, lying westerly and southerly of a line described as follows: Beginning at a point on the south line of said Tract "A", said point being the southeast corner of the land described in the Director's Deed to C&M Meat Packing Corp., a California corporation, Attachment No. 11 Page 10 recorded February 28, 1968 as file/page no. 34172 of official records, thence along the easterly line of said land north 27°10'57" west, 34.34 feet; north 30°1I'05" east, 66.08 feet; north 31°19'37" west 268.23 feet; north 79°41'54" west, 120.04 feet; and north 88°45'34" west to a point on the westerly line of said Lot 23, said point also being the most southeasterly corner of the land described in the deed to the State of California, recorded December 8, 1961 as file/page no. 212155 of official records; thence along the southerly boundary of said State's land, north 88°45'34" west. Excepting therefrom the westerly 125.00 feet (measured at right angles to the westerly line thereof) of Tract "A" of the Chamber of Commerce Industrial Lands No. 1, in the City of National City, County of San Diego, State of California, according to Map thereof No. 1731, filed in the Office of the County Recorder of San Diego County, June 9, 1922. Also excepting thereform all that portion lying southerly of the northerly line of land conveyed to the United States of America by grant deed recorded August 12, 1988 as File No. 88-399671 of Official Records, said land being shown on Record of Survey Map No. 11749 filed August 10, 1988 as File No. 88-394302 of Official Records. Also excepting from that portion lying within Lots 18, 19, 20, and 23 in Block 232 the title and exclusive right to all of the minerals and mineral ores of every kind and character now known to exist of hereafter discovered upon, within or underlying said land or that may be produced therefrom, including, without limiting the generality of the foregoing, all petroleum, oil, natural gas, and other hydrocarbon substances and products derived therefrom, together with the exclusive and perpetual right of said grantor, its successors and assigns, of ingress and egress beneath the surface of said land to explore for, extract, mine, and remove the same, and to make such use of the said land beneath the surface as is necessary or useful in connection therewith, which use may include lateral or slant drilling, boring, digging, or sinking, or wells, shafts, or tunnels; provided, however, that said grantor, its successors and assigns, shall not use the surface of said land in the exercise of any said rights, and shall not disturb the surface land or any improvements thereon. Attaclunent No. 11 Page 11 EXHIBIT B Figure Depicting Location of Capped Portions of the Property Attachment No. 11 Page 12 RESOLUTION NO. 2007 — 146 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF NATIONAL CITY APPROVING THE SIXTH'AMENDMENT TO THE DISPOSITION AND DEVELOPMENT AGREEMENT BY AND BETWEEN THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY AND MARINA GATEWAY DEVELOPMENT COMPANY, LLC, AND SYCUAN TRIBAL DEVELOPMENT CORPORATION TO DEVELOP THE MARINA GATEWAY HOTEL AND COMMERCIAL PROJECT WHEREAS, on May 18, 2004, the Community Development Commission of the City of National City ("CDC") entered into a Disposition and Development Agreement with Marina Gateway Development Company, LLC ("MGDC") and Sycuan Tribal Development Corporation ("SDTC") (jointly referred to as the "Developers") to develop the Marina Gateway Hotel and Commercial Project on 6.5 acres in the Harbor District area of the National City Redevelopment Project formerly used as a dumping site and impacted by hazardous materials; and WHEREAS, five amendments, solely to allow for more time to remediate the hazardous conditions and project planning efforts, were approved by the Executive Director between February, 2005 and May, 2007; and; WHEREAS, Developers have agreed that SDTC will no longer take title to any portion of the project site and the entire project will be owned by MGDC, and WHEREAS, a Post Closure Monitoring and Maintenance Agreement was approved for the remediation project by San Diego County Local Enforcement Agency on June 1, 2007; and WHEREAS, a revised project description consistent with the Coastal Development Permit for the project has been prepared; and WHEREAS, the CDC and Developers desire to memorialize Developer's financial responsibility for certain Site improvements made by the California Integrated Waste Management Board NOW, THEREFORE, BE IT RESOLVED that the Community Development Commission of the City of National City hereby approves the Sixth Amendment to the Disposition and Development Agreement by and between the Community Development Commission of the City of National City, Marina Gateway Development Company, LLC, and Sycuan Tribal Development Corporation to develop the Marina Gateway Hotel and Commercial Project. Said Sixth Amendment to Agreement is on file in the office of the City Clerk. PASSED and ADOPTED this 19th day of June on Morrison, Chairman ATT APPROVED AS TO FORM: Bra. `;� 3%?+� ecretary -Lae George H. Eider, III, Legal Counsel Passed and adopted by the Community Development Commission of the City of National City, Califomia, on June 19, 2007, by the following vote, to -wit: Ayes: Commissioners Morrison, Natividad, Parra, Ungab, Zarate. Nays: None. Absent: None. Abstain: None. AUTHENTICATED BY: RON MORRISON Chairman, Community Development Commission Secretary, Coevelopment Commission By: Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2007-146 of the Community Development Commission of the City of National City, California, passed and adopted on June 19, 2007. Secretary, Community Development Commission By: Deputy City of National City, California COMMUNITY DEVELOPMENT COMMISSION AGENDA STATEMENT MEETING DATE June 19, 2007 AGENDA ITEM NO. 32 / ITEM TITLE A resolution approving the Sixth Amendment to the Disposition and Development Agreement by and between the Community Development Commission of the City of National City and Marina Gateway Development Company, LLC and Sycuan Tribal Development Corporation to develop the Marina Gateway hotel and commercial project. PREPARED BY Patricia Beard, Redevelopment Manager Fxt 4250 DEPARTMENT SQK Redevelopment Division EXPLANATION On May 18, 2004, the Community Development Commission ("CDC"), Marina Gateway Development Company, LLC ("MGDC") and Sycuan Tribal Development Corporation ("STDC") entered a Disposition and Development Agreement ("DDA") to develop a hotel and commercial project on 6.5 acres at 1-5 and Bay Marina Drive. The property was a former dumpsite acquired using the CDC's power of eminent domain and remediated using the CDC's Polanco Act authority to order the clean up of contaminated sites. During the three years since the original DDA was approved, changes have occurred to the project description and a remediation project conducted under a grant from the California Integrated Waste Management Board was completed including certain improvements the developer has \ agreed to reimburse the state for. (Please see attached Background Report.) _._.!greed Environmental Review Not applicable. Financial Statement The original financial terms of the DDA remain unchanged. Account No STAFF RECOMMENDATION Adopt the resolution. BOARD / COMMISSION RECOMMENDATION Not applicable. ATTACHMENTS 1. Background report 2. Proposed Agreement Resolution No. o 0 City of National City Office of the City Clerk 1243 National City Boulevard, National City, CA 91950-4397 Michael R. Dalla, CMC - City Clerk (619) 336-4228 Fax: (619) 336-4229 July 17, 2007 Mr. Daniel Tucker Chairman Marina Gateway Development Company, LLC Sycuan Tribal Development Corporation 5485 Casino Way El Cajon, CA 92019 Dear Mr. Tucker, On June 19, 2007, Resolution No. 2007-146 was passed and adopted by the Community Development Commission of National City, approving the sixth amendment to the disposition and development agreement with Marina Gateway Development Company, LLC and Sycuan Tribal Development Corporation. We are enclosing for your records a certified copy of the above Resolution and a fully original executed agreement. Michael R. Dalla, CMC City Clerk Enclosure cc: Community Development Commission ® Recycled Paper