HomeMy WebLinkAboutPlanning Comm Rpts./2002/12/18
AGENDA
PLANNING COMMISSION WORKSHOP / MEETING
Chula Vista, California
Wednesday, December 18, 2002
Council Chambers
276 Fourth Avenue, Chula Vista,CA
WORKSHOP MEETING
5:00 P.M.
1. TOPIC: Sign Ordinance
2. Adjournment to a regular Planning Commission on December 18, 2002 at 6:00 p.m.
REGULAR PLANNING COMMISSION MEETING
6:00 P.M.
CALL TO ORDER: Hall Madrid O'Neill Cortes
Castaneda
Horn
ROll CAll/MOTIONS TO EXCUSE
PLEDGE OF ALLEGIANCE and MOMENT OF SILENCE
INTRODUCTORY REMARKS
ORAL COMMUNICATIONS
Opportunity for members of the public to speak to the Planning Commission on
any subject matter within the Commission's jurisdiction but not an itern on
today's agenda. Each speaker's presentation may not exceed three minutes.
1. PUBLIC HEARING: Outdoor Storage Ordinance - An ordinance regulating the
establishment and operation of outdoor storage uses in
the redevelopment project areas.
Staff recommends that public hearing be opened and continued to February 26,2003.
Planning Commission
.2.
December 18, 2002
2 PUBLIC HEARING: PCC 03-15; Conditional Use Permit to install, operate and
maintain a wireless telecommunications facility consisting
of a 55 foot high monopine supporting twelve panel
antennas, and an associated equipment area at Smart Self
Storage, 816 Miller Drive. Nextel.
Project Manager: Kim Vander Bie, Associate Planner
3 PUBLIC HEARING: PCM-03-17; Consideration of a request by ACI Sunbow to
enter into a development agreement with the City of Chula
Vista which would allow them to vest their entitlements for
industrial development on property in the Sunbow
Development located south of Olympic Parkway and east
of Brandywine Avenue. . City of Chula Vista.
Project Manager: Jeff Steichen, Associate Planner
DIRECTOR'S REPORT:
COMMISSION COMMENTS:
COMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT
The City of Chula Vista, in complying with the American with Disabilities Act
(ADA), requests individuals who require special accommodations to access,
attend, and/or participate in a City meeting, activity, or service, request such
accommodations at least forty-eight hours in advance for meetings, and five
days for scheduled services and activities. Please contact Diana Vargas for
specific information at (619) 691-5101 or Telecommunications Devices for the
Deaf (TDD) at 585-5647. California Relay Service is also available for the
hearing impaired.
AGENDA
PLANNING COMMISSION WORKSHOP / MEETING
Chula Vista, California
Wednesday, December 18, 2002
Council Chambers
276 Fourth Avenue, Chula Vista,CA
WORKSHOP MEETING
5:30 P.M.
1. TOPIC: Sign Ordinance
2. Adjournment to a regular Planning Commission on December 18, 2002 at 6:00 p.m.
REGULAR PLANNING COMMISSION MEETING
6:00 P.M.
CALL TO ORDER: Hall
Madrid O'Neill Cortes
Castaneda
Horn
ROll CALL/MOTIONS TO EXCUSE
PLEDGE OF ALLEGIANCE and MOMENT OF SilENCE
INTRODUCTORY REMARKS
ORAL COMMUNICATIONS
Opportunity for members of the public to speak to the Planning Commission on
any subject matter within the Commission's jurisdiction but not an item on
today's agenda. Each speaker's presentation may not exceed three minutes.
1. PUBLIC HEARING: Outdoor Storage Ordinance - An ordinance regulating the
establishment and operation of outdoor storage uses in
the redevelopment project areas.
Staff recommends that public hearing be opened and continued to February 26,2003.
Planning Commission
- 2-
December 18, 2002
2 PUBLIC HEARING: PCC 03-15; Conditional Use Permit to install, operate and
maintain a wireless telecommunications facility consisting
of a 55 foot high monopine supporting twelve panel
antennas, and an associated equipment area at Smart Self
Storage, 816 Miller Drive. Nextel.
Project Manager: Kim Vander Bie, Associate Planner
3 PUBLIC HEARING: PCM-03-17; Consideration of a request by ACI Sun bow to
enter into a development agreement with the City of Chula
Vista which would allow them to vest their entitlements for
industrial development on property in the Sunbow
Development located south of Olympic Parkway and east
of Brandywine Avenue. - City of Chula Vista.
Project Manager: Jeff Steichen, Associate Planner
DIRECTOR'S REPORT:
COMMISSION COMMENTS:
COMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT
The City of Chula Vista, in complying with the American with Disabilities Act (ADA), requests
individuals who require special accommodations to access, attend, and/or participate in a City
meeting, activity, or service, request such accommodations at least forty-eight hours in advance
for meetings, and five days for scheduled services and activities. Please contact Diana Vargas for
specific information at (619) 691-5101 or Telecommunications Devices for the Deaf (TOO) at
585-5647. California Relay Service is also available for the hearing impaired.
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em' Of
GJLJIA VL'iTA
Departn1ent: 0:1' PIa:nnhJ.g and Building
Date:
December 12, 2002
To:
Planning Commissioners
Via:
James Sandoval, AICP, Assistant Director of Planning
~
John Schmitz, Principal Planner 'I
Sign Law Workshop
From:
Subject:
On December 18th, the Planning Commission will hold a workshop to meet Randal Morrison, the
attorney hired by the City of Chula Vista to assist in the first phase of updating the sign regulations
within the Zoning Ordinance. Mr. Morrison has requested this initial workshop so that he can
provide staff and the Planning Commission with a sound legal foundation prior to proceeding with
any amendments to sign regulations. Attached please find a summary oflegal decisions provided by
Mr. Morrison that have lead to the current standards used by the courts to judge sign regulations.
Mr. Morrison's presentation will amplifY on these cases and others.
Given the importance and complexity of this issue of sign regulations, additional staff trom the City
Attorney's Office, the Planning Division and the Community Development Department will be in
attendance at the workshop. It is estimated that the workshop should last trom 45 minutes to an
hour.
JCS
J:\Planning\fohnS\StatfReports\PC\2002\PC - Sign Law Background.DOC
Lorman Educational Systems presents
FREE SPEECH IN THE REAL WORLD
Nov. 22, 2002
San Diego
10:45 - 12:00 NOON
MAKING SIGN REGULA nON WORK
copyright 2002 Randal R. Morrison
Sabine and Morrison
110 Juniper St., PO Box 421318
San Diego CA 92142-1318
Tel.: 619.234.2864; Fax: 619.234.2864
email: rm(lVsi1!nlaw.comorrrm@samorlaw.com
OUTLINE
I. FOUNDA TIONS OF THE LAW OF SIGNS
A. V ALIDATION OF ZONING
B. V ALIDA TION OF ESTHETIC INTEREST AS A BASIS FOR ZONING
C. EXTENDING THE FIRST AMENDMENT TO THE ACTIONS OF STATE
AND LOCAL GOVERNMENTS
D. EXTENDING THE FIRST AMENDMENT TO COMMERCIAL SPEECH
E. THE CENTRAL HUDSON TEST
II. SIGN REGULATION
A. EARLY CASES DID NOT CONSIDER FIRST AMENDMENT
B. DEFINING THE ISSUE: COMMUNICATIVE AND NON COMMUNICATIVE
ASPECTS OF SIGNS
C. METROMEDIA V SAN DIEGO
D. THE SUBSTITUTION CLAUSE
E. SIGNAGE RIGHTS IN RESIDENTIAL AREAS
III. SIGNS ON PUBLIC PROPERTY - PUBLIC FORUM
A. OWNERSHIP SHIFTS THE BURDEN OF JUSTIFICATION
B. PUBLIC FORUM CATEGORIES
C. APPLICATION OF THE METROMEDIA PRINCIPLES
D. CONTROVERSIAL SIGNS ON PUBLIC BUSES
IV. POLITICAL AND ELECTION CAMPAIGN SIGNS
A. COMPLETE BAN CITY-WIDE
B. LIMITS ON DISPLAY TIME
C. LIMITS ON NUMBER AND SIZE
D. PROHIBITING ANONYMOUS POLITICAL SPEECH BY SIGN
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MAKING SIGN REGULATION WORK
I. FOUNDATIONS OF THE LAW OF SIGNS - DECISIONS OF THE U.S. SUPREME
COURT
A. V ALIDA nON OF ZONING AS A LEGITIMATE AND REASONABLE
EXERCISE OF THE POLICE POWER (THE POWER TO GOVERN).
I. City (JjEuclid Ohio v. Ambler Realty, 272 U.S. 365 (I 926)
The ordinance now under review, and all similar laws and regulations, must find
their justification in some aspect of the police power, asserted for the public
welfare. The line which in this field separates the legitimate from the illegitimate
assumption of power is not capable of precise delimitation. It varies with
circumstances and conditions. A regulatory zoning ordinance, which would be
clearly valid as applied to the great cities, might be clearly invalid as applied to
rural communities.
[The city's] governing authorities, presumably representing a majority of its
inhabitants and voicing their will, have determined, not that industrial
development shall cease at its boundaries, but that the course of such development
shall proceed within definitely fixed lines. If it be a proper exercise of the police
power to relegate industrial establishments to localities separated from residential
sections, it is not easy to find a sufficient reason for denying the power because
the effect of its exercise is to divert an industrial flow from the course which it
would follow to the injury of the residential public if left alone, to another course
where such injury will be obviated. It is not meant by this, however, to exclude the
possibility of cases where the general public interest would so far outweigh the
interest of the municipality that the municipality would not be allowed to stand in
the way.
B. VALIDATION OF COMMUNITY ESTHETICS AS A VALID BASIS FOR
ZONING
1. Berman v. Parker, 348 U.S. 26 (1954) (urban renewal project in
Washington DC)
The concept of the public welfare is broad and inclusive. The values it represents
are spiritual as well as physical, aesthetic as well as monetary. It is within the
power of the legislature to determine that the community should be beautiful as
well as healthy, spacious as well as clean, well-balanced as well as carefully
patrolled. In the present case, the Congress and its authorized agencies have made
determinations that take into account a wide variety of values. It is not for us to
reappraise them. If those who govern the District of Columbia decide that the
Nation's Capital should be beautiful as well as sanitary, there is nothing in the
Fifth Amendment that stands in the way.
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C. EXTENDING THE FIRST AMENDMENT TO ACTIONS OF STATE AND
LOCAL GOVERNMENTS
I. State regulation: Gitlow v. People of New York, 268 U.S. 652 (1925)
For present purposes we may and do presume that freedom of speech and of the
press - which are protected by the First Amendment from abridgment by
Congress - are among the fundamental personal rights and liberties protected by
the due process clause of the Fourteen Amendment from impairment by the
States.
See also: Near v. Minnesota, 283 U.S. 697 (1931)
2. Local regulation: Lovell v. Griffin, 303 U.S. 444 (1938)
Freedom of speech and freedom of the press, which are protected by the First
Amendment from infringement by Congress, are among the fundamental personal
rights and liberties which are also protected by the Fourteenth Amendment from
invasion by state action. It is also well settled that municipal ordinances adopted
under state authority constitute state action and are within the prohibition of the
amendment. * * * The liberty of the press is not confined to newspapers and
periodicals. . . . The press in its historic connotation comprehends every sort of
publication which affords a vehicle of information and opinion.
D. EXTENDING FIRST AMENDMENT PROTECTION TO COMMERCIAL
SPEECH
I. Key case from the "no protection" era: Valentine v. Christensen, 316 U.S.
52 (1942)
We are equally clear that the Constitution imposes no such restraint on
government as respects to purely commercial advertising.
2. Mid 1970's: Granting protection to commercial speech:
a. BiRelow v. VirRinia, 421 U.S. 809 (1975) (reversing criminal
conviction of newspaper editor who published ads for out-of-state
abortion services, which were legal where offered but illegal where
advertised).
b. Virginia State Board of Pharmacy v. VirRinia Citizens Consumer
Council, 425 U.S. 748 (1976) (pharmacist charged with
unprofessional conduct for posting prices for prescription drugs in
spite of a state law forbidding such advertising; the Court
invalidated the law and held that the consuming public has a right
to know truthful information about legal products).
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c. Linmark v. Township ofWillingboro, 431 U.S. 85 (1977)
(invalidating a local law which banned on site "real estate for sale"
signs in residential neighborhoods):
Persons desiring to sell their homes are just as interested in
communicating that fact as are sellers of other goods and services.
Similarly, would-be purchasers of realty are no less interested in
receiving information about available property than are purchasers
of other commodities in receiving like infonnation about those
commodities. And the societal interest in the free flow of
commercial information, is in no way lessened by the fact that the
subject ofthe commercial information here is realty rather than
abortions or drugs.
E. THE CENTRAL HUDSON TEST FOR RESTRICTIONS ON COMMERCIAL
SPEECH
I. Central Hudson Gas and Electric v. Public Service Commission, 447 U.S.
557 (1980)
In commercial speech cases, then, a Jour-part analysis has developed. At the
outset, we must determine whether the expression is protected by the First
Amendment. For commercial speech to come within that provision, it at least
must concern lawful activity and not be misleading. Next, we ask whether the
asserted governmental interest is substantial. Jfboth inquiries yield positive
answers, we must determine whether the regulation directly advances the
governmental interest asserted, and whether it is not more extensive than is
necessary to serve that interest.
II. SIGN REGULATION
A. Early billboard and sign cases concerned only commercial speech (then
considered not within FA protection) and thus the challenges were based only on
due process and equal protection; all challenges were rejected. Fifth Avenue
Coach v. NfC, 221 U.S. 467 (1911), Thomas Cusack Co. v. Chicago, 242 U.S.
526 (19] 7); St. Louis Poster Advertising ('0. v. City of St. Louis, 249 U.S. 269
(1919), Packer Corp. v. Utah, 285 U.S. 105 (1932) [tobacco billboards /
commercial speech], Railway ~xpress Agency v. NYC, 336 U.S. 106 (1949)
[trucks displaying general and commercial advertising on the streets of NY C.]
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B. Defining the Issue: Communicative and Non-Communicative Aspects of Signs
Ladue v. Oil/eo, 512 U.S. 43 (1994):
While signs are a form of expression protected by the Free Speech Clause, they pose
distinctive problems that are subject to municipalities' police powers. Unlike oral speech,
signs take up space and may obstruct views, distract motorists, displace alternative uses
for land, and pose other problems that legitimately call for regulation. It is common
ground that governments may regulate the physical characteristics of signs - just as they
can, within reasonable bounds and absent censorial purpose, regulate audible expression
in its capacity as noise. However, because regulation of a medium inevitably affects
communication itself, it is not surprising that we [the U.S. Supreme Court] have had
occasion to review the constitutionality of municipal ordinances prohibiting the display of
certain outdoor signs.
C. Metromedia v. San Diego, 453 U.S. 490 (1981)
Five opinions
1. Then-Associate Justice Rehnquist:
It is a genuine misfortune to have the Court's treatment of the subject be a virtual
Tower of Babel, from which no definitive principles can be clearly drawn...
2. The Plurality (White, Stewart, Marshall, Powell)
a. Restrictions on Commercial Speech - joined or supported by three
dissenters - total 7 votes
[A]t times First Amendment values must yield to other societal interests. . . . Each
method of communicating ideas is "a law unto itself' and that law must reflect the
"differing natures, values, abuses and dangers" of each method. We deal here with
the law of billboards.
Billboards. . . combine communicative and noncommunicative aspects. As with
other media, the government has legitimate interests in controlling the
noncommunicative aspects of the medium, . . . but the First and Fourteenth
Amendments foreclose a similar interest in controlling the communicative
aspects. Because regulation of the noncommunicative aspects of a medium often
impinges to some degree on the communicative aspects, it has been necessary for
the courts to reconcile the government's regulatory interests with the individual's
right to expression.
[U]nder [San Diego's] ordinance (I) a sign advertising goods or services available
on the property where the sign is located is allowed; (2) a sign on a building or
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other property advertising goods or services produced or offered elsewhere is
barred; (3) noncommercial advertising, unless within one of the specific
exceptions, is everywhere prohibited. The occupant of property may advertise his
own goods or services; he may not advertise the goods or services of others, nor
may he display most noncommercial messages.
Although the protection extended to commercial speech has continued to develop,
commercial and noncommercial communications, in the context of the First
Amendment, have been treated differently.
Applying the Central Hudson test:
There can be little controversy over the application ofthe first, second, and fourth
criteria. There is no suggestion that the commercial advertising at issue here
involves unlawful activity or is misleading. Nor can there be substantial doubt that
the twin goals that the ordinance seeks to further--traffic safety and the appearance
of the citYnare substantial governmental goals. It is far too late to contend
otherwise. . . Similarly, we reject appellants' [billboard companies'] claim that the
ordinance is broader than necessary and, therefore, fails the fourth part of the
Central Hudson test. If the city has a sufficient basis for believing that
billboards are traffic hazards and are unattractive, then obviously the most
direct and perhaps the only effective approach to solving the problems they
create is to prohibit them. The city has gone no further than necessary in
seeking to meet its ends. Indeed, it has stopped short offully accomplishing its
ends: It has not prohibited all billboards, but allows onsite advertising and some
other specifically exempted signs.
The more serious question, then, concerns the third of the Central Hudson criteria:
Does the ordinance "directly advance" governmental interests in traffic safety and
in the appearance of the city? . . . Noting that "[b ]illboards are intended to, and
undoubtedly do, divert a driver's attention from the roadway," . . . and that
whether the "distracting effect contributes to traffic accidents invokes an issue of
continuing controversy," the California Supreme Court agreed with many other
courts that a legislative judgment that billboards are traffic hazards is not
manifestly unreasonable and should not be set aside. We likewise hesitate to
disagree with the accumulated, common-sense judgments of local lawmakers
and of the many reviewing courts that billboards are real and substantial
hazards to traffic safety. There is nothing here to suggest that these judgments
are unreasonable.
[W]e cannot conclude that the city has drawn an ordinance broader than is
necessary to meet its interests, or that it fails directly to advance substantial
government interests. In sum, insofar as it regulates commercial speech the San
Diego ordinance meets the constitutional requirements of Central Hudson.
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b. Restrictions on non-commercial speech - plurality (4 votes), with
Brennan and Blackmun joining in the result only (with a very
different analysis)
[O]ur recent commercial speech cases have consistently accorded noncommercial
speech a greater degree of protection than commercial speech. San Diego
effectively inverts this judgment, by affording a greater degree of protection to
commercial than to noncommercial speech. There is a broad exception for onsite
commercial advertisements, but there is no similar exception for noncommercial
speech. The use of onsite billboards to carry commercial messages related to the
commercial use of the premises is freely permitted, but the use of otherwise
identical billboards to carry noncommercial messages is generally prohibited. The
city does not explain how or why noncommercial billboards located in places
where commercial billboards are permitted would be more threatening to safe
driving or would detract more from the beauty of the city. Insofar as the city
tolerates billboards at all, it cannot choose to limit their content to commercial
messages; the city may not conclude that the communication of commercial
information concerning goods and services connected with a particular site is of
greater value than the communication of noncommercial messages.
Although the city may distinguish between the relative value of different
categories of commercial speech, the city does not have the same range of choice
in the area of noncommercial speech to evaluate the strength of, or distinguish
between, various communicative interests. With respect to noncommercial
speech, the city may not choose the appropriate subjects tor public discourse: To
allow a government the choice of permissible subjects for public debate would be
to allow that government control over the search for political truth. Because some
noncommercial messages may be conveyed on billboards throughout the
commercial and industrial zones, San Diego must similarly allow billboards
conveying other noncommercial messages throughout those zones.
3. Justice Stevens:
[T]he plurality focuses its attention on the exceptions from the total ban and,
somewhat ironically, concludes that the ordinance is an unconstitutional
abridgment of speech because it does not abridge enough speech.
If one is persuaded, as I am, that a wholly impartial total ban on billboards would
be permissible, it is difficult to understand why the exceptions in San Diego's
ordinance present any additional threat to the interests protected by the First
Amendment. The plurality suggests that, because the exceptions are based in part
on the subject matter of noncommercial speech, the city somehow is choosing the
permissible subjects for public debate.
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4. Chief Justice Burger:
Regardless of the label we give it, we are discussing. . . the authority oflocal
government to protect its citizens' legitimate interests in traffic safety and the
environment by eliminating distracting and ugly structures from its buildings and
roadways, to define which billboards actually pose that danger, and to decide
whether, in certain instances, the public's need for information outweighs the
dangers perceived. The billboard industry's superficial sloganeering is no
substitute for analysis. . . The essential concern embodied in the First Amendment
is that government not impose its viewpoint on the public or select the topics on
which public debate is pennissible. The San Diego ordinance simply does not
implicate this concern.
5. Justice Brennan (joined by Blackmun)
Instead of relying on the exceptions to the ban to invalidate the ordinance, I would
apply the tests this Court has developed to analyze content-neutral prohibitions of
particular media of communication.
In the case of billboards, I would hold that a city may totally ban them if it can
show that a sufficiently substantial governmental interest is directly furthered by
the total ban, and that any more narrowly drawn restriction, i. e., anything less
than a total ban, would promote less well the achievement of that goal.
Applying that test to the instant case, I would invalidate the San Diego ordinance.
The city has failed to provide adequate justification for its substantial restriction
on protected activity.
D. Partial solution to the Metromedia problem: the substitution clause
Outdoor Systems, Inc. v. City of Mesa, 997 F.2d 604 (9th Cir., 1993):
Mesa's code contains a substitution provision nearly identical to that in
Tucson's: "any non-cornmercial message may be substituted for the copy on
any commercial sign allowed by the Sign Code." It also contains a provision
that excepts all noncommercial signs from the Code's definition of offsite
SignS.
The codes distinguish among types of commercial speech - onsite and
offsite - but as between commercial and noncommercial speech the codes
are neutral. Aside from onsite signs at noncommercial establishments, every
sign in Mesa and Tucson can carry either a commercial or a noncommercial
message. All signs, moreover, are regulated regardless of the content of
their messages.
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We therefore hold that the restrictions the sign codes impose on commercial
speech are valid under the Central Hudson test.
Thus, [the billboard companies] wrongly assert that the codes impennissibly
prefer commercial over noncommercial speech. The codes do not discriminate
against either category; they merely distinguish between onsite and offsite
commercial speech. As such, they constitute permissible restrictions on
commercial speech. Similarly the place and manner restrictions imposed on
noncommercial speech are permissible.
E. SIGNAGE RIGHTS IN RESIDENTIAL AREAS
I. Onsite real estate for sale signs
Complete ban is unconstitutional: Linmark v. Willingboro, 43 I U.S. 85 (1977)
Other than onsite residential, real estate rules are analyzed under Central Hudson.
2. Political signs on residential properties
Complete ban is unconstitutional: Ladue v Gilleo, 512 U.S. 43 (1994) .
But "more temperate measures" might be acceptable.
III. SIGNS ON PUBLIC PROPERTY: THE PUBLIC FORUM DOCTRINE
A. Government's ownership rights shifts the justification burden
B. Three categories of publicly owned land or systems:
1. traditional public forum - streets, parks, most sidewalks
2. designated forum - though not a forum by tradition, government has
opened it to function as a public forum
3. limited public forum - government may limit use ofthe facility, whether
for communicative or other purposes, so long as policies are reasonable,
clear, not viewpoint discriminatory, and allow adequate alternatives for
expression of the same idea
4. key cases explaining the doctrine: Perry Education Ass 'n v. Perry Local
Educators' Ass 'n, 460 U.S. 37 (1983), Clark v. Community For Creative
Non- Violence, 468 U.S. 288 (1984), Arkansas Educational Television
Commission v. Forbes, 523 U.S. 666 (1998). Key case on signs and the
public forum doctrine: United Food and Chemical Workers Union, Local
1099 v. Southwest Ohio Regional Transit Authority, 163 F.3d 341 (6th Cir.,
1998).
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C. The Metromedia rule of "no favoring of commercial speech" does not necessarily
apply.
I. Lehman v. Shaker Heights, 418 U.S. 298 (1974):
Approving policy which allowed commercial cards in publicly owned transit
system, but disallowed political cards on one particular line.
2. Memhers of City Council v. Taxpayers For Vincent, 466 U.S. 789 (1983):
Los Angeles law prohibiting posting of signs on public property - including
political posters on utility crosswires - upheld, even though it was a total ban on
core speech in public places.
So here, the validity of the esthetic interest in the elimination of signs on
public property is not compromised by failing to extend the ban to private
property. The private citizen's interest in controlling the use of his own
property justifies the disparate treatment. Moreover, by not extending the
ban to all locations, a significant opportunity to communicate by means of
temporary signs is preserved, and private property owners' esthetic
concerns will keep the posting of signs on their property within reasonable
bounds. Even if some visual blight remains, a partial, content-neutral ban
may nevertheless enhance the City's appearance.
3. Controversial signs on public buses:
a. Children of the Rosary v. City of Phoenix, 154 F.3d 972 (9th Cir.,
1998): abortion protest ads refused; ban upheld, even though
commercial signs were accepted.
b. Christ '.I' Bride Ministries v. Southeastern Penmylvania
Transportation Auth., 148 F.3d 242 (3'd Circ., 1998): authority
ordered to accept abortion protest ads because it had "opened the
door" by accepting other ads on AIDS, family planning, etc.
c. AIDS Action Committee v. lvlassachusetts Bay Tramportation
Authority, 42 F.3d 1 (1st Circ., 1994) - another "opening the door"
case: authority ordered to accept AIDS prevention ads.
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IV. POLITICAL AND ELECTION CAMPAIGN SIGNS
A. City wide ban on all political signs: all courts invalidate
Peltz v. City o{South Euclid, 11 Oh St2d 128, 228 NE2d 320 (Ohio Supreme Ct., 1967);
Matthews v. Town o(Needham, 764 F.2d 58, 60 (USCAI, 1985)
But note: Taxpayersfor Vincent validated a complete ban on political signs on public
property that was not "'traditional public forum," and Lehman v. Shaker Hts validated a
policy which forbade all political signs on a certain line in the public transportation
system.
B. Durationallimits: display limited to _ number of days before election
Question never resolved by US Supreme Ct., but nearly all other courts invalidate display
time limits. Key cases: Whitton v. City o{Gladstone, 54 F.3d 1400 (8th Cir., 1995);
Arlington County Republican Commillee v. Arlington County, 983 F.2d 587 (4th Cir.,
1993). Election Signs and Time Limits, 3 Washington Univ. Journal of Urban and
Contemporary Policy 379 (2000).
C. Limits on number and size: valid if reasonable and applicable on a per parcel
basis; likely invalid if applied to city-wide cumulative total
In Baldwin v. Redwood City, 540 F2d 1360 (USCA9, 1976), the city limited the size of
temporary signs on both a per parcel and city-wide cumulative basis. The per parcel
limits were 16 square feet for an individual sign and 80 square feet for all signs
combined. The Ninth Circuit found these size limits valid. The individual sign size
limits were justified as reducing the accumulation of clutter and minimizing trafllc
hazards. The city law also imposed a city-wide limit of 64 square feet on
all temporary signs. . . advertising a single event or, in the event of an election, for any
candidate or ballot issue. * * *
The city-wide aggregate limit restricted the quantity of campaign speech by candidates
and partisans, limiting expression at the core of First Amendment protection, and was
thus unconstitutional.
[T]he obstructiveness of a sign is largely a function of its size. Consequently, a
size limitation of some degree is substantially related to the City's interest in
removing obstructions from the view of motorists and pedestrians.
Candidates' Outdoor Graphic Service v. San Francisco, 574 FS 1240 (USDC NDCA,
1983 ) [eleven inch height limit for all temporary signs upheld.]
In Dimas v. City of Warren, 939 FS 554 (EDMI, 1996) the court struck a provision which
limited each residence to "'one election sign per candidate, per issue, and per opinion,"
holding that such limits
severely infringes 011 free speech by preventing homeowners from expressing their
support for more than one candidate when there may be numerous contested
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elections. Moreover, if two voters living within the same household support
opposing candidates, the sign limitation significantly restricts their ability to
express support through sign posting.
Davis v. Green, 74 Ohio St3d 1523 (OH SC 1996) [political signs in residential
neighborhoods limited to 6 sf; constitutional].
D. Prohibitions on anonymous political messages ("anti-anonymity" and "compelled
sponsor identification")
Constitutionality unclear. Such rules are legally risky. In McIntyre v. Ohio Elections
Commission, 514 US 334, I 15 SCt 1511, 131 LEd2d 426 (1994), the US Supreme Court
invalidated an Ohio state "anti-anonymity" statute which applied to all political speakers.
But compare Griset v. Fair Political Practices Comm 'n, 25 Cal.4th 688 (2001). 4
ALR4th 741 (Validity and Construction of State Statute Prohibiting Anonymous
Political Advertising).
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PLANNING COMMISSION AGENDA STATEMENT
Item: ;;L
Meeting Date: 12/18/02
ITEM TITLE:
Public Hearing: PCC-03-15; Conditional Use Permit to install, operate and
maintain a wireless telecommunications facility consisting of a 55-foot-high
monopine supporting twelve panel antennas; and an associated equipment
area at Smart Self Storage, 816 Miller Drive. Applicant: Nextel
Nextel is requesting a conditional use permit to construct and operate an unmanned wireless
telecommunications facility at 816 Miller Drive (Smart Self Storage). The project consists of a
180-square-foot equipment area to be located inside of an existing storage building, and a 55-foot-
high monopine supporting twelve antennas.
The Environmental Review Coordinator has concluded that the project is a Class 3 Categorical
Exemption from environmental review pursuant to the California Environmental Quality Act.
RECOMMENDATION:
That the Planning Commission adopt the Resolution PCC-03-15 (Attachment 2) recommending
conditional approval of the wireless telecommunications facility.
DISCUSSION:
1. Site Characteristics
The project site is a 4-acre parcel occupied by Smart Self Storage, which consists of four,
two-story storage buildings totaling 133,000 square feet, 60 parking spaces, and perimeter
landscaping. The Nextel monopine is proposed in the northeast corner of the parking lot,
approximately 350 feet from the either Miller Drive or EastLake Parkway.
2. General Plan, Zoning, and Land Use
General Plan Zoning Current Land Use
Site: IL PC-I Smart Self Storage
North: lL PC-I United Parcel Service
South: CR PC-C EastLake Village Center
North (Under Construction)
East: IL PC-I US Post Office and
Vacant Lot
West: lL PC-I United Parcel Service
I
Page 2, Item:
Meeting Date: 12/18/02
3. Proposal
In the northeast corner of 816 Miller Drive, Nextel proposes to construct an unmanned
wireless telecommunications facility consisting of a 55-foot-high monopine supporting
twelve panel antennas (each of which is approximately four feet long and one foot wide),
and a l80-square-foot equipment area inside of an existing storage facility.
The proposed site would enhance service throughout the EastLake Business Center and
nearby commercial and residential areas.
The proposed monopine supporting twelve antennas is an Unclassified Use, according to
Section 19.54 of the City of Chula Vista Municipal Code. Section 19.54.010 states that
matters "possessing characteristics of such unique and special form as to make impractical
their being included automatically in any classes of use as set forth in the various zones
herein defined" are unclassified uses, and, as such, are required to have Conditional Use
Permits. Section 19.54.020 requires the project to be considered by the City Council,
upon recommendation by the Planning Commission.
4. Analvsis
The city encourages applicants of wireless telecommunications facilities to:
A. Develop in commercial or industrial zones, rather than residential zones;
B. Provide stealth facilities, or facilities that blend with the local character of the area
and are visually unobtrusive; and
C. Co-locate.
The proposed 55-foot-high monopine would be set back 350 feet from the road, amongst a
58-foot-high eucalyptus tree and two live pine trees measuring 30 feet and 42 feet in
height, thereby blending into the existing environment; and the equipment will be located
inside of an existing building. In addition, the proposed monopine would be able to
accommodate antennas for a future provider below Nextel's antennas.
With the attached conditions of approval, the proposal is consistent with the City of Chula
Vista Municipal Code and the General Plan.
CONCLUSION:
Staff recommends approval of the proposed conditional use permit in accordance with the attached
Planning Commission Resolution.
~
Page 3, Item:
Meeting Date: 12/18/02
Attachments
1. Locator Map
2. Planning Commission Resolution
3. Draft City Council Resolution
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CHULA VISTA PLANNING AND BUILDING DE PARTM E NT
LOCATOR PROJECT PROJECT DESCRIPTION:
C) APPLICANT: NEXTEL COMMUNICATIONS CONDITIONAL USE PERMIT
PROJECT Request: Proposal for a wireless facility consisting of
ADDRESS: 816 MILLER STREET
SCALE: 12 panel antennas atop a 55' monopine. Equipment
FILE NUMBER: Y room will be located within existing storage facility.
NORTH No Scale PCC-03-15
j:lhomelplanninglcherrylcllocators3Ipcc0315.cdr 09.12.02
ATTACHMENT 1
RESOLUTION NO. PCC-03-15
RESOLUTION OF THE CITY OF CHULA VISTA PLANNING COMMISSION
RECOMMENDING THAT THE CITY COUNCIL GRANT A CONDITIONAL USE
PERMIT, PCC-03-15, TO NEXTEL TO CONSTRUCT AN UNMANNED
WIRELESS TELECOMMUNICATIONS FACILITY AT 816 MILLER DRIVE.
WHEREAS, a duly verified application for a Conditional Use Permit was filed with the
City of Chula Vista Planning Department on August 27, 2002 by Nextel; and
WHEREAS, said application requests permission to construct an unmanned wireless
telecommunications facility consisting of a 55-foot-high monopine supporting twelve antennas,
and a 180-square-foot equipment area at 816 Miller Drive; and
WHEREAS, the Environmental Review Coordinator has concluded that the project is a
Class 3 Categorical Exemption from environmental review pursuant to the California
Environmental Quality Act; and
WHEREAS, the Planning Director set the time and place for a hearing on said
Conditional Use Permit 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
and residents within 500 feet of the exterior boundaries of the property at least 10 days prior to
the hearing; and
WHEREAS, the hearing was scheduled and advertised for December 18, 2002 at 6:00
p.m. in the Council Chambers, 276 Fourth Avenue, before the Planning Commission; and
WHEREAS, the Planning Commission considered all reports, evidence, and testimony
presented at the public hearing with respect to subject application.
NOW, THEREFORE, BE IT RESOLVED THAT THE PLANNING COMMISSION does
hereby recommend that the City Council approve Conditional Use Permit PCC-03-15 in
accordance with the findings and subject to the conditions and findings contained in the
attached City Council resolution.
BE IT FURTHER RESOLVED THAT a copy of this resolution be transmitted to the City
Council.
PASSED AND APPROVED BY THE PLANNING COMMISSION OF CHULA VISTA,
CALIFORNIA, this 18th day of December 2002 by the following vote, to-wit:
AYES:
NOES:
ABSTAIN:
ABSENT:
ATTEST:
Russ Hall, Chair
Diana Vargas, Secretary
')
ATTACHMENT 2
RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING A CONDITIONAL USE
PERMIT, PCC-03-15, TO NEXTEL TO CONSTRUCT AN
UNMANNED WIRELESS TELECOMMUNICATIONS
FACILITY AT 816 MILLER DRIVE.
A. RECITALS
1. Project Site
WHEREAS, the parcel that is the subject matter of this resolution is represented in
Exhibit A attached hereto and incorporated herein by this reference, and for the
purpose of general description is located at 816 Miller Drive ("Project Site"); and
2. Project Applicant
WHEREAS, on August 27, 2002 a duly verified application for a Conditional Use
Permit (PCC-03-15) was filed with the City of Chula Vista Planning Division by
Nextel; and,
3. Project Description; Application for Conditional Use Permit
WHEREAS, Applicant requests permission to construct an unmanned wireless
telecommunications facility consisting of one 55-foot-high monopine to support
twelve antenna arrays; and a 180-square-foot equipment area on the Project Site;
and,
4. Environmental Determination
WHEREAS, the Environmental Review Coordinator determined that the Project is
a Class 3 Categorical Exemption from environmental review pursuant to the
California Environmental Quality Act; and,
5. Planning Commission Record on Application
WHEREAS, the Planning Commission hearing was scheduled and advertised for
December 18,2002 at 6:00 p.m. in the Council Chambers, 276 Fourth Avenue, at
which time the Planning Commission voted _ to recommend that the City
Council approve the Project based on the findings listed in accordance with Planning
Commission Resolution PCC-03-IS; and,
(,
ATTACHMENT 3
6. City Council Record of Application
WHEREAS, a duly called and noticed public hearing on the Project was held
before the City Council of the City of Chula Vista on January 21, 2003 to receive
the recommendation of the Planning Commission, and to hear public testimony
with regard to same; and,
NOW, THEREFORE BE IT RESOLVED that the City Council does hereby find,
determine and resolve as follows:
B. PLANNING COMMISSION RECORD
The proceedings and all evidence on the Project introduced before the Planning
Commission at their public hearing on this Project held on December 18, 2002 and the
minutes and resolution resulting therefrom, are hereby incorporated into the record of this
proceeding.
C. ENVIRONMENTAL DETERMINATION
The Environmental Review Coordinator has concluded that the project is a Class 3
Categorical Exemption from environmental review pursuant to the California
Environmental Quality Act.
D. CONDITIONAL USE PERMIT FINDINGS
The City Council of the City of Chula Vista does hereby make the findings required by the
City's rules and regulations to approve the issuance of conditional use permits, as herein
below set forth, and sets forth, thereunder, the evidentiary basis that permits the stated
finding to be made.
1. That the proposed use at this location is necessary or desirable to provide a
service or facility which will contribute to the general well being of the
neighborhood or the community.
The proposed use at this location is necessary and desirable to provide and improve
telecommunications in the EastLake Business Center, and in surrounding commercial and
residential areas. Improved coverage and capacity for this system will ensure availability
to business users, personal users, and emergency service providers (including sheriff,
police, fire, and paramedics), thus enhancing emergency service and response.
2. That such use will not under the circumstances of the particular case be
detrimental to the health, safety or general welfare of persons residing or
working in the vicinity or injurious to property or improvements in the
vicinity.
7
2
The proposed use will not pose a danger to the health, safety or general welfare to the
general public, or be injurious to property or improvements in the vicinity. Emissions
from cellular antennas have been shown to be below any levels that would cause hazardous
biological effects. In addition, cellular antenna emissions are so far below all recognized
safety standards that they constitute no hazard to public health or safety. The facility will
comply with the Federal standards for radio frequency emissions, and has been conditioned
to require that the applicant prove compliance with the accepted ANSI standards for
emissions control.
The proposed 55-foot-high monopine will be set back 350 feet from the road, amongst a
58-foot-high eucalyptus tree and two live pine trees measuring 30 feet and 42 feet in
height, thereby blending into the existing environment; and the equipment will be located
inside of an existing building. In addition, the proposed monopine will be able to
accommodate antennas for a future provider below Nextel's antennas.
3. That the proposed use will comply with the regulations and conditions specified
in the code for such use.
This Conditional Use Permit is conditioned to require the permittee and property owner to
fulfill conditions and to comply with all applicable regulations and standards specified in
the Municipal Code for such use. The conditions of this permit are approximately in
proportion to the nature and extent of the impact created by the proposed development in
that the conditions imposed are directly related to and of a nature and scope related to the
size and impact of the project.
4. That the granting of this Conditional Use Permit will not adversely affect the
General Plan of the City or the adopted plan of any government agency.
The granting of this permit will not adversely affect the Chula Vista General Plan in that
said project is proposed to be built in a location with minimal impact on the already
existing land use, and virtually no visual impact on the existing area due to the stealth
design of the monopine. Monthly maintenance visits that the project may generate will not
result in the intensification of the use of the site and is an insignificant increase in the
tratfic for the neighborhood.
E. TERMS OF GRANT OF PERMIT
The City Council hereby grants Conditional Use Permit PCC-03-IS subject to the
following conditions whereby the applicant and/or property owner shall:
I. Construct the project as shown in conceptual plans revised October 8, 2002. This
permit shall be limited to providing Nextel, a wireless telecommunications provider,
the entitlement to locate a facility at this location, and cannot be sold or leased to
another provider without a reapplication for a conditional use pennit.
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3
2. Cooperate with other telecommunication companies in co-locating additional
antennas on subject property, provided said co-locaters have received a conditional
use peD11it for such use at said site from the City. Permittee shall exercise good faith
in co-locating with other communications companies and sharing the subject
property, provided such shared use does not give rise to a substantial technical level
or quality of service impairment of the peD11itted use (as opposed to a competitive
conflict or financial burden). In the event a dispute arises as to whether PeD11ittee has
exercised good faith in accommodating other users, the City may require a third party
technical study at the expense of either or both the PeD11ittee and the potential user.
3. Comply with ANSI standards for EMF emissions. Within six (6) months of the
Building Division final inspection of the project, the Applicant shall submit a project
implementation report to the Director of Planning and Building which provides
cumulative field measurements of radio frequency (EMF) power densities of all
antennas installed at subject site. The report shall quantify the EMF emissions and
compare the results with currently accepted ANSI standards. Said report shall be
subject to review and approval by the Director of Planning and Building for
consistency with the project proposal report and the accepted ANSI standards. If on
review the City in its discretion finds that the Project does not meet ANSI standards,
the City may revoke or modify this conditional use permit.
4. Ensure that the project does not cause localized interference with reception of area
television or radio broadcasts, including local radio frequencies used by local
school districts and water districts. If on review the City, in its discretion, finds
that the project interferes with such reception, the City may revoke or modify the
conditional use permit.
5. Access to the equipment enclosure and antennas shall be restricted to service
personnel and limited to a maximum of two visits per month during daytime hours
for routine non-emergency maintenance.
6. Comply with the City's Municipal Code noise standards. Within three (3) months of
the Building Division's final inspection, the applicant shall submit a report to the
Director of Planning and Building that provides cwnulative field measurements of
facility noises. The report shall quantify the levels and compare the results with
current standards specified in the Municipal Code for industrial uses. Said report
shall be subject to review and approval by the Director of Planning and Building for
consistency with the project proposal dated August 27, 2002 and Municipal Code
noise standards. If on review the City finds that the project does not meet the
Municipal Code noise standards, the City may revoke or modify the peD11it.
7. Applicant/operator shall and does hereby agree to indemnify, protect, defend and
hold hannless City, its Council members, officers, employees, agents and
representatives, from and against any and all liabilities, losses, damages, demands,
l'
4
claims and costs, including court costs and attorneys' fees (collectively, "liabilities")
incurred by the City arising, directly or indirectly, from (a) City's approval and
issuance of this conditional use permit, (b) City's approval or issuance of any other
permit or action, whether discretionary or non-discretionary, in connection with the
use contemplated herein, and (c) applicant's installation and operation of the facility
permitted hereby, including, without limitation, any and all liabilities arising from the
emission by the facility of electromagnetic fields or other energy waves or emissions.
Applicant/operator shall acknowledge their agreement to this provision by executing
a copy of this conditional use permit where indicated, below. Applicant's/operator's
compliance with this provision is an express condition of this conditional use permit
and this provision shall be binding on any and all of Applicant's/operator's
successors and assigns.
8. Project site shall be inspected six months subsequent to the issuance of building
permits to check conformance with project plans and conditions of approval.
9. A graffiti resistant treatment shall be specified for all wall and building surfaces.
This shall be noted on any building and wall plans and shall be reviewed and
approved by the Planning Director prior to issuance of building permits.
Additionally, the project shall conform to Sections 9.20.055 and 9.20.035 of the
C.V.M.C. regarding graffiti control.
10. Prior to issuance of a final occupancy permit and operation of the facility, a final
inspection of the facility shall be conducted by Planning staff to ensure that all
conditions of approval have been met and all necessary permits have been obtained.
Prior to final inspection, electrical power may be temporarily provided to the facility
for testing purposes only.
11. Upon cessation ofthe business operations and use of the antennas and equipment by
the applicant, the applicant has 90 days to submit a substitute user to the
satisfaction of the Director of Planning and Building Department and/or remove the
antennas and equipment and return the site back to its original condition. Any
changes on the original conditional use permit shall require modification.
12 Comply with all requirements and obtain all necessary permits from the Chula Vista
Building Division, Fire Department and Engineering Department.
13. This permit shall be subject to any and all new, modified or deleted conditions
imposed after approval of this permit to advance a legitimate governmental interest
related to health, safety or welfare which the City shall impose after advance written
notice to the Permittee and after the City has given to the Permittee the right to be
heard with regard thereto. However, the City, in exercising this reserved
right/condition, may not impose a substantial expense or deprive Permittee of a
substantial revenue source which the Permittee cannot, in the normal operation of the
/0
5
use permitted, be expected to economically recover.
F. ADDITIONAL TERMS AND PROVISIONS TO GRANT
1. This Conditional Use Permit shall become void and ineffective if not utilized or
extended within one year from the effective date thereof, in accordance with
Section 19.14.260 of the Municipal Code.
2. Any violations of the terms and conditions of this permit shall be ground for
revocation or modification of permit.
G. EXECUTION AND RECORDATION OF RESOLUTION OF APPROVAL
The property owner and the applicant shall execute this document by signing the lines
provided below, said execution indicating that the property owner and applicant have each
read, understood and agreed to the conditions contained herein. Upon execution, this
document shall be recorded with the County Clerk of the County of San Diego, at the sole
expense of the property owner and/or applicant, and a signed, stamped copy returned to
the Planning Department. Failure to return a signed and stamped copy of this recorded
document within ten days of recordation to the City Clerk shall indicate the property
owner/applicant's desire that the project, and the corresponding application for building
permits and/or a business license, be held in abeyance without approval. Said document
will also be on file in the City Clerk's Office and known as Document No.
Signature of Representative of
Nextel
Date
H. NOTICE OF EXEMPTION
The City Council directs the Environmental Review Coordinator to post a Notice of
Exemption and file the same with the City Clerk.
I. ADDITIONAL TERM OF GRANT
This permit shall expire five (5) years after the date of its approval by the City Council.
After the first five (5) years, the Zoning Administrator shall review this Conditional Use
Permit for compliance with the conditions of approval, and shall determine, in consultation
with the Applicant, whether the project shall be modified from its original approval.
J. INVALIDITY; AUTOMATIC REVOCATION
It is the intention of the City Council that its adoption of this Resolution is dependent upon
the enforceability of each and every term, provision and condition herein stated; and that in
1/
6
the event that anyone or more terms, provisions or conditions are determined by a Court
of competent jurisdiction to be invalid, illegal or unenforceable, this resolution and the
permit shall be deemed to be automatically revoked and of no further force and effect ab
initio.
THIS RESOLUTION OF APPROVAL IS HEREBY PASSED AND APPROVED BY THE
CITY COUNCIL OF THE CITY OF CHULA VISTA, CALIFORNIA THIS 18TH DAY OF
DECEMBER 2002.
Presented by
Approved as to form by
Robert A. Leiter
Director of Planning and Building
John M. Kaheny
City Attorney
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7
PLANNING COMMISSION AGENDA STATEMENT
Item: 3'
Meeting Date: 12/18/02
ITEM TITLE:
Public Hearing: PCM-03-17; Consideration of a request by ACI Sunbow to
enter into a development agreement with the City of Chula Vista which
would allow them to vest their entitlements for industrial development on
property in the Sunbow Development located south of Olympic Parkway and
east of Brandywine Avenue. - City ofChula Vista.
This item is for the consideration of the City ofChula Vista to enter into a development agreement
with ACI Sunbow, LLC in order to allow them to vest their entitlements for industrial development
on property in the Sunbow Development located south of Olympic Parkway.
The Environmental Review Coordinator has reviewed the proposed project for compliance with the
California Environmental Quality Act and has determined that the proposed project was adequately
covered in previously adopted Sunbow II Sectional Planning Area (SPA) Final Environmental
Impact Report, FEIR-88-0 1. Thus, no further environmental review or documentation is necessary.
RECOMMENDATION:
Adopt attached Resolution PCM 03-17, recommending that the City Council adopt the attached
Ordinance, approving the proposed Development Agreement for ACI Sunbow, LLC, and place the
Ordinance on first reading.
DISCUSSION:
Background:
Sunbow is a master planned development located east ofI-80S and south of Telegraph Canyon Road
extending southerly of Olympic Parkway. The project was approved in the early nineties for 1,977
mixed use dwelling units, a neighborhood shopping center, neighborhood park, fire station, and an
industrial park. The residential and commercial portion ofthe property is virtually built out and has
been developed in accordance with the project approvals. The 64.7-acre industrial park lies south of
Olympic Parkway however it is yet to be developed (see locator). The tentative map approved on the
industrial site will expire in May, 2003.
The City's General Plan and the Draft economic development strategy both envision the location of
several industrial business parks throughout the City for high technology, biotech and manufacturing
uses. These include this site, as well as lands within Otay Ranch and the EastLake Business Park.
The development of these lands to the intended usage is part of a comprehensive balanced land use
approach for the City and to enable the creation of high paying jobs for Chula Vista and the South
Bay.
$-/
Page No.2, Item:
Meeting Date: 12/18/02
Analysis
The development agreement will vest the owners right to develop the subject property to an
industrial use subject to complying with all the requirements of the agreement, existing project
approvals and City codes and ordinances. The project will continue to be subject to the City's
threshold standards and growth management ordinance. This requirement is applicable to any new
development agreement and has been incorporated into all of the City's existing development
agreements.
Benefits to the City:
As consideration for the agreement, the recitals (see pages 2 & 3 ofthe agreement) acknowledge that
the owner has satisfied the following:
. Advanced $1.5 million for the construction of Olympic Parkway
. Contributed $32,240 toward acquisition of mitigation land in O'Neil Canyon
. Has advanced $7 million to satisfy their park obligation which includes renovation work to
Greg Rogers Park ($600,000), provisions of a 10 acre park site, advanced funds for park
construction ($1.5 million), and advanced additional monies ($4.9 million) for other park and
recreation purposes within the City.
In addition, the owner will be contributing $100,000 for capital improvements to the Chula Vista
Nature Center. The contribution will occur within 30 days ofthe effective date of the Ordinance
approving the development agreement.
Benefits to the Owner:
The industrial property has cleared environmental review and has an approved General Development
Plan, Sectional Planning Area Plan and Tentative Subdivision Map. Were it not for the development
agreement, the owner would be faced with two alternatives both of which are problematic: 1) refile a
new map and possibly be subject to new, as yet unknown, environmental or other development
requirements or 2) file a final map at this time (without a contemplated developer or user), have to
post bonds for on-site improvement requirements and other requirements of the tentative map etc.
The result could be premature expenditures that might be lost depending upon the desires and needs
of the ultimate industrial developer.
CONCLUSION:
In sum, the benefits of the agreement are similar to the benefits the City has provided in its various
other development agreements and will protect the entitlements for this industrial property.
For the reasons noted above, staff recommends approval of the project in accordance with the
attached Planning Commission Resolution.
0'- .-<
Page No.3, Item:
Meeting Date: 12/18/02
Attachments
1. Locator
2. Draft Planning Commission Rcsolution
3. Draft City Council Ordinance
.5-3
ATTACHMENT 1
LOCATOR
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LANDFILL
CHULA VISTA PLANNING AND BUILDING DEPARTMENT
LOCATOR PROJECT PROJECT DESCRIPTION:
C) APPLICANT: CITY OF CHULA VISTA Proposed development agreement between
PROJECT SOUTH OF OLYMPIC PARKWAY ACI Sunbow, LLC and The City of Chula Vista
ADDRESS: AND EAST OF BRANDYWINE AVE.
to vest entitlements for 64.7 acre Sunbow
SCALE: FILE NUMBER: Industrial Park.
NORTH No Scale PCM-03-17
C:\DAIFILEllocatorsIPCM0317cdr 12/03/02
J-C"
ATTACHMENT 2
DRAFT PLANNING COMMISSION RESOLUTION
$'-0?
RESOLUTION NO. PCM-03-17
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 ACI, SUNBOW, LLC FOR INDUSTRIAL PARK LAND WITHIN
SUNBOW DEVLOPMENT-City ofChula Vista.
WHEREAS, on November 26, 2002, the City ofChula Vista filed an application for
consideration of a development agreement between the City of Chula Vista and ACI
Sunbow, LLC {"Project"); and
WHEREAS, tbe proposed project involves 64.7 acres of industrial park land located
south of Olympic Parkway, east of Brandywine A venue, within the Sunbow Development
{"Project Site"); and,
WHEREAS, the project consists of consideration of a Development Agreement
between the City ofChula Vista and ACI Sunbow, LLC to allow them to vest entitlements
for industrial development on property in the Sunbow Development; and,
WHEREAS, the Environmental Review Coordinator has reviewed the proposed
project for compliance with the Califomia Environmental Quality Act and has detennined
that the proposed project was adequately covered in previously adopted Sunbow II Sectional
Planning Area (SPA) Final Environmental Impact Report, FEIR-88-01. Thus, no further
environmental review or documentation is necessary; and,
WHEREAS, the Planning and BuiJding Director set the time and place for a hearing
on the 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 and tenants 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 tlie time and place as advertised, namely 6:00
p.m., December 18, 2002, in the Council Chambers, 276 Fourth Avenue, before the
Planning Commission and said hearing was thereafter closed.
NOW, THEREFORE, BE IT RESOLVED THAT THE PLANNING
COMMISSION licrcby recommends that the City Council adopt the Development
Agreement for ACl Sunbow, LLC, in accordance with the attached Draft City Council
Ordinance, and place the Ordinance on first reading.
BE IT FURTHER RESOLVED THAT a copy of this Resolution be transmitted to
the City Council.
BE IT FURTHER RESOLVED THAT THE PLANNING COMMISSION voted
( ) to recommend approval of the Project.
J-/,
AYES:
NOES:
ABSENT:
Russ Hall, Chairperson
ATTEST:
S-gr
ATTACHMENT 3
DRAFT CITY COUNCIL ORDINANCE
s-;?
ORDINANCE NO.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA ADOPTING A DEVELOPMENT AGREEMENT
BETWEEM THE CITY OF CHULA VISTA AND ACI, SUNBOW
LLC. FOR INDUSTRIAL PARK LAND WITHIN THE SUNBOW
DEVELOPMENT.
1. RECITALS
A. Project Site
WHEREAS, the arcas of land which arc subject to this Ordinance are
diagrammatically represented in Exhibit A of the Development Agreement, and for the
purpose of general desCliption herein consists of: 64.7 acres south of Olympic Parkway, east
of Brandywine A vcnue ("Project Site"); and,
B. Project; Application for Discretionary Approval
WHEREAS, on November 26, 2002, the City of Chula Vista filed an application
for consideration of a development agreement between the City of Chula Vista and ACI
Sunbow, LLC ("Project"); and,
C. Prior Discretionary Approval
WHEREAS, the development of the Project Site has been the subject matter of
various entitlements, including: I) a General Development Plan, Sunbow II General
Development Plan, previously approved by City Council Resolution No. 15427 ("GDP") on
December 5, 1989; 2) a Sectional Planning Area (SPA) plan, Sunbow II Sectional Planning
Area Plan ("SPA") approved by City Council Resolution No. 15524 on February 20,
1990;3) Planned Community District Regulations, approved by Ordinance No. 2361 on
February 27, 1990 4) Tentative Subdivision Map for the project approved by City Council
Resolution No. 15640 on May 22, 1990 and 5) Resolution No. 2000-221 approving
amendments to the Sunbow II Sectional Planning Area (SPA) Plan and Sunbow II Design
Guidelines to impose conditions and amend the adopted Village Commercial Center Design
Concept. Approved by City Council Resolution No. 2000-221 on June 20,2000; and,
WHEREAS, the Environmental Review Coordinator has reviewed the proposed
project for compliance with the California Environmental Quality Act and has detennined
that the proposed project was adequately covered in previously adopted Sunbow II Sectional
Planning Area (SPA) Final Environmental Impact Rep011, FEIR-88-0J. Thus, no further
environmental review or documentation is necessary; and,
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Ordinance No.
Page 2
D. Planning Commission Record on Applications
WHEREAS, the Planning Commission held an advertised public hearing on said
project on December 18, 2002, and voted to recommend that the City Council approve the
Development Agreement; and,
WHEREAS, the proceedings and all evidence introduced before the Planning
Commission at their public hearing held on December 18, 2002, and the minutes and
resolutions resulting therefrom, are hereby incorporated into the record of this proceeding.
E. Council Record of Applications
WHEREAS, a duly called and noticed public hearing on the Development Agreement
was held before the City Council of the City of Chula Vista on January 14, 2003, and to
receive the recommendations of the Planning Commission, and to hear public testimony
with regard to the same.
II. NOW, THEREFORE, the City Council of the City of Chula Vista does hereby find,
detennine and ordain as follows:
A. COMPLIANCE WITH THE CITY GENERAL PLAN
The City Council has determined that the Development Agreement as shown on
Exhibit I, is consistent with the City's General Plan, all applicable mandatory and optional
clements of the General Development plan for Sunbow II as well as all other applicable
policies and regulations of the City; and,
B. APPROV AL OF DEVELOPMENT AGREEMENT
In accordance with Section 65867.5 of the Government Code, the City Council of
the city of Chula Vista hereby approves the document entitJed
Between the City of Chula Vista and ACI Sunbow, LLC, for the industrial portion of the
Sunbow Development.
III. EXECUTION OF AGREEMENT
The Mayor of the City of Chula Vista is hereby authorized and directed to execute
said Agreement on behalf of the City of Chula Vista.
IV. EFFECTIVE DATE
This ordinance shall take effect and be in force on the thirtieth day from after its
adoption.
V. RECORDATION OF DOCUMENT
The City Clerk is hereby directed to record the Development Agreement in the office of the
County Recorder.
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Ordinance No.
Presented by:
Approved as to fonn by:
Page 3
Robert A. Leiter
John M. Kaheny
Planning & Building Director
City Attorney
H\planning~em.1mend EI III Development Agreement
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EXHIBIT 1
RECORDING REQUESTED BY: )
)
City Clerk )
)
WHEN RECORDED MAIL TO: )
)
CITY OF CHULA VISTA )
276 Fourth Avenue )
Chula Vista, CA 9] 9] 0 )
)
-^-_._._-
Above Space for Recorder's Use
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DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT ("Agreement") is made effective on the date
hereinafter set forth below by and between ACI Sunbow, LLC, a Califomia limited liability
company ("Owner"), and THE CITY OF CHULA VISTA ("City"), a municipal corporation.
City and Owner whenever referenced herein col1cctively shal1 be refened to as "Parties" and
whenever rcfercnced hereinafter individually may be referred to as "Party." The Parties agree as
follows:
RECITALS
A. City's Authority to EntcrJnto Development Agreement. City, as a charter city, is
authorized under Resolution No. ] 1933, its Charter, its self-rule powers and Califomia
Govcmment Code sections 65864 et seq., to enter into binding development agreements with
persons having legal or equitable interests in real property for the purposes of assuring, among
other things, (i) certainty as to permitted land uses in the development of such property, and
(ii) construction of adequate public hlCilities to service such property.
B. The Property: Owncr'slnterest. Owner has a legal or equitable interest in the
rea] property more particularly described on Exhibit "A" attached hereto (the "Property"). The
Property is the subject of this Agreement. Owner is planning the Property as part of a master
planned community commonly known as the Sunbow Project. Owner intends that all other
persons holding legal or equitable interest in the Property benefit from and be bound by this
Agreement, as more particularly described herein. Owner intends to develop, improve, build on,
sel1 or lease the Property or portions thereof to various builders (as hereinafter defined) of
residential property or developers of non-residential property who may acquire portions of the
Property and the benefits and burdens under this Agreemcnt.
will:
C. <';:~lnd Owner,j\cknowledgc. City and Owner acknowledge this Agreement
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I. Assure Owner's participation in the accelerated, coordinated and more
economic constmction, funding and dedication to the public of certain needed public facilities
and benefits, and to provide for anticipated Icve1s of service to residents and populations of the
Property, the City, and adjacent areas; and
2. Provide Owner assurances regarding the entitlements and regulations that
will be applicable to the development of the Property consistent with the Chula Vista General
Plan and the Existing Project Approvals (as hereinafter defined).
D. Planning DocUlll~nts On Febmary 20, 1990, City adopted a Sectional Plarming
Area Plan for the Sunbow Project, which included a Phasing Plan, a Public Facility Financing
Plan and a Tentative Map for the Project.
E. City Ordinance. IS the date of adoption by the City
Council of Ordinance No. ____ approving this Agreement. The ordinance and Agreement
shall take elTect and be in full force on ("Effective Date'}
F. Consideration for this AgreeJ11ent. City acknowledges that, as consideration, in
part, for entering into this Agreement, Owner has 1!llly satisfied and completed the following:
(i) Olympic Parkway. Owner has advanced a payment to the City in the
amount of S I ,500,000.00 for construction of a portion of Olympic Parkway.
(ii) Mitigation Land. Owner has contributed to the City the sum of thirty two
thousand two hundred and f0l1y dollars (S32,240.00) in cash f()r acquisition of 65 acres of
mitigation land in O'Neill Canyon.
(iii) Park Facilitie~ Owner has previously advanced seven million dollars
(S7.000,OOO.OO) to City to satisfy Owner's park obligations for the Project, as follows:
(a) GrcgRogers Renovation Work Owner has paid the City in cash an
amount equal to six hundred thousand dollars (S600,000.00) for the renovation of Greg Rogers
Park consisting of improvements to the ball field, parking lot and food service facilities.
(b) Ten-Acre ParK Owncr has provided the City with a ten-acre park
site ("Ten-Acre Park") in accordance with Owner's Supplemental Subdivision Improvement
Agreement. In addition to providing the Ten-Acre Park site, Owner has completed the
following:
(1) Construction Activities. Owner has advanced funds for
initial improvements to the Ten-Acre Park in an amount equal to one mi11ion five hundred
thousand dollars ($1,500,000.00).
(2) Additional Payment. Owner has also advanced to the City
a cash payment in an amount equivalent to four million nine hundred thousand do11ars
(S4,900,OOO.00) ("Additional Cash Payment"). The City may use the Additional Cash Payment
as the City deems appropriate for other park and recreational purposes within the City.
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(iv) Fire Station. Owner has provided the following to the City pertaining to a
Fire Station Facility:
a. Transfer of Site. Owner has previously provided the City with title
to a Fire Station Site.
b. Grading Costs. Owner has graded the Fire Station Site and
constmcted a retaining wall, at Owner's sole cost and expense, in an amount equivalent to
twenty one thousand dollars ($21,000.00).
C. Construction of Fire Station. Owner has advanced the funds
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associated with the construction of the Fire Station Facility in an amount equivalent to
$1,132,855.67.
ARTICLE I
DEFINITIONS
In this Agreement, unless the context otherwise requires, the following tenns shall mean:
"Builder" means the entity, person or persons to whom Owner will sell, lease or convey
or has sold, leased or conveyed the Property or portions thereof, for purposes of its improvement
for residential, commercial, industrial or other uses.
"CEQA" means the California Environmental Quality Act. California Public Resources
Code sections 21000, et seq.
"City" means the City ofChula Vista, in the County of San Diego, State of California.
"City Council" means the City ofChula Vista City Council.
"Commit" or "Committed" means all of the following requirements have been met with
respect to:
a. Those certain public improvcments or facilities within the City's
jurisdictional boundaries and the responsibility of Owner for which:
i. All discretionary pennits required of the Owner have been
obtained for constmction of the public improvement or facility; and
II. Adequate funds (i.e., letters of credit, cash deposits, perfornJancc
bonds or land secured public financing, including facility benefit assessments,
Mello-Roos assessment districts or similar assessment mechanism) are available
such that the City can construct the public improvement or facility if construction
has not commenced within thirty (30) days of issuance of a notice to proceed by
the Director of Public Works, or construction is not progressing towards
completion in a reasonable manner as reasonably deemed by the Director of
Public Works.
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b. Those public improvements or facilities within the City's jurisdictional
boundaries, to be provided by other than Owner, in which Owner's proportionate share of
the cost of such public improvement or facility has heen provided or assurcd by Owner
through the payment of development impact fees or other similar exaction mechanism.
"County" means the County of San Diego, State of California.
"Development Impact Fee (DIF)" means fees imposed upon development within the
City pursuant to a City of Chula Vista Development Impact Fee Program, including but not
limited to the Transportation Development Impact Fee, the Interim SR-125 Development Impact
Fcc, the Poggi Canyon Sewer Development Impact Fcc and the Public Facilities Development
Impact Fee.
"Development Increments" means the devclopmcnt phasc(s) cOITesponding to the
public improvements required for such phases of the Project as set forth in the Existing Project
Approvals or Future Discretionary Approvals.
"Existing Project Approvals" means all discretionary approvals affecting the Project
which have been approved or estahlished in conjunction with, or preceding, the Effective Date of
this Agreement consisting of, but not limited to (as hereinafter defined) the 'Tentative Map", the
"SPA", the Chula Vista General Plan, and the "1'1'1'1'''. as may be amended fi'om time to time
consistent with this Agreement.
"Final Map(s)" means any linal subdivision map for all or any portion ofthe Property.
"Future Discretionary Approvals" means all discretionary approvals requested by the
Owner and approved by the City after the Effective Datc of this Agreement, including, but not
limited to: (i) grading pennits; (ii) site plan reviews; (iii) design guidelines and reviews;
(iv) precise plan reviews; (v) subdivisions of the Property other than the "Tentative Map", or re-
subdivisions of the Property; (vi) conditional use pennits; (vii) variances; (viii) encroachment
pcrn1its; (ix) rczonings; and (x) all other reviews, permits, and approvals of any type which may
be required from time to time to authorize public or private on- or off-site development which is
a part of the Project.
"Growth Management Ordinance" means the following policies and standards
intended to regulate the timing and phasing or rate of growth within the City; the Growth
Management Element adopted by City Council Resolution No. 15592 on April 17, 1990, an
ordinance adopted by the City Council on May 28, 1991, and the Growth Management Program
adopted by City Council Resolution No. 16101, on April 23, 1996, as all such documents may be
amended by City from time to time.
"Owner" means the person, persons, or entity having a legal or equitable interest in the
Property, or parts thereof, and includes Owner's successors-in-interest and "Builder" as defined
herein.
"PFFP" means the Public Facilities Financing Plan for the Project, dated Febl11ary 20,
1990, and approved by the City by Resolution No. 15525
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"Planning Commission" means the Planning Commission of the City ofChula Vista.
"Project" means the physical development ofthe private and public improvements on the
Propcliy as provided for in the Existing Project Approvals and as may be authorized by the City
in Future Discretionary Approvals. The tenn "Project" sball also mean "Property".
"Property" means the real property described in Exhibit "A".
"Public Facility" or "Public Facilities" means those public facilities described in the
Existing Project Approvals or Future Discretionary Approvals.
"SPA" means the Sectional PI31UJing Area Plan for the Project, dated Febmary 20, 1990
and approved by thc City by Resolution No. 15524.
"Subdivision Map Act" means the California Subdivision Map Act, Government Code
sections 66410, et seq., and its amendments, as may tram time to time be adopted.
'Tentative Map" shall refer to the tentative subdivision map and the conditions of
approval for the Project, adopted by the City as Chula Vista Tract No. 90-07 on May 22, 1990 by
Resolution No. R- 15640 and the Tentative Map extension adopted by Resolution No. 17177 on
July 20, 19')3 and any other applicable extension.
"Term" of this Agreement means tbc period defined in Article 2, below.
"Threshold" means the Quality of Life thresholds set forth in the City's Growth
Management Ordinance (Municipal Code section 19.19.(40), as may be amended from time to
time.
ARTICLE 2
TERM
2.1 Te.IT!l, This Agreement shall become effective as a development agreement upon
the Effective Date and shall continue for a period of five (5) years thereafter ("the Tern!").
2.2 Extension. The Tenn shall be extended for any period of time during which
processing of applications for Future Discretionary Approvals or issuance of building pennits to
Owner is suspended for any reason other than due to the actions or the default of the Owner, and
for such period of time equal to the period of time during which any action by the City or court
action limits the processing of such project applications, Future Discretionary Approvals,
issuance of building pem1its or any other development of the Property consistent with this
Agreement.
ARTICLE 3
VESTED RIGHTS
3.1 VcsteciBigl1ts. In consideration of the benefits to City, as set forth herein, Owner
IS vested with the right to develop, and maintain the Project to the land uses, densities and
5
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intensities as provided in the Existing Project Approvals and subject to such standards as set
forth in this Agreement; provided, however, Owner is not in default of its obligations under tbis
Agreement. I I' Future Discretionary Approvals are obtained by Owner, they shall be vested to
the same extent as the Existing Project Approvals provided Owner is not in default of its
obligations herein.
3.2 Righl.J<:)p,,~eJ.CJJ.J" Subject to Owner complying with applicable requirements of
this Agreement, Existing Project Approvals, the Growth Management Ordinance and Tentative
Map, Owner and Builders shall have the right to develop the Project for the land uses and to the
densities and intensities set forth in the Existing Project Approvals.
3.3 rvJaximum Height and Size of Stmctmcs. The maximum height and size of
structures to be constructed on the Project will be governed by the SP A.
34 Right to Withhold J>~Il)i.ts, Owner agrees that City shall have the right to
withhold the issuance of building pernJits for lots in the Property if the constmction authorized
by a Development Increment has been reached, unless and until Owner or Builder has satisfied
the obligation to Commit to the construction of public improvements or facilities which
corrcspond to the next applicable Development Increment. Where such public improvements or
facilities have been Committed as required, City shall issue to Owner or Builder building pennits
authorized by the appropriate Developmcnt ]ncrcmcnt.
3.5 C,rowtlU'vlanagcmcnt Ordinance. Notwithstanding any provisions to the contrary
herein, the City may make such changes to the City's Growth Management Ordinance applicable
to the Project as are reasonable and consistent with the purpose and intent of the Growth
Management Ordinance and which are generally applicable to all private projects citywide or
cast of 1-805 or within a spcciJic bcnclit, fee or reimbursement district created pursuant to
Califomia law. Thc Growth Management Ordinance shall apply to the timing and development
of the Propcl1y.
3.6 Ncw~ or Amended Rules. Regulations, Policies, Standards, Ordinances and
RcsolulLonsc The City may apply to the Project, including Future Discretionary Approvals, new
or amended rules, laws, regulations, policies, ordinances, resolutions and standards generally
applicable to all private projects within the City, east of I-80S or within a specitlc benefit fee or
reimbursement district created pursuant to applicable Califomia law. 11 is the Parties intent that
the application of such new rules, or amended laws, regulations, resolutions, policies, ordinances
and standards will not unreasonably prevent or unreasonably delay development of the Property
to the uses, densities or intensities of development specified herein or as authorized by the
Existing Project Approvals. In addition, the City may also apply changes in City laws,
regulations, ordinances, standards or policies specilically mandated by changes in state or federal
law in compliance with Article 1 I herein.
3.7 9~vl1."~~.921io]]to Apply New Rules. Owner may elect, with City Manager's
consent, to have applied to the Project any nIles, regulations, policies, ordinances or standards
enacted after the Effective Date of this Agreement. The City Manager shall not unreasonably
withhold said consent.
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3.8 Modifications to Ej[isting Proj~c:LApl'r9vals. It is contemplated by the Pa11ies to
this Agreement that City and Owner may mutually seek and agree to modifications to the
Existing Project Approvals. Such modifications arc contemplated as within the scope of this
Agreement and shall, upon written acceptance by all Parties, constitute for all purposes an
Existing Project Approval. Owner and City agree that any such modifications may not constitute
an amendment to this Agreement nor require an amendment to the Agreement.
3. <) C]1,,,!lgesin "ECYTPP" and Thresholds. The Existing Project Approvals when
originally approved by the City, anticipated revisions and updating to the Eastern Chula Vista
Transportation Phasing Plan, Transportation DlF and the potential modification of the
Thresholds from time to time, Subject to the limitations of this Article 3 of this Agreement,
Owner and the Project shall be subject to such revision or update which are lawfully adopted and
applied uniformly by City to all private development projects Citywide, east of ]-805 or within a
specific benefit, fee Of reimbursement district created pursuant to California law.
3.10 Bene/it of Other Vested RiglIts, Nothing in this Agreement will be construed as
adversely afTccting Owner's existing vested rights, if any, or Owner's obtaining a vested right to
continue development of the Project and to the development and use of the Property in the
manner contemplated by the Existing Project Approvals and as specified in this Article 3, as such
vested rights are created pursuant to the provisions of California's constitutional, statutory or
decisional law.
ARTICLE 4
PROCESSING PROJECT
4. I Processin~.Futurc Discretionary_.hl'J:'l:ovals" City will acccpt for processing
development applications and requests for Future Discretionary Approvals, Of other entitlements
with respect (0 the development and use of the Property, provided said applications and requests
are in accordance with this Agreement and consistent with the Existing Project Approvals. City
costs for processing work related to the Project, including hiring of additional City personnel
and/or the retaining of professional consultants, will be reimbursed to City by Owner in
accordance with the provisions of the City's standard "Staffing and Processing Agreement", if
such agreement is executed by the Parties.
4.2 l.cngth of Validity oLlentatiye Subdivision Maps. Government Code section
66452.6 provides that tentative subdivision map(s) may remain valid for a length up to the term
of a Development Agreement. The City agrees that the Tentative Map and any other tentative
subdivision maps for the Property, if any, shall be for a term coternlinous with the length of this
Agreenlent.
4.3 Pre-Final Ma.p_Q~velopment. If Owner desires to do certain work on the Property
(for example, grading) after approval of a tentative map, but prior to the recordation of a final
map, it may do so by obtaining a grading and/or other required approvals from the City prior to
recordation of a final map. The pcm1it or approval may be approved or denied by the City in
accordance with the City's Municipal Code, regulations ami policies and provided Owner is in
compliance with this Agrcemcnt and wIth the terms of all Existing Project Approvals and Future
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Discretionary Approvals. In addition, the Owner shall be required to post a bond or other
reasonably adequate security required by City in an amount dctcmlined by the City to assure the
rehabilitation of the land if the applicable final map does not record.
4.4 Transfer of Rights an(LQbligations ()[p..E'",elopment. Whenever Owner conveys a
portion of the Property, the rights and obligations of this Agreement shall transfer in accordance
with Article 12.1 herein.
ARTICLE 5
OWNER'S OBLIGATIONS
5.1 Contribution .'c'LEunds, Within thirty (30) days of the Effective Date of this
Agreement owner shall contrihute $100,000.00 for the capital improvements to the Chula Vista
Nature Center.
5.2 Condition to Owner's Obligations t~Dedicate, Fund or Construct Public
Facilities. Owner agrees to construct, develop or provide public improvcments and facilities,
provide dedications, or reservations of land and satisfy other exactions conditioning the
development of the Property in accordance with the following: (I) Existing Project Approvals;
(2) Future Discretionary Approvals; (3) other agreements previously executed by the Parties; and
(4) as set forth in this Agreement. In addition, Owner convenants and agrees to bond, provide
some other f0l111 of security acceptable to the City Manager and City Attol11cy or finance the cost
of those Llcilitics identiJied within Existing Project Approvals and future Discretionary
Approvals or as required by any final map. Owner shall also Commit to the Public Facilities and
City shall issue building permits in accordance with Existing Project Approvals and Future
Discretionary Approvals.
5.3 Growth i\1anal(ement Ordinance. Notwithstanding any provisions to the contrary
herein, the City shall have the right to withhold the issuance of building pennits any time after
the City reasonably detennincs a Threshold has been met or exceeded, unTcss and until the
defIciency has been mitigated in accordance with the City's Growth Management Ordinance.
a. Building Permits. Owner furthcr agrees that building pel111its may be
withheld where the Public Facilities described in the Existing Project Approvals and/or Future
Discretionary Approvals that may be required for a particular Threshold have not been
Committed.
b. Thresholds, In the event a Threshold has been met or exceeded, building
pcmlit issuance will bc withheld, the notice provisions and procedures contained in the Growth
Management Ordinance (Municipal Code section 19.09. 100(C)) will be followed. In the event
the issuance of building permits is suspended unifomlly to all properties governed by the Growth
Management Ordinance, such suspension shall not constitute a breach of the telms of this
Agreement. Furthcl11lOre, any such suspension which is not caused hy the actions or omissions
of the Owner, shall toll the tenn of this Agreement for the time of such suspension.
8
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c. Infollnation Regardill~ Thr"sI2CJ1Qs, Upon Owner's written request of the
City Manager, the City will provide Owner with information regarding the current status of a
Threshold. Owner shall bc responsible for any staff costs incurred in providing said written
responsc.
5.4 I'ioneering of Public Facilities. To the extent Owner constructs (i.e., "Pioneers")
any public facilities or public improvements which are covered by a DIF Program, Owner shall
bc given a credit against DlFs otherwise payable, subject to the City's Dircctor of Public Works
reasonable determination that such costs arc allowable under the applicable DlF Program. It is
spccjjjcally intended that Owner be given DlF credit for the OIF Program improvements it
makes. The fact that such improvcmcnts may be financed by an assessment district, Community
Facility District or othcr financing mechanism, shall not prevent DIF credits from being given to
the extent that such costs are allowed under the applicable DIF Program.
) ) Districts and Public Financin~.1\!Icchanisms. This Agreement and the Existing
Project Approvals recognize that assessment districts, community facility districts, or other
public linaneing mechanisms, may be necessary to finance the cost of public improvements
borne by this Project. If Owner. pursuant to the Existing Project Approvals and/or Future
Discretionary Approvals, installs improvements through the use of assessment districts, or other
public financing mechanisms, the City shall initiate and take final action to approve or deny the
formation of such financing district or funding mechanism, under applicable laws, ordinances, or
policies. Owner may request that City, but the City is not obligated; to, utilize any other
financing methods which may become available under City laws or ordinances. All costs
associated with the consideration and lormation of such financing districts or funding
mechanisms shall be paid by Owner subject to reimbursement, as may be legally authorized, out
of the proceeds of any fInancing district or tllJ1ding mechanism. Owner shall comply with the
tCllns of any assessment districts or other financing mechanisms so approved by the City for
Property covered by this Agreement and shall make timely payments as required by said
financing mechanism. The City retains its rights to take any action it deems reasonably
appropriate to guarantee payment.
5.6 Insurance. Owner shall name City as additional insured for all insurance policies
obtained by Owner for the Property as pertaining to the Owncr's activities and operation in
providing Public Facilities for the Property.
5.7 Other Land Owners. Owner hereby agrees to dedicate or provide an Irrevocable
Offer of Dedication, when so requested by the City, for adequate rights-of-way within the
boundaries of the Property for other land owners to "Pioneer" a public facility on the Property
provided said public facility will service the Property and the dedications shall be restricted to
those reasonably necessary for the construction of the f'lcility and subject to reimbursement as
may be allowed in accordance with City standards, oruinances and policies.
5.8 Assurances of Compliance. Owner acknowledges that the City is not required to
and will not take any action on any of Owner's applications for Future Discretionary Approvals
under this Agreement, or any modifications or amendments thereof, until and unless the City
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Manager determines that the Owner is not in default of its obligations under this Agreement
including but not limited to those set j(Jrth in paragraph 5.8 below.
5.9 ~'S'J11I'let'O__C~oflStrllctiol" Owner and Builders agree to diligently complete
construction once a building permit has been issued for Property which is covered by this
Agreement. Should construction stop once the building permits have been issued, which the City
in its sole discretion detennines has created a nuisance or fire or safety hazard, the owner of the
real property upon which the construction has stopped agrees to take such steps necessary to cure
the nuisance or hazard. Should said owner fail to do so to the City's satisfaction, the City may
take what steps it deems necessary to cure the nuisance or hazard at owner's sole cost and
expense.
ARTICLE 6
DEVF:LOPI\IENT IMPACT FEES
6.1 l'xisting Development Impact Fcc Program Payments. Owner acknowledges and
agrees that Owner is obligated to pay to the City the development impact fees applicable to the
Propel1y in effect as of the Effective Date of this Agreement, and as specified by the Existing
Project Approvals, Future Discrctionary Approvals, the Tentative Map and as allowed by
paragraph 3.6 of this Agreement. The 011' to be paid by Owner will be the amount in effect at
the time the payment of such fCcs is made"
6.2 Use of Developmcnt Impact Fee Program. The 011' amounts paid to the City by
Owner and others shall be placed by the City in a capital hlcility fund account established
pursuant to Califomia Government Code sections 66000-66009. The City shall expend such
funds only for the projects described in the adopted fee program as may be modified from time
to time. The City will use its reasonable best efforts to cause such projects to be completed as
soon as practicable; however. the City shall not be obligated to use its general funds for such
projects.
6.3 Withholdit,g of Permits. Owner agrees that City shall have the right to withhold
issuance of a building pennit for any structure or improvement on the Property unless and until
the 011' payment for that structure or improvement, due and payable, has been provided to the
City.
6.4 Modification of Development Impact Fees. The Pal1ies recognize that from time
to time during the duration of the Agreement it will be necessary for tbe City to update and
modify its OIl' fees. Such reasonable modifications arc contemplated by the City and the Owner
and shall not constitute a modi fication to the Agreement so long as: (i) such modifications are
based upon methodologies in substantial compliance with the methodology contained in the
existing 011' programs; or other methodology approved by the City Council following a public
hearing; and (ii) complies with the provisions of Government Code sections 66000-66009 or
other Califomia law.
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ARTlCU: 7
ANNUAL REVIEW
71 CitY_~ll<:LOwller Responsibilitie~ City will, at least every twelve (12) months
during the Tcnll of this Agreement. pursuant to Califomia Govcmment Code section 65865.1,
review the extent of good faith substantial compliance by Owner with the tenllS of this
Agreement. Pursuant to Califomia (,ovcmment Code section 65865. I, as amended, Owner shall
have the duty to demonstrate by substantial evidence its good faith compliance with the terms of
this Agreement at the periodic rcvicw. Either City or Owner may address any requirement of the
Agreement during the review.
7.2 Review L_ctt_cr. If Owner is found to be in compliance with this Agreement after
the annual review, City shall, within forty-five (45) days after Owner's written request, issue a
review letter in recordable form to Owner ("Letter") stating that based upon infol1l1ation known
or made known to the Council, the City Planning Commission and/or the City Planning Director,
this Agreement remains in effect and Owner is not in deLllIlt. Owner may record the Letter in
the Official Records of the County of San Diego.
7.3 Failure of Periodic Review. City's failure to rcview at least annually Owner's
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compliance with the terms and conditions of this Agreement shall not constitute, or be asserted
by City or Owner as, a delillllt by Owner or City with respect to the Agreement.
ARTICLE 8
DEFAULT
8.1 Events of--'2eJllLllt. A default under this Agreement shall be deemed to have
occurred upon thc happening of one or morc of the following events or conditions:
a. A warranty, representation or statement made or furnished by Owner to
City is false or proves to have been false in any material respect when it was made.
b. A finding and dctemlination by City made following a periodic review
umler the procedure provided for in California Govcmmcnt Code section 65865.1 that upon the
basis of substantial evidence Owner has not substantially complicd with one or more of the terms
or conditions ofthis Agreement.
c. City docs not accept, timely review, or consider requested development
penllits or entitlements submitted in accordance with the provisions of this Agreement.
If either Paliy defaults under this Agreement, the Party alleging such default will
give the breaching Party not less than thirty (30) days' notice of default in writing. The notice of
default will specify the nature of the alleged default, and, where appropriate, the manner and
period of time in which said default may be satisfactorily cured. During any period of cure, the
Party charged will not be considered in default for the purposes of tCl1l1ination or institution of
legal proceedings. I f the default is cured, then no detiwlt will exist and the noticing Party will
take no further action.
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8.2 Ql2tion~o Set l\i!attcrfoJ_ Hearing OrJllStiJutc Legal Procct;Qings. After proper
notice and the expiration of the curc period, the noticing Party to this Agreement, at its option,
may (i) institute legal proceedings or (ii) schedule hearings bej(Jre the Planning Commission and
the City Council for a determination as to whether this Agreement should be modified,
suspended, or terminated as a result of such default.
8.3 yvaivc!:c Nothing in this Agreement shall be deemed to be a waiver by Owner or
City of any right or privilege held by Owner or City pursuant to federal or state law, except as
specifically provided herein. Any failure or delay by a Party in asselling any of its rights or
remedies as to any default by the other Party will not operate as a waiver of any default or of any
such rights or remedies or deprive such Party of its right to institute and maintain any actions or
proceedings which it may deem necessary to protect. assert, or enforce any such rights or
remedies.
8.4 Remedies Upon Default. In the event of a default by either Party to this
Agreement, the Parties shall have the remedies of spcci tic performance, mandamus, injunction
and other equitable remedies. Neither Party shall have the remedy of monetary damages against
the other; provided, however, that the award of costs of litigation and attomcys' fees shall not
constitute monctary damages.
8.5 Remcdics felr Breach. All remedies at law or in equity which are consistent with
the provisions of this Agreen1cnt arc available to City and Owner to pursue in the event there is a
breach provided, however, neither Party shall have the remedy of monetary damages against the
other except for an award of litigation costs and attorneys' fccs as described in paragraphs 8.4
and 12.17 herein.
ARTICLE 9
ENCUMBRANCES AND RELEASES ON PROPERTY
9.1 Discretion t(jJ:.'ncumbcr. This Agreement shall not prevent or limit Owner in ~ny
manner at Owner's sole discretion, {rom encumbering the Property, or any pOllion of the
Property, or any improvement on the Property, by any mOllgage, deed of trust, or other security
device sccuring financing with respect to the Property or its improvement.
9.2 Mortgagee Rights and Obligati()]lsc The mortgagee of a mortgage or beneficiary
of a deed of trust encumbering the Property, or any part thereof, and their successors and assigns
shall, upon written request to City, be entitled to receive from City written notification of any
default by Owner of the performance of Owner's obligations under the Agreement whieh has not
been cured within thi.ly (30) days following the date of default. If there are no such defaults by
Owner, the City Manager shall notify the requesting Party of that fact in writing.
9.3 8celeases. City agrees that upon written request of Owner and provided that all
payments and the requirements and conditions required by this Agreement bave been pcrfonned,
City may execute and deliver to Owner appropriate relcase(s) of obligations imposed by this
Agreement in 1'01111 and substance acceptable to the San Diego County Recorder and title
insurance company, if any. or as may othcrwise be necessary to effect the release of a portion of
the Property to an individual home buyer or parcel of property that has been built out and sold to
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an uHimatc consul11cr. City Manager shall not unreasonably withhold approval of such
releasc( s).
9.4 Subordination. Owner agrees to enter into subordination agreements with all
lenders having a lien on the Property to ensure that the provisions of this Agreement bind such
lienholders should they take title to all or part of the Property through quitclaim deed, sale,
foreclosure or any other means oftransfcr of property. As a condition precedent to obtaining the
benefits that accrue to the Owner or the Property tinder this Agreement, this Agreement by and
through said subordination agreements shall be prior and superior to such liens on said Property.
Owner shall deliver to the City the fully executed subordination agreements for the Property in a
form acceptable to the City Attorney and suitable for recording, prior to the second reading of
the ordinance adopting the Agreement.
ARTICLE 10
MODIFICATION OR SUSPENSION
10.1 Modification10i,\grccmcnt by l'vlutual Consel1.L Except as spccifically provided
for herein, this Agreement may be modified, from time to time, by the mutual consent of the
Parties only in the samc manner as its adoption by an ordinance as set forth in California
Government Code sections 65867, 65867.5 and 658(,8. The term, "Agreement" as used herein,
will include any such modiJication propcrly approved ami executed.
10.2 Minor Modifications, The Parties to this Agreement contemplate that there may
be periodic clarifIcations and minor modifications to this Agreement. Such minor clariJications
or modifications when agreed upon by the Parties hereto are anticipated and shall not constitute
an amendment to this Agreement or a modi lication pursuant to this Article 10 but shall
automatically be incorporated herein upon execution in writing by the Parties.
10.3 !J.'.'[orcs~cen lIealth or Safety_C,i~"umstanccs. If, as a result of facts, events, or
circumstances City finds that failure to suspend or modify this Agreement would pose an
immediate threat to the health or safety of the City's residents or the City, the following shall
occur:
a. Notification of Unforeseen Circumstance~ Notify Owner of (i) City's
determination; and (ii) the reasons for City's determination, and all facts upon which such
reasons are based; and
b. Notice of Hearing. Notify Owner in writing at least fourteen (14) days
prior to the date, of the date, time and place of the hearing and forward to Owner a minimum of
ten (10) days prior to the hearings described in paragraph 10.3(c) bclow, all documents related to
such detemlination and reasons therefor; and
c. Hearing. Hold a hearing on the detennination, at which hearing Owner
will have the right to address the City Council. At the conclusion of said hcaring, City may take
action to suspend this Agreement as provided hcrein. The City may suspend this Agreement if,
at the conclusion of said hearing, based upon the evidence presented by the Parties, the City finds
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failure to suspend would pose an immediate threat to the health or safety of the City's residents
or the City.
ARTICLE II
CHANGE IN STATE OR FED~:RAL LAW OR REGULATIONS
11.1 State or Federal Law or Regulation. If any state or federal law or regulation
enacted during the Term of this Agreement, or the action or inaction of any other affected
governmental jurisdiction, precludes compliance with one or more provisions of this Agreement,
or requires changes in plans, maps, or penl1its approved by City, the Parties will act pursuant to
paragraphs I 1.1 (a) and 11.1(b), below.
a. t'otice;. .M~(;tinEc The Party first becoming aware of such enactment or
action or inaction win provide the other Party(ies) with written notice of such state or federal law
or regulation and provide a copy of such law or regulation and a statement regarding its conflict
with the provisions of this Agreement. The Parties will promptly meet and confer in a good faith
and reasonable attempt to modify or suspend this Agrecmcnt to comply with such federal or state
law or regulation.
h. Hearing. If an agrccd upon modification or suspension would not require
an amendment to this Agrccment, no hcaring shall be held. Otherwise, the matter of such federal
or state law or regulation win bc schedulcd for hearing before the City Council. Firteen (15)
days' written notice of such hearing shan be provided to owner, and the City Council, at such
hearing, win determine and issue findings on the modification or suspension which is required
by such federal or state law or regulation. Owner, at the hearing, shan have the right to offer
testimony and other evidence. Any modification or suspension shan be taken by the affinl1ative
vote of not less than a majority of the authorized voting members of the City Council. If the
Parties fail to agree after said hearing, the matter may be submitted to nonbinding mediation
pursuant to subsection 12.19, prior to the filing of any legal action by any Party. Any suspension
or modification maybe subject to judicial review in conformance with this Agreement.
11.2 Natural Communities Conservation Act (NCCP). The Parties recognizc that the
City is negotiating with the United States Fish and Wildlife Service and the California
Department of Fish and Gamc ("Resource Agencics") pursuant to the ongoing regional effort to
implement the Natural Communities Conservation Act ("NCCP"), for the adoption of a subarea
plan Multi-Species Conservation Program for the City ("MSCP"). The Parties further recognize
that implcmentation of the MSCP may impact the Project, and the Existing Project Approvals.
To the extent there may be an ambiguity, inconsistency or conflict betwecn the tel111s of the
MSCP and the tel111s of this Section 112, the ternlS of this Secfion 11.2 shall prevail.
a. Sunbow II Participation in the MSCP. The Property, Existing Project
Approvals and Future Discretionary Approvals with respect to the MSCP shall be governed by
the following provisions:
(i) Owner has received take authorization from the Resource Agencies
(take is authorized under Sunbow's ESA section 7 Biological Opinion's Terms and Conditions)
(the "Take Permit").
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(ii) the Take Permit is in good standing,
(iii) Owner agrees to comply with all thc tcrms and conditions of its
Take Permit,
(iv) the open space preservation areas on the Sunbow Project will be
incorporated into the City's overall MSCP and thc development area is within a take authorized
area, howcver, the Sunbow Project win not he a "covered project" as defined by the City's
proposed MSCP.
(v) under Owner's Take Penl1it and the City's proposed MSCP, take
of any covered species within the development area of the Sunbow Project (including the
industrial site) would be allowed, as authorized hy the Take Permit and the City's proposed
MSCP, because the development area of the industrial site is a part of the take authorized arca.
City shall provide a certificate to take under the City's take authorization upon Owner's request
of the City pursuant to the provisions of the City's MSCP.
(vi) it is intended by the City that the Sunbow Project win be exempt
from the proposed Habitat Loss and Incidcntal Take ("HUT") pernlit requirements upon
adoption of the HLIT ordinance currently proposed,
(vii) the use of opcn space within the Sunbow Project may include
actions and activities that may bc allowed by the City's proposed MSCP and the Take Permit.
b. Implementation of thc MSCP. Notwithstanding thc forcgoing, additional
modifications to the MSCP, the Implementation Agrcement, HUT, and permit may oecur during
thc approval process for thc MSCP. Developer understands that the HUT and the City's MSCP
has not been adopted by the City as of the Datc of Execution of this Agreement and nothing
herein shall be constmed to limit the City's discretion to amend, adopt or deny the HUT
Ordinance or the City's MSCP. Although modifications to Existing Project Approvals are not
anticipated with adoption of the MSCP, the MSCP may result in additional measures being
applied to the Existing Project. The City and Owner agree to utilizc their best efforts for
implementation of the MSCP, onec cxccuted and efTective, with as few modi flcations to the
Existing Project Approvals as may be allowcd by the City. Once such modifications are
obtained, if any, they shall bc vestcd to the same extent as Existing Project Approvals.
ARTICLE 12
MISCELLANEOUS PROVISIONS
12.1 BiJlding Effect of Agreement. Except to the extent otherwise provided in this
Agreement, the burdens of this Agreement bind, and the benefits of this Agreement inure, to
City's successor-in-interest and Owner's successors-in-interest to the Property and shan be a
covenant running with the land.
12.2 Relationship of City and OWneL The contractual relationship between City and
Owner arising out of this Agreement is not of agency. This Agreemcnt does not create any third-
pal1y beneficiary rights.
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12.3 Noticesc All notices, demands, and correspondence required or penl1itted by this
Agreemcnt shall be in writing and delivercd in person, or mailed by first-class or certified mail,
postage prepaid, addrcssed as follows:
If to City, to:
City ofChula Vista
276 Fourth Avenue
Chula Vista, CA 91910
Attention: City Manager
If to Owner, to:
ACI Sunbow, LLC
750 B Street, Suite 2370
San Diego, CA 92101
City or Owner may change its address by giving notice in writing to the other. Thereafter,
notices, demands, and correspondence shall be addressed and transmitted to the new address.
Notice shall be deemed given upon personal delivcry, or, if mailed, two (2) business days
fonowing deposit in the United States mail.
12.4 Rulesof Construction. In this Agreement, the use of the singular includes the
plural; the masculine gender includes the femininc; "shall" is mandatory; "may" is permissive.
12.5 Entire Agreement, Waivers,_'~ml Rcc()rded Statement This Agreement constitutes
the entire undcrstanding and agreement of City and Owner with respect to the matters set forth in
this Agreement. This Agreement supersedes all negotiations or previous agreements between
City and Owner respecting this Agreement. All waivers of the provisions of this Agreement
must be in writing and signed by the appropriate authorities of City and Owner. Upon the
completion of perfonl1ance of this Agreement, or its revocation or tcrmination, a statement
evidencing completion, revocation, or termination signed by the City Manager shall be rceorded
in the OffIcial Records of San Diego County, Califomia. Unless otherwise specifically stated,
nothing herein shall be construed to supersede, modify or amend other existing agreements
between the Parties.
12.6 Incorporation of Recitals.
incorporated herein to this Agreement.
The recitals set forth III this Agreement are
12.7 Capti()I}Sc The captions of this Agreement arc for convcnienee and reference only
and shall not define, explain, modify. construe, limit, amplify, or aid in the interprctation,
construction, or meaning of any of the provisions of this Agreement.
12.8 Consent. Where the consent or approval of City or Owner is required or
necessary under this Agreement, the consent or approval shall not be unreasonably withheld,
delayed, or conditioned.
12.9 Covenant of Cooperation. City and Owner shall cooperate and deal with each
othcr in good faith, and assist each other in the perfol111ance of the provisions of this Agreement.
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12.10 B-ecordinRc The City Clerk shall cause a copy of this Agrccment to be rccorded
with the Office of the County Recorder of San Diego County, California, within ten (10) days
following the Effective Date
12.11 Delay, Extension ofTirn-,,_for Perfonl1ance (Force Majel!rel In addition to any
specific provision of this Agreement, performance by either City or Owner of its obligations
hercunder shall be excused during any period of delay caused at any time by reason of any event
heyond the control of City or Owner which prevents or delays and impacts City's or Owner's
ability to perform obligations under this Agrecment, including, but not limited to the f01l0wing:
acts of God, enactment of new conflicting federal, state or local laws or regulations (such as:
listing of a species as threatened or endangered), judicial actions (such as the issuancc of
restraining orders and injunctions), or riots. strikes, or damage to work in process by rcason of
lire, Jloods, earthquake, or other such casualtics. In addition, any delay in Owner's perfonmmce
herein may be excused if such delay is caused by City's failure to process any required plans,
documents or approvals, provided, howcver, City's delay is not caused by Owner's failure to
submit such plans or documents in a timely manner or is due to Owner's changes or amendments
to said documents. If City or Owner seeks excuse from perfornnnee, it shall provide written
notice of such delay to the other Party within thirty (30) days of the commencement of such
delay. If tbe delay or default is beyond the control of City or Owner, and is excused, an
extension of timc for such cause will bc granted in writing for the period of the enlorced delay,
or longcr as may be mutually agreed upon.
12.12 Coven.ant of Good Faitbnand Fair Dealifjgsc No Party shall do anything which
shall have the effect of hanning or injuring the right of thc other Pa,1ies to receive the benefits of
this Agreement; cach Party shall refrain from doing anything which would render its
perfornlance under this Agreement impossible; and each Party shall do everything which this
Agreement contemplates that such Party shall do in order to accomplish the ohjectives and
purposes of this Agreement".
12. I 3 Time_o.L.r:ssence. Time is of the essence in the performance of the provisions of
this Agreement as to which time is an elemcnt.
12.14 Caneel1ation of Agreern_e.l11 This Agreement may be canceled by tbe mutual
consent of City and Owner only in the same manner as its adoption, by an ordinance as set forth
in California Govemment Code section 65868, and sha1l be in a fonl1 suitable for recording in
the Official Records of San Diego County, California. The tenl1 "Agreement" shall include any
such amendment properly approved and cxecuted.
12.15 Estoppel Certificate. Within tbirty (30) calendar days following a written rcquest
hy any of the Parties, the other Parties to this Agrcement shall execute and deliver to the
requesting Party a statement cer1ifying that (i) this Agreement is unmodified and in full force and
effect, or if there have been modifications hereto, fhat this Agreemcnt is in full force and effect
as modified and stating the date and nature of such modifications; (ii) there arc no known current
uncured dcfaults under this Agreement, or specifying the dates and nature of any such default;
and (iii) any other reasonable infonnation requested. The failure to deliver slIch a statement
within slIch time shall constitute a conclusive presumption against the Party which fails to
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dclivcr such statemcnt that this Agrccment is in full force and effect without modification, except
as may be represcnted by the requesting Party, and that there are no uncured dcfaults in the
performancc of the requcsting Party, except as may be representcd by the requesting Party.
12.16 Institution of L,gal Proceedin& In addition to any other rights or remedies, any
Party may institute legal action to cure, correct, or remedy any default, to enforce any covenants
or agreemcnts herein, or to enjoin any threatened or attempted violation thcreof; to recover
damages for any default as allowed by this Agreement or to obtain any rcmedies consistent with
the purpose of this Agreement. Such legal actions must be instituted in thc Superior Court of the
County of San Diego, State of Cali fornia.
12.17 Attorneys' Fees and Costs. ]1' any Party commences litigation or other
proceedings (including, without limitation, arbitration) for the interpretation, refonmation,
enforcement, or rcscission of this Agreement, the prevailing Party, as detenmined by the eourt,
will be cntitled to its reasonable attomeys' fees and costs.
12.18 Hold Hanmless. Owner agrecs to and shall hold City, its officers, agents,
employccs and representatives harmless from liability for damage or claims for damage for
personal injury, including death, and claims for property damage which may arise from the direct
or indirect operations of Owner or thosc of its contractors, subcontractors, agents, employees or
other pcrsons acting on Owner's behalt~ on the Projcct. Owner agrees to and shan defend City
and its onIcers, agents, employees and representatives from actions for damage caused or alleged
to havc bccn caused by reason of Owner's activities on the Project. Owner agrces to indemnify,
hold harmless, pay all costs and provide a defense for City in any legal action filed in a court of
competent jurisdiction by a third Pat1y challenging the validity of this Agrcement. The
provisions of this paragraph 13.18 shall not apply to the extent such damage, liability or claim is
caused by the sole negligence or willful misconduct of City, its officers, agents, employecs or
representativcs.
12.19 Non-q;.!1ding Mediation. I I' this Agrcement requircs mediation in order to resolve
a disagreement between the Parties, such mediation shall comply with the following provisions:
a. !\J!,:et and ConfeE. The Parties shall meet and confer in good faith to
attempt to resolve their disagreement. If the Parties arc not able to resolve their disagrcement
within thirty (30) calendar days after their first meeting on the subject, the matter shall be
submitted for non-binding mediation in accordance with the terms and conditions set f0l1h
below.
b. Non-binding Mediation. In the event that the Parties are unable to resolve
their disagreement by meeting and conferring among themselves as provided above, the Parties
shan meet to select a mediator who will attempt to rcsolve the disagreement. Unless otherwise
agreed by the Parties, the mediator shall have no affiliation with either of the Parties and
preferably have experience in municipal or resource and habitat management. ]n the event that
the Parties are unable to agree on a mediator within ten (10) calendar days after the expiration of
thc meet and confer period, the Parties shall petition the presiding Judge of the Superior Court of
the County of San Diego to appoint a mcdiator who possesses the above-described qualifications.
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c. J\1ediation-, The mediation shall occur at times and locations agreed upon
by the Parties. The Parties shan submit to the mediator their respective relevant documents or
evidence supporting thcir position that each may choose to provide. Neither Party, nor the
mediator, shall have any discovery powers in the proceeding. The mediator shan meet with the
Parties and attempt to resolve their disagreement by facilitating discussions between them. The
mediator shan not take a position on the dispute unless requested to do so by both Parties. In the
event that mediation process does not resolve the disagreement within twenty (20) days after first
meeting with the mediator, unless extended by mutual agreement of the Parties, the mediation
process shall terminate. All discussions at the mediation shall be kept confidential, as may be
allowed by state and federal law, and shall not be discoverable in any subsequent proceedings.
Each Party shall bear their own costs in the mediation and the Parties shall share equally in any
and all costs charged by the mediator. In the event that a resolution of the disagreement at issue
is not reached, each Party reserves the right to pursue any and all remedies available at law or in
equity with respect thereto.
Dated this _.__ day of..
,2002.
CITY OF CHULA VISTA
ACI Sunbow, LLC, a California limited
liability company,
By:
Steve Padilla, Mayor
ATTEST:
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Susan Bigelow, City Clerk
APPROVED AS TO FORM:
John M. Kaheny, City Attol11ey
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EXHIBIT A
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