HomeMy WebLinkAbout2018-07-11 PC Agenda
City of Chula Vista Boards & Commissions
Planning Commission
In compliance with the
AMERICANS WITH DISABILITIES ACT
City of Chula Vista Boards & Commissions
Planning Commission
That the Planning Commission adopt Resolution
MPA18-0005 recommending that the Chula Vista City
Council approve:
1) An Ordinance to add Chapter 19.100 to the
Municipal Code and establish an Urban Agriculture
Incentive Zone.
Stacey Kurz, Sr. Project Coordinator, who also heads the Healthy Chula Vista Initiative, gave a
brief presentation and background regarding the establishment of the UAIZ in 2014. She
advised the Commission on the community benefits that include health, environmental and
production efficiency, as well as economic benefits. She covered the public outreach meetings,
eligibility, tax assessment and the potential city impacts. If approved by the Planning
Commission, this project would be presented to the City Council on July 10, 2018.
QUESTIONS TO STAFF
Is cannabis included in the agricultural growing program? Addressed by Atty Silva
Would the agricultural program be regulated like community gardens or could people use
Why is there so much difference in the tax breaks within the zones? Addressed by Kurz
Is there a provision for liability for the property owner? Addressed by Atty Silva
Would a property automatically be improved if they applied? Addressed by Kurz
Do they have to show demand or if you just meet criteria. Addressed by Silva and
Kurz as to structured plan and how they have to comply
Any consideration given to commercial growing minimum wage, OSHA, etc.
Addressed by Kurz and Silva
OPENED PUBLIC HEARING
Stepheni Nolan, representing National City Urban Farmland, spoke about the importance of
farming and the fact that retiring farmers do not have a succession plan. Have a lot of people
wanting to start, but they have a problem with finding land and knowing the laws. She is in
favor of this project.
PUBLIC HEARING CLOSED
DELIBERATIONS
Commissioners spoke in favor of the project and the fact it presented new business opportunities.
ACTION MSC: Milburn/Gutierrez
VOTE: 4-0-3
In compliance with the
AMERICANS WITH DISABILITIES ACT
Item: ___2____
Meeting Date: 07/11/18
ITEM TITLE: Public Hearing: Consideration of a Development Agreement between the
City of Chula Vista and North C.V. Waterfront L.P. for the development
of approximately 33 acres of land located in the Harbor District of the
Chula Vista Bayfront Master Plan Area
Resolution No. PCM18-01: Recommending that the City Council
approve a Development Agreement between the City of Chula Vista and
North C.V. Waterfront L.P. for the development of approximately 33 acres
of land located in the Harbor District of the Chula Vista Bayfront Master
Plan Area
SUBMITTED BY: Tiffany Allen, Assistant Director of Development Services
REVIEWED BY: Kelly Broughton, Development Services Director
INTRODUCTION
North that the City enter into a
Development Agreement for the development of approximately 33 acres of land located in the
Property is
currently undeveloped, but has been approved by the City for the development of up to 1,500
residential units with 15,000 square feet of ground floor retail, a 250-room hotel, and 420,000
square feet of commercial, office, and retail uses .
ENVIRONMENTAL REVIEW
The Development Services Director has reviewed the proposed activity for compliance with the
California Environmental Quality Act (CEQA) and has determined that the activity was covered
in previously certified Environmental Impact Report UPD#83356-EIR-658/SCH#2005081077.
Thus, no additional environmental review is required.
RECOMMENDATION
That the Planning Commission conduct a public hearing and adopt the proposed resolution
recommending that the City Council approve an ordinance for a Development Agreement in
accordance with the findings and subject to the conditions contained therein.
Planning Commission
Date: July 11, 2018
Page No. 2
DISCUSSION
1. Location, Existing Site Characteristics, and Ownership
The Property is located in the Harbor District of the Chula Vista Bayfront Master Plan area of the
City. The proposed Development Agreement is limited to the approximately 33 acres owned by
North C.V. Waterfront L.P. (see Attachment 1, Locator Map).
2. Project Description
The Project has been approved by the City for the development of up to 1,500 residential units
with 15,000 square feet of ground floor retail, a 250-room hotel, and 420,000 square feet of
commercial, office, and retail uses.
3. Proposed Development Agreement
State and City Requirements for Development Agreements
California Government Code section 65864 et seq. authorizes cities to enter into a development
agreement with any person having a legal or equitable interest in real property for the development
of the property. A development agreement is a contract negotiated between the project proponent
and the public agency that specifies certain mutual benefits negotiated for a particular project and
vests, subject to certain conditions in the agreement, the rights of the project applicant to develop
the property under current land use regulations for a specified term.
Through City Resolution No. 11933 (adopted in 1985), the City Council has determined that
development of large projects within the City create unique and complex development
considerations and that, in addition to the minimum requirements for development agreements
contained in the Government Code, additional procedures and requirements for the consideration
of development agreements shall be contained within each individual agreement. The
Development Agreement presented here includes the requirements for development agreements
contained in the Government Code, as well as additional procedures and requirements designed to
address the unique and complex development considerations presented by the Project.
The following discussion summarizes the major benefits of the proposed Development Agreement
(Attachment 2) to both the City and the Applicant, and describes the fundamental terms of the
agreement.
Public Benefits
Beyond the benefits of developing this catalyst Project that will anchor and encourage future
investment in the Chula Vista Bayfront Master Plan area, the Development Agreement commits
the Developer to providing the following public benefits:
Developer agrees to commence construction of improvements (public or private) for the
Project prior to December 31, 2022, even if the nearby Bayfront Resort Hotel and
Convention Center project has not commenced construction prior to that date.
Developer agrees that the quality of building materials and landscaping for the Project will
Planning Commission
Date: July 11, 2018
Page No. 3
Developer also commits to use its best efforts to obtain a luxury brand name for the
residential component of the Project.
Developer agrees to pay the City the sum of one million dollars ($1,000,000) towards the
purchase of a new fire engine. This payment will be made prior to the issuance of the
certificate of occupancy for the first phase of the residential component of the Project.
Developer agrees to pay the City the sum of five hundred thousand dollars ($500,000)
towards the purchase of a new fire ladder truck. This payment will be made prior to the
issuance of a certificate of occupancy for the third phase of the residential component of
the Project.
The Developer will construct significant public infrastructure at the beginning of the 20-
year build out of the project, representing a substantial financial commitment and benefit
to the City.
In addition to the above commitments, the Developer has already provided the following benefits:
Developer agreed to voluntarily postpone processing entitlements for the original 97 acres
of land that it owned in order to allow the City and the San Diego Unified Port District
to engage in a comprehensive planning process for the entire Chula Vista
Bayfront.
Developer agreed to a land swap of 97 acres of land in exchange for the Property in order
to preserve sensitive environmental habitat and respond to the concerns and planning
objectives of the City, the Port District, the community, and numerous environmental
groups
outreach, Developer has contributed $3 million to the Port District as part of the Land
Exchange Agreement.
Developer worked extensively with the members of the community, environmental
organizations, and representatives of labor unions to obtain support for the land swap and
the Project.
Developer provided funding in the amount of $1.4 million to acquire approximately two
(2) acres of land on which a fire station will be located to provide fire and rescue services
for the entire Chula Vista Bayfront. At the time the land became available for purchase,
the City did not have funds available to acquire the land. Once funds were available,
Developer sold the land to the City for the amount it paid for the land, foregoing any profit
on the purchase and sale of the land.
Benefits to the Developer
Predictability in the development approval process by vesting the permitted uses, density,
intensity of use, and timing and phasing of development consistent with the land use
regulations in effect on the approval date, including the General Plan, Local Coastal Permit,
and MSCP Subarea Plan, for up to twenty (20) years.
Planning Commission
Date: July 11, 2018
Page No. 4
agreement
to grant the Project a variance from the CBC Policy. This variance will allow the Transient
Occupancy Tax (TOT) revenue generated by the short-
residential units to satisfy the CBC requirements, so long as three million dollars
($3,000,000) is received by the City by the end of Year 10 of the Development Agreement.
If insufficient funds are generated by the end of Year 10, Developer will pay the difference
within ninety (90) calendar days. Upon receipt, the City will commit the funds to further
the goals of the CBC Policy. There will be no restriction on TOT revenues generated after
Year 10 and t
planned 250-room hotel.
The available balance of credits evelopment Impact Fee
(BFDIF) or Traffic Signal Fee obligation (as established through the installation of eligible
st
facilities) will be annually adjusted each October 1, at the same rate that the subject fee
program is adjusted.
Developer will receive notice of any planned update to the 2014 BFDIF nexus study upon
City initiation. City will also provide at least sixty (60) days advance notice of any public
hearing at which the City Council will consider amending the BFDIF program.
City agrees to present the undergrounding of the remaining overhead utility lines within
the Otay District and the Harbor District as a priority in any future requests for Rule 20A
funds.
Other Terms of the Agreement
The Development Agreement contains the following additional major points:
The term of the Development Agreement, all subdivision maps, parcel maps, and other
development approvals will be twenty (20) years.
For the Term of the Development Agreement, the Developer shall have the vested right to
develop the property pursuant to the Tentative Map, Development Agreement, and existing
land use laws, regulations and policies.
The Development Agreement may be amended from time to time by the mutual written
consent of the City and Developer and the Owner of any affected portion of the property.
The Development Agreement shall run with the land and benefit and bind future owners
should the Developer sell or transfer ownership.
Planning Commission
Date: July 11, 2018
Page No. 5
DECISION-MAKER CONFLICTS
Staff has reviewed the property holdings of the Planning Commission and has found no property
holdings within 500 feet of the boundaries of the property which is the subject to this action. Staff
is not independently aware, nor has staff been informed by any Planning Commission member, of
any other fact that may constitute a basis for a decision-maker conflict of interest in this matter.
CURRENT YEAR FISCAL IMPACT
All costs associated with processing the proposed Development Agreement are borne by the
Developer, resulting in no net impact to the General Fund or the Development Services Fund.
ONGOING FISCAL IMPACT
Approval of the Development Agreement supports development of the Project consistent with
current entitlements, including up to 1,500 residential units, 15,000 square feet of ground floor
retail, a 250-room hotel, and 420,000 square feet of commercial, office, and retail uses. In addition,
toward the purchase of a fire engine and an additional $500,000 toward the purchase of a fire
ladder truck.
In addition, the Development Agreement clearly recognizes that the short-term rental of the
the first 10 years, up to $3,000,000 of the TOT generated by the short-term rental of the residential
than $3,000,000 is generated in the first 10 years, the Developer will remit the shortfall to the City.
All subsequent TOT generated by the short-term rental of the residential units will flow to the City
as discretionary revenues, as will all TOT revenues generated by the planned 250-room hotel.
Attachments
1. Project Locator Map
2. Proposed Development Agreement
3. Draft City Council Development Agreement Ordinance
Prepared by: Tiffany Allen, Assistant Director of Development Services
ATTACHMENT 1
' PROJECT
LOCATION
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P,
ry
b m
San Diego
Bay
MARINA PW J ST
MARINA PVW
RECORDED AT REQUEST OF
AND WHEN RECORDED RETURN TO:
City of Chula Vista
276 Fourth Avenue
Chula Vista, California 91910
Attn: City Clerk Fee Exempt Govt Code §6103
(Spa
DEVELOPMENT AGREEMENT
Among
THE CITY OF CHULA VISTA,
a California charter city and municipal corporation
and
NORTH C.V. WATERFRONT L.P.,
a California limited partnership
TABLE OF CONTENTS
Page
RECITALS .................................................................................................................................... 1
AGREEMENT ............................................................................................................................... 3
1. DEFINITIONS ................................................................................................................... 3
1.1 Agreement .............................................................................................................. 3
1.2 Approval Date ........................................................................................................ 3
1.3 CBC Policy ............................................................................................................ 4
1.4 CFD ........................................................................................................................ 4
1.5 City ......................................................................................................................... 4
1.6 City Charter ............................................................................................................ 4
1.7 City Council ........................................................................................................... 4
1.8 City Manager ......................................................................................................... 4
1.9 City Municipal Code .............................................................................................. 4
1.10 Day ......................................................................................................................... 4
1.11 Developer ............................................................................................................... 4
1.12 ...................................................................................... 4
1.13 DIFs........................................................................................................................ 4
1.14 Effective Date ........................................................................................................ 4
1.15 Eligible Public Facilities ........................................................................................ 4
1.16 Enabling Ordinance ............................................................................................... 4
1.17 Existing Land Use Regulations .............................................................................. 4
1.18 CFD Formation Plan .............................................................................................. 4
1.19 General Plan ........................................................................................................... 5
1.20 Goals and Policies .................................................................................................. 5
1.21 J Street Sewer Improvements................................................................................. 5
1.22 J Street Sweep Improvements ................................................................................ 5
1.23 J Street Gateway Monument .................................................................................. 5
1.24 Land Use Regulations ............................................................................................ 5
1.25 LCP ........................................................................................................................ 5
1.26 Mortgagee .............................................................................................................. 5
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TABLE OF CONTENTS
(continued)
Page
1.27 Mello-Roos Act ...................................................................................................... 5
1.28 Parties ..................................................................................................................... 5
1.29 Phase I Project Approvals ...................................................................................... 5
1.30 Port District ............................................................................................................ 6
1.31 Project .................................................................................................................... 6
1.32 Project Approvals................................................................................................... 6
1.33 Property .................................................................................................................. 6
1.34 ............................................... 6
1.35 Section.................................................................................................................... 6
1.36 Subarea Plan........................................................................................................... 6
1.37 Subsequent Land Use Regulations......................................................................... 6
1.38 Subsequent Project Approvals ............................................................................... 7
1.39 Term ....................................................................................................................... 7
1.40 Street Improvements .............................................................................................. 7
2. INTEREST OF DEVELOPER .......................................................................................... 7
3. PUBLIC HEARINGS ........................................................................................................ 7
4. DEVELOPMENT OF THE PROJECT ON THE PROPERTY ........................................ 7
4.1 ...................................................................................... 7
4.2 Governing Land Use Regulations .......................................................................... 7
4.3 Permitted Uses ....................................................................................................... 8
4.4 Density and Intensity; Requirement for Reservation and Dedication of
Land ....................................................................................................................... 8
4.5 Reservation of Authority........................................................................................ 8
4.6 Vested Rights Upon Termination ........................................................................ 10
4.7 Compliance with CEQA ...................................................................................... 10
4.8 Timing of Development ....................................................................................... 10
4.9 Conditions, Covenants and Restrictions .............................................................. 11
4.10 Balanced Communities ........................................................................................ 11
4.11 J Street Sewer Improvements............................................................................... 11
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TABLE OF CONTENTS
(continued)
Page
4.12 J Street Pump Station and Force Mains ............................................................... 12
4.13 Reclaimed Water .................................................................................................. 12
4.14 Transportation and Traffic Signal Portion of Development Impact Fees ............ 12
4.15 J Street Gateway Monument ................................................................................ 13
4.16 Recreational Facilities DIF Credit ....................................................................... 13
4.17 Park Acquisition and Development DIF Credit ................................................... 13
4.18 Community Facilities District .............................................................................. 14
4.19 Undergrounding of Overhead Utilities Lines ...................................................... 14
4.20 Future Use of Project Revenues ........................................................................... 14
4.21 Assistance from Other Governments ................................................................... 14
5. .......... 14
5.1 Public Benefits ..................................................................................................... 14
6. TERM AND TERMINATION ........................................................................................ 15
6.1 Term of Agreement .............................................................................................. 15
6.2 Termination .......................................................................................................... 16
6.3 Effect of Termination ........................................................................................... 16
6.4 Release of Obligations With Respect to Individual Lots Upon Certification
of Occupancy ....................................................................................................... 16
6.5 Term of Map(s) and Other Project Approvals ..................................................... 17
7. ANNUAL REVIEW ........................................................................................................ 17
7.1 Timing of Annual Review ................................................................................... 17
7.2 Standards for Annual Review .............................................................................. 17
7.3 Procedures for Annual Review ............................................................................ 18
7.4 Certificate of Compliance .................................................................................... 18
7.5 Failure of Periodic Review .................................................................................. 18
8. THIRD PARTY LITIGATION ....................................................................................... 18
8.1 General Plan Litigation ........................................................................................ 18
8.2 Third Party Litigation Concerning Project or Agreement ................................... 18
8.3 Indemnity ............................................................................................................. 18
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TABLE OF CONTENTS
(continued)
Page
8.4 Environmental Contamination ............................................................................. 19
8.5 City to Approve Counsel; Conduct of Litigation ................................................. 19
8.6 Survival ................................................................................................................ 19
9. DEFAULTS AND REMEDIES ...................................................................................... 19
9.1 Default by Developer ........................................................................................... 19
9.2 Default by City ..................................................................................................... 20
9.3 Notice and Termination ....................................................................................... 20
9.4 Default Remedies ................................................................................................. 20
9.5 ............................................................................................ 20
9.6 ..................................................................................................... 21
9.7 Waiver; Remedies Cumulative ............................................................................ 21
9.8 Alternative Dispute Resolution ............................................................................ 21
10. ENCUMBRANCES, ASSIGNMENTS, AND RELEASES ........................................... 21
10.1 Discretion to Encumber ....................................................................................... 21
10.2 Mortgagee Protection ........................................................................................... 21
10.3 Estoppel Certificate .............................................................................................. 22
10.4 Transfer or Assignment........................................................................................ 23
10.5 Effect of Assignment ........................................................................................... 23
10.6 ...................................................................................................... 24
11. MISCELLANEOUS PROVISIONS ................................................................................ 24
11.1 Rules of Construction .......................................................................................... 24
11.2 Binding Effect of Agreement ............................................................................... 24
11.3 Entire Agreement ................................................................................................. 24
11.4 Recorded Statement Upon Termination ............................................................... 24
11.5 Amendment or Cancellation of Agreement ......................................................... 24
11.6 Minor Changes/Operating Memorandum ............................................................ 25
11.7 Project as a Private Undertaking .......................................................................... 25
11.8 Incorporation of Recitals...................................................................................... 25
11.9 Captions ............................................................................................................... 25
-iv-
TABLE OF CONTENTS
(continued)
Page
11.10 Consent ................................................................................................................ 25
11.11 Covenant of Cooperation ..................................................................................... 25
11.12 Execution and Recording ..................................................................................... 26
11.13 Relationship of City and Developer ..................................................................... 26
11.14 Notices ................................................................................................................. 26
11.15 Delay for Events Beyond the Parties Control ..................................................... 27
11.16 Interpretation and Governing Law ......................................................................... 27
11.17 Time of Essence ..................................................................................................... 27
11.18 Successors and Assigns.......................................................................................... 27
11.19 Future Litigation Expenses .................................................................................... 28
12. EXHIBITS ....................................................................................................................... 28
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CITY OF CHULA VISTAand
NORTH Developer) as of the
Effective Date (as defined in the Agreement). City or Developer are sometimes individually
referred t
this Agreement with reference to the following recited facts:
RECITALS
A. The State of California has enacted the Development Agreement Statute, found at
Sections 65864 et seq., of the California Government Code, to strengthen the public planning
process, encourage private participation in comprehensive planning and to reduce the economic
risk of development;
B. City is authorized by the Development Agreement Statute and by its City Charter
to enter into development agreements with persons and entities having legal or equitable interests
in real property for the purpose of establishing predictability for both City and property Developer
in the development process and in the provision of public infrastructure and public benefits;
C. Developer has a legal or equitable interest in that certain real property consisting of
approximately 33 acres of land located in the City, County of San Diego, State of California, more
particularl;
D. The Property is located in the Harbor District of the Chula Vista Bayfront Master
Plan (Harbor District) in the City. The Property is currently undeveloped but has been approved
by City for the development of up to 1,500 residential units with 15,000 square feet of ground floor
retail, a 250- room hotel, and 420,000 square feet of commercial, office, and retail uses, all as more
fully described in the City of Chula Vista General Plan and Local Coastal
Program (which includes the Land Use Plan and Bayfront Specific Plan) , and the Chula
Vista Multiple Species Conservation Plan Subarea Plan
;
E. Developer desires to develop the Property into a unified development consisting of
the uses described in the Project Approvals
;
F. Developer has requested that City enter into a development agreement for the
development of the Project on the Property, and City desires to enter into this Agreement pursuant
to the provisions of the California Government Code, the City Charter, the General Plan, the City
Municipal Code, and applicable City policies;
G. This Agreement assures that development of the Project on the Property will occur
in accordance with the Project Approvals;
H.
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predictability to Developer in the development approval process by vesting the permitted uses,
density, intensity of use, and timing and phasing of the Project on the Property in exchange for
Developer Developer would not
commit to provide such significant public benefits to City if not for the promise of City that the
Property can be developed pursuant to the Existing Land Use Regulations and Subsequent Land
Use Regulations;
I. This Agreement is also intended to ensure that Developer has provided funding
sufficient to provide the adequate and appropriate infrastructure and public facilities required by
the development of the Project on the Property, and that this infrastructure and public facilities
will be available no late;
J. The commitments of Developer made in this Agreement allow City to realize
significant economic, public facilities, and other public benefits. These public benefits will
advance the interests and meet the needs of residents and visitors to a significantly greater
extent than would development of the Project on the Property absent this Agreement. In addition
to the specific public benefits to be provided by the Project and described in Section 5.1 below,
Developer also accomplished the following:
(1) Developer agreed with City to voluntarily postpone processing entitlements
for the original 97 acres of land that it owned in order to allow City and Port District to
engage in a comprehensive planning process for the entire Chula Vista Bayfront, which
planning process resulted in Developerto the land swap referenced below;
(2) Developer agreed to a land swap of 97 acres of land in exchange for the
Property in order to preserve sensitive environmental habitat and respond to the concerns
and planning objectives of City, the San Diego Unified Port District , the
community, and numerous environmental groups . The
process to accomplish the land swap involved an extensive upfront investment by
Developer in the planning process, environmental review process, and outreach to the
community and other interested third parties. In addition to an investment in community
outreach, Developer has contributed $3 million to the Port of San Diego as part of the Land
Exchange Agreement;
(3) Developer worked extensively with the members of the community,
environmental organizations, and representatives of labor unions to obtain support for the
land swap and the Project, thus ensuring the ability to achieve the objectives of the Project
and resulting benefits to City without additional lengthy and costly delays;
(4) Developer provided funding in the amount of $1.4 million to acquire
approximately two (2) acres of land on which will be located a fire station to provide fire
and rescue services for the entire Chula Vista Bayfront. At the time the land became
available for purchase, the City did not have funds to acquire the land. When City had
adequate funds to purchase the land, Developer sold the land to City for the amount it had
paid for the land, thus foregoing any profit on the purchase and sale of the land;
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(5)
investment in the Chula Vista Bayfront Master Plan area;
(6) The Project is a significant development for the City with up to 1,500
residential units with 15,000 square feet of ground floor retail, a 250-room hotel, and
420,000 square feet of commercial, office, and retail uses, which will generate a new stream
of property and sales tax for the City;
(7) The Project will create a substantial new stream of transient occupancy tax
revenue from short-term rentals from ; and
(8) The Project is expected to provide a significant public benefit by
constructing public infrastructure in the Chula Vista Bayfront Master Plan area along with
the first phase residential building. This work is expected to earn Bayfront Development
Impact Fee credits that the Developer will not be able to fully use for many years because
its public infrastructure investments will be made at the beginning of the 20-year term of
the Development Agreement. It is highly unusual and extraordinary for a developer to
make a significant financial commitment upfront to earn substantial Development Impact
Fee credits so far in advance of being able to apply such credits to fees incurred through its
project development, and is a demonstration of the significant benefit the Project is
expected to provide to the City.
K. In addition to customary development impact fees, the Developer commits to
providing the City with $1 million dollars towards the purchase of a fire engine, which shall be
paid at certificate of occupancy of the first phase residential building. The Developer further
commits to provide the City with an additional $500,000 towards the purchase of a fire ladder
truck, which shall be paid at the certificate of occupancy of the third phase residential building.
L. In return for Developerthe public benefits described in
Section 5.1 below, City is willing to exercise its authority to enter into this Agreement and to make
a commitment of predictability for the development process for the Project on the Property.
AGREEMENT
For good and valuable consideration, City and Developer agree as follows:
1. DEFINITIONS. In this Agreement, unless the context otherwise requires, the following
terms and phrases shall have the following meanings:
1.1 Agreement. een City and
the Developer
Agreement properly approved and executed pursuant to the terms of this
Agreement.
1.2 Approval Date. adopted
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the Enabling Ordinance amending the General Plan, LCP, and Subarea Plan to
allow for the development of the Project on the Property.
1.3 CBC Policy.
Communities Policy adopted as part of the Housing Element of the General Plan.
1.4 RESERVED.
1.5 City.
corporation.
1.6 City Charter.
1.7 City Council.
1.8 City Manager.
designee.
1.9 City Municipal Code.
Code.
1.10 Day.
1.11 Developer. ns North C.V. Waterfront L.P., a California limited
1.12 .
forth in Section 4.1.
1.13 DIFs.
1.14 Effective Date.
for this Agreement becomes effective and the Parties have each signed this
Agreement.
1.15 RESERVED.
1.16 Enabling Ordinance.
legislative action necessary to approve the Project Approvals or this Agreement.
1.17 Existing Land Use Regulations.
Use Regulations in effect on the Approval Date, including the General Plan, LCP,
and Subarea Plan.
1.18 RESERVED.
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1.19 General Plan.
1.20 RESERVED.
1.21 J Street Sewer Improvements. sewer
improvements required f
1.22 J Street Sweep Improvements. means the
improvements potentially required for the Project as shown on the attached Exhibit
1.23 J Street Gateway Monument. Gateway M
Developer has agreed to design, located at the J Street entrance just west of
Interstate Highway 5, which shall consist of street improvements, hardscape, and
landscape improvements necessary to create a ceremonial entrance to the Chula
Vista Bayfront and the Project area.
1.24 Land Use Regulations.
codes, rules, regulations and official policies of City governing the development
and use of land, including, without limitation, the permitted use of land, the density
or intensity of use, subdivision requirements, timing and phasing of development,
the maximum height and size of buildings, the provisions for reservation or
dedication of land for public purposes, and the design, improvement, construction,
regulation or official policy governing:
1.24.1 The conduct or taxation of businesses, professions, and occupations
applicable to all businesses, professions, and occupations in City;
1.24.2 Taxes and assessments of general application upon all residents of City.
1.24.3 The control and abatement of nuisances.
1.25 LCP.
Plan and Bayfront Specific Plan).
1.26 Mortgagee.
deed of trust or any other security-device, a lender, and their successors and assigns.
1.27 RESERVED.
1.28 Parties. Developer on the other hand. A
Developer.
1.29 Phase I Project Approvals. Development
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Agreement, tentative and/or final subdivision map, coastal development permit
ign schematic, community design guidelines,
and Design Review approval as further described in
1.30 Port District.
1.31 Project. s set forth in the Project
Approvals and Subsequent Project Approvals, and includes the development of up
to 1,500 residential units with 15,000 square feet of ground floor retail, a 250- room
hotel, and 420,000 square feet of commercial, office, and retail uses, all as more
B
1.32 Project Approvals. the entitlements approved by the
City to allow for the development of the Project on the Property as further described
.
1.33 Property. ,
consisting of approximately 33 acres of underdeveloped property in the Harbor
1.34 Reservation of Authority or Reserved Authority.
which limits the assurances and rights provided to Developer and Developer
Vested Right under this Agreement.
1.35 Section.
stated to refer to another document or matter.
1.36 Subarea Plan. the Chula Vista Multiple Species
Conservation Plan Subarea Plan.
1.37 Subsequent Land Use Regulations.
Land Use Regulations adopted after the Approval Date that do not conflict with the
Existing Land Use Regulations or this Agreement. Subsequent Land Use
Regulations shall be deemed to conflict with the Existing Land Use Regulations or
this Agreement if their application to the Project would (a) restrict or modify the
permitted types of land uses, the density or intensity of use, the maximum height,
size, or square footage of the proposed buildings, the timing and phasing of
development, or building and yard setback requirements specified in the Existing
Land Use Regulations; (b) increase the amount or change the location of the
infrastructure required for the Project; (c) impose additional exactions or
requirements other than as provided for in the Existing Land Use Regulations or
this Agreement; (d) change design or development standards or the policies or
requirements of the Existing Land Use Regulations; (e) imposes a new permit
requirement or procedure not included within the Existing Land Use Regulations;
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(f) increase the cost of development of the Project as those costs existed at the time
of the Approval Date; or (g) otherwise preclude Developer
according to the Existing Land Use Regulations or this Agreement.
1.38 Subsequent Project Approvals.
approvals, permits, or entitlements approved, granted, or issued after the Approval
Date which are required or permitted by the Project Approvals, Existing Land Use
Regulations, Subsequent Land Use Regulations, and this Agreement.
1.39 Term. 6 of this
Agreement.
1.40 Improvementsstruction of any
portion of the improvements authorized by the Phase I Project Approvals or the
improvements described in Sections 4.11, 4.12, and 4.14.
2. INTEREST OF DEVELOPER. Developer represents that it has a legal or equitable interest
in the Property and is authorized to enter into this Agreement.
3. PUBLIC HEARINGS. On July 17, 2018, after providing notice as required by law, the
City Council held a public hearing on this Agreement and made any legally required
findings as set forth in the Enabling Ordinance for this Agreement.
4. DEVELOPMENT OF THE PROJECT ON THE PROPERTY.
4.1 Developer. Developer shall have the vested right to complete the
Project on the Property during the Term in accordance with the Existing Land Use
Regulations, Subsequent Land Use Regulations, the Subsequent Project Approvals,
, Developer
4.2 Governing Land Use Regulations. Except as otherwise provided in this Agreement,
the Land Use Regulations applicable to the development of the Project on the
Property shall be those contained in the Existing Land Use Regulations, the
Subsequent Land Use Regulations, and the Subsequent Project Approvals.
4.2.1 City shall review the Subsequent Project Approvals pursuant to the
process described in the Existing Land Use Regulations only for
consistency with the Existing Land Use Regulations, Subsequent Land
Use Regulations, and this Agreement. Such Subsequent Project
Approvals shall not be unreasonably withheld or delayed. City will
exercise reasonable best efforts to expedite review and processing of
Phase I Subsequent Project Approvals without charging any expedited
review fees or additional costs to Developer.
4.2.2 Developer may in its sole and absolute discretion agree to subject the
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Project to Subsequent Land Use Regulations that conflict with the
Existing Land Use Regulations.
4.2.3 Development on Parcels 2 through 7 shall be subject to the review and
approval of the Chula Vista Zoning Administrator through the
administrative design review process as set forth in the City of Chula
.
All development on said parcels shall be consistent with adopted design
guidelines and applicable development standards for the Project, subject
to public notification requirements, and appealable to the Chula Vista
City Council.
4.3 Permitted Uses. Except as otherwise provided within this Agreement, the permitted
uses on the Property shall be as provided in the Existing Land Use Regulations,
Subsequent Land Use Regulations, and the Subsequent Project Approvals.
4.4 Density and Intensity; Requirement for Reservation and Dedication of Land.
Except as otherwise provided in this Agreement, the density and intensity of use
for the development of the Project on the Property, and the requirements for
reservation and dedication of land, shall be as provided in the Existing Land Use
Regulations, Subsequent Land Use Regulations, and the Subsequent Project
Approvals.
4.5 Reservation of Authority. The following Land Use Regulations or other
requirements shall apply to the Property and the Project unless otherwise
specifically provided for in this Agreement:
4.5.1 Processing fees and charges may be
estimated or actual costs of reviewing and processing applications for the
Project, providing inspections, conducting annual reviews, providing
environmental analysis, or for monitoring compliance with this
Agreement or any Project Approvals or Subsequent Project Approvals
granted or issued, provided such fees and charges are in force and effect
on a general basis on the date of filing such applications with City. This
Section shall not be construed to limit the authority of City to charge its
then-current, normal and customary application, processing, and permit
fees for Project Approvals or Subsequent Project Approvals, building
permits and other similar permits, which fees are designed to reimburse
permitting and are in force and effect on a City-wide basis on the date of
filing such applications with City, notwithstanding the fact that such fees
may have been increased by City subsequent to the Approval Date;
4.5.2 Development Impact and In-Lieu Fees. ligations
shall be determined by the City pursuant to the provisions outlined in the
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Municipal Code or in the ordinances establishing the fees. These
amounts shall be fixed for each building permit, as of the date the impact
fees are paid, between permit issuance and the issuance of a certificate
of occupancy. DIF shall not increase between building permit issuance
and final inspection more than the Construction Cost Index;
4.5.3 Except as specifically provided for in Section 4.2 of this Agreement,
procedural regulations relating to hearing bodies, petitions, applications,
notices, findings, records, hearings, reports, recommendations, appeals,
and any other matter of procedure;
4.5.4 The following, provided that they are uniformly applied to all
development projects within City:
4.5.4.1 Uniform codes governing engineering and construction standards
and specifications adopted by City pursuant to state law. Such
Uniform Administrative Code, California Building Code,
California Plumbing Code, California Mechanical Code,
California Electrical Code, and California Fire Code;
4.5.4.2 Local amendments to those uniform codes which are adopted by
City pursuant to state law, provided they pertain exclusively to
the preservation of life and safety; and
4.5.4.3
encroachment permits and the conveyance of rights and interests
which provides for the use of or the entry upon public property.
4.5.5 Regulations which may be in conflict with this Agreement, but which
are objectively required to protect the public health and safety, provided,
however, such regulations shall be of the minimum scope, effect, and
duration necessary to address the public health and safety concern;
4.5.6 State or federal laws or regulations which preempt local regulations or
mandate local regulations or conditions that conflict with the
development of the Project on the Property. This expressly includes
mandates imposed through the Clean Water Act or the Porter-Cologne
Water Quality Control Act. Upon discovery of such a federal or state
law, City or Developer shall provide the other Party with written notice,
a copy of the state or federal law or regulation, and a written explanation
of the legal or regulatory conflict created. Within ten (10) days
thereafter, City and Developer shall meet and confer in good faith in a
reasonable attempt to modify this Agreement, as necessary, to comply
with such federal or state law or regulation. In such negotiations, City
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and Developer agree to preserve the terms of this Agreement and the
rights of Developer as derived from this Agreement to the maximum
extent possible while still following the applicable state or federal law;
4.5.7 ,
regulations and standards;
4.5.8 Developer shall be issued building permits for the Project after permit
applications are reviewed and approved by City consistent with Section
4.2 of this Agreement;
4.5.9 The exercise of the power of eminent domain;
4.5.10 Due to the unique nature of the Project, City acknowledges that
exceptions and deviations to some Land Use Regulations may be
required and agrees to reasonably consider requests for exceptions and
deviations from the Land Use Regulations necessary for development of
the Project or implementation of the Project Approvals. Developer
acknowledges that it is reasonable for City to deny a request for
exceptions and deviations from the Land Use Regulations when
necessary to protect the public health, safety, or welfare.
4.6 Vested Rights Upon Termination. Developer acknowledges that following
termination of this Agreement, except as to any Project Approvals or Subsequent
Project Approvals that have vested under state law without reliance on this
Agreement, City may amend the Project Approvals and Subsequent Project
Approvals as they relate to the Project and the Property.
4.7 Compliance with CEQA. The City Council has found that the environmental
impacts of the Project have been addressed in the Final Environmental Impact
Report for the Chula Vista Bayfront Master Plan (State Clearinghouse No.
2005081077). Where the California Environmental Quality Act requires that an
additional environmental analysis be performed in connection with a Subsequent
Project Approval or other future discretionary approval granted by City for the
Project, the Developer
additional analysis. If the application of CEQA to a Subsequent Project Approval
would (a) require as mitigation a reduction in the density or intensity of use from
that allowed by this Agreement, (b) require as mitigation a change in use from those
allowed by this Agreement, (c) result in the identification of new significant,
unmitigable impacts, and/or (d) identify an environmentally preferred alternative
that would reduce density or intensity of use or change a use from that allowed by
this Agreement, then Developer may terminate this Agreement.
4.8 Timing of Development. Because the California Supreme Court held in Pardee
Construction Co. v. City of Camarillo, 37 Cal. 3d 465 (1984), that the failure of the
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parties in that case to provide for the timing of development resulted in a later-
agreement, it is the specific intent of the Parties here to provide for the timing of
the Project in this Agreement. To do so, the Parties acknowledge and agree that
unless otherwise specifically required by this Agreement, Developer shall have the
right, but not the obligation, to complete the Project in such order, at such rate, at
such times, and in as many development phases and sub-phases as Developer deems
appropriate in its sole subjective business judgment.
4.9 Conditions, Covenants and Restrictions. Developer shall have the ability to reserve
and record covenants, conditions, and restrictions (CC&Rs) against the Property.
Such CC&Rs may not conflict with this Agreement, the Existing Land Use
Regulations, Subsequent Land Use Regulations, or Subsequent Project Approvals.
Before recording any CC&Rs, Developer shall provide a copy of the CC&Rs to
City for review and approval by the City Attorney, which approval shall not be
unreasonably denied.
4.10 Balanced Communities. City has adopted a Balanced Communities Policy
to implement the Housing
Element of the General Plan. The Property is located in an area that the CBC Policy
defines as a Area. The City agrees that the Property
will retain that definition for all Subsequent Project Approvals for the Term of this
Agreement. In accordance with the CBC Policy, findings made in Recitals J, K, and
L substantiate that special circumstances exist that are unique to the Project that
justify granting a variance from the CBC Policy. Based on these findings, City
agrees to grant the Project a variance from the CBC Policy. TOT revenue generated
will satisfy the CBC requirements now and for any
Subsequent Project Approvals so long as at least $3,000,000.00 in TOT revenue
has been received from the residential units by the end of Year 10 of this
Agreement. If such amount has not been received, however, City shall notify
Developer in writing and Developer shall have ninety (90) calendar days to pay the
difference between $3,000,000.00 and the TOT revenue collected by the City to
date.
Balanced Communities Policy. There shall be no such use restrictions on the TOT
4.11 J Street Sewer Improvements. The Project requires certain sewer improvements at
J Street as more fully described in the attached Exhibit
In the event that any portion of the J Street Sewer Improvements
is mprovements Project, City agrees that Developer shall
receive full credit against any Project related sewer connection fee for the cost of
designing and constructing that portion of the J Street Sewer Improvements. In the
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event that the J Street Sewer Improvements provide sewer capacity in excess of that
required for the Project and that additional sewer capacity is needed by the City for
future development outside of the Project, City agrees to enter into a
Reimbursement Agreement with Developer. For any amount that exceeds
provide for cash reimbursement when funds are available as determined by the City
Manager, or other mutually acceptable reimbursement mechanism.
4.12 J Street Pump Station and Force Mains. The Project may require certain
improvements to the pump station and force mains that currently serve the Port
more fully described in the a.
In the event that any portion of the J Street Pump Station and Force Mains is
Developer shall
receive full credit against any Project related sewer connection fee for the
Developer incurred cost of designing and constructing that portion of the J Street
Pump Station and Force Mains. In the event that the J Street Sewer Improvements
provide sewer capacity in excess of that required for the Project and that additional
sewer capacity is needed by the City for future development outside of the Project,
City agrees to enter into a Reimbursement Agreement with Developer. For any
e
Reimbursement Agreement shall provide a cash reimbursement to Developer when
funds are available as determined by the City Manager, or other mutually
acceptable reimbursement mechanism.
4.13 Reclaimed Water. City agrees that the Project shall only be required to install water
delivery facilities required for the use of reclaimed water in a street segment if such
requirement exists at the time Developer files an application for a public
improvement permit to construct water delivery facilities in that street segment.
The City shall not require Developer to retroactively reconstruct its water delivery
facilities to interconnect with a reclaimed water system.
4.14 Transportation and Traffic Signal Portion of Development Impact Fees. Developer
will be responsible for payment of traffic signal sand
Bayfront Transportation DIF fees, pursuant to applicable City
Council Policies and the Chula Vista Municipal Code. The Project shall have the
option to design and construct certain elements of the Harbor Distri traffic
circulation system, provided that the improvements to be constructed by the
Developer are fully funded by the Traffic Signal Fees, the Bayfront DIF, or a
combination thereof. affic Signal Fee and/or
Bayfront DIF obligations and/or cash reimbursements shall be made pursuant to
City Council Policy 478-01 and Section 3.55.150 of the Chula Vista Municipal
Code, as applicable.
4.14.1 major investments
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in the public transportation infrastructure in the Bayfront area in advance
of constructing the majority of the Project, which will provide a public
benefit to the City. As Developer completes such public transportation
infrastructure, Developer shall submit a request for reimbursement, or a
credit against fees, to the City as set forth in City Council Policy 478-01
(Traffic Signal Fees) and Section 3.55.150 of the Chula Vista Municipal
Code (Bayfront DIF). For any credit against fees for the Project as
approved by the City, the value of that credit balance (with the credit
balance representing the credits approved, less credits applied in-lieu of
cash payment at building permit, and other credit adjustments as
mutually agreed upon by the Parties in writing) shall be annually
adjusted on October 1 using the annual inflation adjustment applied by
the City to the subject fee program, as set forth in City Council Policy
478-01 and Section 3.55.090 of the Chula Vista Municipal Code.
4.14.2 The Parties acknowledge the possibility that the City Council may
choose to add projects to the Bayfront DIF program over the life of this
additional improvements complies with nexus and proportionality
requirements, the City agrees to: (1) provide notice to Developer when
the City initiates an update to the 2014 BFDIF Nexus Study, or any
subsequent nexus study prepared thereafter; and (2) provide at least sixty
(60
City Council will consider amending the Bayfront DIF program.
4.15 J Street Gateway Monument. Developer has agreed to design the monument for
the J Street entrance as more fully described in t
Gateway The City agrees to add the construction of the J Street
Gateway Monument to the Bayfront Impact Fee program in the next update.
Should Developer elect to construct the J Street Gateway Monument, the City
agrees to enter into a Reimbursement Agreement with Developer. For any amount
the Reimbursement
Agreement shall provide for a cash reimbursement when funds are available as
determined by the City Manager, or other mutually acceptable reimbursement
mechanism.
4.16 Recreational Facilities DIF Credit. To the extent Developer builds facilities that
qualify as eligible Recreational Facilities, Developer shall receive credit for this
against DIF fees that would have otherwise been paid by Developer.
4.17 Parkland Acquisition and Development In-Lieu Fee (PAD) Credit. To the extent
Developer builds facilities that qualify as eligible parkland, Developer shall receive
credit for this against PAD fees that would have otherwise been paid by Developer.
Should the City replace the PAD in-lieu fee with a similar park DIF in the future,
the Developer shall receive credits for eligible facilities in the same manner.
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4.18 RESERVED.
4.19 Undergrounding of Overhead Utilities Lines. City acknowledges the benefit of
undergrounding overhead utilities lines located within the Otay District and Harbor
District of the Chula Vista Bayfront. City has previously obtained a commitment
of Rule 20A funds pursuant to the undergrounding program adopted by the
California Public Utilities Commission to underground the 230kV lines located
within the Chula Vista Bayfront. City agrees that the undergrounding of the
remaining overhead utilities lines located within the Otay District and Harbor
District shall be presented to the City Council as a priority in any future requests
for Rule 20A funds to underground overhead utilities lines within the City.
4.20 Future Use of Project Revenues. City acknowledges that while nothing in this
Agreement contemplates revenue sharing with respect to retail sales taxes or other
revenues, Developer may ask City to consider revenue sharing and tax deferrals to
promote development consistent with the Project Approvals.
4.21 Assistance from Other Governments. Upon Developer
Developerll reasonably consider whether to make
applications, or reasonably assist and cooperate with Developer in submitting
applications for the following assistance, consistent with the Project Approvals and
the Subsequent Project Approvals:
4.21.1 Available tax or other benefits from state or federal governments.
4.21.2 Available grants, loans, bonds, or subsidies from non-City local, state,
or federal governments or agencies for government programs that seek
to encourage the type of development identified in the Project Approvals
or Subsequent Project Approvals.
4.21.3 Reimbursement from non-City local, state, or federal sources for any
facilities provided as part of the Project.
5. DEVELOPERROVISION OF PUBLIC BENEFITS.
5.1 Public Benefits. In connection with the development of the Project, Developer shall
provide the following public benefits:
5.1.1 In order to accelerate development of other property located within the
Harbor District of the Chula Vista Bayfront Master Plan by constructing
necessary infrastructure, demonstrating the economic viability of such
development, and substantially increasing the overall economic activity
within the area, Developer agrees to commence construction of
Improvements for the Project prior to December 31, 2022, even if the
proposed Regional Conference Center has not commenced construction
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prior to that date. This obligation to commence construction shall be
subject to the provisions of Section 11.15 below.
5.1.2 In order to elevate and encourage an increase in the quality of
development within the Harbor District of the Chula Vista Bayfront
Master Plan, Developer agrees that the quality of building materials and
landscaping for the Project shall exceed the building materials and
Developer also shall
use its best efforts to obtain a luxury brand name for the residential
component of the Project.
5.1.3 Developer agrees to pay City a sum of One Million dollars
($1,000,000.00) towards the purchase of a fire eng
The Developer shall make the Fire Engine Payment prior to
the issuance of a certificate of occupancy for the first phase of the
residential building for the Project.
5.1.4 Developer agrees to pay City a sum of Five Hundred Thousand dollars
($500,000.00) towards the purchase of a fire ladder truck
shall make the Fire Truck Payment prior to
the issuance of a certificate of occupancy for the third phase of the
residential building for the Project.
6. TERM AND TERMINATION.
6.1 Term of Agreement. The Term shall commence on the Effective Date. The Term
shall continue for a period of twenty (20) years from the Effective Date, subject to
the following:
6.1.1 The Term shall be extended for periods equal to the time during which:
6.1.1.1 Litigation is pending which challenges any matter, including
compliance with CEQA or any other local, state, or federal law,
related in any way to the approval or implementation of all or any
part of the Project Approvals. Any such extension shall be equal
to the time between the filing of litigation, on the one hand, and
the entry of final judgment or dismissal, on the other.
6.1.1.2 Any other delay occurs which is beyond the control of the Parties,
as described in Section 11.15.
6.1.2 During the Term, certain portions of the Property may be released from
this Agreement as provided in Sections 6.4 and 11.2 of this Agreement.
The City shall provide written confirmation of such release upon request.
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6.1.3 As provided in Section 6.2 and elsewhere within this Agreement, the
Term may end earlier than the end of the Term as specified in this
Agreement.
6.2 Termination. This Agreement shall be deemed terminated and of no further effect
upon the earlier occurrence of any of the following events:
6.2.1 Expiration of the Term as set forth in Section 6.1;
6.2.2 Entry of a final judgment setting aside, voiding, or annulling the adoption
of the Enabling Ordinance for this Agreement;
6.2.3 The adoption of a referendum measure overriding or repealing the
Enabling Ordinance for this Agreement;
6.2.4 Completion of the Project in accordance with the terms of this
Agreement, including issuance of all required occupancy permits and
acceptance, as required by state law, by City, or the applicable public
agency, of all required dedications and the satisfaction of all of
Developer Agreement; and
6.2.5 Should Developer fail to timely commence construction as provided in
section 5.1.1 of this Agreement, City shall have the right, but not the
obligation, to terminate this Agreement.
6.2.6 As may be provided by other specific provisions of this Agreement.
6.3 Effect of Termination. Subject to Section 6.2, upon any termination of this
Agreement, the only rights or obligations under this Agreement which either Party
shall have are:
6.3.1 The completion of obligations which were to have been performed prior
to termination, other than those which are separately addressed by
Section 5;
6.3.2 Development rights that may have vested as set forth in Section 4.6;
6.3.3 The performance and cure rights set forth in Section 9.3; and
6.3.4 Those obligations that are specifically set forth as surviving this
Agreement, such as those described in Section 8.6 and 11.19.2.
6.4 Release of Obligations With Respect to Individual Lots Upon Certification of
Occupancy. Notwithstanding any other provision of this Agreement:
6.4.1 When any individual lot has been finally subdivided and sold, leased, or
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made available for lease to a member of the public or any other ultimate
user, and a certificate of occupancy has been obtained for the building(s)
on the lot, that lot and its owner shall have no further obligations under
and shall be released from this Agreement.
6.4.2 Upon the conveyance of any lot, parcel, or other property, whether
residential, commercial, or open space
-public entity, that lot,
parcel, or property and its owner shall have no further obligations under
and shall be released from this Agreement.
No formal action by City is required to affect this release, but, upon Developer
request, City shall sign an estoppel certificate or other document to evidence the
release.
6.5 Term of Map(s) and Other Project Approvals.
6.5.1 Subdivision Maps. Pursuant to Government Code Section 66452.6, the
term of all subdivision or parcel maps that are approved for all or any
portion of the Project on the Property shall be automatically extended to
a date coincident with the Term and, where not prohibited by State law,
with any extension of the Term.
6.5.2 Other Project Approvals. Pursuant to Government Code section
65863.9, the Subsequent Project Approvals shall automatically be
extended for a term ending concurrently with the applicable subdivision
maps for the Project.
6.5.3 Pursuant to Government Code section 65867.5(c), any tentative map
prepared for the Project will comply with the provisions of Government
Code section 66473.7. (See Final Environmental Impact Report for the
Chula Vista Bayfront Master Plan, Appendix 4.14-1.)
7. ANNUAL REVIEW.
7.1 Timing of Annual Review. Pursuant to Government Code Section 65865.1, at least
once during every twelve (12) month period of the Term, City shall review the good
faith compliance of Developer
7.2 Standards for Annual Review. During the Annual Review, Developer shall be
required to demonstrate good faith compliance with the terms of this Agreement.
Developer is in compliance with
the terms and conditions of this Agreement. If the City Council or its designee finds
and determines that Developer is not in good faith compliance, then City may
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proceed in accordance with Section 9 pertaining to the potential default of
Developer and the opportunities for cure. Developer
fees and costs incurred in connection with the Annual Review.
7.3 Procedures for Annual Review. The Annual Review shall be conducted by City
Council or its designee. Developer
notice of any date scheduled for an Annual Review.
7.4 Certificate of Compliance. At any time during any year that the City Council or its
designee finds that Developer is not in default under this Agreement, City shall,
upon written request by Developer, provide Developer with a written certificate of
equest.
7.5 Failure of Periodic ReviewDeveloper
compliance with the terms and conditions of this Agreement shall not constitute or
be asserted by City or Developer as a breach of this Agreement.
8. THIRD PARTY LITIGATION.
8.1 General Plan Litigation. City has determined that this Agreement is consistent with
its General Plan, LCP, and Subarea Plan. Developer has reviewed the General Plan,
LCP, and Subarea Plan
any liability under this Agreement or otherwise for any failure of City to perform
under this Agreement, or for the inability of Developer to develop the Property as
contemplated by the Project Approvals, Subsequent Project Approvals, or this
Agreement, if such failure or inability is the result of a judicial determination that
part or all of the General Plan, LCP, or Subarea Plan is invalid, inadequate, or not
in compliance with law.
8.2 Third Party Litigation Concerning Project or Agreement. Developer shall, at
Developersole expense, defend, indemnify, and hold harmless the City, and its
elected and appointed officials, officers, employees, and independent contractors
engaged in Project from any
third-party claim, action or proceeding against any City Party to attack, set aside,
void, or annul the Project Approvals, Subsequent Project Approvals, or this
Agreement. City shall promptly notify Developer of any such claim, action or
proceeding, and City shall reasonably cooperate in the defense. City may in its
discretion participate in the defense of any such claim, action or proceeding. If City
uses its discretion to participate in the defense of any such claim, action or
proceeding, Developer shall pa
costs incurred in that defense.
8.3 Indemnity. In addition to the provisions of Sections 8.1 and 8.2, Developer shall,
sole expense, indemnify, defend, and hold free and harmless all City
Parties engaged in Project planning or implementation from and against any third-
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party liability or claims based or alleged upon any act or omission of Developer, its
officers, agents, employees, subcontractors, independent contractors (each a
, for property damage,
bodily injury or death (Developer, or any other element of
damage of any kind or nature, relating to or arising from development of the
Project, except for claims for damages arising through active negligence or willful
misconduct of any City Party. Developer shall defend, at Developersole expense,
all City Parties in any legal action based upon such
alleged acts or omissions of any Developer Party. City may in its discretion
participate in the defense of any such legal claim, action, or proceeding. If City
uses its discretion to participate in the defense of any such claim, action or
proceeding, Developer
costs incurred in that defense.
8.4 Environmental Contamination. Developer shallsole expense,
indemnify, and hold free and harmless all City Parties from and against any
liability, based or alleged, upon any act or omission of Developer, or any of its
officers, agents, employees, subcontractors, predecessors in interest, successors,
assigns, or independent contractors, resulting in any violation of any federal, state
or local law, ordinance or regulation relating to industrial hygiene or to
environmental conditions on, under, or about the Property, including, but not
limited to, soil and groundwater conditions, and Developer shall defend, at its sole
all City Parties in any action based or asserted
upon any such alleged act or omission. City may in its discretion participate in the
defense of any such claim, action, or proceeding. If City uses its discretion to
participate in the defense of any such claim, action or proceeding, Developer shall
8.5 City to Approve Counsel; Conduct of Litigation. With respect to Sections 8.1
through 8.4, City reserves the right either (a) to approve the attorney(s) that
Developer selects, hires, or otherwise engages to defend City, which approval shall
its own defense. If City elects to conduct its own defense, Developer shall
reimburse City f
such defense with the understanding that Developer
to the maximum extent feasible, cooperate with
Developer. Developer shall have the right to audit all billings for such
fees and expenses.
8.6 Survival. The provisions of Sections 8.1 through 8.5 inclusive, shall survive the
termination, cancellation, or expiration of this Agreement.
9. DEFAULTS AND REMEDIES.
9.1 Default by Developer. Developer shall be in default of this Agreement if it does
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any or any combination of the following:
9.1.1 Willfully, or negligence, violates any order,
ruling or decision of any administrative or judicial body having
jurisdiction over the Property or the Project.
9.1.2 Fails to cure a material breach of this Agreement within the time set forth
in a written notice of default from City.
9.2 Default by City. City shall be in default of this Agreement only if it fails to cure a
material breach of this Agreement within the time set forth in a written notice of
default from the Developer to City.
9.3 Notice and Termination. A Party alleging a default by any other Party shall serve
written notice thereof. Each such notice shall state with specificity all of the
following:
9.3.1 The nature of the alleged default, with reference to the specific Sections
of the Agreement that are alleged to have been breached and the specific
facts supporting those allegations.
9.3.2 The manner in which the alleged default may be satisfactorily cured.
9.3.3 A period of time in which the default may be cured. The notice of default
shall allow at least sixty (60) days to cure the default. If the default is of
such a nature as not to be susceptible of cure within sixty (60) days using
diligent efforts, then the defaulting Party shall only be deemed to have
failed to cure the default if it fails diligently to commence such cure
within sixty (60) days or if it fails diligently to prosecute such cure to its
conclusion.
9.4 Default Remedies. A Party who complies with the notice of default and opportunity
to cure requirements of Section 9.3 may, at its option, institute legal action to cure,
correct, or remedy the alleged default as provided in this Agreement.
9.5 Developer. Developer acknowledges that City would not have entered
into this Agreement if it were to be liable in damages under or with respect to all or
any part of the development of the Project on the Property. Accordingly, Developer
shall not sue City for damages or monetary relief for any matter related to the
development of the Project on the Property. Developer
be limited to declaratory and injunctive relief, mandate, and specific performance.
In the event that Developer desires to enforce any term or provision of this
Agreement by specific performance, City expressly agrees that an action in
damages is inadequate and unavailable. Given these facts and circumstances, City
warrants and represents that damages for a breach are inadequate and/or unavailable
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and City expressly waives the right to contest any request by Developer to this
Agreement for specific performance on the basis that damages are adequate.
9.6 . In the event of an uncured default by Developer, City may pursue
any and all available legal or equity remedies for the default.
9.7 Waiver; Remedies Cumulative. All waivers of performance must be in a writing
signed by the Party granting the waiver. There are no implied waivers. Failure by
City or Developer to insist upon the strict performance of any provision of this
Agreement, irrespective of the length of time for which such failure continues, shall
not constitute a waiver of the right to demand strict compliance with this Agreement
in the future.
A written waiver affects only the specific matter waived and defines the
performance waived and the duration of the waiver. Unless expressly stated in a
written waiver, future performance of the same or any other condition is not waived.
A Party who complies with the notice of default and opportunity to cure
requirements of Section 9.3, where applicable, and elects to pursue a legal or
equitable remedy available under this Agreement does not waive its right to pursue
any other remedy available under this Agreement, unless prohibited by statute,
court rules, or judicial precedent.
Delays, tolling, and other actions arising under Section 11.15 shall not be
considered waivers subject to this Section 9.7.
9.8 Alternative Dispute Resolution. Any dispute between the Parties may, upon the
mutual agreement of the Parties, be submitted to mediation, binding arbitration, or
any other mutually agreeable form of alternative dispute resolution. While an
alternative dispute process is pending, the statute of limitation shall be tolled for
any claim or cause of action which either of the Parties may have against the other.
10. ENCUMBRANCES, ASSIGNMENTS, AND RELEASES.
10.1 Discretion to Encumber. This Agreement shall not prevent or limit Developer, in
any manner, at Developercumbering some or all of the
Property or any improvement on the Property by any mortgage, deed of trust, or
other security device to secure financing related to the Property or the Project.
10.2 Mortgagee Protection. City acknowledges that the lender(s) providing financing
secured by the Property and/or its improvements may require certain Agreement
interpretations and modifications. City shall, at any time requested by Developer
or the lender, meet with Developer and representatives of such lender(s) to
negotiate in good faith any such interpretation or modification. City will not
unreasonably withhold or delay its consent to any requested interpretation or
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modification provided such interpretation or modification is consistent with the
intent and purposes of this Agreement. Any Mortgagee of the Property shall be
entitled to the following rights and privileges:
10.2.1 Neither entering into this Agreement nor a breach of this Agreement
shall defeat, render invalid, diminish, or impair the lien of any mortgage
or deed of trust on the Property made in good faith and for value.
10.2.2 If City timely receives a request from a Mortgagee requesting a copy of
any notice of default given to Developer under the terms of this
Agreement, City shall provide a copy of that notice to the Mortgagee
within ten (10) days of sending the notice of default to Developer. The
Mortgagee shall have the right, but not the obligation, to cure the default
during the remaining cure period allowed Developer under Section 9.3
of this Agreement.
10.2.3 Except as otherwise provided within this Agreement, any Mortgagee
who comes into possession of some or all of the Property pursuant to
foreclosure of a mortgage or deed of trust, or deed in lieu of such
foreclosure or otherwise, shall:
10.2.3.1 Take that property subject to the terms of this Agreement and as
Developer
10.2.3.2 Have the rights and obligations of an Assignee as set forth in
Sections 10.5;
10.2.3.3 Have the right to rely on the provisions of Section 4 of this
Agreement, provided that any development proposed by the
Mortgagee is in substantial conformance with the terms of this
Agreement; and
10.2.3.4 Not be liable for any defaults, whether material or immaterial, or
monetary obligations of Developer arising prior to acquisition of
title to the Property by the Mortgagee, except that the Mortgagee
may not pursue development pursuant to this Agreement until all
delinquent and current fees and other monetary obligations due
under this Agreement for the portions of the Property acquired
by the Mortgagee have been paid to City.
10.3 Estoppel Certificate. Within ten (10) business days following a written request by
either of the Parties, the other Party shall execute and deliver to the requesting Party
a statement certifying that (i) either this Agreement is unmodified and in full force
and effect or there have been specified (date and nature) modifications to the
Agreement, but it remains in full force and effect as modified; and (ii) either there
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are no known current uncured defaults under this Agreement or that the responding
Party alleges that specified (date and nature) defaults exist. The statement shall
also provide any other reasonable information requested. The failure to timely
deliver this statement shall constitute a conclusive presumption 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. Developer
shall pay to City all reasonable administrative costs incurred by City in connection
of such certificates.
10.4 Transfer or Assignment. Subject to Section 10.6, Developer shall have the right,
s
with a transfer of Developer
Property
together with the sale, transfer, or assignment of all or any portion of Developer
interest in the Transferred Property.
At least fifteen (15) business days prior to the effective date of any Assignment,
Developer shall notify City in writing of the proposed Assignment and provide City
with an Assignment and Assumption Agreement, in a form substantially similar to
Exhibit Jy, the
Developer under this Agreement remaining to be performed at the time of the
Assignment with respect to the Transferred Property.
10.5 Effect of Assignment. Subject to Section 10.4 and unless otherwise stated within
the Assignment, upon an Assignment:
10.5.1 The Assignee shall be liable for the performance of all obligations of
Developer with respect to Transferred Property, but shall have no
obligations with respect to the portions of the Property, if any, not
If the Assignee of the Transferred
Property defaults under this Agreement, such default shall not constitute
a default by the Developer of the Retained Property.
10.5.2 The Developer of the Retained Property shall be liable for the
performance of all obligations of Developer with respect to Retained
Property, but shall have no further obligations with respect to the
Transferred Property. If the Developer of the Retained Property defaults
under this Agreement, such default shall not constitute a default by the
Assignee of the Transferred Property.
10.5.3
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shall be subject to the terms of this Agreement to the same extent as if
the Assignee were the Developer provided, however, that Assignee shall
not have the right to seek an amendment to this Agreement, the Project
Approvals, or the Subsequent Project Approvals with respect to the
Transferred Property without the written consent of the Developer of the
Retained Property. The Developer of the Retained Property shall retain
the right to seek an amendment to this Agreement, the Project Approvals,
or the Subsequent Project Approvals with respect to the Retained
Property without the written consent of the Assignee.
10.6 for any Assignment of
all
required if the Assignment is to an entity that is 100% owned by Developer or
subject to the control of Developer. It shall be a presumption that control with
respect to a corporation or limited liability company is the right to exercise, directly
or indirectly, more than fifty percent (50%) of the voting rights attributable to the
controlled corporation or limited liability company, and, with respect to any
individual, partnership, trust, other entity or association, control is the possession,
indirectly or directly, of the power to direct or cause the direction of the
management or policies of the controlled entity.
11. MISCELLANEOUS PROVISIONS.
11.1 Rules of Construction. The singular includes the plural; the masculine gender
11.2 Binding Effect of Agreement. This Agreement shall be recorded against the
Property and shall run with the land. The Project shall be carried out on the
Property in accordance with the terms of this Agreement. Until released or
terminated pursuant to the provisions of this Agreement or until Developer has fully
performed its obligations arising out of this Agreement, no portion of the Property
shall be released from this Agreement.
11.3 Entire Agreement. This Agreement constitutes the entire understanding and
agreement of City and Developer with respect to the matters set forth in this
Agreement. This Agreement supersedes all negotiations or previous agreements
between City and Developer respecting the subject matter of this Agreement.
11.4 Recorded Statement Upon Termination. Upon the completion of performance of
this Agreement or its cancellation or termination, a statement evidencing
completion, cancellation, or termination signed by the appropriate agents of City,
shall be recorded in the Official Records of San Diego County, California.
11.5 Amendment or Cancellation of Agreement. This Agreement may be amended from
time to time or canceled only by the written consent of both City and Developer in
-24-
the same manner as its adoption, as set forth in California Government Code
Section 65868. Any amendment or cancellation shall be in a form suitable for
recording in the Official Records of San Diego County, California. An amendment
or other modification of this Agreement will continue to relate back to the Effective
Date of this Agreement (as opposed to the effective date of the amendment or
modification), unless the amendment or modification expressly states otherwise.
11.6 Minor Changes/Operating Memorandum. The provisions of this Agreement
require a close degree of cooperation between the Parties. It is anticipated that
minor changes to the Project may be required from time to time to accommodate
design changes, engineering changes, and other refinements related to the details
ect that
are otherwise consistent with the Project Approvals, and which do not result in a
change in the type of use, an increase in density or intensity of use, significant new
or increased environmental impacts that cannot be mitigated, or violations of any
applicable health and safety regulations in effect on the Approval Date.
Accordingly, the Parties may mutually consent to adopting
through their signing of an operating memorandum reflecting the minor changes
without having to amend this Agreement. Neither the minor changes nor any
operating memorandum shall require public notice or hearing. The City Attorney
and City Manager shall be authorized to determine whether proposed modifications
and refinements are minor changes subject to this Section or more significant
changes requiring amendment of this Agreement. The City Manager may execute
any operating memorandum for minor changes without City Council action.
11.7 Project as a Private Undertaking. It is specifically understood by City and
Developer 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 unless City accepts the improvements pursuant to the provisions of this
Agreement or in connection with subdivision map approvals; and (iii) Developer
shall have the full power and exclusive control of the Property, subject to the
obligations of Developer set forth in this Agreement.
11.8 Incorporation of Recitals. Each of the Recitals set forth at the beginning of this
Agreement are part of this Agreement.
11.9 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.
11.10 Consent. Where the consent or approval of City or Developer is needed to
implement Development under this Agreement, the consent or approval shall not
be unreasonably withheld, delayed, or conditioned.
11.11 Covenant of Cooperation. City and Developer shall cooperate and deal with each
-25-
other in good faith and assist each other in the performance of the provisions of this
Agreement. In addition, City staff shall cooperate with Developer in order to
facilitate Developer obtaining any required Project approvals from the California
Coastal Commission.
11.12 Execution and Recording. The City Clerk shall cause a copy of this Agreement or,
ppropriate
representatives of City and recorded with the Office of the County Recorder of San
Diego County, California, within ten (10) days following the Effective Date. The
failure of City to sign and/or record this Agreement or notice thereof shall not affect
the validity of and binding obligations set forth within this Agreement.
11.13 Relationship of City and Developer. The contractual relationship between City and
Developer arising out of this Agreement is one of independent contractor and not
agency. This Agreement does not create any third-party beneficiary rights.
11.14 Notices. All notices, demands, and correspondence required or permitted by this
Agreement shall be in writing and delivered in person, sent by electronic mail, 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, California 91910
Attn: City Manager
With a copy to:
City Attorney
City of Chula Vista
276 Fourth Avenue
Chula Vista, California 91910
If to Developer, to:
North C.V. Waterfront L.P.
1775 Hancock Street, Suite 200
San Diego, California 92106
Attn: Ashok Israni, Chairman
Sergio Sandoval, Senior Project Manager
AND
Thomas P. Sayer, Esq.
9914 Scripps Ranch Blvd., #284
San Diego, California 92131
-26-
City or Developer may change its address by giving notice in writing to each of the
other names and addresses listed above. Thereafter, notices, demands, and
correspondence shall be addressed and transmitted to the new address. Notice shall
be deemed given upon personal delivery, the date of actual receipt or, if mailed, not
later than two (2) business days following deposit in the United States mail.
11.15 . Notwithstanding Section 9,
performance by either Party of its obligations under this Agreement shall be
excused, and the Term shall be extended, for periods equal to the time during which
(1) litigation is pending which challenges any matter, including compliance with
CEQA or any other local, state, or federal law, related in any way to the approval
or implementation of all or any part of the Project Approvals or Subsequent Project
Approvals. Any such extension shall be equal to the time between the filing of
litigation, on the one hand, and the entry of final judgment or dismissal, on the
other. All such extensions shall be cumulative; (2) a delay is caused by reason of
any event beyond the control of City or Developer which prevents or delays
performance by City or Developer of obligations under this Agreement. Such
events shall include, by way of example and not limitation, acts of nature, riots,
strikes, or damage to work in process by reason of fire, mud, rain, floods,
earthquake, or other such casualties. Such an event may include a severe market or
business downturn, recession, collapse or contraction of financial and capital
markets, and the unavailability of reasonable market financing. If City or
Developer seeks excuse from performance , it shall provide
written notice of such delay to the other party within thirty (30) days of the
commencement of such delay. The Impacted Party shall resume the performance
of its obligations as soon as practicable after the removal of the cause for delay. If
the delay or default, is beyond the control of City or Developer it shall be excused,
and an extension of time for such cause shall be granted in writing for the period of
the enforced delay, or longer as may be mutually agreed upon. Any disagreement
between the Parties with respect to whether this Section applies to a particular delay
or default is subject to the filing by either Party of an action for judicial review of
the matter, including requests for declaratory and/or injunctive relief.
11.16 Interpretation and Governing Law. In any dispute regarding this Agreement, the
Agreement shall be governed and interpreted in accordance with the laws of the
State of California. Venue for any litigation concerning this Agreement shall be in
San Diego County, California.
11.17 Time of Essence. Time is of the essence in the performance of the provisions of
this Agreement as to which time is an element.
11.18 Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the Parties and their respective successors and assigns.
11.19 Future Litigation Expenses.
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11.19.1 Payment to Prevailing Party. If either Party brings a legal or equitable
proceeding against the other Party which arises in any way out of this
Agreement, the prevailing Party shall be entitled to recover its reasonable
that proceeding.
11.19.2 Scope of Fees
fees on any appeal and in any post-judgment proceedings to collect or
enforce the judgment. This provision is separate and several and shall
survive the termination of this Agreement.
11.20 Appeal to City Council. Developer may appeal directly to the City Council any
decision by the City Manager concerning the interpretation and/or administration
of this Agreement. Developer shall file any such appeal with the City Clerk within
Council shall render a decision at the next available noticed public hearing.
12. EXHIBITS. All exhibits attached to this Agreement are incorporated as a part of this
Agreement. Those exhibits are:
-28-
Exhibit Description
Legal Description and Depiction of the Property
General Description and Depiction of the Project
Phase I Project Approvals
J Street Sewer Improvements
J Street Sweep Improvements
RESERVED
RESERVED
RESERVED
RESERVED
Assignment and Assumption Agreement
RESERVED
Project Entitlements
(Signatures on following page)
-29-
Developer and City have executed this Agreement on the dates set forth below.
CITY DEVELOPER
CITY OF CHULA VISTA, a California NORTH C.V. WATERFRONT L.P., a
charter city and municipal corporation California limited partnership
By: By: PACIFICA HOSPITALITY GROUP,
Mayor INC., a Nevada corporation, its sole general
partner
Date:
By:
ATTEST:
Its:
By: Date:
City Clerk
APPROVED AS TO FORM:
By:
City Attorney
-30-
LEGAL DESCRIPTION AND DEPICTION OF THE PROPERTY
GENERAL DESCRIPTION AND DEPICTION OF THE PROJECT
Chula Vista Bayfront Master Planned Project
GeneralProject Description& Depiction of Property
I.Pacifica Companies Development Portion
Within thePlanarea, Pacifica Companies’ development portion(the “Property”)will
consist of 33 acres of1,500residentialcondos,420,000 SF ofcommercial office&retail
space, and a 250-room hotel(the “Project”).North C.V. Waterfront L.P. is an affiliate of
Pacifica Companies, and is defined as the Developer in the accompanying Development
Agreement.The Project is intended to be constructed in phases over the length of the
Development Agreement.
C
PHASE IPROJECTAPPROVALS
·Development Agreement
·Tentative subdivision map
·CoastalDevelopmentPermit
·Local Coastal Program Amendment
·Design Review approval
J STREET SEWER IMPROVEMENTS
J STREET SWEEP IMPROVEMENTS
EXHIBIT F
RESERVED
EXHIBIT G
RESERVED
EXHIBIT H
RESERVED
RESERVED
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION OF
DEVELOPMENT AGREEMENT AMONG CITY OF CHULA VISTA AND
THIS ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT
(“Assignment”) is made as of the ___ day of __________, 20__ (), by and
among the(“Developer”) and
(“Assignee”) withreference to the following facts:
RECITALS
A.Developer has entered into that certain Development
Agreement, dated ______, ____ by and between the City of Chula Vista
(“City”), on the one hand, and the X
B.and Y Capital Partners on the other hand (“)
for certain real property consisting of approximately_______ acres of
land located in the City, more particularly described in Exhibit “A”
(“Property”).
C.Developer desires to assign and delegate, and Assignee desires to accept and
assume, all of Developer’s rights and obligations under the Agreement in accordance with the
terms and conditions set forth herein.
D.By signing this Assignment, City approves the Assignment in accordance with the
terms and conditions set forth herein and in the Agreement.
AGREEMENT
NOW, THEREFORE,for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Developer and Assignee do hereby agree as follows:
1.Assignment and Assumption. Effective as of the Effective Date,Developer
hereby assigns, transfers, and conveys to Assignee all of Developer’s rights, interest, duties,
liabilities, and obligations in, to, and under the Agreement, and Assignee hereby accepts and
assumes all such rights, interests, duties, liabilities,and obligations under the Agreement from
Developer for \[the Property or a portion of the Property\] (“Assigned Property”) \[, except to the
extent Developer has retained a portion of the Property (the “Retained Property”)\].
2.City Consent to Assignment.Effective as of the Effective Date, City hereby
consents to the Assignment and hereby fully releases and forever discharges Developer from any
and all obligations to City under the Agreement for the Assigned Property, \[except Developer’s
obligations with respect to the Retained Property\].
3.Entire Agreement. This Agreement represents the final and entire agreement
between the parties in connection with the subject matter hereof, and may not be modified except
by a written agreement signed by both Developerand Assignee.
G-2
60093.00023\\8457554.1
4.Governing Law. This Agreement has been prepared, negotiated, and executed in,
and shall be construed in accordance with, the laws of the State of California, without regard to
conflict of law rules.
IN WITNESS WHEREOF, the parties heretohave executed this Agreement as of the date
first above written.
Developer:
By:
Assignee:
By:
Name:
Its:
City:
City of Chula Vista,
a California Municipal Corporation
By:
Name:
Its:
K
RESERVED
L
PROJECT ENTITLEMENTS
·Chula VistaBayfront MasterPlan,as jointly approved by the San Diego Port Authority
Board of Commissioners and City Council of Chula Vista, 2005
·Chula Vista Bayfront Master Plan certified Environmental Impact Report,as jointly
approved by the San Diego Port Authority Board of Commissioners and City Council of
Chula Vista, 2010
·Chula Vista Bayfront Master Plan, as approved by the California Coastal Commission, 2012
·City ofChula VistaBayfront Specific Plan,Local Coastal Program, “LCP”, 2012
·City of Chula Vista Bayfront Land Use Plan, 2012
·Chula Vista Multiple Species Conservation Plan Subarea Plan (“Subarea Plan”), 2013
ATTACHMENT -3-
ORDINANCE NO.
ORDINANCE OF THE CITY OF CHULA VISTA APPROVING
A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF
CHULA VISTA AND NORTH C.V. WATERFRONT L.P. FOR
THE DEVELOPMENT OF APPROXIMATELY 33 ACRES OF
LAND LOCATED IN THE HARBOR DISTRICT OF THE
CHULA VISTA BAYFRONT MASTER PLAN AREA
WHEREAS, the property which is the subject matter of this ordinance is identified in the
approximately 33 acres of land located in the Harbor District of the Chula Vista Bayfront Master
WHEREAS, the Development Services Director has reviewed the proposed project for
compliance with the California Environmental Quality Act (CEQA) and has determined that the
project was covered in previously certified Environmental Impact Report UPD#83356-EIR-
658/SCH#2005081077. Thus, no additional environmental review is required; and
WHEREAS, the Planning Commission set the time and place for a hearing on said
Development Agreement and notice of said hearing, together with its purpose, was given by its
publication in a newspaper of general circulation in the City and its mailing to property owners
within 500 feet of the exterior boundaries of the Property at least ten days prior to the hearing; and
WHEREAS, the hearing was held at the time and place as advertised, namely 6:00 p.m.
July 11, 2018, in the Council Chambers, 276 Fourth Avenue, and the Planning Commission voted
0-0-0-0 to approve Planning Commission Resolution PCM18-01 recommending to the City
Council approval of the Development Agreement between the City of Chula Vista and North C.V.
Waterfront L.P. for the development of approximately 33 acres of land located in the Harbor
District of the Chula Vista Bayfront Master Plan Area
WHEREAS, on July 17, 2018, a duly noticed public hearing was scheduled before the City
Council of the City of Chula Vista to consider adopting the ordinance to approve the Development
Agreement; and
WHEREAS, staff has reviewed the Development Agreement and determined it to be
consistent with ; and
NOW THEREFORE the City Council of the City of Chula Vista does ordain as follows:
Section I. Planning Commission Record
The proceedings and all evidence introduced before the Planning Commission at their
public hearing held on July 11, 2018 and the minutes and resolutions resulting therefrom, are
hereby incorporated into the record of this proceeding. These documents, along with any
H:\\DSD\\Boards & Commissions\\Planning Commission\\2018 Meetings\\07-11-2018\\Development Agreement - TA\\Final Docs\\Pacifica DA Ordinance 2018-06-
25.docx
Ordinance
Page 2
documents submitted to the decision makers, shall comprise the entire record of the proceedings
for any California Environmental Quality Act (CEQA) claims.
Section II. Compliance with CEQA
The City Council hereby finds, based upon their independent review and judgement, that
the adoption of the ordinance approving the Development Agreement for the project, as described
and analyzed in the certified Environmental Impact Report UPD#83356-EIR-
658/SCH#2005081077, would have no new effects that were not examined in said certified EIR
(CEQA Guideline 15168 (c)(2)).
Section III. Consistency with General Plan and Local Coastal Program
The City Council finds that the proposed Development Agreement is consistent with the
Cit
Agreement implement the General Plan and the Local Coastal Program by providing a
comprehensive program to implement the Project, as approved.
Section IV. Action
The City Council hereby adopts an Ordinance approving the Development Agreement
between the City of Chula Vista and North C.V. Waterfront L.P. for the development of
approximately 33 acres of land located in the Harbor District of the Chula Vista Bayfront Master
Program.
Section V. Severability
If any portion of this Ordinance, or its application to any person or circumstance, is for any
reason held to be invalid, unenforceable or unconstitutional, by a court of competent jurisdiction,
that portion shall be deemed severable, and such invalidity, unenforceability or unconstitutionality
shall not affect the validity or enforceability of the remaining portions of the Ordinance, or its
application to any other person or circumstance. The City Council of the City of Chula Vista
hereby declares that it would have adopted each section, sentence, clause or phrase of this
Ordinance, irrespective of the fact that any one or more other sections, sentences, clauses or
phrases of the Ordinance be declared invalid, unenforceable or unconstitutional.
Section VI. Construction
The City Council of the City of Chula Vista intends this Ordinance to supplement, not to
duplicate or contradict, applicable state and federal law and this Ordinance shall be construed in
light of that intent.
Section VII. Effective Date
This Ordinance shall take effect and be in force on the thirtieth day after its final passage.
Ordinance
Page 3
Section VIII. Publication
The City Clerk shall certify to the passage and adoption of this Ordinance and shall cause
the same to be published or posted according to law.
Presented by Approved as to form by
_____________________________________ ____________________________________
Kelly G. Broughton, FASLA Glen R. Googins
Director of Development Services City Attorney
RESOLUTION NO. PCM18-01
RESOLUTION OF THE CITY OF CHULA VISTA PLANNING
COMMISSION RECOMMENDING THAT THE CITY COUNCIL
APPROVE A DEVELOPMENT AGREEMENT BETWEEN THE
CITY OF CHULA VISTA AND NORTH C.V. WATERFRONT L.P.
FOR THE DEVELOPMENT OF APPROXIMATELY 33 ACRES OF
LAND LOCATED IN THE HARBOR DISTRICT OF THE CHULA
VISTA BAYFRONT MASTER PLAN AREA
WHEREAS, North C.V. Waterfront L.P. (the Developer) has requested a
Development Agreement affecting approximately 33 acres of land located in the Harbor
District of the Chula Vista Bayfront Master Plan Area (the ; and
WHEREAS, the Property is currently undeveloped, but has been approved for the
development of up to 1,500 residential units with 15,000 square feet of ground floor
retail, a 250-room hotel, and 420,000 square feet of commercial, office, and retail uses
(the Project; and
WHEREAS, City staff has negotiated a development agreement with the
Developer for certain mutual benefits of the Project and determined it to be consistent
eneral Plan, Local Coastal Program, and Balanced Communities Policy
; and
WHEREAS, the Development Services Director has reviewed the proposed
activity for compliance with the California Environmental Quality Act (CEQA) and has
determined that the activity was covered in previously certified Environmental Impact
Report UPD#83356-EIR-658/SCH#2005081077. Thus, no additional environmental
review is required.; and
WHEREAS, the Development Services Director set the time and place for a
hearing on the Project, and notice of said hearing, together with its purpose, was given by
its publication in a newspaper of general circulation in the City and its mailing to
property owners within 500 feet of the exterior boundaries of the property, at least 10
days prior to the hearing; and
WHEREAS, the hearing was held at the time and place as advertised, namely
6:00 p.m., July 11, 2018, in the Council Chambers, 276 Fourth Avenue, before the
Planning Commission and the hearing was thereafter closed; and
WHEREAS, the Planning Commission having received certain evidence on July
11, 2018, as set forth in the record of its proceedings and incorporated herein by this
reference, and having made certain Findings, as set forth in the draft City Council
Ordinance also incorporated herein by this reference, recommends that the City Council
approve the Project; and
PC Resolution PCM18-01
July 11, 2018
Page 2
NOW, THEREFORE, BE IT RESOLVED BY THE PLANNING COMMISSION
OF THE CITY OF CHULA VISTA AS FOLLOWS:
1. Based upon the recitals set forth above, and all other written and oral
evidence received, the Planning Commission finds that:
a. The Development Agreement is consistent with the objectives,
policies, general land uses
Local Coastal Program.
b. The Development Agreement is consistent with the objectives and
policies of the
c. The Development Agreement provides a positive effect on the
orderly development of the property.
d. The Development Agreement provides sufficient public benefit to
the community to justify entering into the agreement.
2. The Planning Commission recommends that the City Council adopt an
ordinance approving the Development Agreement in substantially the
same form as the attached Draft City Council Ordinance, with such minor
modifications as may be required or approved by the City Attorney.
3. The Planning Commission directs that a copy of this Resolution and the
draft City Council Ordinance be transmitted to the City Council.
Presented by: Approved as to form by:
____________________________ ______________________________
Kelly G. Broughton, FASLA Glen R. Googins
Development Services Director City Attorney
PC Resolution PCM18-01
July 11, 2018
Page 3
PASSED AND APPROVED BY THE PLANNING COMMISSION OF THE
th
CITY OF CHULA VISTA, CALIFORNIA, this 11 day of July, 2018, by the following
vote, to-wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
____________________________
Gabe Gutierrez, Chairperson
ATTEST:
____________________________
Patricia Laughlin, Board Secretary
Attachment 2 - Development Agreement
Revisions to Development Agreement
TABLE OF CONTENTS
Page
RECITALS .................................................................................................................................... 1
AGREEMENT............................................................................................................................... 3
1. DEFINITIONS................................................................................................................... 3
1.1 Agreement.............................................................................................................. 3
1.2 Approval Date........................................................................................................ 3
1.3 CBC Policy............................................................................................................4
1.4 CFD........................................................................................................................4
1.5 City......................................................................................................................... 4
1.6 City Charter............................................................................................................4
1.7 City Council...........................................................................................................4
1.8 City Manager .........................................................................................................4
1.9 City Municipal Code.............................................................................................. 4
1.10 Day......................................................................................................................... 4
1.11 Developer...............................................................................................................4
1.12 Developer's Vested Right......................................................................................4
1.13 DIFs........................................................................................................................4
1.14 Effective Date ........................................................................................................4
1.15 Eli"i le- Pabli Pa iliti sRESERVED .................. 4
1.16 Enabling Ordinance ...............................................................................................4
1.17 Existing Land Use Regulations.........................................
1.18 C-121) , .a+; oi. ,RESERVED ........................................................................4
1.19 General Plan........................................................................................................... 5
1.20 Geek „a P„i; sRESERVED ............................................................................ 5
1.21 J Street Sewer Improvements................................................................................. 5
1.22 J Street Sweep Improvements................................................................................ 5
1.23 J Street Gateway Monument.................................................................................. 5
1.24 Land Use Regulations............................................................................................ 5
1.25 LCP........................................................................................................................ 5
1.26 Mortgagee.............................................................................................................. 5
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TABLE OF CONTENTS
(continued)
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4]2 JStreet Pump Station and Force Mains............................................................... |2
4.13 Reclaimed Water.................................................................................................. |2
4.14 Transportation and Traffic Signal Portion ofDevelopment Impact Fees............ 12
4]5 ] 8tnzet Gateway Monument................................................................................ |3
4]6 Recreational Facilities DIF Credit....................................................................... |3
4]7 Park Acquisitionand DcvdopinentDIF Credit................................................... |3
| 4]8i RESERVED------------------- )4
� - -' '� _—.-- � ---~~~~~~~~_~~~�
4]9 UudcrgroondingofOverhead Utilities Lines ...................................................... l4
4.20 Future Use ofProject Revenues........................................................................... |4
4.21 Assistance from Other Governments----------------------. l4
5. DEVELOPER'S OBLIGATIONS AND PROVISION OFPUBLIC BENEFITS.......... |4
5.1 Public Benefits---------------------------------' |4
6. TERM AND TERMINATION........................................................................................ l5
8] Term o[Agreement.............................................................................................. l5
6.2 Termination.......................................................................................................... l8
6.3 Effect ofTermination........................................................................................... \6
64 Release ofObligations With Respect to Individual Lots Upon Certification
oPOccupancy....................................................................................................... |6
0.5 Term of and Other Project Approvals..................................................... |7
7. ANNUAL REVIEW........................................................................................................ !7
7] Timing ofAnnual Review ................................................................................... l7
7.2 Standards for Annual Review.............................................................................. |7
7.3 Procedures for Annual Review............................................................................ l8
74 Certificate ofCompliance.................................................................................... |8
7.5 Failure o[Periodic Review .................................................................................. l5
8. THIRD PARTY LITIGATION ....................................................................................... |8
8] General Plan Litigation........................................................................................ |8
82 Third Party Litigation Concerning Project or Agreement -----------' |8
8.3 Indemnity............................................................................................................. l8
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the Enabling Ordinance amending the General Plan, LCP, and Subarea Plan to
allow for the development of the Project on the Property.
1.3 CBC Policy. "CBC Policy" means the City's Guidelines to the Balanced
Communities Policy adopted as part of the Housing Element of the General Pian.
1.4 R-ESE4ZALE--DCFD. "CFD- means a Community Facilities District formed pursuant
to the provisions of the "Mello-Roos Community Facilities Act of 1982", being
Chapter 2.5, Part 1, Division 2, Title 5 of the Government Code of the State of
California.
1,5 City. "City" means the City of Chula Vista, a California charter city and municipal
corporation.
1.6 City Charter. "City Charter"means the City of Chula Vista's City Charter.
1.7 City Council. "City Council" means the governing body of City.
1.8 City Manager. "City Manager" means the City Manager of City or his or her
designee.
1.9 City Municipal Code. "City Municipal Code" means the Chula Vista Municipal
Code.
1.10 Day. "Day" means a calendar day unless specifically stated as a "business day."
1.11 Developer. "Developer" means North C.V. Waterfront L.P., a California limited
partnership, and Developer's successors and assigns as set forth in this Agreement.
1.12 Developer's Vested Right. "Developer's Vested Right" shall have the meaning set
forth in Section 4.1.
1.13 DIFs. "DIFs" means City's Development Impact and In Lieu Fees.
1.14 Effective Date. "Effective Date" mean the date on which the Enabling Ordinance
for this Agreement becomes effective and the Parties have each signed this
Agreement.
1.15 RESERVED.
1.16 Enabling Ordinance. "Enabling Ordinance" means the ordinance, resolution, or
legislative action necessary to approve the Project Approvals or this Agreement.
1.17 Existing Land Use Regulations. `Existing Land Use Regulations" mean all Land
Use Regulations in effect on the Approval Date, including the General Plan, LCP,
and Subarea Plan.
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1.18 RESERVED.
1.19 General Plan. "General Plan" means the General Plan of the City of Chula Vista.
1.20 RESERVED.
1.21 J Street Sewer Improvements. "J Street Sewer Improvements" means the sewer
improvements required for the Project as shown on the attached Exhibit"D."
1.22 J Street Sweep Improvements. "J Street Sweep Improvements" means the
improvements potentially required for the Project as shown on the attached Exhibit
«E "
1.23 J Street Gateway Monument. "J Street Gateway Monument" means the monument
Developer has agreed to design, located at the J Street entrance just west of
Interstate Highway 5, which shall consist of street improvements, hardscape, and
landscape improvements necessary to create a ceremonial entrance to the Chula
Vista Bayfront and the Project area.
1.24 Land Use Regulations. "Land Use Regulations" means all ordinances, resolutions,
codes, rules, regulations and official policies of City governing the development
and use of land,including,without limitation,the permitted use of land,the density
or intensity of use, subdivision requirements, timing and phasing of development,
the maximum height and size of buildings, the provisions for reservation or
dedication of land for public purposes, and the design, improvement, construction,
and initial occupancy standards and specifications applicable to the Project. "Land
Use Regulations" do not include any City ordinance, resolution, code, rule,
regulation or official policy governing:
1.24.1 The conduct or taxation of businesses, professions, and occupations
applicable to all businesses, professions, and occupations in City,
1.24.2 Taxes and assessments of general application upon all residents of City.
1.24.3 The control and abatement of nuisances.
1.25 LCP. "LCP" means City's Local Coastal Program (whish includes the Land Use
Plan and Bayfront Specific Plan).
1.26 Mortgagee. "Mortgagee" means a mortgagee of a mortgage, a beneficiary under a
deed of trust or any other security-device,a lender,and their successors and assigns.
1.27 R-E- Mello-Roos Act. "Mello-Roos Act" means the Mello-Roos
Community Facilities Act of 1982.as amended being California Government Code
Section 53311 et see.
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necessary infrastructure, demonstrating the economic viability of such
development, and substantially increasing the overall economic activity
within the area, Developer agrees to commence construction of
Improvements for the Project prior to December 31, 2022, even if the
proposed Regional Conference Center has not commenced construction
prior to that date. This obligation to commence construction shall be
subject to the provisions of Section 11.15 below.
5.1.2 In order to elevate and encourage an increase in the quality of
development within the Harbor District of the Chula Vista Bayfront
Master Plan, Developer agrees that the quality of building materials and
landscaping for the Project shall exceed the building materials and
landscaping included in the Project's approvals. Developer also shall
use its best efforts to obtain a luxury brand name for the residential
component of the Project.
5.1.3 Developer agrees to pay City a sum of One Million dollars
($1,000,000.00) towards the purchase of a Bre engine ("Fire Engine
Payment"). The Developer shall make the Fire Engine Payment prior to
the issuance of a certificate of occupancy for the first phase of the
residential building for the Project.
5.1.4 Developer agrees to pay City a sum of Five Hundred Thousand dollars
($500,000.00) towards the purchase of a fire ladder truck ("Fire Truck
Payment"). The Developer shall make the Fire Truck Payment prior to
the issuance of a certificate of occupancy for the third phase of the
residential building for the Project.
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i ,` The City anticipates the formation of a CFD in the Bayfront Master Plan
....... .........
area (`Bayfront CFD-) that will encompass the Property. The Bayfront
CFD is anticipated to include an additional tax on transient occupancy
revenues and transactions subject to sales and use tax. as determined by
the California State Board of Equalization. Final tax rates shall be as
determined during formation proceedings. Developer agrees that it shall
not oppose or encourage others to oppose the formation of the Bayfront
CFD.
6. TERM AND TERMINATION.
6.1 Term of Agreement. The Term shall commence on the Effective Date. The Term
shall continue for a period of twenty (20) years from the Effective Date, subject to
the following:
6.1.1 The Term shall be extended for periods equal to the time during which:
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