HomeMy WebLinkAboutPlanning Comm Reports/2000/01/26
AGENDA
CITY PLANNING COMMISSION
Chula Vista, California
6:00 p.m.
Wednesday, January 26, 2000
Council Chambers
Public Services Building
276 Fourth Avenue, Chula Vista
CALL TO ORDER
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.
REPORT:
Consideration of the request of Coors Amphitheatre to change the
name of Otay Rio Road to Entertainment Circle
Staff: Debra Depratti, Principal Community Development Specialist
2. PUBLIC HEARING: PCM-00-16; Consideration of an Amended and Restated
DeveloPIIJent Agreement Between the City of Chula Vista and
the EastLake Company, LLC for EastLake III (Trails, Woods,
Vista's, Business Center Expansion, Olympic Training Center
Site and Land Swap)- The EastLake Company LLC.
Project Planner: Luis Hernandez, Senior Planner
DIRECTOR'S REPORT:
League Planners Institute
Review upcoming meeting calendar.
Discussion of February 13 workshop topics
COMMISSIONER COMMENTS:
ADJOURNMENT:
to a Planning Commission meeting on February 9, 2000.
COMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT
The City of Chula Vista, in complying with the American with Disabilities Act (ADA), requests
individuals who require special accommodations to access, attend, and/or participate in a City
meeting, activity, or service, request such accommodations at least forty-eight hours in advance
for meetings, and five days for scheduled services and activities. Please contact Diana Vargas
for specific information at (619) 691-5101 or Telecommunications Devices for the Deaf (TOO)
at 585-5647. California Relay Service is also available for the hearing impaired.
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PLANNING COMMISSION AGENDA STATEMENT
ITEM No.
MEETING DATE 1/28/00
ITEM TITLE:
CONSIDERATION OF THE REQUEST OF COORS AMPHITHEATRE TO
CHANGE THE NAME OF OTAY RIO ROAD TO ENTERTAINMENT CIRCLE
RESOLUTION RECOMMENDING THAT THE CITY COUNCIL APPROVE THE
NAME CHANGE OF OT A Y RIO TO ENTERTAINMENT CIRCLE
5, 1999 the City Council approved changing the name of Otay Valley Road to Main Street from west of
Interstate 805 east to SR 125. The portion of Otay Valley Road from where it turns south to the City boundary was
renamed Heritage Road.
At the time of the Council action the Coors Amphitheatre asked to meet with staff to find a solution that would remove
any possibility of future address changes for the Amphitheatre. In November 1999, Coors Amphitheatre requested
that Otay Rio, Spyglass Hill and Castle Pines Avenue be changed to Entertainment Circle (see attached map). Staff
worked with Knott's Berry Farm to receive their input and agreement to the name change. Otay Rio Road is the only
public street therefore it requires Planning Commission! City Council action to change. The Amphitheatre and Water
Park front on the private streets and the mailing addresses are now 2050 and 2052 Entertainment Circle,
respectively. The Environmental Projects Manager has determined that the project is exempt under Section 15301
(c) of CEQA relating to minor alterations to existing highways or streets.
It is recommended that the Planning Commission adopt the attached Resolution recommending that the City Council
approve the name change of Otay Rio Road to Entertainment Circle.
Not applicable.
As mentioned above, on October 5, 1999, the City Council approved changing the name of Otay Valley Road to Main
Street from west of Interstate 805 east to SR 125. The portion of Otay Valley Road from where it turns south to the
City boundary was renamed Heritage Road.
Coors Amphitheatre worked with staff to identify a solution that would remove any possibility of future address
changes for the Amphitheatre. In November 1999, Coors Amphitheatre requested that Otay Rio, Spyglass Hill and
Castle Pines Avenue be changed to Entertainment Circle. Staff worked with the other affected property owner,
Knott's Berry Farm, to receive their input and agreement to the name change. Changing the addresses to the
internal loop road removes any possibility of future address changes.
PAGE 2. ITEM
ME~NG DATE 1/28/00
Otay Rio Road is the only public street therefore it requires Planning Commission and City Council action to change.
Staff notified the Postmaster regarding the name change of the private streets, Spyglass Hill and Castle Pines, to
Entertainment Circle. The Amphitheatre and Water Park front on the private streets and the mailing addresses are
now 2050 and 2052 Entertainment Circle, respectively.
The affected property owners were notified by mail on January 14, 2000. The project is exempt under Section 15301
( c) of CEQA relating to minor alterations to existing highways or streets.
Staff recommends that the Planning Commission adopt the Resolution recommending that the City Council approve
the name change of Otay Rio Road to Entertainment Circle for the following reasons:
. This name change completes the loop road of Entertainment Circle;
. Precludes the possibility of future address changes for the Amphitheatre and Water Park; and
. Both affected property owners want the name changed.
ATTACHMENTS:
1. Planning Commission Resolution
2. Locator Map
3. City Councit Resolution
H:\HOME\COMMDEV\STAFF.REP\ 1\25\OOlotayriopc.doc
RESOLUTION NO.
RESOLUTION OF THE CITY OF CHULA VISTA PLANNING COMMISSION
RECOMMENDING THAT THE CITY COUNCIL ADOPT A RESOLUTION
APPROVING CHANGING THE NAME OF OTA Y RIO ROAD TO
ENTERTAINMENT CIRCLE
WHEREAS, the street which is the subject matter of this resolution is diagrammatically
represented in Exhibit A attached hereto and incorporated herein by this reference, and commonly known
as Otay Rio Road; and
WHEREAS, on October 5, 1999, the City Council approved changing the name of Otay Valley
Road to Main Street from west of Interstate 805 east to SR 125; and the portion of Otay Valley Road
from where it turns south to the City boundary to Heritage Road; and
WHEREAS, at the time of the Council action the Coors Amphitheatre asked to meet with staff to
find a solution that would remove any possibility of future address changes for the Amphitheatre; and
WHEREAS, in November 1999, Coors Amphitheatre requested that Otay Rio, Spyglass Hill and
Castle Pines Avenue be changed to Entertainment Circle (see attached map); and
WHEREAS, Otay Rio is the only public road, therefore it requires Planning Commission/City
Council action to change the name; and
WHEREAS, the Environmental Projects Manager determined that this project is exempt from
environmental review under guidelines found in Section 15301(c) of the California Environmental
Quality Act; and
NOW, THEREFORE BE IT RESOLVED THAT NOW, THEREFORE, BE IT RESOLVED
THAT from the facts presented to the Planning Commission, the Commission has determined that the
name change is beneficial due to the following:
. this name change completes the loop road of Entertainment Circle;
. precludes the possibility of future address changes for the Amphitheatre and Waterpark; and
. both affected property owners want the name changed.
NOW, THEREFORE, BE IT RESOLVED THAT THE PLANNING COMMISSION recommends that
the City Council adopt the Resolution changing the name of Otay Rio Road to Entertainment Circle. And
a copy of this resolution be transmitted to the owners of the property and the City Council.
Presented by:
Jim Sandoval
Assistant Director of Planning and Building
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Site Map
Conmunity Development Department
276 Fourth Avenue
Chula Vista, CA 91910
619.691.5047
mY OF 619.476.5310
CHUIA VISTA cvcomdev@::i.chula-vista.ca.us
(1)
January 2000
RESOLUTION
RESOLUTION OF THE CITY COUNCIL OF CHULA VISTA CHANGING
THE NAME OF OTAY RIO ROAD TO ENTERTAINMENT CIRCLE
WHEREAS, the street which is the subject matter of this resolution is diagrammatically
represented in Exhibit A attached hereto and incorporated herein by this reference, and commonly known
as Otay Rio Road; and
WHEREAS, on October 5, 1999, the City Council approved changing the name of Otay Valley
Road to Main Street from west of Interstate 805 east to SR 125; and the portion of Otay Valley Road from
where it turns south to the City boundary to Heritage Road; and
WHEREAS, at the time of the Council action the Coors Amphitheatre asked to meet with staff to
find a solution that would remove any possibility of future address changes for the Amphitheatre; and
WHEREAS, in November 1999, Coors Amphitheatre requested that Otay Rio, Spyglass Hill and
Castle Pines Avenue be changed to Entertainment Circle (see attached map); and
WHEREAS, the Environmental Projects Manager determined that this project is exempt from
environmental review under guidelines found in Section 15301 (c) of the California Environmental Quality
Act; and
WHEREAS, the Planning Commission approved on ~
recommending that the City Council approve the name change; and
"'"I the Resolution
WHEREAS, it has been determined that the name change is beneficial due to the following:
. this name change completes the loop road of Entertainment Circle;
. precludes the possibility of future address changes for the Amphitheatre and Waterpark; and
. both affected property owners want the name changed.
NOW, THEREFORE BE IT RESOLVED THAT the City Council of the City of Chula Vista does
hereby approve the changing of the name of Otay Rio Road to Entertainment Circle. Pursuant to Chapter
12.44 of the Chula Vista Municipal code, the City Council finds that the name change is in the public
interest and will help eliminate confusion and uncertainty.
Presented by
Approved as to form by
Chris Salomone
Director of Community Development
John M. Kaheny
City Attorney and Agency Counsel
PLANNING COMMISSION AGENDA STATEMENT
Item: _
Meeting Date: I 1.2 '/ 00
ITEM TITLED
Public Hearing: PCM-OO-16, Consideration of an Amended and Restated
Development Agreement Between the City of Chula Vista and the EastLake
Company, LLC for EastLake III (Trails, Woods, Vista's, Business Center
Expansion, Olympic Training Center Site and Land Swap)- The EastLake
Company LLC.
This item is the consideration of an amended and restated development agreement for EastLake Ill.
The original development agreement for EastLake III was executed and recorded in April, 1990 and
is set to expire in April, 2000. Both the City and EastLake are desirous of extending the term of the
agreement for another 10 years to April, 2010. The basic provisions of the agreement remain
unchanged; the focus of the amendment is an update and change to reflect contemporaneous
conditions in city codes and ordinances. Also, the provisions of certain park agreements entered into
subsequent to 1990 are incorporated herein so that all of those provisions are consolidated into one
document. The amended development agreement will cover approximately 1,514 acres of the
original approximately 3,000 acres of EastLake property.
The proposed project involves the following parcels: a) 108.8 acres located north of Olympic
Parkway between the future SR-125 freeway alignment and the existing EastLake Greens
development boundaries (Southern "Land Swap" parcel); b) 24.7 acres located on the south side of
Otay Lakes Road west of the future SR-125 freeway (Northern "Land Swap" parcel); 3) 322.2 acres
located east of Hunte Parkway between Otay Lakes Road and Olympic Parkway (EastLake Trails);
4) 1 08 acres located on the north side of,Gtay Lakes Road between Lane A venue and Hunte Parkway
(EastLake Business Center Phase II); and 5) 950 acres east of Hunte Parkway known as EastLake
III GDP (Woods, Vistas neighborhoods and Olympic Training Center) (see Locator).
The Environmental Review Coordinator has determined that the amended and restated development
agreement between the City of Chula Vista and the EastLake Company, LLC. for the EastLake III
is not a project as defined by the California Environmental Quality Act (CEQA Guidelines, Section
15378).
RECOMMENDATION: Adopt attached Resolution PCM-00-16 recommending that the City
Council approve the proposed amendment and restated development agreement for EastLake III.
,
Page 2, Item: ---1.
Meeting Date: 1/1212000
BACKGROUND:
As indicated, the developer and the City entered into an agreement in 1990. At that time, the primary
reason for entering into the agreement was the developer's willingness to donate 150 acres ofland
to the Olympic Training Center "alued at $13 million, and to make capital contributions of $3
million, and to provide approximately $8 million in public infrastructure improvements to the San
Diego National Sports Foundation and the U.S. Olympic Training Center. The developer also
accelerated certain other public improvements required for the Project. In exchange, the City vested
the developer's entitlements, including the intensity and density of development then approved for
EastLake III, and provided certain other protections and benefits.
Currently, the impetus for amending and extending the agreement is the developers agreement to
make available certain lands needed for the "University Site" within Otay Ranch and the Eastern
Territories. Per a Letter ofIntent between the City, the Developer, and Western Salt, the City may
offer certain real property to the University of California subject to the City attaining ownership of
the University Site in accordance with a subsequent Offer Agreement which memorializes the terms
of the Letter of Intent. Approval of the amedmended and restated EastLake III Development
Agreement will implement a key provision which is linked to bringing EastLake's portion of the
University Site (see Locator) to fruition.
DISCUSSION:
As mentioned, the term of the agreement is being extended and the text updated to reflect the current
policies, ordinances, and procedures of~e City. The agreement covers EastLake Trails, the Woods,
the Vistas, the expansion of the Business Park, the Olympic Training Center, and the Land Swap
Parcels. These properties are part of the master planning underway by the developer as the third
phase of the EastLake Planned Community. The development agreement benefits the City and the
Developer in various ways as described below.
Benifds to the City
Beyond the University consideration, the most significant benefit to the city will be in the area of
parks. The Developer will advance funding for the construction of park facilities to meet the city's
needs. The developer has already contributed advance park funding in the amount of $1 ,391 ,260
with the tentative map approval for EastLake Trails per the current agreement, and will be
contributing another $2,135,000 following approval of the first residential tentative map in EastLake
III beyond the Trails. This amount shall be adjusted from April, 1990 based upon the cost of
construction indices published in the current Engineering News Record.
The agreement also memorializes the remaining parkland obligations as carried forward from the
1989 EastLake Park Agreement. Essentially, EastLake will be providing a community park (Salt
Creek Community Park) in the EastLake Trails Community and 17 acres of neighborhood parks are
also to be provided in the future Woods and Vistas Communities.
Z
Page 3, Item: -1..
Meeting Date: 1/1212000
Finally, the agreement incorporates the terms and provisions of a March, 1996 Escrow Agreement
between the City and EastLake which resolved then outstanding park and recreation facility issues.
The pertinent provision of that agreement is an extension of a payment due by EastLake ($880,738
as of July I, 1999) toward the construction of a community center (or gymnasiwn) in the Salt Creek
Community Park. The payment is generally tied to the city's decision to construct a community
center in the Salt Creek Park although there are certain out provisions. The city has to advise
EastLake within 12 months of construction of the community center of its decision to locate the
community center in the park and has to construct the community center within 18 months of the
demand for payment of the escrow amount. Since the fmal plans for the Salt Creek Community Park
have not been approved and since a new Parks and Recreation Master Plan is under preparation
(tentatively scheduled for City Council consideration in the Spring of2000), it is premature to call
up the payment by EastLake. The amended agreement continues the "escrow amount" with interest
and allows the City to require payment on the earlier of June 1,2002 or within 90 days of City's
written request. Should EastLake not be able to deliver the community center land site or if the City's
contribution exceeds the "escrow amount". the City may locate the community center in any
alternate location in the Eastern Territories. Per the agreement, EastLake receives a partial PAD fee
credit for the community center payment which will be credited toward their EastLake III PAD
advance. The land on which the community center would be located will remain a part of the Salt
Creek Community Park irrespective of whether or not the community center is built therein.
Beneflts to the DeveLoper
The agreement provides nwnerous sigpificant benefits to the Developer in a similar fashion to the
original agreement. First, the agreement term, which would otherwise expire next year, will be
extended another 10 years. Second, the agreement assures the Developer of the vested right to
proceed with the development of the Property to the approved land uses, densities and intensity of
uses.
Third, the agreement provides the Developer with certainty that the land use regulations and policies
applicable to the development of the Property will remain unmodifed during the term of the
agreement except as further clarified by the provisions of the document (i.e. should new land use
regulations and policies be applied to all private development east on-805 then they would equally
apply to EastLake as long as they do not prevent the development of the Property to the land uses,
densities, and intensity specified or authorized by the Existing Project Approvals).
Fourth, the agreement assures the Developer that Future Discretionary Reviews and Approvals,
when granted by City, shall become, for purposes of the agreement, existing Project Approvals. In
sum, these benefits are unchanged from the original agreement and are customary to the benefits the
City has provided in its various other development agreements.
J
Page 4, Item: ---L
Meeting Date: 1/1212000
CONCLUSION
For the reasons stated above staff has concluded that amending and restating the EastLake III
development Agreement, as shown in the attached strikedl underlined version of this agreement (see
Attachment 4) is consistent with the adopted City General Plan, EastI..ake II and III General
Development Plan and other related City policies.
Attachments
1. Locator
2. Draft Planning Commission Resolution
3. Draft City Council Ordinance
4. Amended EastLake III Development Agreement
5. Disclosure Statement
A;\PCM-OOI6.RPT
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C HULA VISTA PLANNING AND BUILDING DEPARTMENT
LOCATOR ~~ THE EASTlAKE COMPANY PROJECT DEScRIPTION:
C9 PROJECT Eastlake Approval or an amend and restated development
AN\D"'1S' agreement for Eastlake III.
SCALE: FILE NUMBER: S-
NORTH No Scale PCM - 00-16
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RESOLUTION NO.PCM-OO-16
RESOLUTION OF THE CITY OF CHULA VISTA PLANNING COMMISSION
RECOMMENDING THAT THE CITY COUNCIL APPROVE THE AMENDED AND
RESTATED DEVELOPMENT AGREEMENT BETWEEN THE CITY OF CHULA
VISTA AND THE EASTLAKE COMPANY, LLC. FOR EASTLAKE III (TRAILS,
WOODS, VISTAS BUSINESS CENTER PHASE II, OLYMPIC TRAINING CENTER
AND "LAND SWAP" PARCELS).
WHEREAS, on December 18,1999, The EastLake Company, LLC ("Developer") filed an
application requesting approval of an amended and restated Development Agreement for EastLake
III, originally approved in April 1990 and set to expire in April 2,000 ("Project"); and,
WHEREAS, the proposed project involves the following parcels: a) 108.8 acres located north
of Olympic Parkway between the future SR-125 freeway alignment and the existing EastLake Greens
development boundaries (Southern "Land Swap" parcel); b) 24.7 acres located on the south side of
Otay Lakes Road west of the future SR-125 freeway (Northern "Land Swap" parcel); 3) 322.2 acres
located east of Hunte Parkway between Otay Lakes Road and Olympic Parkway (EastLake Trails);
4) 108 acres located on the north side ofOtay Lakes Road between Lane A venue and Hunte Parkway
(EastLake Business Center Phase II); and 5) 950 acres east of Hunte Parkway known as EastLake
III GDP (Woods, Vistas neighborhoods and Olympic Training Center) ("Project Site"); and,
WHEREAS, the project consists of amending and restating a Development Agreement for
EastLake III. The original development agreement was executed and recorded in April 1990 and set
to expire in April 2000. The proposal is to extend the term of the agreement another ten years to
April 2010. The provisions of the original agreement remain unchanged. The focus of the
amendment is to update the Development Agreement to reflect current City Codes and Ordinances;
and, ~
WHEREAS, the Environmental Review Coordinator has determined that the amended and
restated development agreement between the City of Chula Vista and the EastLake Company, LLC.
for the EastLake III is not a project as defined by the California Environmental Quality Act (CEQA
Guidelines, Section 15378); and,
WHEREAS, the Planning Conunission having received certain evidence on January 12, 2,000,
as set forth in record of it proceedings herein by reference as is set forth in full, recommends that the City
Council approve the proposed amended and restated Development Agreement for EastLake III; and, the
approval; and,
WHEREAS, the Planning Director set the time and place for a hearing on said Project and notice
of said hearing, together with its purpose, was given by its publication in a newspaper of general
circulation in the City, mailing to property owners within 500 ft. 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 advertised, namely January 12, 2000 at
6:00 p.m. in the Council Chambers, 276 Fourth Avenue, before the Planning Commission and said hearing
was thereafter closed.
~
NOW, THEREFORE, BE IT RESOLVED THAT TIlE PLANNING COMMISSION DOES
hereby recommend that the City Council adopt the attached Draft City Council Ordinance approving the
Project in accordance with the attached Draft City Council Ordinance.
BE IT FURTIiER RESOLVED that a copy of this resolution be transmitted to the City Council.
BE IT FURTIlER RESOLVED TIlA T THE PLANNING COMMISSION
approval of the Project.
to recommend
AYES:
NOES:
ABSENT:
ABSTAINED:
John Willett
Chairperson
Diana Vargas, Secretary
. *
(A:\PCM-9706.PCR)
7
ORDINANCE NO.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
ADOPTING AN AMENDED AND RESTATED DEVELOPMENT AGREEMENT
BETWEEN TIIE CITY OF CHULA VISTA AND TIIE EASTLAKE COMPANY,
LLC FOR EASTLAKE III (TRAILS, WOODS VISTAS, BUSINESS CENTER
EXPANSION, OLYMPIC TRAINING CENTER AND LAND SWAP)
I. RECITALS
A. Project Site
WHEREAS, the areas of land which are the subject of this Ordinance are
diagrammatically represented in Exhibit A and hereto incorporated herein as Exhibit
A; and for the purpose of General description herein consist of: a) 108.8 acres located
north of Olympic Parkway between the future SR-125 freeway alignment and the
existing EastLake Greens development boundaries (Southern "Land Swap" parcel);
b) 24.7 acres located on the south side of Otay Lakes Road west of the future SR-125
freeway (Northern "Land Swap" parcel); 3) 322.2 acres located east of Hunte
Parkway between Otay Lakes Road and Olympic Parkway (EastLake Trails); 4)108
acres located on the north side of Otay Lakes Road between Lane Avenue and Hunte
Parkway (EastLake Business Center Phase II); and 5) 950 acres east of Hunte
Parkway known as EastLake III GDP (Woods, Vistas neighborhoods and Olympic
Training Center) ("Project Site"); and,
B. Project; Application for Discretionary Approval
WHEREAS, on December 18,1999, The EastLake Company, LLC ("Developer")
filed an application requesting an extension and restatement of the EastLake III
Development Agreement originally approved in April 1990 ("Project"); and,
C. Prior Discretionary Approvals
WHEREAS, The EastLake III Development Agreement was previously approved by
City Council on April February 27, 1990 Ordinance No. 2356; and,
WHEREAS, the EastLake III General Development Plan was previously approved
by City Council Resolution No. 15413; EastLake Greens Sectional Planning Area
(SPA) plan previously approved by City Council Resolution No. 15199 ("EastLake
Greens (SPA) plan") and Planned Community District Regulations previously
approved by City Council Ordinance No. 2317 (EastLake II-EastLake I Expansion-
Planned Community District Regulations) on July 18,1989.
D. Planning Commission Record on Applications
WHEREAS, the Planning Commission held an advertised public hearing on said
project on January 12,2000, and voted to recommend that the City Council approve
the extension and restated EastLake III Development Agreement; and,
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The proceedings and all evidence introduced before the Planning Commission at
their public hearing on this Project held on November I 1, 1998, and the minutes and
resolutions resulting therefrom, are hereby incorporated into the record of this
proceeding.
E. City Council Record on Applications
WHEREAS, a duly called and noticed public hearing was held before the City
Council of the City of Chula Vista on January 18, 2000 on the Discretionary
Approval Application, and to receive the recommendations of the Planning
Co~ssion, and to hear public testimony with regard to same; and,
II NOW, THEREFORE, the City of Chula Vista does hereby find, determine and ordain as
follows:
A. CERTIFICATION OF COMPLIANCE WITH CEQA
The Environmental Review Coordinator has determined that the amended and
restated development agreement between the City of Chula Vista and the EastLake
Company, LLC. for the EastLake III is not a project as defined by the California
Environmental Quality Act (CEQA Guidelines, Section 15378).
B. COMPLIANCE WITH THE CITY GENERAL PLAN
The City Council has detennined that the Development agreement as proposed to be
amended and restated, is consistent with the City's General Plan, all applicable
mandatory and optional elements of the General Development plan for EastLake III
as well as all other applicable policies and regulations of the city in that the
Development Agreement would vest the right of the Developerto develop the subject
property in a manner consistent with the regulations found in those documents; and,
C. APPROVAL OF AMENDED AND RESTATED DEVELOPMENT AGREEMENT
In accordance with Section 65867.5 of the Government Code, the City Council of the
city of Chula Vista hereby approves the document entitled "Amended and Restated
Development Agreement between the City of Chula Vista and the EastLake
Company, LLC for EastLake III (Trails, woods, Vistas, Business Center Expansion,
Olympic Training Site and Land Swap Parcels)," and designated as City document
contract number as represented in Exhibit B.
III. INVALIDITY; AUTOMATIC REVOCATION
It is the intention of the City Council that its adoption of this Ordinance is dependent upon
the enforceability of each and every term, provision and condition herein stated; and that in
the event that anyone or more terms, provisions or conditions are determined by a Court of
competent jurisdiction to be invalid, illegal or unenforceable, this resolution shall be deemed
to be automatically revoked and of no further force and effect ab initio.
,
IV. EFFECTIVE DATE
This ordinance shall take effect and be in full force on the thirtieth day from and after its
adoption.
V RECORDATION OF DOCUMENT
The City Clerk is hereby directed to record the development agreement in the office of the
County Recorder.
Presented by
Approved as to form by
Robert A. Leiter
Director of Planning
John Kaheny
City Attorney
I
(H:\homelp1anninglluislpcm-00 16.ord)
I D
- - ~_.._...-_._-_.__..__._,----_._._.
RECORDING REQUESTED BY
WHEN RECORDED RETURN TO:
Mr. William T. Ostrem
The EastLake Company, LLC
900 Lane Avenue, Suite 100
Chula Vista, CA 91914
Space Above This Line For Recorder's Use Only
AMENDED AND RESTATED DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF CHULA VISTA
AND
THE E1\STLAKE COMPANY, LLC
FOR
EASTLAKE III
(TRAILS, WOODS, VISTAS, BUSINESS CENTER EXPANSION,
OLYMPIC TRAINING SITE AND LAND SWAP)
,(
SDl1303462.4
70099-157583
------.-..--.----.--------
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RECORDING REQUESTED BY
WHEN RECORDED RETURN TO:
Mr. William T. Ostrem
The EastLake Company, LLC
900 Lane Avenue, Suite 100
Chula Vista, CA 91914
Space Above This Line For Recorder's Use Only
AMENDED AND RESTATED DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF CHULA VISTA
AND
THE EASTLAKE COMPANY, LLC
FOR
EASTLAKE III
(TRAILS, WOODS, VISTAS, BUSINESS CENTER EXPANSION,
OLYMPIC TRAINING SITE AND LAND SWAP)
12..
5011303462.4
70099-157583
Section 1.a. of the Letter of Intent. The parties intend this Agreement to supersede and replace
the Original Development Agreement in its entirety
1.6 City's Authority to Enter into Development Agreement. City, as a charter
city, is authorized under Resolution No. 11933, California Government Code 1165864, et seQ., its
Charter, and its self-rule powers to enter into binding development agreements with persons
having legal or equitable interests in real property for the purposes of assuring, among other
things, (i) certainty as to permitted land uses in the development of such property, (ii) the
construction of adequate public facilities to service such property, and (iii) the provision of
equitable reimbursement for the construction of public facilities of excessive size or capacity.
I. 7' The Property; Developer's Interest. Developer holds an enforceable right
to acquire the Property depicted in Exhibit A-I and described in Exhibit A-2, both of which are
attached hereto and incorporated herein (the "Property"). The development of the Property,
which consists of projects commonly known as EastLake Trails, EastLake Woods, EastLake
Vistas, an expansion of the EastLake Business Center, the Olympic Training Center and the
Land Swap Parcel, is the subject of this Agreement. Developer is master-planning the Property
as the third phase of the EastLake Planned Community. Developer represents that it has a legal
interest in the Property and that all other persons holding any legal or equitable interest in the
Property will be bound by this Agreement.
1.8 Benefits to City. As facilitated by this Agreement, the construction of the
EastLake III General Development Plan Area and the Land Swap Parcel pursuant to the General
Development Plans and Text and the Municipal General Plan of City, as well as the anticipated
public facilities required by the Public Facility Financing Plan, will result in the design,
financing and construction of millions of dollars of public facilities and amenities in conjunction
with the development of residential, commercial, recreational and open space uses. Specifically,
by virtue of the development ofEastL~ke III and the Land Swap Parcel, City will derive the
following benefits:
1.8.1 The funding of construction of park facilities meeting City's
requirements in accordance with City's Ordinances and this Agreement; and
1.8.2 The funding or construction of streets designed to provide
adequate and safe transportation to its residents; and
1.8.3 Developer has completed the donation of approximately 150 acres
with a market value in excess of Thirteen Million Dollars ($13,000,000.00) as a site for the
Olympic Training Center; and
1.8.4 Developer has contributed Three Million Dollars ($3,000,000.00)
in- capital contributions and approximately Eight Million Dollars ($8,000,000.00) in public
infrastructure to the San Diego National Sports Foundation and the U.S. Olympic Committee
towards the provision of the Olympic Training Center, and the extension of municipal services
necessary for the site's operation; and
1.8.5 Developer has contributed advance funding for park facilities of no
less than One Million Three Hundred Ninety-One Thousand Two Hundred Sixty Dollars
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($1,391,260.00) following the approval of the first residential tentative map for EastLake Trails;
and will contribute Two Million One Hundred Thirty-Five Thousand Dollars ($2,135,000.00) for
the first residential map in EastLake III (other than Eastlake Trails) as against the Project's
ultimate PAD Fees; and
1.8.6 Sewer, water, sales tax and property tax revenues; and
1.8.7 Developer's contribution towards the provision of facilities of
regional significance both within and outside the boundaries of the Property.
1.9 Intentions of Parties in Entering into This Agreement. Developer and City
intend to enter into this Agreement for the following purposes;
1.9.1 To assure Developer's participation in the construction and
financing of public facilities pursuant to one or more Financing Plans which shall be formulated
prior to the commencement of any private or public construction activities on the Property; and
1.9.2 To provide Developer with certainty that the land use regulations
and policies applicable to the development of the Property will remain unmodified during the
term of this Agreement except as provided for herein; and
1.9.3 To assure Developer of its vested right to proceed with the
development ofthe Property to the land uses, densities and intensity of uses as provided below;
and
1.9.4 To assure Developer that Future Discretionary Reviews and
Approvals, when granted by City, shall become, for purposes of this Agreement, Existing Project
Approvals; and
I
1.9.5 Developer has provided 150 acres ofland, Three Million Dollars
($3,000,000.00) in capital and approximateiy Eight Million Dollars ($8,000,000.00) in public
infrastructure to the benefit ofthe San Diego National Sports Foundation and/or the U.S.
Olympic Committee, in return for such donation and the other covenants contained herein as the
total consideration for the vesting of Developer's rights herein, including the vesting of Existing
Project Approvals of Future Discretionary Reviews and Approvals upon their granting by City,
without the need for further consideration or compensation to City in return for such vesting.
1.10 Adoption of Ordinance Approving Agreement. The Original
Development Agreement was first introduced on February 6, 1990, and on
19_; the City Council adopted Ordinance No. approving the Original Development
Agreement. The Ordinance took effect on , 19_. This Agreement was first
introduced on ,1999, and on ,1999, the City Council adopted
Ordinance No. approving this Agreement. The Ordinance will take effect on
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1.11 Findings of City Council. The City Council has found that this Agreement
is consistent with City's General Plan and all applicable mandatory and optional elements
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thereof, the General Development Plans and Text for the Property, as well as all other applicable
policies and regulations of City.
2. Definitions. In this Agreement, unless the context otherwise requires:
2.1 "Builder" or "Merchant Builder" means a developer to whom Developer
has sold, leased or conveyed property within the Property for the purpose of its improvement for
residential, commercial or industrial use.
2.2 "City Council" means the City Council of the City ofChula Vista.
2.3. "Commit" means all of the following requirements have been met with
respect to any public improvement.
the improvement;
2.3, I All discretionary permits have been obtained for construction of
2.3.2 Plans for the construction of the improvement have all the
necessary governmental approvals; and
2.3.3 Adequate funds (i.e., letters of credit, cash deposits or performance
bonds) are available such that City can construct the improvement if either (i) construction has
not commenced within 30 days of issuance of a notice to proceed by the Director of Public
Works, or (ii) construction is not progressing towards completion in a manner considered
reasonable to the Director of Public Works.
2.4 "Developer" means The EastLake Company, LLC, a California limited
liability company as successor-in-interest to EastLake Development Company, a California
general partnership, and the legal pers~ns to which or to whom it may assign all or any portion of
its rights under this Agreement.
2.5 "Developer's Donations to the Olympic Training Center" or "Developer's
Donations" consisted of donation of (i) 150 acres of property, (ii) Three Million Dollars
($3,000,000.00) in working capital, and (iii) approximately Eight Million Dollars
($8,000,000.00) worth of infrastructure improvements, or other such donations of land, working
capital and public infrastructure for the provision of the Olympic Training Center, as Developer
and the U.S. Olympic Committee and/or the San Diego National Sports Foundation have agreed
to or may agree to from time to time in their sole discretion.
2.6 "Effective Date" shall be the date upon which the Ordinance approving
this Agreement will first take effect pursuant to the laws of the State of California, as described
in Section 1.5 above.
2.7 "Existing Approvals" or "Existing Proiect Approvals" shall mean all
discretionary approvals and/or standards which have been approved in conjunction with or
preceding the approval of this Agreement, as they relate to both the Project and the public
improvements, consisting of, but not limited to:
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2.7.1 The "General Development Plans and Text," consisting of two
General Development Plans (EastLake II and EastLake III), as amended and Text adopted for the
Property as they existed as of the date of first introduction of this Agreement;
2.7.2 The EastLake III Planned Community District for the Property set
forth in Ordinance No. 2345;
approvals;
2.7.3 The EastLake Trails SPA and Tentative Map and Final Map
1999;
2.7.4 The EastLake Greens SPA and its amendment adopted on
2.7.5 The "General Plan," as it existed as of the date of the first
introduction of this Agreement as provided in Section 1.5 above, including the EastLake III
General Plan Amendment and GPA 90-04, which was adopted by Resolution No. 15506 on
February 6, 1990.
In addition, the Existing Project Approvals and further discretionary reviews and approvals shall
include the "General Plan" and upon approval by City and written acceptance by Developer, all
"Future Discretionary Reviews arid Approvals." A list of the currently Existing Approvals, with
the date or other description of the operative versions of such Existing Approvals and conditions
thereto which apply to this Agreement are identified, and attached hereto as Exhibit B, and
incorporated herein by this reference. The parties agree to update the list set forth in Exhibit B to
reflect the granting of any Future Discretionary Reviews and Approvals.
2.8 "Financing Plans" means one or more Public Facility Financing Plans that
have been adopted as set forth on Exh.bit B and will be adopted as part of Future Discretionary
Approvals, which (i) set forth a list of various public facilities which Developer must build or
fund in part and the phases, time frame or cumulative levels of Project development at which
specified public facilities must be assured prior to the construction of the next phase of the
Project, and (ii) provide for the attainment of the "Quality of Life Thresholds".
2.9 "Future Discretionary Reviews and Approvals" means the approval by
City of all future discretionary permits and entitlements (excluding then Existing Approvals),
including, but not limited to (i) General Plan Amendments, General Development Plan and SPA
Plan(s), (ii) Master Tentative Map(s), (iii) grading permit(s), (iv) site plan review, (v) design
guidelines and review, (vi) precise plan review, (vii) resubdivision of areas previously
subdivided pursuant to the Master Tentative Map, (viii) the planned community district
regulations, and (ix) the issuance of conditional use permits, variances, and encroachment
permits, all other permits, and approvals of any type which may be required from time to time to
authorize the construction of on-site or off-site facilities required to construct the Public
Improvements and/or the Project.
2.10 "General Development Plans and Text" means the General Development
Plan and Text adopted for EastLake III and that portion of the General Development Plan and
Text adopted for EastLake II relating to EastLake Trails adopted by City pursuant to Resolution
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No. 15413 dated December 5, 1989, and Resolution No. 15198 dated July 26, 1989, respectively,
regulating the development ofthe Property and authorizing various land uses; also means
EastLake II GDP Amendment and text for EastLake Trails and the Land Swap Parcel adopted on
, 1998, all as listed on Exhibit A-3.
2.11 "Growth Management Ordinance" means the following policies and
standards intended to regulate the timing and phasing or rate of growth within the City: the
Growth Management Element adopted by City Council Resolution No. 15592 on April 17, 1990,
an ordinance adopted by the City Council on May 28,1991, and the Growth Management
Program adopted by City Council Resolution No. 16101, on April 23, 1996.
2.12' "Municipal Code" means the provisions of the Chula Vista Municipal
Code in existence and in effect on the date of the first reading of this Agreement as an Ordinance
by City.
2.13 "Municipal General Plan" or "General Plan" mean all mandatory and
optional General Plan elements pursuant to California Government Code 9 65302, et seq., in
existence on the date ofthe first reading of this Agreement as an Ordinance by City (subject to
the provisions of Sections 2.7 and 4.8), including, without limitation, the EastLake III General
Plan Amendment.
2.14 "Olympic Training Center" means the U.S. Olympic Training Facility
Center which is constructed on property donated by Developer located adjacent to the west of
lower Otay Lakes.
2.15 "PAD Fees" means any Parkland Acquisition and Development Fees
which would apply and be payable in conjunction with the approval of the final maps within the
Project in such amounts as may be pay~ble pursuant to the provisions herein.
2.16 "Planned Community District Regulations" means the regulations adopted
to implement any SPA pursuant to the Chula Vista Municipal Code 99 19.48.010 through
19.48.140.
Chula Vista.
2.17 "Planning Commission" means the Planning Commission of the City of
2.18 "Proiect" means the physical development of the Property as set forth in
the General Development Plans and Text and the General Plan for the area.
2.19 "Property" means the real property lying within the developments which
include the neighborhoods and projects commonly known as the Land Swap Parcel, EastLake
Trails, EastLake Woods, EastLake Vistas, the EastLake Business Center Expansion and the
Olympic Training Center. Such real property is more specifically depicted in Exhibit A-I and
described in Exhibit A-2.
2.20 "Public Improvements" means those public facilities or improvements
required by City to be completed or funded by Developer pursuant to the Municipal General
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Plan, the General Development Plans and Text, any Financing Plan, Tentative Map or other
applicable approval, permit, plan, ordinance or regulation.
2.21 "Quality of Life Thresholds" mean those certain Quality of Life thresholds
and/or standards as set forth in Municipal Code Section 19.19.040 and as amended from time to
time requiring the construction or development of certain facilities to provide desired levels of
service to the public.
2.22 "SPAs" means the Sectional Planning Area Plan or Plans to be prepared
and approved by City for the purpose of implementing the General Development Plans and Text
for the Property in accordance with the Chula Vista Municipal Code gg 19.48.090 through
19.48.140
2.23 "Substantial Compliance," for the purposes of this Agreement and the
periodic review hereunder, shall mean that the party of whom some particular performance is
required has sufficiently followed the terms of this Agreement so as to carry out the intent of the
parties in entering into this Agreement.
2.24 "Tentative Map(s)" shall refer to any tentative subdivision map(s) for the
Property. The term "Final Map(s)" shall refer to any final subdivision map(s) approved pursuant
to such tentative subdivision map(s).
3. Description ofPropertv. The Property consists of approximately 1,517 acres in
area and is located approximately 7.5 miles east of downtown Chula Vista and 7 miles north of
the United StateslMexican border.
4. Vested Right. In consideration of both (i) Developer's pledge to participate in the
construction and financing of public facilities in accordance with the Financing Planes) that have
been developed or will be developed j6intly by City and Developer, all as more particularly
described in Section 6 below, and (ii) Developer's Donation ofland, financial support and public
infrastructure for the Olympic Training Center, Developer, by this Agreement, is vested with the
right to develop and maintain the Property pursuant to the provisions set forth in this Section 4.
Such right to develop, use and maintain the Property shall not be abridged or modified during the
term of this Agreement except as specifically provided for herein.
4.1 Right to Develop. Developer and any merchant builders to whom
Developer may sell, lease or convey any portions of the Property shall have the right to develop
the Project for the land uses and to the densities and intensities of land use set forth in the
Existing Project Approvals.
4.2 Maximum Height and Size of Structures. The maximum height and size
of structures to be constructed within the Project will be governed by any adopted SPA for the
area in question.
4.3 Permitted Uses. The Property will be developed as a part of a planned
community consisting of residential neighborhoods, commercial development,
industriallbusiness parkes), recreational facilities, school sites, park sites and open space uses, as
are more particularly described and authorized by the General Development Plans and Text and
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the existing Municipal General Plan for the Property and other Existing Approvals, as they may
from time to time be further defined upon approval by City of any Future Discretionary Reviews
and Approvals in accordance with Section 2.9 above, as well as such other existing land uses as
may be mutually agreed upon by the parties.
4.4 Permitted Density and Intensity of Development. City hereby authorizes
the Property to be developed to the maximum density or intensity of development specified in
the General Development Plans and Text, Municipal General Plan and the Existing Approvals as
they may, from time to time be amended and/or expanded, during the term of this Agreement
subject to any limitations contained therein; provided, however, that City and Developer
acknowledge that the Project (excluding the Land Swap Parcel) was authorized to develop no
less than 3,027 dwelling units throughout the Property. As of the date of this Agreement,
Developer has entitlements in accordance with Existing Project Approvals for development of
1,143 units in the EastLake Trails portion of the Project and 1,767 units in the EastLake Vistas
and the EastLake Woods portions of the Project. In addition, City agrees to authorize for
development 750 dwelling units for the Land Swap Parcel, as set forth in the (EastLake Greens
SPA) Existing Project Approvals. Developer may be entitled to develop the remaining
I 17 dwelling units provided, however, a transfer of unused units is approved by City.
Notwithstanding the foregoing, Developer understands that such transfer of unused units requires
an amendment to the Existing Project Approvals and is subject to approval or denial by the City
Council in its sole discretion as the legislative body for City.
4.4.1 Low or Moderate Income Housing. City acknowledges that low
and moderate income housing may be economically impracticable to build at current density
levels. City agrees that it will consider granting Developer density bonuses and/or other
incentives in the event that City desires Developer to provide such low or moderate income
housing and that, in such event, City shall comply with all applicable requirements oflaw.
~
4.5 Application of New Rules. Regulations and Policies. City may, during the
term of this Agreement, apply to the Project, Public Improvements and/or the Property only such
new development fees, rules, regulations and policies, ordinances or standards which are
generally applicable to all private projects east ofl-805. It is the intent of the parties that the
application of such rules, regulations and policies, ordinances or standards will not prevent the
development of the Property to the uses, densities or intensities of development specified herein,
or as authorized by the Existing Approvals.
4.6 Modification of Approvals, Standards and Obligations. It is contemplated
by the parties that City. and Developer may mutually agree to modifications to the Existing
Project Approvals, public infrastructure requirements, or other modifications to the Project.
Upon approval by City and written acceptance by Developer following City's approval, such
mOdification(s) shall supersede any inconsistent Existing Project Approval(s).
4.7 Benefit to Earlier Vesting. Nothing in this Agreement will be construed as
adversely affecting Developer's obtaining a vested right to continue development and/or use of
the Property, if any, in the manner specified in this Section 4, pursuant to the provisions of
Califomia's constitutional, statutory and/or decisional law.
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4.8 Application of a Growth Management Ordinance. The Growth
Management Ordinance and Quality of Life Thresholds shall apply to the timing and
development of the Property. The City may make such changes to the City's Growth
Management Ordinance and to the City's Quality of Life Thresholds 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 east ofI-805.
4.9 Growth Management Ordinance. Developer shall Commit the public
facilities and City shall issue building permits in accordance with Existing Project Approvals and
Future Discretionary Review and Approvals. The City shall have the right to withhold the
issuance of building permits any time after the City reasonably determines a Quality of Life
Threshold has been' exceeded, unless and until the deficiency has been mitigated 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 or Future Discretionary Approvals required
for a particular Quality of Life Threshold have not been Committed,
In the event a Quality of Life Threshold is not met and future building permits
issuance may be withheld, the notice. of provisions and procedures contained in
Section 19.09.100 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 omission of the Developer, shall toll the term of this
Agreement and suspend the Developer's obligations pursuant to this Agreement for the period of
time the issuance of building permits are suspended.
5. Development Program Jnd Processing.
5.1 Processing of Applications and Permits. City agrees to accept for
processing, consideration and approval, denial or conditional approval all Developer's
applications for Future Discretionary Reviews and approvals for the Property.
5.2 Length of Validity of Tentative Subdivision Map(s). It is understood by
the parties to this Agreement'that, pursuant to existing law, a tentative subdivision map may
remain valid for the length of term of this Agreement, aU as provided in Califomia Government
Code ~ 66452.6(a). City, therefore, in accordance with the provisions of this Agreement, agrees
that the Master Tentative Map shall remain valid for a term equal to the longer of the term of the
Master Tentative Map as it is determined and may be extended by the provisions of California
Government Code ~ 66452.6 or the length of this Agreement; provided, however, that the term
of the Master Tentative Map shall not exceed the maximum allowed by law. No new condition
shall be added to any map as a condition of its extension.
5.3 Vesting Tentative Map. Developer may, at its option, process with City a
vesting tentative map covering the Property which shall, upon approval, confer upon Developer a
vested right to proceed with development of the Property in substantial compliance with the
ordinances, policies, and standards described in California Government Code ~ 66474.2. City
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will accept the processing and review of such a vesting tentative map covering the Property
submitted by Developer to City.
5.4 Parcel Map. City shall accept for processing, and take action upon, a
parcel map for the Property, within the time&ames set forth in the state Subdivision Map Act, in
order to assist Developer's acquisition of the Property. Developer acknowledges that approval of
such map shall not limit City's right in the future, upon the Property's resubdivision, to impose
conditions to its further subdivision.
6. Urban Infrastructure.
6.1 . Dedications and Reservations of Land for Public Purposes. The portions
of the Property to be reserved or dedicated for public purposes shall be: (i) those portions which
are required to be dedicated pursuant to any tentative subdivision map and (ii) those portions
which are required for the construction of all major road, sewer, drainage or other public rights
of way in accordance with the standards in existence for subdivisions adopted by City at the time
of the approval of any tentative subdivision map(s) for the Property and such further and
additional areas of public reservation or dedication which may be required for the construction of
public facilities to mitigate the impacts of the development of the Property pursuant to any
Financing Plan adopted in conjunction with any SPA and/or tentative map for the. Property.
6. 1.1 Parks. In consideration for the vesting of Existing Project
Approvals or the Future Discretionary Reviews and Approvals upon their granting by City,
Developer agrees to dedicate lands, pay PAD Fees and/or construct park facilities as follows and
as provided for in Section 6.1.2 below:
6.1.1.1 Developer may construct one or more private parks within
the Property. City, acting through the,city Council, may consider Developer's application for
any PAD credit available to Developer under this Agreement at the time of consideration of the
SPA and/or tentative map for the applicable area; and
6.1.1.2 City acknowledges and agrees that Developer has fulfilled
PAD requirements for the 750 multi-family dwelling units planned for the Land Swap Parcel
through transferring excess park credits from the EastLake Greens SPA to fulfill the
requirements for the Land Swap Parcel; and
6.1.1.3 City acknowledges and agrees that Developer has paid
$1,391,260 for the development portion of the PAD Fee Advances, as defined below, for Phase I
of East Lake Trails consisting of627 dwelling units and offered for dedication to City a portion
of the Salt Creek Community Park consisting of 7.44 acres which completes the acquisition
portion of the PAD fee for Phase I of East Lake Trails and is in excess ofthe 5.96 acres required;
and
6.1.1.4 City acknowledges and agrees that Developer has received
SPA Plan and tentative map approval for EastLake Trails which contains and designates the Salt
Creek Community Park for which Developer shall receive park credit of 19.8 acres, in the
configuration set forth in the Eastlake Trails SPA Plan. This community park, when completed
in accordance with a park development plan approved by City, will fulfill the EastLake Trails
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park acreage obligation and complete the outstanding park acreage obligations held over from
EastLake I and EastLake II as described in: (a) The EastLake Park Agreement which was
adopted by the City Council on August 8, 1989, pursuant to Resolution No. 15225 ("Park
Agreement"), (b) Agreement Between City ofChula Vista and EastLake Development Company
Regarding Resolution of Dispute Regarding Outstanding Park and Recreation Facility Issues
dated March 20,1996 ("Dispute Agreement") and (c) Escrow Agreement between City ofChula
Vista and EastLake Development Company Regarding Resolution of Dispute of Outstanding
Park and Recreation Facility Issues dated March 20, 1996 ("Escrow Agreement").
6.1.1.5 Developer's remaining park acreage obligation shall be
limited to 17 acres of improved park land as approved by City not to exceed 7 acres in the
Woods and a total of 17 acres. This obligation may be increased if the number of dwelling units
increases from that allowed in the current EastLake III General Development Plan.
6.1.2 PAD Fee Advance(s). In addition to the dedication oflands and/or
construction of park facilities by Developer, Developer shall pay to City, in advance of the time
that such fees would normally be payable, PAD Fees in the amounts, at the times, and subject to
the conditions set forth in this Section 6.1.2 ("PAD Fee Advance(s)"). City may, as an
alternative to requiring the payment of any PAD Fee Advances, request Developer to build park
facilities of an equivalent cost, as such cost may be adjusted as provided below.
6.1.2.1 Developer has completed a PAD Fee Advance in the
amount of$1,391,260, and offered 7.44 acres ofland for dedication to City for the PAD fees due
from Phase I ofEastLake Trails adjusted as provided below. PAD Fee Advances for Phase II of
EastLake Trails project shall be paid by Developer within 60 days following the City Council's
approval of the tentative map for Phase II of East Lake Trails or upon demand in writing by City;
and Developer shall make a PAD Fee Advance in the amount of Two Million One Hundred
Thirty-Five Thousand Dollars ($2,135,900.00), adjusted as provided below, within 60 days
following City's written request therefor, which request may be made at any time following
City's approval of the first tentative map within the EastLake III development, exclusive of the
EastLake Trails neighborhood and the Olympic Training Center.
6.1.2.2 Immediately upon City's receipt of any PAD Fee
Advances, City shall establish and confirm in writing a credit in favor of Developer, in the
amount of the PAD Fee Advance(s) received, as against the ultimate PAD Fees applicable to the
Project, if any, at the time of issuance of building permits ("PAD Fee Credit"). Any PAD Fee
Credit established in favor of Developer may be assignable to any merchant builder to whom
Developer sells, leases or conveys any portion of the Property at Developer's option. In the
event that the PAD Fee Advances made by Developer are less than the amount of PAD .Fees
actually payable by the Project at the time of final map approval (i.e., upon the exhaustion of the
PAD Fee Credit), Developer shall pay to City the additional PAD Fees at the time that final maps
are approved. In no event shall any adjustment to the PAD Fee Advance be applied retroactively
to require the payment of any additional PAD Fee with respect to any residential dwelling unit
after a building permit has been pulled for such dwelling unit and Developer has paid the
additional PAD Fees as provided immediately above.
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6.1.2.3 The amount of the PAD Fee Advance or the equivalent
amount of park facilities to be built by Developer shall be adjusted upward or downward, from
the amounts set forth in Sections 6.1.2.1 and 6.1.2.2 above, throughout the term of this
Agreement, beginning upon the effective date of the Original Development Agreement and
concluding at such time that the PAD Fee Advance is paid or that Developer Commits to the
construction of park facilities of equivalent cost. The adjustment shall be based upon an
application to such amounts of an index figure which is intended to reflect the change in the
anticipated cost of providing the park improvements. The index figure used shall be the figure
published in the "ENR Market Trends" section of Engineering News Record for a category of
cost of construction indices listed therein, reflecting increases in the cost of construction within
such category, to b~ mutually agreed upon as the most appropriate category by the parties ("ENR
Index"). The ENR Index figure to be for adjusting the PAD Fee Advance pursuant to
Section 6.1.2(i) and (ii) above, shall be the ENR Index figure published most recently preceding
such event.
6.1.2.4 Notwithstanding anything in this Section 6.1 to the
contrary, in no event shall the PAD Fee Advance made by Developer pursuant to Section 6.1.2(i)
and (ii) above or the estimated cost of the facilities Committed to by developer as an alternative
thereto exceed the amount of PAD Fees which would be payable by Developer for the areas of
. the Project proposed for development based upon (a) the estimated number of residential units
proposed within such neighborhood(s) and (b) City's PAD Fee ordinances then in existence.
6. I .2.5 Notwithstanding anything in this Section 6.1 to the
contrary, in no event shall the term of any indexing hereunder extend further than the earliest to
occur of the conclusion of the term of this Agreement or the earlier termination of this
Agreement.
6.1.3 Develop.r Dutv to Fund Communitv Center Escrow. The parties
hereby acknowledge the existence of an escrow ("Community Center Funding Escrow" or
alternatively herein "Escrow") and designate City as the escrow holder thereof. Developer
agrees to fund said Escrow in the amount of$880,738, plus interest as hereinafter described, on
the earlier of (i) June I, 2002, or (ii) within 90 days of City's written request. Interest on the
amount of$880,738 shall accrue from July I, 1999 to the earlier of (i) Developer's funding of
the Escrow, or (ii) June I, 2002. The interest accrual rate shall be the rate of the City's average
quarterly interest earnings rate on the City's Investment Pool of funds as reasonably determined
quarterly by the Finance Director. No interest shall accrue after June 1,2002, regardless of
whether Developer has funded the Escrow, provided, however, Developer is not in breach of this
provision of the Development Agreement. If Developer does not pay said amount as required by
this Agreement, interest will continue to accrue until said amount is paid at the rates stated
herein. Developer has secured its obligation to fund said Escrow with a bond from a surety
which City has deemed sufficient, and of a form acceptable to City.
6.1.4 Citv's Communitv Center Duty. Upon funding of the Escrow by
Developer as herein required, City shall waive any claim it may have to require Developer to
construct a Community Center for the EastLake Project. Further City promises Developer that
City will apply proceeds of the Escrow to the design and construction of a community center,
and for no other purpose without the consent of Developer, according to the following terms and
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conditions (City's obligations set forth in this Section may be herein referred to as "City's
Community Center Duty"):
6.1.4.1 Timing. City shall commence construction of the
Community Center no later than 18 months after Developer funds the Escrow as herein required
("Construction Commencement Date"). The parties may agree in writing to a later Construction
Commencement Date.
6.1.4.2 Site and Location Option. The Community Center shall be
built on such portion of the Salt Creek Community Park as City shall designate, at City's sole
option, unless (i) Developer has not purchased, has lost, or does not have an option to purchase
said Salt Creek Community Park site or (ii) City's contribution to the costs of the Community
Center (other than land) from other than the proceeds of Developer's funding of the Escrow
exceed such funding by Developer, in which case the Community Center may be built at any
location of City's choosing in the City ofChula Vista east ofI-805 ("Eastern Territories")
outside ofthe EastLake development area.
6.1.4.2.1
Requirements Relating to Location OPtion.
6.1.4.2.1.1 Time to Exercise. City shall notify
Developer of the location of the Community Center one year in advance of the Construction
Commencement Date, as same may be deferred rrom time to time.
6.1.4.2.1.2 Secure Title; Owner's Commitment.
After City notifies Developer of the location of the Community Center, and if Developer owns
the land City requires, Developer shall transfer title thereto without additional compensation
therefor on demand by City. If the land on which City proposes to locate the Community Center
is not owned by Developer but is owned by Western Salt or a successor thereto, the Developer
shall, in good faith, request Western S~lt, or the then owner, to commit, upon such notification of
City's location selection, to transfer title to City. Iffor any reason they are unwilling or unable
to expeditiously do so in order to meet the construction schedule of City, City shall be relieved of
the constraint of having to locate the Community Center in the EastLake Project and may build
the Community Center anywhere in the Eastern Territories. Nothing in this Agreement shall be
construed or interpreted as having the effect of requiring the current property owner (Western
Salt) or its successors (excluding Developer) as having an obligation to provide for or make
accommodations for the Community Center. Nothing herein shall be interpreted or deemed as a
surrender of City's power of eminent domain, and nothing herein shall be deemed to surrender
the power to charge and collect a development impact fee or park fee or other assessment or
exaction associated with development.
6.1.4.2.1.3 Developer's Right to Request
Deferral of Construction Date, Upon Exercise. Developer shall have the right to request a delay
in the Construction Commencement Date until Developer has acquired the property through its
acquisition and development of the land within EastLake III located north ofOtay Lakes Road
and east of Hunte Parkway. If extended by City, it shall be on such terms and conditions as the
parties deem appropriate.
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6.1.4.2.1.4 Park Size. The Salt Creek
Community Park Site shall remain in the size and configuration set forth in the EastLake Trails
SPA Plan regardless of the location of the Community Center, or construction of a gymnasium as
provided in Section 6.1.4.2.1.5. Developer is currently processing, with the California
Department ofFish and Game, an amendment to the Eastlake Trails mitigation plan to remove
all mitigation areas from the Salt Creek Community Park site. If said amendment is not
approved by the California Department ofFish and Game prior to City approval of the Salt
Creek Community Park Master Plan, Developer shall provide additional park land adjacent to the
Salt Creek Community Park, equal to the amount of mitigation land located in the Salt Creek
Community Park. The size, location and configuration of the additional park land shall be
approved by the Director of PI arming and Building.
6. I .4.2.1.5 Effect on Gym Dutv. The City may,
at its sole discretion, construct a gymnasium in the same vicinity as, or contiguous to, the
Community Center in Salt Creek Park.
6.1.4.3 Contribution of Parties to Costs. If Developer funds the
Escrow at the time and in the manner herein required, Developer shall not be required to bear or
advance the costs for the design and construction ofthe Community Center, which shall be borne
by City.
6. 1.5 Developer's Community Center Park Duty Satisfied. Effective
upon funding of the Escrow by Developer as herein required, according to its terms, the parties
acknowledge that Developer shall have satisfied any duty it may have had to construct a
community center within the EastLake Project.
6.1.6 PAD Fee Credits for Community Center Costs. At such time as
Developer funds the Escrow, as herein r;quired, it will be entitled to a PAD fees credit, in
dollars, as determined by City in the manner herein provided against Developer's duty to pay the
then-prevailing PAD Fees ("Community Center PAD Fees Credit") thereafter when due for the
mapping and development of subsequent units within the area of East Lake III or the Land Swap
Parcel.
6.1.6.1 Calculation of Community Center PAD Fees Credit. The
amount of the Community Center Pad Fees Credit shall be $800,000 times a fraction the
numerator of which are the units entitled by City to be developed within ELIII and the Land
Swap Parcel and the denominator of which is the total number of units entitled by City to be
developed within the entire EastLake area (i.e., EL I-Hills and Shores, EL II-Greens, EL III, and
the Land Swap Parcel), and then adding to the product thereof the sum of$100,000; but in no
event shall the amount of the Community Center PAD Fees Credit exceed $468,000.
6.1.6.1.1 Example of Calculation. Assuming the
following represent the number of units for each SPA area City has entitled Developer to
develop:
Development Area
EL Hills & Shores
EL Greens
Units
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2,500
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EL III 2,932
Landswap 750
Total 8.005
the Community Center PAD Fees Credit to which Developer would be entitled would be
$467,970, determined as follows (3,682/8,005 x $800,000) + $100,000 = $467,970.
6.1.6.1.2 Credit for PAD Fee Advance(s). The
Community Center PAD Fees Credit shall be used to offset the PAD Fee Advance( s) required
pursuant to Section 6.1.2.
6.1. 7 Total Obligations. The obligations in Sections 6.1.1 through 6.1.6
above shall constitute Developer's and the EastLake Planned Community's total park obligations
for the areas encompassed within this Agreement, notwithstanding any future modification to the
requirements or standards of City with respect to parkland dedications or the payment of in lieu
fees. Developer's obligations in Sections 6.1.1 through 6.1.6 supersede and replace in their
entirety the Park Agreement and the Escrow Agreement. In consideration of the covenants
herein, City agrees to waive any and all further PAD Fees otherwise applicable to the Project.
The funds advanced pursuant to this section shall be used by City solely for park land acquisition
and development purposes to mitigate Project impacts and the park needs of Project residents.
6.2 Public Facilities; Financing Plan. Requirements. City and Developer shall
prepare one or more Financing Planes). Such Financing Planes) shall set forth (i) a description of
public facilities and improvement projects needed to serve the Property, including facilities
necessary to serve the Project and neighboring developments, (ii) the sequence and staging for
build-out of the Property and other development projects which impact on standards for the
development of the various public facilities and improvement projects, and (iii) the authorized
methods of fmancing and the allocation of financial responsibility for the construction of the
needed public facilities and improvemeJlt projects. Such Financing Plan(s) shall employ the
Quality of Life Thresholds as the standard for determining the dimensions and timing of the
development of public facilities and improvement projects necessary to serve the Property,
including facilities necessary to mitigate the incremental impacts of the Project and neighboring
development projects.
6.3 Assessment Districts or Public Financing Mechanisms. This Agreement
and any Financing Plan(s) recognize that assessment districts, Mello Roos Community Facility
Districts, or other public financing mechanisms may be necessary to finance the costs of Public
Improvements borne by the Project. If Developer, pursuant to any Financing Plan, is required to
install Public Improvements where such Financing Plan authorizes the use of assessment
districts, Mello Roos Districts, or other public financing mechanisms, City may select the
acceptable method of public financing, initiate and conclude appropriate proceedings for the
formation of such financing district or funding mechanism, under the applicable laws or
ordinances. Developer shall also have the right to request that City utilize, and City shall
conduct (but shall not be required to approve) appropriate proceedings for any other financing
methods which may become available under City or state laws or ordinances. All costs
associated with the consideration and formation of such financing districts or funding
mechanisms shall be advanced by Developer, subject to reimbursement as may be legally
authorized out of the proceeds of any financing district or funding mechanism.
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6.4 Schools. Developer has satisfied all of City's requirements with respect to
the provision of school facilities pursuant to an agreement entered into between Developer and
the Sweetwater Union High School District dated December 11, 1986, and an agreement entered
into between Developer and the Chula Vista City School District dated December 9, 1986
(collectively, the "School Agreements"). City shall not further condition the development of the
Property through the imposition of any further school fees or exactions of any nature whatsoever,
and the School Agreements shall be conclusively deemed to mitigate any and all impacts upon
school facilities from development of the Project and/or the Property.
6.5 Water. Water to the Property shall be provided by the Otay Water
District. Developer and City acknowledge and agree to consider the construction of a water
reclamation project 'on the Property. This Agreement will not preclude City ownership and
operation of such a facility.
7. Indemnification and Insurance.
7.1 Hold Harmless. It is understood and agreed that City, as indemnitee, or
any officer or employee thereof, shall not be liable for any injury to person(s) or property
occasioned by reason of the acts or omissions of Developer (including any assignee of
Developer, but only to the extent of specific improvements, acts or omissions of such assignee),
its agents or employees, related to this Agreement. Developer further agrees to protect and hold
harmless City, its officers and employees from any and all claims, demands, causes of action,
liability or loss of any sort, because of the arising out of acts or omissions of Developer,
(including any assignee of Developer, but only to the extent of specific improvements, acts or
omissions of such assignee), its agents or employees, related to this Agreement. Such
indemnification and agreement to hold harmless shall extend to damages or taking of property
resulting from the construction of the Project and public improvements as provided herein or to
adjacent property owners as a conseque,1ce of the diversion of waters in the construction and
maintenance of drainage systems, and shall not constitute the assumption by City of any
responsibility for such damages or taking, nor shall City by its approval of construction plans for
the Project or the public improvements as provided herein, be an insurer or surety for the
construction of the Project pursuant to such approved plans. The provisions of this Section shall
become effective upon execution of this Agreement and shall remain in full force and effect for
three years following the acceptance by City of each public improvement installed by Developer;
such acceptance by City shall not be unreasonably withheld. This Section is not intended, nor
shall it be construed, to require Developer or City to indemnifY or hold the other harmless from
their own negligent acts or omissions.
7.1. I Indemnification. Developer shall indemnify and defend City in
any lawsuit or claim which challenges City's approval of the Project, City's approval of this
Agreement or the participation by City in this Agreement.
7.2 Insurance. Developer shall name City as an additional insured for all
insurance policies obtained by Developer for the Project pertaining to Developer's activities and
operation on the Project.
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8. EastLake San Diego National Sports Training FoundationlUnited States Olympic
Committee Commitments. Developer, as consideration for City's commitment to the land uses
and intensities of development for the Property specified in Section 4 above (hereinafter "City's
Commitment"), and in accordance with its agreements with such parties, (i) has conveyed a 150-
acre site located generally in the southern portion ofOtay Lakes to the San Diego National
Sports Foundation or the United States Olympic Committee, and (ii) has contributed Three
Million Dollars ($3,000,000.00) in working capital and approximately Eight Million Dollars
($8,000,000.00) in infrastructure improvements to the San Diego National Sports Training
(collectively, clauses "(i)" and "(ii)" above are hereinafter referred to as "Developer's
Donations"). Developer has executed agreements effecting Developer's Donations. Developer's
Donations are hereby declared to constitute sufficient consideration for City's Commitment and
no further consideration from Developer shall be required for Developer to obtain the land uses
and intensities of development for the Property specified in Section 4 above, whether through
this Agreement, amendments to this Agreement, or agreements separate from this Agreement.
9. Binding Effect; Encumbrance of Property; Releases.
9.1 Binding Effect. The provisions of this Agreement shall be binding upon
and inure to the benefit of the parties' successors-in-interest.
9.2 Lender Notification. Any lender will receive written notification from
City of any default by Developer under this Agreement which is not cured within 30 days if such
lender requests such notification from City in writing; provided, however, that failure of City to
provide such notification shall not limit City's rights under this Agreement.
9.3 Discretion to Encumber. Nothing in this Agreement will prevent or limit
Developer, in any manner, at Developer's sole discretion, from encumbering all or any portion of
the Property or any improvements therpon by any deed of trust or other security device.
9.4 Status. Each party will, upon 15 days prior written request, give written
notice to the other party of whether the party giving the notice knows of any breach of this
Agreement and its current understanding of the status of the parties' performance under this
Agreement. A copy of any such notice which is sent to Developer shall also be sent to the holder
of any institutional first trust deed encumbering the Project if such holder has made written
request for notice and provided City with the holder's address for notice purposes.
9.5 Releases. Once the required Public Improvements are installed, City may
release portions of the Property from this Agreement. All areas of the Property designated for
residential custom home lot construction shall be released from this Agreement by City upon the
request of any individual purchaser without any further consideration.
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10. Annual Review; Notice. City will, once every 12 months during the term of this
Agreement, pursuant to California Government Code 9 65865.1, undertake a periodic review of
the parties' compliance with the terms of this Agreement pursuant to the procedures set forth
below. Developer shall present information with respect to Developer's good-faith compliance
with Section 10.1. In addition to the information provided by Developer in accord with
Section 10.1, City may request that Developer address additional issues with respect to
Developer's good-faith compliance with the terms of this Agreement. City shall deliver no less
than 30 days' written notice to Developer prior to any hearing of any requirement City desires to
be addressed, together with any applicable staff reports, in a manner sufficient for Developer to
respond. Either party may address any requirement of this Agreement during the review period.
If, at any time of review, any issue not previously identified in writing pursuant to this
Section 10 is required to be addressed by City, the review at the request of either party may be
continued to afford sufficient time for analysis and preparation. Such review by City may be
conducted by the City Manager.
10.1 Information to be Provided Developer. Pursuant to California
Government Code 9 65865.1, Developer shall have the duty to demonstrate its good-faith
compliance with the terms of this Agreement at each periodic review. Developer's duty to
demonstrate may be satisfied (except for additional issues raised by City pursuant to Section 10)
by the presentation to City of: (i) a written report identifYing Developer's performance or the
reason for its nonperformance or excused performance of the requirements of this Agreement, or
(ii) ora] or written evidence submitted at the time of review.
10.1.1 Substantial Compliance. The parties recognize that this
Agreement and the documents incorporated herein could be deemed to contain thousands of
requirements (i.e., construction standards, landscaping standards, et al.), and that evidence of
each and every requirement would be a wasteful exercise of the parties' resources. Accordingly,
Developer shall be deemed to have sati,fied its duty of demonstration when it presents evidence
of its good faith and substantial compliance with any issues requested to be addressed by City in
accordance with this Section 10; substantial compliance with the major provisions of the
Financing Planes) and SPAs, and compliance with the restrictions on the uses, number, type, lots
and sizes of structures completed, and any required reservations and dedications to City.
Generalized evidence or statements shall be accepted in the absence of any evidence that such
evidence or statements are untrue.
10.2 Finding by City During Annual Review Period that Developer is in
Default. If, during any annual review period, City, on the basis of substantial evidence, finds
Developer has not, in good faith, complied with this Agreement, it will give Developer 30 days'
notice of default pursuant to Section II.
10.3 Delay in Annual Review. City's failure to review annually Developer's
compliance with the terms and conditions of this Agreement shall not constitute or be asserted by
City as a breach by Developer of any terms of this Agreement.
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11. Default. If either party defaults under this Agreement, the party alleging such
default will give the breaching party not less than 30 days' notice of default in writing. The
notice of default will specify the nature of the alleged default, and, where appropriate, the
manner and period of time in which such default may be satisfactorily cured. During any period
of cure, the party charged will not be considered in default for the purposes of termination or
institution oflegal proceedings. If the default is cured, then no default will exist and the noticing
party will take no further action.
11.1 Option to Set Matter for Hearing or Institute Legal Proceedings. After
proper notice and the expiration of the cure period, the noticing party to this Agreement, at its
option, may (i) institute legal proceedings or (ii) schedule hearings before the Planning
Commission and the City Council for a determination as to whether this Agreement should be
modified, suspended, or terminated as a result of such default.
11.2 Waiver. Nothing in this Agreement shall be deemed to be a waiver by
Developer of any right or privilege held by Developer pursuant to federal or state law, except as
specifically provided herein. Any failure or delay by a party in asserting any of its rights or
remedies as to any default by the other party will not operate as a waiver of any default or of any
such rights or remedies or deprive such party of its right to institute and maintain any actions or
proceedings which it may deem necessary to protect, assert, or enforce any such rights or
remedies.
11.3 Remedies Upon Default. In the event of default by either party to this
Agreement, the parties shall have the remedies of specific performance, mandamus, injunction
and other equitable remedies. Neither party shall have the remedy of monetary damages against
the other; provided, however, that the award of costs oflitigation and attorneys' fees shall not
constitute damages based upon breach of this Agreement where such an award is limited to
(i) the costs oflitigation incurred by C.ty, 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. Modification; Suspension; Termination.
12.1 Modification by Mutual Consent. This Agreement may be modified, from
time to time, by mutual consent of the parties only in the same manner as its adoption by an
ordinance as set forth in California Government Code gg 65867, 65867.5 and 65868, and
Resolution No.1 1933 of City. The term "this Agreement" as used in this Agreement will
include any such modification properly approved and executed.
12.1.1 Minor Modifications. The parties to this Agreement contemplate
the periodic review and modification of the SPA(s), the provisions of the Financing Planes) and
the terms and conditions of the Future Discretionary Reviews and Approvals. Such agreed upon
modifications by the parties hereto are anticipated and shall not constitute an amendment to this
Agreement or modification pursuant to this Section 12.1, but shall automatically be incorporated
herein. In no event shall City require further consideration or compensation for the processing of
any amendments which may be required to solemnify such modifications.
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12.2 Emergency Circumstances. If, as a result of specific facts, events or
circumstances, City finds, following the procedures outlined in this Section 12.2 and based upon
the preponderance of all evidence presented by the parties, that a severe and immediate
emergency threat to the health and safety of the citizens of City requires the modification or
suspension of this Agreement, City will;
12.2.1 Notification of Unforeseen Circumstances. Notify Developer of
(i) the initiation of City's determination process, and (ii) the reasons for City's determination and
all facts upon which such reasons are based; and
12.2.2 Notice of Hearing. Notify Developer in writing at least 14 days
prior to the date, of such date, time and place of the hearing and forward to Developer, a
minimum often days prior to the hearing described in Section 12.2.3, all documents related to
such determination and reasons therefor; and
12.2.3 Hearing. Hold a hearing on the determination at which hearing
Developer will have the right to address the City Council. At the conclusion of such hearing,
City Council may take action to suspend this Agreement. City Council may suspend this
Agreement if, at the conclusion of such hearing, based upon the evidence presented by the
parties, City finds that the suspension of this Agreement is required to avoid an immediate and
severe threat to the health, safety and general welfare of City; and
12.2.4 Unilateral Suspension. Where the citizens of City face a severe
and immediate threat to their health and safety, City may unilaterally suspend the effectiveness
of this Agreement for a period not to exceed the time reasonably required for notice and a public
hearing.
12.3 Change in State,or Federal Law or Regulations. If any State or Federal
law or regulation enacted during the term of this Agreement or the action or inaction of any other
affected governmental jurisdiction precludes compliance with one or more provisions of this
Agreement, or requires changes in plans, maps, or permits approved by City, the parties will act
pursuant to Sections 12.3.1 and 12.3.2.
12.3.1 Notice; Meeting. The party first becoming aware of such
enactment or action or inaction will provide the other party 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 regulation. A copy of any such notice which is sent to Developer shall
also be sent to the holder of any institutional first deed of trust encumbering the Project if such
holder has made written request for notice and provided City with the holder's address for notice
purposes.
12.3.2 Hearing on Supersession of Development Agreement. Thereafter,
regardless of whether the parties reach agreement on the effect of such federal or state law or
regulation, the matter will be scheduled for hearing before the City Council no sooner than
ten days following written notice of such hearing to Developer. The City Council, at such
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hearing, will determine the exact modification, suspension or termination which is required by
such federal or state law or regulation, if any. Developer, at the hearing, will have the right to
offer oral and written testimony regarding any proposed action by City. Any modification,
suspension or termination of this Agreement is subject to judicial review.
12.4 Notice of Termination. In the event that this Agreement is terminated
pursuant to any of the methods authorized herein this Section 12, City shall prepare and record a
Notice of Termination containing a reference to this Agreement and the effective date of any
such termination in a fonn suitable for recordation with the County of San Diego.
13. General Provisions.
13.1 Enforced Delay. Without modifying either party's right to allege a default
under this Agreement, the failure to perform or a delay in performing the requirements of this
Agreement by either party shall not constitute a default for purposes of this Agreement where
such delay or failure to perform is directly caused by litigation by City against Developer or by a
City-imposed moratorium on residential, commercial or industrial development.
13.2 Notices. All notices required by or provided for under this Agreement
shall be in writing and delivered in person or sent by certified mail, postage prepaid, return
receipt requested, to the principal offices of City and Developer. Notice shall be effective on the
date delivered in person or the date when the postal authorities indicate that the mailing was
delivered to the address ofthe receiving party indicated below:
Notice to Developer:
William T. Ostrem
President, Chief Executive Officer
The EastLake Compan)l, LLC
900 Lane Avenue, Suite 100
Chula Vista, CA 91914
With copy to:
Allen D. Haynie, Esq.
Latham and Watkins
701 B Street, Suite 2100
San Diego, CA 92101
Notice to City:
City Manager
City of Chula Vista
276 Fourth Avenue
Chula Vista, CA 91910
With copv to:
City Attorney
City of Chula Vista
276 Fourth Avenue
Chula Vista, CA 91910
Such written notices may be sent in the same manner to such other persons and addresses as
either party may from time to time designate by mail. .
13.3 Joint and Several Liabilitv. If either party consists of more than one legal
person, the obligations are joint and several.
13.4 Severability. If any material provision of this Agreement is held invalid,
this Agreement is held invalid, this Agreement will be automatically tenninated unless, within
15 days after such provision is held invalid, the party holding rights under the invalidated
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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
Section 12.1.
13.5 Recordation of Agreement; Amendments. All amendments hereto must be
in a writing signed by the appropriate agents of City and Developer, in a form suitable for
recording in the Office of the Recorder, County of San Diego. Within ten days of the effective
date of this Agreement, a copy will be recorded in the Official Records of San Diego County,
California. Upon Completion of performance of this Agreement or its earlier termination, a
statement evidencing such completion or termination, signed by the appropriate agents of
Developer and City will be recorded in the Official Records of San Diego County, California.
13.6 Applicable Law. This Agreement will be construed and enforced in
accordance with the laws of the State of California.
13.7 Assignment. Developer may transfer its rights and obligations under this
Agreement if such transfer or assignment is made as part of a transfer, assignment, sale or lease
of all or a portion of the Property and City consents to such transfer. Such consent shall not be
unreasonably withheld.
13.8 Term of Agreement. This Agreement shall expire on April 6,2010.
13.9 Conflict. The provisions stated in this Agreement shall prevail should
there be any conflict between this Agreement and the Financing Plan.
13.10 Covenant of Good Faith and Fair Dealing. Neither party shall do anything
which shall the effect of harming or injuring the right of the other party to receive the benefits of
this Agreement; each party shall refrain from doing anything which would render its
performance under this Agreement im~ossible; 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.
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13.11 Supersede and Replace. This Agreement shall supersede and replace the
Original Development Agreement, the Park Agreement, the Dispute Agreement and the Escrow
Agreement in their entirety.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date first
above written.
City:
Developer:
CITYOFCHULA VISTA,
a municipal corporation
By:
Shirley Horton,
Mayor
THE EASTLAKE COMPANY, LLC,
a California limited liability company
BYP~~
William . Os rem,
President/CEO
I hereby approve the form and legality of the foregoing Amended and Restated
Development Agreement this _ day of ,1999.
John M. Kaheny,
City Attorney
*
By:
THE EASTLAKE COMPANY, LLC,
a California limited liability
~~i
V~ce President
company
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LIST OF EXHffiITS
EASTLAKE III
EXHffiIT DESCRIPTION FIRST SECTION REFERENCED
A-I Map of Property 1.2
A-2 Legal Description 1.2
B Existing Approvals 2.7
*
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EXHIBIT A-3
Land Swap
Business Center II Trails WoodsNistas Parcels
GDP Amended EL II EL II ELIIl EL II
SPA Amended EL I Trails SPA EL III Greens SPA
Development Agreement EL III EL III EL III ELIII
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Appendix B
THE C.. ., OF CHULA VISTA DISCLOSURE STATEMENT
You are required to file a Statement of Disclosure of certain ownership or financial interests, payments,
or campaign contributions, on all matters which will required discretionary action on the part of the City
Council, Planning Commission, and aI/ other official bodies. The fol/owing information must be disclosed:
1. Ust the names of all persons having a financial interest in the property which is subject of the
application or the contract, e.g., owner, applicant, contractor, subcontractor, material supplier.
The Easttake Comoanv. LLC
The Westem Salt Comcanv
2. If any person. identifies pursuant to (1) above is a corporation or partnership, list the names of all
individuals owning' more than 10% of the shares in the corporation or owning any partnership interest
in the partnership.
!--1M
3. If any person. identified pursuant to (1) above is non-profrt organization or a trust, list the names of
any person serving ass director of the non-profit organization or as trustee or beneficiary or trustor of
the trust.
4. Have you had more than $250 worth of business transacted with any member of the City staff,
Boards, Commissions, Committees, ;lnd Council within the past twelve months? Yes_ No...L
If yes, please indicate person(s):
5. Please identify each and every person, including any agents, employees, consultants, or
independent contractors who you have assigned to represent you before the City in this matter.
Guv Asaro
Lex WiUiman. Hunsaker & Associates
N/A
Have you and/or your officers or agents, in the aggregate, contributed more than $1,000 to a
Councilmember in the current or preceding election period? Yes_ No~ If yes, state which
CQuncilmember(s):
6.
(NO"" AITACH <DDmONALPAGESAS ~ i
8-/6-7'1
Signatu or contractor/applicant
G~H~! .
Print or pe name of contractor/applicant
Date:
· &aJm is defined as: "Any indtt>idJIai, firm, co-partnership, joint venture, association. social club, fraternal orgonization. corporation.
estate. trus~ receiver, syndicate, this and any other coUnty. city and county, city municipality, district, or other political subdivision, or any
other group or combination acting as 0 unit. .. .3 .,
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