HomeMy WebLinkAboutPlanning Comm Rpts./1997/01/08
AGENDA
CITY PLANNING COMMISSION
Chula Vista, California
7:00 p.m.
Wednesda.y. January 8. 1997
CALL TO ORDER
Council Chambers
Public Services Building
276 Fourth Avenue. Chula Vista
ROLL CALUMOTIONS TO EXCUSE
PLEDGE OF ALLEGIANCE
INTRODUCTORY REMARKS
ORAL COMMUNICATIONS
Opportunity for members of the public to speak to the Planning Commission on any
subject matter within the Commission's jurisdiction but not an item on today's agenda.
Each speaker's presentation may not exceed three minutes.
1.
ORDINANCE:
ORDINANCE:
2.
PUBLIC HEARING:
3.
PUBLIC HEARING:
4.
PUBLIC HEARING:
Adopting a revised Otay Ranch Pre-annexation Agreement
between Otay Ranch L.P., a California limited partnership,
Village Development, a California general partnership, and
the City of Chula Vista
Adopting a revised Otay Ranch Pre-annexation Agreement
between Baldwin Builders, and the City of Chula Vista
Variance ZA V-97-Q8; Request to encroach into required
front yard setback for certain portions of a single family
residence at 1095 August Place, within the PC (planned
Community) zone - Augusta Place, L.L.C.
Variance ZA V-96-13; Request to increase maximum lot
coverage to 47% for an overhead shade cloth structure used
in conjunction with home orchid growing at 1341 Park
Drive, within the R-l (Single Family Residential) zone -
Eugenia Hammond (to be continued to 2-12-97)
SUPS-97-02; Request for a service station remodel to
include gasoline sales, convenience store, and carry-out and
drive-through fast food sales at 902 Broadway, within the
C- T (Thoroughfare Commercial) zone - Texaco Refining
and Marketing, Inc. (to be continued indefinitely)
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Agenda
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January 8, 1997
DIRECTOR'S REPORT
COMMISSIONER COMMENTS
ADJOURNMENT at
p.m. to the Workshop Meeting of January 15, 1997 at 5:30 p.m.
in Conference Rooms 2/3, and to the Regular Business Meeting of
January 22, 1997, at 7:00 p.m. in the Council Chambers.
COMPLIANCE WITH AMERICANS WITH DISABILlTIES ACT (ADA)
The City of Chula Vista, in complying with the Americans with Disabilities Act (ADA), requests
individuals who may require special accommodations to access, attend, and/or participate in a City
meeting, activity, or service to request such accommodation at leastforty-eight hours in advance for
meetings andfive days in advancefor scheduled services and activities. Please contact Nancy Ripley
for specific information at (619) 691-5101 or Telecommunications Devices for the Deaf (fDD) (619)
585-5647. California Relay Service is available for the hearing impaired.
<..to-26.pc)
PLANNING COMMISSION AGENDA STATEMENT
Item No. 1
Meeting date: January 8. 1997
ITEM TITLE:
Ordinance Adopting a revised Otay Ranch Pre-annexation
Agreement Between Otay Ranch L.P., a California limited
partnership, Village Development, a California general partnership,
and the City of Chula Vista.
Ordinance
Agreement
Vista
Adopting a revised Otay Ranch Pre-annexation
Between Baldwin Builders, and the City of Chula
SUBMITTED BY;
Deputy City Mana~6K. . .1d-;
Planning Director / (.,. r f: (;,ALJ:" h@ () ~
Special Planning Projects Manager, Otay Ranc............~ .,
On June 25, 1996, the Planning Commission met jointly with the City Council to consider
and approve pre-annaexation development agreements with the major property owners of
the Otay Ranch. When the development agreements were original approved, it was
anticipated that the Otay Ranch annexation would be finalized by the end of 1996. The
development agreements contained December 31, 1996 expiration dates if the annexation
was not complete by that time. While the reorganization was ordered by the City Council
on December 17, 1996, a Local Agency Formation Commission (LAFCO) annexation
condition was not met and the annexation was not completed by December 31 st. The
agreements have expired. The agreement with Village Development needs to be reinstated
to provided the City with the bonding protection covered in the October development
agreement amendments. The agreements provided Village Development commitment to
the GDP and SPA One approvals. The revised agreements remove that expiration
provision and make the development agreements effective upon completion of the
annexation.
RECOMMENDATION: That the Planning Commission recommend approval of the
revised ordinances for Village Development and Baldwin Builders.
DISCUSSION:
In July of 1996, LAFCO authorized the City Council to conduct the proceeding to annex
the Otay Ranch Reorganization No. I to the City. LAFCO required that, prior to the
completion the proceedings, the County of San Diego notify the City that County had
received acceptable landfill nuisance easements for the I,OOO-foot buffer around the Otay
landfill. SNMB has had internal difficulty providing the County with acceptable easements
but seem to be making progress toward resolving those difficulties. In anticipation of the
Planning Commission
January 8, 1997
Page 2
County receiving the easements and the City the notice, staff scheduled the required City
Council public hearing on the reorganization for December 17, 1996.
At the December 17th meeting, the City Council held the hearing, did not receive any
property owner protest and adopted the resolution ordering the reorganization. The
Council ordered the reorganization with a condition that the County notice be received by
the City prior to staff filing the resolution with LAFCO. Once the notice is received, the
City will file the ordering resolution will LAFCO who will record it with the San Diego
County Recorder completing the annexation process.
The previous development agreements expired on December 31 st and need to be
reinstated in order for Village Development to proceed with the Final Maps in SPA One.
The City does not have authority to record Final Maps until the Reorganization
proceedings are completed and the property annexed to the City. The expiration provision
has been removed from the revised agreements. These agreements are proposed to
become effective upon completion of the annexation to the City. The amendment is
attached to this staff report as an errata to the development agreements which also are
attached.
Note: Some of the required signatures to effect the annexation were obtained prior to
January 1, 1997. The balance are still being pursued at this time.
VILLAGE DEVELOPMENT AND BALDWIN BUILDERS
PRE-ANNAEXATION DEVELOPMENT AGREEMENTS
ERRATA SHEET
Proposed Amendment
Changes to Section 3, term of both development agreements to be found on p.7 of the
Village Development agreement and p. 6 of the Baldwin Builders agreement.
Deletion lined out.
3. TERM. This Agreement shall become effective as
a development agreement upon the effective date of the
Annexation (the "Effective Date"); pro7ided, hO',Je',,'er, that
if the l'.nnexation doeo not occur on or before January
1,1997, this l'.greement shall become null and a':oid. Any of
the foregoing to the contrary notwithstanding, from the date
of 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 the Developer
is suspended for any reason other than the default of the
Developer, and for a period of time equal to the period of
time during which any action by the 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.
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PRE-ANNEXATION DEVELOPMENT AGREEMENT
THIS PRE-ANNEXATION DEVELOPMENT AGREEMENT ("Agreement") is
made effective on the date hereinafter set forth below by and among
THE OTAY RANCH, L.P., a California limited partnership, VILLAGE
DEVELOPMENT, a California general partnership ("Developer") and THE
CITY OF CHULA VISTA, a municipal corporation, who agree as follows:
1. RECITALS.
following facts:
This Agreement is made with respect to the
1.1 Owner. The owners of the properties subj ect to this
Agreement (hereinafter collectively referred to as "Owner" or as
"Developer") are as follows:
1.1.1 Otay Ranch, L.P. is the owner of approxi-
mately 3,545 acres of undeveloped real property in the
unincorporated area of the County of San Diego ("County"),
described in Exhibits "A" and "F", attached hereto and
incorporated herein by this reference.
1.1.2 Village Development is the owner of
approximately 35 acres of undeveloped real property in the
unincorporated area of the County, described in Exhibits "B"
and "F", attached hereto and incorporated herein by this
reference.
1. 2 ci tv. The City of Chula vista is a municipal
corporation and an incorporated city within the county.
1.3 Code Authorization and Acknowledqrnents.
1. 3 . 1 ci ty
Government Code sections
development agreements
certainty for both City
development process.
is authorized pursuant to California
65864 through 65869.5 to enter into
for the purpose of establishing
and owners of real property in the
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 wi thin that city's sphere
of influence for the development of property as provided in
the Development Agreement Law i 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.
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1.3.4 ci ty and Owner acknowledge:
Owner acknowledge this Agreement will provide:
ci ty and
1.3.4.1 Certainty in the planning process so
that the property can be developed efficiently. This
will avoid unnecessary waste of resources and increases
in housing and other development costs. The Agreement
will allow comprehensive planning of a large property so
as to make maximum efficient utilization of resources at
the least economic cost to the public;
1. 3 . 4 . 2 To provide and assure to the city the
participation of Developer in the accelerated, coordinat-
ed and more economic construction, funding and dedication
to the public of certain needed public facilities and
benefits, and to provide for anticipated levels of
service to residents and populations of the property, the
City, and adjacent areas;
1.3.4.3 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;
1.3.4.4 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 provide
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;
1.3.4.5 To provide Developer assurances
regarding the entitlements and regulations that will be
applicable to the development of the property consistent
with the Chula vista General Plan and the otay Ranch
General Development Plan/Subregional Plan;
1.3.4.6 To provide the City the opportunity
to secure immediate annexation of the lands depicted in
Attachment "C" and secure a related tax revenue sharing
agreement with the County of San Diego to assure that
development of the properties will generate sufficient
tax revenues to offset the costs of providing services to
the properties;
1.3.4.7 To enable the city to secure title to
the land with the boundaries of the property necessary to
complete the Chula vista greenbelt system as defined in
the Chula vista General Plan;
1.3.4,8 To enable the city to advance its
stated goal to identify and secure a site for a potential
four year university;
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1. 3.4.9 To assure the city that the Developer
will dedicate right-of-way for SR-125, a route which when
constructed will substantially alleviate congestion on I-
805 and 1-5, and also will facilitate the economic
development of Chula vista; and
1.3.4.10 To enable the city to prepare and
adopt a Habitat Conservation Plan consistent with the
requirements of the Natural Communities Conservation Act,
including the phased conveyance of open space land to the
Otay Ranch Preserve.
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
"C") .
1.5 Sphere of Influence. On February 5, 1996 and July
1, 1996 the Local Agency Formation Commissi6n 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 "C").
1.6 Planninq Documents. On October 28, 1993, city and
County adopted the Otay Ranch General Development Plan/Subregional
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, Jewels and
Foundation Properties. The city amended the GDP on June 4, 1996.
1.6.1 SPA One Plan. On June 4, 1996, the Chula
vista City Council approved the otay Ranch sectional Planning
Area (SPA) One Plan including the Planned Community District
Regulations, Overall Design Plan, Village Design Plan, Public
Facilities Plan, Parks, Recreation, Open space and Trails
Plan, Regional Facilities Report, Phase 2 Resource Management
Plan, Non-renewable Energy Conservation Plan, Ranch-wide
Affordable Housing Plan, SPA One Affordable Housing Plan, and
Geotechnical Report.
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 the Otay Ranch L.P., a
California limited partnership, and Village Development, a Califor-
nia general partnership desire to give their cooperation and
consent, provided that they obtain certain assurances, as set forth
in this Agreement.
1.8 city Ordinance. July 9, 1996 is the date of
adoption by the City Council of Ordinance No. 2679 approving this
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Agreement. The ordinance shall take effect and be in full force on
the effective date of Annexation.
2. Definitions.
otherwise requires:
In this Agreement, unless the context
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
Paragraphs 1.1.1, 1.1.2, and 1.1.3.
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.
2.12 "city Council" means the city of Chula vista city
Council.
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
the Developer have
public facility;
All discretionary permits required of
been obtained for construction of the
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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:
the cost
existing
Approvals
Developer
of Public
2.13.3.1 Developer's proportionate share of
of such public facility as defined in the
Project Approvals and Future Discretionary
has been provided for or otherwise assured by
to the reasonable satisfaction of the Director
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.
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, the SPA One Plan and the Phase II Resource
Management Plan (RMP), as may be amended from time to time
consistent with this agreement.
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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 Actj (vi) conditional
use permits; (vii) variances; (viii) encroachment permits;
(ix) sectional Planning Area plans; (x) 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 sets
forth policies and identifies land to be transferred 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"
public facilities described
Implementation Plan.
or "Public Facilities" means those
in the Otay Ranch Facility
2.20.1 "SPA One Plan" means The otay Ranch
sectional Planning Area (SPA) One Plan approved by the city of
Chula vista on June 4, 1996, including the Planned Community
District Regulations, Overall Design Plan, Village Design
Plan, Public Facilities Finance Plan, Parks, Recreation, Open
Space and Trails Plan, Regional Facilities Report, Phase 2
Resource Management Plan, Non-renewable Energy Conservation
Plan, Ranch-wide Affordable Housing Plan, SPA One Affordable
Housing Plan, and Geotechnical Report.
2.21 "Subdivision Map Act" means the
Subdivision Map Act, Government Code section 66410,
its amendments as may from time to time be adopted.
California
et seq., and
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 January 1, 1997, this Agreement shall
be null and void. Any of the foregoing to the contrary notwith-
standing, from the date of 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 Developer is suspended for any
reason other than the default of Developer, and for a period of
time equal to the period of time during which any action by the
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 land depicted in Exhibit "C" is within City's sphere of
influence and to annex the land depicted in Exhibit "C" 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, entitle-
ments, 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.
5. Vested Riqhts. 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, provided however the
developer is not in default of its obligations under this Agree-
ment, and except as may be otherwise provided in this section 5, to
construct the Project in accordance with:
5.1 Existinq proiect Approvals.
5.2 Development of Propertv. 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.
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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 1-805 or
within a specific benefit, fee or reimbursement district created
pursuant to the California Government Code.
5.2.1 New or Amended Rules. Requlations.
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
unreasonably 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 Existinq ProiectApprov-
also It is contemplated by the parties to this Agreement that
the City and Developer may mutually seek and agree to modifi-
cations 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. Developer agrees to reasonably cooperate
wi th any amendments to Existing and Future Discretionary
Approvals as may be requested by the City from time to time.
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
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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
Companv v. citv 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 ci ty' 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
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 vestinq. 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 vestinq 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 obtained they shall be vested to the same extent as
the Existing Project Approvals.
6. DEVELOPMENT PROGRAM.
6.1 processinq of Future Discretionarv 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
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of professional consultants, will be reimbursed to city by
Developer.
6.2 Lenqth of Validi tv of Tentati ve 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 maps
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 Map 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. The permit may be approved or denied by the city
in accordance with the city's Municipal Code, regulations and
policies and provided Developer is in compliance with this
Agreement and with the terms of all Existing and Future Discretion-
ary Approvals. In addition, the Developer shall be required to
post a bond or other reasonably adequate security required by City
in an amount determined by the city to assure the rehabilitation of
the land if the applicable final map does not record.
6.4 Final Maps.
6.4.1 "A" Maps and "B" Maps. Developer shall
process a master subdivision or parcel map ("A" Map) for each
Village 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 improvement plans in order to
record a final map for any "A" Map lots. 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 improve-
ment plans and grading plans and a final map ("B" Map) for
each "Super Block" lot which the city shall process if such
documents are in compliance with the city's Municipal Code,
standard policies, and the applicable tentative map. 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
Name of Builder or
elects, convey to a
lot(s) shown on the
Recordation of Final Subdivision Map in
Third Party. Developer may, if it so
Builder or third party any "super block"
recorded Superblock Final Map. In such
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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 ("B" map), which map City shall
accept and process if such map is in compliance with the
city's Municipal Code, standard policies, the applicable
tentative map, and the provisions of 7.1 of this Agreement if
applicable 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, (iii) provide security and insurance
satisfactory to city for the completion of the subdivision
improvements, and (iv) agree, in such case, with the city's
consent to comply with the obligations set forth in 7.1.
6.4.3 Recordation of Final Subdivision Map in
Developer's Name: Transfer of Obliqations Under Subdivision
Improvement Aqreementls). 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 with the city's consent
under the improvement agreement and provides its own security
and insurance for the completion of the subdivision improve-
ments satisfactory to the city and as approved by the City,
Developer shall be released from liability under the subdivi-
sion improvement agreement(s) and Developer's security shall
be released.
6.4.4 Transfer of Riqhts and Obliqations 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 Obliqations 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. In
addition to any other obligations the Developer may have,
Developer as its sole and separate responsibility, covenants and
agrees to bond and provide or finance the cost of backbone
facilities as identified on the appropriate Tentative Map and
required by any final map (including "B" Maps). This requirement
may be satisfied through the construction or financing of said
facilities or with the City's approval of any of the following:
the establishment of a reimbursement mechanism, a development
impact fee program, an assessment mechanism, or other equitable
facility financing program wi thin the city's discretion. This
requirement shall be deemed satisfied in the event that the
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Builder(s) of a "B" Map expressly assume the obligations with the
consent of the city to provide said backbone facilities. For
purposes of Tentative Map No. PCS 96-04, Developer shall provide,
prior to the approval of the first final "B" map, adequate security
as determined by the City Engineer for the construction of those
certain backbone facilities set forth in the conditions of approval
for said tentative map. Developer acknowledges that as to any
future tentative maps, Developer may be required by city to provide
such security at various times during the development process
including prior to the first final "A" map in accordance with
city's ordinances, policies or regulations. For purposes of this
Section, backbone facilities mean those facilities such as water,
sewer, storm drain and public streets necessary to serve demands
generated for the backbone facility beyond that of any single "B"
map, but are not included within a wider area city development
improvement fee program.
The obligations of the Developer, pursuant to this Agreement, are
conditioned upon: (i) the city not being in default of its
obligations under this agreement; and (ii) the city not unreason-
ably preventing or unreasonably delaying the development of the
property; and (iii) if the Agreement has been suspended in response
to changes in state or federal law or due to said obligations being
suspended pursuant to section 13.2, said obligations of Developer
shall be suspended for the same period of time.
7.2 Dedications and Reservations of Land for PublicPurpos-
es. 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 development of property as set forth in section 5.2
herein.
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 that 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.
The dedications shall be to the City or by an alternate method
acceptable to the City at such time as requested by the City.
City agrees that in the event city shall negotiate 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.
7.2.2 Landfill Nuisance Easements. Developer shall
grant to the County by July 1, 1996 "Landfill Nuisance
Easements" sUbstantially in the form attached as Exhibit E.
The Easement shall cover all land which is within the otay
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Landfill Buffer Area of Villages 2, 3 and Planning Area 18B of
the otay Ranch GDPP as shown on Exhibit E hereto.
In addition, Developer. agrees to enter into subordination
agreements, acceptable to the County, with all lienholders
having an interest in the Property to ensure that this
Agreement has a priority position over all other liens. The
subordination agreements shall be delivered to the city prior
to the second reading of the Ordinance approving the Agree-
ment. If there is no second reading of this Agreement, the
city shall return said subordination agreements to the
Developer. If the County Board of supervisors does not accept
or approve said easements, this Agreement shall be automati-
cally terminated with neither party bearing any liability
hereunder.
7.2.3 Preserve Convevance Plan. The. Developer
shall comply with any existing or yet to be adopted Preserve
Conveyance Plan and convey property as set forth in such Plan.
7.3 Growth Manaqement Ordinance. Developer shall commit the
public facilities and City shall issue building permits as provided
in this section and in accordance with Existing Project Approvals
and Future Discretionary Approvals. 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 Develop-
er. 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 portions of the Resource Preserve and
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
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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 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. Notwithstanding the
foregoing, 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 responsibility, the city
shall take all reasonable steps to establish a procedure
whereby the developer is reimbursed for such costs beyond its
fair share. .
7.3.2 Information Reqardinq 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 bv a Tentative Subdivi-
sion Map. As may be required pursuant to the terms of a tentative
subdivision map approval, it shall be the responsibility of
Developer to construct the improvements required by the 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 tentative
subdivision map, city shall process for consideration to approve or
deny in its sole discretion a reimbursement agreement to the
Developer in accordance with the city's Municipal Code and Article
6 of Chapter 4 of the Subdivision Map Act, commencing with
Government Code section 66485, and section 7.5, below. This does
not preclude the Developer or the city from considering alternative
financing mechanisms.
7.5 Facilities Which Are the Obliqations of Another
Partv. or Are of Excessive size. Capacity. Lenqth 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 pioneerinq of Facilities. To the extent Developer
itself constructs (Le., "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
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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.
insured for all insurance
Project as pertains to the
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.
Developer shall name city as additional
policies obtained by Developer for the
Developer's activities and operation on
7.9 Construction of East-West Access. Pursuant to
city's requirements, Developer is required to pay Transportation
Development Fees (TDIF) for a variety of purposes including
construction of east-west arterial access through the Property
connecting to I-805. Alternatively, the Developer may be required
to actually construct all or portions of such access if, at the
time of need, the TDIF fund does not contain sufficient revenues to
finance the construction of the needed facilities. Such east-west
arterial access from SPA One to 1-805 could occur on either East
Orange Avenue or on East Palomar Street. It is not now possible to
determine with certainty when it will be necessary to actually
construct the arterials in order to comply with the threshold
requirements because the rate and location of future development is
unknown. The total cost and length of the arterial, which might be
constructed by the Developer, are unknown at this time because it
cannot be determined if and when development west of the property
(Sunbow) will construct the Western portion of the arterials. Such
uncertainty makes it difficult to plan and finance the orderly
development of the property and needed on-site and off-site
facilities. To provide greater certainty as to the timing and
construction of east-west arterial access, the City agrees to
reasonably consider in good faith a traffic capacity agreement with
Developer which would reserve traffic capacity for all or part of
SPA One in exchange for Developer's agreement to pioneer all or
part of planned east-west access to SPA One.
7.10 Assurances of Compliance. Owner acknowledges that
the City is not required to and will not take any action on any of
Owner's applications for Future Discretionary Approvals under this
Agreement, or any modifications or amendments thereof, until and
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unless the city Manager determines that the Owner is not in default
of its obligations under this Agreement including but not limited
to those set forth in section 7.11 and 14.
7.11 Complete Construction. Developer/Builder or any
third party agree to diligently complete construction once a
building permit has been issued for Property which is covered by
this Agreement. Should construction stop once the building permits
have been issued by the City, which the city in its sole discretion
determines has created a nuisance or fire or safety hazard, the
Developer agrees to take such steps necessary to cure the nuisance
or hazard. Should Developer fail to do so to the city's satisfac-
tion, the city may take what steps it deems necessary to cure the
nuisance or hazard at Developer's sole cost and expense.
8. DEVELOPMENT IMPACT FEES.
8.1 Existinq Development Impact Fee Proqram Pavments.
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 Proqram. 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 Withholdinq 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
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
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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
or Future 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 Financinq Obliqations 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 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.
8.7.2 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 and ability 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 accommo-
date 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.
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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.
9.3 Nuisance Easement. The city shall reasonably
consider with proper environmental review a request to amend the
Otay Ranch GDP to relocate, within the property, the land uses
affected by the execution of a "nuisance easement" pursuant to the
Otay Ranch Landfill Agreement, (dated May 15, 1996). This GDP
amendment shall be processed prior to or concurrent with the GDP
amendment covering the landfill buffer area required by the
Landfill Agreement. The amendment shall be .deemed vested to the
same extent as Existing Project Approvals and shall not require or
constitute an amendment to this Agreement. The Developer agrees to
pay the reasonable city cost for processing the amendments.
10. ANNUAL REVIEW.
10.1 city and Owner Responsibilities. city will, at
least every twelve (12) months during the Term or 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.
review at
conditions
by city or
10.4 Failure of Periodic Review. City's failure to
least annually Owner's compliance with the terms and
of this Agreement shall not constitute, or be asserted
Owner as, a breach of the Agreement.
11,
DEFAULT.
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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
fai th with one or more of. the terms or conditions of this
Agreement.
consider
submitted
11.1.3 city does not accept,
requested development permits
in accordance with the provisions
timely review, or
or entitlements
of this Agreement.
11. 1. 4 All remedies at law or in' equi ty which are
consistent with the provisions of this Agreement are available
to city and Owner to pursue in the event there is a breach
provided, however, neither party shall have the remedy of
monetary damages against the other except for an award of
litigation costs and attorneys fees.
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. In the event
of Developer's default under this agreement, the city shall
provide notice of such default as described in this section to
all lenders who have delivered to the City a subordination
agreement pursuant to section 12.5.
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.
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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 All other remedies at law or in equity
which are consistent with the provisions of this Agreement are
available to city and Owner to pursue in the event there is a
breach.
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 Mortqaqee Riqhts and Obliqations. 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 requirements
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). In
addition, at such time as an individual home buyer purchases a home
on a subdivided lot within the Property, the City covenants and
agrees that it shall release said lot from the lien of this
agreement.
12.4 Obliqation 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.
12,5 Subordination. Developer agrees to enter into
subordination agreements with all lenders having a lien on the
Property to ensure that the provisions of this Agreement bind such
lienholders should they take title to all or part of the property
through quit claim deed, sale, foreclosure or any other means of
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transfer of property. As a condition precedent to obtaining the
benefits that accrue to the Developer or the property under this
Agreement, this Agreement by and through said subordination
agreements shall be prior and superior to such liens on said
Property. Developer shall deliver to the city the fully executed
subordination agreements for the Property within SPA One, in a form
acceptable to the city Attorney and suitable for recording, prior
to the second reading of the ordinance adopting the Development
Agreement. Developer shall deliver to the city a fully executed
subordination agreement for Property within subsequently approved
SPA plans in a form acceptable to the city attorney on or before
approval of each SPA Plan for said property. In the event of
Developer's default under this agreement, the city shall provide
notice of such fault as described in section 11 of this agreement
to all lenders who have delivered to the city a subordination
agreement pursuant to this section.
13. MODIFICATION OR SUSPENSION.
13.1 Modification to Aqreement bv 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 pose an immediate threat to
the health or safety of the city's residents or the City. The
following shall occur:
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 Hearinq. 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 Hearinq. 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 pose
an immediate threat to the health or safety of the city's
residents or the city.
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13.3 Chanqe in state or Federal Law or Requlations. 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; Meetinq. 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 Hearinq. 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 De 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
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
-22-
,
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 city agrees to utilize its best efforts to
implement these agreements, once executed, through the timely
processing of modifications to the Existing Project Approvals as
such modifications apply to Developer's property. The Developer
agrees to pay the reasonable city cost for processing work related
to the modifications. Once such modifications are obtained they
shall be vested to the same extent as Existing Project Approvals.
Such modifications shall be substantially similar to the provisions
contained in Exhibit "F", the May 17, 1996 Administrative draft of
the City of Chula Vista SubArea Plan for the MUlti-species
Conservation Program, except for the proposed deletion of the
Maritime Succulent Scrub restoration requirement [Section 3(b) of
the SubArea Plan (page 27)].
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 by the City to install improvements through
the use of assessment districts, or other public financing
mechanisms, the City shall initiate and take final action to
approve or deny appropriate proceedings for the formation of such
financing district or funding mechanism, under applicable laws,
ordinances, or policies. Developer may request that the City, but
the City is not obligated to, 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.
Developer shall comply with the terms of any assessment districts
or other financing mechanisms so approved by the City for Property
covered by this Agreement and shall make timely payments as
required by said financing mechanism. The city retains its rights
to take any action it deems reasonably appropriate to guarantee
payment.
15. ASSIGNMENT AND DELEGATION.
15.1 Assiqnment. 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 corporation 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.
-23-
. "-----------,..,---...--..--.-,.---,--
15.2 Deleqation, 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
provided the owner is incompliance with the terms of this
Agreement and after receiving the prior written consent of the City
Manager, which consent shall not be unreasonably withheld or
delayed or conditioned. Provided, however, the city may deny such
release if the city determines that the performance of such
obligation would be jeopardized by such transfer. 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 and as
approved by the city. 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 transfer-
ee.
16. MISCELLANEOUS PROVISIONS.
16.1 Bindinq Effect of Aqreement. 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
If to Owner, to:
Jim Baldwin
otay Ranch, L.P.
Newport Center Dr.,
Newport Beach, CA
suite 700
92660
with a Copy to:
Kim John Kilkenny
Otay Ranch, L.P.
11975 El Camino Real, suite 104
San Diego, CA 92130
-24-
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 Aqreement. 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 proiect as a Private Undertakinq. 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. The captions of this Agreement are for
convenience and reference only and shall not define, explain,
modify, construe, limit, amplify, or aid in the interpretation,
construction, or meaning of any of the provisions of this
Agreement.
16.9 Consent. Where the consent or approval of City or
Owner is required or necessary under this Agreement, the consent or
approval shall not be unreasonably withheld, delayed, or con-
ditioned.
16.10 Covenant of Cooperation.
cooperate and deal with each other in good
other in the performance of the provisions
City and Owner shall
faith, and assist each
of this Agreement.
16.11 Recordinq. 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.
-25-
:'"
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 Dealinqs. 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 Operatinq 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
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 Aqreement. 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
-26-
r
"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 insubstantia~ 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 ~his 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 Severabilitv. If any material provision of this
Agreement is held invalid, this Agreement will be automatically
terminated unless within 15 days after such provision is held invalid
the party holding rights under the invalidated provision affirms the
balance of this Agreement in writing. This provision will not affect
the right of the parties to modify or suspend this Agreement by
mutual consent pursuant to Paragraph 12.4.
16.19 Institution of Leqal Proceedinq. 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 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 Attornevs' 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.
-27-
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.
-28-
SIGNATURE PAGE TO PRE-ANNEXATION DEVELOPMENT AGREEMENT
Dated this
day of
\
)
, 1996.
"CITY"
CITY OF CHULA VISTA
By:
Its:
Mavor
"OWNER"
THE OTAY RANCH, L.P.
a California limited partnership,
by Sky Communities, Inc.
a California corporation,
its general partner
By:
James P. Baldwin, President
VILLAGE DEVELOPMENT
a California general partnership
By:
James P. Baldwin, President
of the foregoing Pre-
day of
I hereby approve the form and legality
Annexation Development Agreement this
1996.
Ann Moore
Interim City Attorney
city of Chula Vista
By:
-29-
EXHIBIT A
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EXHIBIT B
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EXHIBIT "D"
Recording Requested By, and When
Recorded Please Return to:
Chief Administrative Officer
County of San Diego
1600 Pacific Hwy.
San Diego, CA 92101
[Space above for Recorder's Use]
LANDFILL NUISANCE EASEMENT
AND
COVENANTS RUNNING WITH THE LAND
(hereinafter referred to as "Grantor"), for valuable
consideration, does hereby GRANT to the COUNTY OF SAN DIEGO, a
political subdivision of the State of California (hereinafter
referred to as "Grantee") as the owner of the real property
located in the County of San Diego, California known as the "Otay
Landfill" which is more particularly described in "Exhibit An
hereto (hereinafter referred to as the "Dominant Tenement") and
its successors in interest to the Dominant Tenement, an EASEMENT
(hereinafter referred to as "Nuisance Easement") over all that
real property located in the County of San Diego, California
described in "Exhibit B" hereto_(hereinafter-referredto as the
"Servient Tenement").
This Nuisance Easement is for the use and benefit of Grantee
and its successors in interest and invited guests in the conduct
of solid waste landfilling operations on the Dominant Tenement,
for the free and unobstructed passage on, onto, in, through, and
across the surface and airspace above the surface of the servient
Tenement of the following things (hereinafter referred to as
"Nuisance Items"):
dust; noise; vibrations; any and all chemicals or particles
suspended (permanently or temporarily) in the air and wind
including but not limited to methane gas; odors; fumes; fuel
particles; seagulls and other scavenger birds and the
excrement droppings therefrom; and the unobstructed passage
below the surface of leachate and other pollutants; and for
each, every and all effects as may be caused by or result
from the operation of a landfill which is now in existence
or which may be developed in the future,
together with the continuing right to cause or allow in all of
such Servient Tenement such Nuisance Items, it being understood
and agreed that Grantee, or its successors in interest, intends
to develop, maintain and expand the landfill on the adjacent
Dominant Tenement in such a manner that said landfill and the
easement grated herein will be used at all times in compliance
with all applicable State and Federal laws and the lawful orders
of state and Federal agencies regulating environmental factors,
toxic and/or hazardous waste, and the operation of the landfill.
Grantor, for itself and its successors and assigns, does
hereby fully waive and release any right. or cause of action which
they or any of them may now have or may have in the future
against Grantee, its successors and assigns, on account of or
arising out of such Nuisance Items heretofore and hereafter
caused by the operation of a landfill.
Grantor,' for itself and its successors and assigns,
covenants and agrees, with the understanding and intent that such
shall run with the land, and which shall run with the land, that
neither they nor any of them will commence or maintain a suit,
action, writ, arbitration, or other legal or equitable proceeding
against Grantee or its successors or assigns wherein the relief
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 agrees, with the understanding and
intent that such shall run with the land, and which shall run
with the land, that in the event that they violate the above
covenants of the foregoing sentence, they shall pay to Grantee
such attorneys' fees and costs as may be determined to be
reasonable by a Court of competent jurisdiction. Inquires or
requests for enforcement made by Grantor, its successors or
assigns to state or Federal agencies with regulatory authority
over the operation of landfills shall not be considered a
violation of this paragraph.
Upon the termination of use of the. Dominant... Tenement for
landfill purposes, (including completion of active landfill
operations and all closure and post-closure activities), Grantor,
its successors or assigns may request that Grantee, its
successors or assigns, through the applicable legal procedure,
vacate or terminate this easement, which request will not be
unreasonably withheld.
Executed this
California.
day of
, 1996, at San Diego,
GRANTOR
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EXHIBIT "F" I
PRE-ANNEXATION DEVELOPMENT AGREEMENT
Planning Area Assessor Ownership Acreaae
Parcel Numbers
Otav ValIev Parcel 595'{)70-33 OIavFUinchL.P. 15,39
~ValI~Parcel 641'{)20-15 Otav FUinch L.P. 21.89
Otav ValIev Parcel 641'{)20-18 Otav FUinch L.P. 10.00
Ota-;-ValI~Parcel 641'{)30-13 Otav FUinch L,P. 97.36
Otav ValIev Parcel 641.{)4Q'{)5 Otav FUinch L,P. 151.17
Otav ValIev Parcel 641.{)60.{)4 Otav FUinch L.P. 8.16
Ota-;- ValI--.:vParcel 641.{)60.{)6 Otav FUinch L.P. 17.91
Olav ValIev Parcel 641.{)70.{)1 Otav FUinch L.P. 87.86
OtavValIevParcel 641.{)80.{)1 Otav FUinch L.P. 88,89
O!2v-ValIe:v-Parcel 642.{)40-16 Qt3v-FUinch L.P. 13,99
Otav ValIev Parcel 642'{)50-14 Otav FUinch L.P. 44,62
Otav ValIev Parcel 642'{)50-24 OlaV FUinch L.P. 29.36
..01"" Vall.... Parcel 642.{)70.{)1 Olav FUinch L.P. 160.00
Otav ValIev Parcel 642'{)90'{)1 Otav FUinch L.P. 92.78
Ota-;- ValI--.:vParcel 643.{)10.{)3 Olav FUinch L.P. 19.92
Otav Vall.... Parcel 643.{)10.{)9 Otav FUinch L.P. 51.63
OtavValIevParcel 643'{)20-10 Otav FUinch L.P. 159.37
Oiav- Vall..vParcel 643'{)20-28 Ot3v-FUinch L,P. 48.13
Olav ValIev Parcel 643'{)20-32 Otav FUinch L.P. 32.70
ot;.VVall';-Parcel 643.{)50.{)1 Ot3v FUinch L,P. 53.51
Olav ValIev Parcel 643.{)6Q'{)4 Otav FUinch L.P. 268.55
o;;wvall~Parcel 644.{)30.{)1 Otav FUinch L.P. 311.03
Otav ValIev Parcel 644.{)30.{)6 Otav FUinch L.P. 255.85
<>taVValIevParcel 644.{)60-11 Otav FUinch L.P. 159.18
0taV ValI--.:v Parcel 644.{)70.{) 1 ota; Ranch L.P, 313.52
otiV ValIev Parcel 644.{)70.{)7 Otav FUinch L.P. 285.85
--otaV ValI--.:v Parcel 644.{)80.{)9 Otav FUinch L,P. 152.40
Olav ValIev Parcel 644'{)90'{)2 Otav FUinch L.P. 299.60
Otav ValI~Parcel 645'{)30-15 Otav FUinch L.P. 16,89
Otav ValIev Parcel 645'{)30-18 Olav FUinch L.P. 102.10
Otav ValIevParcel 646'{)I 0.{)3 Otav FUinch L.P. 175.14
3,544.75 Total
Otav Valley Parcel 643'{)10-10 Village Development I 17.06
Inverted 'L' 595.{)50.{)4 I VillaQe Development I 10.00
Inverted fL' 595.{)50.{)7 I Villaoe De\'eIooment I 2.50 I
Inverted 'L' I 595.{)50.{)8 I Village Development I 2.50 I
Inverted 'L' I 595-D50-D9 I Village Development I 2.50 I
I I ! 34.56 ,Total
PI .ANNEXATION DEVELOPMENT AGl ::MENT
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THIS 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 BALDWIN BUILDERS, a California
corporation, ("Baldwin"), who agree as follows:
1. RECITALS.
following facts:
This Agreement is made with respect to the
1 . 1 Owner. The owners of the properties subj ect to this
Agreement (hereinafter collectively referred to as "Owner" or as
"Developer") are as follows:
1.1.1 Baldwin is the Owner of approximately 1204
acres of undeveloped real property ("the Property") in the
incorporated area of the county, described in Exhibits "A" and
"C", attached hereto and incorporated herein by this refer-
ence. Portions of the Property are located in Villages 10,
11, Planning Area 12 and the University site of the Otay Ranch
Property.
1.1.2 The "Property" is part .of a larger area
commonly known, and referred to herein, as "the otay Valley
Parcel of Otay Ranch."
1.1.3 Baldwin Builders is an entity in a Chapter
11 Bankruptcy proceeding in case number ND 95-13057-RR at U.S.
Bankruptcy Court at Santa Barbara where the bankruptcy trustee,
David Gould, obtained a court order approving the employment of
Jimmy D. Johnson, as set forth in Exhibit "D".
1.2 ci tv. The city of Chula vista is a municipal
corporation with Charter City powers incorporated within the
County.
1.3 Code Authorization and Acknowledqrnents.
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 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.
1.3.3 city and Owner intend to enter into this
agreement for the following purposes:
1.3.3.1 To assure adequate public facilities
at the time of development.
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C:;;- 9&"//'77'
G-,-.:<?:l[
1.3.3.2 To assure deve_ ~ment in accordance
with City's capital improvement plans.
1.3.3.3 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 not to challenge the Annex-
ation described below.
1.3.3.4 To permit achievement of City growth
management goals and objectives.
1.3.3.5 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.
1.3.3.6 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.
1.3.3.7 This Agreement will 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. 3.3.8 To enable the city to secure title to
the land within the boundaries of the Property necessary
to complete the Chula vista greenbelt system and the Otay
Ranch Open Space Preserve as both are defined in the
Chula vista General Plan.
1.3.3.9 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 agreement
not to challenge 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.
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1.3.3.10 In consideration of Owner's agreement
to provide the significant benefits and for Owner's
agreement not to challenge the Annexation described
below, City hereby grants Owner assurances that it can
proceed with development 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
"B") .
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 Planninq Documents. On October 28, 1993, city and
County adopted the otay Ranch General Development Plan/Subregional
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 Property.
1.7
adoption by the
Agreement.
city Ordinance. October 22, 1996 is the date of
city council of Ordinance No. 2690 approving this
2. DEFINITIONS.
otherwise requires:
In this Agreement, unless the context
2.1 "Annexation" means the proposed annexation of that
portion of the otay Ranch which is to be annexed into the City as
depicted on Exhibit "B".
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.
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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.
2.12 "City Council" means the City of Chula vista City
Council.
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
the Developer have
public facility;
All discretionary permits required of
been obtained for construction of the
2.13.1. 2 Plans for the construction of the
public facility have all the necessary governmental
approvals; and
2."1.3. ~. 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.
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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:
the cost
existing
Approvals
Developer
of Public
2.13.3.1 Developer's proportionate share of
of such public facility as defined in the
Project Approvals and Future Discretionary
has been provided for or otherwise assured by
to the reasonable satisfaction of the Director
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.
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 Phase 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; (Hi) 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.
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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"
public facilities described
Implementation Plan.
or "Public Facilities" means those
in the otay Ranch Facility
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.
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 January 1, 1997, this Agreement shall
be null and void. Any of the foregoing to the contrary notwith-
standing, from the date of 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 Developer is suspended for any
reason other than the default of Developer, and for a period of
time equal to the period of time during which any action by the
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 AGREEMENT TO ANNEXATION.
challenge any action taken by the City to
Parcel into the city.
Owner agrees not to
annex the otay valley
5. VESTED RIGHTS. Notwi thstanding 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,
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Owner and Developer shall have a vested right, provided however the
developer is not in default of its obligations under this Agree-
ment, and 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 with proper environmental review a request by the
Owner for any modifications to the land use designations in
the General Development Plan for the Property.
5.1.2 ci ty will notice the Owner, as required by
law, of any actions which involve the formation of assessment
districts, development impact fees or other discretionary
actions affecting the Property. In addition, City will use
its reasonable best efforts to contact the Owner regarding any
pending discretionary actions pertaining to the Property as
early as possible in the process and involve the Owner in
appropriate meetings related thereto. Owner acknowledges that
city will not be in breach of this Agreement for failure to
provide notice to Owner other than notice as required by law.
5.1.3 If the interchange improvements at Otay
Valley Road and 1-805 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 ci ty 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 prop-
erties in the area of the Annexation. In addition, if
requested by the applicant 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 com-
mitments of city are embodied in changes to the Development
Plan or the rules, regulations, ordinances, resolutions,
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
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changes shall be deemed applicable to the Property without
change to this Agreement.
5.1.7 Ci~y shall diligently process any amend-
ments, applications, maps, or other development applications.
5.1. 8
amendments to the
tionary Approvals,
jurisdiction.
city may make such modifications or
Existing Project Approvals/Future Discre-
as may be ordered by a court of competent
5.2 Development of Propertv. 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. Requlations.
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
unreasonably 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
t.his Agreement. Such an election has to be made in a manner
ccnsistent with section 5.2 of this Agreement.
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5.2.3 Modifications to Existinq proiect
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 and
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.
city acknowledges that Developer will not be required to dedicate
land for the sole purpose of satisfying an obligation of Otay
Ranch, L.P., a California limited partnership, Tiger Development
Two, a California limited partnership, Tigerheart, Inc., a
California corporation or its general partner, Village Development,
a California general partnership, or their successor(s) interest
but Developer understands that Developer shall be required to
satisfy its obligations as required by Existing and Future
Discretionary Approvals.
5.4 Time for Construction and Completion of Proiect.
Because the California Supreme Court held in Pardee Construction
Company v. citv 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 OYer 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 Vestinq. 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 vestinq 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 obtained they shall be vested to the same extent as
the Existing Project Approvals provided Developer is not in default
of its obliqations under this Aqreement.
6. DEVELOPMENT PROGRAM.
6.1 processinq of Future Discretionarv 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 Lenqth 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 Map 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. The permit may be approved or denied by the city
in accordance with the City's Municipal Code, regulations and
policies and provided Developer is in compliance with this
Agreement and with the terms of all Existing and Future Discretion-
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.._~_..__.__..__._----~~ -'^-----.------
--.-.....--
ary Approvals. In addition, the Developer shall be required to
post a bond or other reasonably adequate security required by city
in an amount determined by the City to assure the rehabilitation of
the land if the applicable Linal map does not record.
6.4 Final Maps.
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 may then process final improvement plans and
grading plans and a final map (liB" Map) for each "Super Block"
lot which the city shall process if such documents are in
compliance with the City's Municipal Code, standard policies,
and the applicable tentative map. 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 (liB" map), which map city shall
accept and process if such map is in compliance with the
City's Municipal Code, standard policies, and the applicable
tentative map, 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 Obliqations Under Subdivision
Improvement Aqreement (s) . I f 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
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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 satisfactory to the
City and as approved by the City, Developer shall be released
from liability under the subdivision improvement agreement(s)
and Developer's security shall be released.
6.4.4 Transfer of Riqhts and Obliqations 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 Obliqations to "edicate. 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 and by
the Existing and Future Discretionary Approvals. The obligations
of the Developer pursuant to this Agreement are conditioned upon:
(i) the city not being in default of its obligations under this
agreement; and (ii) the city not unreasonably preventing or
unreasonably delaying the development of the property, and (iii) if
the Agreement has been suspended in response to changes in state or
federal law or due to the city's obligations being suspended
pursuant to section 13.2, said obligations of Developer shall be
suspended for the same period of time.
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 development of property as set forth in section 5.2 herein.
7.3 Growth Manaqement Ordinance. Developer shall commit the
public facilities and City shall issue building permits as provided
in this section and in accordance with Existing Project Approvals
and Future Discretionary Approvals. 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.
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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 portions of the Resource Preserve and
of the public facilities identified in the Existing Project
Approvals/Future Discretionary Approvals are required to
comply with City requirements and are located on properties
which neither the Developer nor the City has, or will have,
title to or control of. with respect to such land for public
facilities, the city shall identify such property or proper-
ties and at the time of filing of the final map commence
timely negotiations or, wh.ere the property is wi thin 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 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. Notwithstanding the
foregoing, 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 responsibility of the land
needed for public facilities, the city shall take all reason-
able steps to establish a procedure whereby the developer is
reimbursed for such costs beyond its fair share.
7.3.2 Information Reqardinq Thresholds. Upon
Developer's written request 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 Reauired bv a Subdivision Map. As may
be required pursuant to the terms of a tentative subdivision map
approval, it shall be the responsibility of Developer to construct
the improvements required by the 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 tentative subdivision
map, City shall process for consideration to approve or deny in its
sole discretion a reimbursement agreement with the Developer in
accordance with the City's Municipal Code and Article 6 of Chapter
4 of the Subdivision Map Act, commencing with Government Code
section 66485, and section 7.5, below. This does not preclude the
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Developer or the city from considering alternative financing
mechanisms.
7.5 Facilities Which Are the Obliqations of Another
Partv. or Are of Excessive Size. capacitv. Lenqth 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 Pioneerinq 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. Notwithstanding the foregoing, if an assessment district
is used to finance said improvements and the developer has been
paid back its costs, DIF credit shall be given to those property
owners assessed for said improvements.
7.7 Insurance.
insured for all insurance
Project as pertains to the
the Project.
Developer shall name City as additional
policies obtained by Developer for the
Developer's activities and operation on
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.
7.9 Assurance of Compliance. Owner acknowledges that
the City is not requir~d to and will not take any action on any of
Owner's applications for Future Discretionary Approvals under this
Agreement, or any modifications or amendments thereof, until and
unless the City Manager determines that the Owner is not in default
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.- -'-~-- --..------.".---------...--....-
of its obligations under this Agreement including but not limited
to those set forth in section 7.~0 and 14.
7.10 Complete Construction. Developer agrees to
diligently complete construction once a building permit has been
issued for Property which is covered by this Agreement. Should
development stop once the building permits have been issued by the
city, which the city in its sole discretion determines has created
a nuisance or fire or safety hazard, the developer agrees to take
such steps necessary to cure the nuisance or hazard. Should
developer fail to do so to the City's satisfaction, the City may
take what steps it deems necessary to cure the nuisance or hazard
at developer's sole cost and expense.
8. DEVELOPMENT IMPACT FEES.
8.1 Existinq Development Impact Fee Proqram Pavments.
Developer shall pay to the City a DIF, or construct improvements in
lieu of payment, for DIF 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 Proqram. 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 Withholdinq 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
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
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Equivalent Dwelling Unit credits (EDUs). 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 develQpment 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
or Future 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 Financinq Obliqations 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 and ability 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 accommo-
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date 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 Capacitv. 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 citv and Owner Responsibilities. City will, at
least every twelve (12) months during the Term of this Agreement,
pursuant to California Government Code S65865.1, 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
fai th 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.
review at
conditions
by city or
10.4 Failure of periodic Review. City's failure to
least annually Owner's compliance with the terms and
of this Agreement shall not constitute, or be asserted
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:
made
been
11.1.1
or furnished
false in any
A warranty, representation or statement
by Owner to City is false or proves to have
material respect when it was made.
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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.
consider
submitted
11.1.3 city does not accept,
requested development permits
in accordance with the provisions
timely review, or
or entitlements
of this Agreement.
11.1. 4 All remedies at law or in equity which are
consistent with the provisions of this Agreement are available
to City and Owner to pursue in the event there is a breach
provided, however, nei ther party shall have the remedy of
monetary damages against the other except for an award of
litigation costs and attorneys fees.
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. Neither party shall have
the remedy of monetary damages against the other; provided,
howeyer, that the award of costs of litigation and attorneys'
fees shall not constitute damages based upon a breach of this
Agreement where such an award is limited to (i) the costs of
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litigation incurred by the City, and (ii) the "fee" equivalent
of city's costs for the services attributable to litigation
and representation by the City Attorney, including assistants
and staff.
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 Mortqaqee Riqhts and Obliqations. 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 Obliqation to Modifv. 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 Aqreement bv 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 Safetv Circumstances. If, as
a. result of facts, events, or circumstances presently unknown,
unforeseeable, and which could not have been known to the parties
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prior to the commencement of this Agreement, City finds that
failure to suspend this Agreement would have an impact on the
immediate health or safety of the City's residents or the City.
The following shall occur:
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 Hearinq. 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 Hearinq. 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 have
an impact on the immediate health or safety of the City's
residents or the City.
13.3 Chanqe in state or Federal Law or Requlations. 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; Meetinq. 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 Hearinq. 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
1\wdif ication or suspension which is required by such federal
01. state law or regulation. Developer, at the hearing, shall
have the right to offer testimony and other evidence. If the
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--,_.._- ,--,.._--_.._-_.._-_._,-,~._-,..._._~-
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
subject to judicial review in conformance with subsection
16.19 of this Agreement.
13.3.3 Mediation of DisDutes. 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 equa"lly 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 (IINCCPII), 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 by the city to install improvements through
the use of assessment districts, or other public financing
mechanisms, the City shall initiate and take final action to
approve or deny appropriate proceedings for the formation of such
financing district or funding mechanism, under applicable laws,
ordinances, or policies. Developer may request that the City, but
the City is not obligated to, utilize any other financing methods
which may become available under City laws or ordinances. All
costs associated with the consideration and formation of such
-21-
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.
Developer shall comply with the terms of any assessment districts
or other financing mechanisms so approved by the city for Property
covered by this Agreement and shall make timely payments as
required by said financing mechanism. The City retains its rights
to take any actions legally authorized as it deems appropriate to
guarantee payment.
15. ASSIGNMENT AND DELEGATION.
15.1 Assiqnment. 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 Deleqation/Release. 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 withheld
or delayed or conditioned. Provided, however, the city may
deny such delegation and release if the city determines that
the performance of such obligation would be jeopardized by
such transfer. 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 and as approved
by the city. 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 Bindinq Effect of Aqreement. 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.
-22-
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
If to Owner, to:
Attention: Mr. Jim Johnson
Baldwin Builders
16811 Hale Avenue
Irvine, CA 92606
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 Aqreement. 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 proiect as a Private Undertakinq. 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. The captions of this Agreement are for
convenience and reference only and shall not define, explain,
modify, construe, limit, amplify, or aid in the interpretation,
-23-
construction, or meaning of any of the provisions of this
Agreement.
16.9 Consent. Where the consent or approval of City or
Owner is required or necessary under this Agreement, the consent or
approval shall not be unreasonably withheld, delayed, or con-
ditioned.
16.10 Covenant of Cooperation.
cooperate and deal with each other in good
other in the performance of the provisions
city and Owner shall
faith, and assist each
of this Agreement.
16.11 Recordinq. 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 Delav. 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 Dealinqs. 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 eyerything which this Agreement contemplates
that such party shall do in order to accomplish the objectives and
purposes of this Agreement.
16.14 Operatinq 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
-24-
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
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 Aqreement. 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 SU9h 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
-25-
the right of the parties to modify or suspend this Agreement by
mutual consent pursuant to Paragraph 12.4.
16.19 Institution .of Leqal Proceedinq. 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 Attornevs' Fees and Costs. 'If any party commences
li tigation or other proceedings (including, wi thout limi tat ion ,
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.
The City has
representation
ment.
entered into this Agreement based upon Baldwin's
that it has the authority to enter into this Agree-
-26-
SIGNATURE PAGE TO PRE-ANNEXATION DEVELOPMENT AGREEMENT.
Dated this c2-?'7C/day of a.Jc.;CE-f ' 1996.
"CITY"
CITY OF CHULA VISTA
BY:~
SHIRLEY ON, MAYOR
"OWNER"
BALDWIN BUILDERS, a CA corporation
~
Executive Officer
I hereby approve the form nd lega~ity of the foregoing Pre-
Annexation Development Agreement this :r.D::>--ciay of f1~.{~, 1996.
Ann Moore, Interim city Attorney
City of Chula vista
By: ~ g--(Vl~~~~
-27-
- /
EXHIBIT A
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01Y OF
CHULA VISTA
PLANNING DEPARTMENT
7/IO:Q6
THE BALDWIN COMPANY
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EXHIBIT "C' I I
PRE.ANNEXATION DEVELOPMENT AGREEMENT
Olav valley Parcel 643.{)70.{) 1 Baldwin Builders 219.68
Olav Vall"" Parcel 643.{)70.{)3 Baldwin Builders 611.43
Olav Vallev Parcel 644.{)80..06 Baldwin Builders 160. \I
Olav Vall"" Parcel 644.{)80.{)7 Baldwin Builders 212.97
TOTAL U04.19
PLANNING COMMISSION AGENDA STATEMENT
Item ~
Meeting Date 1/8/97
ITEM TITLE:
Public Hearing: Variance ZA V-97-08; request to encroach into required front yard
setback for certain portions of a single family residence at 1095 Augusta Place, within
the PC (planned Community) zone - Augusta Place, L.L.c.
The proposal is for a yariance to authorize a 2'-10" encroachment into the required ITont yard setback for
certain portions of a single family residence located at 1095 Augusta Place. The semi-custom home has
already been constructed and the encroachment is an existing condition; the subject property is located within
a custom home neighborhood of the EastLake Greens planned community (see locator).
The Enyironmental Review Coordinator has determined that this project is exempt from environmental
review under CEQA as a Class 5(a) exemption.
RECOMMENDATION: That the Planning Commission adopt attached Resolution ZAV-97-08
approying the request based on the findings contained therein.
DISCUSSION:
Site Characteristics
The project site is 3,787 sq.ft. single story semi-custom home on an approximately 14,206 sq.ft. single family
residential lot within the RS-5 land use district of the EastLake Greens planned community. This subdivision,
known as Augusta Place, features custom and semi-custom homes abutting the open space of the EastLake
Greens golf course. The building pad of the subject property is at the same grade as the two adjoining lots;
a slope condition at the rear (east) of the lot creates a grade differential of about 20 feet.
Zoning and Land Use
Zone
Land Use
Site
North
South
East
West
P-C (RS-S)
P-C (RS-5)
P-C (RS-5)
P-C (OS-6)
P-C (RS-5)
Single Family Residence
Vacant
Single Family Residence
Golf Course
Vacant
Page 2, Item
Meeting Date
2
ProDosal
The request is for the authorization of an existing 2'-10" encroachment into the required front yard for
certain portions of a single family residence, thereby reducing the required front yard setback for these
areas from 20' to 17'-2", This semi-custom home has already been constructed; the structure was
permitted in February of 1996 and final inspection approval was granted in July, 1996. The residence
has been vacant since that time, although a sale is now pending.
The condition of the encroachment was brought to the attention of City officials in December 1996, upon
the complaint of a neighbor. After receiving the complaint, inspections confirmed that the residence as
constructed was encroaching into the required setback. Therefore, a variance must be obtained or the
structure must be modified to meet the required setback,
ANALYSIS:
In order to approve a variance, certain findings must be made; the two most significant will be discussed
in the following analysis.
- That a hardship peculiar to the property exists... which may include practical difficulties in developing
the property for the needs of the owner consistent with the regulations of the zone.
As noted, the subject structure is a 3,787 sq.ft. single story semi-custom home on a 14,206 sq.ft.
lot. However, as can be seen in the plans, a significant portion of the rear of the property is
sloped, thereby limiting the buildable area of this property. Since custom homes are generally
significantly larger in size than contemporary tract homes, deyeloping a single story custom home
on the limited pad area of the subject lot while preserving a usable rear yard consistent with the
nature of the residence would appear to present a hardship in the sense stated above.
- That the variance is necessary for the preseryation and enjoyment of substantial property rights
possessed by other properties in the same zoning district... and that the variance would not constitute a
special privilege.
The majority of the existing residences are two-story, and while a number of lots are vacant, it
can be expected that as a custom home community future residences will be, as are the existing,
larger than the average single family residence. This variance would simply support the ability
to construct a single-story custom residence on the subject lot.
Further, the setback requested applies to only a portion of the structure. Specifically, the 2'-10"
encroachment applies to 13'-2" lineal feet, while 10'-4" lineal feet will actually encroach only to
1'-2". Therefore, the total area requiring the variance is 25'-6", or less than 50% of the total
building's 62' frontage. Taking the recessed entry as well as the garage into account, the total
average setback for the residence is in fact 19'-17".
Page 3, Item
Meeting Date
2
As a result, staff finds that the approval of the variance would simply preserve the property owner's
ability to construct a residence that is consistent in size with other residences in the neighborhood while
still preserving usable yard areas. Given the limited nature of the requested encroachment, it further
would not represent a special privilege granted to the applicant.
Existing Condition
Normally, the Zoning Administrator would process a variance such as this. However, since this is an
existing condition (that is, a request after the fact) and since, further, a complaint has been received, the
request has been forwarded to the Planning Commission.
Nevertheless, the fact that the condition is existing does not haye bearing upon the consideration of the
request. The City has in the past considered discretionary applications for uses and conditions which
have already been established without the proper authorizations. In each case, determinations have been
made with consideration for the appropriateness of the use or structure and the ability to make the
required findings as outlined in the zoning code,
CONCLUSION:
Staff finds that in this case the residence is appropriate for the land use district and custom home
neighborhood in which the structure is located. The request will have no impact on neighboring
properties since the request is for a limited area only and further, the adjacent property on the side of
the encroachment is vacant. Lastly, staff finds that the requisite findings can be made for approval. As
a result, staff recommends approval of the variance subject to the findings and conditions stated in the
draft resolution.
Attachments
1. Planning Commission Resolution
2. Locator/Plans
3. Disclosure Statement
(m: \home\planning\patty\zav9708. fep)
ATTACHMENT 1
DRAFT PLANNING COMMISSION RESOLUTION
RESOLUTION NO. ZA V-97-08
RESOLUTION OF THE CITY OF CHULA VISTA PLANNING COMMISSION
APPROVING A V ARlANCE TO ENCROACH INTO THE REQUIRED FRONT
YARD SETBACK FOR CERTAIN PORTIONS OF A SINGLE FAMILY
RESIDENCE AT 1095 AUGUSTA PLACE, WITHIN THE P-C (PLANNED
COMMUNITY) ZONE
WHEREAS, a duly yerified variance application was filed with the City of Chula Vista Planning
Department on December 13, 1996 by Augusta Place, L.L.c., and;
WHEREAS, said application requests approval to encroach into the required front yard setback for
certain portions of a single family residence at 1095 Augusta Place, within the P-C zone; and
WHEREAS, the Environmental Review Coordinator has determined that this proposal is exempt from
environmental review under CEQA as a Class 5(a) exemption, and;
WHEREAS, the Planning Director set the time and place for a hearing on said application and notice
of said hearing, together with its purpose, was giyen by its publication in a newspaper of general circulation
in the city and its mailing to property owners within 500 feet of the exterior boundaries of the property at least
10 days prior to the hearing, and;
WHEREAS, the hearing was held at the time and place as adyertised, namely January 8, 1997 at 7:00
p.m. in the Council Chambers, 276 Fourth Ayenue, before the Planning Commission and said hearing was
thereafter closed.
NOW, THEREFORE BE IT RESOLVED THAT THE PLANNING COMMISSION DOES hereby
find, determine, resolve, and order as follows:
The above-described application for a variance is hereby approved based upon the following findings and
determinations:
1. Findings.
I . That a hardship peculiar to the property and not created by any act of the owner exists.
Said hardship may include practical difficulties in developing the property for the needs of the owner
consistent with the regulations ofthe zone; but in this context, personal, family or financial difficulties,
loss of prospective profits, and neighboring violations are not hardships justifying a variance, Further,
a previous variance can never have set a precedent, for each case must be considered only on it
individual merits.
The subject lot features a significant slope at the rear which limits the buildable pad area. This condition
poses a hardship for the deyelopment of a single story custom home consistent with other custom homes in
this subdiyision while still preserving usable yard areas.
2. That such variance is necessary for the preservation and enjoyment of substantial property
rights possessed by other properties in the same zoning district and in the same vicinity, and that
a variance, if granted, would not constitute a special privilege of the recipient not enjoyed by his
neighbors.
The approyal of this variance will preserye for the owner the property right of constructing a custom
residence consistent with other custom homes in this subdivisions. The encroachment is limited, and
the average setback for the structure will still be approximately 19'-7". Therefore, , this would not
constitute a special privilege of the recipient not enjoyed neighbors.
3. That the authorizing of this variance would be of substantial detriment to adjacent
property, and would materially impair the public interest.
The approval of this variance would not have any impact upon adjacent property; the lot adjoining the
area of encroachment is vacant, and the limited nature of the encroachment poses no impact upon the
other adjoining property.
4. That the granting of this variance would adversely affect the general plan of the city
or the adopted plan of any governmental agency,
The granting of this variance is consistent with the treatment of past projects, and would not affect the
General Plan or the adopted plan of any governmental agency.
II. This variance shall be approved subject to the following conditions:
A. This variance shall be approved only for the portions of the residence currently encroaching
as depicted in plans dated December 16, 1996 and attached hereto as Exhibit "A",
B. This resolution shall not be deemed effective until it has been recorded against the property
known as 1095 Augusta Place.
III. A copy of this resolution shall be transmitted to the applicant.
PASSED AND APPROVED BY THE PLANNING COMMISSION OF CHULA VISTA, CALIFORNIA,
this 8th day of January, 1997, by the following vote, to-wit:
AYES:
NOES:
ABSENT:
Frank Tarantino, Chair
Nancy Ripley, Secretary
ATTACHMENT 2
LOCATOR/PLANS
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CHULA VISTA PLANNING DEPARTMENT
LOCATOR PROJECT PROJECT DESCRJPTIQN,
C) APPUCANT: VARIANCE
PROJECT 1095 Augusta Place Request: Proposal to reduce the front yard setback,
ADDRESS,
SCALE, FILE NUMBER.:
NORTH No Scale ZAV-97 -08
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m:\home\planning\carlos\locators\zav9708.cdr 12/17/96
ATTACHMENT 3
DISCLOSURE STATEMENT
11,1'. .11' OF CHULA VISTA DISCLOSURE
\rEMENT
You arc required to file d StJ{cmcnt of Di~cl()surc ()f certain ownership or financial in{Cr('~~ls, payments, or campaign
contrll1ullons, un alJ matters which WI!! require discretionary action on the part of the City Council, Planning Commission, and
all other official bodies. The following Information must be disclosed:
I. List the names of all persons having a financiJI intcrc.'\' in the property which is the suhjcCI of the application or the
contract, e.g., owner, applicant, contractor, suhcontractor, material supplier.
The EastLake Company
The Brehm Companif'''. r. r. c:
2. [fany person' identified pur,uant to (1) above is a corporation or partnership. list Ibe names of all individuals owning
more than 10% of the shares in Ihe corporation or owning any partnership interest in the partnership.
The EastLake Companv
The Brehm Companif's. r. r. c:
- Boswell Properties Inc.
Forrest W. Brehm
The Tulaqo Company
- Brehm Investments, Inc.
l. If an)' person- identified pursuant 10 (1) ahovc is non-profit organil.ation or a trust, list the names of any person
serving as director of the non-profit organization or as tru.stee or beneficiary or trustor of the trust.
N/A
4. Have you had more than S250 worth of busines.' transacted with any member of the City staff, Boards, Commissions.
Commillees, and Council within the past twelve months" Yes_ No-x- If yc.s, please indicate person(s): _
5. Please identify each and every person, including any agents, employees, consultants, or independenl conlractors who
you have assigned to represent you before the City in this mailer.
Stormi Klassen
Bruce N. Sloan
6. Have you and/or your officers or agents. in the aggregate, contrihuted more than 51,000 to a Councilmember in the
current or preceding election period? Yes_ No~ If yes, state which Councilmember(s);
Date: npr
1 7
1 ggh
, , '(NOTE; Attacb additional pages as necessary) , )'
I~
gnature of contractor/applicant
Stormi Klassen
Print or type name of contractor/applicant
. r~S()II is dcfincd as: "AllY uldi~'ldwll, {Inn, co.paffllf.-TShip, joilU ~'aUUrC', aSJoc;alirJII, social club. freJtmwl orgeJfliwtiml, cnrpofatio/l, estate, trust, rtceiver, S)ndicale,
this wid any olha COIJ./Il)', city and COUIll')', city municipality, district., or nther polilical subdi~'i.sio/l, or ally Oilier group or combillolioll oCling as a WUL"
PLANNING COMMISSION AGENDA STATEMENT
Item 3
Meeting Date 1/8/97
ITEM TITLE:
Public Hearing: Variance ZA V -96-13; request to increase maximum lot
coyerage to 47% for an overhead shade cloth structure used in conjunction
with home orchid growing at 1341 Park Drive, within the R-1 (Single
Family Residential) zone - Eugenia Hammond
As a result of surgery, the applicant is temporarily immobilized and has requested a continuance
for a one-month period. Staff recommends that this item be continued to the February 12, 1997
meeting.
PLANNING COMMISSION AGENDA STATEMENT
Item 4
Meeting Date 1/8/97
ITEM TITLE:
Public Hearing: SUPS-97-02; request for a service station remodel to
include gasoline sales, conyenience store, and carry-out and drive-through
fast food sales at 902 Broadway, within the C- T (Thoroughfare
Commercial zone - Texaco Refining and Marketing, Inc.
Due to unresolyed issues related to project mitigation measures, the applicant has requested that
this item be continued to a date uncertain. Staff therefore recommends that this item be
continued indefinitely,