HomeMy WebLinkAboutPlanning Comm Rpts./1997/02/19
AGENDA
PLANNING COMMISSION SPECIAL WORKSHOP MEETING
Chula Vista, California
5:30 p.m.
Wednesday. February 19. 1997
Conference Rooms 2/3
Public Services Building
276 Fourth Avenue. Chula Vista
ROLL CALL
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. PUBLIC HEARING: ORDINANCES ADOPTING THE AMENDED AND
RESTATED OTAY RANCH PRE-ANNEXATION DEVELOPMENT
AGREEMENTS BETWEEN:
A. SNMB, LTD., AND THE CITY OF CHULA VISTA;
B, JEWELS OF CHARITY, AND THE CITY OF CHULA VISTA;
C. STEVEN AND MARY BIRCH FOUNDATION, AND THE CITY OF
CHULA VISTA;
D. GREGORY T, SMITH AND GEORGIANA R. SMITH, AND THE CITY OF
CHULA VISTA;
E. UNITED ENTERPRISES, LTD. AND THE CITY OF CHULA VISTA
2. UPDATE ON MAJOR PLANNING PROJECTS
ADJOURNMENT at
p.m, to the Regular Planning Commission Meeting on
February 26, 1997, at 7:00 p.m, in the Council Chambers.
COMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT
The City of Chula Vista, in complying with the Americans with Disabilities Act (ADA, request
individuals who require special accommodations to access, attend, andlor participate in a City
meeting, activity. or service request such accommodation at least forty-eight hours in advance for
meetings and five days for scheduled services and activities. Please contact Nancy Ripley for
specific information at (619) 691-5101 or Telecommunications Devices for the Deaf (TDD) at 585-
5647. California Relay Service is also available for the hearing impaired.
PLANRXHG COMKXSSXOH MBBTXHG
Item No.
Meeting Date 2/19/97
XTBM TXTLB: Ordinances
Restated Otay Ranch
Agreements Between:
-Adopting the Amended and
Pre-Annexation Development
A) SNMB, Ltd., and the City of Chula Vista;
B) Jewels of Charity, and the City of Chula Vista;
C) steven and Mary Birch Foundation, and the City of
Chula Vista;
D) Gregory T. smith and Georgiana R. Smith, and the
City of Chula vista
E) united Enterprises, Ltd. and the City of Chula
vista Jj;f
SUBMXTTBD BY: Deputy city Manager G -:',./
Planning Director ~
RBVXBWBD BY:
City Manager
4/5ths Vote: No
The purpose of this item is to present five restated pre-annexation
development agreements for properties on the otay Ranch. These are
all agreements that the Commission and Council previously adopted
but which expired due to a provision of the prior agreements
stating that they all became null and void if the annexation did
not occur by January 1, 1997. The annexation is still pending.
RBCOMKBHDATXOH:
Approve the Amended and Restated Development
Agreements Ordinances
BACKGROUND:
In May, 1996 the City of Chula vista entered into a Property Tax
and Otay Landfill Agreement with the County of San Diego as a pre-
requisite for annexation of the western parcel of the Otay Ranch.
The Landfill Agreement required that Nuisance Easements be provided
to the county for properties within 1,000 feet of the landfill.
satisfaction of this provision was a LAFCO condition of annexation.
Unfortunately, the easements have not yet been perfected to the
satisfaction of the county and thus the annexation has not yet
occurred. During the same time period, in order to elicit property
owner support for the annexation, the City agreed to enter into
pre-annexation development agreements with the property owners.
Obviously there were other benefits to both the city and the
property owners associated with entering into the agreements as
well. In any event, the Section 3, ~, of the agreements
contained a provision that if the annexation was not accomplished
by January 1, 1997, then the agreements would expire. At the time,
which was last summer, it was contemplated that the annexation
would have reasonably occurred by now. Since it hasn't, it is the
city's intent to reinstate the agreements with a new term provision
and a couple of other changes. In all other regards, the prior
agreements are simply proposed for readoption.
Environmental review for the development agreements was covered
with the environmental review approved for the Otay Ranch General
Development Plan adopted by the City on October 28, 1996.
DISCUSSION
For commission's information the benefits to the parties are
reiterated below:
1. Benefits to the Parties
a. Benefits to the city
* Developer support for annexation of the Otay Parcel
to Chula vista.
* Assurance that the Developer will dedicate needed
R.O.W. for SR #125.
* Granting of landfill nuisance easements to the
County for the Otay Landfill Buffer Area.
* provision of property for the Chula vista Greenbelt
open space areas and MSCP compliance.
* Assurance of adequate public facilities when
needed, and in' some cases development of excess
capacity or facilities sooner than required.
* Compliance with the City's Growth Management
Program.
b. Benefits to the Developer
* Vests permitted land uses, density, intensity of
use per the approved General Development Plan and
timing and phasing of development per Future
Discretionary Approvals (i.e., SPA Plan and Public
Facility Finance Plan) and in compliance with the
city's Growth Management Ordinance.
* Grants the owner certainty to proceed with the
development of the property in general accordance
with today's ordinances, rules, regulations and
standards or as they may be changed in the future
citywide or east of I-80S.
* Allows for fee credits and/or reimbursement
mechanisms for extraordinary facility improvements
or pioneering thereof and specifies that DIF fees
will be used to facilitate regional backbone
facilities.
* Allows the Developer to receive timely processing
on an equal basis with other Developers of Future
Discretionary Approvals and allows those approvals
to be covered by these Agreements.
Description of the Chanaes to the Aareement Terms
The changes to the development agreement are limited to one overall
change affecting all of the agreements (Term), and two other
provisions which are needed because the recommended language is in
a couple of the agreements but not all (default provisions), and
finally a provision for the United Enterprises Agreement having to
do with subordination by them of the nuisance easement for the
landfill (the only remaining step left on the annexation) with the
second reading of the development agreement. The link between the
subordination and the second reading of the agreement would also
pertain to the SNMB Jewels of Charity and Steven and Mary Birch
Foundation Agreements. The Village Development Agreement already
contained such a provision.
The term change obviously has to do with replacing the prior
expiration date of January 1, 1997 with a new date. The new date
is July 1, 1997. The LAFCO approval action occurred on July 1,
1996 and is good for one year, thus the July, 1997 term.
The second change states that in the event of a default by either
party the parties shall have the remedies of specific performance,
mandamus, injunction, and other equitable remedies without having
to first prove there is an inadequate remedy at law. In addition,
for the city's protection, language is included that neither party
shall have the remedy of monetary damages against the other. This
provision is included in all of the agreements except those that
were adopted last summer and have not undergone any subsequent
changes; namely, united Enterprises and Greg smith.
The third change stipulates that united Enterprises deliver a
subordination agreement to the City prior to the second reading of
their development agreement or by March 4, 1997. Otherwise the
Development Agreement is automatically terminated. If there is no
second reading of the Agreement, the City shall return said
subordination agreement to the Developer. This ensures that both
parties will receive the guarantees they need to facilitate the
annexation and approval of the Development Agreement. As mentioned
previously, this would tie to the SNMB Ltd., Jewels of Charity and
steven and Mary Birch Foundation Agreements becoming effective as
well. In addition, the City would agree to carry the Agreements
forward from First to Second Reading without change. This would
normally be the case in any event.
Fiscal Impact
It isn't possible to quantify the value of the Agreement to the
City or the other parties. Through annexation and the related
property tax, sales tax, etc., the city will realize significant
benefits. Likewise, the Developers benefit from the vesting and
certainty provided by the Property in accordance with current and
future approvals.
MINUTES OF A SPECIAL BUSINESS MEETING
OF THE CITY PLANNING COMMISSION OF
CHULA VISTA, CAllFORNIA
6:03 p.m.
Thesday. AUlrost 6. 1996
Conference Rooms 2/3
Public Services Building
276 Fourth Avenue. Chula Vista
ROlL CALL
COMMISSIONERS PRESENT: Vice Chair Davis, Salas, Thomas, Tuchscher and
Willett
COMMISSIONERS ABSENT: Chair Tarantino, Commissioner Ray
STAFF PRESENT: Deputy City Manager Krempl, Special Projects
Manager Jamriska, Senior Planner Rosaler, Public
Works Director Lippitt, Deputy City Attorney
Googins
Vice Chair Davis opened the meeting. The Secretary to the Planning Commission took a silent
roll call.
MOTION TO EXCUSE
MSUC (TuchscherlWillett) 5-0 to excuse Chair Tarantino, because of a business conflict.
Vice Chair Davis noted that it was a possibility that Commissioner Ray would not be in
attendance because of a business conflict; however, the Commission would wait until the end
of the meeting to excuse him in the event he was able to attend.
ITEM 1:
ORDINANCES - ADOPI'ING OTAY RANCH PRE-ANNEXATION
DEVELOPMENT AGREEMENTS BETWEEN:
Deputy City Manager Krempl noted that in June, the PJ~nn;ng Commission had considered four
deyelopment agreements, one of which was for the Foundation and consisted of three parties.
Those three parties had asked for separate consideration for a deyelopment agreement for each
of the three. He stated that the agreements in the staff report were basically the same documents
as before. He said there had been changes but not changes in the basic. business terms or the
benefits to the parties. He characterized most of the changes as editorial clean-up, clarification,
or improvements of the language in the' agreements from a City staff perspectiye. In some late
discussions, staff had been trying to ascertain what the rem~;n;Tig issues were, if any, with
respect to the agreements and the developer.
PC Minutes
-2-
August 6, 1996
(A) ORDINANCE 2687 - JEWELS OF CHARITY AND THE CITY OF CHULA VISTA
(f11'51 reading)
Mr. Krempl stated that staff wished to" make some further additions to Section 2.19, page 6:
Definition of Preserve Conveyance Plan, as follows: Preserve Conveyance Plan means a plan
that "will when adopted" set forth policies and identify the schedules. The rest of the definition
would remain as is. The applicant had concurred with the addition,
He stated that the one issue that staff had with the Jewels of Charity agreement was Section
11.2.4, page 18, entitled "Default", Subsection "Procedures Upon Default "...ayailable to the
City and Owner to pursue in the event there was a breach, provided, however, neither party
shall have the remedy of monetary damages against the other, except for an award of litigation
costs and attorneys' fees." Mr. Krempl understood that the applicant disagreed with the new
language proposed to be added. The staff perspective was that it provided additional protection
to the City; that the parties should not be entitled to monetary damages; that development
agreements such as this did not normal1y haggle monetary provisions. The City was not paying
them to do certain things; the developer was not paying the City. There were other normal legal
court remedies which were available to the applicant, which would be followed in the case of
a breach of the agreement. He asked Deputy City Attorney Googins to co=ent on that.
Deputy City Attorney Googins confirmed Mr. Krempl's position. It was the view of the
Attorneys' Office that exposure to monetary damages in the context of the development
agreement was above and beyond what the appropriate developer benefit of their bargain should
be, and that any theoretical exposure to monetary damages was too speculatiye to analyze and
quantify. Under the circumstances, he believed it to be an inappropriate risk for the City to
have to assume. The more appropriate remedy would be an affirmative injunction to prevent
the City from doing anything which would contravene the benefits the developer was getting in
connection with this development agreement.
Commissioner Willett asked if that would be the same on the other two agreements.
Mr. Krempl answered in the affirmative. Mr. Googins said the same addition would be included
in the other two agreements.
Commissioner Willett, regarding page 6, Preserve Conveyance Plan, asked if the fees to be paid
to ensure the orderly conveyance were to be paid by the developers. Mr. Krempl stated it was;
however, that was just a definition. There was no preserve conveyance plan except for SPA I.
It was something in the future as it pertained to eyery property owner.
Mr. Willett co=ented that the wording was different from the original agreements.
Mr. Jamriska stated that Village Development already had it. conveyance pIan for SPA I, and so
therefore the wording would be different. None of the others had a preserve conveyance plan.
-"
\
"\
,
!
PC Minutes
-3-
August 6, 1996
Commissioner Thomas asked the Attorney asked if mediation was optional.
Mr. Krempl stated that was Section 13.3.3, page 20 of the Jewels agreement. Mr. Googins said
is was a mandatory provision. It would go to mediation, not arbitration.
Vice Chair Davis, referring to Section 11.2.4 regarding monetary damages, said that basically
if the City breaches their side of the development agreement, eyen if there was a 10ss of money
to the developer, there was no monetary remedy available?
Attorney Googins stated that was correct. Given the nature of the City's obligations, the
developer was getting vested entitlements with consideration of other future discretionary
actions. He explained that the affirmative injunction to force the City to abide by the agreement
was a more appropriate remedy under the circumstances. They would be able to recoyer their
costs. The City felt that was the appropriate allocation of risks.
Vice Chair Davis concluded that if the City did something and there was a proyen breach that
cost the applicant money, there was no recovery for that. Mr. Googins stated that the City also
had a specific injunction themselves to comply by the terms of the agreement. It went both
ways.
Commissioner Tuchscher, referring to page 6, no. 3, under Term, stated that the timing of the
annexation was not to exceed January 1, 1997. He assumed that was an adequate time frame
to accomplish the annexation and was selected somewhat arbitrarily to give the City enough
time.
Mr, Krempl concurred.
Commissioner Tuchscher, regarding Section 6.3, page 10, Pre-Final Map Development dealing
with improvements on the property, said he was concerned about grading with a tentative map
approval. He asked if staff had contemplated the ramifications, if any, of haying a tentatiye map
approved that contained as many units and covered as much area as SPA 1.
Mr. Krempl said it had been considered. Bonding was required for the improvements. and it
was allowed often by the City that the grading could be started if the applicant had submitted
their grading application and a bond for the grading to be able to do that in advance of the final
map.
Commissioner Tuchscher was aware that it was commonly done in smaller tentatiye map
situations. Mr. K.rempl asked the Public Works Director Lippitt to comment on that.
Mr. Lippitt stated it had been used in Terra Nova, EastLake, and much of Rancho del Rey.
With such massive grading involved, to make drainage and otIier infrasttucture work, it almost
had to happen in some situations. That was in the City's usua1 ordinances. It was not a special
condition or privilege given.
.\
.\
PC Minutes
-4-
August 6, 1996
Commissioner Tuchscher saw this as a different situation because it was twice as big, He did
not know if that made any difference from a public works standpoint or grading standpoint, but
wanted to know if staff had thought that through:
Mr. Lippitt said the whole tentatiye map was large, but it would not be deyeloped that way.
Commissioner Tuchscher asked if a grading approval to a fInal map would require some type
of discretionary approval. Mr. Krempl stated it would require staff-level approval, in
accordance with the tentative map, which had a minimum amount of grading shown.
This being the time and the place as advertised, the public hearing was declared open.
Donald Worley, 101 West Broadway, Ste 1300, San Diego 92101, representing the Jewels of
Charity, the Birch Foundation, and the SNMB, LTD. was concerned about Section 11.2.4. He
felt it was unfair that it was included in their agreements and not in some others, such as those
of Baldwin and Mr. Smith. He felt they were being discriminated against. He did not think
there should be any fear that they had some litigation history with the City that would be asking
for dollar damages. Their desire was to develop their property and get their entitlements.
Probably the most effective remedies for them would be something like specific performance or
injunction rather than dol1ar damages. It was his experience as a litigation attorney that when
parties to agreements had some exposure monetarily as well as otherwise, that they treated their
obligations more seriously. Having no limitations on remedies in a contract was very important
for compliance and performance by both parties, Eyerybody should be equally exposed to any
remedy; should there be a default, it was really what guaranteed that everybody would perform.
He asked that the new language be stricken from Section 11.2.4, not only in that agreement but
in the other two agreements, as well.
Commissioner Salas asked if the monetary damages exceeding costs that the applicant may lose
was considered a monetary damage. Mr. Worley answered affIrmatively, but he said that was
assuming a delay in the project would constitute breach of the agreement. It may not. It may
normal processing that would have nothing to do with the agreement.
Commissioner Salas asked if the language was not included, the applicant could sue in excess
of what it would cost the applicant. Mr. Worley replied that they would only be entitled to what
they could prove under the law.
Attorney Googins, in terms of monetary damages, stated there was a variety of potential
monetary damages, both actual that they suffered, punitive damages, and consequential damages
directly suffered. He did not think in the situation of default by the City that they would be
entitled to those things. His argument would be that that was not what was contemplated when
the City entered into the agreement. They were not reasonable, foreseeable damages in light
of what the City considered to be the benefIt of their bargain. This proyision was to
memoriaIize and contractuaIize an uncertainty but one staff thought properly allocated the risks
and benefIts and burdens on each party. It went both ways.
PC Minutes
-5-
August 6, 1996
Commissioner Davis noted that Mr. Worley had said this was not in other development
agreements, Mr, Worley stated he did not belieye the added language was in the Baldwin or
Smith agreements. Mr. Krempl confIrmed that it was not.
Mr. Worley used an example of a case in which he had been involYed, and noted that when a
municipality had no monetary exposure, it had no incentive to be reasonable, no incentiye to
settle, and every incentive to drag out the lawsuit. He thought the existence of some monetary
remedy made both parties treat their obligations more seriously.
Attorney Googins thought there were adequate remedies for the applicant; namely, a mediation
provision, attorneys' fees proyision, and underlying any particular agreement was the
understanding that they were entering the agreement in good faith.
Commissioner Dayis noted that mediation was not binding. Attorney Googins concurred, but
said it was something the City would have to participate in in good faith, and there was nothing
that precluded the City, facing a challenge by the developer, from in fact settling an issue from
a monetary standpoint. That could be agreed to in a settlement context.
Vice Chair Davis asked if Attorney GoogiIis believed the risk of breach of contract to the City
or developer would be an equal liability . Who had the greatest risk?
Commissioner Tuchscher felt the benefIt largely fell on the side of the developer. They got
vested for a long period of time, bringing them entitlements that added valued property. They
City was giving up a great deal of control in the way of discretionary approvals and entitlement
issues, land use issues, by executing the agreement. That control directly benefIted the
developer long-term. Mr. Tuchscher did not believe monetary damages were appropriate. The
document should give the developer and/or owner property rights and the City the benefIt of
annexation, etc. If there was a dispute, it should be resolved, but he did not think monetary
damages helped to do that.
Commissioner Willett, referring to Section 11.2.4, asked why all the agreements were not the
same.
Mr. Krempl explained that the United Enterprises, Village Development, and Greg Smith
agreements were approved without this language. The agreements being considered at this
meeting and any subsequent agreements would contain this language. The City would defend
the language in any of the agreements; however, given the opportunity to be able to clarify
further an uncertainty, the City felt it was preferable to add the language.
Greg Smith, representing SNMB, stated the City was getting a 1,000 foot easement all the way
the Baldwin property in perpetuity forever. The statements that the developer was getting the
advantage, and the developers were taking advantage of the deyelopment agreement, SNMB was
giving up several acres the City was not paying for, and also giving up all right-of-way to SR-
125 for free. He was not sure it was just a one-sided image.
PC Minutes
-6-
August 6, 1996
No one else wishing to speak, the public hearing was closed,
MSUC (ThomaslWillett) 5-0 (Commissioners Ray and Tarantino absent) to recommend
adoption of Ordinance 2687, JewelS of Charity, as presented by staff with the new
language.
Vice Chair Davis .commented that she did not like 11.2.4 either, but it was in the best interest
of the City to include it. She would leaye it up to the Council as to whether to they wanted to
keep it in.
Deputy City Manager Krempl suggested that the Commission then consider Ordinance 2689,
Stephen and Mary Birch Agreement, since there were no additional issues and that agreement
was the same as the Jewels of Charity.
(C) ORDINANCE 2689 - STEPHEN AND MARY BIRCH FOUNDATION AND THE
CITY OF CHULA VISTA (fIrst reading)
Since there were no further comments from Mr, Krempl, Vice Chair Davis opened the public
hearing.
No one wishing to speak, the public hearing was closed.
MSUC (Tuchscher/Thomas) 5-0 (Commio.~ioners Ray and Tarantino absent) to recommend
adoption of Ordinance 2689, Stephen and Mary Birch Foundation, as presented by staff
with the modified language outlined by Mr. KrempI.
(8) ORDINANCE 2688 - SNMB, LTD. AND THE CITY OF CHULA VISTA (fIrst
reading)
Deputy City Manager Krempl stated that the same language change to Section 2.19, the
conveyance plan definition, and Section 11.2.4 was suggested. The other unique issue to the
SNMB agreement had to do with SR-125 and the right-of-way dedication. The developer had
asked them to include some additional language in Section 7.2.3, page 13 of the agreement.
With the prior agreements, the same condition was included. Subsequent to the June 25 hearing,
the applicant in discussion with staff had noted there was no chosen alignment at this point for
SR-125. There was a draft EIR and alternatiye alignments. Three suggested alignments would
go through the SNMB ownership, referred to as the GDP alignment, Brown Field alignment,
and a Brown Field alignment modified. The developer was willing to dedicate the right-of-way
for the freeway but if it was an alignment other than the alignment on the GDP, they wanted to
be made whole in terms of their land uses that would be lost by virtue of the freeway being
realigned to some other location. . Staff had included Section 7.2.3 that the City would
reasonably consider in its discretion, with proper environmental review, a request to relocate any
displaced land uses if an alternative other than the GDP alternative was selected. That language
--
PC Minutes
-7-
August 6, 1996
or something along those lines had been initia11y suggested by the developer; however, they had
concluded that that wasn't enough, and staff could not proYide the absolute guarantee that they
wanted. The deyeloper's recommendation was to obligate them only to dedicate the 125 right-
of-way depicted on the general deyelopment plan, and if there was any other alternative, that
would be subject to a meet-and-confer between the parties. Regarding Mr. Smith's comment
about the easements, Mr. Krempl said those easements were being granted to the County of San
Diego and not to the City of Chula Vista. Also, there were nuisance issues regarding compatible
actiyities adjacent to the landfill within 1,000 feet. They did not preclude the owner getting a
fair economic return nor reasonable use of that property. It did limit non-residential uses within
that 1,000 feet.
Commissioner Willett stated that the CalTrans map did not show the dotted line for SR-125.
He was concerned that it would confuse the public at the public forum to be held, when it
showed only two alignments. Mr. Jamriska replied that the dotted line was the alignment shown
in the GDP. Mr. Krempl stated that the three alignments were strictly with respect to this one
property owner and this development agreement.
Mr. Googins noted that the GDP alignment was not currently being considered and evaluated
by CalTrans. That was why they would not want to have a development agreement that only
compensated that.
.---......
Mr. Krempl further commented that on the Brown Field modified alignment, it was staff's
understanding that where that alignment splits off from the GDP alignment, it only impacted
open space on the deyeloper's land use pIan. So there would be no land use impact from that
alternative. The Brown Field alignment, however, did impact approYed GDP land uses.
This being the time and the place as advertised, the public hearing was opened.
Donald Worley, representing SNMB, stated that the dedication for SR-125 was a major deal
in terms of the agreement. There was no legal way the City could have extracted this as part
of the normal deyelopment of a subdiyision process. It was only through that agreement that
that dedication was made. They were content with that, but they were concerned about how to
fairly deal with the unknown. They could make the commitment to dedicate SR-125 if it was
either the GDP alignment or the Brown Field modified alignment. The problem came in with.
the Brown Field alignment which had a major impact on their land uses. The agreement could
. .
not lega11y commit to future action. Mr. Worley said that Section 7.2.3 was a loser; it did not
giye the developer any comfort because it did not bind the City to do anything. The developer
could not be expected to make a commitment totally blind. Both parties should suffer the
uncertainty and both should deal with the uncertainty and commit that they would meet and
confer in good faith to resolye the issue. Until that was resolved, they ~ould not be expected
to make a commitment to dedicate right-of-way when they did not know where it was going to
go.
Commissioner Willett asked if they liked the Brown Field modified alignment. Mr. Worley said
either the Brown Field modified or the GDP alignment would be fme with them. They would
agree with the language in 7.2.1 to the extent it identified those two alternatiye alignments, but
PC Minutes
-8-
August 6, 1996
if it was any other language than that, they would want new language that just says if it was
another alignment that they would meet and confer concerning the dedication and concerning
replacement of land uses,
No one else wishing to speak, the public hearing was closed,
In response to Commissioner Thomas, Mr. Krempl said it was a policy issue, and staff felt and
would argue that this was a quid pro quo for entering into the development agreement and was
one of the things that the City felt it was getting, needs to get, and wants to get. There was
some uncertainty there, The City was willing to address it fairly in the future, but there could
not be a guarantee or predecision made. That was understood with the other development
agreements, and included in a similar fashion. While acknowledging Mr, Worley's point, staff
felt it was part of the business deal that was made in consideration of the agreement.
Attorney Googins said it was a yalid provision for the City to ask for this and for them to agree,
Staff's version of the provision was enforceable and appropriate, The applicant still had an
opportunity to comment on the EIR.
Commissioner Salas thought staff wanted the language to remain the same, but if there was the
Brown Field alignment, you would revisit it with the developer.
Mr. Krempl replied that that was the developer's proposal. Attorney Googins stated there was
one caveat. There was a provision where the City could reasonably consider their request to
relocate the land uses, if in fact there was an alternative alignment. In effect they would be
revisiting it but not with the meet and confer concept that they were proposing.
Commissioner Salas asked what was the difference between meet and confer and reasonably
considering,
Attorney Googins said the material difference between what the applicant was proposing and
what the City was proposing was the City wanted the applicant to dedicate whatever the
alignment was determined to be, and in fact if was the alignment that caused them some land
use parting, the City would agree to consider appropriate reallocation of those land uses. They
wanted to commit only to the GDP alignment or the Brown Field modified alignment. The
applicant did not want to be obligated to dedicate the Brown Field alignment until they met and
conferred with the City and gaye them adequate assurance that relocation of those land uses
would be effectuated before they are committed to dedicate the Brown Field alignment,
Commissioner Salas thought that sounded reasonable. She thought the City was asking them to
perhaps give away too much.
Mr. Krempl replied that if that was taken as an isolated item it would be easy to reach that
conclusion. They needed to look at it in the context of the total development agreement. On
the City's side, there was the issue of dedicating the right-of-way of SR-125 regardless of its
location in exchange for vesting their land use, entitlements, giving them a 20-year development
agreement, etc.
PC Minutes
-9-
August 6, 1996
Commissioner Willett noted that the SR-125 Committee was going forward in recommending
the modified Brown Field alignment, which had less impact on the development, less impact on .
the environment, and did not impact the La Medja road going through,
Commissioner Tuchscher thought that. the way staff had added the language was that regardless
of the alignment, there was certainty from the City's standpoint that SR-125 could be built
through that area. Without staff's language, it becomes uncertainty relative to that segment of
SR-125 in that if it yaries from the GDP, it was contingent upon seeking agreement with that
land owner relative to land use. So, the whole freeway segment becomes an unknown. By
adding that language, the City was trying to make sure that dedication was there. Mr.
Tuchscher felt that a change of land use that kept their total number of units and densities, etc.
would be something he would look at very favorably. He would look at shifting those land uses
to compensate them and make sure that they were made whole. That could not be done at this
meeting. They had to, from the City's perspective, make sure that SR-125 did not haye a weak
link and could be built with certainty that the alignments were in place.
Commissioner Salas asked if there was something that could be used that would be stronger that
would assure the developer rather than "shaH reasonably consider" or was that as much of a
guarantee that could be given the developer.
Mr. Krempl said there had to be discretion, and there had to be environmental reyiew. So it
was not an absolute. He did not know if there was anything short of an absolute that would
satisfy the developer.
Commissioner Thomas thought that due to the magnitude of SR-125, eyeryone needed to
acknowledge that SR-125 had to be built. The I'lanning Commission should make a commitment
to that, and keep the City in control to guarantee that SR-125 would be built because it was such
a main artery to the viability of the East County, It had to be built, He wanted the City to be
able to negotiate.
MS (Tuchscher/Thomas) to approve the development agreement as presented by staff with
the changes noted.
Commissioner Salas said she understood how the deyeloper would have some hesitation about
the language in this, because there was no guarantee for it, but she had to agree with
Commissioner Thomas that SR-125 was absolutely necessary. She would support the motion.
VOTE: 5-0 (Commissioners Ray and Tarantino absent)
Since Commissioner Ray had not yet arrived, Vice Chair asked if the Commission would like
to entertain a motion to excuse him.
MSUC (Tuchscher/Thomas) 5-0 to excuse Commk~ioner Ray because of business
commitments.
PC Minutes
-10-
August 6, 1996
ADJOURNMENT at 7:20 p.m. to the Regular Business Meeting of August 14, 1996, at 7:00
p.m. in the Council Chambers.
l-~ 16-' L
N-~~y Ripley, sect~tf
Planning Commission
(m: lhomelplanning\nancy\pt96minlpc8-6. min)
'j
..-/
-" ,
-""i
MINUTES OF A JOINT MEETING OF THE CITY COUNCIL AND PLANNING COMMISSION
OF THE CITY OF CHULA VISTA
Tuesday, June 25, 1996
6:10p,m.
Council Chambers
Public Services Building
CALL TO ORDER
1. ROLL CALL:
PRESENT:
Councilmembers Alevy, Moot, Padilla, Rindone, and Mayor Horton..
Commissioners Davis, Ray, Salas, Tarantino, Thomas, Tuchscber, and Willett
ALSO PRESENT:
John D. Goss, City Manager; Ann Moore, Interim City Attorney; and Beverly
A. Authelet, City Clerk
PUBLIC HEARINGS AND RELATED RESOLUTIONS AND ORDINANCES
2. PUBLIC HEARING ADOPrING OTAY RANCH PRE-ANNEXATION DEVELOPMENT
AGREEMENTS Staff recommends the Council and Planning Commission place the ordinances on first reading.
(Deputy City Manager Krempl)
A. ORDINANCE 2679 ADOPrING THE PRE-ANNEXATION DEVELOPMENT AGREEMENT
BETWEEN THE CITY OFCHULA VISTA AND OTAYRANCH, L.P., A CALIFORNIA PARTNERSHIP,
TIGER DEVELOPMENT TWO, A CALIFORNIA LIMITED PARTNERSHIP BY TlGERHEART INC., A
CALIFORNIA CORPORATION, ITS GENERAL PARTNER, VllLAGEDEVELOPMENT, A
CALIFORNIA GENERAL PARTNERSHIP (first readil1!!)
B. ORDINANCE 2680 ADOPrING THE PRE-ANNEXATION DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF CHULA VISTA AND SNMB, LTD., JEWELS OF CHARITY, AND STEVEN
AND MARY BmCH FOUNDATION (first readil1!!)
C. ORDINANCE 2681 ADOPrING THE PRE-ANNEXATION DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF CHULA VISTA AND UNITED ENTERPRISES LTD., A CALIFORNIA
LIMITED PARTNERSHIP (first readin!!)
D. ORDINANCE 2682 ADOPrING THE PRE-ANNEXATION DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF CHULA VISTA AND GREGORY T. SMITH AND GEORGIANA R. SMITH
(first readin!!)
City Manager Goss stated that there has been a lot of interest in the development agreements from the property
owners of the Otay Ranch. A lot of it centers on the fact that there is some major land use and jurisdictional issues
tbat are occurring at this time, There has been a modification of our sphere of influence. Coming up next week
before LAFCO is further modification of our sphere of influence to basically include the-entire western parcel as
well as the annexation of that parcel into the City of Chula Vista. The process has been streamlined considerably
in order to meet the LAFCO deadline.
Deputy City Manager Krempl presented the staff report.
Acting City Attorney Moore stated that the only section of the development agreement that is effective on the first
reading is the section which specifically deals with the owner's consent upon annexation, but the agreement itself
becomes effective upon the effective date of the annexation.
Minutes/Joint City Council/Planning COIllli">sion
June 25, 1996
Page 2
Councilman Rindone asked if Mr. Krempl would review the key points on the ElTata Sheet for the pre-annexation
development agreements, Also, he asked if the Planning Department's recommendation regarding the length of
validity for the tentative subdivision maps was also the staff's position?
Deputy City Manager Krempl responding to Counci1ma.D Rindone's last question first, stated that staff did not come
up with a recommendation. Staff was unanimous that they did not want the map to be co-terminus with the length
of the term in the agreement. And they were unanimous that small maps did not warrant special exceptions; larger
maps probably did. The Planning Department's position was defensible, and management would support it as well
as having Council review maps after a specific period of time is viable, but whether that time is six years or longer,
he was not sure. He personally did not have a problem with maps between 0 and 500 dwelling units coming under
the standard Map Act time frames; for maps between 500 and 3,000 units, they might have a ten year term with
the ability of going longer if it was larger than 3,000 units.
Deputy City Manager Krempl stated that in terms of the ElTata Sheet, the first change -is regarding the Preserve
Conveyance Plan; it deals only with the Greg Smith agreement. The language previously stated was that they would
agree to a Conveyance Plan yet to be adopted since they do not currently have a Conveyance Plan. We agreed that
the City and the developer would mutually agree upon a Conveyance Plan, and they would have to have a
Conveyance Plan before they could get a SPA plan approved, Subsequent to that, the City shall in good faith
consider for adoption such plan; but once adopted, the developer wonld be obligated to convey property and/or pay
fees in lieu of land set forth in such plan. In terms of the Foundation agreement, the first change was clarification
because previously we had a statement regarding the developer being able to request a transfer of units from
Villages 3 to Villages 2, 4, and 8. Village 3 is the only village where there was a discrepancy between the City
and the County. On the next one, the reason the Preserve Conveyance Plan is lined out in this provision is because
Village Properties and Otay Ranch LP already have a Preserve Conveyance Plan. The others are not significant;
they are basically clean-up language or eIiminating some redundancies.
Councilman Rindone asked what has been the common practice for Cbula Vista in regards to the length of term for
tentative maps?
Planning Director Leiter replied that we have not had a map as large as 3,000 unit. The largest map, EastLake
Greens, has been about 2,500. We have not extended the original period of the tentative maps beyond the
Subdivision Map Act time frame. Sunbow was given the Map Act time frame of three years. It has been extended
once. The legislature has enacted two extensions of maps in the last two years, So Sunbow was granted another
two years by operation of law. They have had about six years on their map, and they have about another year
before it is scheduled to expire.
Councilman Rindone stated that he was trying to gain clarification as to the reason staff was considering ten years
when we haven't approached that number even with a 2,500 unit map.
Planning Director Leiter responded that staff's recommendation was to not grant those kinds of extensions. That
is why the options have been provided. Option 4, which the Planning Department favored, would give the City
Council the option of granting extensions beyond the Map Act, but do it on a map-by-map basis.
Commissioner Ray stated that the GMOC had quite a debate about not wanting to change those threshold standards
without Council's direction. There were a couple of areas in which they were on the borderline with the threshold.
He asked for clarification relating to the GMOC standards,
Deputy City Manager Krempl stated that they would be subject to all the threshold standards. In terms of changes,
we have included in that new rules, regulations, policies, ordinances, or standards which included growth
management, would need to be applied generally to all private projects either city-wide east of 805 or within a .
specific benefit fee reimbursement district. In order to achieve a comfort level, it is stated that the changes to be
made in the future should be consistent with the preamble and intent of the growth management ordinance as stated
in the present growth management ordinance. As long as changes are made consistent with the preamble and were
-- .-'\
tv. ~....s/Joint City Council/Plann.ing Commission
June 25, 1996
Page 3
applied to all private development either east of 805 city-wide or in a specific benefit fee reimbursement area, you
could make those changes.
Commissioner Ray stated that the GMOC had some discussions relative to the first two phases regarding the
aec.sses and impacts to the roadways. He felt that any changes that the City might impose needs to be contained
in the language of the agreements since the GMOC bas had some concerns regarding interim violations of threshold
standards.
. '.
Councilman Alevy asked if we can we change, the threshold and require .the developer to change midstream.
. .
Planning Director Leiter replied that it would depend upon the specific threshold standard. We do put conditions
on all of the approved plans that say that if a threshold is violated, then the City can, even if a tentative or fina1 map
has been approved, withhold building permits.-c.The City d_ have the ability to enforce the existing thresholds.
If you are looking at cIianging a park standard CrOm 3. acres per 1,00<) to 5 acres per 1,000, there are provisions
in the Map Act and city ordinances that would make it difficult to apply it retroactively to an approved teIitative
map. This is a case where the Map Act would come into play.
Acting City Attorney Moore stated that we typically enforce those types of thresholds by withholding building
permits, and we place that as a condition of the tentative map that the developer agrees to the City withholding
building permits.
Commissioner Ray asked if the City is really limiting development based on withholding permits and is it having
any real effect?
Planning Director Leiter stated that the City bas held up building permits with regard to traffic thresholds and did
so with the EastLake project for a period of time. Since that time, there has not been any violations of the traffic
threshold standard. What Commissioner Ray is referring to is that we also do forecasts and evaluate plan
development and can predict if certain roadways are not completed in a timely manner, there could be threshold
violations. The GMOC reports are looking ahead.. Its the intent of staff to identify those problems early on and
get the public facilities built SO that the violations do not occur. AI; that system is implemented, there shouldn't be
any violations. If there were, there are ordinances in effect which would cause the staff to report it to City Council
and recommend that there be a moratorium on building permits until the threshold compliance problem is resolved.
Councilman Moot asked what the affect a voter initiative could have on a development agreeroent? Could it
override a decision of the City Council.
."
Acting City Attorney Moore responded that in her opinion, it does not because of the Charter provision which
basically states that the City cannot do anything to do away with the initiative process. So, it is her opinion, that
an initiative could possibly impact a development agreement.
This being the time and place as advertised, the public hearing was declared open.
eCindy Eldred, 401 'B' Street, San Diego, 92101, representing United Enterprises, the owner of the property on
which the rock quarry operates. She requested that Council approve the agreement with United Enterprises with
two modifications to the language. (I) Staff had recommended a term of 20 years for the development agreement;
United Enterprises requests a term. of 40 years. They are not in a position to immediately move forward with the
ultimate development of its property. For this reason, United Enterprises is not in an immediate position to benefit
from the advantages of annexation. Accordingly, United Enterprises would not now apply for annexation to the
City of Chula Vista.. Nevertheless, they are prepared to consent to and cooperate with the city's applications related
to annexation provided that United Enterprises receives some benefit from the agreement. (2) The agreement, as
presented by staff as it relates to the growth management ordinance, does not adequately protect the development
of the property consistent with existing project approvals as they are defined in the agreement. The provisions of
the last sentence of paragraph 5.2 of the agreement are inconsistent in regard to other provisions of the paragraph,
and the protections of those other provisions, They requested that the last sentence of paragraph 5.2 be revised
Minutes/Joint City Council/Planning CQlIlIwssion
June 25, 1996
Page 4
accordingly to include language which has been stricken out in the other agreements. Finally, to address staffs
discussion regarding the term of tentative subdivision maps for the property approved during the term of the
agreement, they requested that Council retain the language in paragraph 6.2 of the agreement pertaining to UE.
That language now states that the tentative map for theyrojects up to 3,000 dwelling units would have lives up to
10 years, and tentative maps for projects in excess of 3,000 dwelling units would have lives of 10 years plus one
year for each 300 dwelling units over 3,000.
. Don Worley, 101 West Broadway, Ste 1300, San Diego, 92110, representing SNMB, LTD, Birch
Foundation, and Jewels of Charity. He stated that they had some policy concerns: (I) growth management and
(2) term of the agreement. One of the growth management techniques they are concerned about is building permit
limitations. Growth management by building permit cap is becoming passe. While the growth cap has been the
sledge hammer approach, growth management advocates now realize that the most effective way to stop growth is
to change the standards for public improvements. They need protection against arbitrary, unreasonable growth
management standards. They requested that Council preserve the language that they asked to be put into section
5,2. He also requested that Council give very careful consideration to a longer term for the development agreement.
. Gwyneth Campbell, 555 S, Flower Street, 23rd Floor, Los Angeles, 90071, representing West Coast Land
Fund, the senior secured creditor as to the Tiger Development II property. She requested a 30 day continuance of
the hearing due to the bankruptcy of Tiger Development II pending in San Diego. They needed to give the
bankruptcy court an opportunity to address issues of injunctive relief. The pre-annexation development agreement
affects unique bankruptcy issues in at least two aspects: (I) violation of the automatic stay, and (2) requires
bankruptcy court approval for certain debtors use of property of the estate if it is outside the ordinary course of
business. The City Council, without bankruptcy approval, cannot adopt anything which affects the property such
as dedication of land, granting of easements, payment of fees, or specifications or limitations on uses with respect
to that property. She requested Council consider these pervasive bankruptcy issues that are going to undo what you
seeIc to do which is to obtain certainty with respect to development of the Otay project area.
. Kim Kilkenny, 11975 EI Camino Rea!, San Diego, representing Village Development. Regarding the two
policy issues, he stated they supported the longer duration of 40 years; relative to the issue of changes in growth
management thresholds, they wanted to malee certain that thresholds are not changed so that those thresholds could
prevent development of the plans or unreasonably delay the plan, Regarding the duration of the tentative map, they
have a tentative map which has 5,600 units. It will be the largest Otay Ranch tentative map. They were asking
that it be vested consistent with the language in the draft agreement; that is for the first 3,000 units, it is vested for
10 years. It will be vested one year for every 300 units thereafter, so they will get a vesting of approximately 19
years for SPA I tentative map. He asked for language in alternative 6, which recognizes the smaller than 500 unit
subdivision, be guided by state law and thereafter use the 300 units per year rule. He requested that Council go
forward SO that the project can succeed.
. Jim Jolmsnn, 31900 Foxmoore Court, West Lake Village, 91361, representing Baldwin Builders stated that
unfortunately they learned about the meeting rather late. They noticed that they did not have a development
agreement. Consequently, he had a meeting with staff and they think they have arrived at a solution that perhaps
within the next 30 days they can work out a development agreement. On that basis, they were prepared to go
forward with the recommendations of staff and with the annexation.
. Bill Brasher, 19661 Quiet Bay Lane, Huntington Beach, representing Baldwin Builders. He stated that he
has met with staff. As a result, they have agreed with staff on standards that they believe will work well for them.
That is why they will recommend going ahead. He read them into the record as follows:
(I) The City and Baldwin Builders agree to negotiate in good faith using due diligence to enter into
a development agreement covering our property in order to have the matter heard at the Planning Commission On
July 24, 1996 and the City Council by August 6, 1996.
M. ...;/Joint City Council/Planning Commission
June 25, 1996
Page 5
(2) Those matters that have been incorporated in the development agreements, between the City and
the other Otay Ranch Property Owners will be incorporated in our development agreement to the extent they are
applicable to our property.
(3) The City is willing to reasonably consider land use changes or modifications in a similar manner
as contained in Section 5 of the Foundation Development Agreement.
(4) We will have the right to participate in the determination of the fair allocation of any shared
obligations that affect or may in the future affect our property.
(5) Any negotiations and conveyances affecting the 93 acres of additional developable residential
property comprising approximately 460 units will be done, if at all, at one time.
(6) We have not had time to study the current Conveyance Plan, and at this time are not prepared to
agree to the requirement of SPA I that there be dedicated substantial open space acreage from our property.
Deputy City Manager Krempl stated that this generally reflects what has been discussed. We indicated that they
would be willing to negotiate and bring back a development agreement. Staff saw no reason why the standard
provisions that have been applied to the other properties should not prevail on the property as well. If they wanted
to process an application for some changes in land use, that could be done.
.* .* ... ... ... Commissioner Ray left at 7:37 p.m. ... ... ... ... ...
Special Projects Manager Jamriska stated that the Conveyance Plan ouly relates to SPA!. The general development
plan requires that prior to any approval of any SPA, the Preserved Conveyance Plan be prepared and adopted. A
Preserve Conveyance Plan was prepared, but the County and City could not agree upon the comprehensiveness of
the Conveyance Plan prepared by staff and so both agencies adopted only a Conveyance Plan for SPA I with the
stipulation being that prior to any other SPA being prepared, another Conveyance Plan for that particular SPA be
prepared. . As. it relates to the Baldwin Builders issue, the land was initially under the control of Village
Development and they proposed, and we agreed, that the Conveyance Plan for SPA I would be in the Salt Creek
area for several reasons: (1) it met the criteria contained within the Resource Management Plan and the resource
agency's desire that it would be the first area of conveyance because of the prime habitat which exists there. The
issue today is that with the splitting up of the companies, Village Development,which controlled basically all of SPA
I, Conveyance Plan impacts the Baldwin entity who controls the land in Salt Creek, so therefore, some discussions
have to occur between now and when the development agreement is prepared for Council which addresses that issue.
Commissioner Tuchscher asked if the specific property they owned was not within SPA I? Mr. Brasher responded
that their specific property which they owned was not within SPA!. The total acreage was approximately 2,000
acres.
...
Special Projects Manager Jamriska stated that the issue is the nexus between the ownership of the entitlements andvthe conveyance of the open space.
Commissioner Tuchscher stated that we have a situation where we have off site mitigation requirements that are not
owned by the same entity that is developing the project. How did Council deal with the in lieu of fee issue.
Special Projects Manager Jamriska stated that there is a condition attached to the SPA that the obligation to convey
land to the Preserve can either occur through the conveyance of land to the preserve owner/manager, the payment
of fees in lieu of conveyance of land, or an easement can be placed over a portion of land with all other liens on
the property taking a SubOrdinate role. The methodology of payment in lieu of fees has not been developed this for
Council's consideration.
Mr. Johnson stated that they had contributed land pursuant to SPA!. So when they did a SPA on their property"
they have no land left to contribute. These are the types of things to be worked out.
Minutes/Joint City Council/Planning COID.J......sion
June 25, 1996
Page 6
Commissioner Tarantino stated this was the first time that Baldwin Builders is now an entity on the Ranch. He was
under the impression that they did not have entitlement on the Rancho, but now you are saying there is ownership.
Is that because of the fact that up until you were appointed trustee that you had no entity?
Mr. Johnson replied that there has been ownership on'the Ranch prior to that time by Baldwin BuiJders. What
happened was they were all controlled by the same parties, so basically everything was presented by the same entity,
Village Properties. There was not a distinction between the two.
Gregory Smith, P. O. Box 2786 Rancho Sante Fe 92067. Regarding the terms, he felt 40 years was perhaps too
long, but the problem he has with 20 is that the annexation is forever. The open space that we going to convey in
the agreements is for the full term of the development agreement. There is no 'out' in the agreements for that.
He suggested that a longer term for the property owners would be more reasonable, Regarding the growth
management language on paragraph 7.3, it states that we are subject to the existing growth management thresholds
and you can stop the issuance of building permits. The language that we are asking for in 5.2 is that the
amendments cause no unreasonable delay. All they were asking for is that the amendments not create a greater
issue or problem.
There being no further public testimony, the public hearing was declared closed.
PLANNING COMMISSION MEETING
Commissioner Thomas asked for clarification of section 5.1 for United Enterprises and how the past agreement with
the rock quarry affected this.
Deputy City Manager Krempl responded that he wasn't aware of any agreement with the City in the past on the
quarry. The applicant is asking that the quarry in the County predate a requirement by the County to have a use
permit. It would come into the City and be annexed and retain its legal non-<:onforming status upon annexation for
as long as the current operation of the quarry was not expanded and would exist until they ceased operation. If the
quarry applies for new permits with the City, that would go through a Conditional Use Permit process and be
reviewed by the Planning Commission and Council.
Commissioner Thomas asked if section 10.2 was a standard statement. He read that there were so many
requirements that if a majority of the requirements are met, the other requirements are being satisfied.
Attorney Peggy McCarberg stated that this was standard language because the details are so myriad that we do not
insist that they review every single detail; but if we find substantial compliance which is the statutory requirement,
then we do accept that. If staff has a particular question, then that question has to be addressed, but we don't make
them go over every single detail.
Commissioner Thomas in questioning section 7.5, asked if there was a debit to the undeveloped property when the
new owners start developing the undeveloped property and there has been an assessment district or the City has
advanced monies, will this be reimbursed back to the City.
Public Works Director Lippitt stated that if there is an assessment district, then the debt is put on the property.
Reimbursements are something where the developer may, with his funds, put facilities in that are not in the
assessment district, then he would get credits. If the City does advance funds, then they are obligated to pay it or
other parties would have to pay it. The City would then create a reimbursement district for the developer.
Commissioner Tarantino stated that during the history of the GMOC, he could only recollect changes in the
threshold standards for police, fire, and traffic only because they used a different way of calculating how traffic was
going to be monitored.
Planning Director Leiter stated this was basically correct. The traffic threshold was updated four or five years ago,
and it was basically to change the methodology, not to change the hasic standard. He did not believe that the police
.-
M. .../Joint City CouncillPlanning Commission
June 25, 1996
Page 7
and fire thresbolds bave been amended. There bas been discussion about future updates once the CAD system is
put into place, but City Council has not taken action to amend those.
Commissioner Davis stated that her concern was that United Enterprises was going to look at expanding in the
future. . Will this be setting them up to have a hard time to do that. Would 20 years have an impact on this? "
:", p' ',.
Planning Director Leiter stated that they would have the opportunity, at any point, to come fOIWard and request a
zone change or for a general plan amendment to more directly reflect the existing land use. They could also request
a conditional use permit to expand the uses, There is nothing in the development agreement to limit their ability
to do that. They would have the ability to operate under the existing authority within the existing parameters of
the quany without regard to the terms of the agreement.
Commissioner Tuchscher stated that he felt we should stay with the California Map Act standards. If some future
Council chose to extend a map for some reason, they could do so. As far as the development agreement, he was
comfortable with the 20 years.
Commissioner Salas stated she would support the staff recommendation of a 20 year agreement because the City
has to Preserve its flexibility in order to look at how the progress of the (:ity is going. She felt the 40 year period
was too drastic.
Commissioner Davis stated she would agree with the staff recommendation on the tentative map for ten years. She
did not have a concern with the outdatedness, because a developer would not build a product that he would not be
able to sell. Sbe saw a problem wben asking a commitment from the developer to put in a lot of infrastructure.
If be bas to put in East Orange upfront, be bas to have the opportunity to compensate himself. Sbe supported the
staff recommendation of the ten years up to 3,000 units.
Commissioner Tucbscber expressed his concern was the lack of infrastructure in the initial pbases.
Commissioner Willett concurred with the 20 year development agreement.
M (Willett) that we forward the recommendatioo of first reading of Ordinances 2679, 2680, 2681, and 2682
placed before them as modified by the Errata Sheet and with the comments that staff has proposed.
S (Tarantino) seconded tbe motion for discussion purposed. However, be was confused as to whicb comments
were to be included. ..
Deputy City Manager Krempl stated that the ordinance before them bas a term of 20 years, bas the controversial
sentence on growth management stricken, and in terms of the length of the tentative map it has the 10 years for 0-
3,000 units, phis an additional year for every 300 units.' ,. . " "J . . .
Commissioner Willet stated that the option of 500 units or less should be subject to the Map Act, and between 500
and 3,000 bave a term of 10 years with every additional 300 get an additional year.
.' . .: <
City Clerk Authelet read the motion: MS (WillettfTarantino) for the first reading of the ordinances as amended:
length of validity of the tentative map pursuant to Option 6, length of development agreement to have a term of 20
years, and to strike last sentence in section 5.2 in the Errata Sheet.
VOTE ON MOTION: Approved 4-2-1 (Thomas and Tucbscher, no; Ray absent)
CITY COUNCIL MEETING:
Councilman Moot asked under the Map Act you get three years and then a three year extension. The right of that
extension is controlled by the wbom? What option gives us this affect?
Minutes/Joint City CouncillPlanning Coriu...."sion
June 25, 1996
Page 8
Krempl stated that the City has the right to approve that extension. The intent was to give an automatic six years
and then have Council approval for a time period beyond that. This is Option 4.
MSUC (MooURindone) to support the Planning COli1mission's decision of the 20 year tenn, support the
language regarding the GMOC stated in section 5.2 with the last clause stricken, and to support Option 4
which makes all tentative maps good for six years with a renewal after that with the Council's discretion.
Ordinance Nos. 2679, 2680, 2681, and 2682 offered by Horton, reading of text waived, and headings read. Motion
approved 5-0.
Mr. Brnshaw stated that they did request, with staffs concurrence, that we get an expression by City Council that
the request they made in regard to the six conditions.
MSUC (MooUHorton) that Baldwin Builders and staff pursuant to the six conditions stated attempt to
negotiate a development agreement by August 6.
ORAL COMMUNICATIONS
There were none.
OTHER BUSINESS
3. CITY MANAGER'S REPORTCS): None
4. MAYOR'S AND CHAm'S REPORTCS): None
5. COUNCIL AND COMMISSIONERS COMMENTS: None
ADJOURNMENT
The Planning Commission meeting adjourned at 8:20 p.m. to a regular meeting of the Commission on June 26, 1996
at 7:00 p.rn. in the City Council Chambers; The City Council adjourned at 8:20 p.rn. to a Closed Session and
thence to a special meeting/worksession on the budget scheduled for June 25; 1996 following the Closed Session.
Respectfully SUatted~
~Uthelet, CMC/AAE
City Clerk
PRE-ANNEXATION DEVELOPMENT AGREEMENT
THIS PRE-ANNEXATION DEVELOPMENT AGREEMENT ("Agreement") is
made effective on the date hereinafter set forth below by and among
the CITY OF CHULA VISTA ("c:i,ty") and SNMB, LTD. ("SNMB"), who agree
as follows:
1. RECITALS.
following facts:
This Agreement is made with respect to the
1. 1 Owner. The owners of the properties subj ect to this
Agreement (hereinafter collectively referred to as "Owner" or as
"Developer") are as follows:
1.1.1 SNMB is the owner of approximately 1,827
acres of undeveloped real property ("the SNMB Property") in
the unincorporated area of the County of San Diego ("County"),
described in Exhibits "A" and "E, attached hereto and incorpo-
rated herein by this reference.
1.1. 2 The SNMB Property (the "Property") is part
of a larger area commonly known, and referred to herein, as
"the Otay Valley Parcel of Otay Ranch." Portions of SNMB
Property are located in villages 2, 3, 4, 7, 8, 9 and Planning
Areas 12 and 18B of the otay Ranch Property.
1. 2 citv. The City of Chula vista is a municipal
corporation with Charter City powers incorporated within the
county.
1.3 Code Authorization and Acknowledqments.
1.3.1 city is authorized pursuant to its
charter, self-rule powers and California Government Code
sections 65864 through 65869.5 to enter into development
agreements for the purpose of establishing certainty for both
City and owners of real property in the development process.
1.3.2 Government Code section 65865 expressly
authorizes a city to enter into a development agreement with
any person having a legal or equitable interest in real
property in unincorporated territory within that city's sphere
of influence for the development of property as provided in
the Development Agreement Law; provided that the agreement
shall not become operative unless annexation proceedings
annexing the property to the city are completed within the
time specified by the agreement.
1.3.3 city enters into this Agreement pursuant
to the provisions of the California Government Code, its home-
rule powers, and applicable City ordinances, rules, regula-
tions and policies.
-1-
1.3.4 city and Owner intend to enter into this
agreement for the following purposes:
1.3.4.1 To assure adequate public facilities
at the time of development.
1.3.4.2 To assure development in accordance
with city's capital improvement plans.
.
1. 3 .4. 3 To provide certainty to Owner in the
development approval process by vesting the permitted
use(s), density, intensity of use, and the timing and
phasing of development as described in the Development
Plan, which is defined in Paragraph 2.4 of this Agree-
ment, in exchange for Owner's entering into this Agree-
ment and for its commitment to support the Annexation
described below.
1.3.4.4 To permit achievement of City growth
management goals and objectives.
1.3.4.5 To allow city to realize significant
economic, recreational, park, open space, social, and
public facilities benefits for the city, some of which
are of regional significance.
1.3.4.6 To provide and assure that the city
receive sales tax revenues, increase in the property tax
base, residential housing and other development, sewer,
water and street facilities.
1.3.4.7 To provide and assure that the City
receives public facilities in excess of project generated
impacts and such facilities shall be of supplemental
size, number capacity or length, which shall be provided
earlier than could be provided either by funds from the
city or than would strictly be necessary to mitigate
project related impacts at any development phase.
1.3.4.8
support to secure
Exhibit "B".
To provide the City the developer's
annexation of the lands depicted in
1. 3 . 4 . 9 To enable the City to secure title to
the land within the boundaries of the Property necessary
to complete the Chula vista greenbelt system as defined
in the Chula vista General Plan.
1. 3.4.10 To assure the city that the Developer
will dedicate rights-of-way to the City for SR-125, a
route which, when constructed, will substantially
alleviate congestion on I-80S and I-5, and also will
facilitate the eoonomic development of Chula vista.
-2-
1.3.4.11 Because of the complexities of the
financing of the infrastructure, park, open space, and
other dedications, and regional and community facilities,
and the significant nature of such facilities, certainty
in the development process is an absolute necessity. The
phasing, timing, and development of public infrastructure
necessitate a ~ignifioant commitment of resources,
planning, and effort by Owner for the public facilities
financing, construction, and dedication to be success-
fully completed. In return for Owner's participation and
commitment to these significant contributions of private
resources for public purposes and for Owner's consent to
the Annexation described below, city is willing to
exercise its authority to enter into this Agreement and
to make a commitment of certainty for the development
process for the Property. .
1.3.4.12 In consideration of Owner's agreement
to provide the significant benefits and for Owner's
consent to the Annexation described below, city hereby
grants Owner assurances that it can proceed with develop-
ment of the Property in accordance with city's
ordinances, rules, regulations, and policies existing as
of the effective date of this Agreement subject to
Section 5.2.1 below. Owner would not enter into this
Agreement or agree to provide the public benefits and
improvements described in this Agreement if it were not
for the commitment of city that the Property subject to
this Agreement can be developed in accordance with City's
ordinances, rules, regulations, and policies existing as
of the effective date of this Agreement subject to
Section 5.2.1 below.
1.4 The Annexation. On July 1, 1996, the Local Agency
Formation Commission ("LAFCO") approved annexation of Sphere of
Influence Planning Area 1 "The Otay Parcel", Planning Area 2
"Inverted L" and the Mary Patrick Estate Parcel (see Attachment
"B") .
1.5 Sphere of Influence. On February 5, 1996 and July
1, 1996 the Local Agency Formation Commission approved the
inclusion of Planning Area 1, "The "Otay Parcel", into the city
Sphere of Influence (Sphere of Influence Planning Area 1 "the Otay
Parcel", Planning Area 2 "Inverted L" and the Mary Patrick Estate
Parcel - see Attachment "B").
1.6 Planninq Documents. On October 28, 1993, city and
County adopted the Otay Ranch General Development Plan/Subregional
Plan ("the GDP") which includes the Otay Ranch Village Phasing
Plan, Facility Implementation Plan, Resource Management Plan and
service Revenue Plan, for approximately 23,000 acres of the Otay
Ranch, including the otay Valley Parcel and the SNMB property.
-3-
1.7 Owner Consent. city desires to have the cooperation
and consent of Owner to include the Property in the Annexation in
order to better plan, finance, construct and maintain the infra-
structure for the Otay Valley Parcel; and SNMB desires to give
their cooperation and consent, provided that they obtain certain
assurances, as set forth in ~his Agreement.
1.8 citv Ordinance.
date of adoption by the City Council of Ordinance
approving this Agreement. The ordinance shall take
in full force on the effective date of Annexation.
, 199~1. is the
No. U8&
effect and be
2. DEFINITIONS.
otherwise requires:
In this Agreement, unless the context
2.1 "Annexation" means the proposed annexation of that
portion of the Otay Ranch into the City as depicted on Exhibit "D".
2.2 "city" means the City of Chula Vista, in the county
of San Diego, State of California.
2.3 "County" means the county of San Diego, state of
California.
2.4 "Development Plan" means the GDP.
2.5 "GDP" means the General Development Plan/Subregional
Plan for the otay Ranch, described in Paragraph 1.6, above.
2.6 "Owner" or "Developer" means the person, persons, or
entity having a legal and equitable interest in the Property, or
parts thereof, and includes Owner's successors-in-interest.
2.7 "Project" means the physical development of the
private and public improvements on the Property as provided for in
the Existing Project Approvals and as may be authorized by the city
in Future Discretionary Approvals.
2.8 "Property" means the real property described in
Paragraph 1.1.1.
2.9 The "Term" of this Agreement means the period
defined in Paragraph 3, below.
2.10 "Builder" means developer to whom Developer has sold
or conveyed property within the Property for purposes of its
improvement for residential, commercial, industrial or other use.
2.11 "CEQA" means the California Environmental Quality
Act, California Public Resources Code section 21000, et seq.
2.12 "city Council" means the City of Chula Vista city
Council.
-4-
2.13 "Commit" or "Committed" means all of the following
requirements have been met with respect to any public facility:
2.13.1 For a public facility within the City's
jurisdictional boundaries and a responsibility of the develop-
er.
2.13.1.1 All discretionary permits required of
the Developer have been obtained for construction of the
public facility; and
2.13.1.2 Plans for the construction of the
public facility have all the necessary governmental
approvals; and
2.13.1.3 Adequate funds (i.e., letters of
credit, cash deposits, performance bonds or land secured
public financing, including facility benefit assessments,
Mello-Roos assessment districts of similar assessment
mechanism) are available such that the City can construct
the public facility if construction has not commenced
within thirty (30) days of issuance of a notice to
proceed by the Director of Public Works, or construction
is not progressing towards completion in a reasonable
manner as reasonably deemed by the Director of Public
Works.
2.13.2 For a public facility within the city's
jurisdictional boundaries, but to be provided by other than
Developer.
2.13.2.1 Developer's proportionate share of
the cost of such public facility as defined in the
existing Project Approvals and Future Discretionary
Approvals has been provided or assured by Developer
through the payment or impositions of development impact
fee or other similar exaction mechanism.
2.13.3 For public facility not within city's
jurisdictional boundaries:
2.13.3.1 Developer's proportionate share of
the cost of such public facility as defined in the
existing Project Approvals and Future Discretionary
Approvals has been provided for or otherwise assured by
Developer to the reasonable satisfaction of the Director
of Public Works.
2.14 "Development Impact Fee (DIF)" means fees imposed
upon new development pursuant to the City of Chula vista
Development Impact Fee Program, for example, including but not
limited to the Transportation Development Impact Fee Program, the
Interim SR-125 Development Impact Fee Program, the Salt Creek Sewer
DIF and the Public Facilities DIF.
-5-
2.15 "Existing project Approvals" means all discretionary
approvals affecting the Project which have been approved or
established in conjunction with, or preceding, the effective date
consisting of, but not limited to the GDP, the Chula vista General
Plan, the otay Ranch Reserve Fund Program adopted pursuant to
Resolution 18288, and the Phase I and II Resource Management Plan
(RMP), as may be amended from time to time consistent with this
agreement. -
2.16 "Final Map(s)" means any final subdivision map for
all or any portion of the Property other than the Superblock Final
Map ("A" Maps).
2.17 "Future Discretionary Approvals" means all permits
and approvals by the city granted after the effective date and
excluding existing Project Approvals, including, but not limited
to: (i) grading permits; (ii) site plan reviews; (iii) design
guidelines and reviews; (iv) precise plan reviews; (v) subdivisions
of the Property or re-subdivisions of the Property previously
subdivided pursuant to the Subdivision Map Act; (vi) conditional
use permits; (vii) variances; (viii) encroachment permits;
(ix) sectional Planning Area plans; (x) Preserve Conveyance Plan
and (xi) all other reviews, permits, and approvals of any type
which may be required from time to time to authorize public or
private on- or off-site facilities which are a part of the Proj~ct.
2.18 "Planning commission" means the Planning Commission
of the City of Chula vista.
2.19 "Preserve Conveyance Plan" means a plan that will,
when adopted, set forth policies and identify the schedule for
transfer of ~ land and/or fees to be paid to insure the orderly
conveyance of the Otay Ranch land to the Preserve Owner Manager.
The purpose of the plan is to fulfill the obligations to convey
resource sensitive land, per the criteria contained in the phase I
and II Resource Management Plans and to mitigate environmental
impacts of the Otay Ranch Project.
2.20 "Public Facility"
public facilities described
Implementation Plan.
or "Public Facilities" means those
in the Otay Ranch Facility
2.21 "Subdivision Map Act" means the California
Subdivision Map Act, Government Code section 66410, et seq., and
its amendments as may from time to time be adopted.
2.22 "Substantial Compliance" means that the party
charged with the performance of a covenant herein has sufficiently
followed the terms of this Agreement so as to carry out the intent
of the parties in entering into this Agreement.
2.23 "Threshold" means the facility thresholds set forth
in the city's Municipal Code section 19.19.040.
-6-
3. TERM. This Agreement shall become effective as a
development agreement upon the effective date of the Annexation
("the Effective Date"); provided, however, that if the Annexation
does not occur on or before July JaRuary 1, 1997, this Agreement
shall be null and void unless the annexation proceedinqs have been
extended by LAFCO. If the annexation proceedinqs have been
extended. this Aqreement shail become effective upon the effective
date of such Annexation; provided however. if the annexation does
not occur by the end of such extension(s). this Aqreement shall
become null and void. Any of the foregoing to the contrary
notwithstanding, from the date of the first reading of the
ordinance approving this Agreement, and unless or until this
Agreement becomes null and void, Owner shall be bound by the terms
of paragraph,i. The Term of this Agreement for purposes other than
Paragraph ,i shall begin upon the Effective Date, and shall continue
for a period of twenty (20) years ("the Term"). The Term shall
also be extended for any period of time during which issuance of
building permits to Owner is suspended for any reason other than
the default of Owner, and for a period of time equal to the period
of time during which any action by City or court action limits the
processing of future discretionary approvals, issuance of building
permits or any other development of the Property consistent with
this Agreement.
4. OWNER CONSENT TO ANNEXATION. Owner hereby consents to
and shall cooperate with the applications of City to declare that
the otay Valley Parcel is within city's sphere of influence and to
annex the otay Valley Parcel to the City; provided, however, that
Owner may withdraw such consent and withhold further cooperation if
the city, prior to the Effective Date, adopts rules, regulations,
ordinances, policies, conditions, environmental regulations,
phasing controls, exactions, entitlements, assessments or fees
applicable to and governing development of the property which are
inconsistent with, or render impractical development of the
Property according to, the Development Plan or the additional
commitments of City set forth in Paragraphs 5.1.1 through 5.1.8,
below. Owner also agrees not to challenge the annexation of the
otay Valley Parcel into the City.
4.1 The Developer understands and aqrees that this
Aqreement shall become effective and valid only upon the
Effective Date of the annexation proceedinqs. as more fully
described in paragraph 3 of this Aqreement. Developer further
understands that as a condition precedent to the completion of
annexation proceedinqs. and this Aqreement becominq effective.
certain property owners such as SNMB. Ltd.. are required to
provide certain easements and subordination aqreements
satisfactory to the County. Developer aqrees that the city's
second readinq of the Ordinance approvinq this Aqreement shall
not occur unless and until said subordination aqreements have
been accepted by the County. No terms of this Aqreement shall
be sub;ect to reneqotiation between the first and second
readinq of the ordinance approvinq this Aqreement except bv
mutual consent of the parties to this Aqreement.
-7-
5. VESTED RIGHTS. Notwithstanding any future action or
inaction of the City during the term of this Agreement, whether
such action is by ordinance, resolution or policy of the City,
Owner and Developer shall have a vested right, except as may be
otherwise provided in this Section 5, to construct the Project in
accordance with:
5.1 Existing ProJect Approvals, subject to the following
requests for modifications if approved by the City:
5.1.1 City shall reasonably consider in its
discretion and with proper environmental review, a request to
increase the residential density of Villages 2, 4, and 8, up
to the number of residential units provided in Village 3 by
the County adopted GDP.
5.1.2 Ci ty shall reasonably consider in its
discretion and with proper environmental review a request to
change the primary land use designation for Village 3 from
Industrial to commercial, recreational, visitor-serving, and
some residential uses in addition to the Industrial use. The
exact acreages of the residential, industrial, commercial, or
other uses, shall be agreed upon and set forth in a general
plan amendment.
5.1.3 If the interchange improvements at Otay
Valley Road and 1-805 are needed to serve the Project, the
City will hold appropriate hearings to consider an amendment
to its Transportation Phasing Plan (TPP) and Development
Impact Fee (DIF) Program to include said improvements as may
be deemed appropriate by the City to accommodate the project
phasing. The City agrees to reasonably oooperate and work
with CALTRANS to complete plans for said interchange improve-
ment.
5.1.4 ci ty shall initiate contact and diligently
pursue discussions with the County of San Diego and the City
of San Diego to determine the number, scheduling and financing
of the Otay River road and bridge crossings.
5.1.5 City shall allow the owner for purposes of
processing entitlements to proceed with planning of the
Property on a first come first served basis, with other
properties in the area of the Annexation. In addition, if
necessary the city shall, with proper environmental review,
consider in its discretion an amendment to the Village Phasing
Plan to facilitate the planning and development of the
properties covered by this Agreement.
5.1.6 To the extent any of the foregoing changes
are embodied in the Development Plan or the rules, regula-
tions, ordinances, policies, conditions, environmental
regulations, phasing controls, exactions, entitlements,
assessments, and fees applicable to and governing development
of the Property, whether adopted before or after the Effective
-8-
Date, such changes shall be deemed applicable to the Property
without change to this Agreement.
5.1.7 city shall diligently process any amend-
ments, applications, maps, or other development applications.
5.1. 8 City shall diligently process and reason-
ably consider in its- discretion with proper environmental
review a request to expand the development areas of Villages
2, 3 , 4 and 8 in the event future environmental studies
indicate that areas once oonsidered environmentally con-
strained can be developed without significant, unmitigable
environmental impacts.
5.1.9. city may make such modifications or amend-
ments to the Existing Project Approvals/Future Discretionary
Approvals, as may be ordered by a court of competent jurisdiction
in an action in which the Developer is a party or has had an
opportunity to appear or has been provided notice of such action by
the city.
5.2 Development of Property. The development of the
Property will be governed by this Agreement and Existing project
Approvals and such development shall comply and be governed by all
rules, regulations, policies, resolutions, ordinances, and
standards in effect as of the Effective Date subject to the
provisions of section 5.2.1 below. The city shall retain its
discretionary authority as to Future Discretionary Approvals,
provided however, such Future Discretionary Approvals shall be
regulated by the Existing Project Approvals, this Agreement, and
city rules, regulations, standards, ordinances, resolutions and
policies in effect on the Effective Date of this Agreement and
subject to section 5.2.1.
Notwithstanding the foregoing, the city may make such changes to
the City's Growth Management Ordinance applicable to the Project as
are reasonable and consistent with the purpose and intent of the
existing Growth Management Ordinance and which are generally
applicable to all private projects citywide or east of 1-805 or
within a specific benefit, fee or reimbursement district created
pursuant to the California Government Code.
5.2.1 New or Amended Rules. Requlations.
Policies. Standards. Ordinances and Resolutions. The City may
apply to the Project, inoluding Future Discretionary Approv-
als, new or amended rules, laws, regulations, policies,
ordinances, resolutions and standards generally applicable to
all private projects east of 1-805 or within a specific
benefit fee or reimbursement district created pursuant to the
California Government Code. The application of such new
rules, or amended laws, regulations, resolutions, policies,
ordinances and standards will not unreasonably prevent or
delay development of the Property to the uses, densities or
intensities of development specified herein or as authorized
by the Existing Project Approvals. The City may also apply
-9-
changes in city laws, regulations, ordinances, standards or
pOlicies specifically mandated by changes in state or federal
law in compliance with section 13.3 herein.
5.2.2 Developer may elect with city's consent,
to have applied to the project any rules, regulations,
polioies, ordinances or standards enacted after the date of
this Agreement. Such an election has to be made in a manner
consistent with Section 5.2 of this Agreement.
5.2.3 Modifications to Existinq Proiect
Approvals. It is contemplated by the parties to this
Agreement that the city and Developer may mutually seek and
agree to modifications to the Existing Project Approvals.
Such modifications are contemplated as within the scope of
this Agreement, and shall, upon written acceptance by all
parties, constitute for all purposes an Existing Project
Approval. The parties agree that any such modifications may
not constitute an amendment to this Agreement nor require an
amendment to the Agreement.
5.2.4 Future Discretionarv Approvals. It is
contemplated by the parties to this Agreement that the city
and Developer may agree to Future Discretionary Approvals. The
parties agree that any such Future Approvals may not consti-
tute an amendment to this Agreement nor require an amendment
to the Agreement.
5.3 Dedication and Reservation of Land for Public
Purposes. Except as expressly required by this Agreement or the
Existing Project Approvals and Future Discretionary Approvals
(excepting dedications required within the boundaries of any parcel
created by the subsequent subdivision of the Property as required
by the Subdivision Map Act), no dedication or reservation of real
property within or outside the Property shall be required by City
or Developer in conjunction with the Project. Any dedications and
reservations of land imposed shall be in accordance with Seotion
7.2 and section 7.8 herein.
5.4 Time for Construction and Completion of Proiect.
Because the California Supreme Court held in Pardee Construction
Companv v. City of Camarillo (1984) 27 Cal.3d 465, that the failure
of the parties to provide for the timing of development resulted in
a later-adopted initiative restricting the timing of development to
prevail over such parties' Agreement, it is the intention of the
parties to this Agreement to cure that deficiency by specifically
acknowledging that timing and phasing of development is completely
and exclusively governed by the Existing Project Approvals,
including the Chula vista Growth Management Ordinance. The purpose
of the Chula vista Growth Management Ordinance is to "control the
timing and location of development by tying the pace of development
to the provision of public facilities and improvements to conform
to the city's threshold standards." (Municipal Code section
19.09.010A.7) The findings in support of the Growth Management
Ordinance oonclude that the ordinance "does not affect the number
-10-
of houses which may be built." (Municipal Code Section
19.09.0l0B.3) Therefore, the parties acknowledge that the Chula
Vista Growth Management Ordinanoe completely ocoupies the topic of
development timing and phasing and expressly precludes the adoption
of housing caps, urban reserves or any other means by which the
rate of development may be controlled or regulated. The City
agrees that the Developer shall be entitled to, apply for and
receive all permits necessary for the development of property,
consistent with the Growth Management Ordinance, Existing Project
Approvals, Future Discretionary Approvals and this Agreement.
5.5 Benefit of Vestinq. Nothing in this Agreement will
be construed as limiting or impairing Developer's vested right, if
any, to proceed with the development and use of the Property
pursuant to the Federal and State Constitutions, and pursuant to
statutory and decisional law.
5.6 Vestinq of Entitlements. All rights conferred by
this Agreement vest with the Effective Date hereof. The approval
of Future Discretionary approvals shall not be deemed to limit
Developer's rights authorized by this Agreement, and once such
approvals are obtained they shall be vested to the same extent as
the Existing project Approvals.
6. DEVELOPMENT PROGRAM.
6.1 processinq of Future Discretionary A~provals. city
will accept and diligently process development applications and
requests for Future Discretionary Approvals, or other entitlements
with respect to the development and use of the Property, provided
said applications and requests are in accordance with this
Agreement. City costs for processing work related to the Project,
including hiring of additional City personnel and/or the retaining
of professional consultants, will be reimbursed to city by
Developer.
6.2 Length of Validitv of Tentative Subdivision Maps.
Government Code Section 66452.6 provides that tentative subdivision
map(s) may remain valid for a length up to the term of a Develop-
ment Agreement. The City agrees that tentative subdivision map(s)
for the property shall be for a term of six (6) years and may be
extended by the City Council for a period of time not to exceed a
total of twenty (20) years and in no event beyond the term of this
Agreement.
6.3 Pre-Final Map Development. If Developer desires to
do certain work on the Property after approval of a tentative map
(for example, grading) prior to the reoordation of a final map, it
may do so by obtaining a grading and/or other required approvals
from the city which are authorized by the City prior to recordation
of a final map. Such permit shall be issued to Developer, or its
contractor, upon Developer's application, approval, and provided
Developer posts a bond or other reasonably adequate security
required by City in an amount to assure the rehabilitation of the
land if the applicable final map does not record.
-11-
6.4 Final Maps.
6.4.1 "A" Maps and "B" Maps. If Developer so
elects, the City shall accept and process a master subdivision
or parcel map ("A" Map) showing "Super Block" lots and
backbone street dedications. "Super Block" lots shall be
consistent with the GDP and subsequent sectional Plan Area
plans, and shall not subdivide land into individual single-
family lots. All "Super Blocks" created shall have access to
dedicated public streets. The city shall not require improve-
ment plans in order to record a final map for any "A" Map
lots, but the city shall require bonding for the completion of
backbone facilities prior to recording in an amount to be
determined by the City. Following the approval by city of any
final map for an "A" Map lot and its recordation, Developer
may convey the "Super Block" lot. The buyer of a "Super
Block" lot shall then process final improvement plans and
grading plans and a final map ("B" Map) for each "Super Block"
lot which the city shall process. The "B" Maps shall be in
substantial conformance with the related approved "A" Map. In
the instance of the mUlti-family dwelling unit areas, a
separate tentative subdivision map may be submitted to the
city and the "B" Map(s) for these areas may be submitted to
the City after the City Planning Commission approves said
tentative subdivision map.
6.4.2 Recordation of Final Subdivision Map in
Name of Builder or Third Partv. Developer may, if it so
elects, convey to a Builder or third party any "super block"
lot(s) shown on the recorded Superblock Final Map. In such
case, the Builder or third party will (i) process any neces-
sary final improvement and grading plans and a final map for
each such "super block" lot, which map City shall accept and
process as subsequent phases in a multi-phase project, (ii)
enter into a subdivision improvement agreement with City with
respect to the subdivision improvements which are required for
such super block lot, and (iii) provide security and insurance
satisfactory to city for the completion of the subdivision
improvements.
6.4.3 Recordation of Final Subdivision Map in
Developer's Name; Transfer of Obligations Under Subdivision
Improvement Aqreement(s). If Developer so elects, it may
defer the conveyance of any super block lot to a Builder or
third party until after the final map of such super block lot
has been recorded. If Developer elects to proceed in this
manner, it will enter into City's standard subdivision
improvement agreement(s) with City for the improvements
required as a condition to the approval of such map(s). Upon
sale to a Builder or third party, if such Builder or third
party assumes Developer's obligations under the improvement
agreement and provides its own security and insurance for the
completion of the subdivision improvements as approved by the
city, Developer shall be released from liability under the
-12-
subdivision improvement agreement(s) and Developer's security
shall be released.
6.4.4 Transfer of Riqhts and Obliqations of
Development. Whenever Developer conveys a portion of the
Property, the rights and obligations of this Agreement shall
transfer in accordance with section 15 herein.
7. DEVELOPER'S OBLIGATIONS.
7.1 Condition to Developer's Obliqations to Dedicate. Fund or
Construct Public Facilities. Developer agrees to develop or
provide the public improvements, facilities, dedications, or
reservations of land and satisfy other exactions conditioning the
development of the Property which are set forth hereinbelow. The
obligations of the Developer pursuant to this Agreement are
conditioned upon: (i) the City not being in default of its obliga-
tions under this agreement; and (ii) the City not preventing or
unreasonably delaying the development of the property; and (iii)
the Agreement having not been suspended in response to changes in
state or federal law; and (iv) the City's obligations having not
been suspended pursuant to section 13.2.
7.2 Dedications and Reservations of Land for PublicPurposes.
The policies by which property will be required to be reserved,
dedicated or improved for public purposes are identified in the
Existing Project Approvals. A more precise delineation of the
property to be preserved, dedicated or improved for public purposes
shall occur as part of Future Discretionary Approvals, consistent
with the Existing Project Approvals.
7.2.1 Dedication of Land for SR 125. Developer agrees
to dedicate land for right-of-way purposes and property owned
by the Developer that is reasonably necessary for the SR-125
configuration selected by CALTRANS and depicted: (1) general-
ly in the GDP or (2) that alignment identified as the Brown
Field Modified Alignment which is generally depicted in the
SR-125 draft Environmental Impact Report/Statement and as
revised in the Final Environmental Impact Report/Statement to
respond to engineering, design, environmental and similar
constraints.
Notwithstanding the foregoing, should CALTRANS not select
alignment (1) or (2) above, the Developer shall dedicate land
for any such alternate SR-125 configuration only on the
condition that the city agree to relocate any land uses
displaced by such alternate Freeway alignment.
city agrees that in the event city shall negotiate with
California Transportation Ventures (CTV) or other toll road
builder any participation or advantages to city that City
shall share such rights with subsequent owner/resident of the
property.
-13-
7.2.2 Landfill Nuisance Easements. The parties to this
Agreement understand and acknowledge that the "Landfill
Nuisance Easement" is an integral part of this Agreement.
Developer shall deliver to the City "Landfill Nuisance
Easements" in the form attached as Exhibit "c" and satisfacto-
ry to the County of San Diego prior to the second reading of
the Ordinance approving the Agreement. If there is no second
reading of this Agreement, the city shall return said ease-
ments to the Developer. If the County Board of supervisors
does not accept or approve said easements, this Agreement
shall be automatically terminated with neither party bearing
any liability hereunder.
7.2.3 City shall reasonably consider in its discretion
and with proper environmental review, a request to relocate
all land uses which may be eliminated as a result of an
unknown relocation of SR-125 from the route currently depicted
in the GDP.
7.3 Growth Manaqement Ordinance. Developer shall commit the
public facilities and City shall issue building permits as provided
in this section. The City shall have the right to withhold the
issuance of building permits any time after the city reasonably
determines a Threshold has been exceeded, unless and until the
Developer has mitigated the deficiency in accordance with the
city's Growth Management Ordinance.
Developer agrees that building permits may be withheld where the
public facilities described in the Existing Project Approvals/-
Future Discretionary Approvals required for a particular Threshold
have not been committed.
In the event a Threshold is not met and future building permit
issuance may be withheld, the notice provisions and procedures
contained in section 19.09 .100C of the Municipal Code will be
followed. In the event the issuance of building permits is
suspended pursuant to the provisions herein, such suspension shall
not constitute a breach of the terms of this Agreement by Developer
or city. Furthermore, any such suspension which is not caused by
the actions or omissions of the Developer, shall toll the term of
this Agreement as provided for in section 16.-12 of this Agreement,
and suspend the Developer's obligations pursuant to this Agreement.
7.3.1 Required Condemnation. The City and Developer
recognize that certain of the public facilities identified in
the Existing Project Approvals/Future Discretionary Approvals
and required to comply with a threshold are located on
properties which neither the Developer nor the City has, or
will have, title to or control of. The City shall identify
such property or properties and at the time of filing of the
final map commence timely negotiations or, where the property
is within the city's jurisdiction, commence timely proceedings
pursuant to Title 7 (commencing with S 1230.010) of Part 3 of
the Code of civil Procedure to acquire an interest in the
property or properties. Developer's share of the cost
-14-
involved in any such acquisition shall be based on its
proportionate share of the public facility as defined in the
Existing Project Approvals/Future Discretionary Approvals.
Nothing in this Agreement shall be deemed to preclude the City
from requiring the Developer to pay the cost of acquiring such
off-site land. For ~hat portion of the cost beyond the
Developer's fair share_ responsibili ty, the city shall take all
reasonable steps to establish a procedure whereby the develop-
er is reimbursed for such costs beyond its fair share.
7.3.2 Information Reqardinq Thresholds. Upon
Developer's written requests of the city Manager, the City
will provide Developer with information regarding the current
status of a Threshold. Developer shall be responsible for any
staff costs incurred in providing said written response.
7.4 Improvements Required bv a Subdivision Map. As may
be required pursuant to the terms of a subdivision map, it shall be
the responsibility of Developer to construct the improvements
required by a subdivision map. Where Developer is required to
construct a public improvement which has been identified as the
responsibility of another party or to provide public improvements
of supplemental size, capacity, number or length benefiting
property not within the subdivision, City shall process a reim-
bursement agreement to the Developer in accordance with Article 6
of Chapter 4 of the Subdivision Map Act, commencing with Government
Code section 66485, and Section 7.5, below.
7.5 Facilities Which Are the Obliqations of Another
Partv. or Are of Excessive Size. Capacity. Length or Number.
Developer may offer to advance monies and/or construct public
improvements which are the responsibility of another land owner, or
outside the city's jurisdictional boundaries, or which are of
supplemental size, capacity, number or length for the benefit of
land not within the Property. City, where requesting such funding
or construction of oversized public improvements, shall consider
after a public hearing, contemporaneous with the imposition of the
obligation, the formation of a reimbursement district, assessment
district, facility benefit assessment, or reimbursement agreement
or other reimbursement mechanism.
7.6 Pioneerinq of Facilities. To the extent Developer
itself constructs (Le., "Pioneers") any public facilities or
pUblic improvements which are covered by a DIF Program, Developer
shall be given a credit against DIFs otherwise payable, subject to
the City's Director of Public Works reasonable determination that
such costs are allowable under the applicable DIF Program. It is
specifically intended that Developer be given DIF credit for the
DIF Program improvements it makes. The fact that such improvements
may be financed by an assessment district or other financing
mechanism, shall not prevent DIF credit from being given to the
extent that such costs are allowed under the applicable DIF Program
-15-
7.7 Insurance.
insured for all insurance
Project as pertains to the
the Project.
Developer shall name city as additional
pOlicies obtained by Developer for the
Developer's activities and operation on
7.8 Other Land Owners. Developer hereby agrees to
dedicate adequate rights-Qf-way within the boundaries of the
Property for other land owners to "Pioneer" public facilities on
the Property; provided, however, as follows: (i) dedications shall
be restricted to those reasonably necessary for the construction of
facilities identified in the city's adopted pUblic facility plans;
(ii) this provision shall not be binding on the successors-in-
interest or assignees of Developer following recordation of the
final "Super Block" or "A" Map; and (iii) the city shall use its
reasonable best efforts to obtain agreements similar to this
subsection from other developers and to obtain equitable reimburse~
ment for Developer for any excess dedications.
8. DEVELOPMENT IMPACT FEES.
8.1 Existinq Development Impact Fee Proqram Payments.
Developer shall pay to the City a DIF, or construct improvements in
lieu of payment, for improvements which are conditions of a
tentative subdivision map upon the issuance of building permits(s),
or at a later time as specified by City ordinance, the Subdivision
Map Act, or Public Facility Financing Plan (PFFP). The DIF will be
in the amount in effect at the time payment is made and may only be
increased pursuant to section 8.6 herein.
8.2 Other Undeveloped Properties. The city will use its
reasonable best efforts to impose and collect, or cause the
imposition and collection of, the same DIF program on all the
undeveloped real properties which benefit from the provision of the
public facility through the DIF program, or provided as a condition
of Project Approvals.
8.3 Use of Development Impact Fee Proqram. The DIF
amounts paid to the city by Developer and others with respect to
the Area of Benefit shall be placed by the City in a capital
facility fund account established pursuant to California Government
Code sections 66000-66009. The city shall expend such funds only
for the Projects described in the adopted fee program as may be
modified from time to time. The city will use its reasonable best
efforts to cause such projects to be completed as soon as practica-
ble; however, the City shall not be obligated to use its general
funds for such Projects.
8.4 Withholding of Permits. Developer agrees that city
shall have the right to withhold issuance of the building permit
for any structure or improvement on the Property unless and until
the DIF is paid for such structure or improvement.
8.5 Development Impact Fee Credit. Upon the completion
and acceptance by the City of any public facility, the city shall
immediately credit Developer with the appropriate amount of cash
-16-
credits (IEDUs") as determined by Developer and city. However, if
the improvements are paid for through an Assessment District, the
City shall credit the Developer with the appropriate number of
Equivalent Dwelling unit Credits (EDU's). Developer shall be
entitled to apply any and all credits accrued pursuant to this
subsection toward the required payment of future DIF for any phase,
stage or increment of deve~opment of the project.
8.6 Modification of Development Impact Fees. The
parties recognize that from time to time during the duration of the
Agreement it will be necessary for the City to update and modify
its DIF fees. Such reasonable modifications are contemplated by
the city and the Developer and shall not constitute a modification
to the Agreement so long as: (i) the modification incorporates the
reasonable costs of providing facilities identified in the Existing
Project Approvals; (ii) are based upon methodologies in substantial
compliance with the methodology contained in the existing DIF
programs; or other methodology approved by the City Council
following a public hearing; (iii) complies with the provisions of
Government Code sections 66000-66009.
8.7 Standards for Financinq Obliqations of Owner. In
connection with the development of the Property, the following
standards regarding the financing of public improvements shall
apply:
8.7.1 Owner shall pay its fair share for the
interchanges descr ibed in paragraph 5. 1. 3 , based upon the
number of dwelling units or equivalent dwellings of develop-
ment allowed on the Property as compared to the total dwelling
units or equivalent dwelling units allowed on properties
served by such interchanges.
8.7.2 Owner shall participate in the DIF Program
for the Otay Valley Parcel with other owners in proportion to
the total dwelling units or equivalent dwelling units allowed
on the Property as compared with the total of such units
allowed on properties in that particular DIF. or by some other
equitable methodology decided by the city Council.
8.7.3 The City shall diligently pursue the
requirements that the Eastern Territories' DIF requires
offsite third parties and adjacent jurisdictions to bear their
fair share of all Otay River Valley crossings.
9. CITY OBLIGATIONS.
9.1 Urban Infrastructure. To the extent it is within
the authority of the city to provide, city shall accommodate urban
infrastructure to the project, consistent with Existing Project
Approvals. Where it is necessary to utilize city property to
provide urban infrastructure consistent with the Existing Project
Approvals, the City agrees to make such land available for such
uses, provided that the City if it so chooses is compensated at
fair market value for the property. To the extent that the
-17-
provision of urban infrastructure is within the authority of
another public or quasi-public agency or utility, the City agrees
to fully oooperate with such agency or agencies to accommodate the
urban infrastructure, consistent with Existing Project Approvals.
Urban infrastructure shall include, but not be limited to gas,
electricity, telephone, cable and facilities identified in the Otay
Ranch Facility Implementat~6n Plan.
9.2 Sewer Capaci tv. The city agrees to provide adequate
sewer capacity for the project, upon the payment of ordinary and
necessary sewer connection, capacity and/or service fees.
10. ANNUAL REVIEW.
10.1 citv and Owner Responsibilities. city will, at
least every twelve (12) months during the Term of this Agreement,
pursuant to California Government Code S65865.1, review the extent
of good faith substantial compliance by Owner with the terms of
this Agreement. Pursuant to California Government Code section
65865.1, as amended, Owner shall have the duty to demonstrate by
substantial evidence its good faith compliance with the terms of
this Agreement at the periodic review. Either City or Owner may
address any requirement of the Agreement during the review.
10.2 Evidence. The parties recognize that this Agreement
and the documents incorporated herein could be deemed to contain
hundreds of requirements and that evidence of each and every
requirement would be a wasteful exercise of the parties' resources.
Acoordingly, Developer shall be deemed to have satisfied its good
faith compliance when it presents evidence of substantial com-
pliance with the major provisions of this Agreement. Generalized
evidence or statements shall be accepted in the absenoe of any
evidence that such evidence is untrue.
10.3 Review Letter. If Owner is found to be in com-
pliance with this Agreement after the annual review, city shall,
within forty-five (45) days after Owner's written request, issue a
review letter in recordable form to Owner ("Letter") stating that
based upon information known or made known to the Council, the city
Planning commission and/or the City Planning Director, this
Agreement remains in effect and Owner is not in default. Owner may
record the Letter in the Official Records of the County of San
Diego.
10.4 Failure of periodic Review. City's failure to
review at least annually Owner's compliance with the terms and
conditions of this Agreement shall not constitute, or be asserted
by City or Owner as, a breach.of the Agreement.
11. DEFAULT.
11.1 Events of Default. A default under this Agreement
shall be deemed to have occurred upon the happening of one or more
of the following events or conditions:
-18-
11.1.1 A warranty, representation or statement
made or furnished by Owner to City is false or proves to have
been false in any material respect when it was made.
11.1.2 A finding and determination by city made
following a periodic review under the procedure provided for
in California Government Code section 65865.1 that upon the
basis of substantial evidence Owner has not complied in good
faith with one or more of the terms or conditions of this
Agreement.
consider
submitted
11.1.3 City does not accept,
requested development permits
in accordance with the provisions
timely review, or
or enti tlements
of this Agreement.
11.1.4 Any other act or omission by City or Owner
which materially interferes with the terms of this Agreement.
11.2 Procedure Upon Default.
11. 2.1 Upon the occurrence of default by the
other party, city or Owner may terminate this Agreement after
providing the other party thirty (30) days written notice
specifying the nature of the alleged default and, when
appropriate, the manner in which said default may be satis-
factorily cured. After proper notice and expiration of said
thirty (30) day cure period without cure, this Agreement may
be terminated. In the event that city's or Owner's default is
not subject to cure within the thirty (30) day period, City or
Owner shall be deemed not to remain in default in the event
that city or Owner commences to cure within such thirty (30)
day period and diligently prosecutes such cure to completion.
Failure or delay in giving notice of any default shall not
constitute a waiver of any default, nor shall it change the
time of default. Notwithstanding any other provision of this
Agreement, City reserves the right to formulate and propose to
Owner options for curing any defaults under this Agreement for
which a cure is not specified in this Agreement.
11. 2. 2 City does not waive any claim of defect in
performance by Owner if, on periodic review, city does not
propose to modify or terminate this Agreement.
11.2.3 Subject to Paragraph 16.12 of this
Agreement, the failure of a third person shall not excuse a
party's nonperformance under this agreement.
11.2.4 Remedies Upon Default. In the event of a
default by either party to this Agreement, the parties shall
have the remedies of specific performance, mandamus, injunc-
tion and other equitable remedies without having to first
prove there is an inadequate remedy at law. Neither party
shall have the remedy of monetary damages against the other;
provided, however, that the award of costs of litigation and
attorneys' fees shall not constitute damage.
-19-
12. ENCUMBRANCES AND RELEASES ON PROPERTY.
12.1 Discretion to Encumber. This Agreement shall not
prevent or limit Owner in any manner at Owner's sole discretion,
from encumbering the Property, or any portion of the Property, or
any improvement on the Property, by any mortgage, deed of trust, or
other security device securing financing with respect to the
Property or its improvement.
12.2 Mortqaqee Riqhts and Obligations. The mortgagee of
a mortgage or beneficiary of a deed of trust encumbering the
Property, or any part thereof, and their successors and assigns
shall, upon written request to city, be entitled to receive from
City written notification of any default by Owner of the
performance of Owner's obligations under the Agreement which has
not been cured within thirty (30) days following the date of
default.
12.3 Releases. City agrees that upon written request of
Owner and payment of all fees and performance of the require-
ments and conditions required of Owner by this Agreement with
respect to the Property, or any portion thereof, City may
execute and deliver to Owner appropriate release(s) of further
obligations imposed by this Agreement in form and substance
acceptable to the San Diego County Recorder and title
insurance company, if any, or as may otherwise be necessary to
effect the release. city Manager shall not unreasonably
withhold approval of such release(s) .
12.4 Obliqation to Modifv. City acknowledges that the
lenders providing financing for the Project may require certain
modifications to this Agreement and city agrees, upon request from
time to time, to meet with Owner and/or representatives of such
lenders to negotiate in good faith any such requirement. for
modification. City will not unreasonably withhold its consent to
any such requested modification.
13. MODIFICATION OR SUSPENSION.
13.1 Modification to Aqreement by Mutual Consent. This
Agreement may be modified, from time to time, by the mutual consent
of the parties only in the same manner as its adoption by an
ordinance as set forth in California Government Code sections
65867, 65867.5 and 65868. The term, "this Agreement" as used in
this Agreement, will include any such modification properly
approved and executed.
13.2 Unforeseen Health or Safety Circumstances. If, as
a result of facts, events, or circumstances presently unknown,
unforeseeable, and which could not have been known to the parties
prior to the commencement of this Agreement, City finds that
failure to suspend this Agreement would place the residents of City
in a severe and immediate emergency to their health or safety.
-20-
13.2.1 Notification of Unforeseen Circumstances.
Notify Developer of (i) city's determination; and (ii) the
reasons for City's determination, and all facts upon which
such reasons are based;
13.2.2 Notice of Hearinq. Notify Developer in
writing at least fourteen (14) days prior to the date, of the
date, time and place of the hearing and forward to Developer
a minimum of ten (lP) days prior to the hearings described in
section 13.2.3, all documents related to such determination
and reasons therefor; and
13.2.3 Hearinq. Hold a hearing on the deter-
mination, at which hearing Developer will have the right to
address the City Council. At the conclusion of said hearing,
City may take action to suspend this Agreement as provided
herein. The City may suspend this Agreement if, at the
conclusion of said hearing, based upon the evidence presented
by the parties, the city finds failure to suspend would place
the residents of the City in a severe and immediate emergency
to their health or safety.
13.3 Chanqe in state or Federal Law or Requlations. If
any state or federal law or regulation enacted during the Term of
this Agreement, or the action or inaction of any other affected
governmental jurisdiction, precludes compliance with one or more
provisions of this Agreement, or requires changes in plans, maps,
or permits approved by City, the parties will act pursuant to
sections 13.3.1 and 13.3.2, below.
13.3.1 Notice: Meeting. The party first becoming
aware of such enactment or action or inaction will provide the
other party(ies) with written notice of such state or federal
law or regulation and provide a copy of such law or regulation
and a statement regarding its conflict with the provisions of
this Agreement. The parties will promptly meet and confer in
a good faith and reasonable attempt to modify or suspend this
Agreement to comply with such federal or state law or regula-
tion.
13.3.2 Hearinq. If an agreed upon modification
or suspension would not require an amendment to this Agree-
ment, no hearing shall be held. otherwise, the matter of such
federal or state law or regulation will be scheduled for
hearing before the city. Fifteen (15) days' written notice of
such hearing shall be provided to Developer, and the City, at
such hearing, will determine and issue findings on the
modification or suspension which is required by such federal
or state law or regulation. Developer, at the hearing, shall
have the right to offer testimony and other evidence. If the
parties fail to agree after said hearing, the matter may be
submitted to mediation pursuant to subsection 13.3.3, below.
Any modifioation or suspension shall be taken by the affirma-
tive vote of not less than a majority of the authorized voting
members of the city. Any suspension or modification may be
-21-
subject to jUdicial review in conformance with subsection
16.19 of this Agreement.
13.3.3 Mediation of Disputes. In the event the
dispute between the parties with respect to the provisions of
this paragraph has not been resolved to the satisfaction of
both parties following the City hearing required by subsection
13.3.2, the matter shall be submitted to mediation prior to
the filing of any legal action by any party. The mediation
will be conducted by the San Diego Mediation Center; if San
Diego Mediation Center is unable to conduct the mediation, the
parties shall submit the dispute for mediation to the Judicial
Arbitration and Mediation Service or similar organization and
make a good faith effort to resolve the dispute. The cost of
any such mediation shall be divided equally between the
Developer and city.
13.4 Natural communities Conservation Act (NCCPI. The
parties recognize that Developer and the City are individually
negotiating agreements with the united states Fish and Wildlife
Service ("USF&W") and the California Department of Fish and Game
pursuant to the ongoing regional effort to implement the Natural
Communities Conservation Act ("NCCP"), locally proposed to be
implemented through the Multi-Species Conservation Program
("MSCP"). The parties further recognize that implementation of the
agreements may necessitate modification to the Existing Project
Approvals. The parties agree to utilize their best efforts to
implement these agreements, once executed, through the timely
processing of modifications to the Existing projeot Approvals as
they relate to the Property. The Developer agrees to pay the
reasonable city cost for processing work related to the modifica-
tions. Once such modifications are obtained they shall be vested
to the same extent as Existing Project Approvals.
14. DISTRICTS. PUBLIC FINANCING MECHANISMS.
This Agreement and the Existing Project Approvals recognize
that assessment districts, community facility districts, or other
public financing mechanisms, may be necessary to finance the cost
of public improvements borne by this Project. If Developer,
pursuant to the Existing Project Approvals/Future Discretionary
Approvals, is required to install improvements through the use of
assessment districts, community facility districts, or other public
financing mechanisms, the City shall initiate and conclude
appropriate proceedings for the formation of such financing
district or funding mechanism, under applicable laws or ordinances.
Developer may request that the city utilize any other financing
methods which may become available under city laws or ordinances.
All costs associated with the consideration and formation of such
financing districts or funding mechanisms shall be paid by
Developer subject to reimbursement, as may be legally authorized
out of the proceeds of any financing district or funding mechanism.
15. ASSIGNMENT AND DELEGATION.
-22-
15.1 Assiqnment. Owner shall have the right to transfer
or assign its interest in the Property, in whole or in part,
to any persons, partnership, joint venture, firm, or corpora-
tion at any time during the Term of this Agreement without the
consent of city. Owner also shall have the right to assign or
transfer all or any portion of its interest or rights under
this Agreement to third parties acquiring an interest or
estate in the Property at any time during the Term of this
Agreement without the consent of city.
15.2 Deleqation. In addition, Owner shall have the
right to delegate or transfer its obligations under this
Agreement to third parties acquiring an interest or estate in
the Property after receiving the prior written consent of the
City Manager, which consent shall not be unreasonably with-
held, delayed, or conditioned. Once the City Manager has
consented to a transfer, delivery to and acceptance by the
City Manager of an unqualified written assumption of Owner's
obligations under this Agreement by such transferee shall
relieve Owner of the obligations under this Agreement to the
extent the obligations have been expressly assumed by the
transferee. Such transferee shall not be entitled to amend
this Agreement without the written consent of the entity that,
as of the Effective Date, is owner, which consent shall not be
unreasonably withheld, delayed, or conditioned. The entity
that is Owner as of the Effective Date, however, shall be
entitled to amend this Agreement without the written consent
of such transferee.
16. MISCELLANEOUS PROVISIONS.
16.1 Bindinq Effect of Aqreement. Except to the extent
otherwise provided in this Agreement, the burdens of this Agreement
bind, and the benefits of this Agreement inure, to City's and
Owner's successors-in-interest and shall run with the land.
16.2 Relationship of City and Owner. The contractual
relationship between city and Owner arising out of this Agreement
is one of independent contractor and not agency. This Agreement
does not create any third-party beneficiary rights.
16.3 Notices. All notices, demands, and correspondence
required or permitted by this Agreement shall be in writing and
delivered in person, or mailed by first-class or certified mail,
postage prepaid, addressed as follows:
If to City, to:
City of Chula vista
276 Fourth Avenue
Chula Vista, CA 91910
Attention: city Manager
If to Owner, to:
SNMB, LTD.
7811 La Mesa Boulevard
Suite B-3
La Mesa, CA 91941
-23-
Attention: Christopher Patek
with a Copy to:
STEPHENSON, WORLEY, GARRATT
SCHWARTZ, HEIDEL & PRAIRIE
101 west Broadway, Suite 1300
San Diego, CA 92101
Attention: Donald R. Worley, Esq.
City or Owner may change its address by giving notice in writing to
the other. Thereafter, notices, demands, and correspondence shall
be addressed and transmitted to the new address. Notice shall be
deemed given upon personal delivery, or, if mailed, two (2)
business days following deposit in the United States mail.
16.4 Rules of Construction. In this Agreement, the use
of the singular includes the plural; the masculine gender includes
the feminine; "shall" is mandatory; "may" is permissive.
16.5 Entire Agreement. Waivers. and Recorded Statement.
This Agreement constitutes the entire understanding and agreement
of City and Owner with respect to the matters set forth in this
Agreement. This Agreement supersedes all negotiations or previous
agreements between City and Owner respecting this Agreement. All
waivers of the provisions of this Agreement must be in writing and
signed by the appropriate authorities of city and Owner. Upon the
completion of performance of this Agreement, or its revocation or
termination, a statement evidencing completion, revocation, or
termination signed by the appropriate agents of City shall be
recorded in the Official Records of San Diego County, California.
16.6 proiect as a Private Undertaking. It is
specifically understood by City and Owner that (i) the Project is
a private development; (ii) City has no interest in or
responsibilities for or duty to third parties concerning any
improvements to the Property until City accepts the improvements
pursuant to the provisions of the Agreement or in connection with
subdivision map approvals; and (iii) Owner shall have the full
power and exclusive control of the property subject to the
obligations of Owner set forth in this Agreement.
16.7 Incorporation of Recitals. The recitals set forth
in Paragraph 1 of this Agreement are part of this Agreement.
16.8 Captions. The captions of this Agreement are for
convenience and reference only and shall not define, explain,
modify, construe, limit, amplify, or aid in the interpretation,
construction, or' meaning of any of the provisions of this
Agreement.
16.9 Consent. Where the consent or approval of City or
Owner is required or necessary under this Agreement, the consent or
approval shall not be unreasonably withheld, delayed, or con-
ditioned.
-24-
16.10 Covenant of Cooperation.
cooperate and deal with each other in good
other in the performance of the provisions
City and Owner shall
faith, and assist each
of this Agreement.
16.11 Recordinq. The city Clerk shall cause a copy of
this Agreement to be recorded with the Office of the County
Recorder of San Diego county, California, within ten (10) days
following the Effective Date.
16.12 Delav. Extension of Time for Performance. In
addition to any specific provision of this Agreement, performance
by either city or Owner of its obligations hereunder shall be
excused, and the Term of this Agreement and the Development Plan
extended, during any period of delay caused at any time by reason
of any event beyond the control of City or Owner which prevents or
delays and impacts city's or Owner's ability to perform obligations
under this Agreement, including, but not limited to, acts of God,
enactment of new conflicting federal or state laws or regulations
(example: listing of a species as threatened or endangered),
judicial actions such as the issuance of restraining orders and
injunctions, riots, strikes, or damage to work in process by reason
of fire, floods, earthquake, or other such casualties. If City or
OWner seeks excuse from performance, it shall provide written
notice of such delay to the other within thirty (30) days of the
commencement of such delay. If the delay or default is beyond the
control of city or Owner, and is excused, an extension of time for
such cause will be granted in writing for the period of the
enforced delay, or longer as may be mutually agreed upon.
16.13 Covenant of Good Faith and Fair Dealinqs. No party
shall do anything which shall have the effect of harming or
injuring the right of the other parties to receive the benefits of
this Agreement; each party shall refrain from doing anything which
would render its performance under this Agreement impossible; and
each party shall do everything which this Agreement contemplates
that such party shall do in order to accomplish the objectives and
purposes of this Agreement.
16.14 Operatinq Memorandum. The parties acknowledge that
the provisions of this Agreement require a close degree of
cooperation between City and Developer, and that the refinements
and further development of the project may demonstrate that minor
changes are appropriate with respect to the details of performance
of the parties. The parties, therefore, retain a certain degree of
flexibility with respect to those items covered in general under
this Agreement. When and if the parties mutually find that minor
changes or adjustments are necessary or appropriate, they may
effectuate changes or adjustments through operating memoranda
approved by the parties. For purposes of this section 16.14, the
city Manager, or his designee, shall have the authority to approve
the operating memoranda on behalf of City. No operating memoranda
shall require notice or hearing or constitute an amendment to this
Agreement.
-25-
16.15 Time of Essence. Time is of the essence in the
performance of the provisions of this Agreement as to which time is
an element.
16.16 Amendment or Cancellation of Agreement. This
Agreement may be amended from time to time or canceled by the
mutual consent of city and,Owner only in the same manner as its
adoption, by an ordinance as set forth in California Government
Code section 65868, and shall be in a form suitable for recording
in the Official Records of San Diego County, California. The term
"Agreement" shall include any such amendment properly approved and
executed. City and Owner acknowledge that the provisions of this
Agreement require a close degree of cooperation between them, and
that minor or insubstantial changes to the Project and the
Development Plan may be required from time to time to accommodate
design changes, engineering changes, and other refinements.
Acoordingly, changes to the project and the Development Plan that
do not result in a change in use, an increase in density or
intensity of use, cause new or increased environmental impacts, or
violate any applicable health and safety regulations, may be
considered minor or insubstantial by the City Manager and made
without amending this Agreement.
16.17 Estoppel Certificate. Within 30 calendar days
following a written request by any of the parties, the other
parties to this Agreement shall execute and deliver to the
requesting party a statement certifying that (i) this Agreement is
unmodified and in full force and effeot, or if there have been
modifications hereto, that this Agreement is in full force and
effect as modified and stating the date and nature of such
modifications; (ii) there are no known current uncured defaults
under this Agreement, or specifying the dates and nature of any
such default; and (iii) any other reasonable information requested.
The failure to deliver such a statement within such time shall
constitute a conclusive presumption against the party which fails
to deliver such statement that this Agreement is in full force and
effect without modification, except as may be represented by the
requesting party, and that there are no uncured defaults in the
performance of the requesting party, except as may be represented
by the requesting party.
16.18 Severabilitv. If any material provision of this
Agreement is held invalid, this Agreement will be automatically
terminated with neither party bearing any liability hereunder.
Notwithstanding the foregoing, within 15 days after such provision is
held invalid, if the party holding rights under the invalidated
provision affirms the balance of this Agreement in writing this
Agreement shall not be terminated. This provision will not affect
the right of the parties to modify or suspend this Agreement by
mutual consent pursuant to Paragraph 12.4.
16.19 Institution of Leqal Proceedinq. In addition to any
other rights or remedies, any party may institute legal action to
cure, correct, or remedy any default, to enforce any covenants or
agreements herein, or to enjoin any threatened or attempted violation
-26-
thereof; to recover damages for any default as allowed by this
Agreement or to obtain any remedies consistent with the purpose of
this Agreement. Such legal actions must be instituted in the
Superior Court of the County of San Diego, State of California.
16.20 Attornevs' Fees and Costs. If any party commences
litigation or other proce.edings (including, without limitation,
arbitration) for the interpretation, reformation, enforcement, or
rescission of this Agreement, the prevailing party, as determined by
the court, will be entitled to its reasonable attorneys' fees and
costs.
16.21 Hold Harmless. Developer agrees to and shall hold
city, its officers, agents, employees and representatives harmless
from liability for damage or claims for damage for personal injury,
including death, and claims for property damage which may arise from
the direct or indirect operations of Developer or those of its
contractors, subcontractors, agents, employees or other persons
acting on Developer's behalf which relate to the Project. Developer
agrees to and shall defend City and its officers, agents, employees
and representatives from actions for damage oaused or alleged to have
been caused by reason of Developer's activities in connection with
the Project. Developer agrees to indemnify, hold harmless, pay all
costs and provide a defense for city in any legal action filed in a
court of competent jurisdiction by a third party challenging the
validity of this Agreement. The provisions of this Section 16.21
shall not apply to the extent such damage, liability or claim is
caused by the intentional or negligent act or omission of City, its
officers, agents, employees or representatives.
17. AUTHORITY
Each signatory and party hereto hereby warrants and represents
to the other party that it has legal authority and capacity and
direction from its principal to enter into this Agreement, and that
all resolutions or other actions have been taken so as to enable it
to enter into this Agreement.
-27-
SIGNATURE PAGE TO PRE-ANNEXATION DEVELOPMENT AGREEMENT.
Dated this day of
, 1997.
"CITY"
CITY OF CHULA VISTA
By:
SHIRLEY HORTON, MAYOR
"OWNER"
SNMB, LTD.
By:
CHRISTOPHER PATEK, General Partner
I hereby approve the form and legality of the foregoing Pre-
Annexation Development Agreement this day of , 1997.
John M. Kaheny, city Attorney
By:
Ann Moore
Assistant City Attorney
-28-
EXHIBIT A
I
/
l
.~
SNME3, LTD.
~~~
-.-
.............. ..
r CH~~A
I PLANNING DEPARTMENT
6'19/96
'.
~o
-
i-I
~,
/-
--
:' I
-~
J
(
J
IF;;:;
I
, ...
-to.>
~
~
l/j
S@ I
I
~ I
...
0
~(j I r-
~:r I ,~ I rn
"'en 0 )>0" )>)>;:0 C)
if~~ E'b- ~~a a:Jto rn
Q.~~ A> AI "0 A>:Jn -"'(") (")(") z
- '< -'r- go l/jtoo ~"O:J" "'::r 0
J~ ~~2 ~~III 3~ ~3 -:rc: '<r:
~ ;$." =3 C:to_ cn.Qi
to ::J to., A>
[~ AI Q. toQ. Oto ;?to<: 0<:
::0: ::J :J:J
- - Q. I'D 0-. r: _,
- ....en :J en
to - Q.-
~ Q. AI AI AI
~ -<
o
.....
Q)
'<:
;;U
~(')
g.~'
::ogm
CI> (') ><
o :r
cd ::r -.
.cuC:~
::s Q;'...
N' ~ CO
.cu -.
-en
-. -
o .cu
::s
Z
o
.
-.
.....
EXHIBIT "c"
. . -.II.. .....,.. 1)', lflii ....
. bel.tad PI_ Ie... To,
Dlof _IIlotndw 6ff1_
- ~.... .1-
UIIG _Ifle ......
..... .,_, ra .,1n
... _ ..... .. '. IIto:I
LMDPILL JIt1ISUCl DSEMBN'1'
AND
~S KUNllING wrm tu LAND
'(herainaf~r referred to a. 'Grantor'), for valuable
. ocnsideration, doe" hereby GRANT to the COt1N'1'Y OP SAN I>I!GO, a
political .1.IbcHvidon of the 8t:&te of California U~N'elnafter
.referre to _ wOranteeW) .. ~ owner of that re.l property
located in the Coum:y of San Di~o, California known a. the 'Otay
landfill' which i. aore particularly described in '~xhibit A'
..hereto (hereinafter referred to .. the 'Doainant Ten_ent') and
its auoe...or. in interut to the Doainant Ten_ant, an EASDmNT
Chereinafter referred to .s '~uiaance Bas_ant") ovar all that
real property located. in the county of San Di~o, California
d..cribed in 'Exhibit B' bereto (hereinafter referred to a. the
'servient '.faneaent').
,
Th1a lruisance za....nt is for the USe and be.nefit of GAnt"
and iu .ucc...ors in inter.st and Ulvited quut. in the conduct
ot .0HeS waste landUllinq operations 0%\ the Doainant TanGent,
. for the tree and 1moblltructad pa.saqe on, onto, in, tbrol.1qh, and
.aoro.. the .urrace and airap.oe above the .urreo. of the Servient
'rene.ant of the following thinq. (Mrdnattezo referred to.. :
'Nui.ance It....)s
OU.t, .ftoise: vibrations, any an4 .11 aheaicala or particl..
auspended (paraanently or t.aporarily) in the air and wind
including b\rt not U..ited i:o ..thane p.t o4or.: fuze.: %\Iel
particle.' ....qI.1lla and other ac&venqN' birc1a and the
e.xorlNMnt dropp1n<J. tbu-.trca, UI4 tbe W1oJ:1stru~ pa.ssg_
below tba .urfaoe ot l...cbate an4 othN' pollutantaJ and for
..ob, ava7:Y and all att.ct. a. uy be oauaecS tly or r.ault
~Z'_ the operat10D of a laMf111 whiob 1a ftOW iD .xiat~
.. or vb.1cb aay be developed 11\ ~ t\rt\ln,
t09'ather with the oont1nuiD9 right i:o cau.e or aUow in all ot
eu= Servient Ten_ant .uch Nui.ance It-., it balnq und.eratoocS
..n4 a,r..4 that O~ta., or 1t. wooasaor. 11\ intereat, 1ntancS8
'to develop, uinta1D UI4 expand the landfill on the djac..nt
. Doainant l'o:I..ent in wch . aaMN' that uid landfill and the
e.._ent vnnted berein will ba u..4 at aU'tia.. in cOIIIpl1anoe
with all appliea1lle .tab and Faderal laws and the lawful ~u-.
'.
-"
of .tate ah4 Federal avenei.. requlat1nq anvlromMfttal factor.,
toxic an4/or huu40ua w..te~ &114 the DPU'&tion of ~ l&114fil1.
. Grantor, for itaeif and ita .uc:c::...ora an4 an1vna, doe.
bereby tully .,.lve anc1 ral.... eny d;bt or cauae of .ction Which
.~ey or any of tbu MY noW have or "1' bave 1n the future
.qainat Oran~, ita a~c~a.or. and ...ign., on account of or
.1'1..11\9 0'* or .~ MUi.__ X~ berat:.oto~ and b.r_t~.r
oauae4 b~ ~ oper.~1oD Of . ~andt11~.
Grantor, for 1~.lt ~ ita a~aaora and .aa1qna,
- covenant. aM atp:_., with the 1&ndera1;an4ini and intent ~t wc1a
ahall run wi~ t.ha land, an4 which 8hall run with t.he land, that
neither they nor any of tb_ will OO1IIIIance or aaintain a auit,
action, writ, arbitration, or other legal or equitable procee~lnq
aqatnat Grant.. or ita auoceaaora or ...iqna wherein the relief
~uqbt u t.he oe...tion or l1&itation on t:he uae of t.he Dominant
~en.lII.nt .. . lanc!fill. Gz'antor, tor 1taalf and ita aucce..on
and ..ai~, coYenanq and &9r..., with the un4ar.1:c41n9 and
1JI~t that .uch 8hall run with the laN1, an4 whioh gall ~
vi1:h the laneS, that in t.h. evant that 1:11ey ....ioiat. the above
oovenanta of t.he for~oing .ant.nee, they &hall pay to C:rante.
. auc:h atto~.y.' te.. and co.t. aa _y !>a ".t.rained to !>a
na.on&1l1e ~y a Court ot COIIP.te.nt juri.dict;1on. %nquid,e. or
. nqu..ta for antorcpent aa4e by Grantor, ita aucce.aor. or
...lqna to state or Pa4anl ageneie. wit.h regulatory a~thor1ty
over t:he operation of landtilla &hall not be oonai4ered a
'violation of t.hia para;rapb.
Upon the t.rainAtign of uaa of 1:he ~inant Ten_ant for
laneSfill purpo..., (lnclu41nq ocaplet1gn of active lanc1fill
o~.tion8 and all c10eur. and poet-eloaure activit1.e), Grantor,
ita aueee..on or a.eigM ..y request that Grantee, it.
-auoc...ora or ...iCiM, tbrcuqb the .pplicabl. leval procedur.,
vaoate or urminate thia .aaaaent, which requ..t will not ~e
',W\re..o~ly vitbald.
"Zxecut.ed ~i.
'California.
day of
, 1.", at .an Oiego,
....~
.
-. .
. .....
..
.....-.. ....... ~....
.~.~~ eeeTII7/CO
cr:
W
I....L-
I....L- .
.
~ 5 9
m
'<t
,
~ -
0 ..., 3: r-.
VI -
Z 9 t-I .U
'<t w
~ 0 'VI
3:
VI
-1
-1
-
I....L-
0 I! '*....
Z ~
.f..p
::J ....'"
.9....
,,~
\S'
~ ~
---
....
~.s'
~
0
<c
I
CD.)
"" .J <"
Oi:i:1II
. c> C(
o ~ <
I ..J
c.o~
Q)
-1
W
U
0:::
<(
0...
,
L
J
~
.
f'
...
~
..
~
=
t'J
,
.,
1
:I:
l)
ZN
~ID
CD
>-c..
~<(
0:::;
l
'.
.
EXHIBIT "E" I
Pre-annexation Devalopment Agreement
Planning Area Allessor Ownership Acreage
Parcel Numbars
Otay Valley Parcel 644.{)30.{)7 S NMBLtd. 134.2S
Otay Valley Parcel 644.{)6()'{)7 SNMBLtd. IS9.18
Otay Valley Parcel 644.{)6()'{)8 SNMBLtd. 80.00
Otay Valley Parcel 644-060.{)9 SNMBLtd. 80.00
Otay Valley Parcel 644.{)6()-10 SNMBLtd. 289.70
Otay Valley Parcel 644-060-12 SNMBLtd. 82.20
Otay Valley Parcel 644.{)70.{)8 SNMBLtd. 313.28
Otay Valley Parcel 64S'{)30-19 SNMBLtd. 33S,34
Otay Valley Parcel 646.{)10.{)2 SNMBLtd. 352.70
. 1,826.65 Total
PRE-ANNEXATION DEVELOPMENT AGREEMENT
THIS PRE-ANNEXATION DEVELOPMENT AGREEMENT ("Agreement") is
made effective on the date hereinafter set forth below by and among
the CITY OF CHULA VISTA ("City") and JEWELS OF CHARITY ("Jewels"),
who agree as follows:
1. RECITALS. This Agreement is made with respect to the
following facts:
1.1 Owner. The owners of the properties subject to this
Agreement (hereinafter collectively referred to as "Owner" or as
"Developer") are as follows:
1.1.1 Jewels is the owner of approximately 475
acres of undeveloped real property ("the Jewels Property") in
the unincorporated area of the County, described in Exhibits
"A" and "C", attached hereto and incorporated herein by this
reference. Portions of Jewels Property are located in
Villages 9 and 10 of the Otay Ranch Property.
1.1.2 Jewels (the "property")
larger area commonly known, and referred to
Otay Valley Parcel of Otay Ranch."
is part of a
herein, as "the
1.2 ci tv. The city of Chula vista is a municipal
corporation with Charter City powers incorporated within the
. County.
1.3 Code Authorization and Acknowledqments.
1.3.1 city is authorized pursuant to its
charter, self-rule powers and California Government Code
sections 65864 through 65869.5 to enter into development
agreements for the purpose of establishing certainty for both
City and owners of real property in the development process.
1.3.2 Government Code section 65865 expressly
authorizes a city to enter into a development agreement with
any person having a legal or equitable interest in real
property in unincorporated territory within that city's sphere
of influence for the development of property as provided in
the Development Agreement Law; provided that the agreement
shall not become operative unless annexation proceedings
annexing the property to the city are completed within the
time specified by the agreement.
1.3.3 city enters into this Agreement pursuant
to the provisions of the California Government Code, its home-
rule powers, and applicable city ordinances, rules, regula-
tions and policies.
-1-
1.~.4 city and Owner intena to enter into this
agreement for the following purposes:
1.3.4.1 To assure adequate public facilities
at the time of development.
1.3.4.2 To assure development in accordance
with city's capital improvement plans.
1.3.4.3' To provide certainty to Owner in the
development approval process by vesting the permitted
use(s), density, intensity of use, and the timing and
phasing of development as described in the Development
Plan, which is defined in Paragraph 2.4 of this Agree-
ment, in exohange for Owner's entering into this Agree-
ment and for its commitment to support the Annexation
described below.
1.3.4.4 To permit achievement of City growth
management goals and objectives.
1.3.4.5 To allow city to realize significant
economic, recreational, park, open space, social, and
public facilities benefits for the city, some of which
are of regional significance.
1.3.4.6 To provide and assure that the City
receive sales tax revenues, increase in the property tax
base, residential housing and other development, sewer,
water and street facilities.
1.3.4.7 To provide and assure that the City
receives public facilities in excess of project generated
impacts and such facilities shall be of supplemental
size, number capacity or length, which shall be provided
earlier than could be provided either by funds from the
City or than would strictly be necessary to mitigate
project related impacts at any development phase.
1.3.4.8
support to secure
Exhibit "B".
To provide the city the developer's
annexation of the lands depicted in
1.3.4.9 To enable the City to secure title to
the land within the boundaries of the Property necessary
to complete the Chula vista greenbelt system as defined
in the Chula vista General Plan.
1.3.4.10 Because of the complexities of the
financing of the infrastructure, park, open space, and
other dedications, and regional and community facilities,
and the significant nature of such facilities, certainty
in the development process is an absolute necessity. The
phasing, timing, and development of public infrastructure
necessitate a significant commitment of resources,
planning, and effort by Owner for the public facilities
financing, construction, and dedication to be success-
fully completed. In return for Owner's participation and
-2-
commitm~nt to these significant contributions of private
resources for public purposes and for Owner's consent to
the Annexation described below, city is willing to
exercise its authority to enter into this Agreement and
to make a commitment of certainty for the development
process for the Property.
1. 3.4.11 In consideration of Owner's agreement
to provide the significant benefits and for Owner's
consent to the Annexation described below, City hereby
grants Owner assurances that it can proceed with develop-
ment of the Property in accordance with city's
ordinances, rules, regulations, and policies existing as
of the effective date of this Agreement subject to
section 5.2. 1 below. Owner would not enter into this
Agreement or agree to provide the public benefits and
improvements described in this Agreement if it were not
for the commitment of city that the Property subject to
this Agreement can be developed in accordance with City's
ordinances, rules, regulations, and policies existing as
of the effective date of this Agreement subject to
section 5.2.1 below.
1.4 The Annexation. On July 1, 1996, the Local Agency
Formation Commission ("LAFCO") approved annexation of Sphere of
Influence Planning Area 1 "The otay Parcel", Planning Area' 2
"Inverted L" and the Mary Patrick Estate Parcel (see Attachment
"B") .
1.5 Sphere of Influence. On February 5, 1996 and July
1, 1996 the Local Agency Formation commission approved the
inclusion of Planning Area 1, "The "Otay Parcel", into the City
Sphere of Influence (Sphere of Influence Planning Area 1 "the Otay
Parcel", Planning Area 2 "Inverted L" and the Mary Patrick Estate
Parcel - see Attaohment "B").
1.6 Planning Documents. On October 28, 1993, city and
County adopted the Otay Ranch General Development Plan/Subregional
Plan ("the GDP") which includes the Otay Ranch Village Phasing
Plan, Facility Implementation Plan, Resouroe Management Plan and
Servioe Revenue Plan, for approximately 23,000 acres of the Otay
Ranch, including the Otay Valley Parcel and the Jewels property.
1. 7 Owner Consent. City desires to have the cooperation
and consent of Owner to include the Property in the Annexation in
order to better plan, finance, construct and maintain the infra-
structure for the otay Valley Parcel; and Jewels desires to give
their cooperation and consent, provided that they obtain certain
assurances, as set forth in this Agreement.
1. 8 city Ordinance. , 19962 is the date of
adoption by the City Council of Ordinance No. ~ approving
this Agreement. The ordinance shall take effect and be in full
force on the effective date of Annexation.
-3-
2. DEFINIT10NS.
otherwise requires:
In this Agreement, unless the context
2.1 "Annexation" means the proposed annexation of that
portion of the Otay Ranch into the City as depicted on Exhibit "B".
2.2 "City" means the City of Chula Vista, in the County
of San Diego, state of California.
2.3 "County" means the county of San Diego, State of
California.
2.4 "Development Plan" means the'GDP.
2.5 "GDP" means the General Development Plan/ Subregional
Plan for the Otay Ranch, described in Paragraph 1.6, above.
2.6 "Owner" or "Developer" means the person, persons, or
entity having a legal and equitable interest in the Property, or
parts thereof, and includes Owner's successors-in-interest.
2.7 "Project" means the physical development of the
private and public improvements on the Property as provided for in
the Existing Project Approvals and as may be authorized by the City
in Future Discretionary Approvals.
2.8 "Property" means the real property described in
Paragraph 1.1.1.
2.9 The "Term" of this Agreement means the period
defined in Paragraph 3, below.
2.10 "Builder" means developer to whom Developer has sold
or conveyed property within the Property for purposes of its
improvement for residential, commercial, industrial or other use.
2.11 "CEQA" means the California Environmental Quality
Act, California Public Resources Code section 21000, et seq.
2.12 "city Council" means the City of Chula Vista city
Council.
2.13 "Commit" or "Committed" means all of the following
requirements have been met with respect to any public facility:
2.13.1 For a public facility within the city's
jurisdictional boundaries and a responsibility of the develop-
er.
2.13.1.1 All discretionary permits required of
the Developer have been obtained for construction of the
pUblic facility;
2.13.1.2 Plans for the construction of the
public facility have all the necessary governmental
approvals; and
-4-
2.13.1.3 Adequate funds (i.e., letters of
credit, cash deposits, performance bonds or land secured
public financing, including facility benefit assessments,
Mello-Roos assessment districts of similar assessment
mechanism) are available such that the City can construct
the public facility if construction has not commenced
within thirty (30) days of issuance of a notice to
proceed by the Director of Public Works, or construction
is not progressing towards completion in a reasonable
manner as reasonably deemed by the Director of Public
Works. -
2.13.2 For a pUblic facility within the city's
jurisdictional boundaries, but to be provided by other than
Developer.
2.13.2.1 Developer's proportionate share of
the cost of such public facility as defined in the
existing Project Approvals and Future Discretionary
Approvals has been provided or assured by Developer
through the payment or impositions of development impact
fee or other similar exaction meohanism.
2.13.3 For public facility not within city's
jurisdictional boundaries:
the cost
existing
Approvals
Developer
of Public
2.13.3.1 Developer's proportionate share of
of such public facility as defined in the
project Approvals and Future Discretionary
has been provided for or otherwise assured by
to the reasonable satisfaction of the Director
Works.
2.14 "Development Impact Fee (DIF)" means fees imposed
upon new development pursuant to the City of Chula vista
Development Impact Fee Program, for example, including but not
limited to the Transportation Development Impact Fee Program, the
Interim SR-125 Development Impact Fee Program, the Salt Creek Sewer
DIF and the Public Facilities DIF.
2.15 "Existing Project Approvals" means all discretionary
approvals affecting the Project which have been approved or
established in conjunction with, or preceding, the effective date
consisting of, but not limited to the GDP, the Chula vista General
Plan, the otay Ranch Reserve Fund Program adopted pursuant to
Resolution 18288, and the Phase I and II Resource Management Plan
(RMP), as may be amended from time to time consistent with this
agreement.
2.16 "Final Map(s)" means any final subdivision map for
all or any portion of the property other than the Superblock Final
Map ("A" Maps).
2.17 "Future Discretionary Approvals" means all permits
and approvals by the city granted after the effective date and
excluding existing Project Approvals, including, but not limited
to: (i) grading permits; (ii) site plan reviews; (iii) design
guidelines and reviews; (iv) precise plan reviews; (v) subdivisions
-5-
of the Property or re-subdivisions of the Property previously
subdivided pursuant to the Subdivision Map Act; (vi) conditional
use permits; (vii) variances; (viii) encroachment permits;
(ix) sectional Planning Area plans; (x) Preserve Conveyance Plan
and (xi) all other reviews, permits, and approvals of any type
which may be required from time to time to authorize public or
private on- or off-site facilities which are a part of the Project.
2.18 "Planning Commission" means the Planning Commission
of the City of Chula vista. .
2.19 "Preserve conveyance Plan" means a plan that will,
when adopted, sets forth policies and identify the schedule for
transfer of land and/or fees to be paid to insure the orderly
conveyanoe of the otay Ranch land to the Preserve Owner Manager.
The purpose of the plan is to fulfill the obligations to convey
resource sensitive land, per the criteria contained in the phase I
and II Resource Management Plans and to mitigate environmental
impacts of the Otay Ranch Project.
2.20 "Public Facility"
public facilities described
Implementation Plan.
or "Public Facilities" means those
in the otay Ranch Facility
2.21 "Subdivision Map Act" means the California
Subdivision Map Act, Government Code section 66410, et seq., and
its amendments as may from time to time be adopted.
2.22 . "Substantial Compliance" means that the party
charged with the performance of a covenant herein has sufficiently
followed the terms of this Agreement so as to carry out the intent
of the parties in entering into this Agreement.
2.23 "Threshold" means the facility thresholds set forth
in the city's Municipal Code section 19.19.040.
3. TERM. This Agreement shall become effective as a
development agreement upon the effective date of the Annexation
("the Effective Date"); provided, however, that if the Annexation
does not occur on or before Julv Jaauary 1, 1997, this Agreement
shall be null and void unless the annexation proceedinqs have been
extended bv LAFCO. If the annexation proceedinqs have been
extended. this Aqreement shall become effective upon the effective
date of such Annexation: provided however. if the annexation does
not occur bv the end of such extension(s1. this Agreement shall
become null and void. Any of the foregoing to the contrary
notwithstanding, from the date of the first reading of the
ordinance approving this Agreement, and unless or until this
Agreement becomes null and void, Owner shall be bound by the terms
of Paragraph~. The Term of this Agreement for purposes other than
paragraph ~ shall begin upon the Effective Date, and shall continue
for a period of twenty (20) years ("the Term"). The Term shall
also be extended for any period of time during which issuance of
building permits to Owner is suspended for any reason other than
the default of Owner, and for a period of time equal to the period
of time during which any action by City or court action limits the
processing of future discretionary approvals, issuance of building
permits or any other development of the Property consistent with
-6-
this Agreement.
4. OWNER CONSENT TO ANNEXATION. Owner hereby consents to
and shall cooperate with the applications of City to declare that
the otay Valley Parcel is within city's sphere of influence and to
annex the otay Valley Parcel to the City; provided, however, that
Owner may withdraw such consent and withhold further cooperation if
the City, prior to the Effective Date, adopts rules, regulations,
ordinances, policies, conditions, environmental regulations,
phasing controls, exactions, entitlements, assessments or fees
applicable to and governing development of the property which are
inconsistent with, or render impractical development of the
property according to, the Development Plan or the additional
commitments of City set forth in Paragraphs 5.1.1 through 5.1.5,
below. Owner also agrees not to challenge the annexation of the
Otay Valley Parcel into the City.
4.1 The Developer understands and aqrees that this
Agreement shall become effective and valid only upon the
Effective Date of the annexation proceedings. as more fullY
described in paraqraph 3 of this Aqreement. Developer further
understands that as a condition precedent to the completion of
annexation proceedings. and this Aqreement becominq effective.
certain property owners such as SNMB. Ltd.. are required to
provide certain easements and subordination aqreements
satisfactory to the County. Developer aqrees that the City's
second readinq of the Ordinance approving this Agreement shall
not occur unless and until said subordination aqreements have
been accepted bY the County. No terms of this Aqreement shall
be sub;ect to reneqotiation between the first and second
readinq of the ordinance approving this Aqreement except by
mutual consent of the parties to this Aqreement.
5. VESTED RIGHTS. Notwi thstanding any future action or
inaction of the City during the term of this Agreement, whether
such action is by ordinance, resolution or policy of the city,
Owner and Developer shall have a vested right, except as may be
otherwise provided in this section 5, to construct the Project in
accordance with:
5.1 Existing project Approvals, subject to the following
requests for modifications, if approved by the City:
5.1.1 If the interchange improvements at Otay
Valley Road and 1-805 are needed to serve the Project, the
City will hold appropriate hearings to consider an amendment
to its Transportation Phasing Plan (TPP) and Development
Impact Fee (DIF) Program to include said improvements as may
be deemed appropriate by the city to accommodate the project
phasing. The City agrees to reasonably cooperate and work
with CALTRANS to complete plans for said interchange improve-
ment.
5.1.2 city shall initiate contact and diligently
pursue discussions with the County of San Diego and the city
of San Diego to determine the number, scheduling and financing
of the Otay River road and bridge crossings.
-7-
5. L 3 ci ty shall allow the owner for purposes of
processing entitlements to proceed with planning of the
Property on a first come first served basis, with other
properties in the area of the Annexation. In addition, if
necessary the City shall, with proper environmental review,
consider in its discretion an amendment to the Village Phasing
Plan to facilitate the planning and development of the
properties covered by this Agreement.
5.1.4 To. the extent any of the foregoing
commitments of City are embodied in changes to the Development
Plan or the rules, regulations, ordinances, policies,
conditions, environmental regulations, phasing controls,
exactions, entitlements, assessments, and fees applicable to
and governing development of the Property, whether adopted
before or after the Effective Date, such changes shall be
deemed applicable to the Property without change to this
Agreement.
5.1.5 ci ty shall diligently process any
amendments, applications, maps, or other development applica-
tions.
5.1.6 City may make such modifications or
amendments to the Existing Project Approvals/Future Discretionary
Approvals, as may be ordered by a court of competent jurisdiction,
in an action in which the Developer is a party or has had an
opportunity to appear or has been provided notice of such action by
the city.
5.2 Development of Propertv. The development of the
Property will be governed by this Agreement and Existing Project
Approvals and such development shall comply and be governed by all
rules, regulations, polioies, resolutions, ordinances, and
standards in effect as of the Effective Date subject to the
provisions of section 5.2.1 below. The City shall retain its
discretionary authority as to Future Discretionary Approvals,
provided however, such Future Discretionary Approvals shall be
regulated by the Existing Project Approvals, this Agreement, and
city rules, regulations, standards, ordinances, resolutions and
policies in effect on the Effective Date of this Agreement and
subject to Section 5.2.1.
Notwithstanding the foregoing, the city may make suoh changes to
the city's Growth Management Ordinance applicable to the Project as
are reasonable and consistent with the purpose and intent of the
existing Growth Management Ordinance and which are generally
applicable to all private projects citywide or east of 1-805 or
within a specific benefit, fee or reimbursement district created
pursuant to the California Government Code.
5.2.1 New or Amended Rules. Requlations.
policies. Standards. Ordinances and Resolutions. The city may
apply to the Project, including Future Discretionary Approv-
als, new or amended rules, laws, regulations, policies,
ordinances, resolutions and standards generally applicable to
-8-
all private projects east of I-80S or within a specific
benefit fee or reimbursement district created pursuant to the
California Government Code. The application of such new
rules, or amended laws, regulations, resolutions, policies,
ordinances and standards will not unreasonably prevent or
delay development of the Property to the uses, densities or
intensities of development specified herein or as authorized
by the Existing Project Approvals. The City may also apply
changes in City laws, regulations, ordinances, standards or
policies specifically mandated by changes in state or federal
law in compliance witn section 13.3 herein.
5.2.2 Developer may elect with city's consent,
to have applied to the project any rules, regulations,
policies, ordinances or standards enacted after the date of
this Agreement. Such an election has to be made in a manner
consistent with section 5.2 of this Agreement.
5.2.3 Modifications to Existing Pro;ect
Approvals. It is contemplated by the parties to this
Agreement that the City and Developer may mutually seek and
agree to modifications to the Existing Project Approvals.
Such modifications are contemplated as within the scope of
this Agreement, and shall, upon written acceptance by all
parties, constitute for all purposes an Existing Project
Approval. The parties agree that any such modifications may
not constitute an amendment to this Agreement nor require an
amendment to the Agreement.
5.2.4 Future Discretionary Approvals. It is
contemplated by the parties to this Agreement that the City
and Developer may agree to Future Discretionary Approvals. The
parties agree that any such Future Approvals may not consti-
tute an amendment to this Agreement nor require an amendment
to the Agreement.
5.3 Dedication and Reservation of Land for Public
Purposes. Except as expressly required by this Agreement or the
Existing Project Approvals and Future Discretionary Approvals
(excepting dedications required within the boundaries of any parcel
created by the subsequent subdivision of the Property as required
by the Subdivision Map Act), no dedication or reservation of real
property within or outside the Property shall be required by City
or Developer in conjunction with the Project. Any dedications and
reservations of land imposed shall be in accordance with section
7.2 and section 7.8 herein.
5.4 Time for Construction and Completion of Pro;ect.
Because the California Supreme Court held in Pardee Construction
companv v. city of Camarillo (1984) 27 Cal.3d 465, that the failure
of the parties to provide for the timing of development resulted in
a later-adopted initiative restricting the timing of development to
prevail over such parties' Agreement, it is the intention of the
parties to this Agreement to cure that deficiency by specifically
acknowledging that timing and phasing of development is completely
and exclusively governed by the Existing Project Approvals,
including the Chula Vista Growth Management Ordinance. The purpose
of the Chula Vista Growth Management Ordinance is to "control the
-9-
timing and location of development by tying the pace of development
to the provision of PUblic facilities and improvements to conform
to the city's threshold standards." (Municipal Code Section
19.09.0l0A.7) The findings in support of the Growth Management
Ordinance conclude that the ordinance "does not affect the number
of houses which may be built." (Municipal Code Section
19.09. OlOB. 3) Therefore, the parties acknowledge that the Chula
vista Growth Management Ordinance completely occupies the topic of
development timing and phasing and expressly precludes the adoption
of housing caps, urban res~rves or any other means by which the
rate of development may be controlled or regulated. The City
agrees that the Developer shall be entitled to, apply for and
receive all permits necessary for the development of property,
consistent with the Growth Management Ordinance, Existing Project
Approvals, Future Discretionary Approvals and this Agreement.
5.5 Benefit of Vestinq. Nothing in this Agreement will
be construed as limiting or impairing Developer's vested right, if
any, to proceed with the development and use of the Property
pursuant to the Federal and State constitutions, and pursuant to
statutory and decisional law.
5.6 vestinq of Entitlements. All rights conferred by
this Agreement vest with the Effective Date hereof. The approval
of Future Discretionary approvals shall not be deemed to limit
Developer's rights authorized by this Agreement, and once such
approvals are obtained they shall be vested to the same extent as
the Existing Project Approvals.
6. DEVELOPMENT PROGRAM.
6.1 processinq of Future Discretionarv Approvals. City
will accept and diligently process development applications and
requests for Future Discretionary Approvals, or other entitlements
with respect to the development and use of the Property, provided
said applications and requests are in accordance with this
Agreement. city costs for processing work related to the project,
including hiring of additional city personnel and/or the retaining
of professional consultants, will be reimbursed to city by
Developer.
6.2 Lenqth of Validity of Tentative Subdivision Maps.
Government Code section 66452.6 provides that tentative subdivision
map(s) may remain valid for a length up to the term of a Develop-
ment Agreement. The City agrees that tentative subdivision map(s)
for the property shall be for a term of six (6) years and may be
extended by the city council for a period of time not to exceed a
total of twenty (20) years and in no event beyond the term of this
Agreement.
6.3 Pre-Final Map Development. If Developer desires to
do certain work on the property after approval of a tentative map
(for example, grading) prior to the recordation of a final map, it
may do so by obtaining a grading and/or other required approvals
from the City which are authorized by the city prior to recordation
of a final map. Such permit shall be issued to Developer, or its
contractor, upon Developer's application, approval, and provided
-10-
Developer posts a bond or other reasonably adequate security
required by City 1n an amount to assure the rehabilitation of the
land if the applicable final map does not record.
6.4 Final Maps.
6.4.1 "A" Maps and "B" Maps. If Developer so
elects, the City shall accept and process a master subdivision
or parcel map ("A" Map) showing "Super Block" lots and
backbone street dedications. "Super Block" lots shall be
consistent with the GDP and subsequent Sectional Plan Area
plans, and shall not subdivide land into individual single-
family lots. All "Super Blocks" created shall have access to
dedicated public streets. The city shall not require improve-
ment plans in order to record a final map for any "A" Map
lots, but the City shall require bonding for the completion of
backbone facilities prior to recording in an amount to be
determined by the city. Following the approval by City of any
final map for an "A" Map lot and its recordation, Developer
may convey the "super Block" lot. The buyer of a "Super
Block" lot shall then prooess final improvement plans and
grading plans and a final map ("B" Map) for each "Super Block"
lot which the City shall process. The "B" Maps shall be in
substantial conformance with the related approved "A" Map. In
the instance of the multi-family dwelling unit areas, a
separate tentative subdivision map may be submitted to the
city and the "B" Map(s) for these areas may be submitted to
the City after the City Planning commission approves said
tentative subdivision map.
6.4.2 Recordation of Final Subdivision Map in
Name of Builder or Third Partv. Developer may, if it so
elects, convey to a Builder or third party any "super block"
lot(s) shown on the recorded Superblock Final Map. In such
case, the Builder or third party will (i) process any neces-
sary final improvement and grading plans and a final map for
each such "super block" lot, which map City shall accept and
process as subsequent phases in a multi-phase project, (ii)
enter into a subdivision improvement agreement with City with
respect to the subdivision improvements which are required for
such super block lot, and (iii) provide security and insurance
satisfactory to City for the completion of the subdivision
improvements.
6.4.3 Recordation of Final Subdivision Map in
Developer's Name: Transfer of Obliqations Under Subdivision
Improvement Agreement Is) . If Developer so elects, it may
defer the conveyance of any super block lot to a Builder or
third party until after the final map of such super block lot
has been recorded. If Developer elects to proceed in this
manner, it will enter into city's standard subdivision
improvement agreement(s) with City for the improvements
required as a condition to the approval of such map(s). Upon
sale to a Builder or third party, if such Builder or third
party assumes Developer's obligations under the improvement
agreement and provides its own security and insurance for the
completion of the subdivision improvements as approved by the
city, Developer shall be released from liability under the
-11-
subdivision 1mprovement agreement(s) and Developer's security
shall be released.
6.4.4 Transfer of Riqhts and Obliqations of
Development. Whenever Developer conveys a portion of the
Property, the rights and obligations of this Agreement shall
transfer in accordance with Section 15 herein.
7. DEVELOPER'S OBLI~ATIONS.
7.1 Condition to Developer's Obliqations to Dedicate. Fund or
Construct Public Facilities. Developer agrees to develop or
provide the public improvements, facilities, dedications, or
reservations of land and satisfy other exactions conditioning the
development of the Property which are set forth hereinbelow. The
obligations of the Developer pursuant to this Agreement are
conditioned upon: (i) the City not being in default of its obliga-
tions under this agreement; and (ii) the city not preventing or
unreasonably delaying the development of the property; and (iii)
the Agreement having not been suspended in response to changes in
state or federal law; and (iv) the City's obligations having not
been suspended pursuant to Section 13.2.
7.2 Dedications and Reservations of Land for Public Purposes.
The policies by which property will be required to be reserved,
dedicated or improved for pUblic purposes are identified in the
Existing Project Approvals. A more precise delineation of the
property to be preserved, dedicated or improved for public purposes
shall occur as part of Future Discretionary Approvals, consistent
with the Existing project Approvals.
7.3 Growth Manaqement Ordinance. Developer shall commit the
public facilities and City shall issue building permits as provided
in this section. The city shall have the right to withhold the
issuance of building permits any time after the city reasonably
determines a Threshold has been exceeded, unless and until the
Developer has mitigated the deficiency in aocordance with the
City's Growth Management Ordinance.
Developer agrees that building permits may be withheld where the
public facilities described in the Existing project Approvals/-
Future Discretionary Approvals required for a particular Threshold
have not been committed.
In the event a Threshold is not met and future building permit
issuance may be withheld, the notice provisions and procedures
contained in section 19.09. 100C of the Municipal Code will be
followed. In the event the issuance of building permits is
suspended pursuant to the provisions herein, such suspension shall
not constitute a breach of the terms. of this Agreement by Developer
or City. Furthermore, any such suspension which is not caused by
the actions or omissions of the Developer, shall toll the term of
this Agreement as provided for in Section 16.12 of this Agreement,
and suspend the Developer's obligations pursuant to this Agreement.
7.3.1 Required Condemnation. The city and Developer
recognize that certain of the public facilities identified in
-12-
the Existing project Approvals/Future Discretionary Approvals
and required to comply with a threshold are located on
properties which neither the Developer nor the City has, or
will have, title to or control of. The City shall identify
such property or properties and at the time of filing of the
final map commence timely negotiations or, where the property
is within the city's jurisdiction, c01lll1lence timely proceedings
pursuant to Title 7 (co1lll1lencing with S 1230.010) of Part 3 of
the Code of civil Procedure to acquire an interest in the
property or properti![!s. Developer's share of the cost
involved in any such acquisition shall be based on its
proportionate share of the public facility as defined in the
Existing Project Approvals/Future Discretionary Approvals.
Nothing in this Agreement shall be deemed to preclude the City
from requiring the Developer to pay the cost of acquiring such
off-site land. For that portion of the cost beyond the
Developer's fair share responsibility, the city shall take all
reasonable steps to establish a procedure whereby the develop-
er is reimbursed for such costs beyond its fair share.
7.3.2 Information Reqardinq Thresholds. Upon
Developer's written requests of the city Manager, the City
will provide Developer with information regarding the current
status of a Threshold. Developer shall be responsible for any
staff costs incurred in providing said written response.
7.4 Improvements Required bv a Subdivision Map. As may
be required pursuant to the terms of a subdivision map, it shall be
the responsibility of Developer to construct the improvements
required by a subdivision map. Where Developer is required to
construct a public improvement which has been identified as the
responsibility of another party or to provide pUblic improvements
of supplemental size, capacity, number or length benefiting
property not within the subdivision, city shall process a reim-
bursement agreement to the Developer in accordance with Article 6
of Chapter 4 of the Subdivision Map Act, c01lll1lencing with Government
Code section 66485, and Section 7.5, below.
7.5 Facilities Which Are the Obliqations of Another
Partv. or Are of Excessive Size. Capacity. Lenqth or Number.
Developer may offer to advance monies and/or construct public
improvements which are the responsibility of another land owner, or
outside the City's jurisdictional boundaries, or Which are of
supplemental size, capacity, number or length for the benefit of
land not within the Property. City, where requesting such funding
or construction of oversized public improvements, shall consider
after a public hearing, contemporaneous with the imposition of the
obligation, the formation of a reimbursement district, assessment
district, facility benefit assessment, or reimbursement agreement
or other reimbursement mechanism.
7.6 Pioneerinq of Facilities. To the extent Developer
itself constructs (Le., "Pioneers") any public facilities or
public improvements which are covered by a DIF Program, Developer
shall be given a credit against DIFs otherwise payable, subject to
the City's Director of Public Works reasonable determination that
such costs are allowable under the applicable DIF Program. It is
-13-
specifically intended that Developer be given DIF credit for the
DIF Program improvements it makes. The fact that such improvements
may be financed by an assessment district or other financing
mechanism, shall not prevent DIF credit from being given to the
extent that such costs are allowed under the applicable DIF Program
7.7 Insurance.
insured for all insurance
Project as pertains to the
the Project.
Developer shall name City as additional
policies obtained by Developer for the
Developer's activities and operation on
7.8 Other Land Owners. Developer hereby agrees to
dedicate adequate rights-of-way within the boundaries of the
Property for other land owners to "pioneer" public facilities on
the Property; provided, however, as follows: (i) dedications shall
be restricted to those reasonably necessary for the construction of
facilities identified in the City's adopted public facility plans;
(ii) this provision shall not be binding on the successors-in-
interest or assignees of Developer following recordation of the
final "Super Block" or "A" Map; and (iii) the city shall use its
reasonable best efforts to obtain agreements similar to this
subsection from other developers and to obtain equitable reimburse-
ment for Developer for any excess dedications.
8. DEVELOPMENT IMPACT FEES.
8.1 Existinq Development Impact Fee Proqram Payments.
Developer shall pay to the City a DIF, or construct improvements in
lieu of payment, for improvements which are conditions of a
tentative subdivision map upon the issuance of building permits (s) ,
or at a later time as specified by City ordinance, the Subdivision
Map Act, or Public Facility Financing Plan (PFFP). The DIF will be
in the amount in effect at the time payment is made and may only be
increased pursuant to Section 8.6 herein.
8.2 Other Undeveloped properties. The city will use its
reasonable best efforts to impose and collect, or cause the
imposition and collection of, the same DIF program on all the
undeveloped real properties which benefit from the provision of the
public facility through the DIF program, or provided as a condition
of project Approvals.
8.3 Use of Development Impact Fee Proqram. The DIF
amounts paid to the City by Developer and others with respect to
the Area of Benefit shall be placed by the city in a capital
facility fund account established pursuant to California Government
Code sections 66000-66009. The City shall expend such funds only
for the Projects described in the adopted fee program as may be
modified from time to time. The city will use its reasonable best
efforts to cause such Projects to be completed as soon as practica-
ble; however, the City shall not be obligated to use its general
funds for such Projects.
8.4 wi thholdinq of Permits. Developer agrees that City
shall have the right to withhold issuance of the building permit
for any structure or improvement on the Property unless and until
the DIF is paid for such structure or improvement.
-14-
8.5 Development Impact Fee Credit. Upon the completion
and acceptance by the City of any public faoility, the City shall
immediately credit Developer with the appropriate amount of cash
credits (IIEDUs") as determined by Developer and City. However, if
the improvements are paid for through an Assessment District, the
City shall credit the Developer with the appropriate number of
Equivalent Dwelling unit Credits (EDU's). Developer shall be
entitled to apply any and all credits accrued pursuant to this
subsection toward the required payment of future DIF for any phase,
stage or increment of deve~opment of the Project.
8.6 Modification of Development Impact Fees. The
parties recognize that from time to time during the duration of the
Agreement it will be necessary for the city to update and modify
its DIF fees. Such reasonable modifications are contemplated by
the city and the Developer and shall not constitute a modification
to the Agreement so long as: (i) the modification incorporates the
reasonable costs of providing facilities identified in the Existing
Project Approvals; (ii) are based upon methodologies in substantial
compliance with the methodology contained in the existing DIF
programs; or other methodology approved by the city Council
following a public hearing; (iii) complies with the provisions of
Government Code sections 66000-66009.
8.7 Standards for Financinq Obliqations of Owner. In
connection with the development of the Property, the fOllowing
standards regarding the financing of public improvements shall
apply:
8.7.1 Owner shall pay its fair share for the
interchanges described in Paragraph 5.1.1, based upon the
number of dwelling units or equivalent dwellings of develop-
ment allowed on the property as compared to the total dwelling
units or equivalent dwelling units allowed on properties
served by such interchanges.
8.7.2 Owner shall participate in the DIF Program
for the otay Valley Parcel with other owners in proportion to
the total dwelling units or equivalent dwelling units allowed
on the Property as compared with the total of such units
allowed on properties in that particular DIF or by some other
equitable methodology decided by the city Council.
8.7.3 The City shall diligently pursue the
requirements that the Eastern Territories' DIF requires
offsite third parties and adjacent jurisdictions to bear their
fair share of all otay River Valley crossings.
9. CITY OBLIGATIONS.
9.1 Urban Infrastructure. To the extent it is within
the authority of the City to provide, City shall acoommodate urban
infrastructure to the project, consistent with Existing Project
Approvals. Where it is necessary to utilize City property to
provide urban infrastructure consistent with the Existing Project
Approvals, the city agrees to make such land available for such
uses, provided that the city if it so chooses is compensated at
fair market value for the property. To the extent that the
-15-
prov1s1on of urban infrastructure is within the authority of
another public or quasi-public agency or utility, the City agrees
to fully cooperate with such agency or agencies to accommodate the
urban infrastructure, consistent with Existing Project Approvals.
Urban infrastructure shall include, but not be limited to gas,
electricity, telephone, cable and facilities identified in the otay
Ranch Facility Implementation Plan.
9.2 Sewer Capaci tv. The city agrees to provide adequate
sewer capacity for the project, upon the payment of ordinary and
necessary sewer connection, capacity and/or service fees.
10. ANNUAL REVIEW.
10.1 City and Owner Responsibilities. city will, at
least every twelve (12) months during the Term of this Agreement,
pursuant to California Government Code S65865.1, review the extent
of good faith substantial compliance by Owner with the terms of
this Agreement. Pursuant to California Government Code section
65865.1, as amended, Owner shall have the duty to demonstrate by
substantial evidence its good faith compliance with the terms of
this Agreement at the periodic review. Either City or Owner may
address any requirement of the Agreement during the review.
10.2 Evidence. The parties recognize that this Agreement
and the documents incorporated herein could be deemed to contain
hundreds of requirements and that evidence of each and every
requirement would be a wasteful exercise of the parties' resources.
Accordingly, Developer shall be deemed to have satisfied its good
faith oompliance when it presents evidence of substantial com-
pliance with the major provisions of this Agreement. Generalized
evidence or statements shall be accepted in the absence of any
evidence that such evidence is untrue.
10.3 Review Letter. If Owner is found to be in com-
pliance with this Agreement after the annual review, city shall,
within forty-five (45) days after Owner's written request, issue a
review letter in recordable form to Owner ("Letter") stating that
based upon information known or made known to the Council, the city
Planning Commission and/or the city Planning Director, this
Agreement remains in effect and Owner is not in default. Owner may
record the Letter in the Official Records of the County of San
Diego.
10.4 Failure of Periodic Review. City's failure to
review at least annually Owner's compliance with the terms and
conditions of this Agreement shall not constitute, or be asserted
by city or Owner as, a breach of the Agreement.
11. DEFAULT.
11.1 Events of Default. A default under this Agreement
shall be deemed to have occurred upon the happening of one or more
of the following events or conditions:
11.1.1 A warranty, representation or statement
made or furnished by Owner to city is false or proves to have
been false in any material respect when it was made.
-16-
11.1.2 A finding and determination by city made
following a periodic review under the procedure provided for
in California Government Code section 65865.1 that upon the
basis of substantial evidence Owner has not complied in good
faith with one or more of the terms or conditions of this
Agreement.
consider
submitted
11.1.3 city does not accept,
requested development permits
in acoordanc,e- with the provisions
timely review, or
or entitlements
of this Agreement.
11. 1. 4 Any other act or omission by city or Owner
which materially interferes with the terms of this Agreement.
11.2 Procedure Upon Default.
11.2.1 Upon the occurrence of default by the
other party, City or Owner may terminate this Agreement after
providing the other party thirty (30) days written notice
specifying the nature of the alleged default and, when
appropriate, the manner in which said default may be satis-
factorily cured. After proper notice and expiration of said
thirty (30) day cure period without cure, this Agreement may
be terminated. In the event that City's or Owner's default is
not subject to cure within the thirty (30) day period, city or
Owner shall be deemed not to remain in default in the event
that City or Owner commences to cure within such thirty (30)
day period and diligently prosecutes such cure to completion.
Failure or delay in giving notice of any default shall not
constitute a waiver of any default, nor shall it change the
time of default. Notwithstanding any other provision of this
Agreement, city reserves the right to formulate and propose to
Owner options for curing any defaults under this Agreement for
which a cure is not specified in this Agreement.
11. 2 . 2 ci ty does not waive any claim of defect in
performance by Owner if, on periodic review, city does not
propose to modify or terminate this Agreement.
11.2.3 Subject to Paragraph 16.12 of this
Agreement, the failure of a third person shall not excuse a
party's nonperformance under this agreement.
11.2.4 Remedies Upon Default. In the event of a
default by either party to this Agreement, the parties shall
have the remedies of specific performance, mandamus, injunc-
tion and other equitable remedies without having to first
prove there is an inadequate remedy at law. Neither party
shall have the remedy of monetary damages against the other;
provided, however, that the award of costs of litigation and
attorneys' fees shall not constitute damage.
12. ENCUMBRANCES AND RELEASES ON PROPERTY.
12.1 Discretion to Encumber. This Agreement shall not
prevent or limit Owner in any manner at Owner's sole discretion,
from encumbering the Property, or any portion of the Property, or
any improvement on the Property, by any mortgage, deed of trust, or
-17-
other security device securing financing with respect to the
Property or its improvement.
12.2 Mortqaqee Riqhts and Obliqations. The mortgagee of
a mortgage or beneficiary of a deed of trust encumbering the
Property, or any part thereof, and their successors and assigns
shall, upon written request to City, be entitled to receive from
City written notification of any default by Owner of the
performance of Owner's obligations under the Agreement which has
not been cured within thirty (30) days following the date of
default. -
12.3 Releases. City agrees that upon written request of
Owner and payment of all fees and performance of the require-
ments and conditions required of Owner by this Agreement with
respect to the Property, or any portion thereof, City may
execute and deliver to Owner appropriate release(s) of further
obligations imposed by this Agreement in form and substance
acceptable to the San Diego County Recorder and title
insurance company, if any, or as may otherwise be necessary to
effect the release. city Manager shall not unreasonably
withhold approval of such release(s) .
12.4 Obliqation to Modifv. City acknowledges that the
lenders providing financing for the Project may require certain
modifications to this Agreement and city agrees, upon request from
time to time, to meet with Owner and/or representatives of such
lenders to negotiate in good faith any such requirement for
modification. City will not unreasonably withhold its consent to
any such requested modification.
13. MODIFICATION OR SUSPENSION.
13.1 Modification to Aqreement bv Mutual Consent. This
Agreement may be modified, from time to time, by the mutual consent
of the parties only in the same manner as its adoption by an
ordinance as set forth in California Government Code sections
65867, 65867.5 and 65868. The term, "this Agreement" as used in
this Agreement, will include any such modification properly
approved and executed.
13.2 Unforeseen Health or Safety Circumstances. If, as
a result of facts, events, or circumstances presently unknown,
unforeseeable, and which could not have been known to the parties
prior to the commencement of this Agreement, City finds that
failure to suspend this Agreement would place the residents of city
in a severe and immediate emergency to their health or safety.
13.2.1 Notification of Unforeseen circumstances.
Notify Developer of (i) city's determination; and (ii) the
reasons for City's determination, and all facts upon which
such reasons are based;
13.2.2 Notice of Hearinq. Notify Developer in
writing at least fourteen (14) days prior to the date, of the
date, time and place of the hearing and forward to Developer
a minimum of ten (10) days prior to the hearings described in
section 13.2.3, all documents related to such determination
-18-
and reasons ~herefor; and
13.2.3 Hearing. Hold a hearing on the deter-
mination, at which hearing Developer will have the right to
address the City Council. At the conclusion of said hearing,
City may take action to suspend this Agreement as provided
herein. The City may suspend this Agreement if, at the
conclusion of said hearing, based upon the evidence presented
by the parties, the City finds failure to suspend would place
the residents of the city in a severe and immediate emergency
to their health or safety.
13.3 Chanqe 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 complianoe with one or more
provisions of this Agreement, or requires changes in plans, maps,
or permits approved by City, the parties will act pursuant to
sections 13.3.1 and 13.3.2, below.
13.3.1 Notice: Meetinq. The party first becoming
aware of such enaotment or action or inaction will provide the
other party(ies) with written notice of such state or federal
law or regulation and provide a copy of such law or regulation
and a statement regarding its conflict with the provisions of
this Agreement. The parties will promptly meet and confer in
a good faith and reasonable attempt to modify or suspend this
Agreement to comply with such federal or state law or regula-
tion.
13.3.2 Hearinq. If an agreed upon modification
or suspension would not require an amendment to this Agree-
ment, no hearing shall be held. Otherwise, the matter of such
federal or state law or regulation will be scheduled for
hearing before the City. Fifteen (15) days' written notice of
such hearing shall be provided to Developer, and the City, at
such hearing, will determine and issue findings on the
modification or suspension which is required by such federal
or state law or regulation. Developer, at the hearing, shall
have the right to offer testimony and other evidence. If the
parties fail to agree after said hearing, the matter may be
submitted to mediation pursuant to subsection 13.3.3, below.
Any modification or suspension shall be taken by the affirma-
tive vote of not less than a majority of the authorized voting
members of the city. Any suspension or modification may be
subject to judicial review in conformance with subsection
16.19 of this Agreement.
13.3.3 Mediation of Disputes. In the event the
dispute between the parties with respect to the provisions of
this paragraph has not been resolved to the satisfaction of
both parties following the City hearing required by subsection
13.3.2, the matter shall be submitted to mediation prior to
the filing of any legal action by any party. The mediation
will be conducted by the San Diego Mediation Center; if San
Diego Mediation Center is unable to conduct the mediation, the
-19-
parties shall. submit the dispute for mediation to the Judicial
Arbitration and Mediation service or similar organization and
make a good faith effort to resolve the dispute. The cost of
any such mediation shall be divided equally between the
Developer and city.
13.4 Natural communities Conservation Act (NCCP1. The
parties recognize that Developer and the city are individually
negotiating agreements with the United states Fish and Wildlife
Service ("USF&W") and the California Department of Fish and Game
pursuant to the ongoing regional effort to implement the Natural
Communities Conservation Act ("NCCP"), locally proposed to be
implemented through the Multi-Species Conservation Program
("MSCP"). The parties further recognize that implementation of the
agreements may necessitate modification to the Existing project
Approvals. The parties agree to utilize their best efforts to
implement these agreements, once executed, through the timely
processing of modifioations to the Existing Project Approvals as
they relate to the Property. The Developer agrees to pay the
reasonable city cost for processing work related to the modifica-
tions. Once such modifications are obtained they shall be vested
to the same extent as Existing Project Approvals.
14. DISTRICTS. PUBLIC FINANCING MECHANISMS.
This Agreement and the Existing Project Approvals recognize
that assessment districts, community facility districts, or other
public financing mechanisms, may be necessary to finance the cost
of public improvements borne by this Project. If Developer,
pursuant to the Existing Project Approvals/Future Discretionary
Approvals, is required to install improvements through the use of
assessment districts, community facility districts, or other public
financing mechanisms, the City shall initiate and conclude
appropriate proceedings for the formation of such financing
distriot or funding mechanism, under applicable laws or ordinances.
Developer may request that the City utilize any other financing
methods which may become available under city laws or ordinances.
All costs associated with the consideration and formation of such
financing districts or funding mechanisms shall be paid by
Developer subject to reimbursement, as may be legally authorized
out of the proceeds of any financing district or funding mechanism.
15. ASSIGNMENT AND DELEGATION.
15.1 Assiqnment. Owner shall have the right to transfer
or assign its interest in the Property, in whole or in part,
to any persons, partnership, joint venture, firm, or corpora-
tion at any time during the Term of this Agreement without the
consent of City. Owner also shall have the right to assign or
transfer all or any portion of its interest or rights under
this Agreement to third parties acquiring an interest or
estate in the Property at any time during the Term of this
Agreement without the consent of city.
15.2 Deleqation. In addition, Owner shall have the
right to delegate or transfer its obligations under this
Agreement to third parties acquiring an interest or estate in
the Property after receiving the prior written consent of the
-20-
city Manager, which consent shall not be unreasonably with-
held, delayed, or conditioned. Once the City Manager has
cOnsented to a transfer, delivery to and acceptance by the
city Manager of an unqualified written assumption of Owner's
obligations under this Agreement by such transferee shall
relieve Owner of the obligations under this Agreement to the
extent the obligations have been expressly assumed by the
transferee. Such transferee shall not be entitled to amend
this Agreement without the written consent of the entity that,
as of the Effective Date, is Owner, which consent shall not be
unreasonably withheld; delayed, or conditioned. The entity
that is Owner as of the Effective Date, however, shall be
entitled to amend this Agreement without the written consent
of such transferee.
16. MISCELLANEOUS PROVISIONS.
16.1 Bindinq Effect of Aqreement. Except to the extent
otherwise provided in this Agreement, the burdens of this Agreement
bind, and the benefits of this Agreement inure, to city's and
Owner's successors-in-interest and shall run with the land.
16.2 Relationship of citv and Owner. The contractual
relationship between City and Owner arising out of this Agreement
is one of independent contractor and not agency. This Agreement
does not create any third-party beneficiary rights.
16.3 Notices. All notices, demands, and correspondence
required or permitted by this Agreement shall be in writing and
delivered in person, or mailed by first-class or certified mail,
postage prepaid, addressed as follows:
If to city, to:
city of Chula vista
276 Fourth Avenue
Chula vista, CA 91910
Attention: City Manager
If to Owner, to:
Jewels of Charity, Inc.
705 Severn Road, suite 1040
Wilmington, DE 19803
Attention: Patrick Patek
with a Copy. to:
STEPHENSON, WORLEY, GARRATT
SCHWARTZ, HEIDEL & PRAIRIE
101 West Broadway, Suite 1300
San Diego, CA 92101
Attention: Donald R. Worley, Esq.
City or Owner may change its address by giving notice in writing to
the other. Thereafter, notices, demands, and correspondence shall
be addressed and transmitted to the new address. Notice shall be
deemed given upon personal delivery, or, if mailed, two (2)
business days following deposit in the United States mail.
16.4 Rules of Construction. In this Agreement, the use
of the singular includes the plural; the masculine gender includes
the feminine; "shall" is mandatory; "may" is permissive.
-21-
16.5 Entire Aqreement. Waivers. and Recorded statement.
This Agreement constitutes the entire understanding and agreement
of City and Owner with respect to the matters set forth in this
Agreement. This Agreement supersedes all negotiations or previous
agreements between city and Owner respecting this Agreement. All
waivers of the provisions of this Agreement must be in writing and
signed by the appropriate authorities of city and Owner. Upon the
completion of performance of this Agreement, or its revocation or
termination, a statement evidencing completion, revocation, or
termination signed by the_ appropriate agents of city shall be
recorded in the Official Records of San Diego County, California.
16.6 pro;ect as a Private Undertaking. It is
specifically understood by city and Owner that (i) the Project is
a private development; (ii) City has no interest in or
responsibilities for or duty to third parties concerning any
improvements to the Property until city accepts the improvements
pursuant to the provisions of the Agreement or in connection with
subdivision map approvals; and (iii) Owner shall have the full
power and exclusive control of the Property subject to the
obligations of Owner set forth in this Agreement.
16.7 Incorporation of Recitals. The recitals set forth
in Paragraph 1 of this Agreement are part of this Agreement.
16.8 Captions. The captions of this Agreement are for
convenience and reference only and shall not define, explain,
modify, construe, limit, amplify, or aid in the interpretation,
construction, or meaning of any of the provisions of this
Agreement.
16.9 Consent. Where the consent or approval of city or
Owner is required or necessary under this Agreement, the consent or
approval shall not be unreasonably withheld, delayed, or con-
ditioned.
16.10 Covenant of Cooperation.
cooperate and deal with each other in good
other in the performance of the provisions
city and Owner shall
faith, and assist each
of this Agreement.
16.11 Recording. The city Clerk shall cause a copy of
this Agreement to be recorded with the Office of the County
Recorder of San Diego County, California, within ten (10) days
following the Effective Date.
16.12 Delay. Extension of Time for Performance. In
addition to any specific provision of this Agreement, performance
by either city or Owner of its obligations hereunder shall be
excused, and the Term of this Agreement and the Development Plan
extended, during any period of delay caused at any time by reason
of any event beyond the control of city or Owner which prevents or
delays and impacts City's or Owner's ability to perform obligations
under this Agreement, including, but not limited to, acts of God,
enactment of new conflicting federal or state laws or regulations
(example: listing of a species as threatened or endangered),
judicial actions such as the issuance of restraining orders and
injunctions, riots, strikes, or damage to work in process by reason
of fire, floods, earthquake, or other such casualties. If City or
-22-
Owner seeks excuse from performance, it shall provide written
notice of such delay to the other within thirty (30) days of the
commencement of such delay. If the delay or default is beyond the
control of city or owner, and is excused, an extension of time for
such cause will be granted in writing for the period of the
enforced delay, or longer as may be mutually agreed upon.
16.13 Covenant of Good Faith and Fair Dealinqs. No party
ahall do anything which spall have the effect of harming or
injuring the right of the other parties to receive the benefits of
this Agreement; each party shall refrain from doing anything which
would render its performanoe under this Agreement impossible; and
each party shall do everything which this Agreement contemplates
that such party shall do in order to accomplish the objectives and
purposes of this Agreement.
16.14 Operatinq Memorandum. The parties acknowledge that
the provisions of this Agreement require a close degree of
cooperation between City and Developer, and that the refinements
and further development of the Project may demonstrate that minor
changes are appropriate with respect to the details of performance
of the parties. The parties, therefore, retain a certain degree of
flexibility with respect to those items covered in general under
this Agreement. When and if the parties mutually find that minor
changes or adjustments are necessary or appropriate, they may
effectuate changes or adjustments through operating memoranda
approved by the parties. For purposes of this Section 16.14, the
City Manager, or his designee, shall have the authority to approve
the operating memoranda on behalf of city. No operating memoranda
shall require notice or hearing or constitute an amendment to this
Agreement.
16.15 Time of Essence. Time is of the essence in the
performance of the provisions of this Agreement as to which time is
an element.
16.16 Amendment or Cancellation of Aqreement. This
Agreement may be amended from time to time or canceled by the
mutual consent of city and Owner only in the same manner as its
adoption, by an ordinance as set forth in California Government
Code section 65868, and shall be in a form suitable for recording
in the Official Records of San Diego County, California. The term
"Agreement" shall include any such amendment properly approved and
executed. City and Owner acknowledge that the provisions of this
Agreement require a close degree of cooperation between them, and
that minor or insubstantial changes to the Project and the
Development Plan may be required from time to time to accommodate
design changes, engineering changes, and other refinements.
Accordingly, changes to the project and the Development Plan that
do not result in a change in use, an increase in density or
intensity of use, cause new or increased environmental impacts, or
violate any applicable health and safety regulations, may be
considered minor or insubstantial by the City Manager and made
without amending this Agreement.
16.17 Estoppel certificate. within 30 calendar days
following a written request by any of the parties, the other
parties to this Agreement shall execute and deliver to the
-23-
requesting party a statement certifying that (i) this Agreement is
unmodified and in full force and effect, or if there have been
modifications hereto, that this Agreement is in full force and
effect as modified and stating the date and nature of such
modifications; (ii) there are no known current uncured defaults
under this Agreement, or specifying the dates and nature of any
such default; and (iii) any other reasonable information requested.
The failure to deliver such a statement within such time shall
constitute a conclusive pre~umption against the party which fails
to deliver such statement that this Agreement is in full force and
effect without modification, except as may be represented by the
requesting party, and that there are no uncured defaults in the
performance of the requesting party, except as may be represented
by the requesting party.
16.18 Severability. If any material provision of this
Agreement is held invalid, this Agreement will be automatically
terminated with neither party bearing any liability hereunder.
Notwithstanding the foregoing, within 15 days after such provision is
held invalid, if the party holding rights under the invalidated
provision affirms the balance of this Agreement in writing this
Agreement shall not be terminated. This provision will not affect
the right of the parties to modify or suspend this Agreement by
mutual consent pursuant to Paragraph 12.4.
16.19 Institution of Leqal Proceedinq. In addition to any
other rights or remedies, any party may institute legal action to
cure, correct, or remedy any default, to enforce any covenants or
agreements herein, or to enjoin any threatened or attempted violation
thereof i to recover damages for any default as allowed by this
Agreement or to obtain any remedies consistent with the purpose of
this Agreement. Such legal actions must be instituted in the
Superior Court of the County of San Diego, State of California.
16.20 Attornevs' Fees and Costs. If any party commences
litigation or other proceedings (including, without limitation,
arbitration) for the interpretation, reformation, enforcement, or
rescission of this Agreement, the prevailing party, as determined by
the court, will be entitled to its reasonable attorneys' fees and
costs.
16.21 Hold Harmless. Developer agrees to and shall hold
City, its officers, agents, employees and representatives harmless
from liability for damage or claims for damage for personal injury,
including death, and claims for property damage which may arise from
the direct or indirect operations of Developer or those of its
contractors, subcontractors, agents, employees or other persons
acting on Developer's behalf which relate to the Project. Developer
agrees to and shall defend city and its officers, agents, employees
and representatives from actions for damage caused or alleged to have
been caused by reason of Developer's activities in connection with
the Project. Developer agrees to indemnify, hold harmless, pay all
costs and provide a defense for City in any legal action filed in a
court of competent jurisdiction by a third party challenging the
validity of this Agreement. The provisions of this section 16.21
shall not apply to the extent such damage, liability or claim is
caused by the intentional or negligent act or omission of city, its
officers, agents, employees or representatives.
-24-
17. AUTHORITY
Each signatory and party hereto hereby warrants and represents
to the other party that it has legal authority and capacity and
direction from its principal to enter into this Agreement, and that
all resolutions or other actions have been taken so as to enable it
to enter into this Agreeme~t.
-25-
SIGNATURE PAGE TO PRE-ANNEXATION DEVELOPMENT AGREEMENT.
Dated this ____ day of
, 1997.
"CITY"
CITY OF CHULA VISTA
By:
SHIRLEY HORTON, MAYOR
"OWNER"
JEWELS OF CHARITY
By:
PATRICK PATEK, PRESIDENT
I hereby approve the form and legality of the foregoing Pre-
Annexation Development Agreement this day of , 1997.
John M. Kaheny, city Attorney
By:
Ann Moore
Assistant City Attorney
-26-
, EXHIBIT A .
.-- -- .
I
I
.~
JEWELS OF CHARITY
~~f?
-.-
--.;:- ----
- -
,- CH~ ~ISTA
PLANNING DEPARTMENT
6/19196
.......
:It
..
..
z~ ~ ~
..
~
z
~I ~I! ~> 51
..
<
::I
..
7Ji ' ~s " (
.. !
!;
U u~ g ,
J: <:
u <
..
"
"
...
<.:
>-
~
'" '" ..
_'0
I/) c: -
1/)-
:> ~ ._ 0 C>
0 >",U
~CIJ ..~c:
-",'"
::> >- ::>.<:: ::>
C .s=:=: .s= Co:;::
Z uu U(/).E
w
t:) I
w
...J I
t
I
I
'0
'"
'0
C:C:
"'0
E:::
E~",
0"'..
uC:C)
"'c:~
n::c::(c::(
-
c:
'0'"
"'E
"'.<::
Ou
c.",,,,
0-",
~C>~
c..oc::(
I;::
'0 '"
c: e
",-c::(
...J'"
.- >.
>-u-c
","'::I
_ c..::
o (f)(J)
I~~
II>
!:
~
N-
. .
! .2f=:~~~.W!'?~?~~~~~~~\\IE
t.......'......."..W"..""~..,
y'i;{""""""'" .,.,...
~I
--,
I
t
L_,
-J
I
l,
I
\1
_J
\
\.....-/
J
I
t'~
]
&
."
~
.
o
Z
t:
ra 0
..... .-
U).....
.- ra
a:I > .t:!
+J ra t:
__ - C'tS
:e ~ C>
~UO
W.....Q)
O~
>...r:::
:t= u
U t:
ra
~
>-
ra
.....
"'"
,
_d}'
,-
-I
I
L-
-=>
EXHIBIT .C. I
Pre.annexati9n Development Agreement
Planning Area
Otay Valley Parcel
Otay Valley Parcel
Assessor
Parcel Numbers
644-080.10
644-090-03
Ownership
Jewels of Charity
Jewels of Charity
Acreage
315.17
160.00
4 75.17 Total
PRE-ANNEXATION DEVELOPMENT AGREEMENT
THIS PRE-ANNEXATION DEVELOPMENT AGREEMENT ("Agreement") is
made effective on the date hereinafter set forth below by and among
the CITY OF CHULA VISTA ("city") and STEPHEN AND MARY BIRCH
FOUNDATION ("Foundation"), who agree as follows:
1. RECITALS. This Agreement is made with respect to the
following facts:
1. 1 Owner. The owners of the properties subj ect to this
Agreement (hereinafter collectively referred to as "Owner" or as
"Developer") are as follows:
1.1.1 Foundation is the owner of approximately
168 acres of undeveloped real property ("the Foundation
Property") in the unincorporated area of the County, described
in Exhibits "A" and "C", attached hereto and incorporated
herein by this reference.
1.1.2 The Foundation property ("Property") is
part of a larger area commonly known, and referred to herein,
as "the otay valley Parcel of otay Ranch."
1.2~. The city of Chula vista is a municipal
corporation with Charter city powers incorporated within the
County.
1.3 Code Authorization and Acknowledqments.
1.3.1 City is authorized pursuant to its
charter, self-rule powers and California Government Code
sections 65864 through 65869.5 to enter into development
agreements for the purpose of establishing certainty for both
city and owners of real property in the development process.
1.3.2 Government Code section 65865 expressly
authorizes a city to enter into a development agreement with
any person having a legal or equitable interest in real
property in unincorporated territory within that city's sphere
of influence for the development of property as provided in
the Development Agreement Law; provided that the agreement
shall not become operative unless annexation proceedings
annexing the property to the city are completed within the
time specified by the agreement.
1.3.3 city enters into this Agreement pursuant
to the provisions of the California Government Code, its home-
rule powers, and applicable city ordinances, rules, regula-
tions and policies.
1.3.4 City and Owner intend to enter into this
agreement for the following purposes:
-1-
1.3.4.1 To assure adequate public facilities
at the time of development.
1.3.4.2 To assure development in accordance
with City's capital improvement plans.
1.3.4.3 - To provide certainty to Owner in the
development approval process by vesting the permitted
use(s), density, intensity of use, and the timing and
phasing of development as described in the Development
Plan, which is defined in Paragraph 2.4 of this Agree-
ment, in exchange for OWner's entering into this Agree-
ment and for its commitment to support the Annexation
described below.
1.3.4.4 To permit achievement of city growth
management goals and objectives.
1.3.4.5 To allow City to realize significant
economic, recreational, park, open space, social, and
public facilities benefits for the City, some of which
are of regional significance.
1.3.4.6 To provide and assure that the city
receive sales tax revenues, increase in the property tax
base, residential housing and other development, sewer,
water and street facilities.
1.3.4.7 To provide and assure that the city
receives public facilities in excess of project generated
impacts and such facilities shall be of supplemental
size, number capacity or length, which shall be provided
earlier than could be provided either by funds from the
city or than would strictly be necessary to mitigate
project related impacts at any development phase.
1.3.4.8
support to secure
Exhibit "B".
To provide the City the developer's
annexation of the lands depioted in
1. 3 . 4 . 9 To enable the City to secure title to
the land within the boundaries of the property necessary
to complete the Chula vista greenbelt system as defined
in the Chula vista General Plan.
1.3.4.10 Because of the complexities of the
financing of the infrastructure, park, open space, and
other dedications, and regional and community facilities,
and the significant nature of such facilities, certainty
in the development process is an absolute necessity. The
phasing, timing, and development of public infrastructure
necessitate a significant commitment of resources,
planning, and effort by Owner for the public facilities
financing, construction, and dedication to be success-
fully completed. In return for Owner's participation and
-2-
commitment to these significant contributions of private
resources for public purposes and for Owner's consent to
the Annexation described below, City is willing to
exercise its authority to enter into this Agreement and
to make a commitment of certainty for the development
process for the Property.
1. 3.4.:[1 In consideration of Owner's agreement
to provide the significant benefits and for Owner's
consent to the Annexation described below, City hereby
grants Owner assurances that it can proceed with develop-
ment of the Property in accordance with city's
ordinances, rules, regulations, and policies existing as
of the effective date of this Agreement subject to
Section 5.2.1 below. Owner would not enter into this
Agreement or agree to provide the pUblic benefits and
improvements described in this Agreement if it were not
for the commitment of City that the Property subject to
this Agreement can be developed in accordance with City's
ordinances, rules, regulations, and policies existing as
of the effective date of this Agreement subject to
Section 5.2.1 below.
1.4 The Annexation. On July 1, 1996, the Local Agency
Formation commission ("LAFCO") approved annexation of Sphere of
Influence Planning Area 1 "The Otay Parcel", Planning Area 2
"Inverted L" and the Mary Patrick Estate Parcel (see Attachment
"B") .
1.5 Sphere of Influence. On February 5, 1996 and July
1, 1996 the Local Agency Formation Commission approved the
inclusion of Planning Area 1, "The "Otay Parcel", into the City
Sphere of Influence (Sphere of Influence Planning Area 1 "the otay
Parcel", Planning Area 2 "Inverted L" and the Mary Patrick Estate
Parcel - see Attachment "B").
1.6 Planninq Documents. On October 28, 1993, city and
County adopted the Otay Ranch General Development Plan/Subregional
Plan ("the GDP") which includes the Otay Ranch Village Phasing
Plan, Facility Implementation Plan, Resource Management Plan and
Service Revenue Plan, for approximately 23,000 acres of the Otay
Ranch, including the Otay Valley Parcel and the Foundation
property.
1.7 Owner Consent. ci ty desires to have the cooperation
and consent of Owner to include the Property in the Annexation in
order to better plan, finance, construct and maintain the infra-
structure for the otay Valley Parcel; and the Foundation desires to
give their cooperation and consent, provided that they obtain
certain assurances, as set forth in this Agreement.
1.8 citv Ordinance.
date of adoption by the city Council of Ordinance
approving this Agreement. The ordinance shall take
in full force on the effective date of Annexation.
, 199~2 is the
No. ~
effect and be
-3-
2. DEFINITIONS.
otherwise requires:
In this Agreement, unless the context
2.1 "Annexation" means the proposed annexation of that
portion of the Otay Ranch into the city as depicted on Exhibit "D".
2.2 "City" means the City of Chula vista, in the County
of San Diego, State of Cali~ornia.
2.3 "County" means the County of San Diego, state of
California.
2.4 "Development Plan" means the GDP.
2.5 "GDP" means the General Development Plan/ Subregional
Plan for the otay Ranch, described in Paragraph 1.6, above.
2.6 "Owner" or "Developer" means the person, persons, or
entity having a legal and equitable interest in the Property, or
parts thereof, and includes Owner's successors-in-interest.
2.7 "Project" means the physical development of the
private and public improvements on the Property as provided for in
the Existing Project Approvals and as may be authorized by the City
in Future Discretionary Approvals.
2.8 "Property" means the real property described in
Paragraph 1.1.1.
2.9 The "Term" of this Agreement means the period
defined in Paragraph 3, below.
2.10 "Builder" means developer to whom Developer has sold
or conveyed property within the Property for purposes of its
improvement for residential, commercial, industrial or other use.
2.11 "CEQA" means the California Environmental Quality
Act, California Public Resources Code section 21000, et seq.
2.12 "city Council" means the City of Chula vista city
Council.
2.13 "Commit" or "Committed" means all of the following
requirements have been met with respect to any public facility:
2.13.1 For a public facility within the city's
jurisdictional boundaries and a responsibility of the develop-
er.
2.13.1.1 All discretionary permits required of
the Developer have been obtained for construction of the
public facility;
-4-
2.13.1.2 Plans for the construction of the
public facility have all the necessary governmental
approvals; and
2.13.1.3 Adequate funds (i.e., letters of
credit, cash deposits, performance bonds or land secured
public financing, including facility benefit assessments,
Mello-Roos assessment districts of similar assessment
mechanism) are available such that the City can construct
the public facility if construction has not commenced
within thirty (30) days of issuance of a notice to
proceed by the Director of Public Works, or construction
is not progressing towards completion in a reasonable
manner as reasonably deemed by the Director of Public
Works.
2.13.2 For a public facility within the city's
jurisdictional boundaries, but to be provided by other than
Developer.
2.13.2.1 Developer's proportionate share of
the cost of such public facility as defined in the
existing Project Approvals and Future Discretionary
Approvals has been provided or assured by Developer
through the payment or impositions of development impact
fee or other similar exaction mechanism.
2.13.3 For public facility not within city's
jurisdictional boundaries:
2.13.3.1 Developer's proportionate share of
the cost of such public facility as defined in the
existing Project Approvals and Future Discretionary
Approvals has been provided for or otherwise assured by
Developer to the reasonable satisfaction of the Director
of Public Works.
2.14 "Development Impact Fee (DIF)" means fees imposed
upon new development pursuant to the City of Chula vista
Development Impact Fee Program, for example, including but not
limited to the Transportation Development Impact Fee Program, the
Interim SR-125 Development Impact Fee Program, the Salt Creek Sewer
DIF and the Public Facilities DIF.
2.15 "Existing Project Approvals" means all discretionary
approvals affecting the Project which have been approved or
established in conjunction with, or preceding, the effective date
consisting of, but not limited to the GDP, the Chula vista General
Plan, the otay Ranch Reserve Fund Program adopted pursuant to
Resolution 18288, and the Phase I and II Resource Management Plan
(RMP), as may be amended from time to time consistent with this
agreement.
-5-
2.16 "Final Map(s)" means any final subdivision map for
all or any portion of the Property other than the Superblock Final
Map ("A" Maps).
2.17 "Future Discretionary Approvals" means all permits
and approvals by the City granted after the effective date and
excluding existing project Approvals, including, but not limited
to: (i) grading permits; -(ii) site plan reviews; (iii) design
guidelines and reviews; (iv) precise plan reviews; (v) subdivisions
of the Property or re-subdivisions of the Property previously
subdivided pursuant to the Subdivision Map Act; (vi) conditional
use permits; (vii) variances; (viii) encroachment permits;
(ix) Sectional Planning Area plans; (x) Preserve Conveyance Plan
and (xi) all other reviews, permits, and approvals of any type
which may be required from time to time to authorize public or
private on- or off-site facilities which are a part of the Project.
2.18 "Planning Commission" means the Planning commission
of the City of Chula vista.
2.19 "Preserve Conveyance Plan" means a plan that will,
when adopted, set forth policies and identify the schedule for
transfer of land and/or fees to be paid to insure the orderly
conveyance of the Otay Ranch land to the Preserve Owner Manager.
The purpose of the plan is to fulfill the obligations to convey
resource sensitive land, per the criteria contained in the phase I
and II Resource Management Plans and to mitigate environmental
impacts of the Otay Ranch Project.
2.20 "Public Facility"
public facilities described
Implementation Plan.
or "Public Facilities" means those
in the Otay Ranch Facility
2.21 "Subdivision Map Act" means the
Subdivision Map Act, Government Code section 66410,
its amendments as may from time to time be adopted.
California
et seq., and
2.22 "Substantial Compliance" means that the party
charged with the performance of a covenant herein has sufficiently
followed the terms of this Agreement so as to carry out the intent
of the parties in entering into this Agreement.
2.23 "Threshold" means the facility thresholds set forth
in the City's Municipal Code section 19.19.040.
3. TERM. This Agreement shall become effective as a
development agreement upon the effective date of the Annexation
("the Effective Date"); provided, however, that if the Annexation
does not occur on or before Julv Jaaaary 1, 1997, this Agreement
shall be null and void unless the annexation proceedinqs have been
extended by LAFCO. If the annexation proceedings have been
extended. this Aqreement shall become effective upon the effective
date of such Annexation: provided however. if the annexation does
not occur by the end of such extension(s). this Aqreement shall
become null and void. Any of the foregoing to the contrary
-6-
notwithstanding, from the date of the first reading of the
ordinance approving this Agreement, and unless or until this
Agreement becomes null and void, Owner shall be bound by the terms
of Paragraph.i. The Term of this Agreement for purposes other than
Paragraph .i shall begin upon the Effective Date, and shall continue
for a period of twenty (20) years ("the Term"). The Term shall
also be extended for any period of time during which issuance of
building permits to Owner is suspended for any reason other than
the default of Owner, and for a period of time equal to the period
of time during which any action by City or court action limits the
processing of future discretionary approvals, issuance of building
permits or any other development of the Property consistent with
this Agreement.
4. OWNER CONSENT TO ANNEXATION. Owner hereby consents to
and shall cooperate with the applications of city to declare that
the Otay valley Parcel is within city's sphere of influence and to
annex the otay Valley Parcel to the City; provided, however, that
Owner may withdraw such consent and withhold further cooperation if
the City, prior to the Effective Date, adopts rules, regulations,
ordinances, policies, conditions, environmental regulations,
phasing controls, exactions, entitlements, assessments or fees
applicable to and governing development of the Property which are
inconsistent with, or render impractical development of the
Property according to, the Development Plan or the additional
commitments of city set forth in Paragraphs 5.1.1 through 5.1.5,
below. Owner also agrees not to challenge the annexation of the
Otay Valley Parcel into the City.
4. 1 The Developer understands and aqrees that this
Aqreement shall become effective and valid only u?on the
Effective Date of the annexation proceedinqs. as more fully
described in paraqraph 3 of this Agreement. Developer further
understands that as a condition precedent to the completion of
annexation ?roceedinqs. and this Aqreement becominq effective.
certain property owners such as SNMB. Ltd.. are required to
provide certain easements and subordination aqreements
satisfactory to the Countv. Developer aqrees that the City's
second readinq of the Ordinance approvinq this Aqreement shall
not occur unless and until said subordination aqreements have
been accepted by the Countv. No terms of this Aqreement shall
be sub;ect to reneqotiation between the first and second
readinq of the ordinance approvinq this Aqreement except bv
mutual consent of the parties to this Aqreement.
5. VESTED RIGHTS. Notwithstanding any future action or
inaction of the city during the term of this Agreement, whether
such action is by ordinance, resolution or policy of the City,
Owner and Developer shall have a vested right, except as may be
otherwise provided in this Section 5, to construct the Project in
accordance with:
5.1 Existing Project Approvals, subject to the following
requests for modifications if approved by the City:
-7-
5.1.1 If the interchange improvements at otay
Valley Road and I-80S are needed to serve the Project, the
city will hold appropriate hearings to consider an amendment
to its Transportation Phasing Plan (TPP) and Development
Impact Fee (DIF) Program to include said improvements as may
be deemed appropriate by the City to accommodate the project
phasing. The City agrees to reasonably cooperate and work
with CALTRANS to complete plans for said interchange improve-
ment.
5.1.2 ci ty shall initiate contact and diligently
pursue discussions with the County of San Diego and the City
of San Diego to determine the number, scheduling and financing
of the otay River road and bridge crossings.
5.1.3 ci ty shall allow the owner for purposes of
processing entitlements to proceed with planning of the
Property on a first come first served basis, with other
properties in the area of the Annexation. In addition, if
necessary the City shall, with proper environmental review,
consider in its discretion an amendment to the Village Phasing
Plan to facilitate the planning and development of the
properties covered by this Agreement.
5.1.4 To the extent any of the foregoing
commi tments of City are embodied in changes to the Development
Plan or the rules, regulations, ordinances, policies,
conditions, environmental regulations, phasing controls,
exactions, entitlements, assessments, and fees applicable to
and governing development of the Property, whether adopted
before or after the Effective Date, such changes shall be
deemed applicable to. the Property without change to this
Agreement.
5.1.5 city shall diligently process any amend-
ments, applications, maps, or other development applications.
5.1.6. city may make such modifications or
amendments to the Existing Project Approvals/Future Discretionary
Approvals, as may be ordered by a court of competent jurisdiction
in an action in which the Developer is a party or has had an
opportunity to appear or has been provided notice of such action by
the City.
5.2 Development of Property. The development of the
Property will be governed by this Agreement and Existing Project
Approvals and such development shall comply and be governed by all
rules, regulations, policies, resolutions, ordinances, and
standards in effect as of the Effective Date subject to the
provisions of section 5.2.1 below. The City shall retain its
discretionary authority as to Future Discretionary Approvals,
provided however, such Future Discretionary Approvals shall be
regulated by the Existing Project Approvals, this Agreement, and
city rules, regulations, standards, ordinances, resolutions and
-8-
policies in effect on the Effective Date of this Agreement and
subject to section 5.2.1.
Notwithstanding the foregoing, the City may make such changes to
the city's Growth Management Ordinance applicable to the Project as
are reasonable and consistent with the purpose and intent of the
existing Growth Management- Ordinance and which are generally
applicable to all private projects citywide or east of I-80S or
within a specific benefit, fee or reimbursement district created
pursuant to the California Government Code.
5.2.1 New or Amended Rules. Requlations.
Policies. standards. Ordinances and Resolutions. The city may
apply to the Project, including Future Discretionary Approv-
als, new or amended rules, laws, regulations, policies,
ordinances, resolutions and standards generally applicable to
all private projects east of I-80S or within a specific
benefit fee or reimbursement district created pursuant to the
California Government Code. The application of such new
rules, or amended laws, regulations, resolutions, policies,
ordinances and standards will not unreasonably prevent or
delay development of the Property to the uses, densities or
intensities of development specified herein or as authorized
by the Existing Project Approvals. The city may also apply
changes in City laws, regulations, ordinances, standards or
policies specifically mandated by changes in state or federal
law in compliance with section 13.3 herein.
5.2.2 Developer may elect with City's consent,
to have applied to the project any rules, regulations,
policies, ordinances or standards enacted after the date of
this Agreement. Such an election has to be made in a manner
consistent with section 5.2 of this Agreement.
5.2.3 Modifications to Existinq Pro;ect
Approvals. It is contemplated by the parties to this
Agreement that the city and Developer may mutually seek and
agree to modifications to the Existing Project Approvals.
Such modifications are contemplated as within the scope of
this Agreement, and shall, upon written acceptance by all
parties, constitute for all purposes an Existing Project
Approval. The parties agree that any such modifications may
not constitute an amendment to this Agreement nor require an
amendment to the Agreement.
5.2.4 Future Discretionary Approvals. It is
contemplated by the parties to this Agreement that the city
and Developer may agree to Future Discretionary Approvals. The
parties agree that any such Future Approvals may not consti-
tute an amendment to this Agreement nor require an amendment
to the Agreement.
Purposes.
Existing
5.3 Dedication and Reservation of Land for Public
Except as expressly required by this Agreement or the
Project Approvals and Future Discretionary Approvals
-9-
(excepting dedications required within the boundaries of any parcel
created by the subsequent subdivision of the Property as required
by the Subdivision Map Act), no dedication or reservation of real
property within or outside the Property shall be required by City
or Developer in conjunction with the Project. Any dedications and
reservations of land imposed shall be in accordance with Section
7.2 and section 7.8 herein. -
5.4 Time for Construction and Completion of Project.
Because the California Supreme Court held in Pardee Construction
CompanY v. city of Camarillo (1984) 27 Cal.3d 465, that the failure
of the parties to provide for the timing of development resulted in
a later-adopted initiative restricting the timing of development to
prevail over such parties' Agreement, it is the intention of the
parties to this Agreement to cure that deficiency by specifically
acknowledging that timing and phasing of development is completely
and exclusively governed by the Existing Project Approvals,
including the Chula Vista Growth Management Ordinance. The purpose
of the Chula Vista Growth Management Ordinance is to "control the
timing and location of development by tying the pace of development
to the provision of public facilities and improvements to conform
to the city's threshold standards." (Municipal Code Section
19.09.010A.7) The findings in support of the Growth Management
Ordinance conclude that the ordinance "does not affect the number
of houses which may be built." (Municipal Code Section
19.09.010B.3) Therefore, the parties acknowledge that the Chula
Vista Growth Management Ordinance completely occupies the topic of
development timing and phasing and expressly precludes the adoption
of housing caps, urban reserves or any other means by which the
rate of development may be controlled or regulated. The city
agrees that the Developer shall be entitled to, apply for and
receive all permits necessary for the development of property,
consistent with the Growth Management Ordinance, Existing Project
Approvals, Future Discretionary Approvals and this Agreement.
5.5 Benefit of Vestinq. Nothing in this Agreement will
be construed as limiting or impairing Developer's vested right, if
any, to proceed with the development and use of the Property
pursuant to the Federal and State Constitutions, and pursuant to
statutory and decisional law.
5.6 vestinq of Entitlements. All rights conferred by
this Agreement vest with the Effective Date hereof. The approval
of Future Discretionary approvals shall not be deemed to limit
Developer's rights authorized by this Agreement, and once such
approvals are obtained they shall be vested to the same extent as
the Existing Project Approvals.
6. DEVELOPMENT PROGRAM.
6.1 processinq of Future Discretionary Approvals. City
will accept and diligently process development applications and
requests for Future Discretionary Approvals, or other entitlements
with respect to the development and use of the Property, provided
said applications and requests are in accordance with this
-10-
Agreement. City
including hiring
of professional
Developer.
costs for processing work related to the Project,
of additional city personnel and/or the retaining
consultants, will be reimbursed to city by
6.2 Lenqth of Validity of Tentative Subdivision Maps.
Government Code section 66452.6 provides that tentative subdivision
map(s) may remain valid for a length up to the term of a Develop-
ment Agreement. The city agrees that tentative subdivision map(s)
for the property shall be for a term of six (6) years and may be
extended by the City Council for a period of time not to exceed a
total of twenty (20) years and in no event beyond the term of this
Agreement.
6.3 Pre-Final Map Development. If Developer desires to
do certain work on the Property after approval of a tentative map
(for example, grading) prior to the recordation of a final map, it
may do so by obtaining a grading and/or other required approvals
from the city which are authorized by the city prior to recordation
of a final map. Such permit shall be issued to Developer, or its
contractor, upon Developer's application, approval, and provided
Developer posts a bond or other reasonably adequate security
required by city in an amount to assure the rehabilitation of the
land if the applicable final map does not record.
6.4 Final Maps.
6.4.1 "A" Maps and "B" Maps. If Developer so
elects, the City shall accept and process a master subdivision
or parcel map ("A" Map) showing "Super Block" lots and
backbone street dedications. "Super Block" lots shall be
consistent with the GDP and subsequent sectional Plan Area
plans, and shall not subdivide land into individual single-
family lots. All "Super Blocks" created shall have access to
dedicated public streets. The city shall not require improve-
ment plans in order to record a final map for any "A" Map
lots, but the City shall require bonding for the completion of
backbone facilities prior to recording in an amount to be
determined by the City. Following the approval by City of any
final map for an "A" Map lot and its recordation, Developer
may convey the "Super Block" lot. The buyer of a "Super
Block" lot shall then process final improvement plans and
grading plans and a final map ("B" Map) for each "Super Block"
lot which the City shall process. The "B" Maps shall be in
substantial conformance with the related approved "A" Map. In
the instance of the multi-family dwelling unit areas, a
separate tentative subdivision map may be submitted to the
City and the "B" Map(s) for these areas may be submitted to
the City after the city Planning commission approves said
tentative subdivision map.
6.4.2 Recordation of Final Subdivision Map in
Name of Builder or Third Party. Developer may, if it so
elects, convey to a Builder or third party any "super block"
lot(s) shown on the recorded Superblock Final Map. In such
-11-
case, the Builder or third party will (i) process any neces-
sary final improvement and grading plans and a final map for
each such "super block" lot, which map City shall accept and
process as subsequent phases in a multi-phase project, (ii)
enter into a subdivision improvement agreement with City with
respect to the subdivision improvements which are required for
such super block lot, and (iii) provide security and insurance
satisfactory to City-for the completion of the subdivision
improvements.
6.4.3 Recordation of Final Subdivision Map in
Developer's Name: Transfer of Obliqations Under Subdivision
Improvement Aqreement(s). If Developer so elects, it may
defer the conveyance of any super block lot to a Builder or
third party until after the final map of such super block lot
has been recorded. If Developer elects to proceed in this
manner, it will enter into city's standard subdivision
improvement agreement(s) with city for the improvements
required as a condition to the approval of such map(s). Upon
sale to a Builder or third party, if such Builder or third
party assumes Developer's obligations under the improvement
agreement and provides its own security and insurance for the
completion of the subdivision improvements as approved by the
City, Developer shall be released from liability under the
subdivision improvement agreement(s) and Developer's security
shall be released.
6.4.4 Transfer of Rights and Obliqations of
Development. Whenever Developer conveys a portion of the
Property, the rights and obligations of this Agreement shall
transfer in accordance with section 15 herein.
7. DEVELOPER'S OBLIGATIONS.
7.1 Condition to Developer's Obligations to Dedicate. Fund or
Construct Public Facilities. Developer agrees to develop or
provide the public improvements, facilities, dedications, or
reservations of land and satisfy other exactions conditioning the
development of the Property which are set forth hereinbelow. The
obligations of the Developer pursuant to this Agreement are
conditioned upon: (i) the city not being in default of its obliga-
tions under this agreement; and (ii) the City not preventing or
unreasonably delaying the development of the property; and (iii)
the Agreement having not been suspended in response to changes in
state or federal law; and (iv) the city's obligations having not
been suspended pursuant to section 13.2.
7.2 Dedications and Reservations of Land for Public Purposes.
The policies by which property will be required to be reserved,
dedicated or improved for public purposes are identified in the
Existing Project Approvals. A more precise delineation of the
property to be preserved, dedicated or improved for public purposes
shall occur as part of Future Discretionary Approvals, consistent
with the Existing Project Approvals.
-12-
7.3 Growth Manaqement Ordinance. Developer shall commit the
pUblic facilities and City shall issue building permits as provided
in this section. The City shall have the right to withhold the
issuance of building permits any time after the City reasonably
determines a Threshold has been exceeded, unless and until the
Developer has mitigated the deficiency in accordance with the
City's Growth Management O~d~nance.
Developer agrees that building permits may be withheld where the
public facilities described in the Existing Project Approvals/-
Future Discretionary Approvals required for a particular Threshold
have not been committed.
In the event a Threshold is not met and future building permit
issuance may be withheld, the notice provisions and procedures
contained in Section 19.09 .100C of the Municipal Code will be
followed. In the event the issuance of building permits is
suspended pursuant to the provisions herein, such suspension shall
not constitute a breach of the terms of this Agreement by Developer
or citv. Furthermore, any such suspension which is not caused by
the actions or omissions of the Developer, shall toll the term of
this Agreement as provided for in section 16.12 of this Agreement,
and suspend the Developer's obligations pursuant to this Agreement.
7.3.1 Required Condemnation. The city and Developer
recognize that certain of the public facilities identified in
the Existing Project Approvals/Future Discretionary Approvals
and required to comply with a threshold are located on
properties which neither the Developer nor the city has, or
will have, title to or control of. The city shall identify
such property or properties and at the time of filing of the
final map commence timely negotiations or, where the property
is within the City's jurisdiction, commence timely proceedings
pursuant to Title 7 (commencing with S 1230.010) of Part 3 of
the Code of civil Procedure to acquire an interest in the
property or properties. Developer's share of the cost
involved in any such acquisition shall be based on its
proportionate share of the public facility as defined in the
Existing Project Approvals/Future Discretionary Approvals.
Nothing in this Agreement shall be deemed to preclude the city
from requiring the Developer to pay the cost of acquiring such
off-site land. For that portion of the cost beyond the
Developer's fair share responsibility, the City shall take all
reasonable steps to establish a procedure whereby the develop-
er is reimbursed for such costs beyond its fair share.
7.3.2 Information Reqardinq Thresholds. Upon
Developer's written requests of the City Manager, the City
will provide Developer with information regarding the current
status of a Threshold. Developer shall be responsible for any
staff costs incurred in providing said written response.
7.4 Improvements Required bv a Subdivision Map. Asmay
be required pursuant to the terms of a subdivision map, it shall be
-13-
the responsibility of Developer to construct the improvements
required by a subdivision map. Where Developer is required to
construct a public improvement which has been identified as the
responsibility of another party or to provide public improvements
of supplemental size, capacity, number or length benefiting
property not within the subdivision, City shall process a reim-
bursement agreement to the Developer in accordance with Article 6
of Chapter 4 of the Subdivision Map Act, commencing with Government
Code section 66485, and section 7.5, below.
7.5 Facilities which Are the Obliqations of Another
Party. or Are of Excessive Size. Capacity. Length or Number.
Developer may offer to advance monies and/or construct public
improvements which are the responsibility of another land owner, or
outside the City's jurisdictional boundaries, or which are of
supplemental size, capacity, number or length for the benefit of
land not within the Property. City, where requesting such funding
or construction of oversized pUblic improvements, shall consider
after a public hearing, contemporaneous with the imposition of the
obligation, the formation of a reimbursement district, assessment
district, facility benefit assessment, or reimbursement agreement
or other reimbursement mechanism.
7.6 pioneerinq of Facilities. To the extent Developer
itself constructs (i.e., "Pioneers") any pUblic facilities or
public improvements which are covered by a DIF Program, Developer
shall be given a credit against DIFs otherwise payable, subject to
the city's Director of Public Works reasonable determination that
such costs are allowable under the applicable DIF Program. It is
specifically intended that Developer be given DIF credit for the
DIF Program improvements it makes. The fact that such improvements
may be financed by an assessment district or other financing
mechanism, shall not prevent DIF credit from being given to the
extent that such costs are allowed under the applicable DIF Program
7.7 Insurance.
insured for all insurance
Project as pertains to the
the Project.
Developer shall name City as additional
policies obtained by Developer for the
Developer's activities and operation on
7.8 Other Land Owners. Developer hereby agrees to
dedicate adequate rights-of-way within the boundaries of the
Property for other land owners to "Pioneer" public facilities on
the Property; provided, however, as follows: (i) dedications shall
be restricted to those reasonably necessary for the construction of
facilities identified in the City's adopted public facility plans;
(ii) this provision shall not be binding on the successors-in-
interest or assignees of Developer following recordation of the
final "Super Block" or "A" Map; and (iii) the city shall use its
reasonable best efforts to obtain agreements similar to this
subsection from other developers and to obtain equitable reimburse-
ment for Developer for any excess dedications.
8. DEVELOPMENT IMPACT FEES.
-14-
8.1 Existinq Development Impact Fee Program Payments.
Developer shall pay to the city a DIF, or construct improvements in
lieu of payment, for improvements which are conditions of a
tentative subdivision map upon the issuance of building permits (s) ,
or at a later time as specified by City ordinance, the Subdivision
Map Act, or Public Facility Financing Plan (PFFP). The DIF will be
in the amount in effect at the time payment is made and may only be
increased pursuant to section 8.6 herein.
8.2 other Undeveloped Properties. The City will use its
reasonable best efforts to impose and collect, or cause the
imposition and collection of, the same DIF program on all the
undeveloped real properties which benefit from the provision of the
public facility through the DIF program, or provided as a condition
of Project Approvals.
8.3 Use of Development Impact Fee Proqram. The DIF
amounts paid to the city by Developer and others with respect to
the Area of Benefit shall be placed by the city in a capital
facility fund account established pursuant to California Government
Code sections 66000-66009. The City shall expend such funds only
for the Projects described in the adopted fee program as may be
modified from time to time. The City will use its reasonable best
efforts to cause such projects to be completed as soon as practica-
ble; however, the city shall not be obligated to use its general
funds for such Projects.
8.4 withholding of Permits. Developer agrees that City
shall have the right to withhold issuance of the building permit
for any structure or improvement on the Property unless and until
the DIF is paid for such structure or improvement.
8.5 Development Impact Fee Credit. upon the completion
and acceptance by the city of any public facility, the city shall
immediately credit Developer with the appropriate amount of cash
credits ("EDUs") as determined by Developer and city. However, if
the improvements are paid for through an Assessment District, the
city shall credit the Developer with the appropriate number of
Equivalent Dwelling unit Credits (EDU's). Developer shall be
entitled to apply any and all credits accrued pursuant to this
subsection toward the required payment of future DIF for any phase,
stage or increment of development of the Project.
8.6 Modification of Development Impact Fees. The
parties recognize that from time to time during the duration of the
Agreement it will be necessary for the City to update and modify
its DIF fees. Such reasonable modifications are contemplated by
the City and the Developer and shall not constitute a modification
to the Agreement so long as: (i) the modification incorporates the
reasonable costs of providing facilities identified in the Existing
Project Approvals; (ii) are based upon methodologies in substantial
compliance with the methodology contained in the existing DIF
programs; or other methodology approved by the city Council
following a public hearing; (iii) complies with the provisions of
Government Code sections 66000-66009.
-15-
8.7 Standards for Financinq Obliqations of Owner. In
connection with the development of the Property, the fOllowing
standards regarding the financing of public improvements shall
apply:
8.7.1 Owner shall pay its fair share for the
interchanges described - in Paragraph 5.1.1, based upon the
number of dwelling unfts or equivalent dwellings of develop-
ment allowed on the Property as compared to the total dwelling
units or equivalent dwelling units allowed on properties
served by such interchanges.
8.7.2 Owner shall participate in the DIF Program
for the Otay Valley Parcel with other owners in proportion to
the total dwelling units or equivalent dwelling units allowed
on the Property as compared with the total of such units
allowed on properties in that particular DIF or by some other
equitable methodology decided by the City Council.
8.7.3 The City shall diligently pursue the
requirements that the Eastern Territories' DIF requires
offsite third parties and adjacent jurisdictions to bear their
fair share of all Otay River Valley crossings.
9. CITY OBLIGATIONS.
9.1 Urban Infrastructure. To the extent it is within
the authority of the City to provide, City shall accommodate urban
infrastructure to the project, consistent with Existing Project
Approvals. Where it is necessary to utilize city property to
provide urban infrastructure consistent with the Existing Project
Approvals, the City agrees to make such land available for such
uses, provided that the City if it so chooses is compensated at
fair market value for the property. To the extent that the
provision of urban infrastructure is within the authority of
another public or quasi-public agency or utility, the City agrees
to fully cooperate with such agency or agencies to accommodate the
urban infrastructure, consistent with Existing Project Approvals.
Urban infrastructure shall include, but not be limited to gas,
electricity, telephone, cable and facilities identified in the otay
Ranch Facility Implementation Plan.
9.2 Sewer Capacity. The City agrees to provide adequate
sewer capacity for the project, upon the payment of ordinary and
necessary sewer connection, capacity and/or service fees.
10. ANNUAL REVIEW.
10.1 city and Owner Responsibilities. ci ty will, at
least every twelve (12) months during the Term of this Agreement,
pursuant to California Government Code S65865.1, review the extent
of good faith substantial compliance by Owner with the terms of
this Agreement. Pursuant to California Government Code section
65865.1, as amended, Owner shall have the duty to demonstrate by
substantial evidence its good faith compliance with the terms of
-16-
this Agreement at the periodic review. Either city or Owner may
address any requirement of the Agreement during the review.
10.2 Evidence. The parties recognize that this Agreement
and the documents incorporated herein could be deemed to contain
hundreds of requirements and that evidence of each and every
requirement would be a wasteful exercise of the parties' resources.
Accordingly, Developer shafl be deemed to have satisfied its good
faith compliance when it presents evidence of substantial com-
pliance with the major provisions of this Agreement. Generalized
evidence or statements shall be accepted in the absence of any
evidence that such evidence is untrue.
10.3 Review Letter. If Owner is found to be in com-
pliance with this Agreement after the annual review, city shall,
within forty-five (45) days after Owner's written request, issue a
review letter in recordable form to Owner ("Letter") stating that
based upon information known or made known to the Council, the City
Planning Commission and/or the city Planning Director, this
Agreement remains in effect and Owner is not in default. Owner may
record the Letter in the Official Records of the County of San
Diego.
10.4 Failure of Periodic Review. city's failure to
review at least annually Owner's compliance with the terms and
conditions of this Agreement shall not constitute, or be asserted
by City or Owner as, a breach of the Agreement.
11. DEFAULT.
11.1 Events of Default. A default under this Agreement
shall be deemed to have occurred upon the happening of one or more
of the following events or conditions:
11.1.1 A warranty, representation or statement
made or furnished by Owner to City is false or proves to have
been false in any material respect when it was made.
11.1.2 A finding and determination by city made
following a periodic review under the procedure provided for
in California Government Code section 65865.1 that upon the
basis of substantial evidence Owner has not complied in good
faith with one or more of the terms or conditions of this
Agreement.
consider
submitted
11.1.3 City does not accept,
requested development permits
in accordance with the provisions
timely review, or
or entitlements
of this Agreement.
11.1. 4 Any other act or omission by City or Owner
which materially interferes with the terms of this Agreement.
11.2 Procedure Upon Default.
-17-
11. 2.1 upon the occurrence of default by the
other party, City or Owner may terminate this Agreement after
providing the other party thirty (30) days written notice
specifying the nature of the alleged default and, when
appropriate, the manner in which said default may be satis-
factorily cured. After proper notice and expiration of said
thirty (30) day cure period without cure, this Agreement may
be terminated. In the~event that City's or Owner's default is
not subject to cure within the thirty (30) day period, city or
Owner shall be deemed not to remain in default in the event
that city or Owner commences to cure within such thirty (30)
day period and diligently prosecutes such cure to completion.
Failure or delay in giving notice of any default shall not
constitute a waiver of any default, nor shall it change the
time of default. Notwithstanding any other provision of this
Agreement, City reserves the right to formulate and propose to
Owner options for curing any defaults under this Agreement for
which a cure is not specified in this Agreement.
11. 2.2 ci ty does not waive any claim of defect in
performance by Owner if, on periodic review, city does not
propose to modify or terminate this Agreement.
11.2.3 Subject to Paragraph 16.12 of this
Agreement, the failure of a third person shall not excuse a
party's nonperformance under this agreement.
11.2.4 Remedies Upon Default. In the event of a
default by either party to this Agreement, the parties shall
have the remedies of specific performance, mandamus, injunc-
tion and other equitable remedies without having to first
prove there is an inadequate remedy at law. Neither party
shall have the remedy of monetary damages against the other;
provided, however, that the award of costs of litigation and
attorneys' fees shall not constitute damage.
12. ENCUMBRANCES AND RELEASES ON PROPERTY.
12.1 Discretion to Encumber. This Agreement shall not
prevent or limit Owner in any manner at Owner's sole discretion,
from encumbering the Property, or any portion of the Property, or
any improvement on the Property, by any mortgage, deed of trust, or
other security device securing financing with respect to the
Property or its improvement.
12.2 Mortqaqee Riqhts and Obligations. The mortgagee of
a mortgage or beneficiary of a deed of trust encumbering the
Property, or any part thereof, and their successors and assigns
shall, upon written request to City, be entitled to receive from
City written notification of any default by Owner of the
performance of Owner's obligations under the Agreement which has
not been cured within thirty (30) days following the date of
default.
-18-
12.3 Releases. City agrees that upon written request of
Owner and payment of all fees and performance of the require-
ments and conditions required of Owner by this Agreement with
respect to the Property, or any portion thereof, city may
execute and deliver to Owner appropriate release(s) of further
obligations imposed by this Agreement in form and substance
acceptable to the San .Diego County Recorder and title
insurance company, if any, or as may otherwise be necessary to
effect the release. City Manager shall not unreasonably
withhold approval of such release(s).
12.4 Obliqation to ModifY. city acknowledges that the
lenders providing financing for the Project may require certain
modifications to this Agreement and City agrees, upon request from
time to time, to meet with Owner and/or representatives of such
lenders to negotiate in good faith any such requirement for
modification. city will not unreasonably withhold its consent to
any such requested modification.
13. MODIFICATION OR SUSPENSION.
13.1 Modification to Agreement by Mutual Consent. This
Agreement may be modified, from time to time, by the mutual consent
of the parties only in the same manner as its adoption by an
ordinance as set forth in California Government Code sections
65867, 65867.5 and 65868. The term, "this Agreement" as used in
this Agreement, will include any such modification properly
approved and executed.
13.2 Unforeseen Health or Safety Circumstances. If, as
a result of facts, events, or circumstances presently unknown,
unforeseeable, and which could not have been known to the parties
prior to the commencement of this Agreement, City finds that
failure to suspend this Agreement would place the residents of City
in a severe and immediate emergency to their health or safety.
13.2.1 Notification of Unforeseen Circumstances.
Notify Developer of (i) City's determination; and (ii) the
reasons for city's determination, and all facts upon which
such reasons are based;
13.2.2 Notice of Hearinq. Notify Developer in
writing at least fourteen (14) days prior to the date, of the
date, time and place of the hearing and forward to Developer
a minimum of ten (10) days prior to the hearings described in
section 13.2.3, all documents related to such determination
and reasons therefor; and
13.2.3 Hearinq. Hold a hearing on the deter-
mination, at which hearing Developer will have the right to
address the city Council. At the conclusion of said hearing,
city may take action to suspend this Agreement as provided
herein. The City may suspend this Agreement if, at the
conclusion of said hearing, based upon the evidence presented
by the parties, the city finds failure to suspend would place
-19-
the residents of the city in a severe and immediate emergency
to their health or safety.
13.3 Chanqe in state or Federal Law or Requlations. If
any state or federal law or regulation enacted during the Term of
this Agreement, or the action or inaction of any other affected
governmental jurisdiction, precludes compliance with one or more
provisions of this Agreemen~, or requires changes in plans, maps,
or permits approved by city, the parties will act pursuant to
Sections 13.3.1 and 13.3.2, below.
13.3.1 Notice: Meetinq. The party first becoming
aware of such enactment or action or inaction will provide the
other party(ies) with written notice of such state or federal
law or regulation and provide a copy of such law or regulation
and a statement regarding its conflict with the provisions of
this Agreement. The parties will promptly meet and confer in
a good faith and reasonable attempt to modify or suspend this
Agreement to comply with such federal or state law or regula-
tion.
13.3.2 Hearinq. If an agreed upon modification
or suspension would not require an amendment to this Agree-
ment, no hearing shall be held. Otherwise, the matter of such
federal or state law or regulation will be scheduled for
hearing before the city. Fifteen (15) days' written notice of
such hearing shall be provided to Developer, and the city, at
such hearing, will determine and issue findings on the
modification or suspension which is required by such federal
or state law or regulation. Developer, at the hearing, shall
have the right to offer testimony and other evidence. If the
parties fail to agree after said hearing, the matter may be
submitted to mediation pursuant to subsection 13.3.3, below.
Any modification or suspension shall be taken by the affirma-
tive vote of not less than a majority of the authorized voting
members of the city. Any suspension or modification may be
subject to judicial review in conformance with subsection
16.19 of this Agreement.
13.3.3 Mediation of Disputes. In the event the
dispute between the parties with respect to the provisions of
this paragraph has not been resolved to the satisfaction of
both parties following the city hearing required by subsection
13.3.2, the matter shall be submitted to mediation prior to
the filing of any legal action by any party. The mediation
will be conducted by the San Diego Mediation Center; if San
Diego Mediation Center is unable to conduct the mediation, the
parties shall submit the dispute for mediation to the Judicial
Arbitration and Mediation Service or similar organization and
make a good faith effort to resolve the dispute. The cost of
any such mediation shall be divided equally between the
Developer and city.
-20-
13.4 Natural Communities Conservation Act (NCCP). The
parties recognize that Developer and the city are individually
negotiating agreements with the United states Fish and Wildlife
Service (trUSF&Wtr) and the California Department of Fish and Game
pursuant to the ongoing regional effort to implement the Natural
Communities Conservation Act (trNCCP"), locally proposed to be
implemented through the -Multi-Species Conservation Program
(trMSCPtr). The parties further recognize that implementation of the
agreements may necessitate modification to the Existing project
Approvals. The parties agree to utilize their best efforts to
implement these agreements, once executed, through the timely
processing of modifications to the Existing Project Approvals as
they relate to the Property. The Developer agrees to pay the
reasonable City cost for processing work related to the modifica-
tions. Once such modifications are obtained they shall be vested
to the same extent as Existing Project Approvals.
14. DISTRICTS. PUBLIC FINANCING MECHANISMS.
This Agreement and the Existing Project Approvals recognize
that assessment districts, community facility districts, or other
public financing mechanisms, may be necessary to finance the cost
of public improvements borne by this Project. If Developer,
pursuant to the Existing project Approvals/Future Discretionary
Approvals, is required to install improvements through the use of
assessment districts, community facility districts, or other public
financing mechanisms, the city shall initiate and conclude
appropriate proceedings for the formation of such financing
district or funding mechanism, under applicable laws or ordinances.
Developer may request that the city utilize any other financing
methods which may become available under city laws or ordinances.
All costs associated with the consideration and formation of such
financing districts or funding mechanisms shall be paid by
Developer subject to reimbursement, as may be legally authorized
out of the proceeds of any financing district or funding mechanism.
15. ASSIGNMENT AND DELEGATION.
15.1 Assignment. Owner shall have the right to transfer
or assign its interest in the Property, in whole or in part,
to any persons, partnership, joint venture, firm, or corpora-
tion at any time during the Term of this Agreement without the
consent of City. Owner also shall have the right to assign or
transfer all or any portion of its interest or rights under
this Agreement to third parties acquiring an interest or
estate in the Property at any time during the Term of this
Agreement without the consent of city.
15.2 Deleqation. In addition, Owner shall have the
right to delegate or transfer its obligations under this
Agreement to third parties acquiring an interest or estate in
the Property after receiving the prior written consent of the
City Manager, which consent shall not be unreasonably with-
held, delayed, or conditioned. Once the city Manager has
consented to a transfer, delivery to and acceptance by the
-21-
City Manager of an unqualified written assumption of Owner's
obligations under this Agreement by such transferee shall
relieve Owner of the obligations under this Agreement to the
extent the obligations have been expressly assumed by the
transferee. Such transferee shall not be entitled to amend
this Agreement without the written consent of the entity that,
as of the Effective Date, is Owner, which consent shall not be
unreasonably withheld; delayed, or conditioned. The entity
that is Owner as of the Effective Date, however, shall be
entitled to amend this Agreement without the written consent
of such transferee.
16. MISCELLANEOUS PROVISIONS.
16.1 Bindinq Effect of Aqreement. Except to the extent
otherwise provided in this Agreement, the burdens of this Agreement
bind, and the benefits of this Agreement inure, to City's and
Owner's successors-in-interest and shall run with the land.
16.2 Relationship of city and Owner. The contractual
relationship between City and Owner arising out of this Agreement
is one of independent contractor and not agency. This Agreement
does not create any third-party beneficiary rights.
16.3 Notices. All notices, demands, and correspondence
required or permitted by this Agreement shall be in writing and
delivered in person, or mailed by first-class or certified mail,
postage prepaid, addressed as follows:
If to city, to:
If to Owner, to:
with a Copy to:
City of Chula vista
276 Fourth Avenue
Chula Vista, CA 91910
Attention: City Manager
Stephen and Mary Birch Foundation
705 Severn Road
suite 1048
Wilmington, DE 19803
Attention: Patrick Patek
STEPHENSON, WORLEY, GARRATT
SCHWARTZ, HEIDEL & PRAIRIE
101 West Broadway, Suite 1300
San Diego, CA 92101
Attention: Donald R. Worley, Esq.
City or Owner may change its address by giving notice in writing to
the other. Thereafter, notices, demands, and correspondence shall
be addressed and transmitted to the new address. Notice shall be
deemed given upon personal delivery, or, if mailed, two (2)
business days following deposit in the united States mail.
1604 Rules of Construction. In this Agreement, the use
of the singular includes the plural; the masculine gender includes
the feminine; "shall" is mandatory; "may" is permissive.
-22-
16.5 Entire Aqreement. Waivers. and Recorded statement.
This Agreement constitutes the entire understanding and agreement
of city and Owner with respect to the matters set forth in this
Agreement. This Agreement supersedes all negotiations or previous
agreements between City and Owner respecting this Agreement. All
waivers of the provisions of this Agreement must be in writing and
signed by the appropriate authorities of City and Owner. upon the
completion of performance of this Agreement, or its revocation or
termination, a statement evidencing completion, revocation, or
termination signed by the appropriate agents of City shall be
recorded in the Official Records of San Diego County, California.
16.6 Pro;ect as a Private Undertakinq. It is
specifically understood by City and Owner that (i) the Project is
a private development; (ii) city has no interest in or
responsibilities for or duty to third parties concerning any
improvements to the Property until city accepts the improvements
pursuant to the provisions of the Agreement or in connection with
subdivision map approvals; and (iii) Owner shall have the full
power and exclusive control of the Property subject to the
obligations of Owner set forth in this Agreement.
16.7 Incorporation of Recitals. The recitals set forth
in Paragraph 1 of this Agreement are part of this Agreement.
16.8 Captions. The captions of this Agreement are for
convenience and reference only and shall not define, explain,
modify, construe, limit, amplify, or aid in the interpretation,
construction, or meaning of any of the provisions of this
Agreement.
16.9 Consent. Where the consent or approval of city or
Owner is required or necessary under this Agreement, the consent or
approval shall not be unreasonably withheld, delayed, or con-
ditioned.
16.10 Covenant of Cooperation.
cooperate and deal with each other in good
other in the performance of the provisions
city and Owner shall
faith, and assist each
of this Agreement.
16.11 Recordinq. The city Clerk shall cause a copy of
this Agreement to be recorded with the Office of the County
Recorder of San Diego County, California, within ten (10) days
following the Effective Date.
16.12 Delay. Extension of Time for Performance. In
addition to any specific provision of this Agreement, performance
by either city or Owner of its obligations hereunder shall be
excused, and the Term of this Agreement and the Development Plan
extended, during any period of delay caused at any time by reason
of any event beyond the control of city or Owner which prevents or
delays and impacts City's or Owner's ability to perform obligations
under this Agreement, including, but not limited to, acts of God,
enactment of new conflicting federal or state laws or regulations
(example: listing of a species as threatened or endangered),
-23-
judicial actions such as the issuance of restraining orders and
injunctions, riots, strikes, or damage to work in process by reason
of fire, floods, earthquake, or other such casualties. If City or
Owner seeks excuse from performance, it shall provide written
notice of such delay to the other within thirty (30) days of the
commencement of such delay. If the delay or default is beyond the
control of City or owner, and is excused, an extension of time for
such cause will be granted in writing for the period of the
enforced delay, or longer as may be mutually agreed upon.
16.13 Covenant of Good Faith and Fair Dealinqs. No party
shall do anything which shall have the effect of harming or
injuring the right of the other parties to receive the benefits of
this Agreement; each party shall refrain from doing anything which
would render its performance under this Agreement impossible; and
each party shall do everything which this Agreement contemplates
that such party shall do in order to accomplish the objectives and
purposes of this Agreement.
16.14 Operatinq Memorandum. The parties acknowledge that
the provisions of this Agreement require a close degree of
cooperation between city and Developer, and that the refinements
and further development of the Project may demonstrate that minor
changes are appropriate with respect to the details of performance
of the parties. The parties, therefore, retain a certain degree of
flexibility with respect to those items covered in general under
this Agreement. When and if the parties mutually find that minor
changes or adjustments are necessary or appropriate, they may
effectuate changes or adjustments through operating memoranda
approved by the parties. For purposes of this section 16.14, the
City Manager, or his designee, shall have the authority to approve
the operating memoranda on behalf of City. No operating memoranda
shall require notice or hearing or constitute an amendment to this
Agreement.
16.15 Time of Essence. Time is of the essence in the
performance of the provisions of this Agreement as to which time is
an element.
16.16 Amendment or Cancellation of Aqreement. This
Agreement may be amended from time to time or canceled by the
mutual consent of city and Owner only in the same manner as its
adoption, by an ordinance as set forth in California Government
Code section 65868, and shall be in a form suitable for recording
in the Official Records of San Diego County, California. The term
"Agreement" shall include any such amendment properly approved and
executed. city and Owner acknowledge that the provisions of this
Agreement require a close degree of cooperation between them, and
that minor or insubstantial changes to the Project and the
Development Plan may be required from time to time to accommodate
design changes, engineering changes, and other refinements.
Accordingly, changes to the project and the Development Plan that
do not result in a change in use, an increase in density or
intensity of use, cause new or increased environmental impacts, or
violate any applicable health and safety regulations, may be
-24-
considered minor or insubstantial by the City Manager and made
without amending this Agreement.
16.17 Estoppel certificate. Within 30 calendar days
following a written request by any of the parties, the other
parties to this Agreement shall execute and deliver to the
requesting party a statement certifying that (i) this Agreement is
unmodified and in full force and effect, or if there have been
modifications hereto, that this Agreement is in full force and
effect as modified and stating the date and nature of such
modifications; (ii) there are no known current uncured defaults
under this Agreement, or specifying the dates and nature of any
such default; and (iii) any other reasonable information requested.
The failure to deliver such a statement within such time shall
constitute a conclusive presumption against the party which fails
to deliver such statement that this Agreement is in full force and
effect without modification, except as may be represented by the
requesting party, and that there are no uncured defaults in the
performance of the requesting party, except as may be represented
by the requesting party.
16.18 Severability. If any material provision of this
Agreement is held invalid, this Agreement will be automatically
terminated with neither party bearing any liability hereunder.
Notwithstanding the foregoing, within 15 days after such provision is
held invalid, if the party holding rights under the invalidated
provision affirms the balance of this Agreement in writing, this
Agreement shall not be terminated. This provision will not affect
the right of the parties to modify or suspend this Agreement by
mutual consent pursuant to Paragraph 12.4.
16.19 Institution of Leqal Proceedinq. In addition to any
other rights or remedies, any party may institute legal action to
cure, correct, or remedy any default, to enforce any covenants or
agreements herein, or to enjoin any threatened or attempted violation
thereof; to recover damages for any default as allowed by this
Agreement or to obtain any remedies consistent with the purpose of
this Agreement. Such legal actions must be insti tuted in the
Superior Court of the County of San Diego, State of California.
16.20 Attorneys' Fees and Costs. If any party commences
litigation or other proceedings (including, without limitation,
arbitration) for the interpretation, reformation, enforcement, or
rescission of this Agreement, the prevailing party, as determined by
the court, will be entitled to its reasonable attorneys' fees and
costs.
16.21 Hold Harmless. Developer agrees to and shall hold
City, its officers, agents, employees and representatives harmless
from liability for damage or claims for damage for personal injury,
including death, and claims for property damage which may arise from
the direct or indirect operations of Developer or those of its
contractors, subcontractors, agents, employees or other persons
acting on Developer's behalf which relate to the Project. Developer
agrees to and shall defend City and its officers, agents, employees
-25-
and representatives from actions for damage caused or alleged to have
been caused by reason of Developer's activities in connection with
the Project. Developer agrees to indemnify, hold harmless, pay all
costs and provide a defense for City in any legal action filed in a
court of competent jurisdiction by a third party challenging the
validity of this Agreement. The provisions of this Section 16.21
shall not apply to the extent such damage, liability or claim is
caused by the intentional or negligent act or omission of City, its
officers, agents, employees or representatives.
17. AUTHORITY
Each signatory and party hereto hereby warrants and represents
to the other party that it has legal authority and capacity and
direction from its principal to enter into this Agreement, and that
all resolutions or other actions have been taken so as to enable it
to enter into this Agreement.
-26-
SIGNATURE PAGE TO PRE-ANNEXATION DEVELOPMENT AGREEMENT.
Dated this ____ day of
, 1997.
"CITY"
CITY OF CHULA VISTA
By:
SHIRLEY HORTON, MAYOR
"OWNER"
STEVEN AND MARY BIRCH FOUNDATION
By:
PATRICK PATEK, PRESIDENT
I hereby approve the form and legality of the
Annexation Development Agreement this ~ay of
foregoing Pre-
, 1997.
John M. Kaheny, city Attorney
By:
Ann Moore
Assistant city Attorney
-27-
EXHIBIT A
I
)
~J
I
~u?-
-.-
'-- -- -
- - -
.
I CJ1Y OF
I CHULA VISTA
PLANNING DEPARTMENT
7/3/96
STEPHEN AND MARY BIRCH FOUNDATION
-. , .
~
'" '" '"
...." --
C/) t: .!!!oCJ
:> "
0 >",g
~CJ ~tc.>
=' >- ='.c "
C .,c~ .s::; c.;;;:::
Z UU u(J)E
w
t:) ,
W
..J ,
I
I
1
.
o
Z
t:
~ 0
.. .-
(1).....
._ n3
CQ > .t:!
... ~ t:
__ - C"a
.c;:,.....
.- .r: '-II
~OO
W'i-Cl>
O~
~-'5
o t:
n3
n::
>-
n3
.....
o
&
-
"C
CJ
"C
t:!:
CJo
E:.;::
E~v>
0"'",
u!:a>
CJt:....
o::<t<t
-
!:
"CJ
",E
"'.c
0..,
0.",,,,
0- CJ
....a>....
c..O<t
-
~ ."
" a>
!: ....
"'-<I:
..J'"
.->-
>.U-c
",a>"
-c..;::;
O(f.)(J)
z~
::I;
~
~
~~
~~ ~~j 0>
~/l U ~:5
f"1 U U::>
J:
U
(I
~m
.j~((i~1@;\~i~'~'
JUjI
--I
I
I
L_,
....J
I
l,
I
,I
_J
,
\'-J
,
I
t''r
.,
I
_ :If
,-
"I
I
L-
-"'"
1-:
I _:
--
...1
L -
,
,~
z
Q
~
oC ,
::r ,
'"
0> ,
- .
~
.
~
c:
oC
'"
"
c
w
<.:
II>
Eo
::
N-
]
. "
,
EXHIBIT ..C.
Pre-annexation Development Agreement
Planning Area Assessor Ownership Acreage
Parcel Numbers
Ranch House 595.{)90.{)5 - Stephen & Mary Birch 71.56
Ranch House 595.{)90.{)6 Stephen & Mary Birch 0.22
Ranch House 595.{)90.{)8 Stephen & Mary Birch 96.25
168.03 Total
PRE-ANNEXATION DEVELOPMENT AGREEMENT
THIS PRE-ANNEXATION DEVELOPMENT AGREEMENT ("Agreement") is
made effective on the date hereinafter set forth below by and among
the CITY OF CHULA VISTA ("City") and GREGORY T. SMITH AND GEORGIANA
R. SMITH ("Smiths"), who a~r'ee as follows:
1. RECITALS. This Agreement is made with respect to the
following facts:
1. 1 Owner. The owners of the properties subj ect to this
Agreement (hereinafter collectively referred to as "Owner" or as
"Developer") are as follows:
1.1.1 smiths are the owners of approximately 330
acres of undeveloped real property in the unincorporated area
of the County of San Diego ("County"), described in Exhibit
"A" (County Assessor Parcels #585-150-01 and #595-050-03),
attached hereto and incorporated herein by this reference.
1.2~. The city of Chula Vista is a municipal
corporation and an incorporated city within the County.
1.3 Code Authorization and Acknowledgments.
1.3.1 City is authorized pursuant to California
Government Code sections 65864 through 65869.5 to enter into
development agreements for the purpose of establishing
certainty for both city and owners of real property in the
development process.
1.3.2 Government Code section 65865 expressly
authorizes a city to enter into a development agreement with
any person having a legal or equitable interest in real
property in unincorporated territory within that city's sphere
of influence for the development of property as provided in
the Development Agreement Law; provided that the agreement
shall not become operative unless annexation proceedings
annexing the property to the city are completed within the
time specified by the agreement.
l.3.3 city enters into this Agreement pursuant
to the provisions of the California Government Code, its home-
rule powers, and applicable city ordinances, rules, regula-
tions and policies.
1.3.4
city and Owner acknowledge:
1.3.4. 1 This Agreement assures adequate
public facilities at the time of development.
1.3.4.2 This Agreement assures development in
accordance with City's capital improvement plans.
-1-
1.3.4. J This Agreement constitutes a current
exercise of City's police powers to provide certainty to
Owner in the development approval process by vesting the
permitted use(s), density, intensity of use, and the
timing and phasing of development as described in the
Development Plan, which is defined in Paragraph 2.4 of
this Agreement, in exchange for Owner's entering into
this Agreement and for its commitment to support the
Annexation described below.
1.3.4.4 This Agreement will permit achieve-
ment of city growth management goals and objectives.
1.3.4.5 This Agreement will allow city to
realize significant economic, recreational, park, open
space, social, and public facilities benefits, some of
which are of regional significance.
1.3.4.6 This Agreement will provide and
assure that the City receive sales tax revenues, increase
in the property tax base, residential housing and other
development, sewer, water and street facilities.
1.3.4.7 This Agreement will provide and
assure that the City receives public facilities in excess
of project generated impacts and such facilities shall be
of supplemental size, number capacity or length, which
shall be provided earlier than could be provided either
by funds from the City or than would strictly be
necessary to mitigate project related impacts at any
development phase.
1.3.4.8 This Agreement will provide the City
the developer's support to secure annexation of the lands
depicted in Exhibit "B".
1.3.4.9 This Agreement will enable. the City
to secure title to the land within the boundaries of the
Property necessary to complete the Chula vista greenbelt
system as defined in the Chula vista General Plan.
1.3.4.10 This Agreement will facilitate the
economic development of Chula vista.
1.3.4.11 Because of the complexities of the
financing of the infrastructure, park, open space, and
other dedications, and regional and community facilities,
and the significant nature of such facilities, certainty
in the development process is an absolute necessity. The
phasing, timing, and development of public infrastructure
necessitate a significant commitment of resources,
planning, and effort by Owner for the public facilities
financing, construction, and dedication to be success-
fully completed. In return for Owner's participation and
commitment to these significant contributions of private
-2-
resources for public purposes and for Owner's consent to
the Annexation described below, city is willing to
exercise its authority to enter into this Agreement and
to make a commitment of certainty for the development
process for the Property.
1.3.4.12" In consideration of Owner's agreement
to provide the significant benefits and for Owner's
consent to the Annexation described below, City hereby
grants Owner assurances that it can proceed with develop-
ment of the Property in accordance with city's
ordinances, rules, regulations, and policies existing as
of the effective date of this Agreement. Owner would not
enter into this Agreement or agree to provide the public
benefits and improvements described in this Agreement if
it were not for the commitment of city that the Property
subject to this Agreement can be developed in accordance
with city's ordinances, rules, regulations, and policies
existing as of the effective date of this Agreement.
1.4 The Annexation. The city has applied to the Local
Agency Formation commission ("LAFCO") for annexation of Sphere of
Influence Planning Area 1 "The Otay Parcel", Planning Area 2
"Inverted L" and the Mary Patrick Estate Parcel (see Attachment
"B") .
1.5 Sphere of Influence. A City application is pending
before LAFCO to have the Otay Valley Parcel included within city's
sphere of influence. On February 5, 1996 the Local Agency
Formation Commission approved the inclusion of approximately 7,600
acres into the city Sphere of Influence (Sphere of Influence
Planning Area 2 and the northern two thirds of Planning Area 1),
and designated the otay River Valley an Village 3 as special study
areas.
1.6 Planninq Documents. On October 28, 1993, City and
County adopted the otay Ranch General Development Plan/Subregional
Plan ("the GDP") which includes the Otay Ranch Village Phasing
Plan, Facility Implementation Plan, Resource Management Plan and
Service Revenue Plan, for approximately 23,000 acres of the Otay
Ranch, including the Otay Valley Parcel and the Smiths' Properties.
1. 7 Owner Consent. City desires to have the cooperation
and consent of Owner to include the Property in the Annexation in
order to better plan, finance, construct and maintain the infra-
structure for the Otay Valley Parcel; and the smiths' desire to
give their cooperation and consent, provided that they obtain
certain assurances, as set forth in this Agreement.
1. 8 city Ordinance. July 9, 1996 is the date of
adoption by the city council of Ordinance No. 2679 approving this
Agreement. The ordinance shall take effect and be in full force on
the effective date of Annexation.
-3-
2. DEFINITIONS.
otherwise requires:
In this Agreement, unless the context
2.1 "Annexation" means the proposed annexation of that
portion of the Otay Ranch into the city as depicted on Exhibit "D".
2.2 "city" means "the City of Chula Vista, in the County
of San Diego, State of California.
2.3 "county" means the county of San Diego, State of
California.
2.4 "Development Plan" means the GDP.
2.5 "GDP" means the General Development Plan/ Subregional
Plan for the otay Ranch, described in Paragraph 1.6, above.
2.6 "Owner" or "Developer" means the person, persons, or
entity having a legal and equitable interest in the Property, or
parts thereof, and includes Owner's successors-in-interest.
2.7 "Project" means the physical development of the
private and public improvements on the Property as provided for in
the Existing Project Approvals and as may be authorized by the city
in Future Discretionary Approvals.
2.8 "Property" means the real property described in
Paragraph 1.1.1.
2.9 The "Term" of this Agreement means the period
defined in Paragraph 3, below.
2.10 "Builder" means developer to whom Developer has sold
or conveyed property within the Property for purposes of its
improvement for residential, commercial, industrial or other use.
2.l1 "CEQA" means the California Environmental Quality
Act, California Public Resources Code section 21000, et seq.
2.12 "city Council" means the City of Chula Vista City
Council.
2.13 "Commit" or "Committed" means all of the following
requirements have been met with respect to any pUblic facility:
2.13.1 For a public facility within the city's
jurisdictional boundaries and a responsibility of the develop-
er.
2.13.1.1 All discretionary permits required of
the Developer have been obtained for construction of the
public facility;
-4-
2.13.1.2 Plans for the construction of the
pUblic facility have all the necessary governmental
approvals; and
2.13.1.3 Adequate funds (i.e., letters of
credit, cash deposits, performance bonds or land secured
public financing, including facility benefit assessments,
Mello-Roos assessment districts of similar assessment
mechanism) are available such that the city can construct
the pUblic facility if construction has not commenced
within thirty (30) days of issuance of a notice to
proceed by the Director of Public Works, or construction
is not progressing towards completion in a reasonable
manner as reasonably deemed by the Director of Public
Works.
2.13.2 For a public facility within the City's
jurisdictional boundaries, but to be provided by other than
Developer.
2.13.2.1 Developer's proportionate share of
the cost of such public facility as defined in the
existing Project Approvals and Future Discretionary
Approvals has been provided or assured by Developer
through the payment or impositions of development impact
fee or other similar exaction mechanism.
2.13.3 For public facility not within city's
jurisdictional boundaries:
the cost
existing
Approvals
Developer
of PUblic
2.13.3.1 Developer's proportionate share of
of such public facility as defined in the
Project Approvals and Future Discretionary
has been provided for or otherwise assured by
to the reasonable satisfaction of the Director
Works.
2.14 "Development Impact Fee (DIF)" means fees imposed
upon new development pursuant to the City of Chula vista
Development Impact Fee Program, for example, including but not
limited to the Transportation Development Impact Fee Program, the
Interim SR-125 Development Impact Fee Program, the Salt Creek Sewer
DIF and the Public Facilities DIF.
2.15 "Existing Project Approvals" means all discretionary
approvals affecting the Project which have been approved or
established in conjunction with, or preceding, the effective date
consisting of, but not limited to the GDP, the Chula vista General
Plan, the otay Ranch Reserve Fund Program adopted pursuant to
Resolution 18288, and the Phase II Resource Management Plan (RMP),
as may be amended from time to time consistent with this agreement.
2.16 "Final Map(s)" means any final subdivision map for
all or any portion of the Property other than the Superblock Final
Map ("A" Maps).
-5-
2.17 "Future Discretionary Approvals" means all permits
and approvals by the city granted after the effective date and
excluding existing project Approvals, including, but not limited
to: (i) grading permits; (ii) site plan reviews; (iii) design
guidelines and reviews; (iv) precise plan reviews; (v) subdivisions
of the property or re-subdivisions of the Property previously
subdivided pursuant to the SUbdivision Map Act; (vi) conditional
use permits; (vii) variances; (viii) encroachment permits;
(ix) Sectional Planning Area plans; (x) Preserve Conveyance Plan
and (xi) all other reviews, permits, and approvals of any type
which may be required from time to time to authorize public or
private on- or off-site facilities which are a part of the Project.
2.18 "Planning commission" means the Planning commission
of the City of Chula Vista.
2.19 "Preserve Conveyance Plan" means a plan that sets
forth policies and identifies land to be transferred and/or fees to
be paid to insure the orderly conveyance of the Otay Ranch land to
the Preserve Owner Manager. The purpose of the plan is to fulfill
the obligations to convey resource sensitive land, per the criteria
contained in the phase I and II Resource Management Plans and to
mitigate environmental impacts of the Otay Ranch Project.
2.20 "Public Facility"
public facilities described
Implementation Plan.
or "Public Facilities" means those
in the otay Ranch Facility
2.21 "Subdivision Map Act" means the California
Subdivision Map Act, Government Code section 66410, et seq., and
its amendments as may from time to time be adopted.
2.22 "Substantial Compliance" means that the party
charged with the performance of a covenant herein has sufficiently
followed the terms of this Agreement so as to carry out the intent
of the parties in entering into this Agreement.
2.23 "Threshold" means the facility thresholds set forth
in the City's Municipal Code section 19.19.040.
3. TERM. This Agreement shall become effective as a
development agreement upon the effective date of the Annexation
("the Effective Date"); provided, however, that if the Annexation
does not occur on or before JulY Jaauary 1, 1997, this Agreement
shall be null and void unless the annexation proceedinqs have been
extended bY LAFCO. If the annexation proceedinqs have been
extended. this Agreement shall become effective upon the effective
date of such Annexation: provided however. if the annexation does
not occur bY the end of such extension(s). this Aqreement shall
become null and void. Any of the foregoing to the contrary
notwithstanding, from the date of the first reading of the
ordinance approving this Agreement, and unless or until this
Agreement becomes null and void, Owner shall be bound by the terms
of paragraph.i. The Term of this Agreement for purposes other than
Paragraph ~ shall begin upon the Effective Date, and shall continue
-6-
for a period of twenty (20) years ("the Term"). The Term shall
also be extended for any period of time during which issuance of
building permits to Owner is suspended for any reason other than
the default of Owner, and for a period of time equal to the period
of time during which any action by City or court action limits the
processing of future discretionary approvals, issuance of building
permits or any other development of the Property consistent with
this Agreement. -
4. OWNER CONSENT TO ANNEXATION. Owner hereby consents to
and shall cooperate with the applications of city to declare that
the Otay Valley Parcel is within city's sphere of influence and to
annex the Otay Valley Parcel to the City; provided, however, that
Owner may withdraw such consent and withhold further cooperation if
the city, prior to the Effective Date, adopts rules, regulations,
ordinances, policies, conditions, environmental regulations,
phasing controls, exactions, entitlements, assessments or fees
applicable to and governing development of the Property which are
inconsistent with, or render impractical development of the
Property according to, the Development Plan.
4. 1 The Developer understands and aqrees that this
Aqreement shall become effective and valid only upon the
Effective Date of the annexation proceedinqs. as more fully
described in paraqraph 3 of this Aqreement. Developer further
understands that as a condition precedent to the completion of
annexation proceedings. and this Aqreement becominq effective.
certain property owners such as SNMB. Ltd.. are required to
provide certain easements and subordination aqreements
satisfactory to the County. Developer aqrees that the City's
second readinq of the Ordinance approvinq this Aqreement shall
not occur unless and until said subordination agreements have
been accepted by the County.. No terms of this Aqreement shall
be subiect to reneqotiation between the first and second
readinq of the ordinance approvinq this Aqreement except by
mutual consent of the parties to this Aqreement.
5. VESTED RIGHTS. Notwi thstanding any future action or
inaction of the City during the term of this Agreement, whether
such action is by ordinance, resolution or policy of the City,
Owner and Developer shall have a vested right, except as may be
otherwise provided in this section 5, to construct the Project.
5.1 Existing Project Approvals.
5.2 Development of Property. The development of the
Property will be governed by this Agreement and Existing Project
Approvals and such development shall comply and be governed by all
rules, regulations, policies, resolutions, ordinances, and
standards in effect as of the Effective Date subject to the
provisions of section 5.2.1 below. The city shall retain its
discretionary authority as to Future Discretionary Approvals,
provided however, such Future Discretionary Approvals shall be
-7-
regulated by the Existing Project Approvals, this Agreement, and
city rules, regulations, standards, ordinances, resolutions and
policies in effect on the Effective Date of this Agreement and
subject to section 5.2.1.
Notwithstanding the foregoing, the City may make such changes to
the city's Growth Management-ordinance applicable to the Project as
are reasonable and consistent with the purpose and intent of the
existing Growth Management Ordinance and which are generally
applicable to all private projects citywide or east of I-80S or
within a specific benefit, fee or reimbursement district created
pursuant to the California Government Code.
5.2.1 New or Amended Rules. Requlations.
Policies. standards. Ordinances and Resolutions. The city may
apply to the Project, including Future Discretionary Approv-
als, new or amended rules, laws, regulations, policies,
ordinances, resolutions and standards generally applicable to
all private projects east of I-80S or within a specific
benefit fee or reimbursement district created pursuant to the
california Government Code. The application of such new
rules, or amended laws, regulations, resolutions, policies,
ordinances and standards will not unreasonably prevent or
delay development of the Property to the uses, densities or
intensities of development specified herein or as authorized
by the Existing Project Approvals. The City may also apply
changes in City laws, regulations, ordinances, standards or
policies specifically mandated by changes in state or federal
law in compliance with section 13.3 herein.
5.2.2 Developer may elect with city's consent,
to have applied to the project any rules, regulations,
policies, ordinances or standards enacted after the date of
this Agreement. Such an election has to be made in a manner
consistent with section 5.2 of this Agreement.
5.2.3 Modifications to Existinq proiect
A?provals. It is contemplated by the parties to this
Agreement that the City and Developer may mutually seek and
agree to modifications to the Existing project Approvals.
Such modifications are contemplated as within the scope of
this Agreement, and shall, upon written acceptance by all
parties, constitute for all purposes an Existing Project
Approval. The parties agree that any such modifications may
not constitute an amendment to this Agreement nor require an
amendment to the Agreement.
5.2.4 Future Discretionary Approvals. It is
contemplated by the parties to this Agreement that the City
and Developer may agree to Future Discretionary Approvals. The
parties agree that any such Future Approvals may not consti-
tute an amendment to this Agreement nor require an amendment
to the Agreement.
-8-
5.3 Dedication and Reservation of Land for Public
Purposes. Except as expressly required by this Agreement or the
Existing Project Approvals and Future Discretionary Approvals
(excepting dedications required within the boundaries of any parcel
created by the subsequent subdivision of the Property as required
by the Subdivision Map Act), no dedication or reservation of real
property within or outside the Property shall be required by City
or Developer in conjunction'with the Project. Any dedications and
reservations of land imposed shall be in accordance with Section
7.2 and section 7.8 herein.
5.4 Time for Construction and Completion of Proiect.
Because the California Supreme Court held in Pardee Construction
Company v. City of Camarillo (1984) 27 Cal.3d 465, that the failure
of the parties to provide for the timing of development resulted in
a later-adopted initiative restricting the timing of development to
prevail over such parties' Agreement, it is the intention of the
parties to this Agreement to cure that deficiency by specifically
acknowledging that timing and phasing of development is completely
and exclusively governed by the Existing Project Approvals,
including the Chula vista Growth Management Ordinance. The purpose
of the Chula vista Growth Management Ordinance is to "control the
timing and location of development by tying the pace of development
to the provision of pUblic facilities and improvements to conform
to the city's threshold standards." (Municipal Code section
19.09.010A.7) The findings in support of the Growth Management
Ordinance conclude that the ordinance "does not affect the number
of houses which may be built." (Municipal Code section
19.09.010B.3) Therefore, the parties acknowledge that the Chula
Vista Growth Management Ordinance completely occupies the topic of
development timing and phasing and expressly precludes the adoption
of housing caps, urban reserves or any other means by which the
rate of development may be controlled or regulated. The City
agrees that the Developer shall be entitled to, apply for and
receive all permits necessary for the development of property,
consistent with the Growth Management Ordinance, Existing Project
Approvals, Future Discretionary Approvals and this Agreement.
5.5 Benefit of Vestinq. Nothing in this Agreement will
be construed as limiting or impairing Developer's vested right, if
any, to proceed with the development and use of the Property
pursuant to the Federal and State Constitutions, and pursuant to
statutory and decisional law.
5.6 Vestinq of Entitlements. All rights conferred by
this Agreement vest with the Effective Date hereof. The approval
of Future Discretionary approvals shall not be deemed to limit
Developer's rights authorized by this Agreement, and once such
approvals are obtained they shall be vested to the same extent as
the Existing Project Approvals.
6. DEVELOPMENT PROGRAM.
6.1 Processinq of Future Discretionary Approvals. City
will accept and diligently process development applications and
-9-
requests for Future Discretionary Approvals, or other entitlements
with respect to the development and use of the Property, provided
said applications and requests are in accordance with this
Agreement. city costs for processing work related to the project,
including hiring of additional city personnel and/or the retaining
of professional consultants, will be reimbursed to city by
Developer. -
6.2 Length of Validity of Tentative Subdivision Maps.
Government Code Section 66452.6 provides that tentative subdivision
map(s) may remain valid for a length up to the term of a Develop-
ment Agreement. The City agrees that tentative subdivision map(s)
for the property shall be for a term of six (6) years and may be
extended by the city Council for a period of time not to exceed a
total of twenty (20) years and in no event beyond the term of this
Agreement.
6.3 Pre-Final Map Development. If Developer desires to
do certain work on the Property after approval of a tentative map
(for example, grading) prior to the recordation of a final map, it
may do so by obtaining a grading and/or other required approvals
from the City which are authorized by the city prior to recordation
of a final map. Such permit shall be issued to Developer, or its
contractor, upon Developer's application, approval, and provided
Developer posts a bond or other reasonably adequate security
required by City in an amount to assure the rehabilitation of the
land if the applicable final map does not record.
6.4 Final Maps.
6.4.1 "A" Maps and "B" Maps. If Developer so
elects, the city shall accept and process a master subdivision
or parcel map ("A" Map) showing "super Block" lots and
backbone street dedications. "Super Block" lots shall be
consistent with the GDP and subsequent sectional Plan Area
plans, and shall not subdivide land into individual single-
family lots. All "super Blocks" created shall have access to
dedicated public streets. The city shall not require improve-
ment plans in order to record a final map for any "A" Map
lots, but the City shall require bonding for the completion of
backbone facilities prior to recording in an amount to be
determined by the city. Following the approval by city of any
final map for an "A" Map lot and its recordation, Developer
may convey the "Super Block" lot. The buyer of a "Super
Block" lot shall then process final improvement plans and
grading plans and a final map ("B" Map) for each "Super Block"
lot which the city shall process. The "B" Maps shall be in
substantial conformance with the related approved "A" Map. In
the instance of the multi-family dwelling unit areas, a
separate tentative subdivision map may be submitted to the
City and the "B" Map(s) for these areas may be submitted to
the city after the city Planning commission approves said
tentative subdivision map.
-10-
6.4.2 Recordation of Final Subdivision Map in
Name of Builder or Third Partv. Developer may, if it so
elects, convey to a Builder or third party any "super block"
lot(s) shown on the recorded Superblock Final Map. In such
case, the Builder or third party will (i) process any neces-
sary final improvement and grading plans and a final map for
each such "super block" lot, which map City shall accept and
process as subsequent' phases in a multi-phase project, (ii)
enter into a subdivision improvement agreement with City with
respect to the subdivision improvements which are required for
such super block lot, and (iii) provide security and insurance
satisfactory to city for the completion of the subdivision
improvements.
6.4.3 Recordation of Final Subdivision Map in
Developer's Name: Transfer of Obliqations Under Subdivision
Improvement Aqreement(s). If Developer so elects, it may
defer the conveyance of any super block lot to a Builder or
third party until after the final map of such super block lot
has been recorded. If Developer elects to proceed in this
manner, it will enter into city's standard subdivision
improvement agreement(s) with city for the improvements
required as a condition to the approval of such map(s). Upon
sale to a Builder or third party, if such Builder or third
party assumes Developer's obligations under the improvement
agreement and provides its own security and insurance for the
completion of the subdivision improvements as approved by the
City, Developer shall be released from liability under the
subdivision improvement agreement(s) and Developer's security
shall be released.
6.4.4 Transfer of Riqhts and Obliqations of
Development. Whenever Developer conveys a portion of the
Property, the rights and obligations of this Agreement shall
transfer in accordance with Section 15 herein.
7. DEVELOPER'S OBLIGATIONS.
7.1 Condition to Developer's Obliqations to Dedicate. Fund or
Construct Public Facilities. Developer agrees to develop or
provide the public improvements, facilities, dedications, or
reservations of land and satisfy other exactions conditioning the
development of the Property which are set forth hereinbelow. The
obligations of the Developer pursuant to this Agreement are
conditioned upon: (i) the City not being in default of its obliga-
tions under this agreement; and (ii) the city not preventing or
unreasonably delaying the development of the property; and (iii)
the Agreement having not been suspended in response to changes in
state or federal law; and (iv) the city's obligations having not
been suspended pursuant to Section 13.2.
7.2 Dedications and Reservations of Land for Public Purposes.
The pOlicies by which property will be required to be reserved,
dedicated or improved for public purposes are identified in the
Existing Project Approvals. A more precise delineation of the
-11-
property to be preserved, dedicated or improved for public purposes
shall occur as part of Future Discretionary Approvals, consistent
with the Existing project Approvals.
7.2.1 Preserve Conveyance Plan. The city and the
Developer shall mutually agree upon a Preserve conveyance
Plan. The city shall iri good faith consider for adoption such
a plan and the Developer shall convey property and/or fees in
lieu of land as set forth in such Plan.
7.3 Growth Manaqement Ordinance. Developer shall commit the
public facilities and City shall issue building permits as provided
in this Section. The city shall have the right to withhold the
issuance of building permits any time after the City reasonably
determines a Threshold has been exceeded, unless and until the
Developer has mitigated the deficiency in accordance with the
city's Growth Management Ordinance.
Developer agrees that building permits may be withheld where the
public facilities described in the Existing Project Approvals/-
Future Discretionary Approvals required for a particular Threshold
have not been committed.
In the event a Threshold is not met and future building permit
issuance may be withheld, the notice provisions and procedures
contained in Section 19.09 .100C of the Municipal Code will be
followed. In the event the issuance of building permits is
suspended pursuant to the provisions herein, such suspension shall
not constitute a breach of the terms of this Agreement by Develop-
er. Furthermore, any such suspension which is not caused by the
actions or omissions of the Developer, shall toll the term of this
Agreement as provided for in Section 16.12 of this Agreement, and
suspend the Developer's obligations pursuant to this Agreement.
7.3.1 Required Condemnation. The city and Developer
recognize that certain of the public facilities identified in
the Existing Project Approvals/Future Discretionary Approvals
and required to comply with a threshold are located on
properties which neither the Developer nor the City has, or
will have, title to or control of. The City shall identify
such property or properties and at the time of filing of the
final map commence timely negotiations or, where the property
is within the City's jurisdiction, commence timely proceedings
pursuant to Title 7 (commencing with S 1230.010) of Part 3 of
the Code of civil Procedure to acquire an interest in the
property or properties. Developer's share of the cost
involved in any such acquisition shall be based on its
proportionate share of the public facility as defined in the
Existing Project Approvals/Future Discretionary Approvals.
Nothing in this Agreement shall be deemed to preclude the city
from requiring the Developer to pay the cost of acquiring such
off-site land. For that portion of the cost beyond the
Developer's fair share responsibility, the City shall take all
reasonable steps to establish a procedure whereby the develop-
er is reimbursed for such costs beyond its fair share.
-12-
7.3.2 Information Reqardinq Thresholds. Upon
Developer's written requests of the City Manager, the City
will provide Developer with information regarding the current
status of a Threshold. Developer shall be responsible for any
staff costs incurred in providing said written response.
7.4 Improvements Required by a Subdivision Map. Asmay
be required pursuant to the terms of a subdivision map, it shall be
the responsibility of Developer to construct the improvements
required by a subdivision map. Where Developer is required to
construct a public improvement which has been identified as the
responsibility of another party or to provide public improvements
of supplemental size, capacity, number or length benefiting
property not within the subdivision, City shall process a reim-
bursement agreement to the Developer in accordance with Article 6
of Chapter 4 of the Subdivision Map Act, commencing with Government
Code section 66485, and Section 7.5, below.
7.5 Facilities Which Are the Obliqations of Another
Party. or Are of Excessive Size. Capacity. Lenqth or Number.
Developer may offer to advance monies and/or construct public
improvements which are the responsibility of another land owner, or
outside the city's jurisdictional boundaries, or which are of
supplemental size, capacity, number or length for the benefit of
land not within the Property. city, where requesting such funding
or construction of oversized public improvements, shall consider
after a public hearing, contemporaneous with the imposition of the
obligation, the formation of a reimbursement district, assessment
district, facility benefit assessment, or reimbursement agreement
or other reimbursement mechanism.
7.6 Pioneerinq of Facilities. To the extent Developer
itself constructs (Le., "Pioneers") any public facilities or
public improvements which are covered by a DIF Program, Developer
shall be given a credit against DIFs otherwise payable, subject to
the City's Director of Public Works reasonable determination that
such costs are allowable under the applicable DIF Program. It is
specifically intended that Developer be given DIF credit for the
DIF Program improvements it makes. The fact that such improvements
may be financed by an assessment district or other financing
mechanism, shall not prevent DIF credit from being given to the
extent that such costs are allowed under the applicable DIF Program
7.7 Insurance.
insured for all insurance
Project as pertains to the
the Project.
Developer shall name City as additional
policies obtained by Developer for the
Developer's activities and operation on
7.8 Other Land Owners. Developer hereby agrees to
dedicate adequate rights-of-way within the boundaries of the
Property for other land owners to "pioneer" public facilities on
the Property; provided, however, as follows: (i) dedications shall
be restricted to those reasonably necessary for the construction of
facilities identified in the city's adopted public facility plans;
-13-
(ii) this provision shall not be binding on the successors-in-
interest or assignees of Developer following recordation of the
final "Super Block" or "A" Map; and (iii) the City shall use its
reasonable best efforts to obtain agreements similar to this
subsection from other developers and to obtain equitable reimburse-
ment for Developer for any excess dedications.
8. DEVELOPMENT IMPACT FEES.
8.1 Existing Development Impact Fee Program Payments.
Developer shall pay to the city a DIF, or construct improvements in
lieu of payment, for improvements which are conditions of a
tentative subdivision map upon the issuance of building permits (s) ,
or at a later time as specified by city ordinance, the Subdivision
Map Act, or PUblic Facility Financing Plan (PFFP). The DIF will be
in the amount in effect at the time payment is made and may only be
increased pursuant to section 8.6 herein.
8.2 Other Undeveloped Properties. The City will use its
reasonable best efforts to impose and collect, or cause the
imposi tion and collection of, the same DIF program on all the
undeveloped real properties which benefit from the provision of the
public facility through the DIF program, or provided as a condition
of Project Approvals.
8.3 Use of Development Impact Fee Proqram. The DIF
amounts paid to the city by Developer and others with respect to
the Area of Benefit shall be placed by the city in a capital
facility fund account established pursuant to California Government
Code sections 66000-66009. The City shall expend such funds only
for the Projects described in the adopted fee program as may be
modified from time to time. The City will use its reasonable best
efforts to cause such Projects to be completed as soon as practica-
ble; however, the city shall not be obligated to use its general
funds for such Projects.
8.4 Withholdinq of Permits. Developer agrees that City
shall have the right to withhold issuance of the building permit
for any structure or improvement on the Property unless and until
the DIF is paid for such structure or improvement.
8.5 Development Impact Fee Credit. Upon the completion
and acceptance by the City of any public facility, the City shall
immediately credit Developer with the appropriate amount of cash
credits ("EDUs") as determined by Developer and city. However, if
the improvements are paid for through an Assessment District, the
City shall credit the Developer with the appropriate number of
Equivalent Dwelling Unit Credits (EDU's). Developer shall be
entitled to apply any and all credits accrued pursuant to this
subsection toward the required payment of future DIF for any phase,
stage or increment of development of the project.
8.6 Modification of Development Impact Fees. The
parties recognize that from time to time during the duration of the
Agreement it will be necessary for the City to update and modify
-14-
its DIF fees. Such reasonable modifications are contemplated by
the City and the Developer and shall not constitute a modification
to the Agreement so long as: (i) the modification incorporates the
reasonable costs of providing facilities identified in the Existing
Project Approvals; (ii) are based upon methodologies in substantlal
compliance with the methodology contained in the existing DIF
programs; or other methodology approved by the City council
following a public hearing; (iii) complies with the provisions of
Government Code sections 66000-66009.
8.7 Standards for Financinq Obliqations of Owner. In
connection with the development of the property, the following
standards regarding the financing of pUblic improvements shall
apply:
8.7.1 Owner shall pay its fair share for the
interchanges described in Paragraph 5.1.3, based upon the
number of dwelling units or equivalent dwellings of develop-
ment allowed on the Property as compared to the total dwelling
units or equivalent dwelling units allowed on properties
served by such interchanges.
8.7.2 Owner shall participate in the DIF Program
for the Otay Valley Parcel with other owners in proportion to
the total dwelling units or equivalent dwelling units allowed
on the Property as compared with the total of such units
allowed on properties in that particular DIF or by some other
equitable methodology decided by the city Council.
8.7.3 The city shall diligently pursue the
requirements that the Eastern Territories' DIF requires
offsite third parties and adjacent jurisdictions to bear their
fair share of all Otay River Valley crossings.
9. CITY OBLIGATIONS.
9.1 Urban Infrastructure. To the extent it is within
the authority of the city to provide, city shall accommodate urban
infrastructure to the project, consistent with Existing Project
Approvals. Where it is necessary to utilize city property to
provide urban infrastructure consistent with the Existing Project
Approvals, the city agrees to make such land available for such
uses, provided that the City if it so chooses is compensated at
fair market value for the property. To the extent that the
provision of urban infrastructure is within the authority of
another public or quasi-public agency or utility, the city agrees
to fully cooperate with such agency or agencies to accommodate the
urban infrastructure, consistent with Existing Project Approvals.
Urban infrastructure shall include, but not be limited to gas,
electricity, telephone, cable and facilities identified in the Otay
Ranch Facility Implementation Plan.
9.2 Sewer Capacity. The city agrees to provide adequate
sewer capacity for the project, upon the payment of ordinary and
necessary sewer connection, capacity and/or service fees.
-15-
10. ANNUAL REVIEW.
10.1 city and Owner Responsibilities. City will, at
least every twelve (12) months during the Term of this Agreement,
pursuant to California Government Code S65865.1, review the extent
of good faith substantial compliance by Owner with the terms of
this Agreement. Pursuant to California Government Code section
65865.1, as amended, Owner'shall have the duty to demonstrate by
substantial evidence its good faith compliance with the terms of
this Agreement at the periodic review. Either City or Owner may
address any requirement of the Agreement during the review.
10.2 Evidence. The parties recognize that this Agreement
and the documents incorporated herein could be deemed to contain
hundreds of requirements and that evidence of each and every
requirement would be a wasteful exercise of the parties' resources.
Accordingly, Developer shall be deemed to have satisfied its good
faith compliance when it presents evidence of substantial com-
pliance with the major provisions of this Agreement. Generalized
evidence or statements shall be accepted in the absence of any
evidence that such evidence is untrue.
10.3 Review Letter. If Owner is found to be in com-
pliance with this Agreement after the annual review, city shall,
within forty-five (45) days after Owner's written request, issue a
review letter in recordable form to Owner ("Letter") stating that
based upon information known or made known to the Council, the city
Planning commission and/or the City Planning Director, this
Agreement remains in effect and Owner is not in default. Owner may
record the Letter in the Official Records of the County of San
Diego.
review at
conditions
by City or
10.4 Failure of Periodic Review. city's failure to
least annually Owner's compliance with the. terms and
of this Agreement shall not constitute, or be asserted
Owner as, a breach of the Agreement.
11.
DEFAULT.
11.1 Events of Default. A default under this Agreement
shall be deemed to have occurred upon the happening of one or more
of the following events or conditions:
11.1.1 A warranty, representation or statement
made or furnished by Owner to City is false or proves to have
been false in any material respect when it was made.
11.1.2 A finding and determination by City made
following a periodic review under the procedure provided for
in California Government Code section 65865.1 that upon the
basis of substantial evidence Owner has not complied in good
faith with one or more of the terms or conditions of this
Agreement.
-16-
11.1.3 city does not accept,
consider requested development permits
submitted in accordance with the provisions
timely review, or
or entitlements
of this Agreement.
11.1.4 Any other act or omission by city or Owner
which materially interferes with the terms of this Agreement.
11.2 Procedure Upon Default.
11.2.1 Upon the occurrence of default by the
other party, City or Owner may terminate this Agreement after
providing the other party thirty (30) days written notice
specifying the nature of the alleged default and, when
appropriate, the manner in which said default may be satis-
factorily cured. After proper notice and expiration of said
thirty (30) day cure period without cure, this Agreement may
be terminated. In the event that city's or Owner's default is
not subject to cure within the thirty (30) day period, City or
Owner shall be deemed not to remain in default in the event
that city or Owner commences to cure within such thirty (30)
day period and diligently prosecutes such cure to completion.
Failure or delay in giving notice of any default shall not
constitute a waiver of any default, nor shall it change the
time of default. Notwithstanding any other provision of this
Agreement, City reserves the right to formulate and propose to
Owner options for curing any defaults under this Agreement for
which a cure is not specified in this Agreement.
11. 2 . 2 ci ty does not waive any claim of defect in
performance by Owner if, on periodic review, City does not
propose to modify or terminate this Agreement.
11.2.3 Subject to Paragraph 16.12 of this
Agreement, the failure of a third person shall not excuse a
party's nonperformance under this agreement.
11. 2 . 4 1'.11 othcr rcmcdic::J at law or in cqui ty
which arc conoi::Jtcnt with thc provi::Jion::J of thi::J 1'.grccmcnt arc
availablc to City and Owncr to pur::Juc in thc cvcnt thcrc io a
ereaeh. In the event of a default by either party to this
Aqreement. the parties shall have the remedies of specific
performance. mandamus. iniunction and other equitable remedies
without havinq to first prove there is an inadequate remedY at
law. Neither party shall have the remedy of monetary damaqes
aqainst the other: provided. however. that the award of costs
of litiqation and attorneys' fees shall not constitute damaqe.
12. ENCUMBRANCES AND RELEASES ON PROPERTY.
12.1 Discretion to Encumber. This Agreement shall not
prevent or limit Owner in any manner at Owner's sole discretion,
from encumbering the Property, or any portion of the Property, or
any improvement on the Property, by any mortgage, deed of trust, or
other security device securing financing with respect to the
Property or its improvement.
-17-
12.2 Mortqaqee Riqhts and Obliqations. The mortgagee of
a mortgage or beneficiary of a deed of trust encumbering the
Property, or any part thereof, and their successors and assigns
shall, upon written request to city, be entitled to receive from
city written notification of any default by Owner of the
performance of Owner's obligations under the Agreement which has
not been cured within thirty (30) days following the date of
default.
12.3 Releases. city agrees that upon written request of
Owner and payment of all fees and performance of the require-
ments and conditions required of Owner by this Agreement with
respect to the Property, or any portion thereof, City may
execute and deliver to Owner appropriate release(s) of further
obligations imposed by this Agreement in form and substance
acceptable to the San Diego county Recorder and title
insurance company, if any, or as may otherwise be necessary to
effect the release. City Manager shall not unreasonably
withhold approval of such release(s) .
12.4 Obliqation to Modify. City acknowledges that the
lenders providing financing for the Project may require certain
modifications to this Agreement and City agrees, upon request from
time to time, to meet with Owner and/or representatives of such
lenders to negotiate in good faith any such requirement for
modification. City will not unreasonably withhold its consent to
any such requested modification.
13. MODIFICATION OR SUSPENSION.
13.1 Modification to Aqreement by Mutual Consent. This
Agreement may be modified, from time to time, by the mutual consent
of the parties only in the same manner as its adoption by an
ordinance as set forth in California Government Code sections
65867, 65867.5 and 65868. The term, "this Agreement" as used in
this Agreement, will include any such modification properly
approved and executed.
13.2 Unforeseen Health or Safety circumstances. If, as
a result of facts, events, or circumstances presently unknown,
unforeseeable, and which could not have been known to the parties
prior to the commencement of this Agreement, city finds that
failure to suspend this Agreement would place the residents of City
in a severe and immediate emergency to their health or safety, the
City shall:
13.2.1 Notification of Unforeseen Circumstances.
Notify Developer of (i) city's determination; and (ii) the
reasons for City's determination, and all facts upon which
such reasons are based;
13.2.2 Notice of Hearinq. Notify Developer in
writing at least fourteen (14) days prior to the date, of the
date, time and place of the hearing and forward to Developer
a minimum of ten (10) days prior to the hearings described in
-18-
Section 13.2.3, all documents related to such determination
and reasons therefor; and
13.2.3 Hearinq. Hold a hearing on the deter-
mination, at which hearing Developer will have the right to
address the city council. At the conclusion of said hearing,
city may take action to suspend this Agreement as provided
herein. The City may suspend this Agreement if, at the
conclusion of said hearing, based upon the evidence presented
by the parties, the city finds failure to suspend would place
the residents of the City in a severe and immediate emergency
to their health or safety.
13.3 Chanqe in state or Federal Law or Requlations. If
any state or federal law or regulation enacted during the Term of
this Agreement, or the action or inaction of any other affected
governmental jurisdiction, precludes compliance with one or more
provisions of this Agreement, or requires changes in plans, maps,
or permits approved by city, the parties will act pursuant to
sections 13.3.1 and 13.3.2, below.
13.3.1 Notice; Meetinq. The party first becoming
aware of such enactment or action or inaction will provide the
other party(ies) with written notice of such state or federal
law or regulation and provide a copy of such law or regulation
and a statement regarding its conflict with the provisions of
this Agreement. The parties will promptly meet and confer in
a good faith and reasonable attempt to modify or suspend this
Agreement to comply with such federal or state law or regula-
tion.
13.3.2 Hearing. If an agreed upon modification
or suspension would not require an amendment to this Agree-
ment, no hearing shall be held. Otherwise, the matter of such
federal or state law or regulation will be scheduled for
hearing before the city. Fifteen (15) days' written notice of
such hearing shall be provided to Developer, and the City, at
such hearing, will determine and issue findings on the
modification or suspension which is required by such federal
or state law or regulation. Developer, at the hearing, shall
have the right to offer testimony and other evidence. If the
parties fail to agree after said hearing, the matter may be
submitted to mediation pursuant to subsection 13.3.3, below.
Any modification or suspension shall be taken by the affirma-
tive vote of not less than a majority of the authorized voting
members of the city. Any suspension or modification may be
subject to judicial review in conformance with subsection
16.19 of this Agreement.
13.3.3 Mediation of Disputes. In the event the
dispute between the parties with respect to the provisions of
this paragraph has not been resolved to the satisfaction of
both parties following the City hearing required by subsection
13.3.2, the matter shall be submitted to mediation prior to
the filing of any legal action by any party. The mediation
-19-
will be conducted by the San Diego Mediation Center; if San
Diego Mediation Center is unable to conduct the mediation, the
parties shall submit the dispute for mediation to the Judicial
Arbitration and Mediation Service or similar organization and
make a good faith effort to resolve the dispute. The cost of
any such mediation shall be divided equally between the
Developer and City.
13.4 Natural Communities Conservation Act (NCCP). The
parties recognize that Developer and the city are individually
negotiating agreements with the united States Fish and wildlife
Service ("USF&W") and the California Department of Fish and Game
pursuant to the ongoing regional effort to implement the Natural
Communities Conservation Act ("NCCP"), locally proposed to be
implemented through the Multi-species Conservation Program
("MSCP"). The parties further recognize that implementation of the
agreements may necessitate modification to the Existing Project
Approvals. The parties agree to utilize their best efforts to
implement these agreements, once executed, through the timely
processing of modifications to the Existing Project Approvals as
they relate to the Property. The Developer agrees to pay the
reasonable City cost for processing work related to the modifica-
tions. Once such modifications are obtained they shall be vested
to the same extent as Existing Project Approvals.
14. DISTRICTS. PUBLIC FINANCING MECHANISMS.
This Agreement and the Existing Project Approvals recognize
that assessment districts, community facility districts, or other
public financing mechanisms, may be necessary to finance the cost
of public improvements borne by this Project. If Developer,
pursuant to the Existing Project Approvals/Future Discretionary
Approvals, is required to install improvements through the use of
assessment districts, community facility districts, or other public
financing mechanisms, the City shall initiate and conclude
appropriate proceedings for the formation of such financing
district or funding mechanism, under applicable laws or ordinances.
Developer may request that the City utilize any other financing
methods which may become available under city laws or ordinances.
All costs associated with the consideration and formation of such
financing districts or funding mechanisms shall be paid by
Developer subject to reimbursement, as may be legally authorized
out of the proceeds of any financing district or funding mechanism.
15. ASSIGNMENT AND DELEGATION.
15.1 Assiqnment. Owner shall have the right to transfer
or assign its interest in the Property, in whole or in part,
to any persons, partnership, joint venture, firm, or corpora-
tion at any time during the Term of this Agreement without the
consent of City. Owner also shall have the right to assign or
transfer all or any portion of its interest or rights under
this Agreement to third parties acquiring an interest or
estate in the Property at any time during the Term of this
Agreement without the consent of city.
-20-
15.2 Deleqation. In addition, Owner shall have the
right to delegate or transfer its obligations under this
Agreement to third parties acquiring an interest or estate in
the property after receiving the prior written consent of the
city Manager, which consent shall not be unreasonably with-
held, delayed, or conditioned. Once the City Manager has
consented to a transfer, delivery to and acceptance by the
city Manager of an unqualified written assumption of Owner's
obligations under this Agreement by such transferee shall
relieve Owner of the obligations under this Agreement to the
extent the obligations have been expressly assumed by the
transferee. Such transferee shall not be entitled to amend
this Agreement without the written consent of the entity that,
as of the Effective Date, is Owner, which consent shall not be
unreasonably withheld, delayed, or conditioned. The entity
that is Owner as of the Effective Date, however, shall be
entitled to amend this Agreement without the written consent
of such transferee.
16. MISCELLANEOUS PROVISIONS.
16.1 Bindinq Effect of Aqreement. Except to the extent
otherwise provided in this Agreement, the burdens of this Agreement
bind, and the benefits of this Agreement inure, to City's and
Owner's successors-in-interest and shall run with the land.
16.2 Relationship of city and Owner. The contractual
relationship between city and Owner arising out of this Agreement
is one of independent contractor and not agency. This Agreement
does not create any third-party beneficiary rights.
16.3 Notices. All notices, demands, and correspondence
required or permitted by this Agreement shall be in writing and
delivered in person, or mailed by first-class or certified mail,
postage prepaid, addressed as follows:
If to City, to:
city of Chula Vista
276 Fourth Avenue
Chula vista, CA 91910
Attention: City Manager
If to Owner, to:
Gregory T. or Georgiana R. Smith
P. 0 Box 2786
Rancho Santa Fe, CA 92067
Attention: Gregory T. smith
with a copy to:
STEPHENSON, WORLEY, GARRATT,
SCHWARTZ, HEIDEL & PRAIRIE
101 West Broadway, Suite 1300
San Diego, CA 92101
Attention: Donald R. Worley, Esq.
-21-
City or Owner may change its address by g1v1ng notice in writing to
the other. Thereafter, notices, demands, and correspondence shall
be addressed and transmitted to the new address. Notice shall be
deemed given upon personal delivery, or, if mailed, two (2)
business days following deposit in the United states mail.
16.4 Rules of Construction. In this Agreement, the use
of the singular includes the plural; the masculine gender includes
the feminine; "shall" is mandatory; "may" is permissive.
16.5 Entire Aqreement. Waivers. and Recorded statement.
This Agreement constitutes the entire understanding and agreement
of city and Owner with respect to the matters set forth in this
Agreement. This Agreement supersedes all negotiations or previous
agreements between city and Owner respecting this Agreement. All
waivers of the provisions of this Agreement must be in writing and
signed by the appropriate authorities of City and Owner. Upon the
completion of performance of this Agreement, or its revocation or
termination, a statement evidencing completion, revocation, or
termination signed by the appropriate agents of City shall be
recorded in the Official Records of San Diego county, California.
16.6 proiect as a Private Undertakinq. It is
specifically understood by city and Owner that (i) the Project is
a private development; (ii) city has no interest in or
responsibilities for or duty to third parties concerning any
improvements to the Property until city accepts the improvements
pursuant to the provisions of the Agreement or in connection with
subdivision map approvals; and (iii) Owner shall have the full
power and exclusive control of the Property subject to the
obligations of Owner set forth in this Agreement.
16.7 Incorporation of Recitals. The recitals set forth
in Paragraph 1 of this Agreement are part of this Agreement.
16.8 Captions. The captions of this Agreement are for
convenience and reference only and shall not define, explain,
modify, construe, limit, amplify, or aid in the interpretation,
construction, or meaning of any of the provisions of this
Agreement.
16.9 Consent. Where the consent or approval of City or
Owner is required or necessary under this Agreement, the consent or
approval shall not be unreasonably withheld, delayed, or con-
ditioned.
16.10 Covenant of Cooperation.
cooperate and deal with each other in good
other in the performance of the provisions
City and Owner shall
faith, and assist each
of this Agreement.
16.11 Recordinq. The City Clerk shall cause a copy of
this Agreement to be recorded with the Office of the County
Recorder of San Diego County, California, wi thin ten (10) days
following the Effective Date.
-22-
16.12 Delay. Extension of Time for Performance. In
addition to any specific provision of this Agreement, performance
by either city or Owner of its obligations hereunder shall be
excused, and the Term of this Agreement and the Development Plan
extended, during any period of delay caused at any time by reason
of any event beyond the control of city or Owner which prevents or
delays and impacts City's or 'Owner's ability to perform obligations
under this Agreement, including, but not limited to, acts of God,
enactment of new conflicting federal or state laws or regulations
(example: listing of a species as threatened or endangered),
judicial actions such as the issuance of restraining orders and
injunctions, riots, strikes, or damage to work in process by reason
of fire, floods, earthquake, or other such casualties. If city or
Owner seeks excuse from performance, it shall provide written
notice of such delay to the other within thirty (30) days of the
commencement of such delay. If the delay or default is beyond the
control of city or Owner, and is excused, an extension of time for
such cause will be granted in writing for the period of the
enforced delay, or longer as may be mutually agreed upon.
16.13 Covenant of Good Faith and Fair Dealinqs. Noparty
shall do anything which shall have the effect of harming or
injuring the right of the other parties to receive the benefits of
this Agreement; each party shall refrain from doing anything which
would render its performance under this Agreement impossible; and
each party shall do everything which this Agreement contemplates
that such party shall do in order to accomplish the objectives and
purposes of this Agreement.
16.14 Operatinq Memorandum. The parties acknowledge that
the provisions of this Agreement require a close degree of
cooperation between City and Developer, and that the refinements
and further development of the Project may demonstrate that minor
changes are appropriate with respect to the details of performance
of the parties. The parties, therefore, retain a certain degree of
flexibility with respect to those items covered in general under
this Agreement. When and if the parties mutually find that minor
changes or adjustments are necessary or appropriate, they may
effectuate changes or adjustments through operating memoranda
approved by the parties. For purposes of this section 16.14, the
city Manager, or his designee, shall have the authority to approve
the operating memoranda on behalf of city. No operating memoranda
shall require notice or hearing or constitute an amendment to this
Agreement.
16.15 Time of Essence. Time is of the essence in the
performance of the provisions of this Agreement as to which time is
an element.
16.16 Amendment or Cancellation of Aqreement. This
Agreement may be amended from time to time or canceled by the
mutual consent of city and Owner only in the same manner as its
adoption, by an ordinance as set forth in California Government
Code section 65868, and shall be in a form suitable for recording
in the Official Records of San Diego County, California. The term
-23-
"Agreement" shall include any such amendment properly approved and
executed. City and Owner acknowledge that the provisions of this
Agreement require a close degree of cooperation between them, and
that minor or insubstantial changes to the Project and the
Development Plan may be required from time to time to accommodate
design changes, engineering changes, and other refinements.
Accordingly, changes to the-Project and the Development Plan that
do not result in a chang-e in use, an increase in density or
intensity of use, cause new or increased environmental impacts, or
violate any applicable health and safety regulations, may be
considered minor or insubstantial by the City Manager and made
without amending this Agreement.
16.17 Esto\,pel certificate. within 30 calendar days
following a written request by any of the parties, the other
parties to this Agreement shall execute and deliver to the
requesting party a statement certifying that (i) this Agreement is
unmodified and in full force and effect, or if there have been
modifications hereto, that this Agreement is in full force and
effect as modified and stating the date and nature of such
modifications; (ii) there are no known current uncured defaults
under this Agreement, or specifying the dates and nature of any
such default; and (iii) any other reasonable information requested.
The failure to deliver such a statement within such time shall
constitute a conclusive presumption against the party which fails
to deliver such statement that this Agreement is in full force and
effect without modification, except as may be represented by the
requesting party, and that there are no uncured defaults in the
performance of the requesting party, except as may be represented
by the requesting party.
16.18 Severability. If any material provision of this
Agreement is held invalid, this Agreement will be automatically
terminated unless within 15 days after such provision is held invalid
the party holding rights under the invalidated provision affirms the
balance of this Agreement in writing. This provision will not affect
the right of the parties to modify or suspend this Agreement by
mutual consent pursuant to Paragraph 12.4.
16.19 Institution of Leqal Proceeding. In addition to any
other rights or remedies, any party may institute legal action to
cure, correct, or remedy any default, to enforce any covenants or
agreements herein, or to enjoin any threatened or attempted violation
thereof; to recover damages for any default or to obtain any remedies
consistent with the purpose of this Agreement. Such legal actions
must be instituted in the Superior Court of the County of San Diego,
State of California.
16.20 Attornevs' Fees and Costs. If any party commences
litigation or other proceedings (including, without limitation,
arbitration) for the interpretation, reformation, enforcement, or
rescission of this Agreement, the prevailing party, as determined by
the court, will be entitled to its reasonable attorneys' fees and
costs.
-24-
16.21 Hold Harmless. Developer agrees to and shall hold
City, its officers, agents, employees and representatives harmless
from liability for damage or claims for damage for personal injury,
including death, and claims for property damage which may arise from
the direct or indirect operations of Developer or those of its
contractors, subcontractors, agents, employees or other persons
acting on Developer's behalf" which relate to the Project. Developer
agrees to and shall defend ~ity and its officers, agents, employees
and representatives from actions for damage caused or alleged to have
been caused by reason of Developer's activities in connection with
the Project. Developer agrees to indemnify, hold harmless, pay all
costs and provide a defense for city in any legal action filed in a
court of competent jurisdiction by a third party challenging the
validity of this Agreement. The provisions of this Section 16.21
shall not apply to the extent such damage, liability or claim is
caused by the intentional or negligent act or omission of City, its
officers, agents, employees or representatives.
-25-
SIGNATURE PAGE TO PRE-ANNEXATION DEVELOPMENT AGREEMENT.
Dated this
day of
, 1997
"CITY"
CITY OF CHULA VISTA
By:
Shirley Horton, Mayor
"OWNER"
GREGORY T. SMITH AND GEORGIANA R. SMITH
By:
Gregory T. Smith
By:
Georgiana R. Smith
I hereby approve the form and legality of the foregoing Pre-
Annexation Development Agreement this day of
1997.
John M. Kaheny, City Attorney
By:
Ann Moore
Assistant City Attorney
-26-
."
--
EXHIBIT A
/
I
~
,
L
~
~\r~
-.-
"--- --
-- -
-
I CH~~
PLANNING DEPARTME~'T
&I'~/II6
,..\T.'\,.-,....."'.....".,. ""'r"'\ 1""'~f"\,",,1"1 ^~, ^ C ~J.."IT~
c
z
w
t?
W
...J
.
o
z
C\S 5
+-' .-
II)+-'
;; ~-
t:Q .-
...C\St:
:c"5C\S
:E J: E>
>< () 0
W 'I- (l)
o~
~.s::
._ u
() t:
ro
~
c
'" '"
-"
VI t:
.- :J
> 0
.!!![I)
::J >.
.c-
UU
:;::
" r::
t: '"
...
"'-<C
...J"'
.- >-
>.1.)"
",aI::J
5~
z~
:r
~
J ~;
~: ill ~~ I !
(( u~ v::> ~ r
::r:=
u~
c;
o
w
c;
"
'"
"C
t:t:
"'0
E~
E~
eal'"
oc:'"
aI t: '" .
CX:<C~
'"
-
VI~
-0'"
>",0
",...1:
-alai
::J.t:::J
.r:: .Q.;:
U(/),E
-
t:
'P'"
4>E
III:::.
Ou
Po",,,,
0-'"
..."'''
n.o.<C
I
I
I
I
I
I
~g
II)
.E
.-
::
N-
.;"~&~;;~;f"
:....A;
.... ~
&
c
..,.
~
.....
~~
PRE-ANNEXATION DEVELOPMENT AGREEMENT
THIS PRE-ANNEXATION DEVELOPMENT AGREEMENT ("Agreement") is
made effective on the date hereinafter set forth below by and
between UNITED ENTERPRISES, LTD. ("Owner") and the CITY OF CHULA
VISTA ("city"), who agree as follows:
1. RECITALS.
following facts:
This Agreement is made with respect to the
1.1 Owner. United Enterprises is the owner of
approximately 136.47 acres of real property (the "Property")
located in the unincorporated area of the County of San Diego (the
"county"), described in Exhibit "A", attached hereto and
incorporated herein by this reference.
1. 1. 1 For approximately the last 40 years, the
Property has been used for rock quarry operations, including but
not limited to the mining and crushing of rock, the processing of
rock through a cement treated base plant, and the sale and trucking
of rock and cement treated base material (together, "Rock Quarry
Operations."). The use of the Property for Rock Quarry Operations
constitutes a legal, non-conforming use by virtue of the imposition
by the County, subsequent to the vesting of the use, of an
ordinance which would otherwise require that the use be subject to
a use permit.
1. 1. 2 In accordance with the Surface Mining and
Reclamation Act, the Rock Quarry Operations are currently being
operated pursuant to a reclamation plan approved by the County and
filed with the State Division of Mines and Geology (the
"Reclamation Plan").
1. 2 ci tv. The city of Chula Vista is a municipal
corporation and an incorporated city within the County.
1.3 Code Authorization and Acknowledqements.
1. 3.1 City is authorized pursuant to California
Government Code Sections 65864 through 65869.5 to enter into
development agreements for the purpose of establishing certainty
for both city and owners of real property in the development
process.
1.3.2 Government Code section 65865 expressly
authorizes a city to enter into a development agreement with any
person having a legal or equitable interest in real property in
unincorporated territory within the City's sphere of influence for
the development of property as provided in the Development
Agreement Law; provided that the agreement shall not become
operative unless annexation proceedings annexing the property to
the city are completed within the time specified by the agreement.
1.3.3 city enters into this Agreement pursuant to
the prov~s~ons of the California Government Code, its home-rule
powers, and applicable City ordinances. rules, regulations and
policies.
1.3.4 city and Owner acknowledge:
1.3.4.1 This Agreement assures adequate public
facilities at the time of development.
1.3.4.2 This Agreement assures development in
accordance with city's capital improvement plans.
1.3.4.3 This Agreement constitutes a current
exercise of city's police powers to provide certainty to Owner in
the development approval process by vesting the permitted use(s),
density, intensity of use, and the timing and phasing of
development, in exchange for Owner's entering into this Agreement
and for its commitment to support the Annexation described below.
1. 3.4.4 This Agreement will permit achievement
of City growth management goals and objectives.
1. 3.4.5 This Agreement will allow City to
realize significant economic, recreational, park, open space,
social, and public facilities benefits, some of which are of
regional significance.
1.3.4.6 This Agreement will provide and assure
that City receive sales tax revenues, increase in the property tax
base, residential housing and other development, sewer, water and
street facilities.
1.3.4.7 This Agreement will assure that city
receives public facilities in excess of project generated impacts
and such facilities shall be of supplemental size, number capacity
or length, which shall be provided earlier than could be provided
either by funds from the City or than would strictly be necessary
to mitigate project related impacts at any development phase.
1. 3.4.8 This Agreement will provide city
Owner's support to secure annexation of the lands depicted in
Exhibit "B", attached hereto and incorporated herein by this
reference.
1. 3 . 4 . 9 Because of the complexities of the
financing of the infrastructure, park, open space, and other
dedications, and regional and community facilities, and the
significant nature of such facilities, certainty in the development
process is an absolute necessity. The phasing, timing, and
development of pUblic infrastructure necessitate a significant
commi tment of resources, planning, and effort by Owner for the
2
public facilities financing, construction and dedication to be
successfully completed. In return for Owner's participation and
commitment to these significant contributions of private resources
for public purposes and for Owner's consent to the Annexation
described below, city is willing to exercise its authority to enter
into this Agreement and to make a commitment of certainty for the
development process for th~'Property.
1.3.4.10 In consideration of Owner's
agreement to provide the significant benefits and for Owner's
consent to the Annexation described below, City hereby grants Owner
assurances that it can proceed with development of the Property in
accordance with City's laws, ordinances, rules, regulations and
policies existing as of the effective date of this Agreement (as
defined in Paragraph 3 of this Agreement). Owner would not enter
into this Agreement or agree to provide the public benefits and
improvements described in this Agreement if it were not for the
commitment of city that the Property subject to this Agreement can
be developed in accordance with City's laws, ordinances, rules,
regulations, and policies existing as of the effective date of this
Agreement.
1.4 The Annexation. The City has applied to the Local
Agency Formation Commission ("LAFCO") for annexation of Sphere of
Influence Planning Area 1 "The Otay Parcel", Planning Area 2
"Inverted L" and the Mary Patrick Estate Parcel (see Attachment
"B") .
1.5 Sphere of Influence. A city application is pending
before LAFCO to have the Otay Valley Parcel included within city's
sphere of influence. On February 5, 1996 the Local Agency
Formation commission approved the inclusion of approximately 7,600
acres into the City Sphere of Influence (Sphere of Influence
Planning Area 2 and the norther two thirds of Planning Area 1), and
designated the Otay River Valley and Village 3 as special study
areas.
1.6 Owner Consent. ci ty desires to have the cooperation
and consent of Owner to include the Property in the Annexation in
order to better plan, finance, construct and maintain the
infrastructure for the Otay Valley Parcel; and Owner desires to
give its cooperation and consent, provided that it obtains certain
assurances, as set forth in this Agreement.
1.7 city Ordinance. On July 16, 1996, the city Council
adopted Ordinance No. 2681 approving this Agreement. The ordinance
becomes effective on August 16, 1996.
2. DEFINITIONS.
otherwise requires:
In this Agreement, unless the context
2.1 "Annexation" means the proposed annexation of that
3
portion of the otay Ranch into the City as depicted on Exhibit "B".
2.2 "Builder" means a third party to whom Owner has sold
or conveyed property within the Property for purposes of its
improvement for residential commercial, industrial or other uses.
2.3 "City" means the City of Chula vista, in the County
of San Diego, State of California.
2.4 "City Council" means the City of Chula vista city
Council.
2.5
California.
"County" means the County of San Diego, state of
2.6 "Development Impact Fee (DIF)" means fees imposed
upon new development pursuant to the city of Chula Vista
Development Impact Fee Program, for example, including but not
limited to the Transportation Development Impact Fee Program, the
Interim SR-125 Development Impact Fee Program, the Salt Creek Sewer
DIF and the Public Facilities DIF.
2.7 "Existing Project Approvals" means (i) the common
law vested right to continue use of the Property for Rock Quarry
Operations, (ii) all discretionary approvals affecting the Property
which have been approved or established by the County in
conjunction with, or preceding, the Effective Date consisting of,
but not limited to, the Reclamation Plan, all as may be amended
from time to time consistent with this Agreement; (iii) all
discretionary approvals affecting the Property which have been
approved or established by City in conjunction with, or preceding,
the Effective Date consisting of, but not limited to, the prezoning
of the Property to city's P-C Planned Community Zone, the otay
Ranch Reserve Fund Program adopted pursuant to city Resolution No.
18288, and the Chula vista General Plan open space designation, all
as may be amended from time to time consistent with this Agreement;
and (iv) all laws, rules, regulation, policies, ordinances or
standards as of the Effective Date which do not conflict with this
Agreement.
2.8 "Final Map(s)" means any final subdivision map for
all or any portion of the Property, other than the Super Block
Final Maps (A Maps).
2.9 "Future Discretionary Approvals" means all permits
and approvals by City granted after the Effective Date and
excluding Existing Project Approvals, including, but not limited
to: (i) grading permits, (H) site plan reviews; (Hi) design
guidelines and reviews; (iv) precise plan reviews; (v) subdivisions
of the Property or re-subdivisions of the Property previously
subdivided pursuant to the Subdivision Map Act; (vi) conditional
use permits; (vii) variances; (viii) encroachment permits; (ix)
4
sectional Planning Area plans; (x) zone reclassifications; (xi)
general plan amendments; (xii) any preserve conveyance plan; and
(xi) all other reviews, permits, and approvals of any type which
may be required from time to time to authorize public or private
on- or off-site facilities which are a part of the Project.
2.10 "Owner" means united Enterprises, Ltd., a
California limited partners nip, and its successors-in-interest.
2.11 "Planning Commission" means the Planning commission
of the City of Chula vista.
2.12 "Preserve Conveyance Plan" means a plan that
designates the specific parcel(s) of land or the amount of fees to
be paid and policies for the orderly conveyance of the otay Ranch
land to a preserve owner manager. The purpose of the plan is to
fulfill the obligation to convey resource sensitive land and to
mitigate the environmental impact of development on sensitive
species.
2.13 "Project" means the physical development of the
private and public improvements on the Property as provided for in
the Existing Project Approvals and as may be authorized by the City
in Future Discretionary Approvals.
2.14
Paragraph 1.1.
"Property" means the real property described in
2.15 "Public
those public facilities
Implementation Plan.
Facility"
described
or "Public Facilities" means
in the otay Ranch Facility
2.16 "Rock Quarry Operations" means the mining and
crushing of rock, the processing of rock through a cement treated
base plant, and the sale and trucking of rock and cement treated
base materials.
2.17 "Subdivision Map Act" means the California
Subdivision Map Act, Government Code section 66410, et seq., and
its amendments as may from time to time be adopted.
2.18 "Substantial Compliance" means that the party
charged with the performance of a covenant herein has sufficiently
followed the terms of this Agreement so as to carry out the intent
of the parties in entering into this Agreement.
2.19 The "Term" of this Agreement means the period
defined in Paragraph 3, below.
2.20 "Threshold" means the facility thresholds set forth
in the city's Municipal Code section 19.19.040.
5
2.21 "Ultimate Development" means the planning and
development of the Property for uses other than those related to
Rock Quarry Operations.
3. TERM. This Agreement shall become effective as a
development agreement upon the effective date of the Annexation
("the Effective Date"); provided, however, that if the Annexation
does not occur on or before Julv Jaaaary 1, 1997, this Agreement
shall be null and void unless the annexation proceedinqs have been
extended bY LAFCO. If the annexation proceedinqs have been
extended. this Aqreement shall become effective upon the effective
date of such Annexation: provided however. if the annexation does
not occur by the end of such extension(s). this Aqreement shall
become null and void. Any of the foregoing to the contrary
notwithstanding, from the date of the first reading of the
ordinance approving this Agreement, and unless or until this
Agreement becomes null and void, Owner shall be bound by the terms
of Paragraph.i. The Term of this Agreement for purposes other than
Paragraph .i shall begin upon the Effective Date, and shall continue
for a period of twenty (20) years ("the Term"). The Term shall
also be extended for any period of time during which issuance of
building permits to Owner is suspended for any reason other than
the default of Owner, and for a period of time equal to the period
of time during which any action by City or court action limits the
processing of future discretionary approvals, issuance of building
permits or any other development of the Property consistent with
this Agreement.
4. OWNER CONSENT TO ANNEXATION. Owner hereby consents to and
shall cooperate with the applications of City to declare that the
Otay Valley Parcel is within city's sphere of influence and to
annex the Otay Valley Parcel to the city; provided, however, that
Owner may withdraw such consent and withhold further cooperation if
the city, prior to the Effective Date, adopts rules, regulations,
ordinances, policies, conditions, environmental regulations,
phasing controls, exactions, entitlements, assessments or fees
applicable to and governing development of the Property which are
inconsistent with, or render impractical, development of the
Property according to the commitments of City set forth in
Paragraphs 5.1.1 through 5.1.4, below.
4.1 Landfill Nuisance Easements. Developer. as the
lienholder havinq an interest in property for which landfill
nuisance easements have been delivered to the County by SNMB. Ltd..
aqrees to execute subordination agreements. in a form acceptable to
the County. to ensure that such landfill nuisance easements have a
priority position over Developer's lien(s). The subordination
aqreements shall be delivered to the City prior to the second
readinq of the Ordinance approving this Aqreement. Notwithstandinq
the foreqoinq. if said subordination aqreement is not provided to
the City bY March 4. 1997. or if the County Board of Supervisors
does not accept or approve the landfill easements or the
6
subordination aqreement provided by the Developer. this Aqreement
shall be automatically terminated with neither party bearinq any
liability hereunder. If there is no second readinq of this
Aqreement. the city shall return said subordination agreements to
the Developer.
5. VESTED RIGHTS. Notwi thstanding any future action or
inaction of city during the term of this Agreement, whether such
action is by ordinance, resolution or policy of city, OWner shall
have a vested right, except as may be otherwise provided in this
Paragraph 5, to use and develop the Property in accordance with:
5.1 EXISTING AND RELATED USES.
5.1.1 Owner will be allowed to continue to use the
Property for Rock Quarry Operations for the Term of this Agreement
and for such longer period of time as is provided pursuant to the
Existing Project Approvals and any future permits and applications
issued by City;
5.1.2 city shall diligently process any
applications for related and concurrent uses of the Property
(including but not limited to asphalt and concrete batch plants,
sand and gravel operations, vehicle and equipment maintenance,
office/administrative functions, the manufacturing, sales, and
leasing of building and farm materials and equipment, and the
trucking of all such materials and equipment). city acknowledges
that such applications could include application(s) for general
plan amendment(s), re-zone(s), subdivision map(s), conditional use
permit(s), building permit(s), or other entitlements or permits;
5.1.3 City shall allow Owner to proceed with
planning of the Property for uses other than those related to Rock
Quarry Operations (the "Ultimate Development"), and for purposes of
entitlements the Property shall be treated on an equal basis,
first-come first-served, with other properties in the area of the
Annexation; and
5.1.4 To the extent any of the foregoing
commitments of City, issued at Owner's application or request, are
embodied in changes to rules, regulations, ordinances, pOlicies,
conditions, environmental regulations, phasing controls, exactions,
entitlements, assessments, and fees applicable to and governing
development of the Property, whether adopted before or after the
Effective Date, such changes but only to the extent they are
necessitated by Owner's application or request, shall be deemed
applicable to the Property without change to this Agreement.
5.2 Development of Property. The development of the
Property will be governed by this Agreement and Existing Project
Approvals and such development shall comply and be governed by all
rules, regulations, policies, resolutions, ordinances, and
7
standards in. effect as of the Effective Date subject to the
provisions of Paragraph 5.2.1 below. The City shall retain its
discretionary authority as to Future Discretionary Approvals,
provided however, such Future Discretionary Approvals shall be
regulated by the Existing Project Approvals, this Agreement, and
city rules, regulations, standards, ordinances, resolutions and
policies in effect on the Effective Date of this Agreement and
subj ect to Paragraph 5. 2 . 1.-
Notwithstanding the foregoing, city may make such changes to city's
Growth Management Ordinance applicable to the Project as are
reasonable and consistent with the purpose and intent of the
existing Growth Management Ordinance and which are generally
applicable to all private projects citywide or east of I-80S or
within a specific benefit, fee or reimbursement district created
pursuant to the California Government Code.
-5.2.1 New or Amended Rules. Requlations. policies.
standards. Ordinances and Resolutions. City may apply to the
Project, including Future Discretionary Approvals, new or amended
rules, laws, regulations, policies, ordinances, resolutions ,and
standards generally applicable to all private projects east of I-
805 or within a specific benefit, fee or reimbursement district
created pursuant to the California Government Code. The
application of such new rules, or amended laws, regulations,
resolutions, policies, ordinances and standards will not
unreasonably prevent or delay development of the Property to the
uses, densities or intensities of development specified herein or
as authorized by the Existing Project Approvals. City may also
apply change in City laws, regulations, ordinances, standards or
policies specifically mandated by changes in state or federal law
in compliance with Paragraph 13.3 herein. Owner may elect with
City's consent to have applied to the project any rules,
regulations, policies ordinances or standards enacted after the
date of this Agreement. Such an election has to be made in a
manner consistent with Paragraph 5.2.1 of this Agreement.
5.2.2 Modifications to Existinq proiect Approvals.
It is contemplated by the parties to this Agreement that city and
Owner may mutually seek and agree to modifications to the Existing
Project Approvals. Such modifications are contemplated as within
the scope of this Agreement, and shall, upon written acceptance by
all parties, constitute for all purposes an Existing Project
Approval. The parties agree that any such modifications may not
constitute an amendment to this Agreement nor require an amendment
to the Agreement.
5.2.3 Future Discretionary Approvals. It is
contemplated by the parties to this Agreement that City and Owner
may agree to Future Discretionary Approvals. The parties agree
that any such Future Approvals may not constitute an amendment to
this Agreement nor require an amendment to the Agreement.
8
5.3 Dedication and Reservation of land for Public
Pur?oses. Except as expressly required by this Agreement or the
Existing Project Approvals and Future Discretionary Approvals
(excepting dedications required within the boundaries of any parcel
created by the subsequent subdivision of the Property as required
by the Subdivision Map Act), no dedication or reservation of real
property within or outside the Property shall be required by City
in conjunction with the Project. Any dedications and reservations
of land imposed shall be in accordance with Paragraphs 7.2 and 7.8
herein.
5.4 Time for Construction and Completion of proj ect.
Because the California Supreme Court held in Pardee Construction
Company v. city of Camarillo (1984) 27 Cal.3d 465, that the failure
of the parties to provide for the timing of development resulted in
a later-adopted initiative restricting the timing of development to
prevail over such parties' agreement, it is the intention of the
parties to this Agreement to cure that deficiency by specifically
acknowledging that timing and phasing of development is completely
and exclusively governed by the Existing Project Approvals,
including the Chula vista Growth Management ordinance. The purpose
of the Chula vista Growth Management Ordinance is to "control the
timing and location of development by tying the pace of development
to the provision of public facilities and improvements to conform
to the City' s threshold standards." (Municipal Code section
19.09.010A.7) The findings in support of the Growth Management
Ordinance conclude that the ordinance "does not affect the number
of houses which may be built." (Municipal Code section
19.09.010B.3) Therefore, the parties acknowledge that the Chula
vista Growth Management Ordinance completely occupies the topic of
development timing and phasing and expressly precludes the adoption
of housing caps, urban reserves or any other means by which the
rate of development may be controlled or regulated. The City
agrees that the Owner shall be entitles to, apply for and receive
all permits necessary for the development of property, consistent
with the Growth Management ordinance, Existing Project Approvals,
Future Discretionary Approvals and this Agreement.
5.5 Benefit of vestinq. Nothing in this Agreement will
be construed as limiting or impairing Owner's earlier vested right,
if any, to proceed with the development and use of the Property
pursuant to the Federal and State Constitutions, and pursuant to
statutory and decisional law.
5.6 Vestinq of Entitlements. All rights conferred by
this Agreement vest with the Effective Date hereof. The approval
of Future Discretionary approvals shall not be deemed to limit
Owner's rights authorized by this Agreement, and once such
approvals are obtained they shall be vested to the same extent as
the Existing Project Approvals. Nothing in this Agreement shall be
construed to alter the date of the vesting of Owner's rights as
described in Paragraph 1.1.1 of this Agreement.
9
6. DEVELOPMENT PROGRAM.
6.1 processinq of Future Discretionarv Approvals. city
will accept and diligently process development applications and
requests for Future Discretionary Approvals, or other entitlements
with respect to the development and use of the Property, provided
said applications and requests are in accordance with this
Agreement. city costs for processing work related to the Project,
including hiring of additional City personnel and/or the retaining
of professional consultants, will be reimbursed to city by Owner.
6.2 Lenqth of Validity of Tentative Subdivision Maps.
Government Code section 66452.6 provides that tentative subdivision
map(s) may remain valid for a length up to the Term of this
Agreement. city agrees that tentative subdivision map(s) for the
Property shall be for a term of six (6) years and may be extended
by the city council for a period of time not to exceed a total of
twenty (20) years, and in no event beyond the Term of this
Agreement.
6.3 Pre-Final Map Development. If Owner desires to do
certain work on the Property after approval of a tentative map (for
example, grading) prior to the recordation of a final map, it may
do so by obtaining a grading and/or other required approvals from
city which are authorized by City prior to recordation of a final
map. Such permit shall be issued to owner, or its contractor, upon
Owner's application, approval, and provided Owner posts a bond or
other reasonably adequate security required by City in an amount to
assure the rehabilitation of the land if the applicable final map
does not record.
6.4 Final Maps.
6.4.1 "A" Maps and "B" Maps. If Owner so elects,
the City shall accept and process a master subdivision or parcel
map ("A" Map) showing "Super Block" lots and backbone street
dedications. "Super Block" lots shall be consistent with
subsequent sectional plan area plans, and shall not subdivide land
into individual single-family lots. All "Super Blocks" created
shall have access to dedicated public streets. city shall not
require improvement plans in order to record a final map for any
"A" Map lots, but City shall require bonding for the completion of
backbone streets prior to recording in an amount to be determined
by city. Following the approval by City of any final map for an
"A" Map lot and its recordation, Owner may convey the "Super Block"
lot. The buyer of a "Super Block" lot shall then process final
improvement plans and grading plans and a final map ("B" Map) for
each "Super Block" lot which City shall process. The "B" Maps
shall be in substantial conformance with the related approved "A"
Map. In the instance of the mUlti-family dwelling unit areas, a
separate tentative subdivision map may be submitted to City and the
"B" Map(s) for these areas may be submitted to City after the
10
Planning commission approves said tentative subdivision map.
6.4.2 Recordation of Final Subdivision Map in Name
of Builder or Third Party. Owner may, if it so elects, convey to
a Builder or third party any "Super Block" lot(s) shown on the
recorded Master Final Map. In such case, the Builder or third
party will (i) process final improvement and grading plans and a
final map for each such "Super Block" lot, which map City shall
accept and process as subsequent phases in a multi-phase project,
(ii) enter into a sUbdivision improvement agreement with city with
respect to the subdivision improvements which are required for such
"Super Block" lot, and (iii) provide security and insurance
satisfactory to city for the completion of the subdivision
improvements.
6.4.3 Recordation of final Subdivision Map in
Owner's Name: Transfer of Obligations Under Subdivision Improvement
Agreement(s). If Owner so elects, it may defer the conveyance of
any "super Block" lot to a Builder or third party until after the
final map of such "Super Block" lot has been recorded. If Owner
elects to proceed in this manner, it will enter into city's
standard subdivision ill\provement agreement(s) with City for the
improvements required as a condition to the approval of such
map(s). Upon sale to a Builder or third party, if such Builder or
third party assumes Owner's obligations under the improvement
agreement and provides its own security and insurance for the
completion of the sUbdivision improvements as approved by the City,
Owner shall be released from liability under the subdivision
improvement agreement(s) and Owner's security shall be released.
6.4.4 Transfer of Riqhts and Obliqations of
Development. Whenever Owner conveys a portion of the Property, the
rights and obligations of this Agreement shall transfer in
accordance with Paragraph 15 herein.
7. OWNER'S OBLIGATIONS.
7.1 Condition to Owner's Obligations to Dedicate. Fund
or Construct Public Facilities. Owner agrees to develop or provide
the public improvements, facilities, dedications, or reservations
of land and satisfy other exactions conditioning the development of
the Property which are set forth hereinbelow. The obligations of
the Owner pursuant to this Agreement are conditioned upon: (i) City
not being in default of its obligations under this agreement; and
(ii) city not preventing or unreasonably delaying the development
of the property; and (iii) the Agreement having not been suspended
in response to changes in state or federal law; and (iv) City's
obligations having not been suspended pursuant to Paragraph 13.2.
Purposes.
reserved,
7.2 Dedications and Reservations of Land for Public
The policies by which property will be required to be
dedicated or improved for public purposes are identified
11
in the Existing Project Approvals. A more precise delineation of
the property to be preserved, dedicated or improved for public
purposes shall occur as part of Future Discretionary Approvals,
consistent with the Existing Project Approvals.
7.3 Growth Manaqeinent Ordinance. Owner shall commit the
public facilities and city shall issue building permits as provided
in this Paragraph. city shall have the right to withhold the
issuance of building permits any time after city reasonably
determines a Threshold has been exceeded, unless and until Owner
has mitigated the deficiency in accordance with city's Growth
Management Ordinance.
Owner agrees that building permits may be withheld where the public
facilities described in the Existing Project Approvals/Future
Discretionary Approvals required for a particular Threshold have
not been committed.
In the event a Threshold is not met and future building permit
issuance may be withheld, the notice provisions and procedures
contained in section 19.09 .100C of the Municipal Code will be
followed. In the event the issuance of building permits is
suspended pursuant to the provisions herein, such suspension shall
not constitute a breach of the terms of this Agreement by Owner.
Furthermore, any such suspension which is not caused by the actions
or omissions of Owner, shall toll the term of this Agreement as
provided for in section 16.12 of this Agreement, and suspend
Owner's obligations pursuant to this Agreement.
7.3.1 Required Condemnation. ci ty and Owner
recognize that certain of the public facilities identified in the
Existing Project Approvals/Future Discretionary Approvals and
required to comply with a Threshold are located on properties which
neither Owner nor city has, or will have, title to or control of.
City shall identify such property or properties and at the time of
filing of the final map commence timely negotiations or, where the
property is within City's jurisdiction, commence timely proceedings
pursuant to Title 7 (commencing with S 1230.010) of Part 3 of the
Code of civil Procedure to acquire an interest in the property or
properties. Owner's share of the cost invol ved in any such
acquisition shall be based on its proportionate share of the public
facility as defined in the Existing project Approvals/Future
Discretionary Approvals. Nothing in this Agreement shall be deemed
to preclude City from requiring Owner to pay the cost of acquiring
such off-site land. For that portion of the cost beyond Owner's
fair share responsibility, City shall take all reasonable steps to
establish a procedure whereby owner is reimbursed for such costs
beyond its fair share.
7.3.2 Information Reqardinq Thresholds. Upon
Owner's written requests of the city Manager, City will provide
12
Owner with information regarding the current status of a Threshold.
Owner shall be responsible for any staff costs incurred in
providing said written response.
7.4 Improvements Required by a Subdivision Map. As may
be required pursuant to the terms of a subdivision map, it shall be
the responsibility of owner,to construct the improvements required
by a subdivision map. Where Owner is required to construct a
pUblic improvement which has been identified as the responsibility
of another party or to provide public improvements of supplemental
size, capacity, number or length benefiting property not within the
subdivision, city shall process a reimbursement agreement to Owner
in accordance with Article 6 of Chapter 4 of the Subdivision Map
Act, commencing with Government Code section 66485, and Paragraph
7.5, below.
7.5 Facili ties Which Are the Obliqations of Another
Party. or Are of Excessive size. capacity. Lenqth or Number. Owner
may offer to advance monies and/or construct public improvements
which are the responsibility of another land owner, or outside
City's jurisdictional boundaries, or which are of supplemental
size, capacity, number or length for the benefit of land not within
the Property. City, where requesting such funding or construction
of oversized public improvements, shall consider after a public
hearing, contemporaneous with the imposition of the obligation, the
formation of a reimbursement district, assessment district,
facility benefit assessment, or reimbursement agreement or other
reimbursement mechanism.
7.6 pioneerinq of Facilities. To the extent Owner
itself constructs (i.e., "Pioneers") any pUblic facilities or
public improvements which are covered by a DIF Program, Owner shall
be given a credit against DIFs otherwise payable, subject to city's
Director of Public Works reasonable determination that such costs
are allowable under the applicable DIF Program. It is specifically
intended that Owner be given DIF credit for the DIF Program
improvements it makes. The fact that such improvements may be
financed by an assessment district or other financing mechanism,
shall not prevent DIF credit from being given to the extent that
such costs are allowed under the applicable DIF Program.
7.7 Insurance. Owner shall name City as additional
insured for all insurance policies obtained by Owner for the
Project as pertains to the Owner's activities and operation on the
Project.
7.8 Other Land Owners. Owner hereby agrees to dedicate
adequate rights-of-way within the boundaries of the Property for
other land owners to "Pioneer" public facilities on the Property;
provided, however, as follows: (i) dedications shall be restricted
to those reasonably necessary for the construction of facilities
identified in city's adopted public facility plans; (ii) this
13
provision shall not be binding on the successors-in-interest or
ass~gnees of Owner following recordation of the final "Super Block"
or "A" Map; and (iii) City shall use its reasonable best efforts to
obtain agreements similar to this Paragraph from other Owners an to
obtain equitable reimbursement for Owner for any excess
dedications.
8. DEVELOPMENT IMPACT FEES.
8.1 Existinq Development Impact Fee Proqram Payments.
Owner shall pay to city a DIF, or construct improvements in lieu of
payment, for improvements which are conditions of a tentative
subdivision map upon the issuance of building permit(s), or at a
later time as specified by City ordinance, the Subdivision Map Act,
or Public Facility Financing Plan (PFFP). The DIF will be in the
amount in effect at the time payment is made and may only be
increased pursuant to Paragraph 8.6 herein.
8.2 Other Undevelo?ed Properties. City will use its
reasonable best efforts to impose and collect, or cause the
imposition and collection of, the same DIF program on all the
undeveloped real properties which benefit from the provision of the
public facility through the DIF program, or provided as a condition
of Project Approvals.
8.3 Use of Development Impact Fee Proqram. The DIF
amounts paid to city by Owner and others with respect to the Area
of Benefit shall be placed by City in a capital facility fund
account established pursuant to California Government Code sections
66000-66009. city shall expend such funds only for the projects
described in the adopted fee program as may be modified from time
to time. city will use its reasonable best efforts to cause such
project to be completed as soon as practicable; however, city shall
not be obligated to use its general fund for such projects.
8.4 wi thholdinq of Permits. Owner agrees that City
shall have the right to withhold issuance of the building permit
for any structure or improvement on the Property unless and until
the DIF is paid for such structure or improvement.
8.5 Development Impact Fee Credit. Upon the completion
and acceptance by City of any public facility, City shall
immediately credit Owner with the appropriate amount of cash
credits ("EDU's) as determined by Owner and city. However, if the
improvements are paid for through an Assessment District, city
shall credit the Owner with the appropriate number of Equivalent
Dwelling Unit Credits (EDU's). Owner shall be entitled to apply
any and all credits accrued pursuant to this Paragraph toward the
required payment of future DIF for any phase, stage or increment of
development of the Project.
8.6
Modification of Development Impact Fees.
The
14
parties recognize that from time to time during the duration of
this Agreement it will be necessary for city to update and modify
its DIF fees. Such reasonable modifications are contemplated by
City and Owner and shall not constitute a modification to this
Agreement so long as: (i) the modification incorporates the
reasonable costs of providing facilities identified in the Existing
project Approvals; (ii) are ,based upon methodologies in substantial
compliance with the methodology contained in the existing DIF
programs; or other methodology approved by the city Council
following a public hearing; and (iii) comply with the provisions of
Government Code sections 66000-66009.
8.7 Standards for Financinq Obliqations o~ Owner. In
connection with the development of the Property, the following
standards regarding the financing of public improvements shall
apply:
8.7.1 Owner shall participate in the DIF Program
for the otay Valley Parcel with other owners in proportion to the
total dwelling units or equivalent dwelling units allowed on the
Property as compared with the total of such units allowed on
properties in that particular DIF or by some other equitable
methodology decided by the city Council.
8.7.2 city shall diligently pursue the requirements
that the Eastern Territories' DIF requires offsite third parties
and adjacent jurisdictions to bear their fair share of all otay
River Valley crossings.
9. CITY OBLIGATIONS.
9.1 Urban Infrastructure. To the extent it is within
the authority of City to provide, city shall reasonable accommodate
urban infrastructure to the Project, consistent with Existing
Project Approvals. Where it is necessary to utilize city property
to provide urban infrastructure consistent with the Existing
Project Approvals, city agrees to make such land available for such
uses, provided that city if it so chooses is compensated at Fair
Market Value for the property. To the extent that the provision of
urban infrastructure is within the authority of another public or
quasi-public agency or utility, City agrees to fully cooperate with
such agency or agencies to accommodate the urban infrastructure,
consistent with Existing Project Approvals. Urban infrastructure
shall include, but not be limited to gas, electricity, telephone,
cable and facilities identified in the Otay Ranch Facility
Implementation Plan.
9.2 Sewer Capacity. city agrees to provide adequate
sewer capacity for the Project upon the payment of ordinary and
necessary sewer connection, capacity and/or service fees.
10. ANNUAL REVIEW.
15
10.1 City and Owner Responsibilities. City will, at
least every twelve (12) months during the Term of this Agreement,
pursuant to California Government Code Section 65865.1, review the
extent of good faith substantial compliance by Owner with the terms
of this Agreement. Pursuant to California Government Code section
65865.1, as amended, Owner shall have the duty to demonstrate by
substantial evidence its good faith compliance with the terms of
this Agreement at the periodic review. Either City or Owner may
address any requirement of the Agreement during the review.
10.2 Evidence. The parties recognize that this
Agreement and the documents incorporated herein could be deemed to
contain hundreds of requirements and that evidence of each and
every requirement would be a wasteful exercise of the parties'
resources. Accordingly, Owner shall be deemed to have satisfied
its good faith compliance when it presents evidence of substantial
compliance with the major provisions of this Agreement.
Generalized evidence or statements shall be accepted in the absence
of any evidence that such evidence is untrue.
10.3 Review Letter. If Owner is found to be in
compliance with this Agreement after the annual review, City shall,
within forty-five (45) days after Owner's written request, issue a
review letter in recordable form to Owner ("Letter") stating that
based upon information known or made known to the Council, City
Planning Commission and/or the city Planning Director, this
Agreement remains in effect and Owner is not in default. Owner may
record the Letter in the Official Records of the County.
10.4 Failure of Periodic Review. City's failure to
review at least annually Owner's compliance with the terms and
conditions of this Agreement shall not constitute, or be asserted
by city or Owner as, a breach of the Agreement.
11. DEFAULT.
11.1 Events of Default. A default under this Agreement
shall be deemed to have occurred upon the happening of one or more
of the following events or conditions:
11.1.1 A warranty, representation or statement made
or furnished by Owner to city is false or proves to have been false
in any material respect when it was made.
11. 1. 2 A finding and determination by City made
following a periodic review under the procedure provided for in
California Government Code section 65865.1 that upon the basis of
substantial evidence Owner has not complied in good faith with one
or more of the terms or conditions of this Agreement.
requested
11. 1. 3
development
city does not accept, review, or consider
permits or entitlements submitted in
16
accordance with the provisions of this Agreement.
11.1.4 Any other act or omission by City or Owner
which materially interferes with the terms of this Agreement.
11.2 Procedure Upon Default.
11.2.1 Upon the occurrence of default by the other
party, city or Owner may terminate this Agreement after providing
the other party thirty (30) days written notice specifying the
nature of the alleged default and, when appropriate, the manner in
which said default may be satisfactorily cured. After proper
notice and expiration of said thirty (30) day cure period without
cure, this Agreement may be terminated. In the event that City's
or Owner's default is not subject to cure within the thirty (30)
day period, city or Owner shall be deemed not to remain in default
in the event that City or Owner commences to cure within such
thirty (30) day period and diligently prosecuted such cure to
completion. Failure or delay in giving notice of any default shall
not constitute a waiver of any default, nor shall it change the
time of default. Notwithstanding any other provision of this
Agreement, city reserves the right to formulate and propose to
Owner options for curing any defaults under this Agreement for
which a cure is not specified in this Agreement.
11.2.2 City does not waive any claim of defect in
performance by Owner if, on periodic review, city does not propose
to modify or terminate this Agreement.
11. 2.3 Subject to Paragraph 16.12 of this Agreement,
the failure of a third person shall not excuse a party's
nonperformance under this agreement.
11. 2 . 4 ^ll other remedie::l ;:lt l;:lw or in equity
which ;:lre conDi::ltent with thc provi::lion::l of thiD ^greement ;:lre
;:lv;:lil;:lble to City ;:lnd Owner to pur::luc in the event there i::l ;:l
ercaeh. In the event of a default by either party to this
Agreement. the parties shall have the remedies of specific
performance. mandamus. injunction and other equitable remedies
without havinq to first prove there is an inadequate remedy at law.
Neither party shall have the remedy of monetary damaqes aqainst the
other; provided. however. that the award of costs of litiqation and
attorneys' fees shall not constitute damaqe.
12. ENCUMBRANCES AND RELEASES ON PROPERTY.
12.1 Discretion to Encumber. This Agreement shall not
prevent or limit Owner in any manner at Owner's sole discretion,
from encumbering the Property, or any portion of the Property, or
any improvement on the Property, by any mortgage, deed of trust, or
other security device securing financing with respect to the
Property or its improvement.
17
12.2 Mortqaqee Riqhts and Obliqations. The mortgagee of
a mortgage or beneficiary of a deed of trust encumbering the
Property, or any part thereof, and their successors and assigns
shall, upon written request to City, be entitled to receive from
city written notification of any default by Owner of the
performance of Owner's obligations under the Agreement which has
not been cured within thirty. (30) days following the date of
defaul t. -
12.3 Releases. Ci ty agrees that upon written request of
Owner and payment of all fees and performance of the requirements
and conditions required of Owner by this Agreement with respect to
the Property, or any portion thereof, City may execute and deliver
to Owner appropriate release(s) of further obligations imposed by
this Agreement in form and substance acceptable to the San Diego
County Recorder and title insurance company, if any, or any may
otherwise be necessary to effect the release. City Manager shall
not unreasonably withhold approval of such release(s) .
12.4 Obliqation to Modifv. City acknowledges that the
lenders providing financing for the Project may require certain
modifications to this Agreement and city agrees, upon request from
time to time, to meet with Owner and/or representatives of such
lenders to negotiate in good faith any such requirements for
modification. City will not unreasonably withhold its consent to
any such requested modification.
13. MODIFICATION OR SUSPENSION.
13.1 Modification bY Mutual Consent. This Agreement may
be modified, from time to time, by the mutual consent of the
parties only in the same manner as its adoption by an ordinance as
set forth in California Government Code sections 65867, 65867.5 and
65868. The term, "this Agreement" as used in this Agreement, will
include any such modification properly approved and executed.
13.2 Unforeseen Health. Safety or General Welfare
Circumstances. If, as a result of facts, events, or circumstances
presently unknown, unforeseeable, and which could not have been
known to the parties prior to the commencement of this Agreement,
City finds that failure. to suspend this Agreement would place the
residents of City in a severe and immediate emergency to their
health, safety, or general welfare, City shall:
13.2.1 Notification of Unforeseen Circumstances.
Notify Owner of (i) City's determination; and (ii) the reasons for
City's determination, and all facts upon which such reasons are
based;
13.2.2 Notice of Hearing. Notify Owner in writing
at least fourteen (14) days prior to the date, of the date, time
and place of the hearing and forward to Owner a minimum of ten (10)
18
days prior to the hearings described in Paragraph 13.2.3, all
documents related to such determination and reasons therefore;
13.2.3 Hearinq. Hold a hearing on the
determination, at which hearing Owner will have the right to
address the City Council. At the conclusion of said hearing, City
may take action to suspend this Agreement as provided herein. City
may suspend this Agreement-if, at the conclusion of said hearing,
based upon the evidence presented by the parties, City finds
failure to suspend would place the residents of City in a severe
and immediate emergency to their health, safety, or general
welfare.
13.3 Chanqe in state or Federal Law or Requlations. If
any state or federal law or regulation enacted during the Term of
this Agreement, or the action or inaction of any other affected
governmental jurisdiction, precludes compliance with one or more
provisions of this Agreement, or requires changes in plans, maps,
or permits approved by city, the parties will act pursuant to
paragraphs 13.3.1 and 13.3.2, below.
13.3.1 Notice: Meetinq. The party first becoming
aware of such enactment or action or inaction will provide the
other party(ies) with written notice of such state or federal law
or regulation and provide a copy of such law or regulation and a
statement regarding its conflict with the provisions of this
Agreement. The parties will promptly meet and confer in a good
faith and reasonable attempt to modify or suspend this Agreement to
comply with such federal or state law or regulation.
13.3.2 Hearinq. If an agreed upon modification or
suspension would not require an amendment to this Agreement, no
hearing shall be held. Otherwise, the matter of such federal or
state law or regulation will be scheduled for hearing before city.
Fifteen (15) days' written notice of such hearing shall be provided
to Owner, and City, at such hearing, will determine and issue
findings on the modification or suspension which is required by
such federal or state law or regulation. Owner, at the hearing,
shall have the right to offer testimony and other evidence. If the
parties fail to agree after said hearing, the matter may be
submitted to mediation pursuant to paragraph 13.3.3, below. Any
modification or suspension shall be taken by the affirmative vote
of not less than a majority of the authorized voting members of
City. Any suspension or modification may be subject to judicial
review in conformance with Paragraph 16.19 of this Agreement.
13.3.3 Mediation to Disputes. In the event the
dispute between the parties with respect to the provisions of this
paragraph has not been resolved to the satisfaction of both parties
following city hearing required by paragraph 13.3.2, the matter
shall be submitted to mediation prior to the filing of any legal
action by any party. The mediation will be conducted by the San
19
Diego Mediation Center; if San Diego Mediation Center is unable to
conduct the mediation, the parties shall submit the dispute for
mediation to the Judicial Arbitration and Mediation Service or
similar organization and make a good faith effort to resolve the
dispute. The cost of any such mediation shall be divided equally
between Owner and city.
14. DISTRICTS. PUBLIC FINANCIAL MECHANISMS.
This Agreement and the Existing Project Approvals recognize that
assessment districts, community facility districts, or other public
financing mechanisms, may be necessary to finance the cost of
public improvements borne by this Project. If Owner, pursuant to
the Existing project Approvals/Future Discretionary Approvals, is
required to install improvements through the use of assessment
districts, community facility districts, or other public financing
mechanisms, city shall initiate and conclude appropriate
proceedings for the formation of such financing district or funding
mechanism, under applicable laws or ordinances. Owner may request
that City utilize any other financing methods which may become
available under city laws or ordinances. All costs associated with
the consideration and formation of such financing districts or
funding mechanisms shall be paid by Owner subject to reimbursement,
as may be legally authorized out of the proceeds of any financing
district or funding mechanism.
15. ASSIGNMENT AND DELEGATION.
15.1 Assiqnment. Owner shall have the right to transfer
or assign its interest in the Property, in whole or in part, to any
persons, partnership, joint venture, firm, or corporation at any
time during the Term of this Assignment with the consent of City.
owner also shall have the right to assign or transfer all or any
portion of its interest or rights under this Agreement to third
parties acquiring an interest or estate in the property at any time
during the Term of this Agreement with the consent of city.
15.2 Delegation. In addition, Owner shall have the
right to delegate or transfer its obligations under this Agreement
to third parties acquiring an interest or estate in the Property
after receiving the prior written consent of the city Manager,
which consent shall not be unreasonably withheld, delayed, or
conditioned. Once the city Manager has consented to a transfer,
delivery to and acceptance by the City Manager of an unqualified
written assumption of Owner's obligations under this Agreement by
such transferee shall relieve Owner of the obligations under this
Agreement to the extent the obligations have been expressly assumed
by the transferee. Such transferee shall not be entitled to amend
this Agreement without the written consent of the entity that, as
of the Effective Date, is Owner, which consent shall not be
unreasonably withheld, delayed, or conditioned. The entity that is
Owner as of the Effective Date, however, shall be entitled to amend
20
this Agreement without the written consent of such transferee.
16. MISCELLANEOUS PROVISIONS.
16.1. Bindinq Effect of Aqreement. Except to the extent
otherwise provided in this Agreement, the burdens of this Agreement
bind, and the benef its of -this Agreement inure, to City's and
Owner's successors-in-interest and shall run with the land.
16.2 Relationship of city and Owner. The contractual
relationship between City and Owner arising out of this Agreement
is one of independent contractor and not agency. This Agreement
does not create any third-party beneficiary rights.
16.3 Notices. All notices, demands, and correspondence
required or permitted by this Agreement shall be in writing and
delivered in person, or mailed by first-class or certified mail,
postage prepaid, addressed as follows:
If to city, to:
city of Chula Vista
276 Fourth Avenue
Chula Vista, CA 91910
Attn: City Manager
If to owner, to:
united Enterprises, Ltd.
1007 Fifth Avenue, suite 2000
San Diego, CA 92101
Attn: Mr. Patrick Patek
with a copy to:
Solomon Ward Seidenwurm & Smith
401 "B" Street, Suite 1200
San Diego, CA 92101
Attn: Cynthia L. Eldred, Esq.
city or Owner may change its address by giving notice in writing to
the other. Thereafter, notices, demands, and correspondence shall
be addressed and transmitted to the new address. Notice shall be
deemed given upon personal delivery, or, if mailed, two (2)
business days following deposit in the united States mail.
16.4 Rules of Construction. In this Agreement, the use
of the singular includes the plural; the masculine gender includes
the feminine; "shall" is mandatory; "may" is permissive.
16.5 Entire Aqreement. Waivers, and Recorded statement.
This Agreement constitutes the entire understanding and agreement
of city and Owner with respect to the matters set forth in this
Agreement. This Agreement supersedes all negotiations or previous
agreements between city and Owner respecting this Agreement. All
waivers of the provisions of this Agreement must be in writing and
signed by the appropriate authorities of City and Owner. upon the
completion of performance of this Agreement, or its revocation or
21
termination, a statement evidencing completion, revocation, or
termination signed by the appropriate agents of City shall be
recorded in the Official Records of San Diego county, California.
16.6 proiect as a Private Undertaking. It is
specifically understood by city and Owner that (i) the Project is
a private development; (ii) city has no interest in or
responsibilities for or duty to third parties concerning any
improvements to the property until City accepts the improvements
pursuant to the provisions of the Agreement or in connection with
subdivision map approvals; and (iii) Owner shall have the full
power and exclusive control of the Property subject to the
obligations of Owner set forth in this Agreement.
16.7 Incorporation of Recitals. The recitals set forth
in Paragraph 1 of this Agreement are part of this Agreement.
16.8 captions. The captions of this Agreement are for
convenience and reference only and shall not define, explain,
modify, construe, limit, amplify, or aid in the interpretation,
construction, or meaning of any of the provisions of this
Agreement.
16.9 Consent. Where the consent or approval of City or
Owner is required or necessary under this Agreement, the consent or
approval shall not be unreasonably withheld, delayed, or
conditioned.
16.10 Covenant of Cooperation.
cooperate and deal with each other in good
other in the performance of the provisions
city and Owner shall
faith, and assist each
of this Agreement.
16.11 Recordinq. The City Clerk shall cause a copy of
this Agreement to be recorded with the Office of the County
Recorder of San Diego County, California, wi thin ten (10) days
following the Effective Date.
16.12 Delay. Extension of Time for Performance. In
addition to any specific provision of this Agreement, performance
by either City or Owner of its obligations hereunder shall be
excused, and the Term of this Agreement and the Development Plan
extended, during any period of delay caused at any time by reason
of any event beyond the control of City or Owner which prevents or
delays and impacts city's or Owner's ability to perform obligations
under this Agreement, including, but not limited to, acts of God,
enactment of new conflicting federal or state laws or regulations
(example: listing of a species as threatened or endangered),
judicial actions such as the issuance of restraining orders and
injunctions, riots, strikes, or damage to work in process by reason
of fire, floods, earthquake, or other such casualties. If City or
Owner seeks excuse from performance, it shall provide written
notice of such delay to the other within thirty (30) days of the
22
commencement of such delay. If the delay or default is beyond the
control of City or Owner, and is excused, an extension of time for
such cause will be granted in writing for the period of the
enforced delay, or longer as may be mutually agreed upon.
16.13 Covenant of Good Faith and Fair Dealings. No
party shall do anything which shall have the effect of harming or
injuring the right of the other parties to receive the benefits of
this Agreement; each party shall refrain from doing anything which
would render its performance under this Agreement impossible; and
each party shall do everything which this Agreement contemplates
that such party shall do in order to accomplish the objectives and
purposes of this Agreement.
16.14 Operatinq Memorandum. The parties acknowledge
that the provisions of this Agreement require a close degree of
cooperation between City and Owner, and that the refinements and
further development of the Project may demonstrate that minor
changes are appropriate with respect to the details of performance
of the parties. The parties, therefore, retain a certain degree of
flexibility with respect to those items covered in general under
this Agreement. When and if the parties mutually find that minor
changes or adjustments are necessary or appropriate, they may
effectuate changes or adjustments through operating memoranda
approved by the parties. For purposes of this Paragraph 16.14, the
city Manger, or his designee, shall have the authority to approve
the operating memoranda on behalf of City. No operating memoranda
shall require notice or hearing or constitute an amendment to this
Agreement.
16.15 Time of Essence. Time is of the essence in the
performance of the provisions of this Agreement as to which time is
an element.
16.16 Amendment or Cancellation of Aqreement. This
Agreement may be amended from time to time or canceled by the
mutual consent of City and Owner only in the same manner as its
adoption, by an ordinance as set forth in California Government
Code Section 65868, and shall be in a form suitable for recording
in the Official Records of San Diego County, California. The term
"Agreement" shall include any such amendment properly approved and
executed. City and Owner acknowledge that the provisions of this
Agreement require a close degree of cooperation between them, and
that minor or insubstantial changes to the project and the
Development Plan may be required from time to time to accommodate
design changes, engineering changes, and other refinements.
Accordingly, changes to the Project and the Development Plan that
do not result in a change in use, an increase in density or
intensity of use, cause new or increased environmental impacts, or
violate any applicable health and safety regulations, may be
considered minor or insubstantial by the City Manager and made
without amending this Agreement.
23
16.17 Estoppel Certificate. Within 30 calendar days
following a written request by any of the parties, the other
parties to this Agreement shall execute and deliver to the
requesting party a statement certifying that (i) this Agreement is
unmodified and in full force and effect, or if there have been
modifications hereto, that this Agreement is in full force and
effect as modified and stating the date and nature of such
modifications; (ii) there are no known current uncured defaults
under this Agreement, or specifying the dates and nature of any
such default; and (iii) any other reasonable information requested.
The failure to deliver such a statement within such time shall
constitute a conclusive presumption against the party which fails
to deliver such statement that this Agreement is in full force and
effect without modification, except as may be represented by the
requesting party, and that there are no uncured defaults in the
performance of the requesting party, except as may be represented
by the requesting party.
16.18 Severability. If any material provision of this
Agreement is held invalid, this Agreement will be automatically
terminated unless within 15 days after such provision is held
invalid the party holding rights under the invalidated provision
affirms the balance of this Agreement in writing. This provision
will not affect the right of the parties to modify or suspend this
Agreement by mutual consent pursuant to Paragraph 12.4.
16.19 Institution of Leqal Proceedinq. In addition to
an other rights or remedies, any party may institute legal action
to cure, correct, or remedy any default, to enforce any covenants
or agreements herein, or to enjoin any threatened or attempted
violation thereof; to recover damages for any default or to obtain
any remedies consistent with the purpose of this Agreement. Such
legal actions must be instituted in the Superior Court of the
County of San Diego, State of California.
16.20 Attorney's Fees and Costs. If any party commences
litigation or other proceedings (including, without limitation,
arbitration) for the interpretation, reformation, enforcement, or
rescission of this Agreement, the prevailing party, as determined
by the court, will be entitled to its reasonable attorneys' fees
and costs.
16.21 Hold Harmless. Owner agrees to and shall hold
City, its officers, agents, employees and representatives harmless
from liability for damage or claims for damage for personal injury,
including death, and claims for property damage which may arise
from the direct or indirect operations of Owner or those of its
contractors, subcontractors, agents, employees or other persons
acting on Owner's behalf which relate to the Project. Owner agrees
to and shall defend City and its officers, agents, employees and
representatives from actions for damage caused or alleged to have
been caused by reason of Owner's activities in connection with the
24
Project. Owner agrees to indemnify, hold harmless, pay all costs
and provide a defense for city in any legal action filed in a court
of competent jurisdiction by a third party challenging the validity
of this Agreement. The provisions of this Paragraph 16.21 shall
not apply to the extent such damage, liability or claim is caused
by the intentional or negligent act or omission of city, its
officers, agents, employee~-or representatives.
IN WITNESS WHEREOF, this Agreement has been executed by the CITY OF
CHULA VISTA, acting by and through its city Manager, pursuant to
Ordinance No. authorizing such execution, and by Owner.
Dated this ____ day of
, 1997.
"OWNER
"CITY"
UNITED ENTERPRISES, LTD.
CITY OF CHULA VISTA
By:
Its:
Its:
I hereby approve the form and legality of the foregoing Agreement
this day of , 1997.
John M. Kaheny
City Attorney
By:
Ann Moore
Assistant City Attorney
25
EXHIBIT A
I
/
[
~
UNITED ENTERPRISES, LTD.
~,~ft..
-.-
. - -
,~~~-
r ~OF
PLANNING D:ENT
IV1 81'96
..
1
I
J ~ :r
'"
"'''0 '" "0 ~
'tii c: -.... III ~ ~
.~oQ.) "0 - z~
.- ~ - E ..
> 0 >a.>g C:C: c: '" z
,!!!CXJ "'0 "0'" "0 III ~~ 0
",..", E:O:: II! g~
-"'::> a.>E c .. ;:
~ >- ::>..c_ E~", "'..c ",-c( '" c
0 ..c~ ..c c..- 0,-, ..I.!!! >- :r E
UU ucn.E oa.>", -- '"
Z c..",,,, >.'-''0 0 c
W UC:III 0"'111 ",111;:1 ~~ .. t
IIIC:.. ..III.. - Q.o:; a 0;:> ~
C> O::~~ Q.O~ Ocncn f'
W J ~
..I J J: i:
~ ~ u '"
..
I IJ
0
...
I \;
I
II>
.E
:E
N-
.
o
Z
c:
C'G 0
+-' .-
U)+-'
.- fa
I:C > .~
.... res c:
__ - fa
.c:s.....
-- .s::: '-II
~o5
w,+-Q):
oD::
~J::
._ U
o c:
C'G
D::
>-
ra
+-'
n
.~!i;11m~"ii ..
]
&
.Jfll
--I
I
I
L_,
-J
I
l,
I
J
\
_J
\
\--J
J
I
t'~
.,
-
I
_dl.
I-
I
I
!:...-"
1-:
I ,: