HomeMy WebLinkAboutItem 1-B Attachment 5 - Restated Agreement SNMB,LTDORDINANCE NO. 2700
AN ORDINANCE OF THE CITY OF CHULA VISTA ADOPTING
THE RESTATED AND AMENDED PRE - ANNEXATION
DEVELOPMENT AGREEMENT WITH SNMB, LTD.
WHEREAS, on August 6, 1996, the City Council approved Ordinance 2688 on first
reading, which adopted the Pre - Annexation Development Agreement between the City of
Chula Vista and SNMB, Ltd. ( "Previously Negotiated Agreement "); and
WHEREAS, the Previously Negotiated Agreement was not executed by SNMB, Ltd. so
no second reading of the ordinance was held and therefore no agreement is currently in
existence; and
WHEREAS, there is now a mutual desire by the City and SNMB, Ltd. to restate and
amend the Previously Negotiated Agreement in order for the Previously Negotiated Agreement
to become effective ( "Restated Agreement "); and
WHEREAS, on February 19, 1997, the Planning Commission reviewed the Restated
Agreement and voted to approve same.
NOW, THEREFORE, the City Council of the City of Chula Vista ordains as follows:
SECTION 1: The City Council does hereby adopt, amend and restate the Restated and
Amended Pre - Annexation Development Agreement with SNMB, Ltd. on file in the office of the
City Clerk as Document No. C097 -014.
SECTION 11: The Mayor of the City of Chula Vista is hereby authorized and directed
to execute said Restated Agreement for and on behalf of the City of Chula Vista.
SECTION III: This ordinance shall take effect and be of full force on the effective date
of annexation as set forth in the Restated Agreement, Document No. C097 -014. .
Presented by Approved as to form by
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eorge kre 1
Deputy City Manager
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On M. Kaheny
City Attorney
AMENDED AND RESTATED
PRE - ANNEXATION DEVELOPMENT AGREEMENT
THIS AMENDED AND RESTATED PRE - ANNEXATION DEVELOPMENT AGREEMENT
( "Agreement ") is made effective on the date hereinafter set forth
below by and among the CITY OF CHULA VISTA ( "City ") and SNMB, LTD.
("SNMB"), who agree as follows:
1. RECITALS. This Agreement is made with respect to the
following facts:
1.1 Owner. The owners of the properties subject to this
Agreement (hereinafter collectively referred to as "Owner" or as
"Developer ") are as follows:
1.1.1 SNMB is the owner of approximately 1,827
acres of undeveloped real property ( "the SNMB Property ") in
the unincorporated area of the County of San Diego ( "County ") ,
described in Exhibits "A" and "E, attached hereto and incorpo-
rated herein by this reference.
1.1.2 The SNMB Property (the "Property ") is part
of a larger area commonly known, and referred to herein, as
"the Otay Valley Parcel of Otay Ranch." Portions of SNMB
Property are located in Villages 2, 3, 4, 7, 8, 9 and Planning
Areas 12 and 18B of the Otay Ranch Property.
1.2 City. The City of Chula Vista is a municipal
corporation with Charter City powers incorporated within the
County.
1.3 Code Authorization and Acknowledgments.
1.3.1 City is authorized pursuant to its
charter, self -rule powers and California Government Code
sections 65864 through 65869.5 to enter into development
agreements for the purpose of establishing certainty for both
City and owners of real property in the development process.
1.3.2 Government Code section 65865 expressly
authorizes a city to enter into a development agreement with
any person having a legal or equitable interest in real
property in unincorporated territory within that city's sphere
of influence for the development of property as provided in
the Development Agreement Law; provided that the agreement
shall not become operative unless annexation proceedings
annexing the property to the city are completed within the
time specified by the agreement.
1.3.3 City enters into this Agreement pursuant
to the provisions of the California Government Code, its home
rule powers, and applicable City ordinances, rules, regula-
tions and policies.
1.3.4 City and owner intend to enter into this
agreement for the following purposes:
1.3.4.1 To assure adequate public facilities
at the time of development.
1.3.4.2 To assure development in accordance
with City's capital improvement plans.
1.3.4.3 To provide certainty to Owner in the
development approval process by vesting the permitted
use(s), density, intensity of use, and the timing and
phasing of development as described in the Development
Plan, which is defined in Paragraph 2.4 of this Agree-
ment, in exchange for owner's entering into this Agree-
ment and for its commitment to support the Annexation
described below.
1.3.4.4 To permit achievement of City growth
management goals and objectives.
1.3.4.5 To allow City to realize significant
economic, recreational, park, open space, social, and
public facilities benefits for the City, some of which
are of regional significance.
1.3.4.6 To provide and assure that the City
receive sales tax revenues, increase in the property tax
base, residential housing and other development, sewer,
water and street facilities.
1.3.4.7 To provide and assure that the City
receives public facilities in excess of project generated
impacts and such facilities shall be of supplemental
size, number capacity or length, which shall be provided
earlier than could be provided either by funds from the
City or than would strictly be necessary to mitigate
project related impacts at any development phase.
1.3.4.8 To provide the City the developer's
support to secure annexation of the lands depicted in
Exhibit "B".
1.3.4.9 To enable the City to secure title to
the land within the boundaries of the Property necessary
to complete the Chula Vista greenbelt system as defined
in the Chula Vista General Plan.
1.3.4.10 To assure the City that the Developer
will dedicate rights -of -way to the City for SR -125, a
route which, when constructed, will substantially
alleviate congestion on I -805 and I -5, and also will
facilitate the economic development of Chula Vista.
"1.
1.3.4.11 Because of the complexities of the
financing of the infrastructure, park, open space, and
other dedications, and regional and community facilities,
and the significant nature of such facilities, certainty
in the development process is an absolute necessity. The
phasing, timing, and development of public infrastructure
necessitate a significant commitment of resources,
planning, and effort by Owner for the public facilities
financing, construction, and dedication to be success-
fully completed. In return for Owner's participation and
commitment to these significant contributions of private
resources for public purposes and for Owner's consent to
the Annexation described below, City is willing to
exercise its authority to enter into this Agreement and
to make a commitment of certainty for the development
process for the Property.
1.3.4.12 In consideration of Owner's agreement
to provide the significant benefits and for Owner's
consent to the Annexation described below, City hereby
grants Owner assurances that it can proceed with develop-
ment of the Property in accordance with City's
ordinances, rules, regulations, and policies existing as
of the effective date of this Agreement subject to
Section 5.2.1 below. Owner would not enter into this
Agreement or agree to provide the public benefits and
improvements described in this Agreement if it were not
for the commitment of City that the Property subject to
this Agreement can be developed in accordance with City's
ordinances, rules, regulations, and policies existing as
of the effective date of this Agreement subject to
Section 5.2.1 below.
1.4 The Annexation. On July 1, 1996, the Local Agency
Formation Commission ("LAFCO") approved annexation of Sphere of
Influence Planning Area 1 "The Otay Parcel ", Planning Area 2
"Inverted L" and the Mary Patrick Estate Parcel (see Attachment
BOB") .
1.5 Sphere of Influence. On February 5, 1996 and July
1, 1996 the Local Agency Formation Commission approved the
inclusion of Planning Area 1, "The "Otay Parcel ", into the City
Sphere of Influence (Sphere of Influence Planning Area 1 "the Otay
Parcel ", Planning Area 2 "Inverted L" and the Mary Patrick Estate
Parcel - see Attachment "B ").
1.6 Planning Documents. On October 28, 1993, City and
County adopted the Otay Ranch General Development Plan/ Subregiona1
Plan ( "the GDP ") which includes the Otay Ranch Village Phasing
Plan, Facility Implementation Plan, Resource Management Plan and
Service Revenue Plan, for approximately 23,000 acres of the Otay
Ranch, including the Otay Valley Parcel and the SNMB property.
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1.7 Owner Consent. City desires to have the cooperation
and consent of Owner to include the Property in the Annexation in
order to better plan, finance, construct and .maintain the infra-
structure for the Otay valley Parcel; and SNMB desires to give
their cooperation and consent, provided that they obtain certain
assurances, as set forth in this Agreement.
1.8 City Ordinance. , 1997 is the
date of adoption by the City Council of Ordinance No.
approving this Agreement. The ordinance shall take effect and be
in full force on the effective date of Annexation.
2. DEFINITIONS. In this Agreement, unless the context
otherwise requires:
2.1 "Annexation" means the proposed annexation of that
portion of the Otay Ranch into the City as depicted on Exhibit "D" .
2.2 "City" means the City of Chula Vista, in the County
of San Diego, State of California.
2.3 "County" means the County of San Diego, State of
California.
2.4 "Development Plan" means the GDP.
2.5 "GDP" means the General Development Plan /Subregional
Plan for the Otay Ranch, described in Paragraph 1.6, above.
2.6 "Owner" or "Developer" means the person, persons, or
entity having a legal and equitable interest in the Property, or
parts thereof, and includes owner's successors -in- interest.
2.7 "Project" means the physical development of the
private and public improvements on the Property as provided for in
the Existing Project Approvals and as may be authorized by the City
in Future Discretionary Approvals.
2.8 "Property" means the real property described in
Paragraph 1.1.1.
2.9 The "Term" of this Agreement means the period
defined in Paragraph 3, below.
2.10 "Builder" means developer to whom Developer has sold
or conveyed property within the Property for purposes of its
improvement for residential, commercial, industrial or other use.
2.11 "CEQA" means the California Environmental Quality
Act, California Public Resources Code section 21000, et seq.
Council. 2.12 "City Council" means the City of Chula Vista City
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2.13 "Commit" or "Committed" means all of the following
requirements have been met with respect to any public facility:
2.13.1 For a public facility within the City's
jurisdictional boundaries and a responsibility of the develop-
er.
2.13.1.1 All discretionary permits required of
the Developer have been obtained for construction of the
public facility; and
2.13.1.2 Plans for the construction of the
public facility have all the necessary governmental
approvals; and
2.13.1.3 Adequate funds (i.e., letters of
credit, cash deposits, performance bonds'or land secured
public financing, including facility benefit assessments,
Mello -Roos assessment districts of similar assessment
mechanism) are available such that the City can construct
the public facility if construction has not commenced
within thirty (30) days of issuance of a notice to
proceed by the Director of Public Works, or construction
is not progressing towards completion in a reasonable
manner as reasonably deemed by the Director of Public
Works.
2.13.2 For a public facility within the City's
jurisdictional boundaries, but to be provided by other than
Developer.
2.13.2.1 Developer's proportionate share of
the cost of such public facility as defined in the
existing Project Approvals and Future Discretionary
Approvals has been provided or assured by Developer
through the payment or impositions of development impact
fee or other similar exaction mechanism.
2.13.3 For public facility not within City's
jurisdictional boundaries:
2.13.3.1 Developer's proportionate share of
the cost of such public facility as defined in the
existing Project Approvals and Future Discretionary
Approvals has been provided for or otherwise assured by
Developer to the reasonable satisfaction of the Director
of Public Works.
2.14 "Development Impact Fee (DIF)" means fees imposed
upon new development pursuant to the City of Chula Vista
Development Impact Fee Program, for example, including but not
limited to the Transportation Development Impact Fee Program, the
Interim SR -125 Development Impact Fee Program, the Salt Creek Sewer
DIF and the Public Facilities DIF.
M
2.15 "Existing Project Approvals" means all discretionary
approvals affecting the Project which have been approved or
established in conjunction with, or preceding, the effective date
consisting of, but not limited to the GDP, the Chula Vista General
Plan, the Otay Ranch Reserve Fund Program adopted pursuant to
Resolution 18288, and the Phase I and II Resource Management Plan
(RMP) , as may be amended from time to time consistent with this
agreement.
2.16 "Final'Map(s)" means any final subdivision map for
all or any portion of the Property other than the Superblock Final
Map ( "A" Maps).
2.17 "Future Discretionary Approvals" means all permits
and approvals by the City granted after the effective date and
excluding existing Project Approvals, including, but not limited
to: (i) grading permits; (ii) site plan reviews; (iii) design
guidelines and reviews; (iv) precise plan reviews; (v) subdivisions
of the Property or re- subdivisions of the Property previously
subdivided pursuant to the Subdivision Map Act; (vi) conditional
use permits; (vii) variances; (viii) encroachment permits;
(ix) Sectional Planning Area plans; (x) Preserve Conveyance Plan
and (xi) all other reviews, permits, and approvals of any type
which may be required from time to time to authorize public or
private on- or off -site facilities which are a part of the Project.
2.18 "Planning Commission" means the Planning Commission
of the City of Chula Vista.
2.19 "Preserve Conveyance Plan" means a plan that will,
when adopted, set forth policies and identify the schedule for
transfer of land and /or fees to be paid to insure the orderly
conveyance of the Otay Ranch land to the Preserve Owner Manager.
The purpose of the plan is to fulfill the obligations to convey
resource sensitive land, per the criteria contained in the phase I
and II Resource Management Plans and to mitigate environmental
impacts of the Otay Ranch Project.
2.20 "Public Facility" or "Public Facilities" means those
public facilities described in the Otay Ranch Facility
Implementation Plan.
2.21 "Subdivision Map Act" means the California
Subdivision Map Act, Government Code section 66410, et seq., and
its amendments as may from time to time be adopted.
2.22 "Substantial Compliance" means that the party
charged with the performance of a covenant herein has sufficiently
followed the terms of this Agreement so as! to carry out the intent
of the parties in entering into this Agreement.
2.23 "Threshold" means the facility thresholds set forth
in the City's Municipal Code Section 19.19.040.
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3. TERM. This Agreement shall become effective as a
development agreement upon the effective date of the Annexation
( "the Effective Date "); provided, however, that if the Annexation
does not occur on or before July 1, 1997, this Agreement shall be
null and void unless the annexation proceedings have been extended
by LAFCO. If the annexation proceedings have been extended, this
Agreement shall become effective upon the effective date of such
Annexation; provided however, if the annexation does not occur by
the end of such extension(s), this Agreement shall become null and
void. Any of the foregoing to the contrary notwithstanding, from
the date of the first reading of the ordinance approving this
Agreement, and unless or until this Agreement becomes null and
void, Owner shall be bound by the terms of Paragraph 4. The Term
of this Agreement for purposes other than Paragraph 4 shall begin
upon the Effective Date, and shall continue for a period of twenty
(20) years ( "the Term "). The Term shall also be extended for any
period of time during which issuance of building permits to Owner
is suspended for any reason other than the default of Owner, and
for a period of time equal to the period of time during which any
action by City or court action limits the processing of future
discretionary approvals, issuance of building permits or any other
development of the Property consistent with this Agreement.
4. OWNER CONSENT TO ANNEXATION. Owner hereby consents to
and shall cooperate with the applications of City to declare that
the Otay Valley Parcel is within City's sphere of influence and to
annex the Otay Valley Parcel to the City; provided, however, that
Owner may withdraw such consent and withhold further cooperation if
the City, prior to the Effective Date, adopts rules, regulations,
ordinances, policies, conditions, environmental regulations,
phasing controls, exactions, entitlements, assessments or fees
applicable to and governing development of the Property which are
inconsistent with, or render impractical development of the
Property according to, the Development Plan or the additional
commitments of City set forth in Paragraphs 5.1.1 through 5.1.8,
below. Owner also agrees not to challenge the annexation of the
Otay Valley Parcel into the City.
4.1 The Developer understands and agrees that this
Agreement shall become effective and valid only upon the Effective
Date of the annexation proceedings, as more fully described in
paragraph 3 of this Agreement. Developer further understands that
as a condition precedent to the completion of annexation proceed-
ings, and this Agreement becoming effective, certain property
owners such as SNMB, Ltd., are required to provide certain
easements and subordination agreements satisfactory to the County.
Developer agrees that the City's second reading of the Ordinance
approving this Agreement shall not occur unless and until said
subordination agreements have been accepted by the County. No
terms of this Agreement shall be subject to renegotiation between
the first and second reading of the ordinance approving this
Agreement except by mutual consent of the parties to this Agree-
ment.
5. VESTED RIGHTS. Notwithstanding any future action or
inaction of the City during the term of this Agreement, whether
such action is by ordinance, resolution or policy of the City,
Owner and Developer shall have a vested right, except as may be
otherwise provided in this Section 5, to construct the Project in
accordance with:
5.1 Existing Project Approvals, subject to the following
requests for modifications if approved by the City:
5.1.1 City shall reasonably consider in its
discretion and with proper environmental review, a request to
increase the residential density of Villages 2, 4, and 8, up
to the number of residential units provided in Village 3 by
the County adopted GDP.
5.1.2 City shall reasonably consider in its
discretion and with proper environmental review a request to
change the primary land use designation for Village 3 from
Industrial to commercial, recreational, visitor - serving, and
some residential uses in addition to the Industrial use. The
exact acreages of the residential, industrial, commercial, or
other uses, shall be agreed upon and set forth in a general
plan amendment.
5.1.3 If the interchange improvements at Otay
Valley Road and I -805 are needed to serve the Project, the
City will hold appropriate hearings to consider an amendment
to its Transportation Phasing Plan (TPP) and Development
Impact Fee (DIF) Program to include said improvements as may
be deemed appropriate by the City to accommodate the project
phasing. The City agrees to reasonably cooperate and work
with CALTRANS to complete plans for said interchange improve-
ment. `
5.1.4 City shall initiate contact and diligently
pursue discussions with the County of San Diego and the City
of San Diego to determine the number, scheduling and financing
of the Otay River road and bridge crossings.
5.1.5 City shall allow the owner for purposes of
processing entitlements to proceed with planning of the
Property on a first come first served basis, with other
properties in the area of the Annexation. In addition, if
necessary the City shall, with proper environmental review,
consider in its discretion an amendment to the Village Phasing
Plan to facilitate the planning and development of the
properties covered by this Agreement.
5.1.6 To the extent any of the foregoing changes
are embodied in the Development Plan or the rules, regula-
tions, ordinances, policies, conditions, environmental
regulations, phasing controls, exactions, entitlements,
assessments, and fees applicable to and governing development
of the Property, whether adopted before or after the Effective
Date, such changes shall be deemed applicable to the Property
without change to this Agreement.
5.1.7 City shall diligently process any amend-
ments, applications, maps, or other development applications.
5.1.8 City shall diligently process and reason-
ably consider in its discretion with proper environmental
review a request to expand.the development areas of Villages
2, 3, 4 and 8 in the event. future environmental studies
indicate that areas once considered environmentally con-
strained can be developed without significant, unmitigable
environmental impacts.
5.1.9. City may make such modifications or amend-
ments to the Existing Project Approvals /Future Discretionary
Approvals, as may be ordered by a court of competent jurisdiction
in an action in which the Developer is a party or has had an
opportunity to appear or has been provided notice of such action by
the City.
5.2 Development_ of Property. The development of the
Property will be governed by this Agreement and Existing Project
Approvals and such development shall comply and be governed by all
rules, regulations, policies, resolutions, ordinances, and
standards in effect as of the Effective Date subject to the
provisions of Section 5.2.1 below. The City shall retain its
discretionary authority as to Future Discretionary Approvals,
provided however, such Future Discretionary Approvals shall be
regulated by the Existing Project Approvals, this Agreement, and
City rules, regulations, standards, ordinances, resolutions and
policies in effect on the Effective Date of this Agreement and
subject to Section 5.2.1.
Notwithstanding the foregoing, the City may make such changes to
the City's Growth Management ordinance applicable to the Project as
are reasonable and consistent with the purpose and intent of the
existing Growth Management Ordinance and which are generally
applicable to all private projects citywide or east of I -805 or
within a specific benefit, fee or reimbursement district created
pursuant to the California Government Code.
5.2.1 New or Amended Rules, Regulations
Policies, Standards Ordinances and Resolutions. The City may
apply to the Project, including Future Discretionary Approv-
als, new or amended rules, laws, regulations, policies,
ordinances, resolutions and standards generally applicable to
all private projects east of I -805 or within a specific
benefit fee or reimbursement district created pursuant to the
California Government Code. The application of such new
rules, or amended laws, regulations, resolutions, policies,
ordinances and standards will not unreasonably prevent or
delay development of the property to the uses, densities or
intensities of development specified herein or as authorized
by the Existing Project Approvals. The City may also apply
changes in City laws, regulations, ordinances, standards or
policies specifically mandated by changes in state or federal
law in compliance with Section 13.3 herein.
5.2.2 Developer may elect with City's consent,
to have applied to the project any rules, regulations,
policies, ordinances or standards enacted after the date of
this Agreement. Such an election has to be made in a manner
consistent with Section 5.2 of this Agreement.
5.2.3 Modifications to Existing Project
Approvals. It is contemplated by the parties to this
Agreement that the City and Developer may mutually seek and
agree to modifications to the Existing Project Approvals.
Such modifications are contemplated as within the scope of
this Agreement, and shall, upon written acceptance by all
parties, constitute for all purposes an Existing Project
Approval. The parties agree that any such modifications may
not constitute an amendment to this Agreement nor require an
amendment to the Agreement.
5.2.4 Future Discretionary Approvals. It is
contemplated by the parties to this Agreement that the City
and Developer may agree to Future Discretionary Approvals. The
parties agree that any such Future Approvals may not consti-
tute an amendment to this Agreement nor require an amendment
to the Agreement.
5.3 Dedication and Reservation of Land for Public
Purposes. Except as expressly required by this Agreement or the
Existing Project Approvals and Future Discretionary Approvals
(excepting dedications required within the boundaries of any parcel
created by the subsequent subdivision of the Property as required
by the Subdivision Map Act), no dedication or reservation of real
property within or outside the Property shall be required by City
or Developer in conjunction with the Project. Any dedications and
reservations of land imposed shall be in accordance with Section
7.2 and Section 7.8 herein.
5.4 Time for Construction and Completion of Proiect.
Because the California Supreme Court held in Pardee Construction
Company v. City of Camarillo (1984) 27 Cal.3d 465, that the failure
of the parties to provide for the timing of development resulted in
a later- adopted initiative restricting the timing of development to
prevail over such parties' Agreement, it is the intention of the
parties to this Agreement to cure that deficiency by specifically
acknowledging that timing and phasing of development is completely
and exclusively governed by the Existing Project Approvals,
including the Chula Vista Growth Management Ordinance. The purpose
of the Chula Vista Growth Management Ordinance is to "control the
timing and location of development by tying the pace of development
to the provision of public facilities and improvements to conform
to the City's threshold standards." (Municipal Code Section
19.09.010A.7) The findings in support of the Growth Management
Ordinance conclude that the ordinance "does not affect the number
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of houses which may be built." (Municipal Code Section
19.09.010B.3) Therefore, the parties acknowledge that the Chula
Vista Growth Management Ordinance completely occupies the topic of
development timing and phasing and expressly precludes the adoption
of housing caps, urban reserves or any other means by which the
rate of development may be controlled or regulated. The City
agrees that the Developer shall be entitled to, apply for and
receive all permits necessary for the development of property,
consistent with the Growth Management ordinance, Existing Project
Approvals,.Future Discretionary Approvals and this Agreement.
5.5 Benefit of Vesting. Nothing in this Agreement will
be construed as limiting or impairing Developer's vested right, if
any, to proceed with the development and use of the Property
pursuant to the Federal and State Constitutions, and pursuant to
statutory and decisional law.
5.6 Vesting of Entitlements. All rights conferred by
this Agreement vest with the Effective Date hereof. The approval
of Future Discretionary approvals shall not be deemed to limit
Developer's rights authorized by this Agreement, and once such
approvals are obtaiped they shall be vested to the same extent as
the Existing Project Approvals.
6. DEVELOPMENT PROGRAM.
6.1 Processing of Future Discretionary Approvals. City
will accept and diligently process development applications and
requests for Future Discretionary Approvals, or other entitlements
with respect to the development and use of the Property, provided
said applications and requests are in accordance with this
Agreement. City costs for processing work related to the Project,
including hiring of additional City personnel and /or the retaining
of professional consultants, will be reimbursed to City--- by
Developer.
6.2 Lenath of Validity of Tentative Subdivision Maps.
Government Code Section 66452.6 provides that tentative subdivision
map(s) may remain valid for a length up to the term of a Develop-
ment Agreement. The City agrees that tentative subdivision map(s)
for the property shall be for a term of six (6) years and may be
extended by the City Council for a period of time not to exceed a
total of twenty (20) years and in no event beyond the term of this
Agreement.
6.3 Pre -Final Mau Development. If Developer desires to
do certain work on the Property after approval of a tentative map
(for example, grading) prior to the recordation of a final map, it
may do so by obtaining a grading and /or other required approvals
from the City which are authorized by the City prior to recordation
of a final map. Such permit shall be issued to Developer, or its
contractor, upon Developer's application, approval, and provided
Developer posts a bond or other reasonably adequate security
required by City in an amount to assure the rehabilitation of the
land if the applicable final map does not record.
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6.4 Final Mans.
6.4.1 "A" Maps and "B" Maps. If Developer so
elects, the City shall accept and process a master subdivision
or parcel map ( "A" Map) showing "Super Block" lots and
backbone street dedications. "Super Block" lots shall be
consistent with the GDP and subsequent Sectional Plan Area
plans, and shall not subdivide land into individual single -
family lots. All "Super Blocks" created shall have access to
dedicated public streets. The City shall not require improve-
ment plans in order to record a final map for any "A" Map
lots, but the City shall require bonding for the completion of
backbone facilities prior to recording in an amount to be
determined by the City. Following the approval by City of any
final map for an "A" Map lot and its recordation, Developer
may convey the "Super Block" lot. The buyer of a "Super
Block" lot shall then process final improvement plans and
grading plans and a final map ( "B" Map) for each "Super Block"
lot which the City shall process. The "B" Maps shall be in
substantial conformance with the related approved "A" Map. In
the instance of the multi - family dwelling unit areas, a
separate tentative subdivision map may be submitted to the
City and the "B" Map(s) for these areas may be submitted to
the City after the City Planning Commission approves said
tentative subdivision map.
6.4.2 Recordation of Final Subdivision Map in
Name of Builder or Third Party. Developer may, if it so
elects, convey to a Builder or third party any "super block"
lot(s) shown on the recorded Superblock Final Map. In such
case, the Builder or third party will (i) process any neces-
sary final improvement and grading plans and a final map for
each such "super block" lot, which map City shall accept and
process as subsequent phases in a multi -phase project, -(ii)
enter into a subdivision improvement agreement with City with
respect to the subdivision improvements which are required for
such super block lot, and (iii) provide security and insurance
satisfactory to City for the completion of the subdivision
improvements.
6.4.3 Recordation of Final Subdivision Map in
Developer's Name; Transfer of Obligations Under Subdivision
Improvement Agreement(s). If Developer so elects, it may
defer the conveyance of any super block lot to a Builder or
third party until after the final map of such super block lot
has been recorded. If Developer elects to proceed in this
manner, it will enter into City's standard subdivision
improvement agreement(s) with City for the improvements
required as a condition to the approval of such map(s). Upon
sale to a Builder or third party, if such Builder or third
party assumes Developer's obligations under the improvement
agreement and provides its own security and insurance for the
completion of the subdivision improvements as approved by the
City, Developer shall be released from liability under the
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subdivision improvement agreement(s) and Developer's security
shall be released.
6.4.4 Transfer of Rights and Obligations of
Development. Whenever Developer conveys a portion of the
Property, the rights and obligations of this Agreement shall
transfer in accordance with Section 15 herein.
7. DEVELOPER'S OBLIGATIONS.
7.1 Condition to Developer's Obligations to Dedicate. Fund or
Construct Public Facilities. Developer agrees to develop or
provide the public improvements, facilities, dedications, or
reservations of land and satisfy other exactions conditioning the
development of the Property which are set forth hereinbelow. The
obligations of the Developer pursuant to this Agreement are
conditioned upon: (i) the City not being in default of its obliga-
tions under this agreement; and (ii) the City not preventing or
unreasonably delaying the development of the property; and (iii)
the Agreement having not been suspended in response to changes in
state or federal law; and (iv) the City's obligations having not
been suspended pursuant to Section 13.2.
7.2 Dedications and Reservations of Land for Public Purposes.
The policies by which property will be required to be reserved,
dedicated or improved for public purposes are identified in the
Existing Project Approvals. A more precise delineation of the
property to be preserved, dedicated or improved for public purposes
shall occur as part of Future Discretionary Approvals, consistent
with the Existing Project Approvals.
7.2.1 Dedication of Land for SR 125. Developer agrees
to dedicate land for right -of -way purposes and property owned
by the Developer that is reasonably necessary for the SR -125
configuration selected by CALTRANS and depicted: (1) general-
ly in the GDP or (2) that alignment identified as the Brown
Field Modified Alignment which is generally depicted in the
SR -125 draft Environmental Impact Report/ Statement and" as
revised in the Final Environmental Impact Report/ Statement to
respond to engineering, design, environmental and similar
constraints.
Notwithstanding the foregoing, should CALTRANS not select
alignment (1) or (2) above, the Developer shall dedicate land
for any such alternate SR -125 configuration only on the
condition that the City agree to relocate any land uses
displaced by such alternate Freeway alignment.
City agrees that in the event City shall negptiate with
California Transportation Ventures (CTV) or other toll road
builder any participation or advantages to City that City
shall share such rights with subsequent owner /resident of the
property.
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7.2.2 Landfill Nuisance Easements. The parties to this
Agreement understand and acknowledge that the "Landfill
Nuisance Easement" is an integral part of this Agreement.
Developer shall deliver to the City "Landfill Nuisance
Easements" in the form attached as Exhibit "C" and satisfacto-
ry to the County of San Diego prior to the second reading of
the Ordinance approving the Agreement. If there is no second
reading of this Agreement, the City shall return said ease-
ments to the Developer. If the County Board of Supervisors
does not accept or approve said easements, this Agreement
shall be automatically terminated with neither party bearing
any liability hereunder.
7.2.3 City shall reasonably consider in its discretion
and with proper environmental review, a request to relocate
all land uses which may be eliminated as a result of an
unknown relocation of SR -125 from the route currently depicted
in the GDP.
7.3 Growth Management Ordinance. Developer shall commit the
public facilities and City shall issue building permits as provided
in this Section. The City shall have the right to withhold the
issuance of building permits any time after the City reasonably
determines a Threshold has been exceeded; unless and until the
Developer has mitigated the deficiency in accordance with the
City's Growth Management Ordinance.
Developer agrees that building permits may be withheld where the
public facilities described in the Existing Project Approvals/ -
Future Discretionary Approvals required for a particular Threshold
have not been committed.
In the event a Threshold is not met and future building permit
issuance may be withheld, the notice provisions and procedures
contained in Section 19.09.100C of the Municipal Code will be
followed. In the event the issuance of building permits is
suspended pursuant to the provisions herein, such suspension shall
not constitute a breach of the terms of this Agreement by Developer
or City. Furthermore, any such suspension which is not caused by
the actions or omissions of the Developer, shall toll the term of
this Agreement as provided for in Section 16.12 of this Agreement,
and suspend the Developer's obligations pursuant to this Agreement.
7.3.1 Required Condemnation. The City and Developer
recognize that certain of the public facilities identified in
the Existing Project Approvals/ Future Discretionary Approvals
and required to. comply with a threshold are located on
properties which neither the Developer nor the City has, or
will have, title to or control of. The City shall identify
such property or properties and at the time of filing of the
final map commence timely negotiations or, where the property
is within the City's jurisdiction, commence timely proceedings
pursuant to Title 7 (commencing with S 1230.010) of Part 3 of
the Code of Civil Procedure to acquire an interest in the
property or properties. Developer's share of the cost
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involved in any such acquisition shall be based on its
proportionate share of the public facility as defined in the
Existing Project Approvals/ Future Discretionary Approvals.
Nothing in this Agreement shall be deemed to preclude the City
from requiring the Developer to pay the cost of acquiring such
off -site land. For that portion of the cost beyond the
Developer's fair share I responsibility, the City shall take all
reasonable steps to establish a procedure whereby the develop-
er is reimbursed for such costs beyond its fair share.
7.3.2 Information Regarding Thresholds. Upon
Developer's written requests of the City Manager, the City
will provide Developer with information regarding the current
status of a Threshold. Developer shall be responsible for any
staff costs incurred in providing said written response.
7.4 Improvements Required by a Subdivision Map. As may
be required pursuant to the terms of a subdivision map, it shall be
the responsibility of Developer to construct the improvements
required by a subdivision map. Where Developer is required to
construct a public improvement which has been identified as the
responsibility of another party or to provide public improvements
of supplemental size, capacity, number or length benefiting
property not within the subdivision, City shall process a reim-
bursement agreement to the Developer in accordance with Article 6
of Chapter 4 of the Subdivision Map Act, commencing with Government
Code section 66485, and Section 7.5, below.
7.5 Facilities Which Are the Obligations of Another
Party, or Are of Excessive Size, Capacity, Length or Number.
Developer may offer to advance monies and /or construct public
improvements which are the responsibility of another land owner, or
outside the City's jurisdictional boundaries, or which are--of
supplemental size,.capacity, number or length for the benefit of
land not within the Property. City, where requesting such funding
or construction of oversized public improvements, shall consider
after a public hearing, contemporaneous with the imposition of the
obligation, the formation of a reimbursement district, assessment
district, facility benefit assessment, or reimbursement agreement
or other reimbursement mechanism.
7.6 Pioneering of Facilities. To the extent Developer
itself constructs (i.e., "Pioneers ") any public facilities or
public improvements which are covered by a DIF Program, Developer
shall be given a credit against DIFs otherwise payable, subject to
the City's Director of Public Works reasonable determination that
such costs are allowable under the applicable DIF Program. It is
specifically intended that Developer be given DIF credit for the
DIF Program improvements it makes. The fact that such improvements
may be financed by an assessment district or other financing
mechanism, shall not prevent DIF credit from being given to the
extent that such costs are allowed under the applicable DIF Program
7.7 Insurance. Developer shall name City as additional
insured for all insurance policies obtained by Developer for the
Project as pertains to the Developer's activities and operation on
the Project.
7.8 Other Land Owners. Developer hereby agrees to
dedicate adequate rights -of -way within the boundaries of the
Property for other land owners to "Pioneer" public facilities on
the Property; provided, however, as follows: (i) dedications shall
be restricted to those reasonably necessary for the construction of
facilities identified in the City's adopted public facility plans;
(ii) this provision shall not be binding on the successors -in-
interest or assignees of Developer following recordation of the
final "Super.Block" or "A" Map; and (iii) the City shall use its
reasonable best efforts to obtain agreements similar to this
subsection from other developers and to obtain equitable reimburse-
ment for Developer for any excess dedications.
8. DEVELOPMENT IMPACT FEES.
8.1 Existing Development Impact Fee Program Payments.
Developer shall pay to the City a DIF, or construct improvements in
lieu of payment, for improvements which are conditions of a
tentative subdivision map upon the issuance of building permits (s),
or at a later time as specified by City ordinance, the Subdivision
Map Act, or Public Facility Financing Plan (PFFP) . The DIF will be
in the amount in effect at the time payment is made and may. only be
increased pursuant to Section 8.6 herein.
8.2 Other Undeveloped Properties. The City will use its
reasonable best efforts to impose and collect, or cause the
imposition and collection of, the same DIF program on all the
undeveloped real properties which benefit from the provision of the
public facility through the DIF program, or provided as a condition
of Project Approvals.
8.3 Use of Development Impact Fee Program. The DIF
amounts paid to the City by Developer and others with respect to
the Area of Benefit shall be placed by the City in a capital
facility fund account established pursuant to California Government
Code sections 66000 - 66009. The City shall expend such funds only
for the Projects described in the adopted fee program as may be
modified from time to time. The City will use its reasonable best
efforts to cause such Projects to be completed as soon as practica-
ble; however, the City shall not be obligated to use its general
funds for such Projects.
8.4 Withholding of Permits. Developer agrees that City
shall have the right to withhold issuance of the building permit
for any structure or improvement on the Property unless and until
the DIF is paid for such structure or improvement.
8.5 Development Impact Fee Credit. Upon the completion
and acceptance by the City of any public facility, the City shall
immediately credit Developer with the appropriate amount of cash
—%4"
credits ("EDUs ") as determined by Developer and City. However, if
the improvements are paid for through an Assessment District, the
City shall credit the Developer with the appropriate number of
Equivalent Dwelling Unit Credits (EDU's) . Developer shall be
entitled to apply any and all. credits accrued pursuant to this
subsection toward the required payment of future DIF for any phase,
stage or increment of development of the Project.
8.6 Modification of Development Impact Fees. The
parties recognize that from time to time during the duration of the
Agreement it will be necessary for the City to update and modify
its DIF fees. Such reasonable modifications are contemplated by
the City and the Developer and shall not constitute a modification
to the Agreement so long as: (i) the modification incorporates the
reasonable costs of providing facilities identified in the Existing
Project Approvals; (ii) are based upon methodologies in substantial
compliance with the methodology contained in the existing DIF
programs; or other methodology approved by the City Council
following a public hearing; (iii) complies with the provisions of
Government Code sections 66000 - 66009.
8.7 Standards for Financing Obligations of Owner. In
connection with the development of the Property, the-following
standards regarding the financing of public improvements shall
apply:
8.7.1 Owner shall pay its fair share for the
interchanges described in Paragraph 5.1.3, based upon the
number of dwelling units or equivalent dwellings of develop-
ment allowed on the Property as compared to the total dwelling
units or equivalent dwelling units allowed on properties
served by such interchanges.
8.7.2 owner shall participate in the DIF Program
for the Otay Valley Parcel with other owners in proportion to
the total dwelling units or equivalent dwelling units allowed
on the Property as compared with the total of such units
allowed on properties in that particular DIF or by some other
equitable methodology decided by the City Council.
8.7.3 The City shall diligently pursue the
requirements that the Eastern Territories' DIF requires
offsite third parties and adjacent jurisdictions to bear their
fair share of all Otay River Valley crossings.
9. CITY OBLIGATIONS.
9.1 Urban Infrastructure. To the extent it is within
the authority of the City to provide, City shall accommodate urban
infrastructure to the project, consistent with Existing Project
Approvals. Where it is necessary to utilize City property to
provide urban infrastructure consistent with the Existing Project
Approvals, the City agrees to make such land available for such
uses, provided that the City if it so chooses is compensated at
fair market value for the property. To the extent that the
provision of urban infrastructure is within the authority of
another public or quasi- public agency or utility, the City agrees
to fully cooperate with such agency or agencies to accommodate the
urban infrastructure, consistent with Existing Project Approvals.
Urban infrastructure shall include, but not be limited to gas,
electricity, telephone, cable and facilities identified in the Otay
Ranch Facility Implementation Plan.
9.2 sewer Capacity. The City agrees to provide adequate
sewer capacity for the project, upon the payment of ordinary and
necessary sewer connection, capacity and /or service fees.
10. ANNUAL REVIEW.
10.1 City and Owner Responsibilities. City will, at
least every twelve (12) months during the Term of this Agreement,
pursuant to California Government Code §65865.1, review the extent
of good faith substantial compliance by Owner with the terms of
this Agreement. Pursuant to California Government Code section
65865.1, as amended, owner shall have the duty to demonstrate by
substantial evidence its good faith compliance with the terms of
this Agreement at the periodic review. Either City or Owner may
address any requirement of the Agreement during the review.
10.2 Evidence. The parties recognize that this Agreement
and the documents incorporated herein could be deemed to contain
hundreds of requirements and that evidence of each and every
requirement would be a wasteful exercise of the parties' resources.
Accordingly, Developer shall be deemed to have satisfied its good
faith compliance when it presents evidence of substantial com-
pliance with the major provisions of this Agreement. Generalized
evidence or statements shall be accepted in the absence of any
evidence that such evidence is untrue.
10.3 Review Letter. If Owner is found to be in com-
pliance with this Agreement after the annual review, City shall,
within forty -five (45) days after Owner's written request, issue a
review letter in recordable form'to Owner ( "Letter ") stating that
based upon information known or made known to the Council, the City
Planning Commission and /or the City Planning Director, this
Agreement remains in effect and owner is not in default. Owner may
record the Letter in the Official Records of the County of San
Diego.
10.4 Failure of Periodic Review. City's failure to
review at least annually owner's compliance with the terms and
conditions of this Agreement shall not constitute, or be asserted
by City or owner as, a breach of the Agreement.
11. DEFAULT.
11.1 Events of Default. A default under this Agreement
shall be deemed to have occurred upon the happening of one or more
of the following events or conditions:
11. 1.1 A warranty, representation or statement
made or furnished by Owner to City is false or proves to have
been false in any material respect when it was made.
11.1.2 A finding and determination by City made
following a periodic review under the procedure provided for
in California Government Code section 65865.1 that upon the
basis of substantial evidence Owner has not complied in good
faith with one or more of the terms or conditions of this
Agreement.
11.1.3 City does not accept, timely review, or
consider requested development permits or entitlements
submitted in accordance with the provisions of this Agreement.
11.1.4 Any other act or omission by City or Owner
which materially interferes with the terms of this Agreement.
11.2 Procedure Upon Default.
11.2.1 Upon the occurrence of default by the
other party, City or Owner may terminate this Agreement after
providing the other party thirty (30) days written notice
specifying the nature of the alleged default and, when
appropriate, the manner in which said default may be satis-
factorily cured. After proper notice and expiration of said
thirty (30) day cure period without cure, this Agreement may
be terminated. In the event that City's or Owner's default is
not subject to cure within the thirty (30) day period, City or
Owner shall be deemed not to remain in default in the event
that City or Owner commences to cure within such thirty (30)
day period and diligently prosecutes such cure to completion.
Failure or delay in giving notice of any default shall not
constitute a waiver of any default, nor shall it change-the
time of default. Notwithstanding any other provision of this
Agreement, City reserves the right to formulate and propose to
Owner options for curing any defaults under this Agreement for
which a cure is not specified in this Agreement.
11.2.2 City does not waive any claim of defect in
performance by Owner if, on periodic review, City does not
propose to modify or terminate this Agreement.
11.2.3 Subject to Paragraph 16.12 of this
Agreement, the failure of a third person shall not excuse a
party's nonperformance under this agreement.
11.2.4 Remedies Upon Default. In the event of a
default by either party to this Agreement, the parties shall
have the remedies of specific performance, mandamus, injunc-
tion and other equitable remedies without having to first
prove there is an inadequate remedy at law. Neither party
shall have the remedy of monetary damages against the other;
provided, however, that the award of costs of litigation and
attorneys' fees shall not constitute damage.
M
12. ENCUMBRANCES AND RELEASES ON PROPERTY.
12.1 Discretion to Encumber. This Agreement shall not
prevent or limit owner in any manner at owner's sole discretion,
from encumbering the Property, or any portion of the Property, or
any improvement on the Property, by any mortgage, deed of trust, or
other security device securing financing with respect to the
Property or its improvement.
12.2 Mortgacree Rights and Obligations. The mortgagee of
a mortgage or beneficiary of a deed of trust encumbering the
Property, or any part thereof, and their successors and assigns
shall, upon written request to City, be entitled to receive from
City written notification of any default by Owner of the
performance of Owner's obligations under the Agreement which has
not been cured within thirty (30) days following the date of
default.
12.3 Releases. City agrees that upon written request of
Owner and payment of all fees and performance of the require-
ments and conditions required of Owner by this Agreement with
respect to the Property, or any portion thereof, City may
execute and deliver to Owner appropriate release(s) of further
obligations imposed by this Agreement in form and substance
acceptable to the San Diego County Recorder and title
insurance company, if any, or as may otherwise be necessary to
effect the release. City Manager shall not unreasonably
withhold approval of such release(s).
12.4 Obligation to Modify. City acknowledges that the
lenders providing financing for the Project may require certain
modifications to this Agreement and City agrees, upon request from
time to time, to meet with Owner and /or representatives of such
lenders to negotiate in good faith any such requirement -for
modification. City will not unreasonably withhold its consent to
any such requested modification.
13. MODIFICATION OR SUSPENSION.
13.1 Modification to Agreement by Mutual Consent. This
Agreement may be modified, from time to time, by the mutual consent
of the parties only in the same manner as its adoption by an
ordinance as set forth in California Government Code sections
65867, 65867.5 and 65868. The term, "this Agreement" as used in
this Agreement, will include any such modification properly
approved and executed.
13.2 Unforeseen Health or Safety Circumstances. If, as
a result of facts, events, or circumstances presently unknown,
unforeseeable, and which could not have been known to the parties
prior to the commencement of this Agreement, City finds that
failure to suspend this Agreement would place the residents of City
in a severe and immediate emergency to their health or safety.
_gg_
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13.2.1 Notification of Unforeseen Circumstances.
Notify Developer of (i) City's determination; and (ii) the
reasons for City's determination, and all facts upon which
such reasons are based;
13:2.2 Notice of Hearing. Notify Developer in
writing at least fourteen (14) days prior to the date, of the
date, time and place of the hearing and forward to Developer
a minimum of ten (10) days prior to the hearings described in
Section 13.2.3, all documents related to such determination
and reasons therefor; and
13.2.3 Hearing. Hold a hearing on the deter-
mination, at which hearing Developer will have the right to
address the City Council. At the conclusion of said hearing,
City may take action to suspend this Agreement as provided
herein. The City may suspend this Agreement if, at the
conclusion of said hearing, based upon the evidence presented
by the parties, the City finds failure to suspend would place
the residents of the City in a,severe and immediate emergency
to their health or safety.
13.3 Change in State or Federal Law or Regulations. If
any state or federal law or regulation enacted during the Term of
this Agreement, or the action or inaction of any other affected
governmental jurisdiction, precludes compliance with one or more
provisions of this Agreement, or requires changes in plans, maps,
or permits approved by City, the parties will act pursuant to
Sections 13.3.1 and 13.3.2, below.
13.3.1 Notice; Meeting. The party first becoming
aware of such enactment or action or inaction will provide the
other party(ies) with written notice of such state or federal
law or regulation and provide a copy of such law or regulation
and a statement regarding its conflict with the provisions of
this Agreement. The parties will promptly meet and confer in
a good faith and reasonable attempt to modify or suspend this
Agreement to comply with such federal or state law or regula-
tion.
13.3.2 Hearing. If an agreed upon modification
or suspension would not require an amendment to this Agree-
ment, no hearing shall be held. Otherwise, the matter of such
federal or state law or regulation will be scheduled for
hearing before the City. Fifteen (15) days' written notice of
such hearing shall be provided to Developer, and the City, at
such hearing, will determine and issue findings on the
modification or suspension which is required by such federal
or state law or regulation. Developer, at the hearing, shall
have the right to offer testimony and other evidence. If the
parties fail to agree after said hearing, the matter may be
submitted to mediation pursuant to subsection 13.3.3, below.
Any modification or suspension shall be taken by the affirma-
tive vote of not less than a majority of the authorized voting
members of the City. Any suspension or modification may be
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subject to judicial review in conformance with subsection
16.19 of this Agreement.
13.3.3 Mediation of Disputes. In the event the
dispute between the parties with respect to the provisions of
this paragraph has not been resolved to the satisfaction of
both parties following the City hearing required by subsection
13.3.2, the matter shall be submitted to mediation prior to
the filing of any legal action by any party. The mediation
will be conducted by the San Diego Mediation Center; if San
Diego Mediation Center is unable to conduct the mediation, the
parties shall submit the dispute for mediation to the Judicial
Arbitration and Mediation Service or similar organization and
make a good faith effort to resolve the dispute. The cost of
any such mediation shall be divided equally between the
Developer and City.
13.4 Natural Communities Conservation Act (NCCP). The
parties recognize that Developer and the City are individually
negotiating agreements with the United States Fish and Wildlife
Service ( "USF &W ") and the California Department of Fish and Game
pursuant to the ongoing regional effort to implement the Natural
Communities Conservation Act ("NCCP "), locally proposed to be
implemented through the Multi- Species Conservation Program
( "MSCP ") . The parties further recognize that implementation of the
agreements may necessitate modification to the Existing Project
Approvals. The parties agree to utilize their best efforts to
implement these agreements, once executed, through the timely
processing of modifications to the Existing Project Approvals as
they relate to the Property. The Developer agrees to pay the
reasonable City cost for processing work related to the modifica-
tions. Once such modifications are obtained they shall be vested
to the same extent as Existing Project Approvals.
14. DISTRICTS PUBLIC FINANCING MECHANISMS.
This Agreement and the Existing Project Approvals recognize
that assessment districts, community facility districts, or other
public financing mechanisms, may be necessary to finance the cost
of public improvements borne by this Project. If Developer,
pursuant to the Existing Project Approvals/ Future Discretionary
Approvals, is required to install improvements through the use of
assessment districts, community facility districts, or other public
financing mechanisms, the City shall initiate and conclude
appropriate proceedings for the formation of such financing
district or funding mechanism, under applicable laws or ordinances.
Developer may request that the City utilize any other financing
methods which may become available under City laws or ordinances.
All costs associated with the consideration and formation of such
financing districts or funding mechanisms shall be paid by
Developer subject to reimbursement, as may be legally authorized
out of the proceeds of any financing district or funding mechanism.
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15. ASSIGNMENT AND DELEGATION.
15.1 Assignment. Owner shall have the right to transfer
or assign its interest in the Property, in whole or in part,
to any persons, partnership, joint venture, firm, or corpora-
tion at any time during the Term of this Agreement without the
consent of City. Owner also shall have the right to assign or
transfer all or any portion of its interest or rights under
this Agreement to third parties acquiring an interest or
estate in the Property at any time during the Term of this
Agreement without the consent of City.
15.2 Delegation. In addition, Owner shall have the
right to delegate or transfer its obligations under this
Agreement to third parties acquiring an interest or estate in
the Property after receiving the prior written consent of the
City Manager, which consent shall not be unreasonably with-
held, delayed, or conditioned. Once the City Manager has
consented to a transfer, delivery to and acceptance by the
City Manager of an unqualified written assumption of Owner's
obligations under this Agreement by such transferee shall
relieve Owner of the obligations under this Agreement to the
extent the obligations have been expressly assumed by the
transferee. Such transferee shall not be entitled to amend
this Agreement without the written consent of the entity that,
as of the Effective Date, is Owner, which consent shall not be
unreasonably withheld, delayed, or conditioned. The entity
that is Owner as of the Effective Date, however, shall be
entitled to amend this Agreement without the written consent
of such transferee.
16. MISCELLANEOUS PROVISIONS.
16.1 Binding Effect of Agreement. Except to the extent
otherwise provided in this Agreement, the burdens of this Agreement
bind, and the benefits of this Agreement inure, to City's and
Owner's successors -in- interest and shall run with the land.
16.2 Relationship of City and Owner. The contractual
relationship between City and Owner arising out of this Agreement
is one of independent contractor and not agency. This Agreement
does not create any third -party beneficiary rights.
16.3 Notices. All notices, demands, and correspondence
required or permitted by this Agreement shall be in writing and
delivered in person, or mailed by first -class or certified mail,
postage prepaid, addressed as follows:
If to City, to: City of Chula Vista
276 Fourth Avenue
Chula Vista, CA 91910
Attention: City Manager
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If to Owner, to: SNMB, LTD.
7811 La Mesa Boulevard
Suite B -3
La Mesa, CA 91941
Attention: Christopher Patek
With a Copy to: STEPHENSON, WORLEY, GARRATT
SCHWARTZ, HEIDEL & PRAIRIE
101 West Broadway, Suite 1300
San Diego, CA 92101
Attention: Donald R. Worley, Esq.
City or Owner may change its address by giving notice in writing to
the other. Thereafter, notices, demands, and correspondence shall
be addressed and transmitted to the new address. Notice shall be
deemed given upon personal delivery, or, if mailed, two (2)
business days following deposit in the United States mail.
16.4 Rules of Construction. In this Agreement, the use
of the singular includes the plural; the masculine gender includes
the feminine; "shall" is mandatory; "may" is permissive.
16.5 Entire Agreement, Waivers and Recorded Statement.
This Agreement constitutes the entire understanding and agreement
of City and Owner with respect to the matters set forth in this
Agreement. This Agreement supersedes all negotiations or previous
agreements between City and Owner respecting this Agreement. All
waivers of the provisions of this Agreement must be in writing and
signed by the appropriate authorities of City and Owner. Upon the
completion of performance of this Agreement, or its revocation or
termination, a statement evidencing completion, revocation, or
termination signed by the appropriate agents of City shall be
recorded in the Official Records of San Diego County, California.
16.6 Project as a Private Undertaking. It is
specifically understood by City and Owner that (i) the Project is
a private development; (ii) City has no interest in or
responsibilities for or duty to third parties concerning any
improvements to the Property until City accepts the improvements
pursuant to the provisions of the Agreement or in connection with
subdivision map approvals; and (iii) Owner shall have the full
power and exclusive control of the Property subject to.the
obligations of owner set forth in this Agreement.
16.7 Incorporation of Recitals. The recitals set forth
in Paragraph 1 of this Agreement are part of this Agreement.
16.8 Captions.
convenience and referent
modify, construe, limit,
construction, or meaning
Agreement.
The captions of this Agreement are for
e only and shall not define, explain,
amplify, or aid in the interpretation,
of any of the provisions of this
16.9 Consent. Where the consent or approval of City or
Owner is required or necessary under this Agreement, the consent or
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approval shall not be unreasonably withheld, delayed, or con-
ditioned.
16.10 Covenant of Cooperation. City and Owner shall
cooperate and deal with each other in good faith, and assist each
other in the performance of the provisions of this Agreement.
16.11 Recording. The City Clerk shall cause a copy of
this Agreement to be recorded with the Office of the County
Recorder of San Diego County, California, within ten (10) days
following the Effective Date.
16.12 Delay, Extension of Time for Performance. In
addition to any specific provision of this Agreement, performance
by either City or Owner of its obligations hereunder shall be
excused, and the Term of this Agreement and the Development Plan
extended, during any period of delay caused at any time by reason
of any event beyond the control of City or Owner which prevents or
delays and impacts City's or Owner's ability to perform obligations
under this Agreement, including, but not limited to, acts of God,
enactment of new conflicting federal or state laws or regulations
(example: listing of a species as threatened or endangered),
judicial actions such as the issuance of restraining orders and
injunctions, riots, strikes, or damage to work in process by reason
of fire, floods, earthquake, or other such casualties. If City or
Owner seeks excuse from performance, it shall provide written
notice of such delay to the other within thirty (30) days of the
commencement of such delay. If the delay or default is beyond the
control of City or Owner, and is excused, an extension of time for
such cause will be granted in writing for the period of the
enforced delay, or longer as may be mutually agreed upon.
16.13 Covenant of Good Faith and Fair Dealings. No party
shall do anything which shall have the effect of harming'- or
injuring the right of the other parties to receive the benefits of
this Agreement; each party shall refrain from doing anything which
would render its performance under this Agreement impossible; and
each party shall do everything which this Agreement contemplates
that such party shall do in order to accomplish the objectives and
purposes of this Agreement.
16.14 Operating Memorandum. The parties acknowledge that
the provisions of this Agreement require a close degree of
cooperation between City and Developer, and that the refinements
and further development of the Project may demonstrate that minor
changes are appropriate with respect to the details of performance
of the parties. The parties, therefore, retain a certain degree of
flexibility with respect to those items covered in general under
this Agreement. When and if the parties mutually find that minor
changes or adjustments are necessary or appropriate, they may
effectuate changes or adjustments through operating memoranda
approved by the parties. For purposes of this Section 16.14, the
City Manager, or his designee, shall have the authority to approve
the operating memoranda on behalf of City. No operating memoranda
-103
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shall require notice or hearing' or constitute an amendment to this
Agreement.
16.15 Time of Essence. Time is of the essence in the
performance of the provisions of this Agreement as to which time is
an element.
16.16 Amendment or Cancellation of Agreement. This
Agreement may be amended from time to time or canceled by the
mutual consent of City and Owner only in the same manner as its
adoption, by an ordinance as set forth in California Government
Code section 65868, and shall be in a form suitable for recording
in the Official Records of San. Diego County, California. The term
"Agreement" shall include any such amendment properly approved and
executed. City and Owner acknowledge that the provisions of this
Agreement require a close degree of cooperation between them, and
that minor or insubstantial changes to the Project and the
Development Plan may be required from time to time to accommodate
design changes, engineering -changes, and other refinements.
Accordingly, changes to the Project and the Development Plan that
do not result in a change in use, an increase in density or
intensity of use, cause new or increased environmental impacts, or
violate any applicable health and safety regulations, may be
considered minor or insubstantial by the City Manager and made
without amending this Agreement.
16.17 Estoppel Certificate. Within 30 calendar days
following a written request by any of the parties, the other
parties to this Agreement shall execute and deliver to the
requesting party a statement certifying that (i) this Agreement is
unmodified and in full force and effect, or if there have been
modifications hereto, that this Agreement is in full force and
effect as modified and stating the date and nature of such
modifications; (ii) there are no known current uncured defaults
under this Agreement, or- specifying the dates and nature of any
such default; and (iii) any other reasonable information requested.
The failure to deliver such a statement within such time shall
constitute a conclusive presumption against the party which fails
to deliver such statement that this Agreement is in full force and
effect without modification, except as may be represented by the
requesting party, and that there are no uncured defaults in the
performance of the requesting party, except as may be represented
by the requesting party.
16.18 Severability. If any material provision of this
Agreement is held invalid, this Agreement will be automatically
terminated with neither party bearing any liability hereunder.
Notwithstanding the foregoing, within 15 days after such provision is
held invalid, if the party holding rights under the invalidated
provision affirms the balance of this Agreement in writing this
Agreement shall not be terminated. This provision will not affect
the right of the parties to modify or suspend this Agreement by
mutual consent pursuant to Paragraph 12.4.
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16.19 Institution of Lecxal Proceeding. In addition to any
other rights or remedies, any party may institute legal action to
cure, correct, or remedy any default, to enforce any covenants or
agreements herein, or to enjoin any threatened or attempted violation
thereof; to recover damages for any default as allowed by this
Agreement or to obtain any remedies consistent with the purpose of
this Agreement. Such legal actions must be instituted in the
Superior Court of the County of'San Diego, State of California.
16.20 Attorneys' Fees and Costs. If any party commences
litigation or other proceedings (including, without limitation,
arbitration) for the interpretation, reformation, enforcement, or
rescission of this Agreement, the prevailing party, as determined by
the court, will be entitled to its reasonable attorneys' fees and
costs.
16.21 Hold Harmless. Developer agrees to and shall hold
City, its officers, agents, employees and representatives harmless
from liability for damage or claims for damage for personal injury,
including death, and claims for property damage which may arise from
the direct or indirect operations of Developer or those of its
contractors, subcontractors, agents, employees or other persons
acting on Developer's behalf which relate to the Project. Developer
agrees to and shall defend City and its officers, agents, employees
and representatives from actions for damage caused or alleged to have
been caused by reason of Developer.'s activities in connection with
the Project. Developer agrees to indemnify, hold harmless, pay all
costs and provide a defense for City in any legal action filed in a
court of competent jurisdiction by a third party challenging the
validity of this Agreement. The provisions of this Section 16.21
shall not apply to the extent .such damage, liability or claim is
caused by the intentional or negligent act or omission of City, its
officers, agents, employees or representatives.
17. AUTHORITY
Each signatory
to the other part y
direction from its
all resolutions or
to enter into this
and party hereto hereby warrants and represents
that it has legal authority and capacity and
principal to enter into this Agreement, and that
other actions have been taken so as to enable it
Agreement.
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a
SIGNATURE PAGE TO PRE- ANNEXATION DEVELOPMENT AGREEMENT.
Dated this ZL? day of Z'7, C// , 1997
"CITY"
CITY OF CHULA VISTA
By:
SHIRLEY ORTON, AYOR
"OWNER"
SNMB, LTD.
By:
Ge ra Partner
I hereby approve the form and legality of the foregoing Pre -
Annexation Development Agreement this day of , 1997.
John M. Kaheny, City Attorney
By:
Ann Moore
Assistant City Attorney
-106-
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EXHIBIT "C"
M Ire I+fimrt«d NY, end MW
AWACdW ►lrw bowm foe
pith MO M OMICivRI 0"1see
Canty d son flow
UM Pec[tit 14y.
s■, #["a, a tact
LANDFILL NUIS"CZ =SST.IMNT
AND
COVZNANTS RMWING W= TEE J":)
(hereinafter referred to as "Grantor*), for valuable `
consideration, does * hereby GRANT to the 00VNn OF SAN MGO, a
political"subdivicion of the Btat& of California (hereinafter
refs=* to as "Grant*& ") as the owner of that real property
located in the County of San Diego, California )mown as the *Otay
Landfill" which is more particularly described in *Exhibit A"
...haroto (hereinafter rafarred to as the •Daainant Tanamant") and
..its successors in interest to tea Dominant Tenement, an rj7 SIIMRNT
(hereinafter referred to as "Nuisance Easenant ") ovar all that
Taal property located in tha county of San Diego, California
described in 9'rxhibit a" hereto ( bareinafter referred to as tha
"Bervient Tenement").
This Ruisanae Easamant is for the use and benefit of Grantee
and its xis assors in interest and invited quests in the conduct
of solid waste landriliing operations on the Dominant Tenement,
for the tree and %mobctructed passage on, Onto, in, through, and
.across the surface and airspao* above the surface of the S*rviant
Tananant of the following things (hereinafter referred to as
•Nuisance Ztams ")s
dusts =is&; vibrations; awry grid all chemicals or particles
suspended (perwmantly or temporarily) in the air and vied
including but not liuitsd to msthana gas; odors, fmne5 fuel
particles, seagulls and other scavenger birds and the
excrament droppings therefrom; and the unobstructed passage
below the surfaoe of laachate and other pollutants) and for
each, every and all affects as may be caused by or result
from the operation of a landfill vhich is now is existanoa
or which say be developed in the future,
togethsr with the continuing right to cause or allow in all of
such Sarviant Tansaant such nuisance Items, it being understood
and agraad that Grantee, or its suaaassors in interest, intends.
to develop, saintain and =avai !=hs landfill on the adjacent
Dominant Tan want in such that said landfill and the
easeae,nt Qraated herein will be used at all-- times in conalianca
Of ttate and ]Federal agencies
toxic and/or hazardous vaste, and Operation ration of the factors,
oysxeLion of the landfill.
Grantor, for itself and its successors and aigns, does
bsersby
fully Waive and release ss any right or cause of nation Which
-they or any of thas Gay nor have or may have in the future
against Grantee, its successors and assigns, on account of or
arising out of sucA Kuisttioa Xtaas heretofore and Berea rtar
causa►a Dy the operation of a landfill.
Grantor, for itself and its suocassars and assigns,
covenants and_ 47r"*, with the Understanding and intent that such
shall run with the lard, and which shall run with the land =
, that
neither they nor any of tbem Will oamasna4 or maintain a suit,
action, writ, arbitration, or other legal or equitable proceading
against Grants* or its successors or assigns wherein the ralief
sought is the cessation or limitation on the use of the Dominant
Tenement as a landfill. Grantor, for itself and its successors
and assigns, covenants and agrress, With the understanding and
Intent that much shall run with the lard, and Which shall run
_vlth the land, that in tLQ event that they violate tho above
oevenants of the forogoing santence, they shall pay to Crantss
such attorneys, feo8 and costa as may be deterained to be
reasonable by a Court of cczpeteat jurisdiction.
requests for enforcement made Inquiries or
Gael Grantor, Its successors or
over the operation of landfills shallYnot be cobsidered aority
viQ1&t10n of this Paragraph.
Upon the termination of use of the Dofninant Tenement for
landfill purposes, (including ocapletian of active landfill
opgratiorts and all closure and post - closer* activities), Grantorr
its successors or assigns may r*V*st that Grantee, its
-. succ*ssors or assigns, through the applicable legal prooedurs,
vacate or terminate this *&"Mont, Which request will not be
w reasonably Witbeld.
..fteautad this -- ---- -- day of
California. , 1s96, at sea Diego,
-110 -
-sow _ _
OTAI� LANDFILL AND* BUFFS', � PARCEL 96 -0078
• OTAY LANDFILL
i z
EXHIBIT "E"
Pre - annexation Development Agreement
Plannin Area
Assessor
Ownership
Acreage
Parcel Numbers
Otay Valley Parcel
644 -030 -07 ,
S N M B Ltd.
134.25
Otay VaNcy Parcel
644-060 -07
S N M B Ltd.
159.18
Otay Valley Parcel
644-060 -08
S N M B Lid.
80.00
Otay Vall ey Parcel
644 -060 -09
S N M B Ltd.
80.00
Otay Valley Parcci
644-060 -10
S N M B Ltd.
289.70
Otay Valley Parcel
644. 060 -12
S N M B Ltd.
82.20
Otay Valig Parcel
644 -070-08
S N M B Ltd.
313.28
Otay Valley Parcel
645 -030 -19
S N M B Ltd.
335.34
Otay Valley Parcel
646 -010 -02
S N M B Ltd.
352.70
1.826.65
Total
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_