HomeMy WebLinkAboutAgenda Packet 1997/02/25
WI declare wn'ler penaity Of perjury that I am
employed by the City of Chu!a \I is!a in the
Office of the City CierI< and that" pas ,ed
Tuesday, February 25, 1997 thia Agenda/No~lce on tna Bulletin Board at .
. B ldl d t Cltv liall on CouncIl Chambers
6:00 p.m. the Public rv C88 U! ng an 8. Pubr S . B ld'
'.:J.) SIGNED ' " IC ervlces Ul mg
DATED, _--=-
Re lac Meetm of the Cit of Chula Vista
CALL TO ORDER
1. ROLL CALL: Councilmembers Moot _' Padilla _, Rindone _, Salas _. and
Mayor Horton _.
2. PLEDGE OF ALLEGIANCE TO THE FLAG. MOMENT OF SILENCE
3. APPROVAL OF MINUTES: February 13, 1997 (Special MeetinglWorksession) and February 18,
1997 (Regular Meeting).
4. SPECIAL ORDERS OF THE DAY: None.
CONSENT CALENDAR
(Items 5 through /3)
The staff recommendations regarding the following items listed under the Consent Calendar will be enacted by
the Council by one motion without discussion unless a Councilmember, a member of the public, or City staff
requests that the item be pulled for discussion. If you wish to speak on one of these items, please fill out a
"Request to Speak Form" available in the lobby and submit it to the City Clerk prior to the meeting. Items pulled
from the Consent Calendar will be discussed after Board and Commission Recommendations and Action Items.
Items pulled by the public will be the first items of business.
5. WRITTEN COMMUNICATIONS:
a. Letter from the City Attorney stating that the City Council did not meet in Closed Session
on 2/18/97. It is recommended that the letter be received and filed.
b. Petition from residents requesting access to Otay Elementary School, Montgomery
Elementary School and the new Library on Fourth A venue be improved. It is recommended
that this item be referred to staff to work with the Chula Vista Elementary School District and the
area residents and return with a report.
6. ORDINANCE 2698 APPROVING AMENDMENTS TO THE RANCHO DEL REY SPA ill
PLANNED COMMUNITY DISTRICT REGULATIONS (second readin!!
and adootion) - Consideration of applications filed by Rancho del Rey
Investors, L.P. for 28.8 acres located on the south side of East "J" Street
between Paseo Ranchero and Vaquero Court within the Rancho del Rey SPA 111
Planned Community. An appeal of the Design Review Committee's decision to
deny the site plan and architectural proposal of a 246 unit condominium complex
to be located on the Tentative Subdivision Map site has also been filed. Staff
recommends Council place the ordinance on second reading and adoption.
(Director of Planning)
~-".__...- ._. U_"__'_~_'_"_'___""""_"
Agenda -2- February 25, 1997
7. ORDINANCE 2699 AMENDING SECTION 1.34.050 OF CHAPTER 1.34 (CLAIMS
REQUIREMENT AND PROCEDURES) AND SECTIONS 2.05.010
(UNCLASSIFIED POSITIONS ESTABLISHED) AND 2.05.020
(CRIMINAL CONDUCT - INELIGmILITY FOR EMPLOYMENT) OF
CHAPTER 2.05 (PERSONNEL AND CIVIL SERVICE REGULATIONS)
OF THE MUNICIPAL CODE TO CHANGE THE TITLE OF THE
"DIRECTOR OF PERSONNEL" TO "DIRECTOR OF HUMAN
RESOURCES" AND TO CHANGE THE TITLE OF THE "ASSISTANT
DIRECTOR OF PERSONNEL" TO "ASSISTANT DIRECTOR OF
HUMAN RESOURCES" (first readin!!) - During one of the budget workshops
for fiscal year 1996/97, Council directed the change in the title of the Personnel
Department to "Human Resources Department." This necessitates a change in
titles for the Director and Assistant Director. Staff recommends Council place
the ordinance on first reading. (Director of Personnel)
8. RES()LtrfI()N 18581 SUPPORTING APPLICATION FOR GRANT MONIES TOTALING
$100,000 FROM THE DEPARTMENT OF CALIFORNIA ALCOHOLIC
BEVERAGE CONTROL (ABC) TO ADDRESS ALCOHOL-RELATED
QUALITY OF LIFE ISSUES AND IMPROVE ABC ENFORCEMENT -
These funds are available from the Department of Alcoholic Beverage Control
to improve police response to disorderly ABC licenses. These funds are
available for a period of one year and will be used to cover the expense of a
full-time assigned patrol officer. overtime, training, travel and related
equipment. The grant application must be submitted no later than 317/97. Staff
recommends approval of the resolution. (Chief of Police)
9.A. RESOLtrfION 18582 AMENDING THE 1996/97 FISCAL BUDGET TO FUND THE
LANDSCAPE MAINTENANCE OF THE OPEN SPACE AREA IN
RANCHO DEL REY SPA ill (RDR) IN THE OPEN SPACE
MAINTENANCE DISTRICT NUMBER 20; AND APPROPRIATING
$32,060 TO 570-5700 (5251-5362) - McMillin Community, Inc. has offered to
reimburse the City for maintenance costs when the City assumes the
responsibility of maintenance for the Open Space land in RDR SPA III for
3/1/97 through 6/30/97. Following this period of time, the property owners will
be included in the assessment process and all costs will be borne by the District.
Requests for bids to provide landscape maintenance for Open Space District 20
were received on 117/97. The plants, trees, grass and irrigation systems are in
good condition and the Department is prepared to assume the landscape
maintenance responsibility of the District. Staff recommends approval of the
resolutions. (Director of Parks, Recreation and Open Space) 4/5th's vote
required.
B. RES()LtrfI()N 18583 ACCEPTING BIDS AND AWARDING LANDSCAPE MAINTENANCE
CONTRACT FOR RANCHO DEL REY, SPA III OPEN SPACE IN
DISTRICT NUMBER 20
10. RESOLtrfION 18584 APPROVING THE SUBMITTAL TO SANDAG OF TWO APPLICATIONS
FOR THE FISCAL YEAR 1997/98 2% NON-MOTORIZED
TRANSPOR T A TION DEVELOPMENT ACT (TDA) AND
TRANSPORTATION SALES TAX (TRANSNET) FUNDS - The City
annually submits an updated list of projects for inclusion in the seven-year
implementation program of the non-motorized element of the Regional
Transportation Improvement Program. SANDAG regulations require that
official applications be submitted to SANDAG in order for projects to be
considered by its Board of Directors for funding. Staff recommends approval
of the resolution. (Director of Public Works)
._-. -------_._-----------------------_._~_.
Agenda -3- February 25, 1997
11. RESOLUTION 18585 AUTHORIZING THE EXPENDITURE OF FUNDS TO INSTALL A
TRAFFIC SIGNAL AT THE BONITA VISTA IDGH SCHOOL EAST "H"
STREET ENTRANCE IN EXCHANGE FOR RIGHT-OF-WAY
DEDICATION FOR THE CONSTRUCTION OF THE OTAY LAKES
ROAD DUAL LEFT TURN LANES PROJECT (STM-322) - The fiscal year
1996/96 Capital Improvement Program budget contains a project to provide dual
left turn lanes on Otay Lakes Road (north and south bound approaches) at East
"H" Street and provide an additional through lane in each direction. To
construct the project, is necessary to obtain right-of-way from both the
Sweetwater Union High School District and Southwestern College. Negotiations
with both agencies are underway and a tentative agreement has been reached
with the Sweetwater District. Staff recommends approval of the resolution.
(Director of Public Works)
12.A. RES()LUTI()N 18586 WAIVING CONSULTANT SELECTION PROCESS AND APPROVING
AGREEMENT WITH DWIGHT WORDEN, ESQ. FOR LEGAL
SERVICES CONCERNING THE METRO SEWER SYSTEM - Chula Vista
has retained the legal services of Dwight Worden to assist in dealing with the
City of San Diego and other Metro participating agencies in developing a system
and agreement to operate and pay for the Metro Sewer System. There are still
significant issues to be resolved and agreements to be completed. The City has
also retained the engineering firm of Dudek and Associates to advise in
engineering matters relating to Metro Sewer issues. Staff recommends approval
of the resolutions. (Director of Public Works)
B. RESOLUTION 18587 WAIVING CONSULTANT SELECTION PROCESS AND APPROVING
AGREEMENT WITH DUDEK AND ASSOCIATES FOR ENGINEERING
SERVICES CONCERNING THE METRO SEWER SYSTEM
13.A. RES()LUTI()N 18588 APPROVING FINAL MAP OF TRACT 96-05 RANCHO DEL REY SPA
ill, PHASE 1, UNIT 1, ACCEPTING ON BEHALF OF THE PUBLIC
THE PUBLIC STREETS DEDICATED ON SAID MAP, ACCEPTING
THE EASEMENTS GRANTED ON SAID MAP WITHIN SAID
SUBDIVISION, AND APPROVING SUBDIVISION IMPROVEMENT
AGREEMENT FOR THE COMPLETION OF IMPROVEMENTS
REQUIRED BY SAID SUBDIVISION, AND AUTHORIZING THE
MAYOR TO EXECUTE SAID AGREEMENT - On 7/16/96, Council
approved the Tentative Subdivision Map for Tract 96-05, Rancho del Rey SPA
III, Parcel R-7. On that map unit boundaries were delineated. Staff
recommends approval of the resolutions. (Director of Public Works)
B. RES()LUTI()N 18589 APPROVING SUPPLEMENTAL SUBDIVISION IMPROVEMENT
AGREEMENT FOR TRACT 96-05, RANCHO DEL REY, SPA DI, PHASE
1, UNIT 1
C. RES()LUTI()N 18590 APPROVING FINAL MAP OF TRACT 96-05 RANCHO DEL REY SPA
ill, PHASE 1, UNIT 2, ACCEPTING ON BEHALF OF THE PUBLIC
THE PUBLIC STREETS DEDICATED ON SAID MAP, ACCEPTING
THE EASEMENTS GRANTED ON SAID MAP WITHIN SAID
SUBDIVISION, AND APPROVING SUBDIVISION IMPROVEMENT
AGREEMENT FOR THE COMPLETION OF IMPROVEMENTS
REQUiRED BY SAID SUBDIVISION, AND AUTHORIZING THE
MAYOR TO EXECUTE SAID AGREEMENT
D. RESOLUTION 18591 APPROVING SUPPLEMENTAL SUBDIVISION IMPROVEMENT
AGREEMENT FOR TRACT 96-05, RANCHO DEL REY, SPA ill, PHASE
1, UNIT 2
* * * END OF CONSENT CALENDAR * * *
--_._---- ......--
Agenda -4- February 25, 1997
ORAL COMMUNICATIONS
This is an opportunity for the general public to address the City Council on any subject matter within the
Council's jurisdiction that is not an item on this agenda for public discussion. (State law, however, generally
prohibits the City Council from taking action on any issues not included on the posted agenda.) lfyou wish to
address the Council on such a subject, please complete the "Request to Speak Under Oral Communications
Form" available in the lobby and submit it to the City Clerk prior to the meeting. Those who wish to speak,
please give your name and address for record purposes and follow up action.
PUBLIC HEARINGS AND RELATED RESOLUTIONS AND ORDINANCES
The following items have been advertised and/or posted as public hearings as required by law. If you wish to
speak to any item, please fill out the "Request to Speak Form" available in the lobby and submit it to the City
Clerk prior to the meeting.
14. PUBLIC HEARING ADOPTING OTAY RANCH PRE-ANNEXATION DEVELOPMENT
AGREEMENTS WITH VILLAGE DEVELOPMENT AND BALDWIN
BUILDERS - On 6/25/96, the Planning Commission met jointly with Council
to consider and approve pre-annexation development agreements with the major
property owners of Otay Ranch. When the development agreements were
originally approved, it was anticipated that the Otay Ranch annexation would be
fioalized by the end of 1996. The development agreements contained 12/31/96
expiration dates if the annexation was not complete by that time. While the
reorganization was ordered by Council on 12/17/96, a Local Agency Formation
Commission annexation condition was not met, the annexation was not
completed, and the agreements have expired. Staff recommends Council place
the ordinances on first reading. (Deputy City Manager Krempl and Special
Planning Projects Manager, Otay Ranch) Continued from the meeting of
2/18/97.
A. ORDINANCE 2695 ADOPTING THE RESTATED AND AMENDED PRE-ANNEXATION
DEVELOPMENT AGREEMENT WITH OTAY RANCH, L.P., A
CALIFORNIA LIMITED PARTNERSHIP, AND VILLAGE
DEVELOPMENT, A CALIFORNIA GENERAL PARTNERSHIP (first
readin!!)
B. ORDINANCE 2696 ADOPTING THE AMENDED AND RESTATED PRE-ANNEXATlON
DEVELOPMENT AGREEMENT WITH BALDWIN BUILDERS (first
readin!! )
15. PUBLIC HEARING ADOPTING AMENDED AND RESTATED OTAY RANCH PRE-
ANNEXATION AGREEMENTS - The purpose of this item is to present five
restated pre-annexation development agreements for properties on Otay Ranch.
These are all agreements that the Planning Commission and Council previously
adopted but which expired due to a provision of the prior agreements stating that
they all became null and void if the annexation did not occur by 1/1/97. The
annexation is still pending. Staff recommends Council place the ordinances on
first reading. (Deputy City Manager and Director of Planning)
"-"._..,,-~ ^ ..----.--.-.- "..--
Agenda -5- February 25, 1997
A. ORDINANCE 2700 ADOPTING THE RESTATED AND AMENDED PRE-ANNEXATlON
DEVELOPMENT AGREEMENT WITH SNMB, LTD. (first readin!!)
B. ORDINANCE 2701 ADOPTING THE RESTATED AND AMENDED PRE-ANNEXATION
DEVELOPMENT AGREEMENT WITH JEWELS OF CHARITY 1!:1m
readin!!)
C. ORDINANCE 2702 ADOPTING THE RESTATED AND AMENDED PRE-ANNEXATION
DEVELOPMENT AGREEMENT WITH STEPHEN AND MARY BIRCH
FOUNDATlON (first readiD!!)
D. ORDINANCE 2703 ADOPTING THE RESTATED AND AMENDED PRE-ANNEXATION
DEVELOPMENT AGREEMENT WITH GREGORY T. SMITH AND
GEORGIANA R. SMITH (first readiD!!)
E. ORDINANCE 2704 ADOPTING THE RESTATED AND AMENDED PRE-ANNEXATION
DEVELOPMENT AGREEMENT WITH UNITED ENTERPRISES (first
readin,,)
16. PUBLIC HEARING MODIFICATION OF CERTAIN CITY FEES FOR DEVELOPMENT OF
A WATER THEME PARK IN THE OTAY RlO BUSINESS PARK - On
7/23/96, Council approved an agreement with Hice Enterprises, Inc. for the
development of a water theme park on Phase II property of the Otay Rio
Business Park. Staff recommends approval of the resolution. (Director of
Community Development)
RESOLlTTION 18592 AlTTHORIZING THE MODIF1CATlON OF CERTAIN CITY PERMIT
AND DEVELOPMENT IMPACT FEES FOR THE WHITE WATER
CANYON WATER THEME PARK
BOARD AND COMMISSlON RECOMMENDATIONS
This is the time the City Council will consider items which have been forwarded to them for consideration by one
of the City's Boards, Commissions, and/or Committees.
None submitted.
ACTION ITEMS
The items listed in this section of the agenda are expected to elicit substantial discussions and deliberations by
the Council, staff, or members of the general public. The items will be considered individually by the Council
and staff recommendations may in certain cases be presented in the alternative. Those who wish to speak, please
fill out a "Request to Speak" form available in the lobby and submit it to the City Clerk prior to the meeting.
17. REPORT QUARTERLY FISCAL STATUS REPORT FOR THE SECOND
QUARTER OF F1SCAL YEAR 1996/97 - Section 504 (f) of the City Charter
requires quarterly and annual fiscal status reports be filed by the Director of
Finance through the City Manager. Staff recommends Council accept the
report. (Director of Finance)
_ _ ------..----"--.---.--.-- -...-
Agenda -6- February 25, 1997
ITEMS PULLED FROM THE CONSENT CALENDAR
This is the time the City Council will discuss items which have been removed from the Consent Calendar.
Agenda items pulled at the request of the public will be considered prior to those pulled by Councilmembers.
OTHER BUSINESS
18. CITY MANAGER'S REPORT IS)
a. Scheduling of meetings.
b. Department Head presentation: Finance; Fire; and Building and Housing.
c. Report on yard waste pick up program.
19. MAYOR'S REPORTIS)
20. COUNCIL COMMENTS
ADJOURNMENT
The meeting will adjourn to (a closed session and thence to) a special worksession/meeting on Saturday, March I,
1997 at 9:30 a.m. in the Council Conference Room, Administration Building, thence to the regular City Council
meeting on March 4, 1997 at 4:00 p.m. in the City Council Chambers.
~---~.-..._-----_._-- .--.-
;¡4e1~
February 20, 1997
TO: The Honorable Mayor and City Council ~ ~01SC~¡.\)
FROM: 10hn D. Goss, City Manager JG bõ ~
SUBJECT: City Council Meeting of February 25, 1997
This will transmit the agenda and related materials for the regular City Council meeting of
Tuesday, February 25, 1997. Comments regarding the Written Communications are as follows:
5a. This is a letter from the City Attorney stating that the City Council did not meet in
Closed Session on 2/18/97.
IT IS RECOMMENDED THAT THIS LEITER BE RECEIVED AND FILED.
5b. This is a petition from residents requesting that access to Otay Elementary School,
Montgomery Elementary School and the new Library on Fourth A venue be improved.
They live in the neighborhood just northerly of the Otay Elementary School. There is
a stairway from their neighborhood down to the school site at the northeasterly area of
the school site. The request is to build a sidewalk from that stairway across the school
property to Albany Ave. Since this involves another agency's property, IT IS
RECOMMENDED THAT THIS ITEM BE REFERRED TO STAFF TO WORK WITH
THE CHULA VISTA J?LEMENTARY SCHOOL DISTRICT AND THE AREA
RESIDENTS AND RETURN WITH A REPORT.
JDG:mab
-"-...,.-
~~f?-
:- .ä_ ~
~~~-..::
~"'".............
~~ --
CllY OF
CHULA VISTA
OFFICE OF THE CITY A TIORNEY
Date: February 19, 1997
To: The Honorable Mayor and City Council
From: John M. Kaheny, City Attorney
Re: Report Regarding Actions Taken in Closed Session
for the Meeting of 2/18/97
The City Attorney hereby reports that the City Council did not meet
in Closed Session on February 18, 1997.
JMK: 19k
C:\lt\clo88ess.no
5'4'1
276 FOURTH AVENUE· CHULA VISTA· CALIFORNIA 91910 . (619) 691-5037 . FAX (619) 585-5612
i".¿¡ PœI.c..n.me.Aec:)dedPa¡:ø
---- --_.---- ._~.._---_..,-----,..._.-----~._---------
"'II!" 'tttr-ceç; ~
RECEIVED
~. '. f:Ee VI FEB 12 An :31
~~. I/io
(', v T¥ F CHlU VIS1/.
PETITION (,,:/»,~lY 8tERK'S OFFICE
, We the undersigned petitioners respectfully request that the city of Chula Vist~~/
access to Otay Elementary School, Montgomery Elementary School and the new Library on
Fourth Avenue. To improve access we ask that a cement sidewalk be made that connects
Connoley Avenue (from the bottom oftne staircase adjoining the park) to Albany Avenue
through the area in which OUlY Elementary School is hOlLc;ed. This sidewalk will allow the
residents of Connoley Avenue, Connoley Circle, Tamarindo, Suzanne, Citrus and Hilltop
Avenue to be able to take their children to the public school system and to the public library
even though thc ground.~ are wet from previous days precipitation. Since Otay Elemenrtary
School (K-3) and Montgomery Elementary School (4..{i) are partnership schools many children
of parents in this area are forced due to other obligations to walk their children to both schools
each day. When inclement weather occurs these parents without transportation must walk their
children through rain soaked grass to get to the school ground.~. We believe that this may be the
cause of the disproportionate level of student absenteeism in these schools. When children arc
forced to walk through rainy high grass their feet and legs become wet leading to colds, flu and
other illnesses. The creation of this sidewalk would improve the walking conditions to the
school grounds and would lead to a more healthy student populus, improving both attendance
and academic endevours. We also respectfully request that the city place a fence or closure
around an open hole where water is built up. This is a dangereous condition and merits the
attention of the city planning commission. Our signatures on this document reflect our desire
and our committment for the bettennent of our community and the academic and social progress
of the children of this community. We collectively thank YOll for your involvmenl in our
communily
~ Date
I. ~ t- /1 -17
2. Z - - ?
3. #
4. / Î
II ~'-;'
5. 1
'f
6.
7. 2. 7
8 ~if~
9: J... _1/11
10. 9, 1/.17
.4 - N- ::¡..-
~;: J-I(·~7.
13. ..7. 1'. $-'7
14. 2- 1/ --rÞ
15.~"~-"I )
CQ c,~ M~5};-J ~ITTE~~ .f!I"'lf)"'!!'''' ii).1iI·1~ 'l"\ë"'~,~~ '" '1",,11 ~'"
, , - ,~~,.¡f¡. .I:'~-_'.'-, 'iiJ I, '" ,-~'_.' i \ or"", ~"
~(\.i.'.£.'~.~~n.6 . Cc..!,. ~~~. . ;, ~~~~.rt¿'~Ù~;¡~.i:J;? :;z¡,
,.. íJubf,c. LJY)rtS . ""7_~_,_
\q1
~ ,.\\~ ;, N
s~cO~o RtJI-O
, AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA
VISTA APPROVING AMENDMENTS TO THE RANCHO DEL REY SPA III
PLANNED COMMUNITY DISTRICT REGULATIONS
RECITALS
A. Project Site
WHEREAS, the area of land which is the subject matter of this ordinance is
diagrammatically represented in Exhibit A attached hereto and incorporated herein by this
reference, and commonly known as Rancho Del Rey SPA III Parcel R-6; and for the
purpose of general description herein consists of 18.2 acres located on the south side of
East "J" Street between Paseo Ranchero and Vaquero Ct. within the Rancho Del Rey
SPA III Planned Community ("Project Site"); and,
B. Project; Application for Discretionary Approval
WHEREAS, on September 30, 1996 Rancho Del Rey Investors, L.P. ("Owner") filed
applications with the Planning Department of the City of Chula Vista requesting approval
of amendments to the Rancho Del Rey SPA III Sectional Planning Area (SPA) Plan
Planned Community District Regulations densities and permitted number of dwelling
units statistics ("Project"); and,
C. Prior Discretionary Approvals
WHEREAS, the Project Site has been in part the subject matter of a Sectional Planning
Area (SPA) Plan previously approved by City Council Resolution No. 15993 ("Rancho
Del Rey SPA III ") and Planned Community (p.C.) District Regulations previously
approved by City Council Ordinance No. 2440 (Rancho Del Rey SPA III Planned
Community District Regulations) on March 8, 1996.
D. Planning Commission Record on Application
WHEREAS, the Planning Commission held an advertised public hearing on the Project
on December 11, 1996, and voted (2-2) not to forward a recommendation to the City
Council on a proposal to amend the Rancho Del Rey SPA III Sectional Planning Area
(SPA) Plan Planned Community District Regulations densities and number of permitted
dwelling units statistics in accordance with the findings and subject to the conditions in
the City Council Resolution.
The proceedings and all evidence introduced before the Planning Commission at their
public hearing on this Project held on December 11, 1997, and the minutes and
1 ¿-I
- --.. .-.-...--.---. '--"'- -----_.__.,_.__...".._------,._._~---
-oz '.:;:r' '"
"1'
Q.)« \f :3
~.
. '. .: ."
cn...J - .. . .=¡ ?
.-.',. " '"
° a.. . - . ,'.. .. S
.-
c:l. . ._ n
0;, - .
~Z\.··-···
a.. i:. ,;,
o ~ I
~ '. . EJ
~ . "
.... ....
01
I -
'"
\ ., ¡;;
F \\ I. \
\\
::> \\
) .-=
W
~
- to) 0 cø .
æ S!! ~ ('oj ,..;
r~
:Ie 0 ro- ,... II) ..., 0 cø .. 0 I ..
~!M:!~G)~~~:!~ ~
Iii"": "1 "1 "": '" ": Of "1 '" I ~
I .. II) 1ft cø cø .. fØ .. co CQ
i ...._
r g "1 ., Of "1' <q "1 '" "! "1\ "!
: ,...~~:!~!!~~~ 8
'"
tit tit fit i
I . . . t t t .
i SSS~~ê~~E
!i~ 0 0 0 0 ~ ..: ~ ~ ~
111 !j !j !j !j Ijj õI
~~~j EXHIBIT B
U-5
__._"u_..__,_._.___"_'_n'_.'..____n__
TABLE 3
Rancho del Rey SPA III
statistical summary
site utilization Plan
Land Use ~ Acres Averaae Density DU
Residential
SFD - Conventional 63.8 4.9 314
SFD - Cottage 106.3 5.2 550
SFA - Duplex/Townhouse 36.5 ~ «it
œq ~
Residential Subtotal 206.6 ~ ~
- !tm
Non-Residential
Junior High School 26.1
Public Park 10.8
Community Facility ~
Non-Residential Subtotal 38.8
Open Space 148.3
Circulation .lJ.....2. _ _
TOTAL 404.9 ~ ~
m ¡r2~
II.3 DENSITY TRANSFER
As noted earlier, the EI Rancho del Rey Specific Plan is intended
to allow for a degree of flexibility for SPA (sub-area) Plans to
respond to changing conditions, markets or design issues. One
aspect of this flexibility is the Density Transfer provision which
permits the transfer of residential units from one density category
to another.
In the preparation of the SPA III Plan, a conscious effort was made
to create a predominately single family detached community which
could be well integrated into the existing residential area. This
effort resulted in the selection of single family detached products
for most of those parcels designated by the Specific Plan as 4-6
du/ac and all of the parcels designated 6-8 dulac, instead of the
attached products which were included in the development character
descriptions.
In addition, the plan was designed for sensitivity to existing
adjacent residential uses. This required that single family
detached products be located along nearly all edges of the project
to be consistent with existing products. Also a larger lot size
~ ~&--þ
.~ EXHIBIT B-1
......__~__ _______.'o..._.._....._.____ ., ____.__._~~__.__ .._...._'"....___._ _._..._. ___.._.___...._,______.._______ ._
COUNCIL AGENDA STATEMENT
ITEM 7
MEETING DATE 2/25/97
ITEM TITLE: Ordinance J. " '9 Amending Section 1.34.050 of Chapter 1.34
(Claims Requirement and Procedures) and Sections 2.05.01 0 and 2.05.020
of Chapter 2.05 (Personnel and Civil Service Regulations) of the Chula
Vista Municipal Code to Change the Title of the "Director of Personnel" to
"Director of Human Resources" and to change the title of the "Assistant
Director of Personnel" to "Assistant Director of Human Resources".
SUBMITTED BY, DIRECTOR OF HUMAN RESiSltísCÝ
REVIEWED BY, CITY MANAGEFIjB ~ ~ (415" Yoto' Yo,_ No-.J
During one of the budget workshops for FY 96-9 ouncil directed the change in the title of the
Personnel Department to "Human Resources Department". This necessitates a change in titles for the
Director and Assistant Director.
RECOMMENDATION: Approve the Ordinance.
BOARD/COMMISSION RECOMMENDATION: N/A
DISCUSSION:
This ordinance would amend the Municipal Code to reflect the new name of the Human Resources
Department. As was discussed in the Council Budget Workshop, the City Council directed the change
to more accurately reflect the mission and work of that Department.
FISCAL IMPACT:
There will no fiscal impact as any changes on business cards and letter head will be accomplished
within current budgeted amounts for printing.
?-/
- ~-- . --_...._...._---_._~- - ----
ORDINANCE NO. ,t¿, '1
AN ORDINANCE AMENDING SECTION 1.34.050 (DELEGATION) OF CHAPTER
1.34 (CLAIMS REQUIREMENT AND PROCEDURES) AND SECTIONS 2.05.010
(UNCLASSIFI ED POSITIONS ESTABLISHED) AND 2.05.020 (CRIMINAL
CONDUCT - INELIGIBILITY FOR EMPLOYMENT) OF CHAPTER 2.05
(PERSONNEL AND CIVIL SERVICE REGULATIONS) OF THE CHULA VISTA
MUNICIPAL CODE TO CHANGE THE TITLE OF THE 'DIRECTOR OF
PERSONNEL' TO 'DIRECTOR OF HUMAN RESOURCES' AND TO CHANGE THE
TITLE OF THE 'ASSISTANT DIRECTOR OF PERSONNEL' TO 'ASSISTANT
DIRECTOR OF HUMAN RESOURCES'.
WHEREAS, during the 1996-97 Fiscal Year budget workshops, the City Council of the City of Chula Vista
directed the Personnel Department to change it's title to 'Human Resources'; and
WHEREAS, with the change in name of the department, title changes for the Director and Assistant
Director of the Human Resources Department are required.
NOW, THEREFORE, the City Council of the City of Chula Vista does hereby ordain as follows:
SECTION I: Section 1.34.050 (Delegation) of Chapter 1.34 (Claims requirement and procedures) is
hereby modified to read as follows:
1.34.050 Dalagatlon.
The functions of the city council required to be performed in considering and rejecting, approving,
compromising or settling claims provided for by this chapter are hereby delegated to and shall be
performed by the director of plIFliIlRRlI1 human resources. The director of finance may cause a warrant
to be issued upon the city treasury in the amount for which any such claim has been allowed,
compromised or settled, by the director of PIIFligRRlI1 human resources, provided such amount does not
exceed $10,000.
SECTION II: Section 2.05.010 (Unclassified positions established) of Chapter 2.05 (Personnel and
Civil Service Regulations) is hereby modified to read as follows:
2.05.010 Uncluslflad positions established.
In addition to those unclassified positions specifically delineated in Section 500 of the charter of the city,
there are established the unclassified positions entitled deputy city manager, assistant to the city manager,
deputy city clerk, assistant fire chief, assistant director of planning, assistant director of finance, assistant
director of PIIFligRRlI1 human resources, assistant director of building and housing, city engineer, director
of management services and information services, redevelopment coordinator, housing coordinator, transit
coordinator, assistant director of community development, deputy director of public works/city engineer,
public information coordinator, traffic engineer, deputy director of public works/operations, budget
manager, revenue manager, assistant director of management services and information services, assistant
library director, police captain, special planning projects manager, assistant to the mayor and council,
border environmental business cluster manager and administrative assistant/office manager and Califomia
border alliance group executive director, Califomia border alliance group analyst and Califomia border
alliance group secretary.
SECTION III: Section 2.05.020 (Criminal conduct - Ineligibility for employment) of Chapter 2.05
(Personnel and Civil Service Regulations) is hereby modified to read as followed:
?'J...
- ------,_._-_._,...__..._-_._.__._~-~_._.
2.05.020 Criminal conduct-Ineligibility for employment.
A. Except as otherwise provided in this chapter, conviction (including pleas of guilty and nolo
contendere) of a felony or a misdemeanor shall be prima facie disqualification of an applicant for
employment by the city; provided, however, that the director of P""'''RR"I human resources may
disregard such conviction if It is found and determined that mitigating circumstances exist. In
making such determination, the following factors shall be considered:
1. The classification, Including Its sensitivity, to which the person is applying or being
certified and whether the classification is unrelated to the conviction:
2. The nature and seriousness of the offense;
3. The circumstances surrounding the conviction;
4. The length of time elapsed since the conviction;
5. The age of the person at the time of the conviction;
6. The presence or absenca of rehabilitation or efforts at rehabilitation;
7. Contributing social or environmental conditions.
B. The director of P""'''RR"I human resources shall give notice of disqualification to an applicant
disqualified under this provision. Such notice shall be in writing and delivered personally or
mailed to the applicant at the address shown on the application for employment.
C. An applicant who is disqualified for employment under this provision may appeal such
determination of disqualification. Such appeal shall be in writing and filed with the city manager
within ten days of the date of the notice of disqualification. The city manager shall hear and
determine the appeal within ninety days after It is filed. The determination of the city manager on
the appeal shall be final.
D. Notwithstanding the provisions in this section, an applicant for a peace officer position shall be
disqualified, without right of appeal, from employment if the applicant has been convicted of a
felony.
E. Pursuant to Section 11105 of the Penal Code of the state, the following officers of the city are
authorized to have access to and to utilize state summary criminal history Information when It Is
needed to assist them in fulfilling employment duties set forth in this section: city manager,
assistant city manager, director of pII...IIRRIII human resources, chief of police, city attomey.
F. Pursuant to Section 11105 of the Penal Code of the State of Callfomia, the city council of Chula
Vista hereby authorizes the city manager to have access and to utilize state summary criminal
history information as a requirement for driving In the local public transportation service of Chula
Vista Transit and HandYtrans.
SECTION IV: This ordinance shall take effect and be in full force and effect on the thirtieth day from
and after its adoption.
Presented by Approved as to form by
Candy Emerson John M. Kaheny
Director of Human Resources City Attorney
'-3
.. ·'._m_____·__··__"__·~_
COUNCIL AGENDA STATEMENT
ITEM f'
J 8'.58'1 MEETING DATE 2/25/97
ITEM TITLE: Resolution - Supporting Application for
Grant Monies Totaling $100,000 from the
Department of California Alcoholic Beverage
Control (ABC) to Address Alcohol-related
Quality of Life Issues and Improve ABC
Enforcement
SUBMITTED BY: Chief of pOliee~ ~
REVIEWED BY: City Manager~ ~ ~ OTE: YES_ NOXX)
These funds are available from the Department of Alcoholic Beverage
Control to improve police response to disorderly ABC licenses. The
funds are available for a period of one year and will be used to
cover the expense of a full-time assigned patrol officer, overtime,
training, travel and related equipment. The grant stipulates
Council adopt a resolution in support of the application. The
resolution is to accompany the grant application and be submitted
to ABC no later than March 7, 1997. Adoption of the resolution
does not commit the Council to acceptance of the grant. Upon
award, staff will return to Council with a recommendation for
approval.
RECOMMENDATION: That staff approve Resolution which supports
submittal of a grant application for grant monies totaling $100,000
from the Department of California Alcoholic Beverage Control (ABC)
to address alcohol-related quality of life issues and improve ABC
Enforcement.
BOARDS/COMMISSION RECOMMENDATION: Not Applicable
DISCUSSION:
The California Department of Alcoholic and Beverage Control (ABC)
recognizes that some communities may be impacted, or have high
concentrations of licensed alcohol retailers with associated
alcohol related crime. In order to improve the compliance of
retailers and the enforcement performance of police departments,
ABC is making available 10 grants statewide for municipal police
departments for FY 1997-98. These grants are to be used to
allocate police patrol resources for enforcement and to organize
and assist licensees to improve regulation compliance.
The Chula Vista Police Department has been invited by ABC to
compete for one of these grants. Recognizing that both the
Broadway and Main Street corridors are highly impacted by ABC
licensees, including several problematic ones, the Police
Department would welcome the additional resources. The Department
1r~/
.,-.-.-.-,---..-..-"
PAGE 2, ITEM
MEETING DATE 2/25/97
will propose to ABC, in addition to an enforcement program, a
community project to review alcohol-related quality of life issues
and organize and educate alcohol retailers. Upon grant award, the
Police Department will return to Council with a recommendation for
Council approval.
This is a no-cost opportunity for the City to improve the
performance of both the police department and alcohol retail
outlets. If funded, the project permits the department and
community to take a constructive look at alcohol use and abuse and
make tangible recommendations.
FISCAL IMPACT:
Approval of the Resolution in support of the application has no net
impact on the General Fund.
r,.2..
-_..__.._.~._-".._..-.
RESOLUTION NO. IYfrl
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA SUPPORTING APPLICATION FOR GRANT
MONIES TOTALING $100,000 FROM THE DEPARTMENT
OF CALIFORNIA ALCOHOLIC BEVERAGE CONTROL (ABC)
TO ADDRESS ALCOHOL-RELATED QUALITY OF LIFE
ISSUES AND IMPROVE ABC ENFORCEMENT
WHEREAS, funds are available from the Department of
Alcoholic Beverage Control to improve police response to disorderly
ABC licenses; and
WHEREAS, the funds are available for a period of one year
and will be used to cover the expense of a full-time assigned
patrol officer, overtime, training, travel and related equipment;
and
WHEREAS, the grant stipulates Council adopt a resolution
in support of the application; and
WHEREAS, the resolution must accompany the grant
application and be submitted to ABC no later than March 7, 1997;
and
WHEREAS, adoption of the resolution does not commit the
Council to acceptance of the grant; and
WHEREAS, upon award, staff will return to Council with a
recommendation for approval.
NOW, THEREFORE, BE IT RESOLVED the City Council of the
City of Chula vista does hereby support the application for grant
monies totaling $100,000 from the Department of California
Alcoholic Beverage Control to address alcohol-related Quality of
Life issues and improve ABC enforcement.
Presented by Approved as to form by
/k-Yo.
Richard P. Emerson, Chief of
Police
c: \rs\grant.abc
r~.3
._.._~.". --- -...-,..,,-,--- _".._._~____~u______._______
COUNCIL AGENDA STATEMENT
Item: 1
Meeting Date: 02/25/97
ITEM TITLE: A Resolution Jtf,~ Amending the 1996-97 Fiscal Budget to fund the
landscape maintenance of the Open Space area in Rancho Del Rey SPA III
(RDR) in the Open Space Maintenance District No. 20; and appropriating
$32,060 to 570-5700 (5251-5362)
P Resolution J ~"..3 Accepting bids and awarding landscape maintenance
contract for Rancho Del Rey, SPA III Open Space in District No. 20
SUBMITTED BY: D_o, of ""'", ""'''"ßS}j¡ _ SP"/if f ;¡v
REVIEWED BY: City Manage~Q ~ ---7 (4/5ths Vote: Yes X No->
McMillin Community, Inc. has offered to reimburse the City for maintenance costs when the City
assumes the responsibility of maintenance for the Open Space land in RDR SPA III for March 1, 1997
through June 30, 1997. Following this period of time, the property owners will be included in the
assessment process and all costs will be borne by the District. Requests for bids to provide landscape
maintenance for Open Space District 20 (Rancho Del Rey SPA III) were let on December 11, 1996 and
received on January 7, 1997. The plants, trees, grass and irrigation systems are in good condition and
the Department is prepared to assume the landscape maintenance responsibility of the District.
STAFF RECOMMENDATION: That Council:
1. Adopt the Resolution to amend the FY 96/97 fiscal budget in Open Space Maintenance District
No. 20; and
2. Appropriate $32,060 to Open Space Maintenance District No. 20 ; and
3. Accept the bid; and
4. Adopt the Resolution to award the contract to the low bidder, New Way Professional Landscape
Services.
BOARDS/COMMISSIONS RECOMMENDATION: Not Applicable.
DISCUSSION: In preparing the landscape maintenance budget of Open Space Maintenance District
(OSMD) No. 20 (Rancho del Rey), funds were not included for SPA III in the FY 1996-97 budget
because the Department anticipated accepting the RDR SPA III open space land in July, 1997; for which
funds would be appropriated in FY 97/98.
[M:\home\parksrec\A113 - SPAIllAC.A13 - Febnwry 19, 1997) 1
9"/
----,..-..-- - --_._"-----"~...-
Item:
Meeting Date 02/25/97
There was a misunderstanding between the McMillin Company and staff about the inspection and
maintenance period. In February of last year, the McMillin Company believed the initial landscape
inspection conducted by staff was a final inspection and the commencement of the one year maintenance
period. They thought that in February of this year their one year maintenance period would end. The
one year maintenance period is a policy adopted by City Council Resolution No. 17735 as part of the
City's Landscape Manual. 1t serves as a safeguard to the City, ensuring we receive landscaping and
irrigation components that are in good condition or operate at the optimum level.
McMillin also believed that the City had established a budget for this District. Since staff was of the
belief that the open space landscaping was not in its maintenance period, budgeting for the district in FY
96/97 did not occur.
Recognizing there was a misunderstanding between both parties, representatives from McMillin and staff
met on numerous occasions to work out an agreement calling for an early acceptance of the their open
space area. Before you tonight, are recommendations to amend this fiscal year's budget and accept the
landscaping in portions of sectional planning area III of Rancho Del Rey. These recommendations are
contingent upon McMillin providing funds to absorb all costs for the contract, plant replacement,
irrigation and administrative overhead on or before February 1, 1997. McMillin has agreed to pay for
these costs.
Staff attributes the misunderstanding between both parties to the language in the City's Landscape Manual
addressing the one year maintenance period. This section is too general and more specificity is necessary
to prevent any future misunderstandings. Staff is in the final stages of sending to the Council a proposed
amendment to the manual. In particular, the inspection and maintenance period process will specify a
step-by-step procedure for inspections and identifying the point of authority for final landscape
acceptance. The Parks and Recreation Commission has reviewed the draft Landscape Manual and advised
the Council to approve the amendments. The draft amendment to the manual is being circulated to the
landscape design industry and the affected developers in the City for comments. We foresee the revised
manual to be considered by Council in late February or early March of this year.
Early acceptance of the landscape area will not be a problem. Whether staff accepts the landscaping now
or the beginning of the new fiscal year; staff has a high level of confidence that the landscape condition
is ready for City maintenance and oversight.
Funding Source
To fund the maintenance costs until the property owners in RDR SPA III, McMillin will reimburse the
City for the maintenance costs from March 1, 1997 through June 30, 1997 (McMillin's Commitment
letter is Attachment "A"). The maintenance costs for the four month period are $32,060, which includes
a four month prorated maintenance contract cost of $13,770, supplies and service of $13,754, plus City
staff costs of $4,536. A budget for the $32,060 is Attachment "B."
[M:\home\parksi'ec\A113 . SPAllIAC.A13 - February 19, 1997] 2
9-.1-
----"-.----...-- .-.
Item:
Meeting Date 02/25/97
Bid Process
Following the formal publication of the Notice to Bidders, 37 landscape maintenance companies were
notified, including several local landscape maintenance contractors. A total of seven companies attended
the pre-bid conference and tour on December II, 1996. Five sealed bids for Landscape Maintenance of
RDR SPA III Open Space Phases 2 and 3 were received by the City's Purchasing Agent on January 7,
1997.
The level of interest and participation was reflected in very close competitive bidding. The following
chart is a summary of the bids received:
New Way Professional Landscape Services $39,777.00
Blue Skies Landscape $41,948.00
R C's Landscape $45,000.00
Alvezia Landscape $61,187.04
Acacia Landscape $87,218.90
The low bid was submitted by New Way Professional Landscape Services. The contractor is currently
performing satisfactory landscape maintenance service in Open Space Districts 3, 4, 8 and 20 SPA II.
It is staff's opinion the bid is fair and reasonable, and should be accepted. The terms of this agreement
are February 1, 1997 through June 30, 1997, with the City having the option to renew the contract for
three additional one year periods from July I, 1997 through June 30, 1998; July 1, 1998 through June
30, 1999; and from July I, 1999 through June 30, 2000 (Attachment "C"). Options are contingent on
the City's satisfaction with the level of service, and the new contract price is based on the annual CPr.
The yearly bid submitted for this area will be prorated at 1112 the yearly bid (minus 10% retention) for
monthly payment for the remainder of the fiscal year (March through June). McMillin has paid to the
City the amount of $32,060 for a budget for this maintenance area. The budget is Attachment "B." The
portion of the budget that McMillin pays on the maintenance contract being considered for approval in
this report is $13,770. This is for the period March 1, 1997 through June 30, 1997. Although the
contract begins February 1, 1997, the maintenance will begin March 1, 1997, and payments to the
contractor will begin March I, 1997. The remainder of the landscape contract is the responsibility of
the City commencing July I, 1997.
The 10% retention will be remitted following the last month of the contract year (June) if service is
satisfactory. The 10% retention is'a new provision included into the City's contracts, and is intended to
provide greater control to ensure the contractor performs in a timely and conscientious manner. It is
recommended to award the contract for Open Space District No. 20 RDR SPA III Phases 2 and 3 to New
Way Professional Landscape Services.
fM:\home\parksrec\A113 - SPAmAC.A13 - February 19, 1997] 3
9-3
.....--..".-.".
Item:
Meeting Date 02/25/97
Proposition 218
The following two zones are applicable to the properties located within SPA III: Zone 3 - East "H" Street
landscaping and irrigation; and Zone 7 - Rancho Del Rey SPA III. Since the original Engineer's Report
prepared for FY 90/91 by Willdan Associates for Open Space District 20 included Zones 3 and 7, no
revision or modification is required to the Engineer's Report which would affect Proposition 218. SPA
III, when ultimately built out, will have 1,232 Equivalent Dwelling Units (EDU's) which are already
included within the District's boundaries. Since Zone 3 applies to all properties within District 20, these
costs will not increase the portion of the assessment to all properties within the District. Zone 7 costs
are determined by the same methodology as mentioned in the previously approved Engineer's Report,
which is to apportion by any fonnula or method which fairly distributes the net amount among all
assessable lots or parcels in proportion to the estimated benefits to be received by each such lot or parcel
from the improvements. Over the last two fiscal years of FY 95/96 and FY 96/97, the
assessmentslcollectible for Zone 7 have been $130.501$5.59 and $133.501$10.55, respectively. The
assessment for this zone is already established, the boundaries will not change, nor are costs anticipated
to increase over the current assessment amount.
FISCAL IMPACT: McMillin will reimburse the landscape maintenance costs of $32,060 to OSMD No.
20 (570-5700 [5251-5362]) for the City's maintenance costs from March 1, 1997 through June 30, 1997.
No City funds need to be appropriated for FY 96/97. Future costs for maintaining this district will be
borne by the respective homeowners in RDR SPA III. Approval of the Resolution will increase District
No. 20's budget by $32,060 and the funds from McMillin will be deposited into Revenue Account No.
570-3851 to offset the expenditure.
Attaclunent - nAil _ Letter of Commitment by McMillin CO. NOT SCANNED
"Bit _ Budget for $32,060 in District #20 NOT SCANNED
"CII - Contract Agreement
[M:\home\parksrec\A113 - SPAIllAC.A13 . February 19, 1997] 4
9.,,/
..-..
JAW 14 '97 17:10 10-5855612 fROH-HCHILLIN COHPAHIES 1-456 P.02/02 f-775
.lfJ./ Hoowr AvQnuQ ATTACHMENT A
National City, CA 9195Q
(619) 477-4117
.\" McMillin Canpanie;
Jamwy 14. 1997
VIA FAX/U.8. MAIL
Mr. Ieny Foncemlda
Deputy Director ofParlcs
Department ofParlcs 8Dd R.ecieation
CTIY OF CJIULA VISTA
276 Fourth Aveœe
CbuIa VISta, CA 91910
Rc: Bancho dd Bey SPA ill - OpCD Space
Dear Imy:
Thank you for your IJUWaIy 8, 1997,lettcr IIIIIIII1IJIriz the bids and prepañng a cost esth:""'t~ for
the City ofCbuIa VI3!A to maintain a portion ofRenobo de! Rcy SPA m open ~ for the period
ofFeblUJlI}' 1, 1997 through June 30, 1997. 1\$ you know, we have been working with your field
inspec!.ol1 fur the past twelve months to assure tbat the open space areas are ready for City
acceptance onFebruaty I, 1997. We will be coordinating that aspect through you.
Fun.ber by ibis letter, Rancho dd Rey Investors hereby promIses and commIts to pay the Chy the
amount of$38,09O.00 onorbeforeFebtuary 1,1997. ,
If you need further infbrmation pletie contact me at 477-4170, ext. 212.
Sinœrdy yw¡J,
Rancho Del Rey Investors, LP.
,
Cnúg
VICe
McMiIJin Projects Services
C1F1hmo
Enclosures
h;\vw\data\rdr\he1dl\lette~~\cra1q\jtonoerr
9*' 5'
_ _ _~~__.m._._..._'~"'___'____··'_'_··_______·___
RESOLUTION NO. 1B'S'ff,-
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA AMENDING THE 1996-97 FISCAL BUDGET
TO FUND THE LANDSCAPE MAINTENANCE OF THE OPEN
SPACE AREA IN RANCHO DEL REY SPA III (RDR) IN
THE OPEN SPACE MAINTENANCE DISTRICT NO. 20;
AND APPROPRIATING $32,060 TO 570-5700 (5251-
5362)
WHEREAS, in preparing the landscape maintenance budget of
Open Space Maintenance District No. 20 (Rancho del Rey) , funds were
not included for SPA III in the FY 1996-97 budget because Parks and
Recreation anticipated accepting the RDR SPA III open space land in
July, 1997; for which funds would be provided in FY 1997/98; and
WHEREAS, to fund the maintenance costs until the property
owners in RDR SPA III are included in the Landscape Act assessment
process, McMillin Community Inc. will reimburse the city for the
maintenance costs from March 1, 1997 through June 30, 1997; and
WHEREAS, the maintenance costs for the four month period
are $32,060, which includes a four month prorated cost of the
annual contract bid, supplies and service, plus City staff costs;
and
WHEREAS, the original Engineer's Report for Open Space
District 20 includes Zones 3 and 7 and no revision or modification
is required to be made by the Engineer's Report; and
WHEREAS, the assessments for Zones 3 and 7 will not
change nor are costs anticipated to increase over the current
assessment amount.
NOW, THEREFORE, BE IT RESOLVED the city Council of the
City of Chula vista does hereby amend the 1996-97 fiscal budget to
fund the landscape maintenance of the Open Space area in Rancho Del
Rey SPA III (RDR) in the Open Space Maintenance District No. 20.
BE IT FURTHER RESOLVED that the sum of $32,060 is hereby
appropriated to Open Space Maintenance District No. 20 570-5700
(5251-5362) .
Presented by Approved as to form by
lÀ--- ~ ~
Jess Valenzuela, Director of John M. Kaheny, city Attorney
Parks and Recreation
9/1-/
._--"'-'~-- ..--
ATTACHMENT "B"
OPEN SPACE DISTRICT NO. 20
BUDGET FOR $32,060
Line Item Description Amonnt
5251 Electricity $ 414
5254 Water $11,540
5262 Service to Maintain Grounds $ 90
5291 City Staff Services $ 4,536
5298 Landscape Maintenance
Contract $13,770
5351 Landscape Supplies $ 738
5362 Materials to Maintain Grounds $ 972
Total $32,060
[M:\home\parksrec\A113 . SPAIDAC.A13 - February 19, 1997]
9/J",^
...-....-..--... -_.-
RESOLUTION NO. JfB'rr..3
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA ACCEPTING BIDS AND AWARDING
LANDSCAPE MAINTENANCE CONTRACT FOR RANCHO DEL
REY, SPA III OPEN SPACE IN DISTRICT NO. 20
WHEREAS, the following five bids were received on January
7, 1997 for Landscape Maintenance of Rancho Del Rey SPA III Open
Space Phases 2 and 3;
CONTRACTOR AMOUNT
New Way Professional Landscape Services $39,777.00
Blue Skies Landscape $41,948.00
R C's Landscape $45,000.00
Alvezia Landscape $61,187.04
Acacia Landscape $87,218.90
WHEREAS, the low bid was submitted by New Way Profes-
sional Landscape Services which contractor is currently performing
satisfactory landscape maintenance service in Open Space Districts
3, 4, 8 and 20 SPA II; and
WHEREAS, it is staff's opinion the bid is fair and
reasonable and should be accepted.
NOW, THEREFORE, BE IT RESOLVED the city Council of the
City of Chula vista does hereby accept the bids for Landscape
Maintenance of Rancho Del Rey SPA III Open Space Phases 2 and 3 and
award the contract to New Way Professional Landscape Services for
the pro-rated yearly amount of $13,770.00 for the period March 1,
1997 through June 30, 1997.
BE IT FURTHER RESOLVED that the Mayor of the City of
Chula vista is hereby authorized and directed to execute the
contract on behalf of the city of Chula vista.
Presented by Approved as to form by
(lv--- ~~ ~
Jess Valenzuela, Director of John M. Kaheny, City Attorney
Parks and Recreation
C:\rs\rdrspa.bid
90'/
- _._~._~~.._.~_.,--- ----
ATTACHMENT C-1
AGREEMENT BE1WEEN THE
CITY OF CHULA VISTA AND
FOR
LANDSCAPE MAINTENANCE
THIS AGREEMENT is made and entered into this day of , 19_, by and
between the CITY OF CHULA VISTA, a municipal corporation, hereinafter designated as
"CITY", and [insert CONTRACTOR'S legal name] hereinafter designated as "CONTRACTOR."
RECITALS
WHEREAS, CITY desired and advertised for bids to obtain landscape maintenance services
from an independent contractor for Landscape Maintenance of Open Space and Maintenance
Districts.
\
WHEREAS, CONTRACTOR has submitted the lowest responsible bid to provide landscape
maintenance services for the CITY in accordance with the terms set forth in this Agreement.
WHEREAS, CITY desires to contract with CONTRACTOR as an independent contractor and
CONTRACTOR desires to provide services to CITY "as an independent contractor.
WHEREAS, CONTRACTOR has demonstrated its competence and qualifications necessary
for the satisfactory performance of the services designated herein by virtue of its experience,
training, education, and expertise.
NOW THEREFORE, THE PARTIES MUTUALLY AGREE AS FOLLOWS:
I. CONTRACTOR'S DUTIES
A. General Duties
Complete landscape maintenance of all contract areas to include, when applicable: Irrigation,
pruning, shaping and training of trees, shrubs and ground cover plants; fertilization, weed
control of all plant diseases and pests; mowing; maintenance and repairs of fences; pathways
and trails; irrigation and drainage systems of open space areas and all other maintenance
required to maintain the areas of concern ina safe, attractive and usable condition.
24
,p..~
-.... -..,--.,--...-.....----
ATTACHMENT C-2
B. Coopetation.
Work closely with the Director of Parks and Recreation in performing work in accordance with
this Agreement in order to receive clarification as to the result which the CITY expects to be
accomplished by CONTRACTOR. The Director of Parks and Recreation, under the authority
of the City Manager, shall be the CITY's authorized representative in the interpretation and
enforcement of all work performed in connection with this Agreement. The Director of Parks
and Recreation may delegate authority in connection with this Agreement to the Park
Superintendent. For the purposes of directing the CONTRACTOR's performance in accordance
with the Agreement, authority is delegated to, Open Space Coordinator.
C. Areas to be Maintained.
The attached plat (Exhibit "B" ) shows areas to be maintained in Open Space & Maintenance
Districts.
D. Scope of Work and Schedule.
CONTRACTOR shall perform the duties and deliver the work product set forth in the scope of
work and schedule, attached hereto as Exhibit "A", not inconsistent with the General Duties,
according and within the time frames therein established (time being of the essence of this
agreement).
II. DUTIES OF THE CITY
,
A. Inspection By City:
The City shall provide continuing inspection of the work area to ensure adequacy of
maintenance and that methods of performing the work are in compliance with the contract.
Discrepancies and deficiencies in the work shall be corrected by the CONTRACTOR
immediately.
Maintenance services performed by the CONTRACTOR shall be performed to the satisfaction
of City, Director of Parks and Recreation, or his designated representative.
B. Method of Payment Monthly Reports:
The CONTRACTOR will be paid monthly, in arrears, for work performed satisfactorily under this
contract. By the fifth day of each month, the CONTRACTOR shall submit a detailed report of
maintenance performed and materials used, areas andlor units affected and staff hours
expended in the prior month. The monthly report shall also include a statement of all
applications of herbicides, rodenticides, and pesticides detailing the chemical used, quantity,
rate of application, area in which used and the purpose of the application. This report shall be
accompanied by a billing in accordance with the contract price for the work performed set forth
in Exhibit "A" minus ten (10%) percent and shall become the basis for payment. Monthly
payments will be one twelfth (1/12) of the yearly contract amount minus ten (10%) percent.
90- :I 25
------ ..._,-,._"..-~ --..
ATTACHMENT C-3
Upon successful completion of the years work (twelve full months), the withheld ten (10%)
percent will be released.
. C. Payments Withheld:
The City may withhold or permanently retain payments to such extent as may be necessary to
protect the City from loss due to:
1. Work required in the specifications which is defective, incomplete or not
performed.
2. Claims filed or reasonable evidence indicating probable filing of claims.
3. Failure of the CONTRACTOR to make proper payments to subcontractors for
materials or labor.
4. A reasonable doubt that the contract can be completed for the unpaid balance.
O. Failure to Perform Satisfactorily:
It is agreed and understood that in the short run if the CONTRACTOR fails to perform the work
as specified herein, the Park Superintendent: (1) will pay only for the amount of service
received as determined by the Park Superintendent with an appropriate downward adjustment
in contract price, or (2) may have such required work done by City Forces or otherwise, and
charge the cost thereof to the Contractor. Those discrepancies and deficiencies in the work
that remain uncorrected may be the necessary justification for the billing adjustment in the
month following the occurrence. Billing adjustments for this unsatisfactory service shajl be
permanent retention of 100% of the estimated monthly cost for work that is incomplete or
deficient as stated herein.
III. EMERGENCY CALLS:
The CONTRACTOR shall have the capability to receive and to respond immediately to calls
of an emergency nature during normal working hours and during hours outside of normal
working hours. Calls of an emergency nature received by the Park Superintendent shall be
referred to the CONTRACTOR for immediate disposition.
IV PERSONNEL:
The CONTRACTOR shall furnish sufficient supervisory and working personnel capable of
promptly accomplishing on schedule and to the satisfaction of the Director, all work required
under this' contract during the regular and prescribed hours.
All such personnel shall be physically able to do their assigned work. The CONTRACTOR and
his employees shall conduct themselves in a proper and efficient manner at all times and shall
cause the least possible annoyance to the public. They shall be fully clothed in suitable uniform
attire with a company identifying marker (personnel fully clothed and wearing a safety vest with
the company identification on the back will be considered suitable uniform attire). The Director
90·'1 26
-- ......-. ..--.--""".---.. -- ---..-.
ATTACHMENT C-4
shall require the CONTRACTOR to remove from the wor.ksite any employee(s) deemed
careless, incompetent, or otherwise objectionable, whose continued employment on the job is
considered to be contrary to the best interest of the City of Chula Vista.
The CONTRACTOR shall have competent supervisors, who may be working supervisors, on
the job at all times work is being performed, who are capable of discussing in English with the
Director matters pertaining to this contract. Supervisors must have a minimum of three years
of actual field experience and must be able to demonstrate to the satisfaction of the Director
that they possess adequate technical background. Adequate and competent supervision shall
be provided for all work done by the CONTRACTOR's employees to ensure accomplishment
of high quality work which wilJ be acceptable to the Direètor. In addition, a non-working
supervisor shalJ inspect all areas under the contract a minimum of one per month with the
Director or his designated representative.
V. TERM:
A. CONTRACTOR shall perform all tne services herein required from FEBRUARY 1, 1997,
through JUNE 30, 1997, and shall abide by and comply with any interim time and milestone
dates set forth in Exhibit "A".
B. The City may elect to exercise options to renew the contract for three (3) additional one (1)
year periods: (1) July 1, 1997 through June 30, 1998
(2) July 1, 1998 through June 30, 1999
(3) July 1, 1999 through June 30, 2000
C. Price Adjustment Clause: Price will be firm for the first contract year. However, if it is
determined that the San Diego area Consumer Price Index for Urban Wages Earners_ and
Clerical Workers has changed for the option years, the Contractor, after: (1) giving notice of
such change; (2) furnishing the City with copies of the change (from January I of the previous
year to January 1 of the current contract year); and (3) allowing the City to cancel contract if
it elects to do so, may. adjust the price quoted to the city by an amount not to exceed the
percentage variant in the Consumer Price Index during the previous 12 months. The above
steps must be taken before April I of the contract year.
VI. INDEPENDENT CONTRACTOR
CONTRACTOR's relationship to the CITY shall be that of an independent contractor.
CONTRACTOR shall have no authority, express or implied, to act on behalf of the CITY as an
agent, or to bind the CITY to any obligation whatsoever, unless specifically authorized in writing
by the Director of Parks and Recreation. CONTRACTOR shall be solely responsible for the
performance of any of its employees, agents or subcontractors under this Agreement.
CONTRACTOR shall report to the CITY any and all employees, agents, and consultants
performing work, in connection with this project, and all shall be subject to the approval of the
CITY.
VII. CITY BUSINESS LICENSE
98'5 27
" _."._......~-_.."_._..__.
ATTACHMENT C-5
Prior to the commencement of any work under this Agreement, the CONTRACTOR shall obtain
and present a copy to the Director of Parks and Recreation of either a City of Chula Vista
Business License, or a written verification from the City Business License Division that a City
Business License is not required for this Agreement.
VIII. WORKERS' COMPENSATION
Pursuant to Labor Code Section 1861, the CONTRACTOR hereby certifies that the
CONTRACTOR is aware of the provisions of Section 3700 of the Labor Code which require
every employer to be insured· against liability for Workers' Compensation or to undertake
self-insurance in accordance with the provisions of that Code, and the CONTRACTOR will
comply with such provisions, and provide certification of such compliance as a part of these
Award Documents. The certification shall be in accordance with subsection IV parts C and D
of this Agreement.
IX. LIABILITY INSURANCE
A. CONTRACTOR shall, throughout the duration of this Agreement maintain comprehensive
general liability and property damage insurance, or commercial general liability insurance,
covering all operations of CONTRACTOR, its agents and employees, performed in connection
with this Agreement including but not limited to premises and automobile.
B. CONTRACTOR shall maintain the following minimum limits:
General Liability
,
Combined Single Limit Per Occurrence $1,000,000 .
General Aggregate $1,500,000
Automobile Liability
Combined Single Limit Per Occurrence $1,000,000
C. All insurance companies affording coverage to the CONTRACTOR shall be required to
add the City of Chula Vista as "additional insured" under the insurance policy for all work
performed in accordance with this Agreement. All insurance companies policies shall be issued
by a carrier that has Best's rating of "B+; Class VII", or better, or shall meet with the approval
of City's risk manager. All insurance companies affording coverage shall provide thirty (30) day
written notice to the City of Chula Vista should the policy be canceled before the expiration
date. For the purposes of this notice requirement, any material change in the policy prior to
the expiration shall be considered a cancellation.
D. CONTRACTOR shall provide evidence of compliance with the insurance requirements listed
above by providing a certificate of insurance, and policy enforcement which name the City of
Chula Vista as additional insured and policy endorsement which names the City of Chula Vista
as additional insured concurrently with the submittal of this Agreement. CONTRACTOR shall
provide a substitute certificate of insurance no later than thirty (30) days prior to the policy
expiration date. Failure by the CONTRACTOR to provide such a substitution and extend the
policy expiration date shall be considered a default by CONTRACTOR and may subject the
"0'1, 28
_..._._---,._--~-_..-
ATTACHMENT C-6
CONTRACTOR to a suspension or termination of work under the Agreement. Maintenance of
insurance by the CONTRACTOR as specified in this Agreement shall in no way be interpreted
. as relieving the CONTRACTOR of any responsibility whatever and the CONTRACTOR may
carry, at its own expense, such additional insurance as it deems necessary.
X. CONTRACTOR'S INDEMNIFICATION OF CITY
CONTRACTOR shall indemnify and hold harmless the CITY and its officer, agents and
employees against all claims for damages to persons or property arising out of the conduct of
the CONTRACTOR or its employees, agents, subcontractors, or others in connection with the
execution of the work covered by this Agreement, except only for those claims arising from the
sole negligence or sole willful conduct of the CITY, its officers, agents or employees.
CONTRACTOR's indemnification shall include any and all costs, expenses, attorneys' fees and
liability incurred by the CITY its officers, agents, or employees in defending against such
claims,
whether the same proceed to judgment or not. Further, CONTRACTOR at its own expense
shall, upon written request by the CITY, defend any such suit or action brought against the
CITY, its officers, agents or employees.
Contractor's indemnification of CITY shall not be limited by any prior or subsequent declaration
by the CONTRACTOR.
XI. TERMINATION OF CONTRACT FOR CAUSE
In the event the Contractor consistently fails to meet the specifications of this contract, the'City
may at its option terminate the balance of the contract provided that the CONTRACTOR has
had written notice of his failure. Notice of such termination shall be in writing and shall take
effect fifteen (15) days after mailing such notice.
XII. TERMINATION FOR CONVENIENCE OF CITY
City may terminate this Agreement at any time and for any reason for giving specific written
notice to CONTRACTOR of such termination and specifying the effective date thereof, at lease
thirty (30) days before the effective date of such termination'.. If the Agreement is terminated
by City as provided in this paragraph, CONTRACTOR shall be entitled to receive just and
equitable compensation for any satisfactory work completed. CONTRACTOR hereby expressly
waives any and all claims fordamages or compensation arising under this Agreement except
as set forth herein.
XIII. ENTIRE AGREEMENT
This Agreement comprises the entire integrated understanding between CITY and
CONTRACTOR concerning the work to be performed for this project and supersedes all prior
negotiations, representations, or agreements.
90"7 29
---". -~._.__._--_._..__.
ATTACHMENT C-7
XIV. INTERPRETATION OF THE AGREEMENT
The interpretation, validity and enforcement of the Agreement shall be governed by and
construed under the laws of the State of California. The Agreement does not limit any other
rights or remedies available to CITY.
The CONTRACTOR shall be responsible for complying with any Local, State, and Federal laws
whether or not said laws are expressly stated or referred to herein.
Should any provision herein be found or deemed to be invalid, the Agreement shall be
construed as not containing such provision, and all other provisions which are otherwise lawful
shall remain in full force and effect, and to this end the provisions of this Agreement are
severable.
XV. AGREEMENT MODIFICATION
This Agreement may not be modified orally or in any manner other than by an agreement in
writing signed by the parties hereto.
XVI. ATTORNEY'S FEES
In the event any legal action or proceeding is commenced to interpret or enforce the terms of,
or obligations arising out of, this Agreement, or to recover damages for the breach thereof, the
party prevailing in any such action or proceeding shall be entitled to recover from the
non-prevailing party all reasonable attorney's fees, costs and expenses incurred bX the
prevailing party.
XVII. NOTICES
All notices, demands, requests, consents or other communications which this Agreement
contemplates or authorizes, or requires or permits either party to give to the other, shall be in
writing and shall be personally delivered or mailed to the respective party as follows:
To CITY: To CONTRACTOR:
Parks and Recreation Department
Director of Parks & Recreation
276 Fourth Avenue
Chula Vista, CA 91910
Either party may change its address by notice to the other party as provided herein.
Communications shall be deemed to have been given and received on the first to occur of (i)
actual receipt at the offices of the party to whom the communication is to be sent, as
designated above, or (ii) three working days following the deposit in the United States Mail of
'O-H" 30
--.........".-...".----.- ----
ATTACHMENT C-8
registered or certified mail, postage prepaid, teturn receipt requested, addressed to the offices
of the party to whom the communication is to be sent, as designated above.
XVIII. ADMINISTRATIVE CLAIMS REQUIREMENT AND PROCEDURE.
No suit or arbitration shall be brought arising out of this agreement, against the City unless a
claim has first been presented in writing and filed With the City of Chula Vista and acted upon
by the City of Chula Vista in accordance with the procedures set forth in Chapter 1.34 of the
Chula Vista Municipal Code, as same may from time to time be amended, the provisions of
which are incorporated by this reference as if fully set forth herein, and such policies and
procedures used by the City in the implementation of same.
XIX. SECURITY FOR PERFORMANCE
Performance Bond
In the event that Exhibit A, at Paragraph 18, indicates the need for contractor to provide
a performance bond (indicated by a check mark in the parenthetical space) immediately
preceding the subparagraph entitled, "Performance Bond"), then Contractor shall provide to the
City a performance bond by a surety and in a form and amount satisfactory to the Risk
Manager or City Attorney which amount is indicated in the space adjacent to the term,
"Performance Bond", in said Paragraph 18, Exhibit A.
Letter of Credit
In the event that Exhibit A. at Paragraph 18, indicates the need for Consultant to prqvide
a Letter of Credit (indicated by a check mark in the parenthetical space immediately preceding
the subparagraph entitled "Letter of Credit"), then Consultant shall provide to the City an
irrevocable letter of credit callable by the City at their-unfettered discretion by submitting to the
bank a letter, signed by the City Manager, stating that the Consultant is n breach of the terms
of this Agreement. The letter of credit shall be issued by a bank, and be in a form and amount
satisfactory to the Risk Manager or City Attorney which amount is indicated in the space
adjacent to the term, "Letter of Credit", in said Paragraph 18, Exhibit A.
,
Other Security
In the event that Exhibit A, at Paragraph 18, indicates the need for Contractor to provide
security other than a Performance bond or a Letter of Credit (indicated by a check mark in the
parenthetical space immediately preceding the subparagraph entitled "Other Security"), then
Contractor shall provide to the City such other security therein listed in a form and amount
satisfactory to the Risk Manager or City Attorney.
XX. SIGNATURES
The individuals executing this Agreement represent and warrant that they have the right, power,
legal capacity and authority to enter into and to execute this Agreement on behalf of the
respective legal entities of the CONTRACTOR and the CITY.
98-1 31
---_..~..- " -.---.-....-.-- .
ATTACHMENT C-9
Signature Page
to
Agreement between City of Chula Vista and [Name of Contractor]
for
IN WITNESS WHEREOF the parties hereto for themselves, their heirs, executors,
administrators, successors, and assigns do hereby agree to the full performance of the
covenants herein contained and have caused this Professional Services Agreement to be
executed by the setting hereunto their signatures this ~ day of ,19_
Dated: City of Chula Vista
by:
City Manager
Attest:
Beverly Authelet, City Clerk
Approved as to form: ,
City Attorney
Dated: [Name of Contractor]
By:
[name of person, title]
By:
[name of person, title]
Federal Employer 1.0. No.
Notary acknowledgements of CONTRACTOR must be attached.
9ß'/~ 32
,.......-..---
ATTACHMENTC-1O
EXHIBIT B
,
k\BRDR3.5
40"// 35
.~ --... -. .--..-..--- - ----......-
ATTACHMENT C-ll
Open Space Maintenance Area Descriptions
CODE NO. AREA IDENTFICATlON CODE DESCRIPTlON
1. .-,-,-.-.-,-,-.-. Areas containing permanent irrigation systems
,........ planted in ground cover, shrubs and trees shall
. . . . . . . . t
........
. . . . . . . . . be kept weed free as required by the C~y Parks
. . . . . . . .
and Recreation Director. Weeds are considered
as plant materials and grasses not consistent w~h
established planting. Any area not fully covered
w~h planned ground covers are to be replanted
and grown to fully cover area during the normal
growing season. Weeding shall be as necesssary
to create a well balanced appearance.
2. :.--:l·:r'~;~r ~.\~"rw: Lawn area with automatic irrigation systems.
f'.. '-r'" -'" . ,..j
',.. ".~. -.-, #t -"';t':. Weeding shall be as necessary to create a well
~r ::f{';::;" F!-:;"~ ,.<=~~
)o~.,.... ,. ,. t. r ...... c.. ('I manicured appearance.
..........'J,r.I~/.:;;'-N·
3. ~ Areas containing permanent irrigation systems
in~ially planted w~h hydroseed mix and shrubs
and trees, shall be kept free as required by Parks
and Recreation Director. Weeds are
considered plants (wild flowers and grasses) not
consistent w~h original hydroseed mix. The intent
is to maintain heaithy vegetation for erosion
control pùrposes.
4. Areas containing permanent or temp~rary
irrigation systems in natural open space
lands and slopes w~h indigenous plant
gro~h. Weed abatement in these areas
as directed by Parks and Recreation
Director not to exceed 2 times per year,
may consist of cutting back to 6" high.
5. Two times per year, areas of non-irrigated
open space shall be cleaned of debris
including but not limited to the following:
.. bottles, cans, paper, cardboard of metallic
items and noxious plant materials such
as tumbleweeds and pampas grass.
-
-
9ß-/~
~...._- ------- --~~
ATTACHMENT r,-12
!
I
I
I
-,
:\
II.
I
I
i
I
I .
i [
.~ : .
" J
,.. -0'
f! ,,:,
I~h
Ii''! ~ ¡
¡¡:¡lil . I
.1, ~
I" :,:'11111:1: 'J;,;;;;;',I',I," ~,
1- ~¡I' ~!!!!JIII Ji
=!~\; 'mmnH "i
! \ ! . " .' . ',I'H" ... ~'_ '¿
. " '\. :,. I,' I Y . "" " ..d,__' ..-
~ : I. . " . _ ~ '.
",I: '1':\" ."i ',: 1......."...11.1 a"1 . _
~ ! ~'I' ¡:.~_ ~ I - . . ".,,' ..,.
~. '¡..i..... ~i"'~ ! i!JIIIIII,
. "I""ïl!!"! ~'"= ,r .. ,.,. I\!!IIIIIII ~
!---1J.líi!t~~:~¡; ~ , I ~ ,'~- =:; H ~- -- -- ',li¡¡¡¡¡¡JiJÎII : ¿. '2
~. ~ ,-.:,' " '. w.',," I "hIh.l. _,
"--, ·'I';"'I'd",-, ~ . ¡ . . ;; ¡: "n. I.' d , ',j I I' I'.. . I ~. .
,..::.,., r . , I \' .1 . 11""111 ~
,...r... , , - ;¡ .~______. rll, I'll :.:
.. ,- 1 , .. .f.'!'!'!-'!"!.!! I 't, r-
It ;~ : ~ ,. ït '. ..._.............. i I II!..... _." - :r.
1 ~1fi'\1I ¡ i,¡, ¡ ~I" '¡i"I!:",',:.,",'" i.' I' ~
¡ t\l5' ~~ ¡¡ j1: ~,~,:,...;. ~~.~'=-~_. ! +.._~.~:'.~.~.7~ I i ¡~ ; ~
' . j, d· <
' " ,:" =--
5 í·1 ",l¡ _.: V)
.' , z
'"
..
"¡:II ! ¡ill !¡!i 0
"', ,II' II
¡',a. 'I 11,11 Ii
Ili I "I
ÊI11¡, II I!III n'! !
<I "I " II" ii, I
:¡hl:1 Ii i¡nl inl ¡ . I
-¡¡iWi ¡! hi!! hi I I I ! I
¡¡f!~' 1!.III¡'ll'ïlh\1 ¡!I. III. ; Ii 1 ' I ¡
: "'j¡¡¡:¥ : 1 !p¡'li II' ~IIH !PI II , I 1 I I ! I ¡ i \! ~ :::1
.'.., . I ~. r I ,,' ( f "' I I I . j ::::i "
-> ___(i~,~,:,I,~,;~',. i¡!!1iI :i\;I:h ilii i i Ii i i ! II " " :'" .(:}\ ,
'SøJ,1:J! ¡¡¡.~ Iilljcce 11111...· ¡.. 0 "Qþg
. ,." - ._._-~-"..~._.
COUNCIL AGENDA STATEMENT
Item /d
Meeting Date 2/25/97
ITEM TITLE: Resolution Irfl'ý Approving the submittal to SANDAG oftwo
applications for the FY 1997-98 2% Non-Motorized Transportation
Development Act (TDA) and Transportation Sales Tax (TransNet) Funds
SUBMITTED BY: D"""" ofPubli, Wmb ~
Co .
REVIEWED BY: City Manager 0~ bt-ð -r (4/5ths Vote: Yes_NoX)
The City of Chula Vista annually submits an updated list of projects for inclusion in the 7-year
implementation program of the non-motorized element of the Regional Transportation Improvement
Program. SANDAG regulations require that official applications be submitted to SANDAG in order
for projects to be considered by its Board of Directors for funding. In order for the application to
be official, Council must approve a resolution authorizing submittal of the FY 1997-98 Bicycle
Project applications for available Transportation Development Act (IDA) and Transportation Sales
Tax (TransNet) Funds. Both funding sources fonn a single pot with annual allocations totaling $2.3
million for the San Diego region. Projects are chosen and then approved for funding after the
applications have been evaluated by SANDAG's Bicycle Facilities Committee.
RECOMMENDATION: That Council approve a resolution authorizing the submittal of two
applications for the FY 1997-98 2% Non-Motorized Transportation Development Act (TDA) and
Transportation Sales Tax (TransNet) Funds, one for a Bike Path along the south side of State Route
54 between Second and Fourth A venues and one for sidewalk improvements along the south side
of Naples Street, from Harborside Elementary School to Industrial Boulevard.
BOARDS/COMMISSIONS RECOMMENDATION: Not applicable.
DISCUSSION:
Annually, the 2% Non-Motorized Transportation Development Act (TDA) Funds are made available
for the regional planning and construction of bicycle and pedestrian facilities. TDA funds will
contribute about $1.3 million in FY 1997-98 to the implementation of non-motorized projects in the
San Diego region. Also, with the passage of Proposition A in 1987, an additional $1 million of
TransNet revenues per year is available for the implementation of said projects that are submitted
annually by the Cities and the County. The following is a description of the project applications that
we propose to submit to SANDAG for FY 1997-98 funding:
I) Construct Bicycle Path along the south side of State Route 54, within the CAL TRANS right
of way, between Second and Fourth Avenues. The main purpose for this bike path is to
provide better access to the Sweetwater River Bikeway (SWB) along the north side of the
flood channel (see Exhibits "A" & "B").
I~-I
..~"...._---
Page 2, Item_
Meeting Date 2/25/97
Currently, riders must use Second Avenue, a steep, narrow and winding road, to reach the
SWB or ride through National City via 33n1 Street to the westerly terminus of the SWB. This
project will reduce the number of riders on this portion of Second Avenue and would I
encourage bike use. Many destinations, like Plaza Bonita, Bonita, and the Town and )
Country Shopping Center, can be reached easily trom Chula Vista via this route. In addition,
destinations in Central Chula Vista such as the new Channelside Shopping Center
(Wallmart) will be more accessable by bicycle trom Bonita, eastern National City and
Paradise Hills. Soon, the westerly end of the SWB will be connected to the Bayshore
Bikeway making even more connections as well as recreational routes available. This
segment could also become part of the Chula Vista's Greenbelt Bikeway. In the future a bike
path or trail could be extended east of Second A venue along the south side of the channel to
connect with future recreational uses east of the KOA Campground.
2) Installation of sidewalk improvements along the south side of Naples Street, between
Harborside Elementary School and Industrial Boulevard to improve student and pedestrian
safety in the vicinity.
There has been an increase in the number of students and amount of pedestrian traffic in the
vicinity of the Harborside School and Industrial Boulevard, especially since the mobile home
park on Industrial is no longer "adult only" and children are now living there. Currently
there is no sidewalk, on either side, along Naples between the school and the MTDB
crossing. A slight dip in the road in this area causes street runoff to flow onto the dirt !
shoulder where pedestrians must walk (see Exhibits "C" &"D"). There is an AC walkway,
which will remain, across the tracks, within the MTDB right of way. The proposed curb,
gutter and sidewalk will also correct this drainage problem. There is existing sidewalk along
the entire west side ofIndustrial except for a small segment at the intersection of Naples
Street. This project would also fill in this gap and add the required handicapped ramps. In
combination, these two segments of sidewalk will provide a safe walking route for students
and other pedestrians in the vicinity of the school.
Since this project requires the installation of curb and gutter, we propose that it be placed at
its ultimate location now instead of waiting until the street requires widening. This will
entail approximately $26,500 in additional street improvements not eligible for TDA funds.
The total cost of the projects are estimated to be $275,000 and $75,000, respectively. The grant
requests as shown in the applications are for $275,000 and $48,500, which cover all items eligible
under the TDA program. Eligible items include the removal of existing improvements, grading
work, installation of sidewalk and bike path, and pedestrian ramps. Eligible items also include
traffic control, protection and restoration of existing private improvements required drainage
improvements, and contingencies covering design and inspection. The ineligible items on the
Naples Street project, totaling $26,500 are proposed to be financed with the City's FY 1997/98
Community Development Block Grant (CDBG) allocation. Ineligible items include asphalt
pavement and certain other street improvements. In past years certain items ,such as curb and gutter
Id"~
. .-_.._~._---_..-
Page 3, Item_
Meeting Date 2/25/97
have been ruled ineligible. However, on this project (Naples Street) we have included curb and
gutter in the grant application because we feel that the curb and gutter is required for the construction
and maintenance of the sidewalk, due to the existing drainage problem. Therefore, the curb and
gutter could be ruled ineligible for TDA funding thus decreasing the TDA Grant and increasing the
amount of CDBG funds required.
Projects submitted to SANDAG must meet at least the following criteria:
1. Projects must be included in an adopted regional plan.
2. If bikeway projects, they must follow the CAL TRANS bikeway standards.
3. Each project submitted must contain appropriate cross sections.
Projects are also subject to prioritization criteria such as elimination of safety problem areas, service
to high use activity centers, connection to and continuity of longer routes.
The FY 1997-98 application will be reviewed by the Bicycle Facilities Committee which is
composed of representatives from each SANDAG member agency. Based on the Committee's
recommendations, the SANDAG Board of Directors will authorize allocation of the available TDA
and TransNet funds.
A copy of the application is located in the City Clerk's Office for Council review.
FISCAL IMP ACT: Potential total revenues to the City of $323,500. The actual amount is
dependent upon which of the projects are approved for funding by the SANDAG Board of Directors
and the amount that they approve. The projects also requires City funds in the amount of $26,500.
It is proposed that it come from the Community Development Block Grant (CDBG) allocation fund
in the proposed FY 1997/98 CIP Budget. The amount of CDBG funds needed could increase
depending upon the amount ofTDA funds approved. This action approves only the applications,
and does not formally approve these projects. These projects will be submitted for approval in the
FY 1997/98 CIP.
Enclosures: ~~\)
Two TDA ~~0 s
EXhibi~t)' ,"C" & "D"
MJI:mji 2118/97 (4:37 pm)
File No.: 0690-20-KY036 m:I..lengineerlagendal TDAclaim. 98
lð:3
"--".
RESOLUTION NO. l8'fr ¥
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA
VISTA APPROVING THE SUBMITTAL TO SANDAG OF TWO
APPLICATIONS FOR THE FY 1997-98 2% NON-MOTORIZED
TRANSPORTATION DEVELOPMENT ACT (TDA) AND
TRANSPORTATION SALES TAX (TRANSNET) FUNDS
WHEREAS, the City of Chula vista annually submits an
updated list of projects for inclusion in the 7-year implementation
program of the non-motorized element of the Regional Transportation
Improvement Program; and
WHEREAS, SANDAG regulations require that official
applications be submitted to SANDAG in order for projects to be
considered by its Board of Directors for funding; and
WHEREAS, in order for the application to be official,
Council must approve a resolution authorizing submittal of the FY
1997-98 Bicycle Project applications for available Transportation
Development Act and Transportation Sales Tax (TransNet) Funds; and
WHEREAS, the following is a description of the project
applications to be submitted:
Construct Bicycle Path along the south side of State
Route 54, within the CALTRANS right of way, between
Second and Fourth Avenue to provide better access to the
Sweetwater River Bikeway (SWB) along the north side of
the flood channel.
Installation of sidewalk improvements along the south
side of Naples Street, between Harborside Elementary
School and Industrial Boulevard to improve student and
pedestrian safety in the vicinity.
NOW, THEREFORE, BE IT RESOLVED that the City Council of
the city of Chula vista does hereby approve the submittal to SANDAG
of two applications for the FY 1997-98 2% Non-motorized Transpor-
tation Development Act (TDA) Fund and Transportation Sales Tax
(TransNet) funds.
Presented by Approved as to form by
John P. Lippitt, Director of n M. Kaheny, City
Public Works torney
C:\rs\2%NONMOT
1/)-1
_n_ __n__.___...., _ ___....__..._........_ U' .____~~_____._.__.______._._.
Naples Street
ANNUAL IDA CLAIM FORM February, 1997
FY97-98 0690-20-KY036
A CLAIMANT: City of Chula Vista ~/¿)
B. TYPE OF CLAIM: (check one)
(X) Article 3 - Bicycle and Pedestrian Facilities (99234)
( ) Article 4 - Support Public Transportation Systems (99260)
( ) Article 4.5 - Community Transportation Services (99275)
( ) Article 8 - Multimodal Transportation Terminals (99400.5)
( ) Article 8 - Express Bus ServiceslVanpool Services (99400.6)
( ) Article 8 - Local Street and Road Projects (99400)
C. AMOUNT OF CLAIM
Operations
Capital
Planning
. Other (specify) J48.500
TOTAL:
D. CONDmONS OF APPROVAL:
It is understood by this Claimant that payment of the claim is subject to approval by SANDAG and
to such moneys being on hand and available for distribution, and to the provision that such moneys
and the interest earned on such moneys subsequent to allocation will be used only for the purposes
for which the claim is approved and in accordance with the terms of the allocation instructions.
E. AUTIIORIZED REPRESENT A TIVEI F. PAYMENT RECIPIENT
.Cf)TA~ 0- ,
- City of Chula Vista
(Signature) (Claimant)
Dennis C. Davies 276 Fourth Avenue
(priht of type name) (Mailing Address)
Civil Enaineer Chula Vista, CA 91910
(Title) (City and zip code)
276 Fourth Avenue ATTN: Robert Powell
(Address) (Name)
Chula Vista, CA 91910 Director of Finance
2/1}/'17 (Title)
(619) 691-5173
,
(phone) (Date Signed)
***********************************************************************************
SANDAG USE ONLY:
1. Claim number
2. Date Approved
3. Resolution No.
4. Amount Approved for Payment
5. Amount approved for Reserve
If Required:
6. Date Approved by MfDB
7. MfDB Resolution Number
- ,_..,....~_...-._- .-,
TDA APPLICATION FORM
BICYCLE AND PEDESTRIAN FACILITIES
Claimant: CITY OF CHULA VISTA
Amount of Claim: $48,500
Length and Type of Project:
Bike Path
Bike Lane
Shared Route
Related Facilities
Sidewalk 280 FT
Other
Project description:
Install 150' of missing sidewalk along the south side of Naples Street, From
Harborside Elementary School to the MT DB right of way (existing ac walkway
across tracks) and from the MTDB right" of way to Indnstrial Boulevard and a
100' portion of missing sidewalk along Industrial Boulevard at the intersection.
The improvements will include curb and gutter along Naples Street, necessary for
the installation of sidewalk and required handicapped ramps at the intersection.
Note: Please attach location map. proiect limits. and &p'prqpriate cross sections.
I. Project Eligibility (Check and fully explain in comments) Yes No
A. Is the project included in an adopted regional, county, X -
city or community plan?
B. If the project abuts other jurisdictions, is it shown on N/A --
adopted plans of adjacent jurisdictions?
C. Does the project follow CALTRANS Bike Route N/A --
Standards from the CALTRANS Highway Design Manual, Section 7-1000; Bikeway
Planning and Design Standards? If the project exceeds the design standard, provide
a separate justification for any added costs associated with the higher standard.
D. Identify other sources of funding for the cooperative
projects, and/or specify how the TDA-related costs for this application were
detennined. :
The sidewalk is necessary for the safety of the increasing number of students walking between
the school and Industrial Boulevard where there is not a safe or all-weather walkway for the
students. Ouly costs necessary for the construction of the sidewalk are included.
.'
Naples Street Sidewalk 1 February 12, 1997
- _....~_........_,.__...,----
II. Status of Project (check and fully explain in comments)
A. Resolution passed by governing agency ..x. -
B. On adopted Capital Improvement Program ..x. -
C. Maintenance* and liability ..x.. -
III. Proposed Project Schedule (provide dates)
A. Preliminary engineering completed July. 1997
B. Environmental Document approved. July. 1997
C. Final design complete November. 1997
D. Construction begins Januat:y. 1998
E. Construction complete March. 1998
*Comment on how proposed facility will be maintained.
Sidewalk will be maintained by Chula Vista's
operations staff
III. Evaluation Criteria (Check and fully explain in comments) Yes No
A. Does the project eliminate problem areas on routes
which would provide relatively safe travel use?
1. Intersections, driveways ..x.. -
2. Bridges - .x.
3. Narrow road segments - .x.
4. Removal of parking ...x.. -
5. High traffic volume and speed - ..x..
6. Other Water ponds between school and MTDB crossini ...x.. -
The project will provide a safe path away from the street. The curb and gutter
will keep water away from sidewalk and cars from parking on the sidewalk.
B. Does the project provide service to high activity
centers?
7. Employment - ..x..
8. Commercial - ..x..
9. Educational ..x.. -
10. Public transportation interface - -
11. Government or social service centers - ..x..
12. Cultural or recreational - ..x..
13. Other - ..x..
Naples Street Sidewalk 2 February 12, 1997
.._-,,-- .--
C. Does the project provide connection to and contiœity
of longer routes?
14. Inter-regional _X
15. Regional _X
16. Inter-jurisdictional _X
17. Local X -
18. Community X -
The project will connect sidewalks on naples slœet with sidewalks on Industrial
Boulevard. Handicapped ramps will also be iœtalled.
D. Special Circumstances and Local Participation:
The missing sidewalk has ouly become a seriousJlfOblem since children have been
allowed to live in the mobile home park on Wustrial Boulevard a few years
increasing the number of kids crossing indust:rbllloulevard. Over the last couple
of years we expected the owner of the vacant ,.-eel to install the improvements
when he obtained his building permit. The vañlus projects have faIlen through
and we can not wait any longer.
E. Comments :
This gap in the sidewalk is vary important for dRsafety of the students and other
pedestrians walking along Naples Street. Wheu it rains the area becomes muddy
causing people to walk in the street. In additiB, people park their cars in this
area no matter what the weather is like forcing pdestrian to walk around and in
between them. This makes for a vary unsafeåtuation. Installation of curb,
gutter and sidewalk would also provide a safe fllace for parents to pick-up and
drop-off their kids.
Only sidewalk is needed along both streets. lløltier, due to the drainage along
this segment of Naples Street, curb and gutter _an integral part of the sidewalk
installation. It would be very difficult to coDllllruct and maintain the sidewalk
without curb and gutter. They are needed to kørp runoff and parked cars off the
sidewalk. This is why we have included the curltand gutter in our estimate. No
other street improvement costs have been incll*d.
Naples Street Sidewalk 3 February 12, 1997
-.-.-".-....-
Date: 2/10/97
ESTIMATE OF BICYCLE OR PEDESTRIAN PROJECT COSTS
Pr~ectName: Naples Street Sidewalk Length: Miles
Construction Costs
1. Earthwork a. Roadway Excavation C.Y.X$ =$
b. Embankment 400 C.Y.X$ 18 = $ 7,200
$ 7 ,200
2. Drainage - Major Work
Describe: Modify Existing Inlet
$ 3,000
3. Signing, Striping, Pavement Markings
Signs (SImile) ,; 51.000lMile}
Stripe = 51 ,SOOlMile $3,000 !Mile X Miles= $ 500
Markings 320 S.F .!Mile = 5500lMile
4. Paving a. Agg. Base C.Y.X$ IC.Y.= $
I calc: length x width x depth .;. 27 =C.Y. I
I I
,
b. Paving Tons X $ fTon = $
calc: length x width x depth .;. 27 X 2 = Tons
PAVING TOTAL $ 0
5. Bridge Work a. Modify Bridge S.F.X$ IS.F. = $
b. New Bridge S.F.X$ IS.F. = $
BRIDGE TOTAL $ 0
6. Fencing L.F. X $ /L.F. = $ 0
7. Storage a. Racks ea.X$ = ()
b. Lockers ea.X$ = 0
8. Other (Specify and identify unit costs if appropriate.) Traffic Control $5,000
180 LF Curb and Gutter X $18/LF $ 3,240
280 LF 6' Wide Sidewalk X $18/LF $ 5,040
6 EA Handicaped Ramps X $lOOO/EA $ 6,000
9. Construction Subtotal $30,000
Construction Contingencies (10% of construction subtotal)
30,000 X10%= $ 3.000
Construction Inspection (10% of construction subtotal)
30.000 X10%= $ 3,000
10. CONSTRUCTION TOTAL $36.000
Non-Construction Costs
11. Design Engineering (15% of Construction Subtotal, line 9. $ 10,500
* +$6,000 for small project)
12. Environmental Document/Permits $ 2.000
14. PROJECT TOTAL $ 48.500
15. Less Other Revenue Sources (Specify)
Previous TDA $ ( 0 )
Previous TransNet $ ( 0 )
$ ( )
$ ( )
$ ( )
16. CLAIM AMOUNT $ 48,500
17. Cost detail not shown above. Use to explain special circumstances such as deviations from suggested
percentage or unit costs. Do not attach additional sheets.
*Due to the. small size of the project all non-construction items ie. Design,
Inspection & Surveying will require a greater amount than the suggested percentages.
We have added $6,000 to the Design Engineering Costs to cover these items.
..___,_n·
CITY OF CHULA VISTA
ENGINEERING DIVISION
COST ESTIMATE
PROJECT TITLE: Installation of SIDEWALK
Along the South Side of Naples Street FILE NO. : 0690-20-KY-03
And the West Side of Industrial Blvd. - From DATE: 2/10/97
Harborside Elementary School to Industrial Blvd. PREPARED BY : MJI
and along Industrial Blvd. @ Naples Street CHECKED BY : DCD
NO. ITEM QUANTITY UNIT UNIT PRICE AMOUNT
ITEMS ELIGIBLE FOR TDA FUNDS
I Grading and Import 400 CY 18.00 7,200
2 Installation of PCC Curb and Gutter . 180 SF 18.00 3,240
3 Installation of 6' PCC Sidewalk 280 LF 18.00 5,040
4 Installation of Pedestrian Ramps 6 EA 1,000.00 6,000
5 Drainage Improvements - (Modify Existing Inlet) LS LS 3,000.00 3,000
6 Traffic Control LS LS 5,000.00 5,000
7 Signing and Striping LS LS 500.00 500
$29,980
CONSTRUCTION SUBTOTAL Say $30,000
CONSTRUCTION CONTINGENCIES (10%) 3,000
CONSTRUCTION INSPECTION (10%) 3,000
$36,000
ENGINEERING DESIGN (15%) 4,500
ENGINEERING SURCHARGE FOR SMALL PROJECTS (20%) .. 6,000
COORDINATION WITH OTHER AGENCIES 2,000
ENVIRONMENTAL DOCUMENTS
PROJECT TOTAL $48,500
TOTAL 97-98 TDA REQUEST $48,500
(M:I..AdvPlanITDAITDA97\SWBIKEWY.wql-A)
* The curb and gutter are intergral to the construction of the sidewalk, its maintenance and drainage.
.. Due to the small size of the project additional funds are required for surveying, inspection and design.
02/12/97
-_._'-_...~_._-_..-."-_.""_."._-------~-- ---_.._~-_.._---_._------_.._---,.
I 1+ I
I
1-'
~ I Jf
p:;
~
I'iI J~
¡.;¡
þ
0
~
. NAPLES STREET
-
-
-
-
-
-
-
-""" -
. -
I - 11I1111I, \II(
I·
I·
I-I - HARBORS IDE
¡.;¡ 1+ ELEMENTARY
.:e ·
~ SCHOOL
H ·
~ 0
E-t ·
t:I) ~
þ
~ ¡:Q
Q
H E-t
::E: I
¡ I
\ I
I
LEGEND:
.EXISTING SIDEWALK IMPROVEMENTS
111I1111I1111111 PROPOSED SIDEWALK IMPROVEMENTS
#111111 RAILROAD TRACKS
I DRAWB BY, I EXHIBIT " C ..
NAPLES STREET SIDEWALK,
A. STEVENS BETWEEN HABORSIDE ELEMENTARY SCHOOL
AND INDUSTRIAL BOULEVARD
DATE: FEB. 11, 1997
...-.-...-.-
EXHIBIT " D "
, I
ì
~ If.
I I
I' 20' 6' 14'
: I . J ~ ) I
I' l6.S'¡ 7.5' PROPOSED
IJ / CURB, GUTTER
- - =", EXISTING / '- 1- & SIDEWALK
...........-\
PAVEMENT -) 1----
EXISTING :
GROUND I
-
.
NAPLES STREET CROSS-SECTION
NO SCALE
I J
I
~ 20' I , I
I ' , I 13' I 5 I L... 2'
. I ~ 'I 'I I _
~ --L ~__
-- -- -- :tr---T~
-~ - - T-- = = ) . E"STING
I GROUND
EXISTING CURB)
I PROPOSED I
! SIDEW ALK I
INDUSTRIAl,. BOULEVARD CROSS-SECTJQN
NO SCALE
C I T Y OF CHULA VISTA
DRAWN BY: M.J.!. TYPICAL CROSS-SECTIONS OF
NAPLES STREET SIDEWALK
DATE: 2 /11/97 A T INDUSTRIAL BOULEVARD
_u_ ._~_.__,..._._._.___
V'~'l~
~~O0 rz:¡u.¡
~Q> ,..:¡rz:¡
()~
I , ~rz:¡
! rrJ~
I :r:
-' E-< .:x:~
0 .:x: E-<O
or.
~-' ~ p.. ~()
%~ < ~ :>rz:¡
0% ;:: rz:¡
u: ,..:¡ « .:x:u.¡
""
: U ~ª~
o .~ ><
0 ()
0
J H
~ U:r:
I p:¡ l-
I I Q - ........E-<
, '3^V rz:¡ ~ ~~
u.¡ ~ rz:¡O
0
p.. >< :>rx.
w 0 W HZ
> I ~ ~rz:¡
~A p.. ~rz:¡
rz:¡~
i - E-<E-<
- .:x:rz:¡
~ -'I -
a: - ~p:¡
u.I HHION :~ - E-<
-
r- - rz:¡:r:
4- ( - r::IE-<
-
--- ~ - ~.:x:
-
r- - u.¡p..
u.I
u.I
~ \ ~
en
u_
J
I r-
,
I
\ H1HnO.:!
~ \ '-1: t11 ,...
Z '"
I-J\ ¡,¡ '"
:> ri
~ \ ¡,¡
3 At/ E-t ,
t11 '"
0
L~ .0: .
~
"
ÞO<
r- ¡::¡
"
""'.. . ã Jii
"-t--I ~.<:~ E-
o , , .c:
: t ~---- Q Q
".::J"
I .
- ,
I
,
-'
EXHIBIT .. B "
SR 54 CAL TRANS R of W ...i
-- '\
-- ~=_/
\ I
\ I
\ TROUSDALE DRIVE
\ VARIE~ I 10'! I VARIES
2'MIN 1/ 4--- 2'MIN
\. EXISTING x I
EXISTING ->- FENCE -1.) _ r-~I - -_
GROUND ---- ,- J I ='l!,--
EXISTING LINED DITCH -~ =f
PROPOSED
BIKE PATH
CROSS-SECTION BETWEEN
ON-RAMP AND TROUSDALE DRIVE
NO SCALE
ON RAMP I
==~ ~::::::\ I
\ CALTRANS R of W ì
NEW IRELOCA TED \ ~
CHAIN LINK FENCE ~X '.
2'MIN' ." 10 ~. ~2'MIN
\ X' . X
EXISTING /,: I 1-.- EXISTING FENCE
GROUND ,I
, -","
'~Nl
RETAINING WALLS P~:S:: BIKE PATH
WHERE NEEDED
CROSS-SECTION NEAR SECOND A VENUE
NO SCALE
C IT Y OF CHULA VISTA
DRAWN BY: M.J.!. TYPICAL CROSS-SECTIONS OF BIKEWAY
SOUTH SIDE OF STATE ROUTE
DATE: 2/11/97 FOURTH A VENUE TO SECOND A VENUE
~..-.."--~_..- .....-.
tr
Q i~: i
p:: I-
~ r
r
J~
ï r !i
,
~ ¡
þ
0
~
¡- NAPLES STREET
--
-
-
-
-
-
-
-
-
-
I - 11I11I11 ~II
1- - (
I·
1- -
HARBORS IDE
H · ELEMENTARY
~ s: SCHOOL
H ·
p:: 0
~ ·
t1.l p::
þ
ê ¡:Q
Q
H ~
::E: I
~ I
\ I
I
LEGEND:
.EXISTING SIDEWALK IMPROVEMENTS
1111I11I111111I1 PROPOSED SIDEWALK IMPROVEMENTS
IIIII1I1 RAILROAD TRACKS
I DRAWN BY, I EXHIBIT - C u
NAPLES STREET SIDEWALK,
A. STEVENS BETWEEN HABORSIDE ELEMENTARY SCHOOL
.AND INDUSTRIAL BOULEVARD
DATE: FEB. 11, 1997
----...-.--.,--.--...--.........-.--
EXHIBIT " D "
I I
I I
Cè. '!.
I I
" 20' ~ ~ 6' 14'
. ,< , I
I . l6.5' 7.5'
I PROPOSED
I V CURB, GUTTER
- - =", EXISTING'/ ....:Y & SIDEWALK
--- - ~.\
PAVEMENT --¡---
EXISTING) I - -
GROUND I
-
NAPLES STREET CROSS-SECTION
NO SCALE
J
I
~ 20' I !
, ~,
I' I 13' I 5 I L2'
I . I " I
-- ---!.--.. I _,_, ___
- - - - - T - - ff-) T '
--- --== ,EXISTING
I GROUND
EXISTING CURB)
I PROPOSED I
! SIDEW ALK I
INDUSTRIAL BOUl-EVARD CROSS-SECTION
NO SCALE
CI T Y OF CHULA VISTA
DRAWN BY: M.J.!. TYPICAL CROSS-SECTIONS OF
NAPLES STREET SIDEWALK
DATE: 2 /11/97 A T INDUSTRIAL BOULEVARD
_.____u._ ------- - --
Sweetwater
M'NUAL IDA CLAIM FORM Bi ke Path
FY97-98 February, 1997
A. CLAWANT: Citv of Chula 0690-20-KY-036
Vista -::ff/ ¿?
B. TYPE OF CLAW: (check one)
( X ) Article 3 - Bicycle and Pedestrian Facilities (99234)
( ) Article 4 - Support Public Transportation Systems (99260)
( ) Article 4.5 - Community Transportation Services (99275)
( ) Article 8 - Multimodal Transportation Terminals (99400.5)
( ) Article 8 - Express Bus ServiceslVanpool Services (99400.6)
( ) Article 8 - Local Street and Road Projects (99400)
C. AMOUNT OF CLAW
. Operations
Capital
Planning
Other (specify)
TOTAL: $ 275.000
D. CONDmONS OF APPROV AL:
It is understood by this Claimant that payment of the claim is subject to approval by SANDAG and
to such moneys being on hand and available for distribution, and to the provision that such moneys
and the interest earned on such moneys subsequent to allocation will be used only for the purposes
for which the claim is approved and in accordance with the terms of the allocation instructions.
E. AUTIIORTZRD REPRESENT A TIVFJ F. P A YMENT RECIPIENT
C9NTACf ~
. \:) s -" Citv of Chula Vista
(Signature) (Claimant)
Dennis C. Davies 276 Fourth Avenue
(print of type name) (Mailing Address)
Civil Enaineer Chula Vista, CA 91910
(Title) (City and zip code)
276 Fourth Avenue A'ITN: Robert Powe 11
(Address) (Name)
Chula Vista, CA 91910 Director of Finance
J-1Í3/'77 (Title)
(619) 691-5173
(phone) I I
(Date SIgned)
***********************************************************************************
SMTDAG USE ONLY:
l. Claim number
2. Date Approved
3. Resolution No.
4. Amount Approved for Payment
5. Amount approved for Reserve
If Required:
6. Date Approved by MrDB
7. MrDB Resolution Number
--_.__.,_.._---~-----._.-._--
TDA APPLICATION FORM
BICYCLE AND PEDESTRIAN FACILITIES
Claimant: CITY OF CHULA VISTA
Amount of Claim: $275,000
Length and Type of Project:
Bike Path 2.700ft
Bike Lane
Shared Route
Related Facilities
Sidewalk
Other
Project description:
Construct 10' wide PCC Bike Path along the south side of State Route 54, within
CAL TRANS right of way, between Second and Fourth A venues. Improvements will
also include grading, retaining walls, signing, striping and ramps
Note: Please attach location map. project limits. and ¡¡ppropriate cross sections.
1. Project Eligibility (Check and fully explain in comments) Yes No
A. Is the project included in an adopted regional, county, X -
city or community plan? - City's Bikeway Master Plan
B. If the project abuts other jurisdictions, is it shown on N/A --
adopted plans of adjacent jurisdictions?
C. Does the project follow CALTRANS Bike Route ..x.. -
Standards from the CALTRANS Highway Design Manual, Section 7-1000; Bikeway
Planning and Design Standards? If the project exceeds the design standard, provide
a separate justification for any added costs associated with the higher standard.
D. Identify other sources of funding for the cooperative
projects, and/or specify how the TDA-related costs for this application were
determined. :
We performed a cost estimate based. on grading, drainage and
the cost of sidewalk.
Sweetwater Bikeway I February 12, 1997
"--- _._~--_..._.. ..--.."..--.-..
II. Status of Project (check and fully explain in comments)
A. Resolution passed by governing agency ..L _
B. On adopted Capital Improvement Program ...X- _
C. Maintenance* and liability *
- -
Ill. Proposed Project Schedule (provide dates)
A. Preliminary engineering completed July. 1997
B. Environmental Document approved. Au~st 1997
C. Final design complete February. 1998
D. Construction begins March. 1998
E. ConStruction complete June. 1998
*Comment on how proposed facility will be maintained.
The Bike Path will be maintained as a part of the City's
infrastructure by Chnla Vista's Operations Staff
Ill. Evaluation Criteria (Check and fully explain in comments) Yes No
A. Does the project eliminate problem areas on routes
which would provide relatively safe travel use?
1. . Intersections, driveways - ...X-
2. Bridges - X
3. Narrow road segments ..x. -
4. Removal of parking - ..x.
5. High traffic volume and speed ..x. _
6. Other * X
-
Currently the only way that a cyclist can reach the Sweetwater River
Bikeway, a regional bikeway along the north side of the flood channel, from
Chnla Vista is via Second A venue or by traveling through National City, via
33rd Street, to the westerly terminus of the Bikeway. Second A venue is a
steep, narrow and windy roadway. This Bike Path will provide a safe and
convenient route to the Sweetwater River Bikeway by eliminating the need
to use Second Avenue.
Sweetwater Bikeway 2 February 12, 1997
--"--'-"'-'-""'-"-
B. Does the project provide service to high activity centers?
7. Employment ..x.. -
8. Commercial .x -
9. Educational _ .x
10. Public transportation interface ..x.. -
11. Government or social service centers - -
12. Cultural or recreational .1L _
13. Other - -
The Bikeway together with other existing routes will link several activity centers.
Many destinations, like Plaza Bonita, the Town and Country Shopping Center, the
Bonita Area, and Paradise Hills could be reached easily from Chula Vista via this
route. In addition, many people from Bonita, Paradise Hills and eastern National
City could ride their bikes into Central Chula Vista for business, employment,
governmental or cultural purposes.
C. Does the project provide connection to and continuity
of longer routes?
14. Inter-regional .1L _
15. Regional .1L _
16. Inter-jurisdictional .1L _
17. Local .1L _
18. Community L_
Yes, this bike path will make a SAFE, level and convenient connection between
several local and regional routes, in and through Chula Vista and National City.
These bikeways include Fourth and Second Avenues and "C" Street in Chula Vista
and Sweetwater Road, Euclid A venue and the Sweetwater River Bikeway in
National City.
D. Special Circumstances and Local Participation:
This bikeway will become a segment of Chula Vista's future Greenbelt bikeway and
immediately provides needed access to the Regional Sweetwater River Bikeway.
E. Comments:
The Sweetwater River Bikeway is an important regional route, especially for the
Cities of National City and Chula Vista, providing links to and between the future
Bayshore Bikeway and the Bonita Area. However, access from Chula Vista to this
important bicycle facility is limited. To get there you must use Second Avenue, as
described above or ride across the river into National City and go west, almost to
Interstate 5, to the bikeway's westerly terminus.
This bike path will encourage bike use, both commuter and recreational by
providing safe and convenient connection to activity centers.
Sweetwater Bikeway 3 February 12, 1997
....~----_._.._-_._-,_._.- ---
Date: 2/11/97
ESTIMATE OF BICYCLE OR PEDESTRIAN PROJECT COSTS
Pr~ectName: Bicycle Path-South side of S.R. 54 Length: .5 Miles
Construction Costs
1. Earthwork a. Roadway Excavation C.Y.X$ ~ s:
b. Embankment 2,500 C.Y.X$ 12 ~ $ 30,000
$ 30.000
2. Drainage - Major Work
Describe: Modify existing facilities
$ 15,000
3. Signing, Striping, Pavement Markings
Signs (Blmlle) ,; $1 'OOOIMlle~
Slñpe = S1,5001Mlle $3,000 /Mile X . Miles~ $ 2,000
Markings 320 S.F ./Mile = $5001Mile
4. Paving a. Agg. Base C.Y.X$ IC.Y.~ $
(Bike Path) ! calc: length x width x depth + 27 ~C.Y. I
b. Paving, conc. 77 000 SF .x $ 3.00 ISF ~$81,000
calc: length x width x depth +27X2 ~ Tons
I
CONCRETE PAVING TOTAL $ 81, 000
5. Bridge Work a. Modify Bridge S.F.X$ IS.F. ~ $
b. New Bridge S.F.X$ IS.F. ~ $
BRIDGE TOTAL $ 0
6. Fencing 2.700 L.F.X$ 5.20 IL.F. ~ $ 14.000
7. Storage a. Racks ea.X$ ~ 0
b. Lockers ea.X$ ~ 0
8. Other (Specify and identify unit costs if appropriate.) Traffic Control 2,000
Retaining Walls 750 SF X $24/SF $ 18,000
Handicaoped Ramps 4 X $1000/EA $ 4.000
Restoration of Landscaping $ 2ì'000
Lighting ,~OO
9. Construction Subtotal $ , q, 000
Construction Contingencies (10% of construction subtotal)
195,500 X10%~ $ ,q.,,;o
Construction Inspection (10% of construction subtotal)
195.500 X10%~ $ 19.550
10. CONSTRUCTION TOTAL $ 234.600
.. -.,.--."------- __..·..._.n
Non·Construction Cos1s
11. Design Engineering (15% of Construction Subtotal. line 9.) $ 29,325
12. Environmental DocumenVPermits $ 11, 000
14. PROJECT TOTAL $274,925
15. Less Other Revenue Sources (Specify)
Previous TDA $ ( 0 )
Previous TransNet $ ( 0 )
$ ( )
$ ( )
$ ( )
16. CLAIM AMOUNT $ 275,000
17. Cost detail not shown above. Use to explain special circumstances such as deviations from suggested
percentage or unit costs. Do not attach additional sheets.
.
.-.-.. __._ ..n ____...__.~_.c. -.-".0.,,-···----..-..-.,-..--.
CITY OF CHULA VISTA
ENGINEERING DIVISION
COST ESTIMATE
PROJECT TITLE: Installation of BICYCLE PATH
Along the South Side of State Highway 54 FILE NO. : 0690-20-KY-036
Behween Second and Fourth Avenues DATE: 2/10/97
Within CAL TRANS Right of Way PREPARED BY : MJI
CHECKED BY : DCD
NO. ITEM QUANTITY UNIT UNIT PRICE AMOUNT
ITEMS ELIGIDLE FOR TDA FUNDS
] Grading 2,500 CY ]2.00 30,000
2 ]nstallation of Retaining Walls 750 SF 24.00 ]8,000
3 Installation of ]0' PCC Sidewalk 2,700 LF 30.00 8],000
4 Installation of Pedestrian Ramps 4 EA ] ,000.00 4,000
5 Drainage Improvements - (ModifY Existing Facilities) LS LS ]5,000.00 ]5,000
6 Restoration of Landscaping LS LS 23,000.00 23,000
7 Lighting LS LS 6,500.00 6,500
8 Traffic Control LS LS 2,000.00 2,000
9 Signing and Striping LS LS 2,000.00 2,000
10 InstalllMove Chain Link Fence LS LS ]4,000.00 ]4,000
$]95,500
CONSTRUCTION CONTINGENCIES (10%) . ]9,550
CONSTRUCTION INSPECTION (]O%) ]9,550
$234,600
ENGINEERING DESIGN (]5%) 29,325
COORDINATION WITH OTHER AGENCIES 5,000
ENVIRONMENTAL DOCUMENTS 6,000
PROJECT TOTAL $274,925
TOTAL 97-98 TDA REQUEST $275,000
(M:I..AdvPlanITDAI1DA971SWBIKEWY.wq I-A)
02111/97
---- - ---..~.._._- --.__._..---~._--- .__.~
~tJ)
i I >- "':¡ri1
-' I ~~
0 ~
~. I Ori1
~-' I
%.. > H:>
0% < L-J :r: p:¡~
"z
< ;: E-t
o .~ .x: e::~
0 p.,
0 000
-' l SS3~d µ:¡ I: HO
~ . :>µ:¡
'" ,..::¡ c:(
" .. 0 00
~ >< .x:
'" II ~~
0
I H
~ ¡I¡
u.I , I- 0
I ::r:
"7 '3^'O' Q -
- ri1 m '-E-t
~ tJ) - ~~
W 0 ~
> p., ri10
0::1 1 0 >< :>µ.
o~¡ ~ W H
~ p., ~Z
.. u.I ¡::r:¡
--- r- ~H~OON~~ ~¡::r:¡
~ - ¡::r:¡:;::
~ - E-tE-t
-
r- - .::¡::r:¡
- :;::¡I¡
u.I -
\, - E-<
u.I -
- ¡::r:¡::r:
~ -
- ¡::r:¡E-t
r.n - :;::.::
- oop.,
3N"'8SI~
--.-,
,-
I
NJ H1HnO::
J-1' tIJ
I-J' Z ....
~ \ M 0'\
? 0'\
.- M .-i
E-<
i ¡ tIJ ,
'"
"-r--I . 0
.0:
, ' , \ .
, I , ~
, , ' M
"::I.. -_. - -- ---s. '»>... r-Lu ~ >:>
- ¡:¡
,
I <:~ . ¡
I -
, t--u a::I
-' \JJ ~ f<
.c:
Q Q
0'0 .
.-.---""----
EXHIBIT .. B "
SR 54 CAL TRANS R of W 1
-- '\
-- =-=--"
\
I
\ I TROUSDALE DRIVE
\
\ VARIES I 10' I ~ARIES
2'MIN~ :. ~ I 2'MIN
" EXISTING U I I
EXISTING -->- FENCE - _ ,_ -'- _ _ _ _
GROUND - - -- ,- J I ='1;--
EXISTING LINED DITCH --~ =1/
PROPOSED
BIKE PATH
CROSS-SECTION BETWEEN
ON-RAMP AND TROUSDALE DRIVE
NO SCALE
ON RAMP I
:=:::::=::::::\ I
I
\ CALTRANS R of W l
NEW IRELOCA TED \ \~I
CHAIN LINK FENCE ~X ,
2'MIN \ ... 10 ~ 1---2'MIN
\ x . >(
EXISTING /'... I~ EXISTING FENCE
GROUND "
" ....."
C~N
--
-- ----
RETAINING WALLS PROPOSED BIKE PATH
WHERE NEEDED
CROSS-SECTION NEAR SECOND A VENUE
NO SCALE
C IT Y OF CHULA VISTA
DRAWN BY: M.J.!. TYPICAL CROSS-SECTIONS OF BIKEWAY
SOUTH SIDE OF STATE ROUTE
DATE: 2/11/97 FOURTH A VENUE TO SECOND A VENUE
,- .~_..._--- ~ ~---"""-'~"-"-'--- - -
COUNCIL AGENDA STATEMENT
Item J I
~ Meeting Date 2/25/97
ITEM TITLE: Resolution /,. ~UthOriZing the expenditure of funds to install a traffic
signal at the Bonita Vista High School East "H" Street entrance in exchange
for right-of-way dedication for the construction of the Gtay Lakes Road dual
left turn lanes project (STM-322).
SUBMITTED BY: D"",'N ofPobli, WmlΠ~
REVIEWED BY: City Manage~(f ~ --z (4/5ths Vote: Yes _ NoX)
The FY 96-97 Capital Improvement Program (CIP) budget contains a project to provide dual left
turn lanes on Gtay Lakes Road (north and south bound approaches) at East "H" Street and provide
an additional through lane in each direction.
To construct the project, it is necessary to obtain right-of-way from both the Sweetwater Union High
School District (in front of Bonita Vista High School) and Southwestern College (in front of their
vacant lot at the southwest comer of the intersection). Negotiations with both agencies are underway
and we have reached a tentative agreement with the Sweetwater District. This tentative agreement
would require that the City commit to the construction of a traffic signal at the Bonita Vista High
School East "H" Street entrance in exchange for the right-of-way, a change in scope from the
Council approved CIP project.
RECOMMENDATION: That Council direct staff to complete the plans and specifications for
the installation of a traffic signal at the Bonita Vista High School East H Street entrance in exchange
for gratis dedication of right-of-way by the Sweetwater Union High School District.
BOARDS/COMMISSIONS RECOMMENDATION: The Safety Commission discussed this
signal at its November 10, 1994 meeting and accepted staff's report regarding traffic concerns at
Bonita Vista High School. The proposed signal location was evaluated and ranked 10th out of 15
intersections. The report was forwarded to Sweetwater District staff with the provision that the
signal could be constructed in the event that the District chose to fund the installation costs (copy
of the Safety Commission meeting minutes excerpt is attached).
DISCUSSION: Plans for the construction of the left turn lanes on Gtay Lakes Road project
are about 90% complete. During the last few months, staff has met with representatives of the
Sweetwater District and Southwestern College to obtain gratis dedication of right-of-way needed to
construct the project. Meetings with Southwestern College staff are still going on and we expected
to conclude in the next two months. We have obtained a tentative agreement with the Sweetwater
District stafffor the right-of-way that requires modification of the Council approved CIP project
scope.
II- J
___. ··...._·,·.·._·N__·'''._,.._.~__~_,_ ,._, ..____... _~,.__
Page 2, Item
Meeting Date 2/25/97
Specifically to obtain the needed 26,688 sq. ft. of right-of-way adjacent to Bonita Vista High School
and accommodate the project, we would widen Otay Lakes Road to its ultimate width adjacent to
the high school from the intersection of East "H" Street to approximately 500 feet northerly, regrade
the area of the campus immediately to the east of the new right-of-way line, install landscape and
irrigation systems, construct a new alley-type driveway, erect a keystone retaining wall at the
northeast comer of the intersection to make an ADA compatible entrance to the campus, relocate the
school marquee, reconstruct the East "H" Street medians and restore the campus to an "equal or
better" condition in the area affected by the proposed work. We estimate the value of this work to
be about $400,000, all of which is required as part ofthe road project.
In addition to this work, Sweetwater District staff has requested that a traffic signal be installed at
the Bonita Vista High East "H" Street entrance. The cost of this traffic signal work is estimated to
be about $125,000. Subject to Council approval of this traffic signal installation, we would be
prepared to construct it either as part of the dual left turn lanes project or as a separate project at a
later time.
An appraisal of the value of the right-of-way required was prepared by Lipman Stevens Marshall &
Thene, Inc., who are currently under the annual contract to prepare appraisals for all right-of-way
acquisition. That appraisal, dated December 31, 1996 values the needed right-of~way at $235,000.
Thus, if approved by Council, in exchange for the right-of-way, the City would cause to be installed
improvements worth about $525,000 ($400,000 Street and $125,000 Traffic Signa,) adjacent to the
Bonita Vista High School campus. These improvements would be of benefit to both the District
and to the City. Schools in this area produce about 30% of the traffic, therefore, staff believes that
the signal and project is a fair trade for the right of way.
Funding for the installation of the traffic signal could be obtained from the land acquisition
allocation approved for the project and no additional appropriation of funds would be required.
FISCAL IMP ACT: In addition to the improvement work adjacent to Bonita Vista High School
(valued at about $400,000), the Sweetwater District would like to have a traffic signal installed at
the school's East "H" Street entrance (valued at about $125,000) in exchange for gratis dedication
ofright-of-way (valued at about $235,000) needed to construct the project.
Funds for the acquisition of right-of-way were budgeted for the project which are sufficient to cover
the traffic signal installation costs. Therefore, the traffic signal could be installed in conjunction
with the originally budgeted left turn lanes project (STM322).
Exhibit A Plat, Otay Lakes Rd.~ Lanes M:\home\engineer\agenda\STM322.rs
B Excerpts - Safety Co . n Minutes, 11110/94 February 20, 1997 (11 :21arn)
~O~
II-~
.-".-.......----.-.........--
RESOLUTION NO. l8'n/
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA AUTHORIZING THE EXPENDITURE OF
FUNDS TO INSTALL A TRAFFIC SIGNAL AT THE
BONITA VISTA HIGH SCHOOL EAST "H" STREET
ENTRANCE IN EXCHANGE FOR RIGHT-OF-WAY
DEDICATION FOR THE CONSTRUCTION OF THE OTAY
LAKES ROAD DUAL LEFT TURN LANES PROJECT (STM-
322)
WHEREAS, the FY 96-97 Capital Improvement Program (CIP)
budget contains a project to provide dual left turn lanes on Otay
Lakes Road (north and south bound approaches) at East "H" Street
and provide an additional through lane in each direction; and
WHEREAS, to construct the project, it is necessary to
obtain right-of-way from both the Sweetwater Union High School
District (in front of Bonita vista High School) and Southwestern
College (in front of their vacant lot at the southwest corner of
the intersection); and
WHEREAS, negotiations with both agencies are underway and
the City has reached a tentative agreement with the Sweetwater
District; and
WHEREAS, this tentative agreement would require that the
City commit to the construction of a traffic signal at the Bonita
Vista High School East "H" Street entrance in exchange for the
right-of-way, a change in scope from the Council approved CIP
project.
NOW, THEREFORE, BE IT RESOLVED the City Council of the
City of Chula Vista does hereby authorize the expenditure of
$125,000 to install a traffic signal at the Bonita vista High
School East "H" Street entrance in exchange for right-of-way
dedication for the construction of the Otay Lakes Road dual left
turn lanes project (STM-322).
BE IT FURTHER RESOLVED that staff is directed to complete
the plans and specifications for the installation of a traffic
signal at the Bonita vista High School East H Street entrance in
exchange for gratis dedication of right-of-way by the Sweetwater
Union High School District.
Presented by Approved as to form by
~
John P. Lippitt, Director of Kaheny, torney
Public Works
c: \rs\sta322
1/- ;J
_...... ----_._.~-_.- ,._~_._.__._----,.. -----.-..-...-.----... .~---_.~-_.._.._...._-_..,------
I' I I
~
~. lJR/VErAY - ~
C>
~~ ~
R,
II) C>
..., ~
~
0...1 <> I ~ ~
ë;; r
C> r ~ ~
C> <.> ¡.,
~ r;: ~ k:I ~
... , U . . ....
~ I 0...1
r ~ - ~
Ct¡ I ~ "
10 . .
~ ~ . ~
::t: . ~ ~ ~
I .... .
a I 0.. . .
~ ~ ~ I . .
~ = = ~ " Q, ~
~ ¿ ¿ = C>
:? ~ ~ :I ~
~ ~ ~ ~ ).
E--; ... ~
Ct¡ ....
:;: : I
~
~
C>
Q¡
, .
i ~ i
I
¡., ~ = ~
= I k:I ~ ~
r ~ ~ ~
~ I ' .
VJ ~ ~
~ r k:I · ·
r ~ g
:¡; I ;t: .
\~~ ~
: I :::¡
,
'>:;,~ '¡., I C>
,,,, I ~
'\, Ct¡
y'
, I
, I ,
, I
/
PROJECT FlLE ISTM- 322
CITY If VIST PREPARED BY,
DT A Y LAKES RD,DUAL LEFT TURN LANES CESAR HAGBUHAT
EXHIBIT 'A' //- APPROVED BY:
.-.'...--..-...---
EXHIBIT ß
Safety Commission Minutes
November 10, 1994
"~ Page 4
,
6. REPdRT on Traffic Concems at Bonita Vista High School
Frank Rivera presented staff's report.
Hal Rosenberg said staff's position regarding the signal was that signal funds were a limited resource and the
money needed to be spent on the highest volume signals. The widening project of East H Street was in the
City's FY 94-95 CIP.
Tom Silva, Sweetwater Union High School District, 1730 Fifth A\It!nue, Chula Vista G4 91917, represented
Bonita Vista High School and commended staff for working with the District. He commented that Frank Rivera
had met with District staff on his day off which showed commitment and he wanted it known. He understood
that the intersection for Bonita Vista High School had been reviewed and was on the list to receive a traffic
signal at a future date. The District was asking that the signal installation be accelerated. The District faced
budget cut backs including transportation funding. Students had to pay to ride the bus which had increased
the number of vehicles into the school since more parents were dropping off and picking up their children.
He understood and supported staff's recommendation. However, if the City could not support a signal for the
current year, District staff would like to look at alternative measures. One alternative might be to eliminate
eastbound traffic out of the parking lot so that it would be right turn only and eliminate safety concerns. --
Chair Thomas asked staff what other alternatives might be available.
Frank Rivera said that without knowing the costs involved, the driveway on East H Street might be closed with .
- a left turn phasing added at Auburn, so the motorist could make a protected U-tum at Auburn and make a
right tum into the school. However, whenever staff recommended an ·access closure, there was usually
opposition. Staff was willing to look at other alternatives.
Mr. Silva asked staff for clarification on the recommendation mentioned.
Frank Rivera clarified the suggestion but indicated he did not know what effect it would have on the school
bus pattems.
Mr. Silva indicated that the smaller buses used the East H Street driveway and he did not wish to make it hard
for the transportation department to get around the school. The District had looked at eliminating all
transportation to the campus, except through the East H Street driveway and could not support closing off the
driveway.
Frank Rivera said staff offered the District the opportunity to review the design plans for the Otay lakes
Road/East H Street intersection and incorporate any suggestion the District might have as it related to the
school. Also, any suggestions the Commission had would be presented to the Engineering design section.
Hal Rosenberg indicated that the purpose of the report was to address the most recent request ánd the two
primary issues being the crosswalk and the acceleration of the signal. There were other alternatives. Staff
needed to look at the driveway entrance off of East H Street and what the problems were. left tums entering
the driveway across two lanes of traffic usually did not present a problem, but exit turns across two lanes to
merge into two additional lanes caused problems. The solution was the installation of a modified left tum
pocket which would allow traffic into the school driveway but would only allow right turns out to westbound
East H Street. With regard to the signal, if the District donated some or all of funds for the signal the City
would be able to proceed with the signal at an accelerated rate.
Mr. Silva said the District was putting together a proposal for funding for school upgrades and he would speak
to his supervisor about adding the signal installation to the list of items needing funding.
1/-'>
- .~-_. -..- -'.---.-- ..' - - ^ -----,--...- --.---
EXHIBIT .ß
Safety Commission Minutes
November 10, 1994
Page 5
, Commissioner Smith asked Mr. Silva if the District had a program for carpooling.
,
Mr. Silva said the District encouraged carpooling but did not have a formal plan.
7. REPORT Safety Commission Policy Granting Additional Authority
Frank Rivera and Hal Rosenberg reviewed the changes made by the City Attorney and City Engineer.
Discussion occurred on various aspects of the policy.
Chair Thomas was under the impression that the policy would streamline the amount of items that needed to
go before the City Council for final decision and resolution.
Hal Rosenberg indicated that it was one part of streamlining the process.
Chair Thomas asked about the appeal process.
--
Hal Rosenberg said if the commIssion unanimously approved staff's recommendation in denial of a citizen
request, the matter was final and was not appealable to Council. If a member of the Commission voted against
staff's recommendation and supported the citizen request, the item was appealable to Council.
Commissioner Smith and Chair Thomas said they thought that previously the policy stated that two members
of the Commission needed to vote against an item before it could be appealed.
Frank Rivera said any vote required four commissioners in order to carry.
In the instance of five commissioners present, the commissioners felt that one descending vote would be
enough to make the item appealable. If the item were not appealable the citizen could feel penalized since
some commission members were absent. The number of votes needed for appeal was discussed in various
scenarios.
Vice Chair Padilla said despite the policy, there would be items that went to Council anyway because he felt
no policy could prohibit a citizen from taking an item to the City Council. However, the Commission needed
to,do their best effort to trim the items going to Council.
Commissioner liken asked to have the appeal process clarified by the City Attorney as to number of votes
needed for an item to be appealed.
Oral Communications - None ,
8.
STAFF REPORTS
¡
9. Enl!ineerin2 CIP Proiect Schedule - Distributed for Commissioner information.
10. Chula Vista Police Deoartment Traffic Summary for AullUst 1994 _ Distributed for Commissioner I
Information. I
II-~
__,____.._______ ___m··__·__·_____.._w - ___~_.__,___. _.__.___..__m_.
COUNCIL AGENDA STATEMENT
Item 1.1.
Meeting Date 2/25/97
ITEM TITLE: A. Resolution J r'.I't"'taiving consultant selection process and
approving agreement with Dwight Worden, Esq. for legal services
concerning the Metro Sewer System.
B. R l' , rf~'1 1 l' d'
eso ution alvmg consu tant se ection process an approvmg
agreement with Dudek and Associates for Engineering Services
concerning the Metro Sewer System.
SUBMITTED BY: Director of Public Works ~
REVIEWED BY: City Manager fjf (4/5ths Vote: Yes _ No-X.)
Chula Vista had retained the legal services of Dwight Worden, Esq. and Engineering Services
of Dudek and Associates to assist us in dealing with the City of San Diego and the other Metro
Participating Agencies in developing a system and Agreement to operate and pay for the Metro
Sewer System. There are still significant issues to be resolved and regional agreements to be
completed in the next year. Staff believes the services of the Consultants will be beneficial and
since the past contracts have expired, new agreements need to be executed.
RECOMMENDATION:
That Council approve the resolutions approving contracts with Dwight Worden for legal services
and Dudek and Associates for engineering services concerning the Metro Sewer System and
waiving the consultant selection process.
BOARDS/COMMISSIONS RECOMMENDATION: Not applicable.
DISCUSSION:
As part of the ongoing negotiations related to the Metro Sewer System, a CIP project #205,
Sewer Upgrade, Consultant Services was originally adopted in FY 1992. A total of $432,000
was appropriated to fund consultants to evaluate financial and legal requirements and provide
recommendations for wastewater collections and· treatment. In 1991 the City entered into
agreements with 3 firms for Consulting services in assisting the City in dealing with the Metro
Sewer issues. These firms were:
/.).""/
'H --....-....-..-.--------. -_._-_.~.._..._.__.~._---_._.,.._--~_..
Item
Page 2, Meeting Døte 2/25/97
Dudek and Associates Engineering $40,000 $80,000
Dwight Worden Legal $20,000 $30,000
Deloitte and Touche Financial $20,000 $60,000
The Contract for Deloitte and Touche has been completed however, there is still a need to
continue the services of Dwight Worden and Dudek and Associates. Both Mr. Worden and Mr.
Dudek, combined with the Assistant City Manager and Director of Public Works have comprised
the "Sewer Team" which act as an advisory team to the City Manager and City Council. We
meet as needed assign tasks to the team members to deal with the issues presented by the City
of San Diego and AFFORD. It is anticipated that Mr. Worden's efforts will be needed to a
greater extent during the next year. His primary tasks will include:
1. Keeping the City advised of the continuing Court action of USA vs City of San Diego.
2. Attending meetings between the attorneys and Staffs of the participating Agencies.
3. Meeting with the "Sewer Team" on an as needed basis.
4. Reviewing contracts and agreements between the City of San Diego and AFFORD group
as well as meet in negotiations on those agreements.
5. Attending Council meetings to advise the Council on Sewer Matters.
6. Assist the City Attorney in dealing with the City of San Diego on the above matters.
Mr Dudek's duties will be to assist the staff as requested in reviewing engineering and cost
matters and also to attend Council meetings and "Sewer Team" meetings as requested.
Waivine: the Bid Process
While no additional appropriation is needed to continue the services of these two consultants,
new contracts for services will have to be executed since the prior contracts have expired. It
is recommended that Council wave the procedure of advertizing for Consultants. The reasons
for the waivers are:
1 These two Consultants have been involved with the Metro Sewer Issue since 1991 and
their knowledge and background are very valuable.
12-'-.
--.-.--.---- -- --~_.,---..__..._-_.._._~
Item
Page 3, Meeting Dale 2/25/97
2. Mr. Worden is the attorney of record for the City of Chula Vista in the case of USA vs
City of San Diego, of which we are an amicus. That trial is still proceeding and Mr.
Worden has followed the case very closely.
3. To advertize and hire different consultants would not be as beneficial to the City since
considerable time would have to be expended in bringing the new Consultants up to
speed on the many years of negotiations and dealings with the City of San Diego.
Since June of 1994, when Chula Vista left the Special Act District, staff had not used the
consultants very much until August of 1996, when Chula Vista decided to join the AFFORD
group. Between June of 1994 and August of 1996 most of the effort was by the City Staff and
the City Attorney. However, after the former City Attorney left the City employment, staff had
to use Mr. Worden's services to a much greater extent than originally anticipated. The City of
Chula Vista was involved with negotiations between the Participating Agencies and the City of
San Diego in developing the "Principles of Understanding" and needed legal advice on many of
the issues raised in the Principles.
In December of 1996, we received a billing from Mr. Worden that exceeded the amount
available in the former contract, although there are sufficient funds in the ClP project. Chula
Vista will be heavily involved in developing a new or amended Agreement for Sewer Service
during the next 12 months or so. The Principles of Understanding set a goal of November of
1997 to have such an agreement.
Staff recommends that new contracts be established for both Dudek and Associates and D.
Dwight Worden which will remain in effect to the end of June 30, 1998. It is recommended that
the contract for D. Dwight Worden be set at an amount not to exceed $30,000. It is also
recommended that the City Manager be authorized to extend the contract time limit in the future
provided that the available funds have not been expended. Increasing funding for either contract
would require Council approval.
The City Attorney has reviewed this report and the Agreements and has approved them.
FISCAL IMPACT: Dudek and Associates former Contract still has available $17,021 which
will be used to fund the new contract.. Mr. Worden's Contract only has $171 left. The new
Worden Contract will be for $30,000. After paying currently due bills of $12,441.17, the
amount remaining in the Contract will be $17,730. Adequate funds are available in ClP Project
Sw-205 -Metro Sewer Upgrade, Consultant Services for this contract.
Attachments: Agreements
M:\HOMB\ENOINBBR.\AOENDA\WORDPN3.JPL
Fcbnwy 20, t997 (W,34am)
l.t ".3
-.----.-..-...--.--..-....--....--.-
RESOLUTION NO. 19'.œ¿,
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA WAIVING CONSULTANT SELECTION
PROCESS AND APPROVING AGREEMENT WITH DWIGHT
WORDEN, ESQ. FOR LEGAL SERVICES CONCERNING THE
METRO SEWER SYSTEM
WHEREAS, Chula vista has retained the legal services of
Dwight Worden, Esq. to assist in dealing with the City of San Diego
and the other Metro Participating Agencies in developing a system
and Agreement to operate and pay for the Metro Sewer System; and
WHEREAS, there are still significant issues to be
resolved and regional agreements to be completed in the next year,
therefore, staff believes the services of Dwight Worden will be
beneficial.
NOW, THEREFORE, BE IT RESOLVED the City Council of the
City of Chula vista does hereby waive the bidding requirements of
Section 2.576.070 and waive the consultant selection process for
the following reasons:
1. Dwight Worden, Esq. has been involved with the
Metro Sewer Issue since 1990 and his knowledge and
background are very valuable.
2. Mr. Worden is the attorney of record for the city
of Chula Vista in the case of USA v. city of San
Diego, of which we are an amicus. That case is
still active and Mr. Worden has followed the case
very closely.
3. To advertise and hire different a consultant would
not be as beneficial to the City since considerable
time would have to be expended in bringing the new
Consultant up to speed on the many years of
negotiations and dealings with the city of San
Diego.
BE IT FURTHER RESOLVED that the City Council does hereby
approve an Agreement with Dwight Worden, Esq. for Legal Services
concerning City of Chula vista and the Metro Sewer System, a copy
of which is on file in the office of the city Clerk.
BE IT FURTHER RESOLVED that the Mayor of the City of
Chula vista is hereby authorized and directed to execute said
Agreement for and on behalf of the City of Chula Vista.
Presented by Approved as to form by
John P. Lippitt, Director of
Public Works
c: \ rs\worden.8Xt
/.J./I- /
~...."_..._--~._----_._.._.._--_._,,-~_.,,
Agreement between
City of Chula Vista
and
Dwight Worden, APC
for
Legal Services
This agreement, dated for the purposes of
reference only, and effective as of the date last executed unless
another date is otherwise specified in Exhibit A, Paragraph 1 is
between the City-related entity as is indicated on Exhibit A,
paragraph 2, as such ("City") , whose business form is set forth on
Exhibit A, paragraph 3, and the entity indicated on the attached
Exhibit A, paragraph 4, as Consultant, whose business form is set
forth on Exhibit A, paragraph 5, and whose place of business and
telephone numbers are set forth on Exhibit A, paragraph 6
( "Consul tant ") , and is made with reference to the following facts:
Recitals
Whereas, In 1991 City entered into a Contract with
Consultant for Legal Services in regard to obtaining legal
advice in dealing with the Metropolitan Sewer System owned by the
City of San Diego; and,
Whereas, Chula Vista has left the Special Act District, and
has approved the "Principles of Understanding" as a basis for new
or modified Agreements between the City of San Diego and the
Participating Agencies and needs continuing legal services in
this field for the future; and,
Whereas, Consultant warrants and represents that they are
experienced and staffed in a manner such that they are and can
prepare and deliver the services required of Consultant to City
2pty9.wp Standard Form Two Party Agreement (Fourth Revision)
November 2, 1993 Page 1
IJ.A-;J,..
-.'..---.-.'..---'-"-'--.- .._-"-
within the time frames herein provided all in accordance with the
terms and conditions of this Agreement;
NOW, THEREFORE, BE IT RESOLVED that the City and Consultant
do hereby mutually agree as follows:
1. Consultant's Duties
A. General Duties
Consultant shall perform all of the services described on
the attached Exhibit A, Paragraph 7, entitled "General Duties" i
and,
B. Scope of Work and Schedule
In the process of performing and delivering said "General
Dutiesll , Consultant shall also perform all of the services
described in Exhibit A, Paragraph 8, entitled " Scope of Work and
Schedule" , not inconsistent with the General Duties, according
to, and within the time frames set forth in Exhibit A, Paragraph
8, and deliver to City such Deliverables as are identified in
Exhibit A, Paragraph 8, within the time frames set forth therein,
time being of the essence of this agreement. The General Duties
and the work and deliverables required in the Scope of Work and
Schedule shall be herein referred to as the "Defined Services".
Failure to complete the Defined Services by the times indicated
does not, except at the option of the City, operate to terminate
this Agreement.
C. Reductions in Scope of Work
City may independently, or upon request from Consultant,
from time to time reduce the Defined Services to be performed by
the Consultant under this Agreement. Upon doing so, City and
Consultant agree to meet in good faith and confer for the purpose
of negotiating a corresponding reduction in the compensation
associated with said reduction.
2pty9 . wp Standard Form Two Party Agreement (Fourth Revision)
November 2, 1993 Page 2
I~A"'J
-----. . "' __'____m ____
D. Additional Services
In addition to performing the Defined Services herein set
forth, City may require Consultant to perform additional
consulting services related to the Defined Services ( "Additional
Services") , and upon doing so in writing, if they are within the
scope of services offered by Consultant, Consultant shall perform
same on a time and materials basis at the rates set forth in the
"Rate Schedule" in Exhibit A, Paragraph 11 (C) , unless a separate
fixed fee is otherwise agreed upon. All compensation for
Additional Services shall be paid monthly as billed.
E. Standard of Care
Consultant, in performing any Services under this agreement,
whether Defined Services or Additional Services, shall perform in
a manner consistent with that level of care and skill ordinarily
exercised by members of the profession currently practicing under
similar conditions and in similar locations.
F. Insurance
Consultant represents that it and its agents, staff and
subconsultants employed by it in connection with the Services
required to be rendered, are protected against the risk of loss
by the following insurance coverages, in the following categor-
ies, and to the limits specified, policies of which are issued by
Insurance Companies that have a Best's Rating of IIA, Class V" or
better, or shall meet with the approval of the City:
Statutory Worker's Compensation Insurance and Employer's
Liability Insurance coverage in the amount set forth in the
attached Exhibit A, Paragraph 9.
Commercial General Liability Insurance including Business
Automobile Insurance coverage in the amount set forth in Exhibit
A, Paragraph 9, combined single limit applied separately to each
project away from premises owned or rented by Consultant, which
names City and Applicant as an Additional Insured, and which is
primary to any policy which the City may otherwise carry
( "Primary Coverage") , and which treats the employees of the City
2pty9.wp Standard Form Two Party Agreement (Fourth Revision)
November 2, 1993 Page 3
IJ"·'¡
-- - -""-.".-.,-----..-...-"
and Applicant in the same manner as members of the general public
("Cross-liability Coverage") .
Errors and Omissions insurance, in the amount set forth in
Exhibit A, Paragraph 9, unless Errors and Omissions coverage is
included in the General Liability policy.
G. Proof of Insurance Coverage.
(1) Certificates of Insurance.
Consultant shall demonstrate proof of coverage herein
required, prior to the commencement of services required under
this Agreement, by delivery of Certificates of Insurance
demonstrating same, and further indicating that the policies may
not be canceled without at least thirty (30) days written notice
to the Additional Insured.
(2) Policy Endorsements Required.
In order to demonstrate the Additional Insured
Coverage, Primary Coverage and Cross-liability Coverage required
under Consultant's Commercial General Liability Insurance Policy,
Consultant shall deliver a policy endorsement to the City
demonstrating same, which shall be reviewed and approved by the
Risk Manager.
H. Security for Performance.
(1) Performance Bond.
In the event that Exhibit A, at Paragraph 19, indicates
the need for Consultant to provide a Performance Bond (indicated
by a check mark in the parenthetical space immediately preceding
the subparagraph entitled "Performance Bond"), then Consultant
shall provide to the City a performance bond by a surety and in a
form and amount satisfactory to the Risk Manager or City
2pty9.wp Standard Form Two Party Agreement (Fourth Revision)
November 2, 1993 Page 4
I ~,,-5'
---,.....- -- - ---- ."-- - - .~-------- -----
Attorney" which amount is indicated in the space adjacent to the
term, uPerformance Bondll, in said Paragraph 19, Exhibit A.
(2) Letter of Credit.
In the event that Exhibit A, at Paragraph 19, indicates
the need for Consultant to provide a Letter of Credit (indicated
by a check mark in the parenthetical space immediately preceding
the subparagraph entitled "Letter of Credit"), then Consultant
shall provide to the City an irrevocable letter of credit
callable by the City at their unfettered discretion by submitting
to the bank a letter, signed by the City Manager, stating that
the Consultant is in breach of the terms of this Agreement. The
letter of credit shall be issued by a bank, and be in a form and
amount satisfactory to the Risk Manager or City Attorney which
amount is indicated in the space adjacent to the term, "Letter of
Credit" , in said Paragraph 19, Exhibit A.
(3 ) Other Security
In the event that Exhibit A, at Paragraph 19, indicates
the need for Consultant to provide security other than a
Performance Bond or a Letter of Credit (indicated by a check mark
in the parenthetical space immediately preceding the subparagraph
entitled "Other Security") , then Consultant shall provide to the
City such other security therein listed in a form and amount
satisfactory to the Risk Manager or City Attorney.
I. Business License
Consultant agrees to obtain a business license from the City
and to otherwise comply with Title 5 of the Chula Vista Municipal
Code.
1. The City Attorney's Office prefers that you obtain approval
of the surety or bank, the form of the security and the amount of
the security from the Risk Manager in the first instance and not
the City Attorney. The City Attorney's office would be available
on such risk issues as an alternate only if the Risk Manager is
unavailable and the matter can't wait.
2pty9.wp Standard Form Two Party Agreement (Fourth Revision)
November 2, 1993 Page 5
1~19'~
-- -~- _.._-----_.._"_._--_.~._"..~--
2 . Duties of the City
A. Consultation and Cooperation
City shall regularly consult the Consultant for the purpose
of reviewing the progress of the Defined Services and Schedule
therein contained, and to provide direction and guidance to
achieve the objectives of this agreement. The City shall permit
access to its office facilities, files and records by Consultant
throughout the term of the agreement. In addition thereto, City
agrees to provide the information, data, items and materials set
forth on Exhibit A, Paragraph 10, and with the further
understanding that delay in the provision of these materials
beyond 30 days after authorization to proceed, shall constitute a
basis for the justifiable delay in the Consultant's performance
of this agreement.
B. Compensation
Upon receipt of a properly prepared billing from Consultant
submitted to the City periodically as indicated in Exhibit A,
Paragraph 18, but in no event more frequently than monthly, on
the day of the period indicated in Exhibit A, Paragraph 18, City
shall compensate Consultant for all services rendered by Consult-
ant according to the terms and conditions set forth in Exhibit A,
Paragraph 11, adjacent to the governing compensation relationship
indicated by a "checkmarkll next to the appropriate arrangement,
subject to the requirements for retention set forth in paragraph
19 of Exhibit A, and shall compensate Consultant for out of
pocket expenses as provided in Exhibit A, Paragraph 12.
All billings submitted by Consultant shall contain
sufficient information as to the propriety of the billing to
permit the City to evaluate that the amount due and payable
thereunder is proper, and shall specifically contain the City's
account number indicated on Exhibit A, Paragraph 18 (C) to be
charged upon making such payment.
3 . Administration of Contract
2pty9.wp Standard Form Two Party Agreement (Fourth Revision)
November 2, 1993 Page 6
IJ..A-?
..-.,....---.-...
Each party designates the individuals ( "Contract
AdministratorslI) indicated on Exhibit A, Paragraph 13, as said
party's contract administrator who is authorized by said party to
represent them in the routine administration of this agreement.
4. Term.
This Agreement shall terminate when the Parties have
complied with all executory provisions hereof, or on June 30,
1998, unless the time is extended by the City Manager.
S . Liquidated Damages
The provisions of this section apply if a Liquidated Damages
Rate is provided in Exhibit A, Paragraph 14.
It is acknowledged by both parties that time is of the
essence in the completion of this Agreement. It is difficult to
estimate the amount of damages resulting from delay in per-
formance. The parties have used their judgment to arrive at a
reasonable amount to compensate for delay.
Failure to complete the Defined Services within the allotted
time period specified in this Agreement shall result in the
following penalty: For each consecutive calendar day in excess
of the time specified for the completion of the respective work
assignment or Deliverable, the consultant shall pay to the City,
or have withheld from monies due, the sum of Liquidated Damages
Rate provided in Exhibit A, Paragraph 14 ("Liquidated Damages
Rate") .
Time extensions for delays beyond the consultant's control,
other than delays caused by the City, shall be requested in
writing to the City's Contract Administrator, or designee, prior
to the expiration of the specified time. Extensions of time,
when granted, will be based upon the effect of delays to the work
and will not be granted for delays to minor portions of work
unless it can be shown that such delays did or will delay the
progress of the work.
6. Financial Interests of Consultant
2pty9 . wp Standard Form Two Party Agreement (Fourth Revision)
November 2, 1993 Page 7
J~I9·r
.... __ mu__ _...._,.-._.,....._--_.__._-_._._..--~
A. Consultant is Designated as an FPPC Filer.
If Consultant is designated on Exhibit A, Paragraph 15, as
an "FPPC filer", Consultant is deemed to be a "Consultant" for
the purposes of the Political Reform Act conflict of interest and
disclosure provisions, and shall report economic interests to the
City Clerk on the required Statement of Economic Interests in
such reporting categories as are specified in Paragraph 15 of
Exhibit A, or if none are specified, then as determined by the
City Attorney.
B. Decline to Participate.
Regardless of whether Consultant is designated as an FPPC
Filer, Consultant shall not make, or participate in making or in
any way attempt to use Consultant's position to influence a
governmental decision in which Consultant knows or has reason to
know Consultant has a financial interest other than the
compensation promised by this Agreement.
C. Search to Determine Economic Interests.
Regardless of whether Consultant is designated as an FPPC
Filer, Consultant warrants and represents that Consultant has
diligently conducted a search and inventory of Consultant's
economic interests, as the term is used in the regulations
promulgated by the Fair Political Practices Commission, and has
determined that Consultant does not, to the best of Consultant's
knowledge, have an economic interest which would conflict with
Consultant's duties under this agreement.
D. Promise Not to Acquire Conflicting Interests.
Regardless of whether Consultant is designated as an FPPC
Filer, Consultant further warrants and represents that Consultant
will not acquire, obtain, or assume an economic interest during
the term of this Agreement which would constitute a conflict of
interest as prohibited by the Fair Political Practices Act.
E. Duty to Advise of Conflicting Interests.
2pty9.wp Standard Form Two Party Agreement (Fourth Revision)
November 2, 1993 Page 8
J-'-/J -,
-"-.------..----.-
Regardless of whether Consultant is designated as an FPPC
Filer, Consultant further warrants and represents that Consultant
will immediately advise the City Attorney of City if Consultant
learns of an economic interest of Consultant's which may result
in a conflict of interest for the purpose of the Fair Political
Practices Act, and regulations promulgated thereunder.
F. Specific warranties Against Economic Interests.
Consultant warrants and represents that neither Consultant,
nor Consultant's immediate family members, nor Consultant's
employees or agents ("Consultant Associates") presently have any
interest, directly or indirectly, whatsoever in any property
which may be the subject matter of the Defined Services, or in
any property within 2 radial miles from the exterior boundaries
of any property which may be the subject matter of the Defined
Services, ("Prohibited Interest"), other than as listed in
Exhibit A, Paragraph 15.
Consultant further warrants and represents that no promise
of future employment, remuneration, consideration, gratuity or
other reward or gain has been made to Consultant or Consultant
Associates in connection with Consultant's performance of this
Agreement. Consultant promises to advise City of any such
promise that may be made during the Term of this Agreement, or
for 12 months thereafter.
Consultant agrees that Consultant Associates shall not
acquire any such Prohibited Interest within the Term of this
Agreement, or for 12 months after the expiration of this
Agreement, except with the written permission of City.
Consultant may not conduct or solicit any business for any
party to this Agreement, or for any third party which may be in
conflict with Consultant's responsibilities under this Agreement,
except with the written permission of City.
7. Hold Harmless
Consultant shall defend, indemnify, protect and hold
harmless the City, its elected and appointed officers and
2pty9.wp Standard Form Two Party Agreement (Fourth Revision)
November 2, 1993 Page 9
IJ./J-/(J
--""^--,,._-
employees, from and against all claims for damages, liability,
cost and expense (including without limitation attorneys' fees)
arising out of the conduct of the Consultant, or any agent or
employee, subcontractors, or others in connection with the
execution of the work covered by this Agreement, except only for
those claims arising from the sole negligence or sole willful
conduct of the City, its officers, or employees. Consultant's
indemnification shall include any and all costs, expenses,
attorneys' fees and liability incurred by the City, its officers,
agents, or employees in defending against such claims, whether
the same proceed to judgment or not. Further, Consultant at its
own expense shall, upon written request by the City, defend any
such suit or action brought against the City, its officers,
agents, or employees. Consultants' indemnification of City shall
not be limited by any prior or subsequent declaration by the
Consultant.
8 . Termination of Agreement for Cause
If, through any cause, Consultant shall fail to fulfill in a
timely and proper manner Consultant's obligations under this
Agreement, or if Consultant shall violate any of the covenants,
agreements or stipulations of this Agreement, City shall have the
right to terminate this Agreement by giving written notice to
Consultant of such termination and specifying the effective date
thereof at least five (5) days before the effective date of such
termination. In that event, all finished or unfinished documents,
data, studies, surveys, drawings, maps, reports and other
materials prepared by Consultant shall, at the option of the
City, become the property of the City, and Consultant shall be
entitled to receive just and equitable compensation for any work
satisfactorily completed on such documents and other materials up
to the effective date of Notice of Termination, not to exceed the
amounts payable hereunder, and less any damages caused City by
Consultant's breach.
9 . Errors and Omissions
In the event that the City Administrator determines that the
Consultants' negligence, errors, or omissions in the performance
of work under this Agreement has resulted in expense to City
2pty9.wp Standard Form Two Party Agreement (Fourth Revision)
November 2, 1993 Page 10
1;l/l'J/
.~_._" ~ -
greater than would have resulted if there were no such
negligence I errors, omissions, Consultant shall reimburse City
for any additional expenses incurred by the City. Nothing herein
is intended to limit City's rights under other provisions of this
agreement.
10. Termination of Agreement for Convenience of City
City may terminate this Agreement at any time and for any
reason, by giving specific written notice to Consultant of such
termination and specifying the effective date thereof, at least
thirty (30) days before the effective date of such termination.
In that event, all finished and unfinished documents and other
materials described hereinabove shall, at the option of the City,
become City's sole and exclusive property. If the Agreement is
terminated by City as provided in this paragraph, Consultant
shall be entitled to receive just and equitable compensation for
any satisfactory work completed on such documents and other
materials to the effective date of such termination. Consultant
hereby expressly waives any and all claims for damages or
compensation arising under this Agreement except as set forth
herein.
11. Assignability
The services of Consultant are personal to the City, and
Consultant shall not assign any interest in this Agreement, and
shall not transfer any interest in the same (whether by
assignment or novation), without prior written consent of City.
City hereby consents to the assignment of the portions of the
Defined Services identified in Exhibit A, Paragraph 17 to the
subconsultants identified thereat as "Permitted Subconsultants".
12. Ownership, Publication, Reproduction and Use of Material
All reports, studies, information, data, statistics, forms,
designs, plans, procedures, systems and any other materials or
properties produced under this Agreement shall be the sole and
exclusive property of City. No such materials or properties
produced in whole or in part under this Agreement shall be
subject to private use, copyrights or patent rights by Consultant
2pty9.wp Standard Form Two Party Agreement (Fourth Revision)
November 2, 1993 Page 11
1 tl. ,f --1..2..
-_.......--,---~.- - _._._----~--~--,....__.,....~.-
in the United States or in any other country without the express
written consent of City. City shall have unrestricted authority
to publish, disclose (except as may be limited by the provisions
of the Public Records Act), distribute, and otherwise use,
copyright or patent, in whole or in part, any such reports,
studies, data, statistics, forms or other materials or properties
produced under this Agreement.
13 . Independent Contractor
City is interested only in the results obtained and
Consultant shall perform as an independent contractor with sole
control of the manner and means of performing the services
required under this Agreement. City maintains the right only to
reject or accept Consultant's work products. Consultant and any
of the Consultant's agents, employees or representatives are, for
all purposes under this Agreement, an independent contractor and
shall not be deemed to be an employee of City, and none of them
shall be entitled to any benefits to which City employees are
entitled including but not limited to, overtime, retirement
benefits, worker's compensation benefits, injury leave or other
leave benefits. Therefore, City will not withhold state or
federal income tax, social security tax or any other payroll tax,
and Consultant shall be solely responsible for the payment of
same and shall hold the City harmless with regard thereto.
14. Administrative Claims Requirements and Procedures
No suit or arbitration shall be brought arising out of this
agreement, against the City unless a claim has first been
presented in writing and filed with the City and acted upon by
the City in accordance with the procedures set forth in Chapter
1. 34 of the Chula Vista Municipal Code, as same may from time to
time be amended, the provisions of which are incorporated by this
reference as if fully set forth herein, and such policies and
procedures used by the City in the implementation of same.
Upon request by City, Consultant shall meet and confer in
good faith with City for the purpose of resolving any dispute
over the terms of this Agreement.
2pty9.wp Standard Form Two Party Agreement (Fourth Revision)
November 2, 1993 Page 12
13.~ -1.:1
----_.._..,-,-----,,_..- -'---~-'
15. Attorney's Fees
Should a dispute arising out of this Agreement result in
litigation, it is agreed that the prevailing party shall be
entitled to recover all reasonable costs incurred in the defense
of the claim, including costs and attorney's fees.
16. Statement of Costs
In the event that Consultant prepares a report or document,
or participates in the preparation of a report or document in
performing the Defined Services, Consultant shall include, or
cause the inclusion of, in said report or document, a statement
of the numbers and cost in dollar amounts of all contracts and
subcontracts relating to the preparation of the report or
document.
17. Miscellaneous
A. Consultant not authorized to Represent City
Unless specifically authorized in writing by City, Consult-
ant shall have no authority to act as City's agent to bind City
to any contractual agreements whatsoever.
B. Consultant is Real Estate Broker and/or Salesman
If the box on Exhibit A, Paragraph 16 is marked, the
Consultant and/or their principals is/are licensed with the State
of California or some other state as a licensed real estate
broker or salesperson. Otherwise, Consultant represents that
neither Consultant, nor their principals are licensed real estate
brokers or salespersons.
C. Notices
All notices, demands or requests provided for or permitted
to be given pursuant to this Agreement must be in writing. All
notices, demands and requests to be sent to any party shall be
deemed to have been properly given or served if personally served
or deposited in the United States mail, addressed to such party,
2pty9.wp Standard Form Two Party Agreement (Fourth Revision)
November 2, 1993 Page 13
J.J.~'/~
--.-------------...- -..- --- ---_._..~---_._._._-
postage prepaid, registered or certified, with return receipt
requested, at the addresses identified herein as the places of
business for each of the designated parties.
D. Entire Agreement
This Agreement, together with any other written document
referred to or contemplated herein, embody the entire Agreement
and understanding between the parties relating to the subject
matter hereof. Neither this Agreement nor any provision hereof
may be amended, modified, waived or discharged except by an
instrument in writing executed by the party against which
enforcement of such amendment, waiver or discharge is sought.
E. Capacity of Parties
Each signatory and party hereto hereby warrants and
represents to the other party that it has legal authority and
capacity and direction from its principal to enter into this
Agreement, and that all resolutions or other actions have been
taken so as to enable it to enter into this Agreement.
F. Governing Law/Venue
This Agreement shall be governed by and construed in
accordance with the laws of the State of California. Any action
arising under or relating to this Agreement shall be brought only
in the federal or state courts located in San Diego County, State
of California, and if applicable, the City of Chula Vista, or as
close thereto as possible. Venue for this Agreement, and
performance hereunder, shall be the City of Chula Vista.
2pty9.wp Standard Form Two Party Agreement (Fourth Revision)
November 2, 1993 Page 14
I.2A",~f
~. .._- ----.-.-. .--..
Signature Page
to
Agreement between City of Chula Vista
and
Law Offices of Dwight Worden
for Legal Services
IN WITNESS WHEREOF, City and Consultant have executed this
Agreement thereby indicating that they have read and understood
same, and indicate their full and complete consent to its terms:
Dated: , 19 City of Chula Vista
-
by:
Shirley Horton, Mayor
Attest:
Beverly Authelet, City Clerk
Approved as to form:
John M. Kaheny, City Attorney
Dated: Law Offices of Dwight Worden
By:
Dwight Worden
2pty9.wp Standard Form Two Party Agreement (Fourth Revision)
November 2, 1993 Page 15
1-I.;fJ -/¿
-""....- _._.__._-~._._..._----,,-"-_.- .....--
Exhibit List to Agreement
( X) Exhibit A.
( ) Exhibit B:
2pty9 . wp Standard Form Two Party Agreement (Fourth Revision)
November 2, 1993 Page 16
I:J.;I -17
---, ..-.--.----,---- -----'-
Exhibit A
to
Agreement between
City of Chula Vista
and
Dwight Worden, APC
for
Legal Services
1. Effective Date of Agreement: March 5.1997
2 . City-Related Entity:
(X) City of Chula Vista, a municipal chartered corporation of
the State of California
( ) Redevelopment Agency of the City of Chula Vista, a
political subdivision of the State of California
( ) Industrial Development Authority of the City of Chula
Vista, a
( ) Other: , a
[insert business form]
("City")
3 . Place of Business for City:
City of Chula Vista,
276 Fourth Avenue,
Chula Vista, CA 91910
4. Consultant:
5 . Business Form of Consultant:
( ) Sole Proprietorship
( ) Partnership
(X ) Corporation
*normal rate or $125 whichever is less
2PTY9-A.wp Exhibit A to Standard Form Agreement
June 7, 1995 Page 1
I.2A-I8'
--'''-'-~-'~---- . _._,-. - - ---.
6 . Place of Business, Telephone and Fax Number of Consultant:
462 Stevens Ave. Suite 102
Solana Beach, CA 92075
Voice Phone (619) 755-6604
Fax Phone (619) 755-5198
7. General Duties:
Provide legal consultation on an on-call basis to analyse and
respond to City participation in the Metro Sewer System.
S. Scope of Work and Schedule:
A. Detailed Scope of Work:
1. Attend Key meetings with Chula Vista staff and other
consultants to develop a strategy to respond to various issues in
reaching agreement with the City of San Diego and the Participating
Agencies concerning the Metro Sewer System.
2 . Attend key Metro member Agency meetings, as authorized by the
City staff, to negotiate and participate in the various proposals
that are being presented to the Group.
3. Keep the City Staff informed on the status and make
recommendations on the EPA vs. City of San Diego Lawsuit.
4. Provide other legal services concerning Sewer Issues as
requested by Staff or City Council.
B. Date for Commencement of Consultant Services:
( ) Same as Effective Date of Agreement
(X) Other: October 1. 1996
A. Dates or Time Limits for Delivery of Deliverables:
*normal rate or $125 whichever is less
2PTY9-A.wp Exhibit A to Standard Form Agreement
June 7, 1995 Page 2
/~;f -'1'1
.~._.."...._.._----- --.
Deliverable No. 1 : Not AnDlicable
Deliverable No. 2 :
Deliverable No. 3 :
B. Date for completion of all Consultant services:
June 30, 1998 unless time extended by the City Manager.
9 . Insurance Requirements:
(X) Statutory Worker's Compensation Insurance
( ) Employer's Liability Insurance coverage: $1,000,000.
(X) Commercial General Liability Insurance: $1,000,000.
( ) Errors and Omissions insurance: None Required (included
in Commercial General Liability coverage) .
(X) Errors and omissions Insurance: $250,000 (not included
in Commercial General Liability coverage) .
10. Materials Required to be Supplied by City to Consultant:
NONE
11. Compensation:
A. ( ) Single Fixed Fee Arrangement.
For performance of all of the Defined Services by Consultant
as herein required, City shall pay a single fixed fee in the
amounts and at the times or milestones or for the Deliverables set
forth below:
Single Fixed Fee Amount: , payable as
follows:
Milestone or Event or Deliverable Amount or Percent of Fixed Fee
*normal rate or $125 whichever is less
2PTY9-A.wp Exhibit A to Standard Form Agreement
June 7, 1995 Page 3
/:l4 "~fJ
_···__.'·'_n_~_.__.~_._._.___.
( ) l. Interim Monthly Advances. The City shall make
interim monthly advances against the compensation
due for each phase on a percentage of completion
basis for each given phase such that, at the end of
each phase only the compensation for that phase has
been paid. Any payments made hereunder shall be
considered as interest free loans which must be
returned to the City if the Phase is not
satisfactorily completed. If the Phase is
satisfactorily completed, the City shall receive
credit against the compensation due for that phase.
The retention amount or percentage set forth in
Paragraph 19 is to be applied to each interim
payment such that, at the end of the phase, the
full retention has been held back from the
compensation due for that phase. Percentage of
completion of a phase shall be assessed in the sole
and unfettered discretion by the Contracts
Administrator designated herein by the City, or
such other person as the City Manager shall
designate, but only upon such proof demanded by the
City that has been provided, but in no event shall
such interim advance payment be made unless the
Contractor shall have represented in writing that
said percentage of completion of the phase has been
performed by the Contractor. The practice of
making interim monthly advances shall not convert
this agreement to a time and materials basis of
payment.
B. ( ) Phased Fixed Fee Arrangement.
For the performance of each phase or portion of the Defined
Services by Consultant as are separately identified below, City
shall pay the fixed fee associated with each phase of Services, in
the amounts and at the times or milestones or Deliverables set
*normal rate or $125 whichever is less
2PTY9-A.wp Exhibit A to Standard Form Agreement
June 7, 1995 Page 4
/JA'~J
~----,...._- ..-.----, --_.._.~--_.._-- -,_.._--~._.-
forth . Consultant shall not commence Services under any Phase, and
shall not be entitled to the compensation for a Phase, unless City
shall have issued a notice to proceed to Consultant as to said
Phase.
Phase Fee for Said Phase
l. $
2 . $
3 . $
( ) l. Interim Monthly Advances. The City shall make
interim monthly advances against the compensation
due for each phase on a percentage of completion
basis for each given phase such that, at the end of
each phase only the compensation for that phase has
been paid. Any payments made hereunder shall be
considered as interest free loans which must be
returned to the City if the Phase is not
satisfactorily completed. If the Phase is
satisfactorily completed, the City shall receive
credit against the compensation due for that phase.
The retention amount or percentage set forth in
Paragraph 19 is to be applied to each interim
payment such that, at the end of the phase, the
full retention has been held back from the
compensation due for that phase. Percentage of
completion of a phase shall be assessed in the sole
and unfettered discretion by the Contracts
Administrator designated herein by the City, or
such other person as the City Manager shall
designate, but only upon such proof demanded by the
City that has been provided, but in no event shall
such interim advance payment be made unless the
Contractor shall have represented in writing that
said percentage of completion of the phase has been
performed by the Contractor. The practice of
making interim monthly advances shall not convert
this agreement to a time and materials basis of
*normal rate or $125 whichever is less
2PTY9-A.wp Exhibit A to Standard Form Agreement
June 7, 1995 Page 5
/.211" ..2~
___..~_m__ - --- .~....._._~-_._-_._---~.. ----.---.
payment.
C. (X) Hourly Rate Arrangement
For performance of the Defined Services by Consultant as
herein required, City shall pay Consultant for the productive hours
of time spent by Consultant in the performance of said Services, at
the rates or amounts set forth in the Rate Schedule hereinbelow
according to the following terms and conditions:
(1) ( ) Not-to-Exceed Limitation on Time and Materials
Arrangement
Notwithstanding the expenditure by Consultant of
time and materials in excess of said Maximum Compensation
amount, Consultant agrees that Consultant will perform
all of the Defined Services herein required of Consultant
for $ including all Materials, and other
"reimbursables" ("Maximum Compensation") .
(2) (X ) Limitation without Further Authorization on
Time and Materials Arrangement
At such time as Consultant shall have incurred time
and materials equal to $30.000 ( "Authorization
Limit"), Consultant shall not be entitled to any addi -
tional compensation without further authorization issued
in writing and approved by the City. Nothing herein
shall preclude Consultant from providing additional
Services at Consultant's own cost and expense.
Rate Schedule
Category of Employee Hourly
of Consultant Name Rate
princioal Attorney Dwiaht Worden $130
paraleaal various $75
Other Attornevs $125*
*normal rate or $125 whichever is less
2PTY9-A.wp Exhibit A to Standard Form Agreement
June 7, 1995 Page 6
1.l~'-:J.3
_._..,....._--",-,. -.--.-
( ) Hourly rates may increase by 6% for services
rendered after [month] , 19 , if delay in providing
services is caused by City.
12. Materials Reimbursement Arrangement
For the cost of out of pocket expenses incurred by Consultant
in the performance of services herein required, City shall pay
Consultant at the rates or amounts set forth below:
(X) None, the compensation includes all costs.
Cost or Rate
( ) Reports, not to exceed $ :
(X) Copies, not to exceed $ : S.10/sheet
( ) Travel, not to exceed $ :
( ) Printing, not to exceed $ :
( ) Postage, not to exceed $ :
( ) Delivery, not to exceed $ :
( ) Long Distance Telephone Charges,
not to exceed $
(X ) Other Actual Identifiable Direct Costs:
Court costs etc, not to exceed $ : Actual
, not to exceed $ :
13 . Contract Administrators:
City: John Lippitt, Director of Public Works
276 Fourth Ave., Chula Vista, CA 91910 (619)691-5021
Fax (619) 691-5171
Consultant: Law offices of Dwight Worden, A Professional Corp.
462 Stevens Ave. #102, Solana Beach, CA. 92075 (619)755-6604
Fax (619)755-5198
14. Liquidated Damages Rate:
Z
( ) $ per day.
*normal rate or $125 whichever is less
2PTY9-A.wp Exhibit A to Standard Form Agreement
June 7, 1995 Page 7
I~~ '-.1'1
~",,_._-----_.,..-
( ) Other:
15. Statement of Economic Interests, Consultant Reporting
Categories, per Conflict of Interest Code:
( ) Not Applicable. Not an FPPC Filer.'
(X ) FPPC Filer
(X ) Category No. 1. Investments and sources of income.
(X ) Category No. 2 . Interests in real property.
( ) Category No. 3 . Investments, interest in real
property and sources of income subject to the
regulatory, permit or licensing authority of the
department.
( ) Category No. 4. Investments in business entities
and sources of income which engage in land
development, construction or the acquisition or
sale of real property.
(X ) Category No. 5. Investments in business entities
and sources of income of the type which, within the
past two years, have contracted with the City of
Chula Vista (Redevelopment Agency) to provide
services, supplies, materials, machinery or
equipment.
1. If Consultant, in the performance of its services under this
agreement: 1) conducts research and arrives at conclusions with
respect to its rendition of information, advice, recommendations
or counsel independent of the control and direction of the City
or of any City official, other than normal contract monitoring;
and 2)
possesses no authority with respect to any City decision beyond
the rendition of information, advice, recommendations or counsel,
Consultant should not be designated as an FPPC Filer.
*normal rate or $125 whichever is less
2PTY9-A.wp Exhibit A to Standard Form Agreement
June 7, 1995 Page 8
1~¿I -.1.r
- -.- .--"...---- - --...-------
(X ) Category No. 6. Investments in business entities
and sources of income of the type which, within the
past two years, have contracted with the designated
employee's department to provide services,
supplies, materials, machinery or equipment.
( ) Category No. 7. Business positions.
( ) List "Consultant Associates" interests in real property
within 2 radial miles of Project Property, if any:
16. ( ) Consultant is Real Estate Broker and/or Salesman
17. Permitted Subconsultants:
None- without ~rior written approval bv Citv Manager
18. Bill Processing:
A. Consultant's Billing to be submitted for the following
period of time:
(X ) Monthly
( ) Quarterly
( ) Other:
B. Day of the Period for submission of Consultant's Billing:
( ) First of the Month
( ) 15th Day of each Month
( ) End of the Month
( ) Other:
C. City's Account Number: 600-6008-SW205
19. Security for Performance
*normal rate or $125 whichever is less
2PTY9-A.wp Exhibit A to Standard Form Agreement
June 7, 1995 Page 9
/2~-ø2¿'
.-.....-......-.....-...-..--......-.
( ) Performance Bond, $
( ) Letter of Credit, $
( ) Other Security:
Type:
Amount: $
( ) Retention. If this space is checked, then
notwithstanding other provisions to the contrary
requiring the payment of compensation to the Consultant
sooner, the City shall be entitled to retain, at their
option, either the following "Retention Percentage" or
"Retention Amount II until the City determines that the
Retention Release Event, listed below, has occurred:
( ) Retention Percentage: %
-
( ) Retention Amount: $
Retention Release Event:
( ) Completion of All Consultant Services
( ) Other:
*normal rate or $125 whichever is less
2PTY9-A.wp Exhibit A to Standard Form Agreement
June 7, 1995 Page 10
1.J.~-~7
-_.,--,...__._~~._._-
RESOLUTION NO. I r.Þ'I'')
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA WAIVING CONSULTANT SELECTION
PROCESS AND APPROVING AGREEMENT WITH DUDEK AND
ASSOCIATES FOR ENGINEERING SERVICES CONCERNING
THE METRO SEWER SYSTEM
WHEREAS, Chula vista has retained the Engineering
services of Dudek and Associates to assist in dealing with the city
of San Diego and the other Metro Participating Agencies in
developing a system and Agreement to operate and pay for the Metro
Sewer System; and
WHEREAS, there are still significant issues to be
resolved and regional agreements to be completed in the next year,
therefore, staff believes the services of Dudek and Associates will
be beneficial.
NOW, THEREFORE, BE IT RESOLVED the City Council of the
City of Chula vista does hereby waive the bidding requirements of
section 2.576.070 and waive the consultant selection process for
the following reasons:
1. Dudek and Associates have been involved with the
Metro Sewer Issue since 1990 and their knowledge
and background are very valuable.
2. To advertise and hire a different consultant would
not be as beneficial to the City since considerable
time would have to be expended in bringing the new
Consultant up to speed on the many years of
negotiations and dealings with the City of San
Diego.
BE IT FURTHER RESOLVED that the City Council does hereby
approve an Agreement with Dudek and Associates for Engineering
Services concerning City of Chula vista and the Metro Sewer System,
a copy of which is on file in the office of the City Clerk.
BE IT FURTHER RESOLVED that the Mayor of the City of
Chula vista is hereby authorized and directed to execute said
Agreement for and on behalf of the city of Chula vista.
Presented by Approved as to form by
John P. Lippitt, Director of ey
Public Works
I~ß-'
.__ __._.._...... __. ____.. .----.,..___.__0._____------------...-----.-------.---
Agreement between
City of Chula Vista
and
Dudek and Associates
for
Engineering Consulting Services
This agreement, dated for the purposes of
reference only, and effective as of the date last executed unless
another date is otherwise specified in Exhibit A, Paragraph 1 is
between the City-related entity as is indicated on Exhibit A,
paragraph 2, as such ("City") , whose business form is set forth on
Exhibit A, paragraph 3, and the entity indicated on the attached
Exhibit A, paragraph 4, as Consultant, whose business form is set
forth on Exhibit A, paragraph 5, and whose place of business and
telephone numbers are set forth on Exhibit A, paragraph 6
( "Consul tant") , and is made with reference to the following facts:
Recitals
Whereas, In September, 1990 Consultant prepared a study for
the City entitled Wastewater Treatment, Disposal, and Reclamation
Feasibility Study (Feasibility Study) regarding City's Options
regarding the City of San Diego's Metropolitan Sewerage System
and,
Whereas, City in 1991 entered into an Agreement for
Consulting Services with Consultant to further evaluate our
options in the Metropolitan Sewerage System, and advised the City
of continuing our Membership in the Special Act District; and,
Whereas, City is in Negotiations with the City of San Diego
and the Participating Agencies to develop a new or modified Sewer
Service Agreement and needs continuing advice from Consultant;
and
Whereas, Consultant warrants and represents that they are
experienced and staffed in a manner such that they are and can
prepare and deliver the services required of Consultant to City
2pty9.wp Standard Form Two Party Agreement (Fourth Revision)
November 2, 1993 Page 1
1.l.8-~
._--,._-_.~". -------- .' --..--...----.'.-. ---._--- .-....
within the time frames herein provided all in accordance with the
terms and conditions of this Agreement;
NOW, THEREFORE, BE IT RESOLVED that the City and Consultant
do hereby mutually agree as follows:
l. Consultant's Duties
A. General Duties
Consultant shall perform all of the services described on
the attached Exhibit A, Paragraph 7, entitled "General Duties" ;
and,
B. Scope of Work and Schedule
In the process of performing and delivering said "General
Duties", Consultant shall also perform all of the services
described in Exhibit A, Paragraph 8, entitled" Scope of Work and
Schedule" , not inconsistent with the General Duties, according
to, and within the time frames set forth in Exhibit A, Paragraph
8, and deliver to City such Deliverables as are identified in
Exhibit A, Paragraph 8, within the time frames set forth therein,
time being of the essence of this agreement. The General Duties
and the work and deliverables required in the Scope of Work and
Schedule shall be herein referred to as the "Defined Services".
Failure to complete the Defined Services by the times indicated
does not, except at the option of the City, operate to terminate
this Agreement.
C. Reductions in Scope of Work
City may independently, or upon request from Consultant,
from time to time reduce the Defined Services to be performed by
the Consultant under this Agreement. Upon doing so, City and
Consultant agree to meet in good faith and confer for the purpose
of negotiating a corresponding reduction in the compensation
associated with said reduction.
D. Additional Services
In addition to performing the Defined Services herein set
forth, City may require Consultant to perform additional
consulting services related to the Defined Services ( "Additional
Services") , and upon doing so in writing, if they are within the
scope of services offered by Consultant, Consultant shall perform
same on a time and materials basis at the rates set forth in the
"Rate Schedule" in Exhibit A, Paragraph 11 (C) , unless a separate
2pty9.wp Standard Form Two Party Agreement (Fourth Revision)
November 2, 1993 Page 2
I~O':J
- - - ~--_.._-_.._- - - ---
fixed fee is otherwise agreed upon. All compensation for
Additional Services shall be paid monthly as billed.
E. Standard of Care
Consultant, in performing any Services under this agreement,
whether Defined Services or Additional Services, shall perform in
a manner consistent with that level of care and skill ordinarily
exercised by members of the profession currently practicing under
similar conditions and in similar locations.
F. Insurance
Consultant represents that it and its agents, staff and
subconsultants employed by it in connection with the Services
required to be rendered, are protected against the risk of loss
by the following insurance coverages, in the following categor-
ies, and to the limits specified, policies of which are issued by
Insurance Companies that have a Best's Rating of "AI Class V" or
better, or shall meet with the approval of the City:
Statutory Worker's Compensation Insurance and Employer's
Liability Insurance coverage in the amount set forth in the
attached Exhibit A, Paragraph 9.
Commercial General Liability Insurance including Business
Automobile Insurance coverage in the amount set forth in Exhibit
A, Paragraph 9, combined single limit applied separately to each
project away from premises owned or rented by Consultant, which
names City and Applicant as an Additional Insured, and which is
primary to any policy which the City may otherwise carry
( "Primary Coverage") , and which treats the employees of the City
and Applicant in the same manner as members of the general public
("Cross-liability Coverage") .
Errors and Omissions insurance, in the amount set forth in
Exhibit A, Paragraph 9, unless Errors and Omissions coverage is
included in the General Liability policy.
G. Proof of Insurance Coverage.
(1) Certificates of Insurance.
Consultant shall demonstrate proof of coverage herein
required, prior to the commencement of services required under
this Agreement, by delivery of Certificates of Insurance
demonstrating same, and further indicating that the policies may
not be canceled without at least thirty (30) days written notice
to the Additional Insured.
2pty9.wp Standard Form Two Party Agreement (Fourth Revision)
November 2, 1993 Page 3
lJ.o-f
.---.-....--,---.-..... --"~..._._._.
(2) Policy Endorsements Required.
In order to demonstrate the Additional Insured
Coverage, Primary Coverage and Cross-liability Coverage required
under Consultant's Commercial General Liability Insurance Policy,
Consultant shall deliver a policy endorsement to the City
demonstrating same, which shall be reviewed and approved by the
Risk Manager.
H. Securitv for Performance.
(1) Performance Bond.
In the event that Exhibit A, at Paragraph 19, indicates
the need for Consultant to provide a Performance Bond (indicated
by a check mark in the parenthetical space immediately preceding
the subparagraph entitled "Performance Bond"), then Consultant
shall provide to the City a performance bond by a surety and in a
form and amount satisfactory to the Risk Manager or City Attorney
which amount is indicated in the space adjacent to the term,
"Performance Bondll, in said Paragraph 19, Exhibit A.
(2) Letter of Credit.
In the event that Exhibit A, at Paragraph 19, indicates
the need for Consultant to provide a Letter of Credit (indicated
by a check mark in the parenthetical space immediately preceding
the subparagraph entitled "Letter of Credit"), then Consultant
shall provide to the City an irrevocable letter of credit
callable by the City at their unfettered discretion by submitting
to the bank a letter, signed by the City Manager, stating that
the Consultant is in breach of the terms of this Agreement. The
letter of credit shall be issued by a bank, and be in a form and
amount satisfactory to the Risk Manager or City Attorney which
amount is indicated in the space adjacent to the term, "Letter of
Credit" , in said Paragraph 19, Exhibit A.
(3) Other Security
In the event that Exhibit A, at Paragraph 19, indicates
the need for Consultant to provide security other than a
Performance Bond or a Letter of Credit (indicated by a check mark
in the parenthetical space immediately preceding the subparagraph
entitled "Other Security") , then Consultant shall provide to the
City such other security therein listed in a form and amount
satisfactory to the Risk Manager or City Attorney.
I. Business License
2pty9.wp Standard Form Two Party Agreement (Fourth Revision)
November 2, 1993 Page 4
1.20-,f'
.._...__.,,'--~...
Consultant agrees to obtain a business license from the City
and to otherwise comply with Title 5 of the Chula Vista Municipal
Code.
2. Duties of the City
A. Consultation and Cooperation
City shall regularly consult the Consultant for the purpose
of reviewing the progress of the Defined Services and Schedule
therein contained, and to provide direction and guidance to
achieve the objectives of this agreement. The City shall permit
access to its office facilities, files and records by Consultant
throughout the term of the agreement. In addition thereto, City
agrees to provide the information, data, items and materials set
forth on Exhibit A, Paragraph 10, and with the further
understanding that delay in the provision of these materials
beyond 30 days after authorization to proceed, shall constitute a
basis for the justifiable delay in the Consultant's performance
of this agreement.
B. Compensation
Upon receipt of a properly prepared billing from Consultant
submitted to the City periodically as indicated in Exhibit A,
Paragraph 18, but in no event more frequently than monthly, on
the day of the period indicated in Exhibit A, Paragraph 18, City
shall compensate Consultant for all services rendered by Consult-
ant according to the terms and conditions set forth in Exhibit A,
Paragraph 11, adjacent to the governing compensation relationship
indicated by a "checkmarkll next to the appropriate arrangement,
subject to the requirements for retention set forth in paragraph
19 of Exhibit A, and shall compensate Consultant for out of
pocket expenses as provided in Exhibit A, Paragraph 12.
All billings submitted by Consultant shall contain
sufficient information as to the propriety of the billing to
permit the City to evaluate that the amount due and payable
thereunder is proper, and shall specifically contain the City's
account number indicated on Exhibit A, Paragraph 18 (C) to be
charged upon making such payment.
3. Administration of Contract
Each party designates the individuals ( "Contract
Administrators") indicated on Exhibit A, Paragraph 13, as said
party's contract administrator who is authorized by said party to
represent them in the routine administration of this agreement.
4. Term.
2pty9 . wp Standard Form Two Party Agreement (Fourth Revision)
November 2, 1993 Page 5
1.2I3-¿'
+....---..---.---..
This Agreement shall terminate when the Parties have
complied with all executory provisions hereof, or on June 3D,
1998 whichever occurs first, unless the term is extended by the
City Manager.
5 . Liquidated Damages
The provisions of this section apply if a Liquidated Damages
Rate is provided in Exhibit A, Paragraph 14.
It is acknowledged by both parties that time is of the
essence in the completion of this Agreement. It is difficult to
estimate the amount of damages resulting from delay in per-
formance. The parties have used their judgment to arrive at a
reasonable amount to compensate for delay.
Failure to complete the Defined Services within the allotted
time period specified in this Agreement shall result in the
following penalty: For each consecutive calendar day in excess
of the time specified for the completion of the respective work
assignment or Deliverable, the consultant shall pay to the City,
or have withheld from monies due, the sum of Liquidated Damages
Rate provided in Exhibit A, Paragraph 14 ("Liquidated Damages
Rate") .
Time extensions for delays beyond the consultant's control,
other than delays caused by the City, shall be requested in
writing to the City's Contract Administrator, or designee, prior
to the expiration of the specified time. Extensions of time,
when granted, will be based upon the effect of delays to the work
and will not be granted for delays to minor portions of work
unless it can be shown that such delays did or will delay the
progress of the work.
6 . Financial Interests of Consultant
A. Consultant is Designated as an FPPC Filer.
If Consultant is designated on Exhibit A, Paragraph 15, as
an "FPPC filer", Consultant is deemed to be a "Consultant" for
the purposes of the Political Reform Act conflict of interest and
disclosure provisions, and shall report economic interests to the
City Clerk on the required Statement of Economic Interests in
such reporting categories as are specified in Paragraph 15 of
Exhibit A, or if none are specified, then as determined by the
City Attorney.
B. Decline to Participate.
2pty9.wp Standard Form Two Party Agreement (Fourth Revision)
November 2, 1993 Page 6
l~fJ· ')
....-....--
Regardless of whether Consultant is designated as an FPPC
Filer, Consultant shall not make, or participate in making or in
any way attempt to use Consultant's position to influence a
governmental decision in which Consultant knows or has reason to
know Consultant has a financial interest other than the
compensation promised by this Agreement.
C. Search to Determine Economic Interests.
Regardless of whether Consultant is designated as an FPPC
Filer, Consultant warrants and represents that Consultant has
diligently conducted a search and inventory of Consultant's
economic interests, as the term is used in the regulations
promulgated by the Fair Political Practices Commission, and has
determined that Consultant does not, to the best of Consultant's
knowledge, have an economic interest which would conflict with
Consultant's duties under this agreement.
D. Promise Not to Acquire Conflicting Interests.
Regardless of whether Consultant is designated as an FPPC
Filer, Consultant further warrants and represents that Consultant
will not acquire, obtain, or assume an economic interest during
the term of this Agreement which would constitute a conflict of
interest as prohibited by the Fair political Practices Act.
E. Duty to Advise of Conflicting Interests.
Regardless of whether Consultant is designated as an FPPC
Filer, Consultant further warrants and represents that Consultant
will immediately advise the City Attorney of City if Consultant
learns of an economic interest of Consultant's which may result
in a conflict of interest for the purpose of the Fair political
Practices Act, and regulations promulgated thereunder.
F. Specific warranties Against Economic Interests.
Consultant warrants and represents that neither Consultant,
nor Consultant's immediate family members, nor Consultant's
employees or agents ("Consultant Associates") presently have any
interest, directly or indirectly, whatsoever in any property
which may be the subject matter of the Defined Services, or in
any property within 2 radial miles from the exterior boundaries
of any property which may be the subject matter of the Defined
Services, ( "prohibi ted Interest"), other than as listed in
Exhibit A, Paragraph 15.
Consultant further warrants and represents that no promise
of future employment, remuneration, consideration, gratuity or
other reward or gain has been made to Consultant or Consultant
2pty9.wp Standard Form Two Party Agreement (Fourth Revision)
November 2, 1993 Page 7
1J.1l-~
_____ _'_'__""_ _.. .._m'_ _. n. __,,_'.._ .··H.._._·'..____·.·.·_
Associates in connection with Consultant's performance of this
Agreement. Consultant promises to advise City of any such
promise that may be made during the Term of this Agreement, or
for 12 months thereafter.
Consultant agrees that Consultant Associates shall not
acquire any such Prohibited Interest within the Term of this
Agreement, or for 12 months after the expiration of this
Agreement, except with the written permission of City.
Consultant may not conduct or solicit any business for any
party to this Agreement, or for any third party which may be in
conflict with Consultant's responsibilities under this Agreement,
except with the written permission of City.
7. Hold Harmless
Consultant shall defend, indemnify, protect and hold
harmless the City, its elected and appointed officers and
employees, from and against all claims for damages, liability,
cost and expense (including without limitation attorneys' fees)
arising out of the conduct of the Consultant, or any agent or
employee, subcontractors, or others in connection with the
execution of the work covered by this Agreement, except only for
those claims arising from the sole negligence or sole willful
conduct of the City, its officers, or employees. Consultant's
indemnification shall include any and all costs, expenses,
attorneys' fees and liability incurred by the City, its officers,
agents, or employees in defending against such claims, whether
the same proceed to judgment or not. Further, Consultant at its
own expense shall, upon written request by the City, defend any
such suit or action brought against the City, its officers,
agents, or employees. Consultants' indemnification of City shall
not be limited by any prior or subsequent declaration by the
Consultant.
8 . Termination of Agreement for Cause
If, through any cause, Consultant shall fail to fulfill in a
timely and proper manner Consultant's obligations under this
Agreement, or if Consultant shall violate any of the covenants,
agreements or stipulations of this Agreement, City shall have the
right to terminate this Agreement by giving written notice to
Consultant of such termination and specifying the effective date
thereof at least five (5) days before the effective date of such
termination. In that event, all finished or unfinished documents,
data, studies, surveys, drawings, maps, reports and other
materials prepared by Consultant shall, at the option of the
City, become the property of the City, and Consultant shall be
entitled to receive just and equitable compensation for any work
2pty9.wp Standard Form Two Party Agreement (Fourth Revision)
November 2, 1993 Page 8
1~l/·1
~--'- ."._-,.~..._.._-"._._..
satisfactorily completed on such documents and other materials up
to the effective date of Notice of Termination, not to exceed the
amounts payable hereunder, and less any damages caused City by
Consultant's breach.
9. Errors and Omissions
In the event that the City Administrator determines that the
Consultants' negligence, errors, or omissions in the performance
of work under this Agreement has resulted in expense to City
greater than would have resulted if there were no such
negligence, errc,>rs, omissions, Consultant shall reimburse City
for any additional expenses incurred by the City. Nothing herein
is intended to limit City's rights under other provisions of this
agreement.
10. Termination of Agreement for Convenience of City
City may terminate this Agreement at any time and for any
reason, by giving specific written notice to Consultant of such
termination and specifying the effective date thereof, at least
thirty (30) days before the effective date of such termination.
In that event, all finished and unfinished documents and other
materials described hereinabove shall, at the option of the City,
become City's sole and exclusive property. If the Agreement is
terminated by City as provided in this paragraph, Consultant
shall be entitled to receive just and equitable compensation for
any satisfactory work completed on such documents and other
materials to the effective date of such termination. Consultant
hereby expressly waives any and all claims for damages or
compensation arising under this Agreement except as set forth
herein.
11. Assignability
The services of Consultant are personal to the City, and
Consultant shall not assign any interest in this Agreement, and
shall not transfer any interest in the same (whether by
assignment or novation), without prior written consent of City.
City hereby consents to the assignment of the portions of the
Defined Services identified in Exhibit A, Paragraph 17 to the
subconsultants identified thereat as "Permitted Subconsultants".
12. Ownership, Publication, Reproduction and Use of Material
All reports, studies, information, data, statistics, forms,
designs, plans, procedures, systems and any other materials or
properties produced under this Agreement shall be the sole and
exclusive property of City. No such materials or properties
produced in whole or in part under this Agreement shall be
2pty9.wp Standard Form Two Party Agreement (Fourth Revision)
November 2, 1993 Page 9
/¡).s-/,
_.---_._~""._-- "-.-.
subject to private use, copyrights or patent rights by Consultant
in the United States or in any other country without the express
written consent of City. City shall have unrestricted authority
to publish, disclose (except as may be limited by the provisions
of the Public Records Act), distribute, and otherwise use,
copyright or patent, in whole or in part, any such reports,
studies, data, statistics, forms or other materials or properties
produced under this Agreement.
13 . Independent Contractor
City is interested only in the results obtained and
Consultant shall perform as an independent contractor with sole
control of the manner and means of performing the services
required under this Agreement. City maintains the right only to
reject or accept Consultant's work products. Consultant and any
of the Consultant's agents, employees or representatives are, for
all purposes under this Agreement, an independent contractor and
shall not be deemed to be an employee of City, and none of them
shall be entitled to any benefits to which City employees are
entitled including but not limited to, overtime, retirement
benefits, worker's compensation benefits, injury leave or other
leave benefits. Therefore, City will not withhold state or
federal income tax, social security tax or any other payroll tax,
and Consultant shall be solely responsible for the payment of
same and shall hold the City harmless with regard thereto.
14. Administrative Claims Requirements and Procedures
No suit or arbitration shall be brought arising out of this
agreement, against the City unless a claim has first been
presented in writing and filed with the City and acted upon by
the City in accordance with the procedures set forth in Chapter
1. 34 of the Chula Vista Municipal Code, as same may from time to
time be amended, the provisions of which are incorporated by this
reference as if fully set forth herein, and such policies and
procedures used by the City in the implementation of same.
Upon request by City, Consultant shall meet and confer in
good faith with City for the purpose of resolving any dispute
over the terms of this Agreement.
15. Attorney's Fees
Should a dispute arising out of this Agreement result in
litigation, it is agreed that the prevailing party shall be
entitled to recover all reasonable costs incurred in the defense
of the claim, including costs and attorney's fees.
16. Statement of Costs
2pty9.wp Standard Form Two Party Agreement (Fourth Revision)
November 2, 1993 Page 10
J~ß·II
.,.-..,---..--. ....-.
In the event that Consultant prepares a report or document,
or participates in the preparation of a report or document in
performing the Defined Services, Consultant shall include, or
cause the inclusion of, in said report or document, a statement
of the numbers and cost in dollar amounts of all contracts and
subcontracts relating to the preparation of the report or
document.
17. Miscellaneous
A. consultant not authorized to Represent City
Unless specifically authorized in writing by City, Consult-
ant shall have no authority to act as City's agent to bind City
to any contractual agreements whatsoever.
B. Consultant is Real Estate Broker and/or Salesman
If the box on Exhibit A, Paragraph 16 is marked, the
Consultant and/or their principals is/are licensed with the State
of California or some other state as a licensed real estate
broker or salesperson. Otherwise, Consultant represents that
neither Consultant, nor their principals are licensed real estate
brokers or salespersons.
C. Notices
All notices, demands or requests provided for or permitted
to be given pursuant to this Agreement must be in writing. All
notices, demands and requests to be sent to any party shall be
deemed to have been properly given or served if personally served
or deposited in the United States mail, addressed to such party,
postage prepaid, registered or certified, with return receipt
requested, at the addresses identified herein as the places of
business for each of the designated parties.
D. Entire Agreement
This Agreement, together with any other written document
referred to or contemplated herein, embody the entire Agreement
and understanding between the parties relating to the subject
matter hereof. Neither this Agreement nor any provision hereof
may be amended, modified, waived or discharged except by an
instrument in writing executed by the party against which
enforcement of such amendment, waiver or discharge is sought.
E. Capacity of Parties
Each signatory and party hereto hereby warrants and
represents to the other party that it has legal authority and
2pty9.wp Standard Form Two Party Agreement (Fourth Revision)
November 2, 1993 Page 11
J:lO"'/~
.'-'".
capacity and direction from its principal to enter into this
Agreement, and that all resolutions or other actions have been
taken so as to enable it to enter into this Agreement.
F. Governing Law/Venue
This Agreement shall be governed by and construed in
accordance with the laws of the State of California. Any action
arising under or relating to this Agreement shall be brought only
in the federal or state courts located in San Diego County, State
of California, and if applicable, the City of Chula Vista, or as
close thereto as possible. Venue for this Agreement, and
performance hereunder, shall be the City of Chula Vista.
2pty9 . wp Standard Form Two Party Agreement (Fourth Revision)
November 2, 1993 Page 12
l~tJ"l;J
-...-... ---",,-.
Signature Page
to
Agreement between City of Chula vista and Dudek and Associates
for Engineering Consulting Services
IN WITNESS WHEREOF, City and Consultant have executed this
Agreement thereby indicating that they have read and understood
same, and indicate their full and complete consent to its terms:
Dated: , 19 City of Chula Vista
-
by:
Shirley Horton, Mayor
Attest:
Beverly Authelet, City Clerk
Approved as to form:
John M. Kaheny, City Attorney
Dated: Dudek and Associates
By:
Frank J. Dudek, President
Exhibit List to Agreement
(X) Exhibit A.
(x) Exhibit B: 1997 Schedule of Charges
2pty9.wp Standard Form Two Party Agreement (Fourth Revision)
November 2, 1993 Page 15
l~tJ-lý
Exhibit A
to
Agreement between
City of Chula Vista
and
Dudek and Associates
l. Effective Date of Agreement: March 5, 1997
2. City-Related Entity:
(X) City of Chula Vista, a municipal chartered corporation of
the State of California
( ) Redevelopment Agency of the City of Chula Vista, a
political subdivision of the State of California
( ) Industrial Development Authority of the City of Chula
Vista, a
( ) Other: , a
[insert business form]
("City" )
3 . Place of Business for City:
City of Chula Vista,
276 Fourth Avenue,
Chula Vista, CA 91910
4. Consultant:
5. Business Form of Consultant:
( ) Sole Proprietorship
( ) Partnership
(X ) Corporation
6 . Place of Business, Telephone and Fax Number of Consultant:
2PTY9-A.wp Exhibit A to Standard Form Agreement
June 7, 1995 Page 1
IJ.(J-Ir
.. ----- _._._.._--._-~..
605 Third St., Encinitas, CA 92024
Voice Phone (619) 942-5147 Fax Phone (619) 632-0164
7. General Duties:
Provide Engineering (planning, cost estimating, economic
analysis, and regulatory analysis) , environmental, and
administrative consultation on an on-call basis to analyze and
respond to City continued participation in the Metro Sewer
System.
S . Scope of Work and Schedule:
A. Detailed Scope of Work:
1. Attend key meetings with Chula Vista Staff and other
Consultants to develop a strategy to respond to various
City of San Diego and AFFORD proposals.
2 . Attend key meetings Metro member meetings and other
regional sewer meetings, as requested by Staff, .
3 . Analyze Engineering and Economic information
referred to the City or AFFORD if requested by staff.
4. Perforn any other tasks requested by City.
B. Date for Commencement of Consultant Services:
(X) Same as Effective Date of Agreement
( ) Other:
C. Dates or Time Limits for Delivery of Deliverables:
Deliverable No. 1: Not Applicable
2PTY9-A.wp Exhibit A to Standard Form Agreement
June 7, 1995 Page 2
J~ß-I¿'
_.·.M..__._"____.
D. Date for completion of all Consultant services:
June 30, 1998 unless extended by the City Manager.
9. Insurance Requirements:
(X) Statutory Worker's Compensation Insurance
(X) Employer's Liability Insurance coverage: $1,000,000.
(X) Commercial General Liability Insurance: $1,000,000.
( ) Errors and Omissions insurance: None Required (included
in Commercial General Liability coverage) .
(X) Errors and Omissions Insurance: $250,000 (not included
in Commercial General Liability coverage) .
10. Materials Required to be Supplied by City to Consultant:
11. Compensation:
A. ( ) Single Fixed Fee Arrangement.
For performance of all of the Defined Services by Consultant
as herein required, City shall pay a single fixed fee in the
amounts and at the times or milestones or for the Deliverables set
forth below:
Single Fixed Fee Amount: , payable as
follows:
Milestone or Event or Deliverable Amount or Percent of Fixed Fee
( ) 1. Interim Monthly Advances. The City shall make
interim monthly advances against the compensation
due for each phase on a percentage of completion
2PTY9-A.wp Exhibit A to Standard Form Agreement
June 7, 1995 Page 3
1~(J-/7
basis for each given phase such that, at the end of
each phase only the compensation for that phase has
been paid. Any payments made hereunder shall be
considered as interest free loans which must be
returned to the City if the Phase is not
satisfactorily completed. If the Phase is
satisfactorily completed, the City shall receive
credit against the compensation due for that phase.
The retention amount or percentage set forth in
Paragraph 19 is to be applied to each interim
payment such that, at the end of the phase, the
full retention has been held back from the
compensation due for that phase. Percentage of
completion of a phase shall be assessed in the sole
and unfettered discretion by the Contracts
Administrator designated herein by the City, or
such other person as the City Manager shall
designate, but only upon such proof demanded by the
City that has been provided, but in no event shall
such interim advance payment be made unless the
Contractor shall have represented in writing that
said percentage of completion of the phase has been
performed by the Contractor. The practice of
making interim monthly advances shall not convert
this agreement to a time and materials basis of
payment.
B. ( ) Phased Fixed Fee Arrangement.
For the performance of each phase or portion of the Defined
Services by Consultant as are separately identified below, City
shall pay the fixed fee associated with each phase of Services, in
the amounts and at the times or milestones or Deliverables set
forth Consultant shall not commence Services under any Phase, and
shall not be entitled to the compensation for a Phase, unless City
shall have issued a notice to proceed to Consultant as to said
Phase.
Phase Fee for Said Phase
2PTY9-A.wp Exhibit A to Standard Form Agreement
June 7, 1995 Page 4
JtJ.U-IY
1. $
2. $
3 . $
( ) 1. Interim Monthly Advances. The City shall make
interim monthly advances against the compensation
due for each phase on a percentage of completion
basis for each given phase such that, at the end of
each phase only the compensation for that phase has
been paid. Any payments made hereunder shall be
considered as interest free loans which must be
returned to the City if the Phase is not
satisfactorily completed. If the Phase is
satisfactorily completed, the City shall receive
credit against the compensation due for that phase.
The retention amount or percentage set forth in
Paragraph 19 is to be applied to each interim
payment such that, at the end of the phase, the
full retention has been held back from the
compensation due for that phase. Percentage of
completion of a phase shall be assessed in the sole
and unfettered discretion by the Contracts
Administrator designated herein by the City, or
such other person as the City Manager shall
designate, but only upon such proof demanded by the
City that has been provided, but in no event shall
such interim advance payment be made unless the
Contractor shall have represented in writing that
said percentage of completion of the phase has been
performed by the Contractor. The practice of
making interim monthly advances shall not convert
this agreement to a time and materials basis of
payment.
C. (X) Hourly Rate Arrangement
For performance of the Defined Services by Consultant as
herein required, City shall pay Consultant for the productive hours
of time spent by Consultant in the performance of said Services, at
2PTY9-A.wp Exhibit A to Standard Form Agreement
June 7, 1995 Page 5
l~lJ·11
--....--.---..-...-....
the rates or amounts set forth in the Rate Schedule hereinbelow
according to the following terms and conditions:
(1) ( ) Not-to-Exceed Limitation on Time and Materials
Arrangement
Notwithstanding the expenditure by Consultant of
time and materials in excess of said Maximum Compensation
amount, Consultant agrees that Consultant will perform
all of the Defined Services herein required of Consultant
for $ including all Materials, and other
"reimbursables" ("Maximum Compensation").
(2) (X) Limitation without Further Authorization on
Time and Materials Arrangement
At such time as Consultant shall have incurred time
and materials equal to S17.000 ("Authorization Limit"),
Consultant shall not be entitled to any additional
compensation without further authorization issued in
writing and approved by the City. Nothing herein shall
preclude Consultant from providing additional Services at
Consultant's own cost and expense.
Rate Schedule
Category of Employee Hourly
of Consultant Name Rate
PrinciDle Enaineer Frank Dudek SllO
Other emDlovees attached exhibit #B varies
,
( ) Hourly rates may increase by 6% for services
rendered after [month] , 19 , if delay in providing
services is caused by City.
12. Materials Reimbursement Arrangement
For the cost of out of pocket expenses incurred by Consultant
2PTY9-A.wp Exhibit A to Standard Form Agreement
June 7, 1995 Page 6
J,¡J. ß-J.'
~ .-- ~..--,.- .-.,-------.
in the performance of services herein required, City shall pay
Consultant at the rates or amounts set forth below:
( ) None, the compensation includes all costs.
Cost or Rate
( ) Reports, not to exceed $ :
( ) Copies, not to exceed $ :
( ) Travel, not to exceed $ :
( ) Printing, not to exceed $ :
( ) Postage, not to exceed $ :
( ) Delivery, not to exceed $ :
( ) Long Distance Telephone Charges,
not to exceed $
( ) Other Actual Identifiable Direct Costs:
, not to exceed $ :
, not to exceed $ :
13 . Contract Administrators:
City: John Lippitt, Director of Public Works
Consultant: Frank Dudek, President, Dudek and Associates
14. Liquidated Damages Rate:
Z
( ) $ per day.
( ) Other:
15. Statement of Economic Interests, Consultant Reporting
Categories, per Conflict of Interest Code:
( X) Not Applicable. Not an FPPC Filer.
( ) FPPC Filer
( ) Category No. 1. Investments and sources of income.
( ) Category No. 2 . Interests in real property.
( ) Category No. 3 . Investments, interest in real
2PTY9-A.wp Exhibit A to Standard Form Agreement
June 7, 1995 Page 7
J,, ./J ., ..11
--"-" .---
property and sources of income subject to the
regulatory, permit or licensing authority of the
department.
( ) Category No. 4. Investments in business entities
and sources of income which engage in land
development, construction or the acquisition or
sale of real property.
( ) Category No. 5 . Investments in business entities
and sources of income of the type which, within the
past two years, have contracted with the City of
Chula Vista (Redevelopment Agency) to provide
services, supplies, materials, machinery or
equipment.
( ) Category No. 6. Investments in business entities
and sources of income of the type which, within the
past two years, have contracted with the designated
employee's department to provide services,
supplies, materials, machinery or equipment.
( ) Category No. 7. Business positions.
( ) List "Consultant Associates" interests in real property
within 2 radial miles of Project Property, if any:
16. ( ) Consultant is Real Estate Broker and/or Salesman
17. Permitted Subconsultants:
18. Bill Processing:
2PTY9-A.wp Exhibit A to Standard Form Agreement
June 7, 1995 Page 8
1:1 0-.2.2.
0"'''''''____'''____
A. Consultant's Billing to be submitted for the following
period of time:
( ) Monthly
( ) Quarterly
(X ) Other: As necessary but not more often than monthly
B. Day of the Period for submission of Consultant's Billing:
( ) First of the Month
( ) 15th Day of each Month
( ) End of the Month
( ) Other:
C. City's Account Number: 600-600B-SW205
19. Security for Performance
( ) Performance Bond, $
( ) Letter of Credit, $
( ) Other Security:
Type:
Amount: $
( ) Retention. If this space is checked, then
notwithstanding other provisions to the contrary
requiring the payment of compensation to the Consultant
sooner, the City shall be entitled to retain, at their
option, either the following "Retention Percentage" or
"Retention Amount" until the City determines that the
Retention Release Event, listed below, has occurred:
( ) Retention Percentage: %
-
( ) Retention Amount: $
Retention Release Event:
( ) Completion of All Consultant Services
( ) Other:
2PTY9-A.wp Exhibit A to Standard Form Agreement
June 7, 1995 Page 9
I, .ß-J3
~
--".-,,-_..__.,-
Fe b. 20. 1997 ¡0:49AM B No. 5033 P. 2/2
EXHIBIT
ENGINEERING SERVICES FACILITATION AND CONFLICT MANAGEMENT SERVICES
Principal................ ......................................... $ 120.oolhr Principal MediatorlFacilitalor ................................. 5125.00Ihr
Project Manager ... ............................................. $105.00lhr Associate MediatorlFacilitator ...............................$ 85.00Ihr
Project Engineer II............................................ $ 95.00/hr Conflict Management Specialist ............................ $ 75.OOIhr
Project Engineer I ........................................$ 85.00lhr Meeting NoteIaker .................................................$ 45.00/hr
Engineer III ..........................................................$ 80.00ihr HYDROGEOLOGICAL SERVICES
Engineer 1I....m................................................ $ 70.OOIhr
Engineer I.......................................................... $ 55.00lhr Principal............................................... mm.m... $ t30.00/hr
Engineering Assislant ........................................... $ 45.00lhr Senior Hydrogeologist Project Manager ............... $120.00/hr
Associate Hydrogeologist............._................... 5 95.0O/hr
· PLANNING Hydrogeologist IV ............................................$ 85.QO/hr
Principal Planner....m..... .. ....................... $ 120.001hr Hydrogeologist III.............................................. $ 65.00/hr
Planning Manager ...........................................m $ 110.00lhr Hydrogeologist II ..................................................5 55.00lhr
Project Planner ..................................................... $ 75.00lhr Hydrogeologist I ................................................... $ 45.OOIhr
Planner ................................................................. $ 65.00lhr Environmental Engineer II...................................... $ 70.00lhr
Planning Technician .............................................. 5 45.00thr CONSTRUCTION MANAGEMENT SERVICES
· SURVEYING Construction Manager .......................................... $100.00Ihr
Professional land Surveyor .................................. 5100.00ihr Construction Engineer ......................................... $ 75.00lhr
Field Supervisor.................................................... 5 80.00ihr Construction Inspector III...................................... 5 68.00/hr
Survey Analyst ................................. . .... ... ... $ 70.00lhr CollStruction Inspector II...................................... $ 58.00lhr
1-Peroon Survey Crew .......................................... $ 65.00lhr Construction Inspector' ........................................ $ 48.00/hr
2-Person Survey Crew.... ..mm..................·......... $ 125.00thr
3-Person Survey Crew ..............................m....... $160.00jhr DISTRICT MANAGEMENT & OPERATIONS
· DRAFTING/CADD SERVICES District Manager .......................................m...m$120.00/hr
GIS Technician ...................................................... $ 75.001hr District Engineer .................................... $90.00 - $ 110.00/hr
CADD OperatorlDesìgner Drafter III ....................... $ 75.00thr Assistant District Manager ................................... $ 70.0Q,lhr
CACO OperatorlDesigner Drafter II ........................ $ 5O.00thr District Secretary/Accountant.............................. $ 55.0Q,lhr
Grade IV Operator m.....m .. ........................$ 70.1JO/hr
Designer Drafter I .............................................. $ 50.001hr Grade III Operator ................................................. $ 55.00!hr
Assistant Designer Drafter .................................. $ 35.00thr Grade II Operator .................................................. $ 45.0O/hr
ENVIRONMENTAL SERVICES Grade I Operator ................................................... $ 42.00!hr
Operator in Training ........................................... $ 30.00/1I"
Principal. .................... .......................................... $ 120.00/hr Laborer ...............................................................$ 24.OOIhr
Senior Project Manager........................................ $11 O.OO/hr
senior Environmental Planner ...................... $95 - $ 11 O.OOlhr OFFICE SERVICES
Envirorvnental Scientist'Planner IV........................ $ 85.00lhr Computer Processing ........................................... $ 55.00/hr
EnVlrorvnental ScientisVPlanner III.................... $ 75.001hr Clerical Administration .......................................... $ 45.1JO/hr
Environmental ScientistlPlanner II ....................... $ 65.00lhr
Environmental Scientist!Planner I ....m.m.u..uu. 5 5000lhr
Envirorvnental Analyst .......................................... $ 45.00lhr FORENSIC ENGINEERING
Acoustician ..m..................................................... $ 75.00lhr Court appearances and depositions as expert witness wm be
senior Habitat Restoration Specialist'
Landscape Architect IV .................................. $ 90.00lhr billed at1.5 times normal rates.
Habitat Restoration SpecialisV MATERIAL AND OUTSIDE SERVICES
Landscape ArcMect 1II.......u.......................... $ 85.00lhr
Habitat Restoration Specialist 1I.....m................... $ 60.00lhr Subcontractors. rental of special equipment. special
Habitat Restoration SpeciaRst I ............uu . u.... $ 50.00lhr reproductions and blueprinting. outside data processing and
Biologist V ...................................................un.. $ 9000lhr com llter services. etc.. are charged al1.15 times the !irect
Biologist IV ........................................u uu.... $ 75.0QJhr cost.
Biologist III ........................................................... $ 60.00hlr TRAVEL EXPENSES
Biologist II ....u.....u uuu.................................. $ 50.00/hr
Biologist I ....u..................................................... $ 45.00/hr Mileage at 32 cents per mile. Per diem where overnight stay is
Research Assistantu u..................................... $ 30.00/hr Involved is charged at cost. Rovi..d 12111196
1-18,.z1{
--~. ..-....
COUNCIL AGENDA STATEMENT
Item J;J
Meeting Date 2/25/97
~
.--
ITEM TITLE: A. Resolution J w~rr Approving Final Map of Tract 96-05
Rancho Del Rey Spa III, Phase 1, Unit 1, accepting on behalf of the public
the public streets dedicated on said map, accepting the easements granted
on said map within said subdivision, and approving subdivision
improvement agreement for the completion of improvements required by
said subdivision, and authorizing the Mayor to execute said agreement
11. Resolution lI'r"" Approving Supplemental Subdivision
Improvement Agreement for Chula Vista Tract 96-05, Rancho del Rey,
SPA III, Phase 1, Unit 1
(;. Resolution 11"1"111 Approving Final Map of Tract 96-05
Rancho Del Rey Spa III, Phase 1, Unit 2, accepting on behalf of the public
the public streets dedicated on said map, accepting the easements granted
on said map within said subdivision, and approving subdivision
improvement agreement for the completion of improvements required by
said subdivision, and authorizing the Mayor to execute said agreement.
) Resolution Irr, J Approving Supplemental Subdivision
. Improvement Agreement for Chula Vista Tract 96-05, Rancho del Rey,
SPA III, Phase I, Unit 2 .
SUBMITTED BY: Director of Public Works ~
REVIEWED BY: City Manage~ Þo~ (4/5ths Vote: Yes_No..x.)
On July 16, 1996, by Resolution 18366, City Council approved the Tentative Subdivision Map
for Chula Vista Tract 96-05, Rancho del Rey SPA III, Parcel R-7. On that tentative map, unit
boundaries were delineated. The final maps for Unit 1 and Unit 2 are now before Council for
approval.
RECOMMENDATION: That Council approve the Resolutions approving the Final Maps,
Subdivision Improvement Agreements and Supplemental Subdivision Improvement Agreements.
BOARDS/COMMISSIONS RECOMMENDATION: Not applicable.
13-/
- .,---.'-_.- - - . --~.~..~-"---"-"."" --.---,
Page 2, Item_
Meeting Date 2/25/97
DISCUSSION:
The projects are generally located on the south side of East "H" Street, east of Paseo Del Rey.
The final map for Chula Vista Tract 96-05, Rancho del Rey SPA III, Phase 1, Unit 1 consists of
a total of 132 single family residential lots and a total of 4 lots for open space, public utilities, and
other public uses. A Plat of the subdivision is attached (Exhibit A).
The final map for Unit 1 has been reviewed by the Public Works Department and found to be in
substantial conformance with the approved Tentative Map. Approval of the map constitutes
acceptance by the City of all tree planting, and access easements within the subdivision. Approval
of the map also constitutes acceptance, on behalf of the public, of Camino Del Sol, Camino La
Paz, Tierra Del Rey, Plaza La Paz, portion of Paseo Del Rey and a portion of East "H" Street.
Approval of the map also constitutes acceptance oflots "A" ,"B", "C" and "D" for open space and
other public uses, including a 10' general utility easement, within said lots, for the installation and
maintenance of utilities.
The final map for Chula Vista Tract 96-05, Rancho del Rey SPA III, Phase 1, Unit 2 consists of
a total of 151 single family residential lots and a total of 3 lots for open space, public utilities, and
other public uses. A plat of the subdivision is attached (Exhibit B).
The fmal map for Unit 2 has been reviewed by the Public Works Department and found to be in
substantial conformance with the approved Tentative Map. Approval of the map constitutes
acceptance by the City of all drainage, sewer, tree planting, and access easments within the
subdivision. Approval of the map also constitutes acceptance, by the public, of Camino Del Sol,
Camino Del Rey, Plaza Amistad, Calle Del Amor, Via Mar Azul, Via Marina, Via Luna and a .
portion of East "H" Street. Approval of the map also constitutes acceptance of lots "A", "B" and
"C" for open space and other public uses, including a 10' general utility easement, within said
lots, for the installation and maintenance of utilities.
The developer has executed Supplemental Subdivision Agreements for Units 1 and 2 to satisfy the
following conditions of Resolution 18366.
1. Condition No. 24 of the resolution requires developer to agree that the City may withhold
building permits for the subject subdivision if anyone of the following occur:
A. Regional development threshold limits set by the East Chula Vista Transportation
Phasing Plan have been reached.
B. Traffic volumes, levels of service, public utilities and/or services exceed the
adopted City threshold standards in the then effective Growth Management
Ordinance.
Jj-;J.
- ----._".._-.~._._,.,_._..,--
Page 3, Item_
Meeting Date 2/25/97
C. The required public facilities, as identified in the PFFP or as amended or otherwise
conditioned, have not been completed or constructed to the satisfaction of the City.
2. Condition No. 25 of the resolution requires developer to agree to defend, indemnify and
hold harmless the City and its agents, officers and employees, from any claim, action or
proceeding against the City.
3. Condition No. 26 of the resolution requires developer to agree to hold the City harmless
from any liability for erosion, siltation or increase flow of drainage resulting from this
project.
4. Condition No 27 of the resolution requires developer to agree to ensure that all franchised
cable television companies are permitted equal opportunity to place conduit and provide
cable service to each lot within the subdivision.
5. Condition No. 28 of the resolution requires developer to agree to provide, prior to
issuance of any building permits, a noise study addressing noise impacts generated by
major streets surrounding the project.
6. Condition No. 29 of the resolution requires developer to agree to provide the initial cycle
of fire management and brush clearance in areas of the site adjacent to natural open space
prior to issuance of building permits.
7. Condition No. 30 of the resolution requires developer to agree to install fire hydrants at
every 500 ft and make them operable prior to delivery of combustible building materials.
8. Condition No. 32 of the resolution requires developer to submit a list of all facilities
located on open space lots to be maintained by the existing open space landscape
maintenance district.
9. Condition No. 52 of the resolution requires developer to comply, implement and remain
in compliance with the mitigation measures required by the Environmental Impact Report
FEIR-89-1O.
The developer has executed Subdivision hnprovement Agreements for the Unit 1 and 2 maps and
has provided bonds to guarantee construction of the required public improvements (CV drawings
96-214 through 96-223 for Unit 1 and drawings 96-224 through 96-233 for Unit 2). The
developer has paid all applicable fees and has provided bonds to guarantee subdivision
monumentation.
Plats are available for Council viewing.
I:J ..;¡
-- .- --..------..-..'-.,..-- .."..--
Page 4, Item_
Meeting Date 2/25/97
FISCAL IMPACT: None. All Staff costs associated with processing of improvement plans and
fmal maps will be reimbursed from developer deposits.
Attachments:
~
E~- Plat - Rancho del Rey SPA 3, Phase 1, Unit 1 ~
Ex . - Plat - Rancho del Rey SPA 3, Phase 1, Unit 2 #"
Efit C - Disclosure Statements (ì
~ 'bit D - Minutes of 7/16/96 (Resolution 18366) &,'ð
~ ~O
M:\Home\Engineer\Agenda\RR308.GV
File: 0600-SO-RR-308
February 19. 1997 (4:18pm)
1.:1-,/
-.",. ._. _.Mo.m·_·_"._._·_...._ ___.
RESOLUTION NO. JfYÍtrr
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING FINAL MAP OF CHULA VISTA
TRACT 96-05 RANCHO DEL REY SPA III, PHASE 1,
UNIT 1, ACCEPTING ON BEHALF OF THE PUBLIC THE
PUBLIC STREETS DEDICATED ON SAID MAP,
ACCEPTING THE EASEMENTS GRANTED ON SAID MAP
WITHIN SAID SUBDIVISION, AND APPROVING
SUBDIVISION IMPROVEMENT AGREEMENT FOR THE
COMPLETION OF IMPROVEMENTS REQUIRED BY SAID
SUBDIVISION, AND AUTHORIZING THE MAYOR TO
EXECUTE SAID AGREEMENT
NOW, THEREFORE, BE IT RESOLVED that the City Council of
the City of Chula vista hereby finds that that certain map survey
entitled CHULA VISTA TRACT 96-05, RANCHO DEL REY SPA III, PHASE 1,
UNIT 1, and more particularly described as follows:
Being a subdivision of Lot 1 of Chula vista Tract No. 90-
02, Rancho Del Rey SPA III, Master Final Map, in the city
of Chula Vista, County of San Diego, State of California,
according to Map thereof NO. 13176 filed December 14,
1994, in the office of the County Recorder of San Diego,
state óf California.
Area: 79.097 acres NO. of Lots: 136
Numbered Lots: 132 Lettered Lots: 4
is made in the manner and form prescribed by law and conforms to
the surrounding surveys; and that said map and subdivision of land
shown thereon is hereby approved and accepted.
BE IT FURTHER RESOLVED that said Council hereby accepts
on behalf of the public the public streets, to-wit: Camino del Sol,
Camino la Paz, Tierra del Rey, Plaza la Paz, a portion of East "H"
street, and a portion of Paseo del Rey and said streets are hereby
declared to be public streets and dedicated to the public use.
BE IT FURTHER RESOLVED that Lots A, B, C and D are hereby
accepted in fee for open space, pUblic utilities and other public
uses, including a 10' general utilities easements within said lots
for the installation and maintenance of public utilities.
BE IT FURTHER RESOLVED that said Council hereby accepts
on behalf of the city of Chula vista the easements with the right
of ingress and egress for the construction and maintenance of
drainage and sewer facilities, storm drain and access and tree
planting and maintenance, as granted and shown on said map within
said subdivision, subject to the conditions set forth thereon.
I;lA -/
,.-._~~-----_.__.-
BE IT FURTHER RESOLVED that the City Clerk of the City of
Chula vista be, and she is hereby authorized and directed to
endorse upon said map the action of said Council; that said Council
has approved said subdivision map, and that said portions of public
streets are accepted on behalf of the public as heretofore stated
and that certain easements with the right of ingress and egress for
the construction and maintenance of drainage and sewer facilities,
storm drain and access, tree planting and maintenance, as granted
thereon and shown on said map within said subdivision is accepted
on behalf of the City of Chula vista as hereinabove stated.
BE IT FURTHER RESOLVED that the city Clerk be, and she is
hereby directed to transmit said map to the Clerk of the Board of
Supervisors of the County of San Diego.
BE IT FURTHER RESOLVED that that certain Subdivision
Improvement Agreement dated the day of , 1997, for
the completion of improvements in said subdivision, a copy of which
is attached hereto and by reference made a part hereof, the same as
though fully set forth herein be, and the same is hereby approved.
BE IT FURTHER RESOLVED that the Mayor of the City of
Chula Vista is hereby authorized and directed to execute said
agreement for and on behalf of the City of Chula vista.
Presented by Approved as to form by
John P. Lippitt, Director of {þtlð,T¡J1C~~-W
Jo M. Kaheny f City
Public Works Attorney
C:\rs\rdrIII1.1
I.JA "tJ..
-..~-_."--- " ------~------.._,._._-"-_. -..........-.-.-.
RESOLUTION NO. ) rrr'f
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING SUPPLEMENTAL SUBDIVISION
IMPROVEMENT AGREEMENT FOR CHULA VISTA TRACT
96-05, RANCHO DEL REY, SPA III, PHASE 1, UNIT
1
WHEREAS, the developer of Chula vista Tract 96-05 Rancho
Del Rey SPA has executed Supplemental Subdivision Agreements for
units 1 and 2 to satisfy the following conditions of Resolution
18366.
1. Condition No. 24 of the resolution requires developer to agree
that the City may withhold building permits for the subject
subdivision if anyone of the following occur:
A. Regional development threshold limits set by the East
Chula Vista Transportation Phasing Plan have been
reached.
B. Traffic volumes, levels of service, public utilities
and/or services exceed the adopted City threshold
standards in the then effective Growth Management
Ordinance.
C. The required public facilities, as identified in the PFFP
or as amended or otherwise conditioned, have not been
completed or constructed to the satisfaction of the city.
2. Condition No. 25 of the resolution requires developer to agree
to defend, indemnify and hold harmless the City and its
agents, officers and employees, from any claim, action or
proceeding against the city.
3. Condition No. 26 of the resolution requires developer to agree
to hold the City harmless from any liability for erosion,
siltation or increase flow of drainage resulting from this
project.
4. Condition No 27 of the resolution requires developer to agree
to ensure that all franchised cable television companies are
permitted equal opportunity to place conduit and provide cable
service to each lot within the subdivision.
5. Condition No. 28 of the resolution requires developer to agree
to provide, prior to issuance of any building permits, a noise
study addressing noise impacts generated by major streets
surrounding the project.
1
J:JO-I
....._-- ._._._---~-".__._. ,.,--,---.
6. condition No. 29 of the resolution requires developer to agree
to provide the initial cycle of fire management and brush
clearance in areas of the site adjacent to natural open space
prior to issuance of building permits.
7. condition No. 30 of the resolution requires developer to agree
to install fire hydrants at every 500 ft and make them
operable prior to delivery of combustible building materials.
8. condition No. 32 of the resolution requires developer to
submit a list of all facilities located on open space lots to
be maintained by the existing open space landscape maintenance
district.
9. Condition No. 52 of the resolution requires developer to
comply, implement and remain in compliance with the mitigation
measures required by the Environmental Impact Report FEIR-89-
10.
NOW, THEREFORE, BE IT RESOLVED the city Council of the
City of Chula vista does hereby approve Supplemental Subdivision
Improvement Agreement for Chula vista Tract 96-05, Rancho del Rey,
SPA III, Phase 1, unit 1-
BE IT FURTHER RESOLVED that the Mayor of the City of
Chula vista is hereby authorized to execute said Agreement on
behalf of the city of Chula vista.
Presented by Approved as to form by
c ~-c ...---
Lippitt, Director of ~f!iz~~ ~
John P. o . . Kaheny City~t rn
Public Works
C:rs\rdrapa.8Up
2
J3/1-~
. ----_._-- .--..--,-....-----. - -.--.-..-,.-- ..---..-.------
RESOLUTION NO. I Jtlf9/J
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING FINAL MAP OF CHULA VISTA
TRACT 96-05 RANCHO DEL REY SPA III, PHASE 1,
UNIT 2, ACCEPTING ON BEHALF OF THE PUBLIC THE
PUBLIC STREETS DEDICATED ON SAID MAP,
ACCEPTING THE EASEMENTS GRANTED ON SAID MAP
WITHIN SAID SUBDIVISION, AND APPROVING
SUBDIVISION IMPROVEMENT AGREEMENT FOR THE
COMPLETION OF IMPROVEMENTS REQUIRED BY SAID
SUBDIVISION, AND AUTHORIZING THE MAYOR TO
EXECUTE SAID AGREEMENT
NOW, THEREFORE, BE IT RESOLVED that the city Council of
the City of Chula vista hereby finds that that certain map survey
entitled CHULA VISTA TRACT 96-05, RANCHO DEL REY SPA III, PHASE 1,
UNIT 2, and more particularly described as follows:
Being a subdivision of portions of Lots 14 and 15 of
Chula vista Tract No. 90-02, Rancho Del Rey SPA III,
Master Final Map, in the city of Chula vista, County of
San Diego, State of California, according to Map thereof
No. 13176 filed December 14, 1994, in the office of the
County Recorder of San Diego, State of California.
Area: 61.211 acres No. of Lots: 154
Numbered Lots: 151 Lettered Lots: 3
is made in the manner and form prescribed by law and conforms to
the surrounding surveys; and that said map and subdivision of land
shown thereon is hereby approved and accepted.
BE IT FURTHER RESOLVED that said Council hereby accepts
on behalf of the public the public streets, to-wit: Camino del Sol,
Camino del Rey, Plaza Amistad, Calle del Amor, Via Mar Azul, Via
Mariana, Via Luna and a portion of East "H" street, and said
streets are hereby declared to be public streets and dedicated to
the public use.
BE IT FURTHER RESOLVED that Lots A, Band C are hereby
accepted in fee for open space, public utilities and other public
uses, including a 10' general utilities easements within said lots
for the installation and maintenance of public utilities.
BE IT FURTHER RESOLVED that said Council hereby accepts
on behalf of the City of Chula vista the easements with the right
of ingress and egress for the construction and maintenance of
drainage and sewer facilities, storm drain and access and tree
planting and maintenance, as granted and shown on said map within
said subdivision, subject to the conditions set forth thereon.
I:lC-/
---- .....--.----.--.--
BE IT FURTHER RESOLVED that the City Clerk of the City of
Chula vista be, and she is hereby authorized and directed to
endorse upon said map the action of said Council; that said council
has approved said subdivision map, and that said portions of public
streets are accepted on behalf of the public as heretofore stated
and that certain easements with the right of ingress and egress for
the construction and maintenance of drainage and sewer facilities,
storm drain and access, tree planting and maintenance, as granted
thereon and shown on said map within said subdivision is accepted
on behalf of the City of Chula vista as hereinabove stated.
BE IT FURTHER RESOLVED that the City Clerk be, and she is
hereby directed to transmit said map to the Clerk of the Board of
Supervisors of the County of San Diego.
BE IT FURTHER RESOLVED that that certain Subdivision
Improvement Agreement dated the day of , 1997, for
the completion of improvements in said sUbdivision, a copy of which
is attached hereto and by reference made a part hereof, the same as
though fully set forth herein be, and the same is hereby approved.
BE IT FURTHER RESOLVED that the Mayor of the City of
Chula vista is hereby authorized and directed' to execute said
agreement for and on behalf of the City of Chula vista.
Presented by Approved as to form by
fíJ ~< / ~
llJ.. , u.v'U~A4j
John P. Lippitt, Director of JO~ M. Kaheny; City
Public Works Attorney
c: \rs\rdrIJI1.2
13C-~
., -.,.. ',.--..,"---'--'-----'-""-- ---~
RESOLUTION NO. 11'.5''1 J
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING SUPPLEMENTAL SUBDIVISION
IMPROVEMENT AGREEMENT FOR CHULA VISTA TRACT
96-05, RANCHO DEL REY, SPA III, PHASE 1, UNIT
2
WHEREAS, the developer of Chula vista Tract 96-05 Rancho
Del Rey SPA has executed Supplemental Subdivision Agreements for
units 1 and 2 to satisfy the following conditions of Resolution
18366.
1. Condition No. 24 of the resolution requires developer to agree
that the City may withhold building permits for the subject
subdivision if anyone of the following occur:
A. Regional development threshold limits set by the East
Chula vista Transportation phasing Plan have been
reached.
B. Traffic volumes, levels of service, public utilities
and/or services exceed the adopted City threshold
standards in the then effective Growth Management
Ordinance.
C. The required public facilities, as identified in the PFFP
or as amended or otherwise conditioned, have not been
completed or constructed to the satisfaction of the city.
2 . Condition No. 25 of the resolution requires developer to agree
to defend, indemnify and hold harmless the city and its
agents, officers and employees, from any claim, action or
proceeding against the city.
3. Condition No. 26 of the resolution requires developer to agree
to hold the city harmless from any liability for erosion,
siltation or increase flow of drainage resulting from this
project.
4. Condition No 27 of the resolution requires developer to agree
to ensure that all franchised cable television companies are
permitted equal opportunity to place conduit and provide cable
service to each lot within the subdivision.
5. Condition No. 28 of the resolution requires developer to agree
to provide, prior to issuance of any building permits, a noise
study addressing noise impacts generated by major streets
surrounding the project.
1
I:JJ) -I
--.--,--." - -- -,.,-~----_._-'---~-'
6. Condition No. 29 of the resolution requires developer to agree
to provide the initial cycle of fire management and brush
clearance in areas of the site adjacent to natural open space
prior to issuance of building permits.
7. Condition No. 30 of the resolution requires developer to agree
to install fire hydrants at every 500 ft and make them
operable prior to delivery of combustible building materials.
8. Condition No. 32 of the resolution requires developer to
submit a list of all facilities located on open space lots to
be maintained by the existing open space landscape maintenance
district.
9. Condition No. 52 of the resolution requires developer to
comply, implement and remain in compliance with the mitigation
measures required by the Environmental Impact Report FEIR-89-
10.
NOW, THEREFORE, BE IT RESOLVED the city Council of the
City of Chula vista does hereby approve Supplemental Subdivision
Improvement Agreement for Chula vista Tract 96-05, Rancho del Rey,
SPA III, Phase 1, unit 2.
BE IT FURTHER RESOLVED that the Mayor of the City of
Chula vista is hereby authorized to execute said Agreement on
behalf of the City of Chula vista.
Presented by Approved as to form by
(ß J?lt~ä
John P. Lippitt, Director of J~. Kaheny, ity t rn y
Public Works
2
1.3]) "tÀ.
"._"'-"--~ ---.
SHEEET 1 OF 2 SHEETS
~ ";)J
~O
~~
" or-
\ cjY'
\\ ".. ¿
\\ r- cp .
\\ -g. ~ :..-\.
1\1 \ y ~ y
" '"'0 CP ...-\.
" -:z- --0 :p
\O'Y'"y
\\. :::::; 0
\ -:..-\.
" :¥:. -:z-
\ \\ ,%9
\\ ..... cP
\ - c:P
VICINITY MAP " c:::.6
" ~a-
NO SCAlE \\ ~
"
\\
"
"
\\
\
~" \
\
\ \
\ \ ~
\ ~~~~ \
\ ~\ \ \ \
" ~ \ ~,f,)
'-~\\" ~()
...... ~ ... "
", ~"""--~O'
,,~,,~ ~<?
" .......... ~ '- ~ EXHIBIT "A"
,,~'\......
~<b 0'" .....
~ ~ ....
\? ~'? t>.'Õ PREPARED BY:
~ ^,O'Õ CRAIG, BULTHUIS & STELMAR
""" 0 200 """ 800 800 Cbil En¡ineerü>¡ , Lod Sune1iDl . lAnd PIIDDinc
~- ....J I I I I ,
2611 ADAMS AVE SAN DIEGO CA 92116
GRAPHIC SCALE: 1"= 400' PHONE: (619) 297-3974
SHEEET 2 OF 2 SHEETS
CHULA VISTA TRACT NO. 96-05
RANCHO DEL REY SPA III, PHASE 1, UNIT 1
I
I
I
ì r //
~
~ , ij"<v
# ~ ,~~
--= <$' 4-
I ~ ~' 'v~
~ f':<::J
I ~è--.~ /~
, #ij
~rt h
"
fV ~ Of¡ R£.Y~
,~ ,~lç
~<:ö ~~
~' ~ '\ '\ ~~~
~ <"t- '\ '\ ~~" '\
r-.. ~ \: '\ '\ I
~W '" '\ \~'\ '
I A..,t.(- ~ '\ f!!'\ '
I ¡Jf ,
~ ~ ~"
!-..'t- ~
~~ ~',\/('\~
~'t- '*' - -....>-,C> .......-
./ yo
/. ./
~ v./'-þ./
Cj y ~ í
I
;,4, ~rv
I I --$i ~'
. 0' I ~
í .~ ~
~ I 9-
--.5> ~ I~~
~ ,
I
---
,
I
-- ,
Cb _- i
--
o ............
......
......
,'f'þt
-I-~4'
--$i"A.
EXHIBIT "A"
PREPARED BY:
400 0 200 400 000 000 CRAIG, BULTHUIS & STELMAR
h --1 I I I I CIYil lD¡Ineerioc . lad Surfe1in& · lad PIamIiD¡
GRAPHIC SCALE: 1"= 400' 2611 ADAMS AVE SAN DIEGO CA 92116
PHONE: (619) 297-3974
-~-~,-
SHEEET 1 OF 1 SHEETS
CHULA VI S T A TRACT NO. 96-05
RANCHO DEL REY SPA III, PHASE 1, UNIT 2
~
,'"
'b'l:i
0'..
A.,~.t-
CI~... ~I:>..
~~~ (b~
A:.~...o,; ~fI:f.l"
9;¡"'fo.¡'~0· 0'"
-<&3 ~ ~.."
~'y'fo,¡f~~ CI"~
"~~"'(b'b'br¡.
CI 'fo'" "
..~";¡.~o·
»'y'fo .¡' ~~
ft';l' \~
fI''). i~
0,>,
v-0).ø- 0",-
;;.~-
>oo~ .... '>'~~
~1'~"~fl1 "'-<'>'
~ >oø~ 12-'" ~ -z:,. J,
>o -. \~ø- v-0' o..~
o~o"o ~ >o\' .' ,.."v
'r.ë::.~~
.. .....
~ '-<~'Z
~I \ IS) ~o
...
o ,. '"
. q
./ / ;,~
~
"'~
",of //
"'::// Z C/o
o' -
:;,:11
...¡"- 90'0'1. ,
~$f t'" ~ \O·...iØ
, -¡\'o'" .""..~
f!~ ,., \ \ß~."'~~Z111
.. .
¡!t;'~ CI-lU\. 011I- !' 1'10.
~o;.q, ",,"0,,0 tIJ'
:»,#~ 1.~
'" ~
11 .:.: .
01 ~ .~
- '';-9;¡-<''ZI,1 ~
-<~ 'b
.... uk ° ,;"\-èJ'y' >o~0~~", VICINITY MAP
~y¡ 0....~...O';
~~~~O· NO SCAlE
I. II'" '110-6'1 .... L \ .~' >o\' "B"
..- /t.?1; ~ 1'1°. \~O9119 EXHIBIT
..: -¡",o 1'1°. /
, t\ \¡;-¡þ.~~
\-11>\''''
C ./' PREPARED BY:
'00 0 200 '00 800 800 CRAIG, BULTHUIS & STELMAR
h ....J I I I I Chtl b&lne<riD& . Land SuneylD¡ . Land l'IaImbI¡ I
GRAPHIC SCALE: 1"", 400' 2611 ADAMS AVE SAN DIEGO CA 92116
PHONE: (619) 297-3974 I
. !2ÒR. SP/J .llL Phase. I, tin/!" / \
.
THE C'IY OF CiUL\ VlSI"A DISa.OsURE STA'IEMENT
-
. You are required 10 nle a SLllemenl of Disclosure of ccnain ownersbip or tlnancial inlereslS. ply\llCIIIS, or campalp
oonlribulions. on all maners which will require discrelionary aClion on Ihe pan of Ihe Ory Council, Planning Commission, and
,- ) her orocial bodies. The following information must be disclosed:
....
I. UsI Ibe names of al1 persons baving a financial interest in the propeny wbich is Ibe subject of Ibe applicalion or Ibe
oonlraa, c.z.. owner, appJicanl, cunlraClor, sUbcontraClor, material supplier.
KANCHO DEL REV INVESTORS. 1. P.
A CALIFORNIA LIMITED PARTNERSHIP
2. U any person" IdCDIUIcd pursuanllo (I) above is a curporalion or panncrsblp, IJsllbe Dames of aU IDcIlvlduals OWIIÚIg
more Iban 10% of Ibe shares in Ibe curporalion or owning any pannersbip ÎDleresl in Ibe panncrsJúp.
"MlTßF.rJT TT~A TNr.
McMILLIN-RDR. INC.
;
3. U any person" idenUfied pursuant 10 (I) lbove is non·profit organizalion or a lrust, lisl Ihe Damcs of any penon
serving as director of Ihe non·pront organizalion or as IrustCC or beneficiary or lrustor of Ihe IrusL
N/A
I ,
4. Have you had more Ihan S250 wonh of business IransaCled with any member of Ihe Ory SLltr. Boards, Commissions.
Comminccs, and Council within Ihe pasl \welve months? Yes_ No~ If yes. please indicate person(s):
S. Please identify each and every person, including Iny agents. employees, cuDSuhanlS. or independent oonlraClors wilo
you have assigned to represent you before Ihe Ciry in this maner.
Craig T. Fukuyama Kenneth Baumgartner
Thom Fuller
Virgil E. Elliott
6- Have you and/or your Omccrs or agenlS, ÎD Ihe Iwegale, ooDlribuled more Iban SUIOO 10 a Counå1mcmber In the
c:urrent or preceding election period? Yes_ No~ If yes, SLlle wbich Councilmember(s):
Dale: Fe6ru<lrý · · · (NO'Œ: Anada addiliollal pap ~ ~
3, /'1r7 _
Signa lure of oonuaClor/applicaDl
- EXHIBIT "e" Ýi rq;! £. Ð/io-ll, Ex<=a{¡ lie. Vice Pr,,"s.
.
v Print or type name of CUntraClor/appücanl
" ð!æJ.iukfillutu: 'AnyiNJividw,¡,/fmI. ---,.. joØv-""",..o- _iIJI cbUo.fr-riIJJ _... ;.~...... __ _ ....._, .,...J'-.....
WI_.., ØI/w -...y, "'" - c-.y. ciIy~. ..-....c, or _ poiitical ~ or.., ØI/w ""'" or ~"" 1ICaIII-' _'
~ -"~-_._._-_.-
. R.DR. SPI/ III: Ph¡zse ({.¡,,/,.~
nœ cny OF aruu. VJSrA DISC..OSURE! STA"IEdENT
You are required to tile a Statement of Disclosure of œnain ownetsbip or IInancial interests, payments, or campaip
contributions, on aU manets ....hich will require discretionary action On tbe pan of the City Council, Planning Commission and
Hher ofticial bodies. The fOlJowing information must be disclosed:
...
1. Usttbe names of all persons baving a financial interest in the property ....bich is tbe subject of tbe application or Ibe
contract, e.g., owner, applicant, contractor, subcontractor, material supplier.
HANCHO DET. REV INVESTORS. L. P.
A CALIFORNIA LIMITED PARTNERSHIP
2- U any persoD· Idenlllied pUtsuanl 10 (I) above Is a corporation or pannetship, 1Isllbe names of aU individuals ownIDg
more IbaD 10% of Ibe shares in Ibe corporalion or owning any pannetsbip interesl in Ibe pannenbip.
TRTnFNT TT~A TNr.
McKILLIN-RDR, INC.
3. If any petson· idenl/fied putsuant 10 (I) above is non·profit organizalion or a lrusl, IIsI the names of Iny persoD
serving as director of the non-profit organization or as lruslee or beneficiary or lrustor of the trusL
N/A
( ,
4. Hive you hid more Ihan S250 wonh of business transacted with any member of Ihe City Stair, Boards. Commissions,
CGmminees, Ind Council within the past twelve months? Yes_ No.2.., If yes, please indicate person(s):
5. Please identify each and every petson, including any agents. employees, consultants, or independent conlractots wIIo
you have assigned to represent you before Ihe City in this malter.
Craig T. Fukuyama Kenneth Baumgartner
Thom Fuller
Virgil E. Elliott
6- Have you and/or your oftiœts or agents, in Ihe aggregate, contributed more Ihan SI.000 10 I CouDà1member in the
curreDt or precediDg electioD period? Yes_ No2., U yes, state ....bicb CouDcilmember(s):
.. · (NOTE .... __..... ~. . ~
Date: Febrtu!lrf --:! /997 -. :t: ~.I!æ
Signature of CODUlctorlapplicaDI
It! EXHIBIT "C" vi rqi I E. Elliott £r=u..ti ¡Ie... V,·ce-/h~.
- Print or type Dime of conlractorlapplicanl
. ð!æuMflncdtu: 'AIry~/fmo. -ptftIVn/Iip,joiN_ UIOC........_"".bdo,tr-rvM..... .._..... ""r--. _ ......_. ."........
1ItiI_ ..., Øfiw ~, QJy - ........,., QJy "'WU&1pGiúy, ......, '" _ f1'OIuK'" -......"" '" ..., _ """'" '" _Oft .....",... "",,'
3. REC::OLUTTON 1&366 AMI!\"DrsG THE RASCHO DEL REY SPA In 5::CTJOSAL PL.';"!\1\"1)'\G
AREA (SPA)?L.';"J' CHA,"iGrsG PARCELR-i LA!\"DVSEDES1GSATJOS rnœ·j SPECIALTY HOUSlNG
(SF!) TO SlNGLE F AJ>ill..Y DETACHED (Sill) A!\"D SrsGLE FAJ>¡Il.. ì' A IT AC:£D (SF A); APPRO\'NG
TESTATI\=: SU13DI\1SJOS MAP FOR 156 ACRES AT THE RASCHO DEL REì' SPA HI, TRACT 96-06
k'\"D ADOPTrsG ADDE!\1)l;¡'¡ TO FEIR &9-10
D~:ih¡J~~: Mo.::>t S~l~ 0.¡~ it wou1ò b: n~~ssz0' fo; ~i;7) 10 :sbs:¡:n f,O;;) p2.r1i:i?::.::ng b---::.2US: h:. i\'::5 within
3W j~ "",d ~:s Ü= ~?r='-' M:MiJlin.
CDu¡)=ilm~~J .lJ:v)' 5:21:.:3 2.1Ü'JDugn h~ W2.S living within) .50:> f~ of 1:': z:~, &f.~:- conS\J1ting -.:.;:h tn: A:ting
City Attorn:)" ",d tho Pl,~~;"~ D:?z,-,m:nt, it wzs d:t:"";n:.d that thoro would b: nO conni:1 of inl:r:st 2Jld h:
::':¡:.11d pÃrtj::l?¡~.
Luis H~""DZIlè:2., ..L..sSXië.l: ?l:æ-"':J'):r. pr~nt:.:3 th: slÃfi r:pCl:'1.
Tn:s ~ing ili: tim: !!Jd pl!::: f.S 3d\':nj~. t~: rubli: h:2ring W2.S ~~hr~ Dj>:n.
. G10ri.2 c;'1:1ZSl.1r:, 573 E.u! .;- StT2t, Cm.:h. Vis:¿, CA. ~~k:. i:'J O??~sjljDn to ::-:: s:2fí r:::=:o¡;'..."TI:.nè.2tion.
. C:'2.ig FUh~y,;,,"T'.2.. 272ï BOCI"~:- A"~u~, N¡1io;¡:d City. CA 91950, ::.:¡:-=s~ntin~ R¡",¡:ho cd R"" b.....~10jS 1 P
0"''''= of Ib- R :J:¡ . JR' . . . -,' ,_. "
_ . z=) 0 C~ :y ?rDJ::.::t. S?ol:~ m '2\'or of lh:. s:2ff :-::.::o::¡,,::):.nòation.
T~::-~ ~ÌDg:10 fur1ÌJ~r publ;: 1::51i:TIDny, th~ ?ublj: h:2.';ng v,,"2.S è:.::1z:d cJDS~.
~
EXHIBIT "D"
RECORDING REQUESTED BY, AND
WHEN RECORDED MAIL TO:
CITY OF CHULA VISTA
276 Fourth Avenue
Chula Vista, CA 91910
No transfer tax is due as this is a conveyance to a
public agency of less than a fee interest for which no
cash consideration has been paid or received.
SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT
Rancho del Rey SPA III, Phase 1, Units 1 and 2
J.i¡ This Supplemental Subdivision Improvement Agreement ("Agreement") is made this
11- day ofFe-Druar'f ,1997, by and between THE CITY OF CHULA VISTA,
California ("City" or "Grantee" for recording purposes only) and RANCHO DEL REY
INVESTORS, L.P., a California limited partnership ("Developer" or "Grantor" for recording
purposes only), with reference to the facts set forth below, which recitals constitute a part of this
Agreement:
A. This Agreement concerns and affects real property located in Chula Vista,
California, more particularly described on Exhibit "A" attached hereto and incorporated herein
("Property"). Property is also commonly known as Rancho del Rey SPA III Parcel Phase I,
Units 1 and 2, a proposed land development project ("Project"). For purposes of this
Agreement, the term "Project" shall include the term "Property."
B. Developer is the owner of the Property.
C. City has approved a Tentative Subdivision Map commonly referred to as Rancho
Del Rey SPA III Parcel R-7, Chula Vista Tract 96-05 ("Tentative Subdivision Map") for the
subdivision of the Property.
D. City has adopted Resolution No. 18366 ("Resolution") pursuant to which it
approved the Tentative Subdivision Map subject to certain conditions as more particularly
described in the Resolution. The description of the conditions in this recital section of this
Agreement is intended only to summarize and paraphrase such conditions in the Resolution, and
is not intended herein to modify or explain them, and is not intended as a basis for interpreting
them.
E. Developer is ready to file final maps for the Property (the "Final Map") and by
this Agreement will satisfy a number of conditions of the Resolution required to be satisfied
prior to the filing of the Final Map.
-1-
~_..~...."--_.-..,_._.,- -.-
F. Condition No. 24 of the Resolution requires Developer to agree that the City may
withhold building permits for the subject subdivision if anyone of the following occur:
1. Regional development threshold limits set by the East Chula Vista
Transportation Phasing Plan have been reached.
2. Traffic volumes, levels of service, public utilities and/or services exceed
the adopted City threshold standards in the then effective Growth
Management Ordinance.
3. The required public facilities, as identified in the PFFP or as amended or
otherwise conditioned have not been completed or constructed to
satisfaction of the City. The developer may propose changes in the timing
and sequencing of development and the construction of improvements
affected . In such case, the PFFP may be amended as approved by the
City Planning Director and Public Works Director.
G. Condition No. 25 of the Resolution requires Developer to agree to defend,
indemnify and hold harmless the City and its agents, officers and employees, from any claim,
action or proceeding against the City, or its agents, officers or employees to attack, set aside,
void or annul any approval by the City, including approval by its Planning Commission, City
Councilor any approval by its agents, officers, or employees with regard to this subdivision
pursuant to Section 66499.37 of the State Map Act provided the City Promptly notifies the
subdivider of any claim, action or proceeding and on the further condition that the City fully
cooperates in the defense.
R. Condition No. 26 of the Resolution requires Developer to agree to hold the City
harmless from any liability for erosion, siltation or increase flow of drainage resulting from this
project.
I. Condition No. 27 of the Resolution requires Developer to agree to (i) ensure that
all franchised cable television companies ("Cable Company") are permitted equal Opportunity
to place conduit and provide cable television service to each lot within the subdivision and (ii)
when directed by the City, restrict access to the conduit to only those franchised cable television
companies who are, and remain in compliance with, all of the terms and conditions of the
franchise and which are in further compliance with all other rules, regulations, ordinances and
procedures regulating and affecting the operation of cable television companies as same may
have been, or may from time to time be issued by the City of Chula Vista.
J. Condition No. 28 of the Resolution requires Developer to agree to provide, prior
to issuance of any building permits a noise study addressing noise impacts generated by major
streets surrounding the project (East "R" StreetlPaseo Ranchero). Developer shall take the
necessary measures to preclude interior noise levels over 45 dBA and shield all exterior private
open space with solid masonry walls and or buildings to limit noise exposure to 65 dBA.
-2-
K. Condition No. 29 of the Resolution requires Developer to agree to provide the
initial cycle of fire management! brush clearance in areas of the subject site adjacent to natural
open space to the satisfaction of the Fire Marshal and the Director of Parks and Recreation
Department prior to issuance of building permits.
L. Condition No. 30 of the Resolution requires Developer to agree to install fire
hydrants at every 500 ft and make them operable prior to delivery of combustible building
materials. Exact location of fire hydrants shall be reviewed and approved by the Fire Marshall
prior to installation.
M. Condition No. 32 of the Resolution requires Developer to submit a list of all
facilities located on open space lots to be maintained by the existing open space landscape
maintenance district. This list shall include a description, quantity and unit price per year for
the perpetual maintenance of all facilities located on open space lots to include but not be limited
to: walls, fences, water fountains, lighting structures, paths, access roads, drainage structures
and landscaping. Only those items on an open space lot are eligible for open space maintenance.
Each open space lot shall also be broken down by the number of acres of turf, irrigated, and
non-irrigated open space to aid the estimation of a maintenance budget thereof.
N. Condition No. 52 of the Resolution requires Developer to comply, implement and
remain in compliance with the mitigation measures required by the Environmental Impact Report
FEIR-89-1O and addendum which are hereby incorporated into this resolution by reference. Any
measure not satisfied by specific condition of this resolution or by the project design should be
implemented to the satisfaction of the Director of Planning. Mitigation measures shall be
monitored via Mitigation Measures Monitoring Program approved in conjunction with FEIR-89-
10. Modification of the sequence of mitigation shall be at the discretion of the Director of
Planning should changes in circumstances warrant such revision.
O. City is willing, on the premises, security, terms and conditions herein contained
to approve the Final Maps as being in substantial conformance with the Tentative Subdivision
Map described in this Agreement.
NOW, THEREFORE, in exchange for the mutual covenants, terms and conditions herein
contained, the parties agree as set forth below.
1. Agreement Applicable to Subsequent Owners.
1.1 Agreement Binding Upon Successors. This Agreement shall be binding
upon and inure to the benefit of the successors, assigns and interests of the parties as to any or
all of the Property until released by the mutual consent of the parties.
1.2 The burden of the covenants contained in this Agreement ("Burden ") is for
the benefit of and in favor of the Property and the City, its successors and assigns and any
successor in interest thereto. City is deemed the beneficiary of such covenants for and in its
own right and for the purposes of protecting the interest of the community and other parties,
public or private, in whose favor and for whose benefit of such covenants running with the land
-3-
_u._,_.__,_.__,_._ _ ____..._...._._......_
have been provided without regard to whether City has been, remained or are owners of any
particular land or interest therein. If such covenants are breached, the City shall have the right
to exercise all rights and remedies and to maintain any actions or suits at law or in equity or
other proper proceedings to enforce the curing of such breach to which it or any other
beneficiaries of this Agreement and the covenants may be entitled.
(a) Developer Release on Guest Builder Assignments. If Developer
assigns any portion of the Project, Developer may have the right to obtain a release of any of
Developer's obligations under this Agreement, provided Developer obtains the prior written
consent of the City to such release. Such assignment shall, however, be subject to this
Agreement and the Burden of this Agreement shall remain a covenant running with the land. The
City shall not withhold its consent to any such request for a release so long as the assignee
acknowledges that the Burden of the Agreement runs with the land, assumes the obligations of
Developer under this Agreement, and demonstrates, to the reasonable satisfaction of the City,
its ability to perform its obligations under this Agreement as it relates to the portion of the
Project which is being acquired by the Assignee.
(b) Partial Release of Developer's Assignees. If Developer assigns
any portion of the Project subject to the Burden of this Agreement, upon request by Developer
or its assignee, the City shall release the assignee of the Burden of this Agreement as to such
assigned portion if such portion has complied with the requirements of this Agreement and such
partial release will not, in the opinion of the City, jeopardize the likelihood that the remainder
of the Burden will be completed.
2. Condition No. 24 - Building Permits. In satisfaction of Condition No. 24 of the
Resolution, the Developer agrees that the City may withhold building permits for the subject
subdivision if anyone of the following occur:
2.1 Regional development threshold limits set by the East Chula Vista
Transportation Phasing Plan have been reached.
2.2 Traffic volumes, levels of service, public utilities and/or services exceed
the adopted City threshold standards in the then effective Growth
Management Ordinance.
2.3 The required public facilities, as identified in the PFFP or as amended or
otherwise conditioned have not been completed or constructed to
satisfaction of the City. The developer may propose changes in the timing
and sequencing of development and the construction of improvements
affected. In such case, the PFFP may be amended as approved by the
City Planning Director and Public Works Director.
3. Condition No. 2S - Subdivision Map Indemnity. In satisfaction of Condition
No. 25 of the Resolution, the Developer agrees that, on the condition that City shall promptly
notify the Developer of any claim, action or proceeding, and on the further condition that City
fully cooperates in the defense, Developer shall defend, indemnify and hold harmless the City
-4-
and its agents, officers and employees, from any claim, action or proceeding against the City,
or its agents, officers or employees to attack, set aside, void or annul any approval by the City,
including approval by its Planning Commission, City Councilor any approval by its agents,
officers, or employees with regard to this subdivision, which action is brought within the time
period provided for in Section 66499.37 of the State Map Act.
4. Condition No. 26 - Erosion, Siltation and Drainage. In satisfaction of
Condition No. 26 of the Resolution, the Developer agrees that, on the condition that City shall
promptly notify the Developer of any claim, action or proceeding, and on the further condition
that City fully cooperates in the defense, Developer shall hold the City harmless from any
liability for erosion, siltation or increase flow of drainage resulting from this project.
5. Condition No. 27 - Cable Television Easements. In satisfaction of Condition
No. 27 of the Resolution, the Developer agrees to permit all cable television companies
franchised by the City of Chula Vista equal opportunity to place conduit to and provide cable
television service for each lot or unit within the Project. Developer further agrees to grant, by
license or easement, and for the benefit of, and to be enforceable by, the City of Chula Vista,
conditional access to cable television conduit within the properties situated within the Project
only to those cable television companies franchised by the City of Chula Vista the condition of
such grant being that (a) such access is coordinated with Developer's construction schedule so
that it does not delay or impede Developer's construction schedule and does not require the
trenches to be reopened to accommodate the placement of such conduits; and (b) any such cable
company is and remains in compliance with, and promises to remain in compliance with, the
terms and conditions of the franchise and with all other rules, regulations, ordinances and
procedures regulating and affecting the operation of cable television companies as same may
have been, or may from time to time be, issued by the City of Chula Vista. Developer hereby
conveys to the City of Chula Vista the authority to enforce said covenant by such remedies as
the City determines appropriate, including revocation of said grant upon a determination by the
City of Chula Vista that they have violated the conditions of the grant.
6. Condition No. 28 - Noise. In satisfaction of Condition No. 28 of the Resolution,
the Developer agrees to provide a noise study addressing noise impacts generated by major
streets surrounding the project (East "R" Street!Paseo Ranchero) and take the necessary
measures to preclude interior noise levels over 45 dBA and shield all exterior private open space
with solid masonry walls and or buildings to limit noise exposure to 65 dBA prior to issuance
of any building permits for this project.
7. Condition No. 29 - Fire Management. In satisfaction of Condition No. 29 of
the Resolution, the Developer agrees to provide the initial cycle of fire management! brush
clearance in areas of the subject site adjacent to natural open space to the satisfaction of the Fire
Marshal and the Director of Parks and Recreation Department prior to issuance of building
permits.
8. Condition No. 30 - Fire Hydrants. In satisfaction of Condition No. 30 of the
Resolution, the Developer agrees to install fire hydrants at every 500 ft or as approved on
improvement plans and make them operable prior to either the issuance of any building permit
-5-
..'_.'._'_'U'_._.""_'___ ...__.___.__~___
for this Project or the delivery of combustible building materials, whichever comes first. Exact
location of fire hydrants shall be reviewed and approved by the Fire Marshall prior to
installation.
9. Condition No. 32 - Open Space Lots. In satisfaction of Condition No. 32 of the
Resolution, the Developer agrees to submit upon request by the City Engineer, a list of all
facilities located on open space lots to be maintained by the existing open space landscape
maintenance district. This list shall include a description, quantity and unit price per year for
the perpetual maintenance of all facilities located on open space lots to include but not be limited
to: walls, fences, water fountains, lighting structures, paths, access roads, drainage structures
and landscaping. Only those items on an open space lot are eligible for open space maintenance.
Each open space lot shall also be broken down by the number of acres of turf, irrigated, and
non-irrigated open space to aid the estimation of a maintenance budget thereof.
10. Condition No. 52 - Mitigation Measures. In satisfaction of Condition No. 52
of the Resolution, the Developer agrees to comply, implement and remain in compliance with
the mitigation measures required by the Environmental Impact Report FEIR-89-10 and addendum
which are hereby incorporated into this resolution by reference. Any measure not satisfied by
specific condition of the Resolution or by the project design should be implemented to the
satisfaction of the Director of Planning. Mitigation measures shall be monitored via Mitigation
Measures Monitoring Program approved in conjunction with FEIR-89-10. Modification of the
sequence of mitigation shall be at the discretion of the Director of Planning should changes in
circumstances warrant such revision.
11. Compliance With Unfuliilled Conditions. Developer agrees to comply with all
the conditions of the Tentative Subdivision Map applicable to the Property which remain
unperformed or unfulfilled at the time of the filing of the Final Maps.
12. Satisfaction of Conditions. City agrees that the execution of this Agreement
constitutes satisfaction of Developer's obligation of Conditions 24, 25, 26, 27, 28, 29, 30, 32
and 52 of the Resolution.
13. Recording. This Agreement, or an abstract hereof prepared by either or both
parties, may be recorded by either party.
14. Miscellaneous.
14.1 Notices. Unless otherwise provided in this Agreement or by law, any and
all notices required or permitted by this Agreement or by law to be served on or delivered to
either party shall be in writing and shall be deemed duly served, delivered, and received when
personally delivered to the party to whom it is directed, or in lieu thereof, when three (3)
business clays have elapsed following deposit in the U.S. mail, certified or registered mail,
return receipt requ~sted, first-class postage prepaid, addressed to the address indicated in this
Agreement. A party may change such address for the purpose of this paragraph by giving
written notice of such change to the other party. Facsimile transmission shall constitute personal
delivery .
-6-
City: CITY OF CHULA VISTA
276 Fourth Avenue
Chula Vista, CA 91910
Attn: Director of Public Works
Developer: RANCHO DEL REY INVESTORS, L.P.
C/o McMillin Project Services, Inc.
2727 Hoover Avenue
National City, California 91950
Attn: Rancho del Rey Project Manager
A party may change such address for the purpose of this paragraph by giving written notice of
such change to the other party in the manner provided in this paragraph. Facsimile transmission
shall constitute personal delivery.
14.2 Captions. Captions in this Agreement are inserted for convenience of
reference and do not define, describe or limit the scope or intent of this Agreement or any of
its terms.
14.3 Entire Agreement. This Agreement contains the entire agreement between
the parties regarding the subject matter hereof. Any prior oral or written representations,
agreements, understandings, and statements shall be of no force and effect. This Agreement is
not intended to supersede or amend any other agreement between the parties unless expressly
noted.
14.4 Preparation of Agreement. No inference, assumption or presumption
shall be drawn from the fact that a party or his attorney prepared or drafted this Agreement.
It shall be conclusively presumed that both parties participated equally in the preparation and/or
drafting this Agreement.
14.5 Recitals; Exhibits. Any recitals set forth above are incorporated by
reference into this Agreement.
14.6 Attorneys' Fees. In the event of any dispute arising out of this
Agreement, the prevailing party in any action shall be entitled to reasonable attorneys' fees in
addition to any other costs, damages, or remedies.
-7-
-..''''...- - ~--~-..~_.~-------~.._--- ~
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be execute
the day and year first hereinabove set forth.
THE CITY OF CHULA VISTA RANCHO DEL REY INVESTORS, L.P.,
a California limited partnership
By: By: McMillin Project Services, Inc.,
Shirley Horton, Mayor a California corporation, as Attorney-In-
Fact under Durable Power of Attorney
Attest: By: ~ l;;la~ -
Name: I
Beverly Authelet, Title: V?
City Clerk ~~e: -1:::¿f !e
Approved as to Form:
tfí~~;¡~:;e;-+~ Title: EA6cu. /I<-"I'Z.... ¡,l,e.¡¿ l-?z&$.
John M. Kahe
City Attorney
M:\Home\Auomey\SSIA \RDRPbl.l&2
-8-
STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN DIEGO )
On féb. II, /997 , before me, Jof~ A. iJrðc/:' , Notary Public,
personally ap~ .... -., 7htJm Tuller< ......
....... - ~ V¡"~;I E. £/Iioff·
, personally known to me (o¥' royed to Ill" 011 tl1... b....;. vf ...6~fa...to1) (;yidc¡,œ) to
be the person(s) whose name(s)-is1are subscribed to the within instrument and acknowledged to
me that he/she/they executed the same in hisAler/their authorized capacity(ies), and that by
hi3/1....~/lheir signature(s) on the instrument, the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal. ~""':::':"""'~;;~;;È~~ÈI~è)è:ìè""'¡¡
¡ e COMM.='989471 £Ii
!! . .:. NOTN7VW..:Jc-cAlJF011NIA ==
. GAN 0::::;0 COUi\'JV ..
~£.~ ~-·"'·rb.Co=:""'~'~I.=:oh3L 1~7 ~
Signature (Seal)
¡;
STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN DIEGO )
On , before me, , Notary Public,
personally appeared
, personally known to me (or proved to me on the basis of satisfactory evidence) to
be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to
me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument, the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature (Seal)
-9-
- -----_._..~_._"._. ,,-.----.-----..------...------.--------.
Exhibit "A H
Property Description
[To Be Attached]
Recording Requested by:
CITY CLERK
When Recorded, Mail to:
CITY OF CHULA VISTA
276 Fourth Avenue
Chula Vista, Ca. 91910
No transfer tax is due as this is a conveyance
to a public agency of less than a fee interest
for which no cash consideration has been paid or
received.
Declarant
SUBDXVXSXON XMPROVEMENT AGREEMENT
_ THIS AGREEMENT, made and entered into this 1/12 day of
¡-~ bru.û..-y , 1992, by and between THE CITY OF CHULA VISTA, a
municipal corporation, hereinafter called "City", and Rancho Del
Rey Partnership, a California limited partnership, 2727 Hoover
Avenue, National City, Ca. 91950, hereinafter called "Subdivider".
HITH~ââ~T!!-,-
WHEREAS, Subdivider is about to present to the City Council of
the City of Chula vista for approval and recordation, a final
subdivision map of a proposed subdivision, to be known as Rancho
Del Rey SPA III, Phase 1, Unit 1, pursuant to the provisions of the
Subdivision Map Act of the State of California, and in compliance
with the provisions of Title 18 of the Chula vista Municipal Code
relating to the filing, approval and recordation of subdivision
map; and
WHEREAS, the Code provides that before said map is finally
approved by the Council of the city of Chula Vista, Subdivider must
have either installed and completed all of the public improvements
and/or land development work required by the Code to be installed
in subdivisions before final maps of subdivisions are approved by
the Council for purpose of recording in the Office of the County
Recorder of San Diego County, or, as an alternative thereto,
Subdivider shall enter into an agreement with City, secured by an
approved improvement security to insure the performance of said
work pursuant to the requirements of Title 18 of the Chula vista
Municipal Code, agreeing to install and complete, free of liens at
Subdivider's own expense, all of the public improvements and/or
land development work required in said subdivision within a
definite peri~d of time prescribed by said Council; and
WHEREAS, Subdivider is willing in consideration of the
approval and recordation of said map by the council, to enter into
this agreement wherein it is provided that Subdivider will install
-1-
_______d_··.U ,-----...------ ._----~--~_."~_.~._.
and complete, at Subdivider's own expense, all the public
improvement work required by City in connection with the proposed
subdivision and will deliver to City improvement securities as
approved by the City Attorney; and
WHEREAS, a tentative map of said subdivision has heretofore
been approved, subject to certain requirements and conditions, as
contained in Resolution No. 18366, approved on the 16th day of
July, 1996 ("Tentative Map Resolution"); and
WHEREAS, complete plans and specifications for construction,
installation and completion of said public improvement work have
been prepared and submitted to the City Engineer, as shown on
Drawings Nos. 96-214 through 96-223 inclusive, on file in the
office of the City Engineer; and
WHEREAS, an estimate of the cost of constructing said public
improvements according to said plans and specifications has been
submitted and approved by the City in the amount of One Million six
Hundred Sixty Seven Thousand Dollars ($1,667,000).
NOW, THEREFORE, IT IS MUTUALLY UNDERSTOOD AND AGREED AS
FOLLOWS:
1. Subdivider, for itself and his successors in interest, an
obligation the burden of which encumbers and runs with the land,
agrees to comply with all of the terms, conditions and requirements
of the Tentative Map Resolution; to do and perform or cause to be
done and performed, at its own expense, without cost to city, in a
good and workmanlike manner, under the direction and to the
satisfaction and approval of the City Engineer, all of the public
improvement and/or land development work required to be done in and
adjoining said subdivision ("Improvement Work"); and will furnish
the necessary materials therefor, all in strict conformity and in
accordance with the plans and specifications, which documents have
heretofore been filed in the Office of the City Engineer and by
this reference are incorporated herein and made a part hereof.
2. It is expressly understood and agreed that all monuments
have been or will be installed within thirty (30) days after the
completion and acceptance of the Improvement Work, and that
Subdivider has installed or will install temporary street name
signs if permanent street name signs have not been installed.
3. It is expressly understood and agreed that Subdivider will
cause all necessary materials to be furnished and all Improvement
Work required under the provisions of this contract to be done on
or before the second anniversary date of Council approval of the
Subdivision Improvement Agreement.
4. It is understood and agreed that Subdivider will perform
said Improvement Work as set forth hereinabove, or that portion of
said Improvement Work serving any buildings or structures ready for
occupancy in said subdivision, prior to the issuance of any
-2-
.
certificate of clearance for utility connections for said buildings
or structures in said subdivision, and such certificate shall not
be issued until the City Engineer has certified in writing the
completion of the Improvement Work or the portion thereof serving
said building or structures approved by the City; provided,
however, that the improvement security shall not be required to
cover the provisions of this paragraph.
5. It is expressly understood and agreed to by Subdivider
that, in the performance of said Improvement Work, Subdivider will
conform to and abide by all of the provisions of the ordinances of
the City of Chula Vista, and the laws of the State of California
applicable to said'work.
6. Subdivider further agrees to furnish and deliver to the
City of Chula Vista, simultaneously with the execution of this
agreement, an approved improvement security from a sufficient
surety, whose sufficiency has been approved by the city in the sum
of Eight Hundred Thirty-Three Thousand Five Dollars ($833,500),
which security shall guarantee the faithful performance of this
contract by Subdivider and is attached hereto, marked Exhibit "A"
and made a part hereof.
7. Subdivider further agrees to furnish and deliver to the
City of Chula vista simultaneously with the execution of this
agreement, an approved improvement security from a sufficient
surety, whose sufficiency has been approved by the City in the sum
of Eight Hundred Thirty-Three Thousand Five Hundred Dollars
($833,500) to secure the payment of material and labor in
connection with the installation of said public improvements, which
security is attached hereto, marked Exhibit "B" and made a part
hereof and the bond amounts as contained in Exhibit "B", and made
a part hereof.
8. Subdivider further agrees to furnish and deliver to the
City of Chula vista, simultaneously with the execution of this
agreement, an approved improvement security from a sufficient
surety, whose sufficiency has been approved by the city in the sum
of Fifteen Thousand Eight Hundred Forty Dollars ($15,840) to secure
the installation of monuments, which security is attached hereto,
marked Exhibit "C" and made a part hereof.
9. It is further agreed that if the Improvement Work is not
completed within the time agreed herein, the sums provided by said
improvement securities may be used by City for the completion of
the Improvement Work within said subdivision in accordance with
such specifications herein contained or referred, or at the option
of the City, as are approved by the city Council at the time of
engaging the work to be performed. Upon certification of
completion by the city Engineer and acceptance of said work by
City, and after certification by the Director of Finance that all
costs hereof are fully paid, the whole amount, or any part thereof
not required for payment thereof, may be released to Subdivider or
its successors in interest, pursuant to the terms of the
-3-
-'-,--_.- -- --------_._..._.__...--._~._-,.-
improvement security. Subdivider agrees to pay to the city any
difference between the total costs incurred to perform the work,
including design and administration of construction (including a
reasonable allocation of overhead), and any proceeds from the
improvement security.
10. It is also expressly agreed and understood by the parties
hereto that in no case will the City of Chula Vista, or any
department, board or officer thereof, be liable for any portion of
the costs and expenses of the work aforesaid, nor shall any
officer, his sureties or bondsmen,be liable for the payment of any
sum or sums for said work or any materials furnished therefor,
except to the limits established by the approved improvement
security in accordance with the requirements of the State
Subdivision Map Act and the provisions of Title 18 of the Chula
Vista Municipal Code.
11. It is further understood and agreed by Subdivider that
any engineering costs (including plan checking, inspection,
materials furnished and other incidental expenses) incurred by City
in connection with the approval of the Improvement Work plans and
installation of Improvement Work hereinabove provided for, and the
cost of street signs and street trees as required by City and
approved by the City Engineer shall be paid by Subdivider, and that
Subdivider shall deposit, prior to recordation of the Final Map,
with City a sum of money sufficient to cover said cost.
12. It is understood and agreed that until such time as all
Improvement Work is fully completed and accepted by City,
subdivider will be responsible for the care, maintenance of, and
any damage to, the streets, alleys, easements, water and sewer
lines within the proposed subdivision. It is further understood
and agreed that Subdivider shall guarantee all public improvements
for a period of one year from date of final acceptance and correct
any and all defects or deficiencies arising during said period as
a result of the acts or omission of Subdivider, its agents or
employees in the performance of this agreement, and that upon
acceptance of the work by City, Subdivider shall grant to City, by
appropriate conveyance, the pUblic improvements constructed
pursuant to this agreement; provided, however, that said acceptance
shall not constitute a waiver of defects by city as set forth
hereinabove.
13. It is understood and agreed that City, as indemnitee, or
any officer or employee thereof, shall not be liable for any injury
to person or property occasioned by reason of the acts or omissions
of Subdivider, its agents or employees, or indemnitee, related to
this agreement. Subdivider further agrees to protect and hold the
City, its officers and employees, harmless from any and all claims,
demands, causes of action, liability or loss of any sort, because
of or arising'out of acts or omissions of Subdivider, its agents or
employees, or indemnitee, related to this agreement; provided,
however, that the approved improvement security shall not be
required to cover the provisions of this paragraph. Such
-4-
.
indemnification and agreement to hold harmless shall extend to
damages to adjacent or downstream properties or the taking of
property from owners of such adjacent or downstream properties as
a result of the construction of said subdivision and the public
improvements as provided herein. It shall also extend to damages
resulting from diversion of waters, change in the volume of flow,
modification of the velocity of the water, erosion or siltation, or
the modification of the point of discharge as the result of the
construction and maintenance of drainage systems. The approval of
plans providing for any or all of these conditions shall not
constitute the assumption by City of any responsibility for such
damage or taking, nor shall City, by said approval, be an insurer
or surety for the construction of the subdivision pursuant to said
approved improvement plans. The provisions of this paragraph shall
become effective upon the execution of this agreement and shall
remain in full force and effect for ten (10) years following the
acceptance by the city of the improvements.
14. Subdivider agrees to defend, indemnify, and hold harmless
the City or its agents, officers, and employees from any claim,
action, or proceeding against the City or its agents, officers, or
employees to attack, set aside, void, or annul, an approval of the
city, advisory agency, appeal board, or legislative body concerning
a subdivision, which action is brought within the time period
provided for in section 66499.37 of the Government Code of the
state of California.
IN WITNESS WHEREOF, the parties hereto have caused this
agreement to be executed the day and year first hereinabove set
forth.
THE CITY OF CHULA VISTA SUBDIVIDER: RANCHO DEL REY
PARTNERSHIP
.5ec=.. tZ It?zcl1ecl .5 iqr>è? :/kre.-- pI:{ qr:v
Mayor of the city of Chula v / v
vista
ATTEST
city Clerk
Approved as to form by
6f;¡¡¡fl;r~Ú/d~a:;~
C ttorney
(Attach Notary Acknowledgment)
-5-
_u__.____ __ ____ __on _ _...__~_~_______._________
LIST OF EXHIBITS
Exhibit "A" Improvement Security - Faithful Performance
Form: Bonds
Amount: $833,500
Exhibit "B" Improvement Security - Material and Labor:
Form: Bonds
Amount: $833,500
Exhibit "c" Improvement Security - Monuments:
Form: Bond
Amount: $ 15,840
Securities approved as to form and amount by
æ~JìJì1¿/é~;J;/:C(J;;;g- £1f'1;
CJ.t ttorne
Improvement Completion Date: Two (2) years from date of
Council approval of the
Subdivision Improvement
Agreement.
C:\ag\RDRPh1-1.sia
-6-
RANCHO DEL REY INVESTORS, L.P.,
a California Limited Partnership
By: McMillin Project Services, Inc.
a California Corporation, Attorney In Fact
under a durable Power of Attorney
BY:~ ,~
Its: f/. ¡D.
By: ~ij£ ~¿~
Its: ~, # ¡::
~_, T"Io_... "'In"'- TTT T'\1o.__..... 1
T'T.......~ "1 _~,....~,,'!::!o't"O~ ~.... ...h
.:110 ...,.....^,,.; e!' 1"\T\e! """. ,..ho
>
STATE OF CALIFORNIA >
COUNTY OF 5rn [);eqo >
J
On ;=êórut[ r ý 1/,/f'f7 before me,
I
Jdýce A. ßrad, /Vola rv .Pu ¿lie. ,
. ,
personally appeared \.. , 71-,0 m Fuller, ........
.
~ Vìr"i / E. £//;of!· --."
v ,
personally known to me (ar preyed to Me 011 tile bo.;. "f r:l.tiôfaetery c.id{;nee) to be the person(s)
whose name(s)-islare subscribed to the within instrument and acknowledged to me that hcJ~l,clthey
executed the same in hisIIIer/their authorized capacity(ies), and that by hislbcrftheir signature(s) on
the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the
instrument.
~"""""""""
WITNESS my hand and official seaL ~ ,~ JOYCEÀ.'B"Ròë;('"'1
- .d A ~ ~ O-G ~:: Nt"w~~~~..~~~~~71 ~
and complete, at Subdivider's own expense, all the public
improvement work required by City in connection with the proposed
subdivision and will deliver to city improvement securities as
approved by the City Attorney; and
WHEREAS, a tentative map of said subdivision has heretofore
been approved, subject to certain requirements and conditions, as
contained in Resolution No. 18366, approved on the 16th day of
July, 1996 ("Tentative Map Resolution"); and
WHEREAS, complete plans and specifications for construction,
installation and completion of said public improvement work have
been prepared and submitted to the City Engineer, as shown on
Drawings Nos. 96-224 through 96-233 inclusive, on file in the
office of the City Engineer; and
WHEREAS, an estimate of the cost of constructing said public
improvements according to said plans and specifications has been
submitted and approved by the city in the amount of One Million six
Hundred Thousand Dollars ($1,600,000) .
NOW, THEREFORE, IT IS MUTUALLY UNDERSTOOD AND AGREED AS
FOLLOWS:
1. Subdivider, for itself and his successors in interest, an
obligation the burden of which encumbers and runs with the land,
agrees to comply with all of the terms, conditions and requirements
of the Tentative Map Resolution; to do and perform or cause to be
done and performed, at its own expense, without cost to City, in a
good and workmanlike manner, under the direction and to the
~~+~~~~~+~~~ ~~~ ~___~~r_' ...ç: .....\..,.. ......:...... T:>__.:____ -" _ L!- .L-'L - ~ .. .
-
Recording Requested by:
CITY CLERK
When Recorded, Mail to:
CITY OF CHULA VISTA
276 Fourth Avenue
Chula vista, Ca. 91910
No transfer tax is due as this is a conveyance
to a public agency of less than a fee interest
for which no cash consideration has been paid or
received.
Declarant
SUBDIVISION IMPROVEMENT AGREEMENT
. . //íJ.¡
THIS AGREEMENT, made and entered ~nto th~s - day of
FeDrlAÆ '-'1 ' 199...z, by and between THE CITY OF CHULA VISTA, a
municipal corporation, hereinafter called "City", and Rancho Del
Rey Partnership, a California limited partnership, 2727 Hoover
Avenue, National city, Ca. 91950, hereinafter called "Subdivider".
Nl.THJ;;ââJ;;TH...
WHEREAS, Subdivider is about to present to the City Council of
the City of Chula vista for approval and recordation, a final
subdivision map of a proposed subdivision, to be known as Rancho
Del Rey SPA III, Phase 1, unit 2, pursuant to the provisions of the
Subdivision Map Act of the State of California, and in compliance
with the provisions of Title 18 of the Chula vista Municipal Code
relating to the filing, approval and recordation of subdivision
map; and
WHEREAS, the Code provides that before said map is finally
approved by the Council of the City of Chula vista, Subdivider must
have either installed and completed all of the public improvements
and/or land development work required by the Code to be installed
in subdivisions before final maps of subdivisions are approved by
the Council for purpose of recording in the Office of the County
Recorder of San Diego County, or, as an al ternati ve thereto,
Subdivider shall enter into an agreement with City, secured by an
approved improvement security to insure the performance of said
work pursuant to the requirements of Title 18 of the Chula vista
Municipal Code, agreeing to install and complete, free of liens at
Subdivider's own expense, all of the public improvements and/or
land development work required in said subdivision within a
definite peri?d of time prescribed by said council; and
WHEREAS, Subdivider is willing in consideration of the
approval and recordation of said map by the Council, to enter into
this agreement wherein it is provided that Subdivider will install
-1-
-~..' .- ..---------.-- . .-'
and complete, at Subdivider's own expense, all the public
improvement work required by City in connection with the proposed
subdivision and will deliver to city improvement securities as
approved by the city Attorney; and
WHEREAS, a tentative map of said subdivision has heretofore
been approved, subject to certain requirements and conditions, as
contained in Resolution No. 18366, approved on the 16th day of
JUly, 1996 ("Tentative Map Resolution"); and
WHEREAS, complete plans and specifications for construction,
installation and completion of said public improvement work have
been prepared and submitted to the city Engineer, as shown on
Drawings Nos. 96-224 through 96-233 inclusive, on file in the
office of the City Engineer; and
WHEREAS, an estimate of the cost of constructing said public
improvements according to said plans and specifications has been
submitted and approved by the City in the amount of One Million six
Hundred Thousand Dollars ($1,600,000).
NOW, THEREFORE, IT IS MUTUALLY UNDERSTOOD AND AGREED AS
FOLLOWS:
1. Subdivider, for itself and his successors in interest, an
obligation the burden of which encumbers and runs with the land,
agrees to comply with all of the terms, conditions and requirements
of the Tentative Map Resolution; to do and perform or cause to be
done and performed, at its own expense, without cost to City, in a
good and workmanlike manner, under the direction and to the
satisfaction and approval of the City Engineer, all of the public
improvement and/or land development work required to be done in and
adjoining said subdivision ("Improvement Work"); and will furnish
the necessary materials therefor, all in strict conformity and in
accordance with the plans and specifications, which documents have
heretofore been filed in the Office of the city Engineer and by
this reference are incorporated herein and made a part hereof.
2. It is expressly understood and agreed that all monuments
have been or will be installed within thirty (30) days after the
completion and acceptance of the Improvement Work, and that
Subdivider has installed or will install temporary street name
signs if permanent street name signs have not been installed.
3. It is expressly understood and agreed that Subdivider will
cause all necessary materials to be furnished and all Improvement
Work required under the provisions of this contract to be done on
or before the second anniversary date of Council approval of the
Subdivision Improvement Agreement.
4. It is understood and agreed that Subdivider will perform
said Improvement Work as set forth hereinabove, or that portion of
said Improvement Work serving any buildings or structures ready for
occupancy in said subdivision, prior to the issuance of any
-2-
certificate of clearance for utility connections for said buildings
or structures in said subdivision, and such certificate shall not
be issued until the city Engineer has certified in writing the
completion of the Improvement Work or the portion thereof serving
said building or structures approved by the City; provided,
however, that the improvement security shall not be required to
cover the provisions of this paragraph.
5. It is expressly understood and agreed to by Subdivider
that, in the performance of said Improvement Work, Subdivider will
conform to and abide by all of the provisions of the ordinances of
the City of Chula Vista, and the laws of the State of California
applicable to said work.
6. Subdivider further agrees to furnish and deliver to the
City of Chula Vista, simultaneously with the execution of this
agreement, an approved improvement security from a sufficient
surety, whose sufficiency has been approved by the city in the sum
of Eight Hundred Thousand Dollars ($800,000), which security shall
guarantee the faithful performance of this contract by Subdivider
and is attached hereto, marked Exhibit "A" and made a part hereof.
7. Subdivider further agrees to furnish and deliver to the
City of Chula vista simultaneously with the execution of this
agreement, an approved improvement security from a sufficient
surety, whose sufficiency has been approved by the City in the sum
of Eight Hundred Thousand Dollars ($800,000) to secure the payment
of material and labor in connection with the installation of said
public improvements, which security is attached hereto, marked
Exhibit "B" and made a part hereof and the bond amounts as
contained in Exhibit "B", and made a part hereof.
8. Subdivider further agrees to furnish and deliver to the
city of Chula Vista, simultaneously with the execution of this
agreement, an approved improvement security from a sufficient
surety, whose sufficiency has been approved by the City in the sum
of Fourteen Thousand Four Hundred Dollars ($14,400) to secure the
installation of monuments, which security is attached hereto,
marked Exhibit "C" and made a part hereof.
9. It is further agreed that if the Improvement Work is not
completed within the time agreed herein, the sums provided by said
improvement securities may be used by City for the completion of
the Improvement Work within said subdivision in accordance with
such specifications herein contained or referred, or at the option
of the city, as are approved by the city Council at the time of
engaging the work to be performed. Upon certification of
completion by the city Engineer and acceptance of said work by
City, and after certification by the Director of Finance that all
costs hereof ~re fully paid, the whole amount, or any part thereof
not required for payment thereof, may be released to Subdivider or
its successors in interest, pursuant to the terms of the
improvement security. Subdivider agrees to pay to the City any
difference between the total costs incurred to perform the work,
-3-
-,-,~"",-",----"",.._.._._.. .._.~-----
including design and administration of construction (including a
reasonable allocation of overhead), and any proceeds from the
improvement security.
10. It is also expressly agreed and understood by the parties
hereto that in no case will the City of Chula Vista, or any
department, board or officer thereof, be liable for any portion of
the costs and expenses of the work aforesaid, nor shall any
officer, his sureties or bondsmen, be liable for the payment of any
sum or sums for said work or any materials furnished therefor,
except to the limits established by the approved improvement
security in accordance with the requirements of the state
Subdivision Map Act and the provisions of Title 18 of the Chula
vista Municipal Code.
11. It is further understood and agreed by Subdivider that
any engineering costs (including plan checking, inspection,
materials furnished and other incidental expenses) incurred by City
in connection with the approval of the Improvement Work plans and
installation of Improvement Work hereinabove provided for, and the
cost of street signs and street trees as required by City and
approved by the City Engineer shall be paid by Subdivider, and that
Subdivider shall deposit, prior to recordation of the Final Map,
with City a sum of money sufficient to cover said cost.
12. It is understood and agreed that until such time as all
Improvement Work is fully completed and accepted by City,
Subdivider will be responsible for the care, maintenance of, and
any damage to, the streets, alleys, easements, water and sewer
lines within the proposed subdivision. It is further understood
and agreed that Subdivider shall guarantee all public improvements
for a period of one year from date of final acceptance and correct
any and all defects or deficiencies arising during said period as
a result of the acts or omission of Subdivider, its agents or
employees in the performance of this agreement, and that upon
acceptance of the work by City, Subdivider shall grant to city, by
appropriate conveyance, the public improvements constructed
pursuant to this agreement; provided, however, that said acceptance
shall not constitute a waiver of defects by City as set forth
hereinabove.
13. It is understood and agreed that city, as indemnitee, or
any officer or employee thereof, shall not be liable for any injury
to person or property occasioned by reason of the acts or omissions
of Subdivider, its agents or employees, or indemnitee, related to
this agreement. Subdivider further agrees to protect and hold the
City, its officers and employees, harmless from any and all claims,
demands, causes of action, liability or loss of any sort, because
of or arising out of acts or omissions of Subdivider, its agents or
employees, 01:: indemnitee, related to this agreement; provided,
however, that the approved improvement security shall not be
required to cover the provisions of this paragraph. Such
indemnification and agreement to hold harmless shall extend to
damages to adjacent or downstream properties or the taking of
-4-
property from owners of such adjacent or downstream properties as
a resul t of the construction of said subdivision and the public
improvements as provided herein. It shall also extend to damages
resulting from diversion of waters, change in the volume of flow,
modification of the velocity of the water, erosion or siltation, or
the modification of the point of discharge as the result of the
construction and maintenance of drainage systems, The approval of
plans providing for any or all of these conditions sha 11 not
constitute the assumption by City of any responsibility for such
damage or taking, nor shall City, by said approval, be an insurer
or surety for the construction of the subdivision pursuant to said
approved improvement plans. The provisions of this paragraph shall
become effective upon the execution of this agreement and shall
remain in full force and effect for ten (10) years following the
acceptance by the City of the improvements.
14. Subdivider agrees to defend, indemnify, and hold harmless
the City or its agents, officers, and employees from any claim,
action, or proceeding against the City or its agents, officers, or
employees to attack, set aside, void, or annul, an approval of the
City, advisory agency, appeal board, or legislative body concerning
a subdivision, which action is brought within the time period
provided for in section 66499.37 of the Government Code of the
State of California.
IN WITNESS WHEREOF, the parties hereto have caused this
agreement to be executed the day and year first hereinabove set
forth.
THE CITY OF CHULA VISTA SUBDIVIDER: RANCHO DEL REY
PARTNERSHIP
.5e(; Art-acher! S¡q/' t:¡fC(.re/
Mayor of the City of Chula v
vista ;!Jet '1 e.---
-
ATTEST
city Clerk
Approved as to form by
óJ ~/~ '-~
~ ttorney ~~ <.
(Attach Notary Acknowledgment)
-5-
-...-....- _.._.~_.._-_.."^.._-,-_.. - -'--' '-'-"---
LIST OF EXHIBITS
Exhibit "A" Improvement Security - Faithful Performance
Form: Bonds
Amount: $800,000
Exhibit "B" Improvement Security - Material and Labor:
Form: Bonds
Amount: $800,000
Exhibit "C" Improvement Security - Monuments:
Form: Bond
Amount: $ 14,400
Securities approved as to form and amount by
~ ~/rtC-é;J~ ~~
r,y- City Attorne
Improvement Completion Date: Two (2) years from date of
Council approval of the
Subdivision Improvement
Agreement.
C:\ag\RDRPh1-2.sia
-6-
RANCHO DEL REY INVESTORS. L.P..
a California Limited Partnership
By: McMillin Project Services. Inc.
a California Corporation. Attorney In Fact
under a durable power of Attorney
BY:~ !JrA (X{t /
Its: V, ;0,
By: #~~ t ¿gI~
Its: ~ I/~
_____.._"__"_H
---... .._---,
>
STATE OF CALIFORNIA >
COUNTY OF -.5cr n l)/c..J0 >
On February //, /197 before me,
vbýce A. BrocK /Volart p" b //c.
,
personally appeared \... , 7J¡p/YJ fid/er ' .......
'-- ....... v,'rc¡// £. £///o,r, .......
I v ,
personally known to me (sr !re'\e:ð to me eft tHe p..;. nf..t;.f.~tnTY '''>ig@Ree) to be the person(s)
whose name(s)-tilare subscribed to the within instrument and acknowledged to me that hc/3helthey
C1œCUted the same in hi.ll...r/their authorized capacity(ies), and that by.fti5Aler/their signature(s) on
the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the
instrument.
WITNESS my hand and official seal. 6~'" '~:'-' ·_~"·JÕVëÈ ·À:àRÒëK~·· ~.~
Signature Ir-' tf. ~ - ~ OOMM.""'" I
I .. : NC;AI1Yrœue<:A!J;Q~ ¡¡¡
BANDŒGOCOlNV ..
P " ..^~~~~~31.1m ~
¿;J~ ~""ç~~
CHULA VISTA CITY COUNCILMEMBERS FEB 25 1997.
REGARDS TO: SPECIAL USE PERMIT FILE NUMBER SUPS_96-06
PROJECT APPLICANT FENTON MATERIAL CALIF MULTIMODAL.
DEAR COUNCIL
THE PROFORMANCE STANDARDS ON AIR CONTAMINANTS IS ON PAGE
1329. 19.66.140 of the municipal code. WHAT WILL BE DONE
TO CORRECT THIS PROBLEM MYNEIBORS AND MYSELF WOULD LIKE
TO KNOW. I,M SURE YOU ARE AWRE OF MR. KABOTAS EFFORT
TO SWEEPING THE STREET BUT IT IS NO LONG TERM SOLUTION.
AS TO THE NOISE OF TRUCKS AND THIS BEING AN INDUSTRIAL
ZONE NOW THE PERMIT SAYS TRUCKS WILL NOT RUN AT CERTAIN
HOURS OF THE NIGHT. BUT FACT IS THEY ARE.
IN THE GENERAL PLAN UNDER NOISE ELEMENT CHAPTER 9
and because the san diego airport SHUTS DOWN AT CERTAIN
HOURS OF THE KNIGHT CALIF MULTIMODAL SHOULD ALSO DO THE
SAME AS WE ALL CAN ENJOY PEACE AND QUIET WHEN WE COME
HOME FROM WORK.
IF YOU KNOW THE NAME FENTON ITS FOR ROCK SAND AND GRAVEL
THE COST TO GRAVEL THE LOT AT 2400 FAIVRE ST SHOULD BE
MINIMAL AND SHOULD REDUCE DUST PRODUCED AT CMI TRUCK STOAGE.
I WILL FIGHT TO PUT SPEED HUMPS ON FAIVRE ST BECAUSE I
HAVE COME FULL CIRCLE TRYING TO GET THE TRUCKS TO SLOW DOWN
AND IT SEEMS IT IS NOONES RESPONSIBILITY BUT THE DRIVERS
i would also like to invite any council-member to meet
with my neibors and myself on faivre st to look at first-hand
of the problem with calif multimodal thank you.
carlos fernandez 2547 faivre st chula vista ca 91911
(619)423-4327.
RE'",'c\<;":~ 0<' 3" A CQlA<>, . {!Al~
G EO'19.E ::>d;'S
~~4f'{ß~
--.-....------.-----------
SAN DIEGO COUNTY SECTOR
AIR POLLUTION CONTROL DISTRICT
9150 CHESAPEAKE DRIVE CMP#
SAN DIEGO CA 92123-1096
PHONE (619) 694-3340 INSP
FAX (619) 694-2730
APCDUSEONLY
NUISANCE COMPLAINT FORM
(Please Print or Type)
Date: FEBj,"/25 1 997
SOURCE OF Name: CALIF. MULTIMODAL
COMPLAINT
Address: 2400 FAIVRE ST CHULA VISTA CA
COMPLAINANT Name: CARLOS FERNANDEZ Phone No.: (619) 423 -4 3 2 7
Address: 2 547 FAIVRE ST How long there: 35 years
Approximate distance from source: 200 "
Wind direction when nuisance occurred: ON ONE DE OSE Os OSW IJIw i]NW
Dates and hours nuisance occurred: 24 HOURS A DAY
Frequency of Occurrence: 24 HOURS A DAY
Nature of nuisance complained of: 0 Smoke 0 Charred paper ŒI Dust 0 Soot 0 Grime after 10 pm
o Carbon 0 Acid 0 Gas 0 Odors 0 Other: NOISE before 6 am
Have you seen or smelled the above-described emissions coming from the source complained of? YES
Have you or any member of your household or firm become ill from the nuisance? NOT YET
If uyes," who?
Describe nature of illness:
How is your address zoned? INDUSTRIAL
(Residential, Commercial or Manufacturing)
Has the property at this address depreciated in value due to the nuisance? POSSIBLE
State any damage done to your property, furniture, automobile, clothing, etc. HOUSE ROOF
AUTO PAINT FINISH PLANT GROWTH
Will you appear in court to testify? Ga Yes ONo
Complaintant's remarks: I AM NOT A SCIENTIST BUT I DO KNOW BREATHING
DUST FOR A LONG TIME IS NOT GOOD FOR ME.
Signature of Complaintant
Inspector
REV. 12/94
.. u...'...___".___._.._.__
SAN DIEGO COUNTY SECTOR
AIR POLLUTION CONTROL DISTRICT
9150 CHESAPEAKE DRIVE CMP#
SAN DIEGO CA 92123-1096
PHONE (619) 694-3340 INSP
FAX (619) 694-2730
APCD USE QNL Y
NUISANCE COMPLAINT FORM
(please Print or Type)
Date: FEB Y'Y25 1997
SOURCE OF Name: CALIF. MULTI MODAL
COMPLAINT
Address: 2400 FAIVRE ST CHULA VISTA CA
COMPLAINANT Name: CARLOS FERNANDEZ Phone No.: (619) 423-4327
Address: 2547 FAIVRE ST How long there: 35 years
Approximate distance from source: 200 "
Wind directiòn when nuisance occurred: ON ONE DE OSE Os OSW IJw iJNW
Dates and hours nuisance occurred: 24 HOURS A DAY
Frequency of Occurrence: 24 HOURS A DAY
Nature of nuisance complained of: 0 Smoke 0 Charred paper Œ) Dust 0 Soot 0 Grime after 10 pm
o Carbon 0 Acid 0 Gas 0 Odors 0 Other: NOISE before 6 am
Have you seen or smelled the above-described emissions coming from the source complained of? YES
Have you or any member of your household or firm become ill from the nuisance? NOT YET
If "yes," who?
Describe nature of illness:
How is your address zoned? INDUSTRIAL
(Residential, Commercial or Manufacturing)
Has the property at this address depreciated in value due to the nuisance? POSSIBLE
State any damage done to your property, furniture, automobile, clothing, etc. HOUSE ROOF
AUTO PAINT FINISH PLANT GRO\jTH
Will you appear in court to testify? GlYes ONo
Complaintant's remarks: I AM NOT A SCIENTIST BUT I DO KNOW BREATHING
DUST FOR A LONG TIME IS NOT GOOD FOR ME.
Signature of Complaintant
Inspector
REV. 12/94
_.-._."..~-_.~_.__.,_..._..__...- ."
CHULA VISTA CITY COUNCILMEMBERS FEB 25 1997.
REGARDS TO: SPECIAL USE PERMIT FILE NUMBER SUPS 96-06
PROJECT APPLICANT FENTON MATERIAL CALIF MULTIMODAL.
DEAR COUNCIL
THE PROFORMANCE STANDARDS ON AIR CONTAMINANTS IS ON PAGE
1329. 19.66.140 of the municipal code. WHAT WILL BE DONE
TO CORRECT THIS PROBLEM MYNEIBORS AND MYSELF WOULD LIKE
TO KNOW. I,M SURE YOU ARE AWRE OF MR. KABOTAS EFFORT
TO SWEEPING THE STREET BUT IT IS NO LONG TERM SOLUTION.
AS TO THE NOISE OF TRUCKS AND THIS BEING AN INDUSTRIAL
ZONE NOW THE PERMIT SAYS TRUCKS WILL NOT RUN AT CERTAIN
HOURS OF THE NIGHT. BUT FACT IS THEY ARE.
IN THE GENERAL PLAN UNDER NOISE ELEMENT CHAPTER 9
and because the san diego airport SHUTS DOWN AT CERTAIN
HOURS OF THE KNIGHT CALIF MULTIMODAL SHOULD ALSO DO THE
SAME AS WE ALL CAN ENJOY PEACE AND QUIET WHEN WE COME
HOME FROM WORK.
IF YOU KNOW THE NAME FENTON ITS FOR ROCK SAND AND GRAVEL
THE COST TO GRAVEL THE LOT AT 2400 FAIVRE ST SHOULD BE
MINIMAL AND SHOULD REDUCE DUST PRODUCED AT CMI TRUCK STOAGE.
I WILL FIGHT TO PUT SPEED HUMPS ON FAIVRE ST BECAUSE I
HAVE COME FULL CIRCLE TRYING TO GET THE TRUCKS TO SLOW DOWN
AND IT SEEMS IT IS NOONES RESPONSIBILITY BUT THE DRIVERS
i would also like to invite any council-member to meet
with my neibors and myself on faivre st to look at first-hand
of the problem with calif mUltimodal thank you.
carlos fernandez 2547 faivre st chula vista ca 91911
(619)423-4327.
0~.-Ø~-( ;ð~ (}pj ~
-^'---,.------.------------.--..-.
COUNCIL AGENDA STATEMENT Item No. ~tI
Meeting date: February 25. 1997
ITEM TITLE: Public Hearing . Adopting Otay Ranch Pre-annexation
.
Agreements with Village Development and Baldwin Builders
A. Ordinance ,2, '~dopting the Restated and Amended Pre-
annexation Development Agreement with Otay Ranch L.P., a
California limited partnership, Village Development, a California
general partnership and the City of Chula Vista
(J Ordinance,J¿. '¡' Adopting the Amended and Restated Otay Pre-
. annexation Development Agreement with Baldwin Builders and the
City of Chula Vista
SUBMITI'ED BY: Deputy City Managit:-
&I J(P
REVIEWED BY: City Manager (4/Sths Vote: Yes _No-X)
This item was continued from the meeting of January 14, 1997 at the request of the
applicant. The only change in this staff report is in the Fiscal Impact section. On June 25,
1996, the City Council met jointly with the Planning Commission to consider and approve
pre-annaexation development agreements with the major property owners of the Otay
Ranch. When the development agreements were originally approved, it was anticipated that
the Otay Ranch annexation would be finalized by the end of 1996. The development
agreements contained December 31, 1996 expiration dates if the annexation was not
complete by that time. While the reorganization was ordered by the City Council on
December 17, 1996, a Local Agency Formation Commission (LAFCO) annexation
condition was not met and the annexation was not completed by December 31st. The
agreements have technically expired on their face.
The agreements with Village Development and Baldwin Builders need to be reinstated to
provide the City with the bonding protection covered in the October, 1996 development
agreement amendments. The agreements provided Village Development commitment to
the GDP and SPA One approvals. The revised agreements remove that expiration
provision and make the development agreements effective upon completion of the
annexation, if the annexation occurs before July 1, 1997. State law requires specific
expiration dates for development agreements concerning annexations. If the annexation is
extended by LAFCO, the expiration date is also extended but becomes null and void at the
end of the extension.
RECOMMENDATION: That the City Council approve the restated and amended
ordinances for Village Development and Baldwin Builders Development Agreements.
)1/-/
Page 2, Item _
Meeting Date: Februar.y 25. 1997
BOARD/COMMISSION RECOMMENDATION: The Planning Commission reviewed
the Agreements at their January 8, 1997 meeting and voted 4-Q-l(fuchscher abstained,
Ray absent, one seat vacant) to recommend approval of the amendments.
DISCUSSION:
In July of 1996, LAFCO authorized the City Council to conduct the proceeding to annex
the Otay Ranch Reorganization No.1 to the City. LAFCO required that, prior to the
completion of the proceedings, the County of San Diego notify the City that it had
received acceptable landfill nuisance easements for the 1,OOO-foot buffer around the Otay
landfill. SNMB has had internal difficulty providing the County with acceptable easements
but seem to be making progress toward resolving those difficulties. In anticipation of the
County receiving the easements and the City the notice, staff scheduled the required City
Council public hearing on the reorganization for December 17, 1996.
At the December 17th meeting, the City Council held the hearing, did not receive any
property owner protest and adopted the resolution ordering the reorganization. The Council
ordered the reorganization with a condition that the County notice be received by the City
prior to staff filing the resolution with LAFCO. Once the notice is received, the City will
file the ordering resolution with LAFCO who will record it with the San Diego County
Recorder completing the annexation process.
The previous development agreements expired on December 31 st and need to be reinstated
in order for Village Development to proceed with the Final Maps in SPA One. The City
does not have authority to record Final Maps until the Reorganization proceedings are
completed and the property is annexed to the City. The expiration provisions have been
removed from the revised agreements. These agreements are proposed to become effective
upon completion 'of the annexation to the City. A termination date of July 1,1997 is
included, unless the annexation is extended by LAFCO, as a date by which the annexation
shall occur or the development agreements become null and void.
Note: The signatures required on the landfill nuisance easements by Mr. Alex Harper and
the Foundation have now been obtained. The County is in the process of obtaining
subordination agreements regarding the nuisance easement from Village Development and
SNMB Ltd. (as they pertain to property lienholders). Once this is completed, the
annexation can be finalized and recorded by LAFCO.
FISCAL IMPACT: The processing of the development agreements is covered under the
existing staffing agreement with Village Development. As of February 18, 1997, Village
Development's account with the City was current. An oral update will be provided at the
meeting.
QtaymchlfinalmaplAl \3DA.DOC
11/-,2
. ._"_._-~-----+._--------,-,,._---- _______..___mm..___._._ _____ _ _......__.__.___~___.__.__..__
ORDINANCE NO. 2695
AN ORDINANCE OF THE CITY OF CHULA VISTA
ADOPTING THE RESTATED AND AMENDED PRE-
ANNEXATION DEVELOPMENT AGREEMENT WITH OTAY
RANCH, L.P., A CALIFORNIA LIMITED PARTNERSHIP
"
MlÐ VILI.l.CE ÐE'.'ELOI'llE!I'P, 11. SUIFORNI1I. GEnER'\!.
I'AR'PlTER£:IIIP
WHEREAS, on June 25, 1996, the City Council approved a
Pre-Annexation Agreement between the City of Chula Vista and Otay
Ranch, L.P., a California partnership, et al pursuant to Ordinance
No. 2679; and
WHEREAS, on November 26, 1996, the City Council approved
an Amendment to the Pre-Annexation Agreement between the City of
Chula Vista and Otay Ranch, L.P., a California partnership, ct al
("Otay Ranch") and restated said Agreement pursuant to Ordinance
No. 2691 (herein referred to as "Previous Agreement"); and
WHEREAS, by the terms of the Previous Agreement, this
Agreement expired as of Jan. 1, 1997, because the annexation
proceedings was not completed by that date; and
WHEREAS, there is now a mutual desire by the city and
Otay Ranch to restate and amend the Previous Agreement in order for
the Previous Agreement to become effective once again ("Restated
Amendment"); and
WHEREAS, on January 8, 1997, the Planning commission
reviewed the Restated Agreement and voted to approve the same.
NOW, THEREFORE, the city Council of the City of Chula
vista ordains as follows:
SECTION I: The Previous Agreement between Otay Ranch,
L.P., a California limited partnership, T.Tillatje Dcvelapmcß.t, a
C:aliferßia IJÐllcral partRership, and the City of Chula Vista is
hereby amended, restated and adopted as set forth in the Restated
and Amended Pre-Annexation Development Agreement on file in the
office of the City Clerk as Document No. .
SECTION II: The Mayor of the City of Chula vista is
hereby authorized and directed to execute said Restated Amendment
for and on behalf of the City of Chula Vista.
SECTION III: This ordinance shall take effect and be of
full force on the effective date of annexation as set forth in the
attached Restated Agreement.
Presented by Approved as to form by
George Krempl, Deputy City G.--- 'Y'VU~~ k
John M. Kaheny, City Attorney
Manager
l't ^-,
""'-.-"".,---,----.--,- ....---
RESTATED AND AMENDED PRE-ANNEXATION DEVELOPMENT AGREEMENT
THIS RESTATED AND AMENDED PRE-ANNEXATION DEVELOPMENT AGREEMENT
("Agreement") is made effective on the date hereinafter set forth
below by and among THE OTAY RANCH, L.P., a California limited
partnership, VILLAGE DEVELOPMENT, a California general partnership
("Developer") and THE CITY OF CHULA VISTA, a municipal corporation,
who agree as follows:
~ RECITALS. This Agreement is made with respect to the
following facts:
1.0 Previous Aqreement. The citv and DeveloDer entered
into a Pre-Annexation DeveloDment Aqreement. dated June 25. 1996.
bv Ordinance No. 2679. This Aqreement eXDired as of Januarv 1.
1997. because the annexation Droceedinq was not comDleted bv that
date. The Darties now wish to reinstate this Aqreement.
1.1 Owner. The owners of the properties subject to this
Agreement (hereinafter collectively referred to as "Owner" or as
"Developer") are as follows:
1.1.1 Otay Ranch, L.P. is the owner of approxi-
mately 3,545 acres of undeveloped real property in the
unincorporated area of the County of San Diego ("County"),
described in Exhibits "A" and "F", attached hereto and
incorporated herein by this reference.
1.1.2 Village Development is the owner of
approximately 35 acres of undeveloped real property in the
unincorporated area of the County, described in Exhibits "B"
and "F", attached hereto and incorporated herein by this
reference.
1. 2 Ci tv. The City of Chula vista is a municipal
corporation and an incorporated city within the County.
1.3 Code Authorization and Acknowledqments.
1.3.1 City is authorized pursuant to California
Government Code sections 65864 through 65869.5 to enter into
development agreements for the purpose of establishing
certainty for both City and owners of real property in the
development process.
1.3.2 Government Code section 65865 expressly
authorizes a city to enter into a development agreement with
any person having a legal or equitable interest in real
property in unincorporated territory within that city's sphere
of influence for the development of property as provided in
the Development Agreement Law; provided that the agreement
shall not become operative unless annexation proceedings
-1- 1-'I,4,.J..
....--..,.--,.--..-..,. ---
annexing the property to the city are completed within the
time specified by the agreement.
1.3.3 City enters into this Agreement pursuant
to the provisions of the California Government Code, its home-
rule powers, and applicable City ordinances, rules, regula-
tions and policies.
1.3.4 ci ty and Owner acknowledge: ci ty and
Owner acknowledge this Agreement will provide:
1.3.4.1 certainty in the planning process so
that the property can be developed efficiently. This
will avoid unnecessary waste of resources and increases
in housing and other development costs. The Agreement
will allow comprehensive planning of a large property so
as to make maximum efficient utilization of resources at
the least economic cost to the public;
1.3.4.2 To provide and assure to the City the
participation of Developer in the accelerated, coordinat-
ed and more economic construction, funding and dedication
to the public of certain needed public facilities and
benefits, and to provide for anticipated levels of
service to residents and populations of the property, the
City, and adjacent areas;
1.3.4.3 To provide and assure that the City
receive sales tax revenues, increase in the property tax
base, residential housing and other development, sewer,
water and street facilities;
1.3.4.4 To provide and assure that the City
receives public facilities in excess of project generated
impacts and such facilities shall be of supplemental
size, number capacity or length, which shall be provide
earlier than could be provided either by funds from the
city or than would strictly be necessary to mitigate
project related impacts at any development phase;
1.3.4.5 To provide Developer assurances
regarding the entitlements and regulations that will be
applicable to the development of the property consistent
with the Chula vista General Plan and the Otay Ranch
General Development Plan/Subregional Plan;
1.3.4.6 To provide the City the opportunity
to secure immediate annexation of the lands depicted in
Attachment "c" and secure a related tax revenue sharing
agreement with the County of San Diego to assure that
development of the properties will generate sufficient
tax revenues to offset the costs of providing services to
the properties;
-2- IY~~
.,._______. __,.____~.m. , __.,.._".....__ _.____._._.~_
1.3.4.7 To enable the City to secure title to
the land with the boundaries of the property necessary to
complete the Chula vista greenbelt system as defined in
the Chula vista General Plan;
1. 3 .4.8 To enable the City to advance its
stated goal to identify and secure a site for a potential
four year university;
1. 3 . 4 . 9 To assure the City that the Developer
will dedicate right-of-way for SR-125, a route which when
constructed will substantially alleviate congestion on 1-
805 and 1-5, and also will facilitate the economic
development of Chula vista; and
1. 3.4.10 To enable the City to prepare and
adopt a Habitat Conservation Plan consistent with the
requirements of the Natural COl1U!\unities Conservation Act,
including the phased conveyance of open space land to the
Otay Ranch Preserve.
1.4 The Annexation. On July 1, 1996, the Local Agency
Formation Commission ("LAFCO") approved annexation of Sphere of
Influence Planning Area 1 "The Otay Parcel", Planning Area 2
"Inverted L" and the Mary Patrick Estate Parcel (see Attachment
"C") .
1.5 Sphere of Influence. On February 5, 1996 and July
1, 1996 the Local Agency Formation commission approved the
inclusion of Planning Area 1, "The Otay Parcel", into the city
Sphere of Influence (Sphere of Influence Planning Area 1 "The Otay
Parcel", Planning Area 2 "Inverted L" and the Mary Patrick Estate
Parcel - see Attachment "C").
1.6 Planninq Documents. On October 28, 1993, city and
County adopted the Otay Ranch General Development Plan/Subregional
Plan ("the GDP") which includes the Otay Ranch Village Phasing
Plan, Facility Implementation Plan, Resource Management Plan and
Service Revenue Plan, for approximately 23,000 acres of the otay
Ranch, including the Otay Valley Parcel and the SNMB, Jewels and
Foundation Properties. The city amended the GDP on June 4, 1996.
1.6.1 SPA One Plan. On June 4, 1996, the Chula
vista City Council approved the Otay Ranch sectional Planning
Area (SPA) One Plan including the Planned Community District
Regulations, Overall Design Plan, Village Design Plan, Public
Facilities Plan, Parks, Recreation, Open Space and Trails
Plan, Regional Facilities Report, Phase 2 Resource Management
Plan, Non-renewable Energy Conservation Plan, Ranch-wide
Affordable Housing Plan, SPA One Affordable Housing Plan, and
Geotechnical Report.
1. 7 Owner Consent. City desires to have the cooperation
and consent of Owner to include the Property in the Annexation in
order to better plan, finance, construct and maintain the infra-
-3- I'IA- J/
--~- _..~- --.. .__...._------~--------_.__._.._.._--_..
structure for the Otay Valley Parcel; and the Otay Ranch L.P., a
California limited partnership, and Village Development, a Califor-
nia general partnership desire to give their cooperation and
consent, provided that they obtain certain assurances, as set forth
in this Agreement.
1.8 citv Ordinance. is the date of
adoption by the City Council of Ordinance No. approving this
Agreement. The ordinance shall take effect and be in full force on
the effective date of Annexation.
2. Definitions. In this Agreement, unless the context
otherwise requires:
2.1 "Annexation" means the proposed annexation of that
portion of the Otay Ranch into the city as depicted on Exhibit "0".
2.2 "city" means the City of Chula Vista, in the County
of San Diego, State of California.
2.3 "County" means the County of San Diego, State of
California.
2.4 "Development Plan" means the GDP.
2.5 "GDP" means the General Development Plan/Subregional
Plan for the otay Ranch, described in Paragraph 1.6, above.
2.6 "Owner" or "Developer" means the person, persons, or
entity having a legal and equitable interest in the Property, or
parts thereof, and includes Owner's successors-in-interest.
2.7 "Project" means the physical development of the
private and public improvements on the Property as provided for in
the Existing Project Approvals and as may be authorized by the City
in Future Discretionary Approvals.
2.8 "Property" means the real property described in
Paragraphs 1.1.1, 1.1.2, and 1.1.3.
2.9 The "Term" of this Agreement means the period
defined in Paragraph 3, below.
2.10 "Builder" means developer to whom Developer has sold
or conveyed property within the Property for purposes of its
improvement for residential, commercial, industrial or other use.
2.11 "CEQA" means the California Environmental Quality
Act, California Public Resources Code section 21000, et seq.
2.12 "City Council" means the City of Chula vista City
Council.
2.13 "Commit" or "Committed" means all of the following
requirements have been met with respect to any public facility:
-4- /¥~ -f
...-~......--_..".'~--
2.13.1 For a public facility within the City's
jurisdictional boundaries and a responsibility of the develop-
er.
2.13.1.1 All discretionary permits required of
the Developer have been obtained for construction of the
public facility;
2.13.1.2 Plans for the construction of the
public facility have all the necessary governmental
approvals; and
2.13.1.3 Adequate funds (i.e., letters of
credit, cash deposits, performance bonds or land secured
public financing, including facility benefit assessments,
Mello-Roos assessment districts of similar assessment
mechanism) are available such that the City can construct
the public facility if construction has not commenced
within thirty (30) days of issuance of a notice to
proceed by the Director of Public Works, or construction
is not progressing towards completion in a reasonable
manner as reasonably deemed by the Director of Public
Works.
2.13.2 For a public facility within the city's
jurisdictional boundaries, but to be provided by other than
Developer.
2.13.2.1 Developer's proportionate share of
the cost of such public facility as defined in the
existing Project Approvals and Future Discretionary
Approvals has been provided or assured by Developer
through the payment or impositions of development impact
fee or other similar exaction mechanism.
2.13.3 For public facility not within City's
jurisdictional boundaries:
2.13.3.1 Developer's proportionate share of
the cost of such public facility as defined in the
existing Project Approvals and Future Discretionary
Approvals has been provided for or otherwise assured by
Developer to the reasonable satisfaction of the Director
of Public Works.
2.14 "Development Impact Fee (DIF)" means fees imposed
upon new development pursuant to the city of Chula vista
Development Impact Fee Program, for example, including but not
limited to the Transportation Development Impact Fee Program, the
Interim SR-125 Development Impact Fee Program, the Salt Creek Sewer
DIF and the Public Facilities DIF.
2.15 "Existing Project Approvals" means all discretionary
approvals affecting the Project which have been approved or
established in conjunction with, or preceding, the effective date
-5- II/~ØÞ?
--. ._..._-..~._- ."-....-.---..
consisting of, but not limited to the GDP, the Chula vista General
Plan, the Otay Ranch Reserve Fund Program adopted pursuant to
Resolution 18288, the SPA One Plan and the Phase II Resource
Management Plan (RMP), as may be amended from time to time
consistent with this agreement.
2.16 "Final Map(s)" means any final sUbdivision map for
all or any portion of the Property other than the Superblock Final
Map ("A" Maps).
2.17 "Future Discretionary Approvals" means all permits
and approvals by the city granted after the effective date and
excluding existing Project Approvals, including, but not limited
to: (i) grading permits; (ii) site plan reviews; (iii) design
guidelines and reviews; (iv) precise plan reviews; (v) subdivisions
of the Property or re-subdivisions of the Property previously
subdivided pursuant to the Subdivision Map Act; (vi) conditional
use permits; (vii) variances; (viii) encroachment permits;
(ix) sectional Planning Area plans; (x) all other reviews, permits,
and approvals of any type which may be required from time to time
to authorize public or private on- or off-site facilities which are
a part of the Project.
2.18 "Planning commission" means the Planning commission
of the City of Chula vista.
2.19 "Preserve Conveyance Plan" means a plan that sets
forth policies and identifies land to be transferred and/or fees to
be paid to insure the orderly conveyance of the Otay Ranch land to
the Preserve Owner Manager. The purpose of the plan is to fulfill
the obligations to convey resource sensitive land, per the criteria
contained in the phase I and II Resource Management Plans and to
mitigate environmental impacts of the Otay Ranch Project.
2.20 "Public Facility" or "Public Facilities" means those
public facilities described in the otay Ranch Facility
Implementation Plan.
2.20.1 "SPA One Plan" means The otay Ranch
sectional Planning Area (SPA) One Plan approved by the city of
Chula vista on June 4, 1996, including the Planned Community
District Regulations, Overall Design Plan, Village Design
Plan, Public Facilities Finance Plan, Parks, Recreation, open
Space and Trails Plan, Regional Facilities Report, Phase 2
Resource Management Plan, Non-renewable Energy Conservation
Plan, Ranch-wide Affordable Housing Plan, SPA One Affordable
Housing Plan, and Geotechnical Report.
2.21 "Subdivision Map Act" means the California
Subdivision Map Act, Government Code section 66410, et seg., and
its amendments as may from time to time be adopted.
2.22 "Substantial Compliance" means that the party
charged with the performance of a covenant herein has sufficiently
-6- If A -- ')
-- ----..-....-----" - ------~-~-_._-_..._"~--_.,._..._--_.-
followed the terms of this Agreement so as to carry out the intent
of the parties in entering into this Agreement.
2.23 "Threshold" means the facility thresholds set forth
in the city's Municipal Code section 19.19.040.
3. Term. Taio ..1\...E~fE'ÐeH\eflt cRall Bceeme effee'ti9;c as a
Elc·.'I!clepmcRt agrecmcnt upon thE; effceti 9:C Elate af the llFlßcuat.ieR
("the Effeetive Date") I provided, ho',;e·..er, that if the Aflfle¡¡atiafl
deee Re~ eee~r eft ey eefore January 1, 1997, 'this ~~reemeßt shall
be flaIl afld vaid, AflY af the fore~oifl~ to the cOfltrary flotvith
BtaßàiR~1 fram t.he date af first. rc~din~ sf the eràinaRee appre7iR~
'this lHJreement., slid liRIEss er ufltil t.his AgrccmCrl't ee:esme.s fiall afui
vaid, O\;fler shall be boufld by the terma of rara~raph 1. The Term
af t.his A~reemeRt. far p\:lr~eÐeÐ ether than rara~ra~h 4 shall Bc~iR
apeft t.he Effeeti?Ð Date, aRd caall esntiRuc fer a periaà af twcnty
(29) years ("the Term"). This Aqreement shall become effective as
a development aqreement upon the effective date of the Annexation
(the "Effective Date"): provided. however. that if the Annexation
does not occur on or before Julv 1. 1997. this Aqreement shall
become null and void unless the annexation proceedinqs have been
extended bv LAFCO. If the annexation proceedinqs have been
extended. this Aqreement shall become effective upon the effective
date of such Annexation: provided. however. if the annexation does
not occur bv the end of such extension(s). this Aqreement shall
become null and void. Anv of the foreqoinq to the contrary
notwithstandinq. from the date of first readinq of the ordinance
approvinq this Aqreement. and unless or until this Aqreement
becomes null and void. Owner shall be bound bv the terms of
Paraqraph 4. The Term of this Aqreement for purposes other than
Paraqraph 4 shall beqin upon the Effective Date. and shall continue
for a period of twenty (20) vears ("the Term").
The term shall also be extended for any period of time during which
issuance of building permits to Developer is suspended for any
reason other than the default of Developer, and for a period of
time equal to the period of time during which any action by the
city or court action limits the processing of future discretionary
approvals, issuance of building permits or any other development of
the property consistent with this Agreement.
4. Owner Consent to Annexation. Owner hereby consents to
and shall cooperate with the applications of City to declare that
the land depicted in Exhibit "C" is within city's sphere of
influence and to annex the land depicted in Exhibit "C" to the
City; provided, however, that Owner may withdraw such consent and
withhold further cooperation if the city, prior to the Effective
Date, adopts rules, regulations, ordinances, policies, conditions,
environmental regulations, phasing controls, exactions, entitle-
ments, assessments or fees applicable to and governing development
of the Property which are inconsistent with, or render impractical
development of the Property according to, the Development Plan.
5. Vested Riqhts. Notwi thstanding any future action or
inaction of the City during the term of this Agreement, whether
-7- I¥A~ tt'
~_..__. ____ ... __._.____..______._n______""
such action is by ordinance, resolution or policy of the City,
Owner and Developer shall have a vested right, provided however the
developer is not in default of its obligations under this Agree-
ment, and except as may be otherwise provided in this Section 5, to
construct the Project in accordance with:
5.1 Existina proiect Approvals.
5.2 Development of Propertv. The development of the
Property will be governed by this Agreement and Existing Project
Approvals and such development shall comply and be governed by all
rules, regulations, policies, resolutions, ordinances, and
standards in effect as of the Effective Date subject to the
provisions of section 5.2.1 below. The City shall retain its
discretionary authority as to Future Discretionary Approvals,
provided however, such Future Discretionary Approvals shall be
regulated by the Existing Project Approvals, this Agreement, and
city rules, regulations, standards, ordinances, resolutions and
policies in effect on the Effective Date of this Agreement and
subject to section 5.2.1.
Notwithstanding the foregoing, the City may make such changes to
the city's Growth Management Ordinance applicable to the Project as
are reasonable and consistent with the purpose and intent of the
existing Growth Management Ordinance and which are generally
applicable to all private projects citywide or east of 1-805 or
within a specific benefit, fee or reimbursement district created
pursuant to the California Government Code.
5.2.1 New or Amended Rules. Reaulations.
Policies. Standards. Ordinances and Resolutions. The City may
apply to the Project, including Future Discretionary Approv-
als, new or amended rules, laws, regulations, policies,
ordinances, resolutions and standards generally applicable to
all private projects east of 1-805 or within a specific
benefit fee or reimbursement district created pursuant to the
California Government Code. The application of such new
rules, or amended laws, regulations, resolutions, policies,
ordinances and standards will not unreasonably prevent or
unreasonably delay development of the Property to the uses,
densities or intensities of development specified herein or as
authorized by the Existing Project Approvals. The City may
also apply changes in city laws, regulations, ordinances,
standards or policies specifically mandated by changes in
state or federal law in compliance with section 13.3 herein.
5.2.2 Developer may elect with City's consent,
to have applied to the project any rules, regulations,
policies, ordinances or standards enacted after the date of
this Agreement. Such an election has to be made in a manner
consistent with section 5.2 of this Agreement.
5.2.3 Modifications to Existina ProiectApprov-
also It is contemplated by the parties to this Agreement that
the City and Developer may mutually seek and agree to modifi-
-8- IJ/~, ,
~..._--~._------ "-.-.,.--.-- .w.__.._"..__u. -
cations to the Existing Project Approvals. Such modifications
are contemplated as within the scope of this Agreement, and
shall, upon written acceptance by all parties, constitute for
all purposes an Existing Project Approval. The parties agree
that any such modifications may not constitute an amendment to
this Agreement nor require an amendment to the Agreement.
5.2.4 Future Discretionarv Approvals. It is
contemplated by the parties to this Agreement that the city
and Developer may agree to Future Discretionary Approvals. The
parties agree that any such Future Approvals may not consti-
tute an amendment to this Agreement nor require an amendment
to the Agreement. Developer agrees to reasonably cooperate
with any amendments to Existing and Future Discretionary
Approvals as may be requested by the City from time to time.
5.3 Dedication and Reservation of Land for Public
Purposes. Except as expressly required by this Agreement or the
Existing Project Approvals and Future Discretionary Approvals
(excepting dedications required within the boundaries of any parcel
created by the subsequent subdivision of the Property as required
by the Subdivision Map Act), no dedication or reservation of real
property within or outside the Property shall be required by city
or Developer in conjunction with the Project. Any dedications and
reservations of land imposed shall be in accordance with section
7.2 and section 7.8 herein.
5.4 Time for Construction and Completion of Proiect.
Because the California Supreme Court held in Pardee Construction
Companv v. Citv of Camarillo (1984) 27 Cal.3d 465, that the failure
of the parties to provide for the timing of development resulted in
a later-adopted initiative restricting the timing of development to
prevail over such parties' Agreement, it is the intention of the
parties to this Agreement to cure that deficiency by specifically
acknowledging that timing and phasing of development is completely
and exclusively governed by the Existing Project Approvals,
including the Chula vista Growth Management Ordinance. The purpose
of the Chula vista Growth Management Ordinance is to "control the
timing and location of development by tying the pace of development
to the provision of public facilities and improvements to conform
to the city's threshold standards." (Municipal Code section
19.09.010A.7) The findings in support of the Growth Management
Ordinance conclude that the ordinance "does not affect the number
of houses which may be built." (Municipal Code section
19.09.010B.3) Therefore, the parties acknowledge that the Chula
vista Growth Management Ordinance completely occupies the topic of
development timing and phasing and expressly precludes the adoption
of housing caps, urban reserves or any other means by which the
rate of development may be controlled or regulated. The City
agrees that the Developer shall be entitled to, apply for and
receive all permits necessary for the development of property,
consistent with the Growth Management Ordinance, Existing Project
Approvals, Future Discretionary Approvals and this Agreement.
-9- 1'14 '/P
---->- --_.._-_--._-~.,.._._-- .._..---..--'.-~-.--
5.5 Benefit of vestinq. Nothing in this Agreement will
be construed as limiting or impairing Developer's vested right, if
any, to proceed with the development and use of the Property
pursuant to the Federal and state Constitutions, and pursuant to
statutory and decisional law.
5.6 Vestinq of Entitlements. All rights conferred by
this Agreement vest with the Effective Date hereof. The approval
of Future Discretionary approvals shall not be deemed to limit
Developer's rights authorized by this Agreement, and once such
approvals are obtained they shall be vested to the same extent as
the Existing Project Approvals.
6. DEVELOPMENT PROGRAM.
6.1 processinq of Future Discretionarv Approvals. City
will accept and diligently process development applications and
requests for Future Discretionary Approvals, or other entitlements
with respect to the development and use of the Property, provided
said applications and requests are in accordance with this
Agreement. City costs for processing work related to the Project,
including hiring of additional city personnel and/or the retaining
of professional consultants, will be reimbursed to city by
Developer.
6.2 Lenqth of Validitv of Tentative Subdivision Maps.
Government Code section 66452.6 provides that tentative subdivision
map(s) may remain valid for a length up to the term of a Develop-
ment Agreement. The city agrees that tentative subdivision maps
for the Property shall be for a term of six (6) years and may be
extended by the City Council for a period of time not to exceed a
total of twenty (20) years and in no event beyond the term of this
Agreement.
6.3 Pre-Final Map Development. If Developer desires to
do certain work on the Property after approval of a tentative map
(for example, grading) prior to the recordation of a final map, it
may do so by obtaining a grading and/or other required approvals
from the city which are authorized by the City prior to recordation
of a final map. The permit may be approved or denied by the city
in accordance with the City's Municipal Code, regulations and
policies and provided Developer is in compliance with this
Agreement and with the terms of all Existing and Future Discretion-
ary Approvals. In addition, the Developer shall be required to
post a bond or other reasonably adequate security required by city
in an amount determined by the City to assure the rehabilitation of
the land if the applicable final map does not record.
6.4 Final Maps.
6.4.1 "A" Maps and "B" Maps. Developer shall
process a master subdivision or parcel map ("A" Map) for each
Village showing "Super Block" lots and backbone street
dedications. "Super Block" lots shall be consistent with the
GDP and subsequent sectional Plan Area plans, and shall not
-10- /1~, J/
~,-_....--.---..-"".-- --"_.
subdivide land into individual single-family lots. All "Super
Blocks" created shall have access to dedicated public streets.
The City shall not require improvement plans in order to
record a final map for any "A" Map lots. Following the
approval by City of any final map for an "A" Map lot and its
recordation, Developer may convey the "Super Block" lot. The
buyer of a "Super Block" lot shall then process final improve-
ment plans and grading plans and a final map ("B" Map) for
each "Super Block" lot which the city shall process if such
documents are in compliance with the city's Municipal Code,
standard policies, and the applicable tentative map. The "B"
Maps shall be in substantial conformance with the related
approved "A" Map. In the instance of the multi-family
dwelling unit areas, a separate tentative subdivision map may
be submitted to the City and the "B" Map(s) for these areas
may be submitted to the City after the city Planning
Commission approves said tentative subdivision map.
6.4.2 Recordation of Final Subdivision MaD in
Name of Builder or Third Partv. Developer may, if it so
elects, convey to a Builder or third party any "super block"
lot(s) shown on the recorded Superblock Final Map. In such
case, the Builder or third party will (i) process any neces-
sary final improvement and grading plans and a final map for
each such "super block" lot ("B" map), which map City shall
accept and process if such map is in compliance with the
City's Municipal Code, standard policies, the applicable
tentative map, and the provisions of 7.1 of this Agreement if
applicable as subsequent phases in a multi-phase project, (ii)
enter into a subdivision improvement agreement with City with
respect to the subdivision improvements which are required for
such super block lot, (iii) provide security and insurance
satisfactory to City for the completion of the subdivision
improvements, and (iv) agree, in such case, with the city's
consent to comply with the obligations set forth in 7.1.
6.4.3 Recordation of Final Subdivision MaD in
DeveloDer's Name: Transfer of Obliqations Under Subdivision
ImDrovement Aqreement(s). If Developer so elects, it may
defer the conveyance of any super block lot to a Builder or
third party until after the final map of such super block lot
has been recorded. If Developer elects to proceed in this
manner, it will enter into City's standard subdivision
improvement agreement(s) with City for the improvements
required as a condition to the approval of such map(s). Upon
sale to a Builder or third party, if such Builder or third
party assumes Developer's obligations with the City's consent
under the improvement agreement and provides its own security
and insurance for the completion of the subdivision improve-
ments satisfactory to the City and as approved by the City,
Developer shall be released from liability under the subdivi-
sion improvement agreement(s) and Developer's security shall
be released.
-11- I~"''' /.;1.
._._~.._.~".___ __ ______n___
6.4.4 Transfer of Riqhts and Obliqations of
Development. Whenever Developer conveys a portion of the
Property, the rights and obligations of this Agreement shall
transfer in accordance with section l5 herein.
7. DEVELOPER'S OBLIGATIONS.
7.1 Condition to Developer's Obliqations to Dedicate. Fund or
Construct Public Facilities. Developer agrees to develop or
provide the public improvements, facilities, dedications, or
reservations of land and satisfy other exactions conditioning the
development of the Property which are set forth hereinbelow. In
addition to any other obligations the Developer may have,
Developer as its sole and separate responsibility, covenants and
agrees to bond and provide or finance the cost of backbone
facilities as identified on the appropriate Tentative Map and
required by any final map (including "B" Maps). This requirement
may be satisfied through the construction or financing of said
facilities or with the city's approval of any of the following:
the establishment of a reimbursement mechanism, a development
impact fee program, an assessment mechanism, or other equitable
facili ty financing program wi thin the city's discretion. This
requirement shall be deemed satisfied in the event that the
Builder(s) of a "B" Map expressly assume the obligations with the
consent of the City to provide said backbone facilities. For
purposes of Tentative Map No. PCS 96-04, Developer shall provide,
prior to the approval of the first final "B" map, adequate security
as determined by the City Engineer for the construction of those
certain backbone facilities set forth in the conditions of approval
for said tentative map. Developer acknowledges that as to any
future tentative maps, Developer may be required by City to provide
such security at various times during the development process
including prior to the first final "A" map in accordance with
city's ordinances, policies or regulations. For purposes of this
section, backbone facilities mean those facilities such as water,
sewer, storm drain and public streets necessary to serve demands
generated for the backbone facility beyond that of any single "B"
map, but are not included within a wider area City development
improvement fee program.
The obligations of the Developer, pursuant to this Agreement, are
conditioned upon: (i) the city not being in default of its
obligations under this agreement; and (ii) the City not unreason-
ably preventing or unreasonably delaying the development of the
property; and (iii) if the Agreement has been suspended in response
to changes in state or federal law or due to said obligations being
suspended pursuant to section 13.2, said obligations of Developer
shall be suspended for the same period of time.
7.2 Dedications and Reservations of Land for PublicPurpos-
ªª. The policies by which property will be required to be
reserved, dedicated or improved for public purposes are identified
in the Existing Project Approvals. A more precise delineation of
the property to be preserved, dedicated or improved for public
purposes shall occur as part of Future Discretionary Approvals,
-12- I'I¿¡ . J:J
.-~.._-----_.
consistent with development of property as set forth in section 5.2
herein.
7.2.1 Dedication of Land for SR 125. Developer
agrees to dedicate land for right-of-way purposes and property
owned by the Developer that is reasonably necessary for the
SR-125 configuration that is generally depicted in the SR-125
draft Environmental Impact Report/statement and as revised in
the Final Environmental Impact Report/Statement to respond to
engineering, design, environmental and similar constraints.
The dedications shall be to the city or by an alternate method
acceptable to the city at such time as requested by the city.
City agrees that in the event city shall negotiate with
California Transportation Ventures (CTV) or other toll road
builder any participation or advantages to city that City
shall share such rights with subsequent owner/resident of the
property.
7.2.2 Landfill Nuisance Easements. Developer shall
grant to the County by July 1, 1996 "Landfill Nuisance
Easements" substantially in the form attached as Exhibit E.
The Easement shall cover all land which is within the Otay
Landfill Buffer Area of Villages 2, 3 and Planning Area laB of
the Otay Ranch GDPP as shown on Exhibit E hereto.
In addition, Developer agrees to enter into subordination
agreements, acceptable to the County, with all lienholders
having an interest in the Property subiect to the Landfill
Nuisance Easements to ensure that this easement A~FeemeR~ has
a priority position over all other liens. The subordination
agreements shall be delivered to the City prior to the second
reading of the Ordinance approving the Agreement. If there is
no second reading of this Agreement, the City shall return
said subordination agreements to the Developer. If the County
Board of Supervisors does not accept or approve said ease-
ments, this Agreement shall be automatically terminated with
neither party bearing any liability hereunder.
7 . 2 . 3 Preserve Convevance Plan. The Developer
shall comply with any existing or yet to be adopted Preserve
Conveyance Plan and convey property as set forth in such Plan.
7.3 Growth Manaqement Ordinance. Developer shall commit the
public facilities and city shall issue building permits as provided
in this section and in accordance with Existing Project Approvals
and Future Discretionary Approvals. The City shall have the right
to withhold the issuance of building permits any time after the
City reasonably determines a Threshold has been exceeded, unless
and until the Developer has mitigated the deficiency in accordance
with the City's Growth Management Ordinance.
Developer agrees that building permits may be withheld where the
public facilities described in the Existing Project Approvals/
-13- /'IA" Jý
Future Discretionary Approvals required for a particular Threshold
have not been committed.
In the event a Threshold is not met and future building permit
issuance may be withheld, the notice provisions and procedures
contained in section 19.09 .100C of the Municipal Code will be
followed. In the event the issuance of building permits is
suspended pursuant to the provisions herein, such suspension shall
not constitute a breach of the terms of this Agreement by Develop-
er. Furthermore, any such suspension which is not caused by the
actions or omissions of the Developer, shall toll the term of this
Agreement as provided for in section 16.12 of this Agreement, and
suspend the Developer's obligations pursuant to this Agreement.
7.3.1 Reauired Condemnation. The City and Developer
recognize that certain portions of the Resource Preserve and
of the public facilities identified in the Existing Project
Approvals/Future Discretionary Approvals and required to
comply with a threshold are located on properties which
neither the Developer nor the City has, or will have, title to
or control of. The city shall identify such property or
properties and at the time of filing of the final map commence
timely negotiations or, where the property is within the
City's jurisdiction, commence timely proceedings pursuant to
Title 7 (commencing with § 1230.010) of Part 3 of the Code of
civil Procedure to acquire an interest in the property or
properties. Developer's share of the cost involved in any
such acquisition shall be based on its proportionate share of
the public facility as defined in the Existing Project
Approvals/Future Discretionary Approvals. Notwithstanding the
foregoing, nothing in this Agreement shall be deemed to
preclude the City from requiring the Developer to pay the cost
of acquiring such off-site land. For that portion of the cost
beyond the Developer's fair share responsibility, the City
shall take all reasonable steps to establish a procedure
whereby the developer is reimbursed for such costs beyond its
fair share.
7.3.2 Information Reaardina Thresholds. Upon
Developer's written requests of the City Manager, the City
will provide Developer with information regarding the current
status of a Threshold. Developer shall be responsible for any
staff costs incurred in providing said written response.
7.4 Imcrovements Reauired bv a Tentative Subdivi-
sion Mac. As may be required pursuant to the terms of a tentative
subdivision map approval, it shall be the responsibility of
Developer to construct the improvements required by the subdivision
map. Where Developer is required to construct a public improvement
which has been identified as the responsibility of another party or
to provide public improvements of supplemental size, capacity,
number or length benefiting property not within the tentative
subdivision map, City shall process for consideration to approve or
deny in its sole discretion a reimbursement agreement to the
-14- )1//9'15
- ---_...._.._.__.._~_._..- -~_._-_._._-~_._.__._,_._--_._--~_.~_..._----_.- -
Developer in accordance with the city's Municipal Code and Article
6 of Chapter 4 of the Subdivision Map Act, commencing with
Government Code section 66485, and section 7.5, below. This does
not preclude the Developer or the City from considering alternative
financing mechanisms.
7.5 Facilities Which Are the Obliqations of Another
Partv. or Are of Excessive size. Capacitv. Lenqth or Number.
Developer may offer to advance monies and/or construct public
improvements which are the responsibility of another land owner, or
outside the City's jurisdictional boundaries, or which are of
supplemental size, capacity, number or length for the benefit of
land not within the Property. city, where requesting such funding
or construction of oversized public improvements, shall consider
after a public hearing, contemporaneous with the imposition of the
obligation, the formation of a reimbursement district, assessment
district, facility benefit assessment, or reimbursement agreement
or other reimbursement mechanism.
7.6 pioneerinq of Facilities. To the extent Developer
itself constructs (Le., "Pioneers") any public facilities or
public improvements which are covered by a DIF Program, Developer
shall be given a credit against DIFs otherwise payable, subject to
the City's Director of Public Works reasonable determination that
such costs are allowable under the applicable DIF Program. It is
specifically intended that Developer be given DIF credit for the
DIF Program improvements it makes. The fact that such improvements
may be financed by an assessment district or other financing
mechanism, shall not prevent DIF credit from being given to the
extent that such costs are allowed under the applicable DIF Program
7.7 Insurance. Developer shall name City as additional
insured for all insurance policies obtained by Developer for the
Project as pertains to the Developer's activities and operation on
the Project.
7.8 Other Land Owners. Developer hereby agrees to
dedicate adequate rights-of-way within the boundaries of the
Property for other land owners to "Pioneer" public facilities on
the Property; provided, however, as follows: (i) dedications shall
be restricted to those reasonably necessary for the construction of
facilities identified in the city's adopted public facility plans;
(ii) this provision shall not be binding on the successors-in-
interest or assignees of Developer following recordation of the
final "Super Block" or "A" Map; and (iii) the City shall use its
reasonable best efforts to obtain agreements similar to this
subsection from other developers and to obtain equitable reimburse-
ment for Developer for any excess dedications.
7.9 Construction of East-West Access. Pursuant to
City's requirements, Developer is required to pay Transportation
Development Fees (TDIF) for a variety of purposes including
construction of east-west arterial access through the Property
connecting to 1-805. Alternatively, the Developer may be required
to actually construct all or portions of such access if, at the
-15- l'IA4I/~
_ _ ___. __._,_.~.__.___ __ _._... ....m~. __....__._ _"U_ ____...._
time of need, the TDIF fund does not contain sufficient revenues to
finance the construction of the needed facilities. Such east-west
arterial access from SPA One to 1-805 could occur on either East
Orange Avenue or on East Palomar Street. It is not now possible to
determine with certainty when it will be necessary to actually
construct the arterials in order to comply with the threshold
requirements because the rate and location of future development is
unknown. The total cost and length of the arterial, which might be
constructed by the Developer, are unknown at this time because it
cannot be determined if and when development west of the property
(Sunbow) will construct the Western portion of the arterials. Such
uncertainty makes it difficult to plan and finance the orderly
development of the property and needed on-site and off-site
facilities. To provide greater certainty as to the timing and
construction of east-west arterial access, the City agrees to
reasonably consider in good faith a traffic capacity agreement with
Developer which would reserve traffic capacity for all or part of
SPA One in exchange for Developer's agreement to pioneer all or
part of planned east-west access to SPA One.
7.10 Assurances of Compliance. Owner acknowledges that
the City is not required to and will not take any action on any of
Owner's applications for Future Discretionary Approvals under this
Agreement, or any modifications or amendments thereof, until and
unless the City Manager determines that the Owner is not in default
of its obligations under this Agreement including but not limited
to those set forth in section 7.11 and 14.
7.11 Complete Construction. Developer/Builder or any
third party agree to diligently complete construction once a
building permit has been issued for Property which is covered by
this Agreement. Should construction stop once the building permits
have been issued by the city, which the City in its sole discretion
determines has created a nuisance or fire or safety hazard, the
Developer agrees to take such steps necessary to cure the nuisance
or hazard. Should Developer fail to do so to the city's satisfac-
tion, the city may take what steps it deems necessary to cure the
nuisance or hazard at Developer's sole cost and expense.
8. DEVELOPMENT IMPACT FEES.
8.1 Existinq Development Impact Fee Proqram Pavments.
Developer shall pay to the city a DIF, or construct improvements in
lieu of payment, for improvements which are conditions of a
tentative subdivision map upon the issuance of building permits (s) ,
or at a later time as specified by city ordinance, the Subdivision
Map Act, or Public Facility Financing Plan (PFFP). The DIF will be
in the amount in effect at the time payment is made and may only be
increased pursuant to section 8.6 herein.
8.2 Other Undeveloped Properties. The City will use its
reasonable best efforts to impose and collect, or cause the
imposition and collection of, the same DIF program on all the
undeveloped real properties which benefit from the provision of the
-16- J'I~ -I?
..._" __,_.,'·,w_. ______ __.__~ .._____..__ .
public facility through the DIF program, or provided as a condition
of project Approvals.
8.3 Use of Development Impact Fee Proqram. The DIF
amounts paid to the city by Developer and others with respect to
the Area of Benefit shall be placed by the city in a capital
facility fund account established pursuant to California Government
Code sections 66000-66009. The City shall expend such funds only
for the Projects described in the adopted fee program as may be
modified from time to time. The city will use its reasonable best
efforts to cause such Projects to be completed as soon as practica-
ble; however, the city shall not be obligated to use its general
funds for such Projects.
8.4 withholdinq of Permits. Developer agrees that City
shall have the right to withhold issuance of the building permit
for any structure or improvement on the Property unless and until
the DIF is paid for such structure or improvement.
8.5 Development Impact Fee Credit. Upon the completion
and acceptance by the City of any public facility, the City shall
immediately credit Developer with the appropriate amount of cash
credits ("EDUs") as determined by Developer and city. However, if
the improvements are paid for through an Assessment District, the
City shall credit the Developer with the appropriate number of
Equivalent Dwelling unit Credits (EDU's) . Developer shall be
entitled to apply any and all credits accrued pursuant to this
subsection toward the required payment of future DIF for any phase,
stage or increment of development of the Project.
8.6 Modification of Development Impact Fees. The
parties recognize that from time to time during the duration of the
Agreement it will be necessary for the City to update and modify
its DIF fees. Such reasonable modifications are contemplated by
the City and the Developer and shall not constitute a modification
to the Agreement so long as: (i) the modification incorporates the
reasonable costs of providing facilities identified in the Existing
or Future Project Approvals; (ii) are based upon methodologies in
substantial compliance with the methodology contained in the
existing DIF programs; or other methodology approved by the City
Council following a public hearing; (iii) complies with the
provisions of Government Code sections 66000-66009.
8.7 Standards for Financinq Obliqations of Owner. In
connection with the development of the Property, the following
standards regarding the financing of public improvements shall
apply:
8.7.1 Owner shall participate in the DIF Program
for the Otay Valley Parcel with other owners in proportion to
the total dwelling units or equivalent dwelling units allowed
on the Property as compared with the total of such units
allowed on properties in that particular DIF or by some other
equitable methodology decided by the city Council.
-17- 1'14" Jr
~__,__~ _... _.~~_'u~.._ .....__._____....,._._...
8.7.2 The City shall diligently pursue the
requirements that the Eastern Territories' DIF requires
offsite third parties and adjacent jurisdictions to bear their
fair share of all otay River Valley crossings.
9. CITY OBLIGATIONS.
9.1 Urban Infrastructure. To the extent it is within
the authority and ability of the City to provide, city shall
accommodate urban infrastructure to the project, consistent with
Existing Project Approvals. Where it is necessary to utilize City
property to provide urban infrastructure consistent with the
Existing Project Approvals, the city agrees to make such land
available for such uses, provided that the city if it so chooses is
compensated at fair market value for the property. To the extent
that the provision of urban infrastructure is within the authority
of another public or quasi-public agency or utility, the City
agrees to fully cooperate with such agency or agencies to accommo-
date the urban infrastructure, consistent with Existing Project
Approvals. Urban infrastructure shall include, but not be limited
to gas, electricity, telephone, cable and facilities identified in
the otay Ranch Facility Implementation Plan.
9.2 Sewer Capaci tv. The City agrees to provide adequate
sewer capacity for the project, upon the payment of ordinary and
necessary sewer connection, capacity and/or service fees.
9.3 Nuisance Easement. The City shall reasonably
consider with proper environmental review a request to amend the
Otay Ranch GDP to relocate, wi thin the property, the land uses
affected by the execution of a "nuisance easement" pursuant to the
Otay Ranch Landfill Agreement, (dated May 15, 1996). This GDP
amendment shall be processed prior to or concurrent with the GDP
amendment covering the landfill buffer area required by the
Landfill Agreement. The amendment shall be deemed vested to the
same extent as Existing Project Approvals and shall not require or
constitute an amendment to this Agreement. The Developer agrees to
pay the reasonable City cost for processing the amendments.
10. ANNUAL REVIEW.
10.1 citv and Owner Responsibilities. City will, at
least every twelve (12) months during the Term of this Agreement,
pursuant to California Government Code §65865.1, review the extent
of good faith substantial compliance by Owner with the terms of
this Agreement. Pursuant to California Government Code section
65865.1, as amended, Owner shall have the duty to demonstrate by
substantial evidence its good faith compliance with the terms of
this Agreement at the periodic review. Either City or Owner may
address any requirement of the Agreement during the review.
10.2 Evidence. The parties recognize that this Agreement
and the documents incorporated herein could be deemed to contain
hundreds of requirements and that evidence of each and every
requirement would be a wasteful exercise of the parties' resources.
-18- I~ 11"/'
_~_._..._."_'._____'H _ _ __._~____ __..__".._._____..
Accordingly, Developer shall be deemed to have satisfied its good
faith compliance when it presents evidence of substantial com-
pliance with the major provisions of this Agreement. Generalized
evidence or statements shall be accepted in the absence of any
evidence that such evidence is untrue.
10.3 Review Letter. If Owner is found to be in com-
pliance with this Agreement after the annual review, City shall,
within forty-five (45) days after Owner's written request, issue a
review letter in recordable form to Owner ("Letter") stating that
based upon information known or made known to the Council, the city
Planning commission and/or the City Planning Director, this
Agreement remains in effect and Owner is not in default. Owner may
record the Letter in the Official Records of the County of San
Diego.
10..4 Failure of periodic Review. City's failure to
review at least annually Owner's compliance with the terms and
conditions of this Agreement shall not constitute, or be asserted
by City or Owner as, a breach of the Agreement.
11. DEFAULT.
11.1 Events of Default. A default under this Agreement
shall be deemed to have occurred upon the happening of one or more
of the following events or conditions:
11.1.1 A warranty, representation or statement
made or furnished by Owner to city is false or proves to have
been false in any material respect when it was made.
11.1.2 A finding and determination by City made
following a periodic review under the procedure provided for
in California Government Code section 65865.1 that upon the
basis of substantial evidence Owner has not complied in good
faith with one or more of the terms or conditions of this
Agreement.
11.1.3 City does not accept, timely review, or
consider requested development permits or entitlements
submitted in accordance with the provisions of this Agreement.
11.1. 4 1.11 remedica a~ la·., er iR eEJui~y ,..hich are
eeflsit3~eR~ T,ii~h ~he previsieRa ef ~his Agreement are available
te Ci~y aRd OURer te I>Hraue in ~he eveRt there is a breach
previded, he·...e·..er, Reither party shall have the remedy ef
mefletary damagea agaiRst the ether eJrcept fer aR ar.,ard ef
litigatieR oeata aRd a~terReya fees.
11.2 Procedure Upon Default.
11.2.1 Upon the occurrence of default by the
other party, City or Owner may terminate this Agreement after
providing the other party thirty (30) days written notice
specifying the nature of the alleged default and, when
-19- /~"'''J,.p
~--_..__.,.. ----..-. ----_.,-~-----_._-_._._-- ---~-
appropriate, the manner in which said default may be satis-
factorily cured. After proper notice and expiration of said
thirty (30) day cure period without cure, this Agreement may
be terminated. In the event that City's or Owner's default is
not subject to cure within the thirty (30) day period, city or
Owner shall be deemed not to remain in default in the event
that City or Owner commences to cure within such thirty (30)
day period and diligently prosecutes such cure to completion.
Failure or delay in giving notice of any default shall not
constitute a waiver of any default, nor shall it change the
time of default. Notwithstanding any other provision of this
Agreement, City reserves the right to formulate and propose to
Owner options for curing any defaults under this Agreement for
which a cure is not specified in this Agreement. In the event
of Developer's default under this agreement, the City shall
provide notice of such default as described in this section to
all lenders who have delivered to the City a subordination
agreement pursuant to section 12.5.
11.2.2 City does not waive any claim of defect in
performance by Owner if, on periodic review, city does not
propose to modify or terminate this Agreement.
11. 2.3 Subject to Paragraph 16.12 of this
Agreement, the failure of a third person shall not excuse a
party's nonperformance under this agreement.
11. 2.4 All staCY rcmcdicG at la¡w· er ill e~uity
"RicR are eSflsisteflt .dtR the provisisflG of tRia AlJreemeflt are
a·,:ailaelc te city and O\¡ncr t.e puraue in the C·,;CRt. t.here ia a
IarÐaeh. All remedies at law or in equitv which are consistent
with the orovisions of this Aqreement are available to citv
and Owner to oursue in the event there is a breach orovided.
however. neither oartv shall have the remedv of monetarv
damaqes aqainst the other exceot for an award of litiqation
costs and attornevs fees.
12. ENCUMBRANCES AND RELEASES ON PROPERTY.
12.1 Discretion to Encumber. This Agreement shall not
prevent or limit Owner in any manner at Owner's sole discretion,
from encumbering the Property, or any portion of the Property, or
any improvement on the Property, by any mortgage, deed of trust, or
other security device securing financing with respect to the
Property or its improvement.
12.2 Mortqaqee Riqhts and Obliqations. The mortgagee of
a mortgage or beneficiary of a deed of trust encumbering the
property, or any part thereof, and their successors and assigns
shall, upon written request to city, be entitled to receive from
City written notification of any default by Owner of the
performance of Owner's obligations under the Agreement which has
not been cured within thirty (30) days following the date of
default.
-20- 1-'1/1'.1/
.._.._.-".,..-.-,--_.,~,--- ----~-- -.- _..~.--
12.3 Releases. City agrees that upon written request of
Owner and payment of all fees and performance of the requirements
and conditions required of Owner by this Agreement with respect to
the Property, or any portion thereof, city may execute and deliver
to Owner appropriate release(s) of further obligations imposed by
this Agreement in form and substance acceptable to the San Diego
county Recorder and title insurance company, if any, or as may
otherwise be necessary to effect the release. city Manager shall
not unreasonably withhold approval of such release(s). In
addition, at such time as an individual home buyer purchases a home
on a subdivided lot within the Property, the city covenants and
agrees that it shall release said lot from the lien of this
agreement.
12.4 Obliqation to Modifv. City acknowledges that the
lenders providing financing for the Project may require certain
modifications to this Agreement and city agrees, upon request from
time to time, to meet with Owner and/or representatives of such
lenders to negotiate in good faith any such requirement for
modification. City will not unreasonably withhold its consent to
any such requested modification.
12.5 Subordination. Developer agrees to enter into
subordination agreements with all lenders having a lien on the
Property to ensure that the provisions of this Agreement bind such
lienholders should they take title to all or part of the property
through quit claim deed, sale, foreclosure or any other means of
transfer of property. As a condition precedent to obtaining the
benefits that accrue to the Developer or the Property under this
Agreement, this Agreement by and through said subordination
agreements shall be prior and superior to such liens on said
Property. Developer shall deliver to the City the fully executed
subordination agreements for the Property within SPA One, in a form
acceptable to the city Attorney and suitable for recording, prior
to the second reading of the ordinance adopting the Development
Agreement. Developer shall deliver to the city a fully executed
subordination agreement for Property within subsequently approved
SPA plans in a form acceptable to the city attorney on or before
approval of each SPA Plan for said Property. In the event of
Developer's default under this agreement, the City shall provide
notice of such fault as described in section 11 of this agreement
to all lenders who have delivered to the City a subordination
agreement pursuant to this section.
13. MODIFICATION OR SUSPENSION.
13.1 Modification to Aqreement bv Mutual Consent. This
Agreement may be modified, from time to time, by the mutual consent
of the parties only in the same manner as its adoption by an
ordinance as set forth in California Government Code sections
65867, 65867.5 and 65868. The term, "this Agreement" as used in
this Agreement, will include any such modification properly
approved and executed.
-21- 1'1,;1-.2),
_____~____~.____,__.____._. n','U._ __"'_
13.2 Unforeseen Health or Safety Circumstances. If, as
a result of facts, events, or circumstances presently unknown,
unforeseeable, and which could not have been known to the parties
prior to the commencement of this Agreement, City finds that
failure to suspend this Agreement would pose an immediate threat to
the health or safety of the city's residents or the city. The
following shall occur:
13.2.1 Notification of Unforeseen Circumstances.
Notify Developer of (i) city's determination; and (ii) the
reasons for city's determination, and all facts upon which
such reasons are based;
13.2.2 Notice of Hearinq. Notify Developer in
writing at least fourteen (14) days prior to the date, of the
date, time and place of the hearing and forward to Developer
a minimum of ten (10) days prior to the hearings described in
section 13.2.3, all documents related to such determination
and reasons therefor; and
13.2.3 Hearinq. Hold a hearing on the deter-
mination, at which hearing Developer will have the right to
address the City Council. At the conclusion of said hearing,
city may take action to suspend this Agreement as provided
herein. The City may suspend this Agreement if, at the
conclusion of said hearing, based upon the evidence presented
by the parties, the City finds failure to suspend would pose
an immediate threat to the health or safety of the City's
residents or the city.
13.3 Chanqe in state or Federal Law or Requlations. If
any state or federal law or regulation enacted during the Term of
this Agreement, or the action or inaction of any other affected
governmental jurisdiction, precludes compliance with one or more
provisions of this Agreement, or requires changes in plans, maps,
or permits approved by city, the parties will act pursuant to
sections 13.3.1 and 13.3.2, below.
13.3.1 Notice: Meetinq. The party first becoming
aware of such enactment or action or inaction will provide the
other party(ies) with written notice of such state or federal
law or regulation and provide a copy of such law or regulation
and a statement regarding its conflict with the provisions of
this Agreement. The parties will promptly meet and confer in
a good faith and reasonable attempt to modify or suspend this
Agreement to comply with such federal or state law or regula-
tion.
13.3.2 Hearinq. If an agreed upon modification
or suspension would not require an amendment to this Agree-
ment, no hearing shall be held. otherwise, the matter of such
federal or state law or regulation will be scheduled for
hearing before the City. Fifteen (15) days' written notice of
such hearing shall be provided to Developer, and the city, at
such hearing, will determine and issue findings on the
modification or suspension which is required by such federal
-22- /¥4-A1
,..-- ...--...---.--- . --.--.-.-..-,+.--...----
or state law or regulation. Developer, at the hearing, shall
have the right to offer testimony and other evidence. If the
parties fail to agree after said hearing, the matter may be
submitted to mediation pursuant to subsection 13.3.3, below.
Any modification or suspension shall be taken by the affirma-
tive vote of not less than a majority of the authorized voting
members of the city. Any suspension or modification may be
sUbject to jUdicial review in conformance with subsection
16.19 of this Agreement.
13.3.3 Mediation of Disputes. In the event the
dispute between the parties with respect to the provisions of
this paragraph has not been resolved to the satisfaction of
both parties following the city hearing required by subsection
13.3.2, the matter shall be submitted to mediation prior to
the filing of any legal action by any party. The mediation
will be conducted by the San Diego Mediation Center; if San
Diego Mediation Center is unable to conduct the mediation, the
parties shall submit the dispute for mediation to the Judicial
Arbitration and Mediation Service or similar organization and
make a good faith effort to resolve the dispute. The cost of
any such mediation shall be divided equally between the
Developer and City.
13.4 Natural Communities Conservation Act (NCCP). The
parties recognize that Developer and the City are individually
negotiating agreements with the united States Fish and wildlife
Service ("USF&W") and the California Department of Fish and Game
pursuant to the ongoing regional effort to implement the Natural
Communities Conservation Act ("NCCP"), locally proposed to be
implemented through the Multi-species Conservation Program
("MSCP"). The parties further recognize that implementation of the
agreements may necessitate modification to the Existing Project
Approvals. The City agrees to utilize its best efforts to
implement these agreements, once executed, through the timely
processing of modifications to the Existing Project Approvals as
such modifications apply to Developer's property. The Developer
agrees to pay the reasonable City cost for processing work related
to the modifications. Once such modifications are obtained they
shall be vested to the same extent as Existing Project Approvals.
Such modifications shall be substantially similar to the provisions
contained in Exhibit "F", the May 17, 1996 Administrative draft of
the City of Chula vista SubArea Plan for the Multi-species
Conservation Program, except for the proposed deletion of the
Maritime Succulent Scrub restoration requirement [Section 3(b) of
the SubArea Plan (page 27»).
14. DISTRICTS. PUBLIC FINANCING MECHANISMS.
This Agreement and the Existing Project Approvals recognize
that assessment districts, community facility districts, or other
public financing mechanisms, may be necessary to finance the cost
of public improvements borne by this proj ect. If Developer,
pursuant to the Existing Project Approvals/Future Discretionary
Approvals, is required by the city to install improvements through
the use of assessment districts, or other public financing
-23- 1¥;¡-,1. "I
.-..._._.'.._------~-- ------
mechanisms, the City shall initiate and take final action to
approve or deny appropriate proceedings for the formation of such
financing district or funding mechanism, under applicable laws,
ordinances, or policies. Developer may request that the City, but
the city is not obligated to, utilize any other financing methods
which may become available under City laws or ordinances. All
costs associated with the consideration and formation of such
financing districts or funding mechanisms shall be paid by
Developer subject to reimbursement, as may be legally authorized
out of the proceeds of any financing district or funding mechanism.
Developer shall comply with the terms of any assessment districts
or other financing mechanisms so approved by the city for Property
covered by this Agreement and shall make timely payments as
required by said financing mechanism. The city retains its rights
to take any actipn it deems reasonably appropriate to guarantee
payment.
15. ASSIGNMENT AND DELEGATION.
15.1 Assianment. Owner shall have the right to transfer
or assign its interest in the property, in whole or in part, to any
persons, partnership, joint venture, firm, or corporation at any
time during the Term of this Agreement without the consent of City.
Owner also shall have the right to assign or transfer all or any
portion of its interest or rights under this Agreement to third
parties acquiring an interest or estate in the Property at any time
during the Term of this Agreement without the consent of city.
15.2 Deleaation. In addition, Owner shall have the
right to delegate or transfer its obligations under this Agreement
to third parties acquiring an interest or estate in the Property
provided the owner is in compliance with the terms of this
Agreement and after receiving the prior written consent of the city
Manager, which consent shall not be unreasonably withheld or
delayed or conditioned. Provided, however, the City may deny such
release if the City determines that the performance of such
obligation would be jeopardized by such transfer. Once the City
Manager has consented to a transfer, delivery to and acceptance by
the City Manager of an unqualified written assumption of Owner's
obligations under this Agreement by such transferee shall relieve
Owner of the obligations under this Agreement to the extent the
obligations have been expressly assumed by the transferee and as
approved by the city. Such transferee shall not be entitled to
amend this Agreement without the written consent of the entity
that, as of the Effective Date, is Owner, which consent shall not
be unreasonably withheld, delayed, or conditioned. The entity that
is Owner as of the Effective Date, however, shall be entitled to
amend this Agreement without the written consent of such transfer-
ee.
16. MISCELLANEOUS PROVISIONS.
16.1 Bindina Effect of Aareement. Except to the extent
otherwise provided in this Agreement, the burdens of this Agreement
-24- )¥A"".:J.f
~. ..----- --~.-...._..__...._,.- ,---_.
bind, and the benefits of this Agreement inure, to city's and
Owner's successors-in-interest and shall run with the land.
16.2 Relationship of Citv and Owner. The contractual
relationship between city and Owner arising out of this Agreement
is one of independent contractor and not agency. This Agreement
does not create any third-party beneficiary rights.
16.3 Notices. All notices, demands, and correspondence
required or permitted by this Agreement shall be in writing and
delivered in person, or mailed by first-class or certified mail,
postage prepaid, addressed as follows:
If to City, to: City of Chula vista
276 Fourth Avenue
Chula Vista, CA 91910
Attention: City Manager
If to Owner, to: Jim Baldwin
Otay Ranch, L.P.
Newport Center Dr., suite 700
Newport Beach, CA 92660
with a Copy to: Kim John Kilkenny
Otay Ranch, L.P.
11975 El Camino Real, suite 104
San Diego, CA 92130
City or Owner may change its address by giving notice in writing to
the other. Thereafter, notices, demands, and correspondence shall
be addressed and transmitted to the new address. Notice shall be
deemed given upon personal delivery, or, if mailed, two (2)
business days following deposit in the united states mail.
16.4 Rules of Construction. In this Agreement, the use
of the singular includes the plural; the masculine gender includes
the feminine; "shall" is mandatory; "may" is permissive.
16.5 Entire Aqreement. Waivers. and Recorded Statement.
This Agreement constitutes the entire understanding and agreement
of City and Owner with respect to the matters set forth in this
Agreement. This Agreement supersedes all negotiations or previous
agreements between City and Owner respecting this Agreement. All
waivers of the provisions of this Agreement must be in writing and
signed by the appropriate authorities of City and Owner. Upon the
completion of performance of this Agreement, or its revocation or
termination, a statement evidencing completion, revocation, or
termination signed by the appropriate agents of city shall be
recorded in the Official Records of San Diego County, California.
16.6 proiect as a Private Undertakinq. It is
specifically understood by city and Owner that (i) the Project is
a private development; (ii) City has no interest in or
responsibilities for or duty to third parties concerning any
improvements to the Property until City accepts the improvements
-25- /I/A -;1/,
".--~ ,->,._-_.-_.._-,--_._----_._._.~
pursuant to the provisions of the Agreement or in connection with
subdivision map approvals; and (Hi) Owner shall have the full
power and exclusive control of the Property subject to the
obligations of Owner set forth in this Agreement.
16.7 Incorporation of Recitals. The recitals set forth
in Paragraph 1 of this Agreement are part of this Agreement.
16.8 captions. The captions of this Agreement are for
convenience and reference only and shall not define, explain,
modify, construe, limit, amplify, or aid in the interpretation,
construction, or meaning of any of the provisions of this
Agreement.
16.9 Consent. Where the consent or approval of city or
Owner is required or necessary under this Agreement, the consent or
approval shall not be unreasonably withheld, delayed, or con-
ditioned.
16.10 Covenant of Cooperation. city and Owner shall
cooperate and deal with each other in good faith, and assist each
other in the performance of the provisions of this Agreement.
16.11 Recordinq. The City Clerk shall cause a copy of
this Agreement to be recorded with the Office of the County
Recorder of San Diego County, California, within ten (10) days
following the Effective Date.
16.12 Delav. Extension of Time for Performance. In
addition to any specific provision of this Agreement, performance
by either City or Owner of its obligations hereunder shall be
excused, and the Term of this Agreement and the Development Plan
extended, during any period of delay caused at any time by reason
of any event beyond the control of city or Owner which prevents or
delays and impacts City's or Owner's ability to perform obligations
under this Agreement, including, but not limited to, acts of God,
enactment of new conflicting federal or state laws or regulations
(example: listing of a species as threatened or endangered),
judicial actions such as the issuance of restraining orders and
injunctions, riots, strikes, or damage to work in process by reason
of fire, floods, earthquake, or other such casualties. If City or
Owner seeks excuse from performance, it shall provide written
notice of such delay to the other within thirty (30) days of the
commencement of such delay. If the delay or default is beyond the
control of city or owner, and is excused, an extension of time for
such cause will be granted in writing for the period of the
enforced delay, or longer as may be mutually agreed upon.
16.13 Covenant of Good Faith and Fair Dealinqs. No party
shall do anything which shall have the effect of harming or
injuring the right of the other parties to receive the benefits of
this Agreement; each party shall refrain from doing anything which
would render its performance under this Agreement impossible; and
each party shall do everything which this Agreement contemplates
-26- /IjAøj,'
,- --,~--^"" "-...- - - -- _..__.~---"._--"--_._-_..."
that such party shall do in order to accomplish the objectives and
purposes of this Agreement.
16.14 Operatinq Memorandum. The parties acknowledge that
the provisions of this Agreement require a close degree of
cooperation between city and Developer, and that the refinements
and further development of the Project may demonstrate that minor
changes are appropriate with respect to the details of performance
of the parties. The parties, therefore, retain a certain degree of
flexibility with respect to those items covered in general under
this Agreement. When and if the parties mutually find that minor
changes or adjustments are necessary or appropriate, they may
effectuate changes or adjustments through operating memoranda
approved by the parties. For purposes of this section 16.14, the
city Manager, or his designee, shall have the authority to approve
the operating memoranda on behalf of city. No operating memoranda
shall require notice or hearing or constitute an amendment to this
Agreement.
16.15 Time of Essence. Time is of the essence in the
performance of the provisions of this Agreement as to which time is
an element.
16.16 Amendment or Cancellation of Aqreement. This
Agreement may be amended from time to time or canceled by the
mutual consent of City and Owner only in the same manner as its
adoption, by an ordinance as set forth in California Government
Code section 65868, and shall be in a form suitable for recording
in the Official Records of San Diego County, California. The term
"Agreement" shall include any such amendment properly approved and
executed. City and Owner acknowledge that the provisions of this
Agreement require a close degree of cooperation between them, and
that minor or insubstantial changes to the Project and the
Development Plan may be required from time to time to accommodate
design changes, engineering changes, and other refinements.
Accordingly, changes to the Project and the Development Plan that
do not result in a change in use, an increase in density or
intensity of use, cause new or increased environmental impacts, or
violate any applicable health and safety regulations, may be
considered minor or insubstantial by the City Manager and made
without amending this Agreement.
16.17 Estoppel certif icate. wi thin 30 calendar days
following a written request by any of the parties, the other
parties to this Agreement shall execute and deliver to the
requesting party a statement certifying that (i) this Agreement is
unmodified and in full force and effect, or if there have been
modifications hereto, that this Agreement is in full force and
effect as modified and stating the date and nature of such
modifications; (ii) there are no known current uncured defaults
under this Agreement, or specifying the dates and nature of any
such default; and (iii) any other reasonable information requested.
The failure to deliver such a statement within such time shall
constitute a conclusive presumption against the party which fails
to deliver such statement that this Agreement is in full force and
-27- J~ ¡J -.lr
-_.~_.._--,-,--"._..- .-.,
effect without modification, except as may be represented by the
requesting party, and that there are no uncured defaults in the
performance of the requesting party, except as may be represented
by the requesting party.
16.18 Severabilitv. If any material provision of this
Agreement is held invalid, this Agreement will be automatically
terminated unless within 15 days after such provision is held invalid
the party holding rights under the invalidated provision affirms the
balance of this Agreement in writing. This provision will not affect
the right of the parties to modify or suspend this Agreement by
mutual consent pursuant to Paragraph 12.4.
16.19 Institution of Leqal Proceedinq. In addition to any
other rights or remedies, any party may institute legal action to
cure, correct, or remedy any default, to enforce any covenants or
agreements herein, or to enjoin any threatened or attempted violation
thereof; to recover damages for any default or to obtain any remedies
consistent with the purpose of this Agreement. Such legal actions
must be instituted in the Superior Court of the County of San Diego,
State of California.
16.20 Attornevs' Fees and Costs. If any party commences
litigation or other proceedings (including, without limitation,
arbitration) for the interpretation, reformation, enforcement, or
rescission of this Agreement, the prevailing party, as determined by
the court, will be entitled to its reasonable attorneys' fees and
costs.
16.21 Hold Harmless. Developer agrees to and shall hold
City, its officers, agents, employees and representatives harmless
from liability for damage or claims for damage for personal injury,
including death, and claims for property damage which may arise from
the direct or indirect operations of Developer or those of its
contractors, subcontractors, agents, employees or other persons
acting on Developer's behalf which relate to the Project. Developer
agrees to and shall defend City and its officers, agents, employees
and representatives from actions for damage caused or alleged to have
been caused by reason of Developer's activities in connection with
the Project. Developer agrees to indemnify, hold harmless, pay all
costs and provide a defense for City in any legal action filed in a
court of competent jurisdiction by a third party challenging the
validity of this Agreement. The provisions of this section 16.21
shall not apply to the extent such damage, liability or claim is
caused by the intentional or negligent act or omission of City, its
officers, agents, employees or representatives.
-28- II/A~.1'
,----..---..-- . ___..______...___m _....._.___......___~_____~~
SIGNATURE PAGE TO RESTATED AND AMENDED PRE-ANNEXATION DEVELOPMENT
AGREEMENT
Dated this _ day of , 1997.
"CITY"
CITY OF CHULA VISTA
By:
Its: Mavor
"OWNER"
THE OTAY RANCH, L.P.
a California limited partnership,
by Sky Communities, Inc.
a California corporation,
its general partner
By:
James P. Baldwin, President
VILLAGE DEVELOPMENT
a California general partnership
By:
James P. Baldwin, President
I hereby approve the form and legality of the foregoing Restated
and Amended Pre-Annexation Development Agreement this day
of , 1997.
John M. Kaheny
By:
Ann Moore
Assistant City Attorney
I¥A "'311
-29-
. ~_._____._._._._ __ .__...-..-__-.- "''._______.·.m___.___
EXHIBIT A
-
-
~\ft-
-.-
--.;;:
.~--
01Y Of
CHULA YlSTA
'C DErAn'U"T
PL.......,·'"
\ 6 1 ç';S
OTAY RANCH, LP.
J'IA"'.:J/
EXHIBIT B
~
, )
\
\ ~\r?-
-.-
. - --
- --
---.
\. CllY OF
\ CHUlA VISTA
i
j \ rLANNI~G DEPART\\E~T
/ 9'2:, ~5
VILLAGE DEVELOPMENT
J'IA'.3J-
_______.~_.~..___.._._ _'__' __.__.___,,__.·,_·'w_·_·._____~_______
'"' r.
_"0 '"'
'" c: ü
'- :J ",- <:J
> 0 ._ 0 CJ
>.,U "0
!:c "....C Cc: -
0 :J >- _<:J<:J "0 C '-
..c- :J .= ::¡: ~.- "C., - z~
z uu ~ - -- <:J~ "C ~
_ c.- E~ OJ -
l:J uV?E ",S c: ~~
l:) 0"'" 0- ,,-~ ~~
uc" U -Jr::
l:J ( .,c., c.""" ,- >, ¡¡I ~:,; ¡
-J et:o:::~ 0-" >'U"O
I ....",.... ""':J
a. 0 0::: -~
OVìV? --
I II Vj 7JL
I g I U =
. L
I T'=
- ~
U .
0
L
C
- ~
L
,
C
c
~
~
~
C
..,.
~
.
0
Z
t::
~ 0
~ .-
(/)~
,- ~
> N I
() .-
~ t:: _dJ
..... - ~
'- :J
.0 ..::: 0')
,- I...
£ U 0
><
UJ 4- C,,)
0 cz:::
>.r-
......-
,_ U
U c:
~
cz:::
>.
~
......
0
J'I~'3~
EXHIBIT liD"
Recording Requested By, and When
- Recorded Please Return to:
Chief Administrative Officer
County of San Diego
1600 Pacific Hwy.
San Diego, CA 92101
. ~
[Space above for Recorder's Use)
LANDFILL NUISANCE EASEMENT
AND
COVENANTS RUNNING WITH THE LAND
,
(hereinafter referred to as "Grantor"), for valuable
consideration, does hereby GRANT to the COUNTY OF SAN DIEGO, a
political subdivision of the State of California (hereinafter
referred to as "Grantee") as the owner of the real property
located in the County of San Diego, California known as the "Otay
Landfill" which is more particularly described in "Exhibit A"
hereto (hereinafter referred to as the "Dominant Tenement") and
its successors in interest to the Dominant Tenement, an EASEMENT
(hereinafter referred to as "Nuisance Easement") over all that
-- real property located in the County of San Diego, California
i described in. "Exhibit B" hereto_ (hereinafter'. referred to as the
"Servient Tenement").
This Nuisance Easement is for the use and benefit of Grantee
and its successors in interest and invited guests in the conduct
of solid waste landfilling operations on the Dominant Tenement,
for the free and unobstructed passage on, onto, in, through, and
across the surface and airspace above the surface of the Servient
Tenement of the following things (hereinafter referred to as
"Nuisance Items"):
dust; noise; vibrations; any and all chemicals or particles
suspended (permanently or temporarily) in the air and wind
including but not limited to methane gas; odors; fumes; fuel
particles; seagulls and other scavenger birds and the
excrement droppings therefrom; and the unobstructed passage
below the surface of leachate and other pollutants; and for
each, every and all effects as may be caused by or result
from the operation of a landfill which is now in existence
or which may be developed in the future,
together with the continuing right to cause or allow in all of
such Servient Tenement such Nuisance Items, it being understood
and agreed that Grantee, or its successors in interest, intends
to develop, maintain and expand the landfill on the adjacent
, Dominant Tenement in such a manner that said landfill and the
- easement grated herein will be used at all times in compliance
with all applicable State and Federal laws and the lawful orders
IÝ~".2'1
_.,-. .. .. ^ ."."._~~--~.. ---,,--.. .--- .----~---~------_..-
of state and Federal agencies regulating environmental factors,
toxic and/or hazardous waste, and the operation of the landfill.
Grantor, for itself and its successors and assigns, does
hereby fully waive and release any right. or cause of action which
they or any of them may now have or may have in the future
against Grantee, its successors and assigns, on account of or
arising out of such Nuisance Items heretofore and hereafter
caused by the operation of a landfill. ~
Grantor,for itself and its SUccessors and assigns,
covenants and agrees, with the understanding and intent that such
shall run with the land, and which shall run with the land, that
neither they nor any of them will commence or maintain a suit,
action, writ, arbitration, or other legal or equitable proceeding
against Grantee or its successors or assigns wherein the relief
sought is the cessation or limitation on the use of the Dominant
Tenement as a landfill. Grantor, for itself and its successors
and assigns, covenants and agrees, with the understanding and
intent that such shall run with the land, and which shall run
with the land, that in the event that they violate the above
covenants of the foregoing sentence, they shall pay to Grantee
such attorneys' fees and costs as may be determined to be
reasonable by a Court of competent jurisdiction. Inquires or
requests for enforcement made by Grantor, its successors or
assigns to state or Federal agencies with regulatory authority
over the operation of landfills shall not be considered a
violation of this paragraph.
Upon the termination of use of the Dominant..Tenement for
landfill purposes, (including completion of active landfill
operations and all closure and Post-closure activities), Grantor,
its successors or assigns may request that Grantee, its
successors or assigns, through the applicable legal procedure,
vacate or terminate this easement, which request will not be
unreasonably withheld.
Executed this day of , 1996, at San Diego,
California.
GRANTOR
llb:\S?~:\lanèfill.doc
I"~..,:rr
Item No. 14
Meeting Date 2/25/97
ERRATA SHEET
RESTATED AND AMENDED PRE-ANNEXATION DEVELOPMENT AGREEMENT
o'
paae 14A-2
THIS RESTATED AND AMENDED PRE-ANNEXATION DEVELOPMENT
AGREEMENT ( "Agreement" ) is made effective on the date hereinafter
set forth below by and between ameft~ THE OTAY RANCH, L.P. , a
California limited partnership VILLAGE DIWELOPMElIT, a Califerßia
~efteral lIartftershill ("Developer") and THE CITY OF CHULA VISTA, a
municipal corporation, who agree as follows:
1. RECITALS. This Agreement is made with respect to the
fOllowing facts:
1.1.2 village Ðe~elep.eBt is ~he 9\:ßcr af
al3preuimatcly 35 aerC5 af \if1àc.,;elepeà real prepert.y in the
~ßißeerperateà area af tåø Ceuß~Y, è.eaeriseà iR Euhièita liB"
û.ßà lip", attaeheå Berets af1å ißeerparatcà hcrciß èy this
rcfcrenee.
Bottom Paae 14A-4. Top of Paae 14A-5
1.7 Owner Consent.
. . .structure for the otay Valley parcel; and the Otay Ranch
L.P., a California limited partnership, aftà villa~e De7elellmeftt,
a Califerftia ~efteral lIartfterBhill desire to give their cooperation
and consent, provided that they obtain certain assurances, as set
forth in this Agreement.
Paae 14A-5
2.8 "Property" means the real property described in
Paragraphs 1.1.1, 1.1.2, and 1. 1. 3 .
Paae 14A-30:
T."ILU..CE DE\TELOr}{ENT
a GaliferRia ~ef1øral partßeraBip
By: Balà-.lin,
:James f'. f'rcsiàeRt
"-_._-,-~-_.~_...---- ---... -- --_._~-,. ...___...·..·e__n_._
-,. .
I
, ' :
! ·
C
.i c. : ~ -
, .' >
,
/
-;. ---.--."'I,¡(jJ- --_ /
-..-.
,- I J'~
co
/<:> i.; I
· i
/' >
: /èi · Z
J' "
-?/ , q '" 0
1/1 j ;
.. Il
-
, I
¡
, I
; ¡ (/I »
. =;
(/I, ·0 r Z
I'l .:>0 -j 0 ..
O. .... 0
» . ..
- (/I
...., =; -<
. . .
- .-- .. m
.......
.:>0
-~I C
Þ m
'¡-.....
"0 íTl
--......:wDt..- I] :::0
// -
!( '1
-I, -
,/..",/... ..r-
;::0 ..~
:t>....
,,~ U
CD;¡:¡ í'
0\» .. »
NZ ,
I :::0
() I
I ,
\ 0
- fTl
- ---. \ r-
'. GJ 0
~. ç -j CD
- ~
" 'T1 » OJ
I ,., -<
t'1 1"1 I <
>: }J r
H /Jo'.."./\ \ :Þ 0
'" Z
H i '"
.., /" ~ ;¡ Q 0
~ 1 r1'¡ "
.. -
'" [ \ ~ r ............
.. r
II! OJ
h~ '"
.. ~ I
1¥19 ~¿, -; »
.
~
0.
.- ~-_._- .---- -.----.--------...--
EXHIBIT "F" I I
PRE-ANNEXATION DEVELOPMENT AGREEMENT
Planning Area Assessor Ownership Acreage
Parcel Numbers
.
Otay Valley Parcel 595-o70-~3 Otay Ranch L.P. 15.39
Otay Valley Parcel 641-020-15 atay Ranch L.P. 21.89
Otay Valley Parcel 641-020-18 atay Ranch L.P. 10.00
Otay Valley Parcel 641-030-13 Otay Ranch L.P. 97.36
Otay Valley Parcel 641-040-05 Otay Ranch L.P. 151.17
Otay Valley Parcel 641-060-04 Otay Ranch L.P. 8.16
Otay Valley Parcel 641-060-06 atay Ranch L.P. 17.91
atay Valley Parcel 641-070-01 atay Ranch L.P. 87.86
atay Valley Parcel 641-080-01 atay Ranch L.P. 88.89
Otay Valley Parcel 642-040-16 Otay Ranch L.P. 13.99
Otay Valley Parcel 642-050-14 Otay Ranch L.P. 44.62
Otay Valley Parcel 642-050-24 atay Ranch L.P. 29.36
Otay Valley Parcel 642-070-01 atay Ranch L.P. 160.00
Otay Valley Parcel 642-090-01 atay Ranch L.P. 92.78
Otay Valley Parcel 643-010-03 atay Ranch L.P. 19.92
Otay Valley Parcel 643-010-09 atay Ranch L.P. 51.63
Otay Valley Parcel 643-020-10 Otay Ranch L.P. 159.37
Otay Valley Parcel 643-020-28 atay Ranch L.P. 48.13
atay Valley Parcel 643-020-32 atay Ranch L.P. 32.70
atay Valley Parcel 643-050-01 Otay Ranch L.P. 53.51
Otay Valley Parcel 643-060-04 Otay Ranch L.P. 268.55
Otay Valley Parcel 644-030-01 Otay Ranch L.P. 311.03
atay Valley Parcel 644-030-06 Otay Ranch L.P. 255.85
atay Valley Parcel 644-060-11 Otay Ranch L.P. 159.18
Otay Valley Parcel 644-070-0 I Otay Ranch L.P. 313 .52
atay Valley Parcel 644-070-07 Otay Ranch L.P. 285.85
atay Valley Parcel 644-080-09 Otay Ranch L.P. 152.40
atay Valley Parcel 644-090-02 atay Ranch L.P. 299.60
Otay Valley Parcel 645-030-15 Otay Ranch L.P. 16.89
atay Valley Parcel 645-030-18 atay Ranch L.P. 102.10
atay Valley Parcel 646-010-03 atay Ranch L.P. 175.14
3,544.75 Total
)1-1 11-31 (;1W:)
~.- -.-~-.---.."----..--..-..--.,.'..-.--...-...----..-".,--' --'""
FEB 2:1 ':IT 12:: Ø6PM VILLAGE DEVELOPI'ENT P.V4
-
Vill~e dÞ /114
DEVELOPMENT
Q_llry "",.,",. pl4lf7"J aJmmvnkiu sirr" 1974
February 21, 1997
Mr. GeorSe Kmnpl
CITY OF CHUL/I. VISTA
276 FourthAvenuc
Cbnla Vista. C/I. 91910 ,
,
HE: V"rlløge Deve10pmeøt Prø-ønnexø1Ïon Developnœnt Agreement I
Dear George:
The pending Vi!Ia&e Devclopmmt ~"""'Arinn Developmeut Agreement
governs approxünaU:ly 3,545 acres owned by The Otay Ranch, L.P., BDC128
acres by Mar\in Development (a Califumia general partnership formally known
as ViUage Development and Village Properties).
Marlin Development 0WIl5 0Dly two parcels wi1bin Otay RaIId1, a 10 acre
parcellocsœd near the ''inverted L" and an 18 acre parce1 on the nmthwestem
edge of the West Coast Land Fund property.
1M Otay Ranch, L.P '. !IDd Marlin DcvelopPlent, tcqucst that the City of Chula
Vista. remove from the ~on Development Agreement the 28 IItICS of
land owned by Marlin DevelOpPlent.
This request is in response to the draft Development Agreement's provision
that mbordiDlltion be provided froxn lendc:rs haviDg a nen on property within
SPA One prior to the seçODd reading of the Development /I.¡reen1.eIlt (Section
12,5).
We provicJed the required subordination from Bank of Amerlça several months
ago. At that time. we believed that the B8Dk of America subordination fully
satisfied this Development AgreemeD1 provision. !lowevet'. I recently beI"~m"
aware of a lien by the Stephe.n and Mary Birch Foundation on legal parcel .-
#35A within SPA One. (i.e., the parcel owned by Marlin Development). I
believe it is impossible to secure a subordination of this lien from the '.
Founda1Ïon.
. "." ····:·.·7
, .'
. -
~ 1975Ji c.miau Rtll. $uiw 10+· SmJ:d.eS0.C',A 92.130 .'
'RI. (.19.15'-'Z.U...·¡;UO 6I'.2.S9-4,U.
. .._..._____.____......__._..~.__.~__' .._n_._.__.... ._~_._-
FEB Zl ''37 lZ:Ø7PM VILLAGE DEVELOPMENT P.3/"4
Mr. George Krempl
CITY OF Cßill,A VISTA
FebruaIy 21, 1997
Page 2
Furthmnote, it is readily undmtandable that the Foundation would decline to
exeçu1e a subordinølion bcœuse if '!bey took title to the 18 IICl'C site they could
be become liable for perfoxmance of all the Development AgreementS
requirements as they reIat.e to the entite SPA One project, inc1uding guarantees
for SPA Om: bti:kbone infrastruc1l1re. This would be an unreasonable burden
to place on a lien bolder with a collateral interest in OII1y 18 acres of SPA One
lands. No lender would be willing to subject themselves to the SPA Que
burdens imposed by !be Developmœt Agrcc:mcnt based on a lien on only 18
acres.
All of the Foundation's SPA One colJateral (18 acxœ) is owned by Marlin
Deve1opmcmt, none by The OIay R/mCh, L.P. Convemely, all of Bank of
America's SPA Om: co1Jateml Is owned by The OIay Ranch, L,P., none by
Marlin lAA'elopmenl
Thus, the most expeditious way to address !be issues raised above is to RmOVC
Marlin Development from the Prc-1UW"œon Developmmrt Agreement. 'Ibis
change could be accomplished through modest çhangt::$ to the Developmeo1
Agreement text ud elimination of Exhíbit "a" ~ the attendant lega1
description.
- This change to the Development A~cnt will not affect any of the City's
iDtercsts. because paroel 35A is not critical to the implen"",1Btion of the
Development Agreement
First, ptu"ce135A is Duly 18 IWICS, Second, parce135A is located on the edge of
land covered by the DevelOpID.em Agreement, ktwcen The Otay Ranch, L.P.
~ West Coast Land Fund property, ThiId, parcel 35A only contains
approxixoately 70 lots. Fourth, no major bI-"kM1)e ÍJ]ÍraS1rIJCtIJ crosses parcel
35A (i.e., East Palomar Street, East Orange Avenue, La Media Road), Fifth,
parce135A doe! not contain any of SPA One's school sites or neighborhood
parks. Sixth, all the provisions of the Development Agrcc¡nent can and will be
implemented without lJUbordination from the lien holder on this 18 acre site..
FiDally, the City has received subordiDation from Bank of America for the
IP.lTla'ning 804.3 acres of SPA One.
Your oonsidctation of this request is appreciated. Should you have any
quemoDS or concerns, please do not hesitate to give me a call.
C;OOm\Glcqc I(r<ompI
KIKIASH WflIN1
-_...~._.,~ ..-.....-... ,-,._--,".__._~.,._~_.,----~~-_.
FEB 21'97 12:"7PM VILLAGE DEVELOPMENT P.4/4
. Mr. George Krcmpl
CITY OF CHULA VISTA
February 21, 1997
Page 3
Sincerely,
THE OTA Y RANCH, L.P.
a Califomia limited partnership,
by Sky Communities, Inc.,
a CalifuI:nia co¡pora.tion,
Ît$ general partner
.y,~
Kim y. »resident
MARLIN DEVELOPMENT, a Catifomia
general partnc:J:sbip formally known as
Village DeveIopnent aDd Village Properties
B~~.R,....... I~H~ß~~ ~ ~~~ I~ fJJ-
Jam . Baldwin, Par1ner ~M ~~l'IrI1' If> /l\\ur~ loa ~
CC: Ann M.oom
Jcny Jamriska.
C:IIGm\Gcorp Krooopl
IOX/ASR fT1IZl/97
--.-.. ..-.- ....--..- ...------- ~--
ORDINANCE NO. ,JJ, 'I ¡,
AN ORDINANCE OF THE CITY OF CHULA VISTA
ADOPTING THE AMENDED AND RESTATED PRE-
ANNEXATION DEVELOPMENT AGREEMENT WITH BALDWIN
BUILDERS AND THE CITY OF CHULA VISTA
WHEREAS, on october 15, 1996, the City council adopted
the Pre-Annexation Agreement between the City of Chula vista and
Baldwin Builders pursuant to Ordinance No. 2690 ( "Previous
Agreement"); and
WHEREAS, by the terms of the Previous Agreement, this
Agreement expired as of Jan. 1, 1997, because the annexation
proceedings was not completed by that date; and
WHEREAS, there is now a mutual desire by the city and
Baldwin Builders to amend and restate the Previous Agreement in
order for the Previous Agreement to become effective once again
("Restated Agreement"); and
WHEREAS, on January 8, 1997, the Planning Commission
reviewed the Restated Agreement and voted to approve the same.
NOW, THEREFORE, the City Council of the city of Chula
vista ordains as follows:
SECTION I: The Previous Agreement between Baldwin
Builders and the city of Chula vista is hereby amended, restated
and adopted as set forth in the Restated and Amended Pre-Annexation
Development Agreement on file in the office of the City Clerk as
Document No. .
SECTION II: The Mayor of the City of Chula vista is
hereby authorized and directed to execute said Restated Agreement
for and on behalf of the city of Chula vista.
SECTION III: This ordinance shall take effect and be of
full force on the effective date of annexation as set forth in the
attached Restated Agreement.
Presented by . Approved as to form by
George Krempl, Deputy City ~~o,~
John M. Kaheny, city Att ney
Manager
C:\or\baldwin.2nd
1~/1"1
'", '
,..---.-...-,--.--" _.___.___n__....____..___________··. ---._--,---
RESTATED AND AMENDED PRE-ANNEXATION DEVELOPMENT AGREEMENT
THIS RESTATED AND AMENDED PRE-ANNEXATION DEVELOPMENT AGREEMENT
(" Agreement") is made effective on the date hereinafter set forth
below by and among the CITY OF CHULA VISTA ("City") and BALDWIN
BUILDERS, a California Corporation, ("Baldwin") , who agree as
follows:
h- RECITALS. This Agreement is made with respect to the
following facts:
1.0 Previous Aareement. The citv and Baldwin entered
into a Pre-Annexation Development Aareement. dated October 22.
1996. bv Ordinance No. 2690. This Aareement expired as of
Januarv 1. 1997. because the annexation proceedina was not
completed bv that date. The parties now wish to reinstate this
Aareement.
1.1 Owner. The owners of the properties subj ect to this
Agreement (hereinafter collectively referred to as "Owner" or as
"Developer" ) are as follows:
1.1.1 Baldwin is the Owner of approximately 1204
acres of undeveloped real property ("the Property" ) in the
incorporated area of the County, described in Exhibits "A" and
"C", attached hereto and incorporated herein by this refer-
ence. Portions of the Property are located in Villages 10,
11, Planning Area 12 and the University site of the Otay Ranch
Property.
1.1.2 The "Property" is part of a larger area
commonly known, and referred to herein, as "the Otay Valley
Parcel of Otay Ranch."
1.1.3 Baldwin Builders is an entity in a Chapter
11 Bankruptcy proceeding in case number ND 95-13057-RR at u.s.
Bankruptcy Court at Santa Barbara where the bankruptcy trustee,
David Gould, obtained a court order approving the employment of
Jimmy D. Johnson, as set forth in Exhibit "D".
1.2 citv. The city of Chula vista is a municipal
corporation with Charter City powers incorporated within the
County.
1.3 Code Authorization and Acknowledaments.
1. 3.1 City is authorized pursuant to its
Charter, self-rule powers, and California Government Code
sections 65864 through 65869.5 to enter into development
agreements for the purpose of establishing certainty for both
City and owners of real property in the development process.
1. 3.2 City enters into this Agreement pursuant
to the provisions of the California Government Code, its home-
-1- 1¥8-¡}-
_.~_,__. _. ________._.____.______._.._____nn______.. ------...-
rule powers, and applicable City ordinances, rules, regula-
tions and policies.
1.3.3 City and Owner intend to enter into this
agreement for the following purposes:
1.3.3.1 To assure adequate public facilities
at the time of development.
1.3.3.2 To assure development in accordance
with City's capital improvement plans.
1.3.3.3 To provide certainty to Owner in the
development approval process by vesting the permitted
use(s), density, intensity of use, and the timing and
phasing of development as described in the Development
Plan, which is defined in Paragraph 2.4 of this Agree-
ment, in exchange for Owner's entering into this Agree-
ment and for its commitment not to challenge the Annex-
ation described below.
1.3.3.4 To permit achievement of City growth
management goals and objectives.
1.3.3.5 To allow City to realize significant
economic, recreational, park, open space, social, and
public facilities benefits for the city, some of which
are of regional significance.
1.3.3.6 To provide and assure that the city
receive sales tax revenues, increase in the property tax
base, residential housing and other development, sewer,
water and street facilities.
1.3.3.7 This Agreement will provide and
assure that the city receives public facilities in excess
of project generated impacts and such facilities shall be
of supplemental size, number capacity or length, which
shall be provided earlier than could be provided either
by funds from the City or than would strictly be
necessary to mitigate project related impacts at any
development phase.
1. 3.3.8 To enable the City to secure title to
the land within the boundaries of the Property necessary
to complete the Chula vista greenbelt system and the Otay
Ranch Open Space Preserve as both are defined in the
Chula vista General Plan.
1.3.3.9 Because of the complexities of the
financing of the infrastructure, park, open space, and
other dedications, and regional and community facilities,
and the significant nature of such facilities, certainty
in the development process is an absolute necessity. The
phasing, timing, and development of public infrastructure
necessitate a significant commitment of resources,
planning, and effort by Owner for the public facilities
financing, construction, and dedication to be success-
-2- )1/1J"3
-...---..--.- "--~- -_.~.~.._.._.__...._.__."-,- . _...._--
fully completed. In return for Owner's participation and
commitment to these significant contributions of private
resources for public purposes and for Owner's agreement
not to challenge the Annexation described below, city is
willing to exercise its authority to enter into this
Agreement and to make a commitment of certainty for the
development process for the Property.
1.3.3.10 In consideration of Owner's agreement
to provide the significant benefits and for Owner's
agreement not to challenge the Annexation described
below, City hereby grants Owner assurances that it can
proceed with development of the Property in accordance
with city's ordinances, rules, regulations, and policies
existing as of the effective date of this Agreement
subject to section 5.2.1 below. Owner would not enter
into this Agreement or agree to provide the public
benefits and improvements described in this Agreement if
it were not for the commitment of City that the Property
subject to this Agreement can be developed in accordance
with City's ordinances, rules, regulations, and policies
existing as of the effective date of this Agreement
subject to section 5.2.1 below.
1.4 The Annexation. On July 1, 1996, the Local Agency
Formation Commission ("LAFCO") approved annexation of Sphere of
Influence Planning Area 1 "The Otay Parcel", Planning Area 2
"Inverted L" and the Mary Patrick Estate Parcel (see Attachment
"B") .
1.5 Sphere of Influence. On February 5, 1996 and July
1, 1996 the Local Agency Formation Commission approved the
inclusion of Planning Area 1, "The Otay Parcel", into the City
Sphere of Influence (Sphere of Influence Planning Area 1 "The Otay
Parcel", Planning Area 2 "Inverted L" and the Mary Patrick Estate
Parcel - see Attachment "B").
1.6 Planninq Documents. On October 28, 1993, City and
County adopted the Otay Ranch General Development Plan/Subregional
Plan ("the GDP") which includes the Otay Ranch Village Phasing
Plan, Facility Implementation Plan, Resource Management Plan and
Service Revenue Plan, for approximately 23,000 acres of the Otay
Ranch, including the Otay Valley Parcel and the Property.
1.7 citv Ordinance. is the date of
adoption by the City Council of Ordinance No. approving this
Agreement.
2 . DEFINITIONS. In this Agreement, unless the context
otherwise requires:
2.1 "Annexation" means the proposed annexation of that
portion of the Otay Ranch which is to be annexed into the City as
depicted on Exhibit "B".
-3- J1J8-1
.....-..--..-...,.--..-.---..-.-....
2.2 "City" means the City of Chula Vista, in the County
of San Diego, State of California.
2.3 "County" means the County of San Diego, state of
California.
2.4 "Development Plan" means the GDP.
2.5 "GDP" means the General Development Plan/Subregional
Plan for the Otay Ranch, described in Paragraph 1.6, above.
2.6 "Owner" or "Developer" means the person, persons, or
entity having a legal and equitable interest in the Property, or
parts thereof, and includes Owner's successors-in-interest.
2.7 "Project" means the physical development of the
private and public improvements on the Property as provided for in
the Existing Project Approvals and as may be authorized by the City
in Future Discretionary Approvals.
2.8 "Property" means the real property described in
Paragraph 1.1.1.
2.9 The "Term" of this Agreement means the period
defined in Paragraph 3, below.
2.10 "Builder" means developer to whom Developer has sold
or conveyed property within the Property for purposes of its
improvement for residential, commercial, industrial or other use.
2.11 "CEQA" means the California Environmental Quality
Act, California Public Resources Code section 21000, et seq.
2.12 "city Council" means the city of Chula vista city
Council.
2.13 "Commit" or "Committed" means all of the following
requirements have been met with respect to any pUblic facility:
2.13.1 For a public facility within the City's
jurisdictional boundaries and a responsibility of the develop-
er.
2.13.1.1 All discretionary permits required of
the Developer have been obtained for construction of the
public facility;
2.13.1.2 Plans for the construction of the
public facility have all the necessary governmental
approvals; and
2.13.1.3 Adequate funds (i.e. , letters of
credit, cash deposits, performance bonds or land secured
public financing, including facility benefit assessments,
Mello-Roos assessment districts of similar assessment
-4- /'16·>
----_._-_._._.~....._.
mechanism) are available such that the City can construct
the public facility if construction has not commenced
within thirty (30) days of issuance of a notice to
proceed by the Director of Public Works, or construction
is not progressing towards completion in a reasonable
manner as reasonably deemed by the Director of Public
Works.
2.13.2 For a public facility within the City's
jurisdictional boundaries, but to be provided by other than
Developer.
2.13.2.1 Developer's proportionate share of
the cost of such public facility as defined in the
existing Project Approvals and Future Discretionary
Approvals has been provided or assured by Developer
through the payment or impositions of development impact
fee or other similar exaction mechanism.
2.13.3 For public facility not within City's
jurisdictional boundaries:
2.13.3.1 Developer's proportionate share of
the cost of such public facility as defined in the
existing Project Approvals and Future Discretionary
Approvals has been provided for or otherwise assured by
Developer to the reasonable satisfaction of the Director
of Public Works.
2.14 "Development Impact Fee (DIF)" means fees imposed
upon new development pursuant to the city of Chula vista
Development Impact Fee Program, for example, including but not
limited to the Transportation Development Impact Fee Program, the
Interim SR-125 Development Impact Fee Program, the Salt Creek Sewer
DIF and the Public Facilities DIF.
2.15 "Existing Project Approvals" means all discretionary
approvals affecting the Project which have been approved or
established in conjunction with, or preceding, the effective date
consisting of, but not limited to the GDP, the Chula vista General
Plan, the otay Ranch Reserve Fund Program adopted pursuant to
Resolution 18288, and the Phase I and Phase II Resource Management
Plan (RMP), as may be amended from time to time consistent with
this agreement.
2.16 "Final Map(s)" means any final subdivision map for
all or any portion of the Property other than the Superblock Final
Map ("A" Maps).
2.17 "Future Discretionary Approvals" means all permits
and approvals by the City granted after the effective date and
excluding existing Project Approvals, including, but not limited
to: (i) grading permits; (ii) site plan reviews; (iii) design
guidelines and reviews; (iv) precise plan reviews; (v) subdivisions
of the Property or re-subdivisions of the Property previously
-5- I¥P-(,
_._._"...~.__.__._....,---
subdivided pursuant to the Subdivision Map Act; (vi) conditional
use permits; (vii) variances; (viii) encroachment permits;
(ix) Sectional Planning Area plans; (x) Preserve Conveyance Plan
and (xi) all other reviews, permits, and approvals of any type
which may be required from time to time to authorize public or
private on- or off-site facilities which are a part of the Project.
2.18 "Planning Commission" means the Planning commission
of the City of Chula vista.
2.19 "Preserve Conveyance Plan" means a plan that will,
when adopted, set forth policies and identify the schedule for
transfer of land and/or fees to be paid to insure the orderly
conveyance of the Otay Ranch land to the Preserve Owner Manager.
The purpose of the plan is to fulfill the obligations to convey
resource sensitive land, per the criteria contained in the phase I
and II Resource Management Plans and to mitigate environmental
impacts of the Otay Ranch Project.
2.20 "Public Facility" or "Public Facilities" means those
public facilities described in the Otay Ranch Facility
Implementation Plan.
2.21 "Subdivision Map Act" means the California
Subdivision Map Act, Government Code section 66410, et seq., and
its amendments as may from time to time be adopted.
2.22 "Substantial Compliance" means that the party
charged with the performance of a covenant herein has sufficiently
followed the terms of this Agreement so as to carry out the intent
of the parties in entering into this Agreement.
2.23 "Threshold" means the facility thresholds set forth
in the city's Municipal Code section 19.19.040.
3. TERM. '¡laic AfjJrccmcßt chall BceoJt\c cfføet.i':c aa a
àC7clopment a~rccmcßt 1:11301'1 the effe:eti·.."c date af 'the 4~6ßßcKat.ie}\
(t.he IIEffeet.i·;c D:ltclt) i f)E'Er;iàe:à, ho\:cvcr, t.hat if the Aßßcuat.ieft
dace Ret aoour en eE' Bcier£: January 1, 1997, thio AfjJreemeßt Bhall
Be fnill aßà ·,;eid.. 1.ßY af the fercfjJoißfjJ te the: eSßtrary nstvith
ataRdiß~1 fram the date of firct reaàiR~ af the ordinance appro~iR~
thia Agreement, and anlcoo or until this ~~rccmcRt. seeemes naIl and
veiä, OuncE' Dhall Be Beand by the terms af raragraph 4. The Term
af thia A~rccmcRt for purpsccÐ ether than rara~raph 4 Baall Be~iß
~peß the Effect.ive Date, aRe} shall continue fer a pe:rieà of t.\,,"Cfïty
(29) }"ears (11th€:. Termll). This Aqreement shall become effective as
a development aqreement upon the effective date of the Annexation
(the "Effective Date"): provided. however. that if the Annexation
does not occur on or before Julv 1. 1997. this Aqreement shall
become null and void unless the annexation proceedinqs have been
extended bv LAFCO. If the annexation proceedinqs have been
extended. this Aqreement shall become effective upon the effective
date of such Annexation: provided. however. if the annexation does
not occur bY the end of such extension(s). this Aqreement shall
become null and void. Any of the foreqoinq to the contrary
-6- IIIP-7
------>- ,-------- -_.,.--.--,-----~_.-----------
notwithstandina. from the date of first readina of the ordinance
approvina this Aareement. and unless or until this Aareement
becomes null and void. Owner shall be bound bv the terms of
Paraaraph 4. The Term of this Aareement for purposes other than
Paraqraph 4 shall beqin upon the Effective Date. and shall continue
for a period of twenty (20) vears (lithe Term").
The term shall also be extended for any period of time during which
issuance of building permits to Developer is suspended for any
reason other than the default of Developer, and for a period of
time equal to the period of time during which any action by the
city or court action limits the processing of future discretionary
approvals, issuance of building permits or any other development of
the property consistent with this Agreement.
4. OWNER AGREEMENT TO ANNEXATION. Owner agrees not to
challenge any action taken by the city to annex the Otay Valley
Parcel into the city.
5. VESTED RIGHTS. Notwi thstanding any future action or
inaction of the City during the term of this Agreement, whether
such action is by ordinance, resolution or policy of the City,
Owner and Developer shall have a vested right, provided however the
developer is not in default of its obligations under this Agree-
ment, and except as may be otherwise provided in this section 5, to
construct the Project in accordance with:
5.1 Existing Project Approvals, subject to the following
requests for modifications, if approved by the city:
5.1. 1 City shall reasonably consider in its
discretion with proper environmental review a request by the
Owner for any modifications to the land use designations in
the General Development Plan for the Property.
5.1.2 ci ty will notice the Owner, as required by
law, of any actions which involve the formation of assessment
districts, development impact fees or other discretionary
actions affecting the Property. In addition, city will use
its reasonable best efforts to contact the Owner regarding any
pending discretionary actions pertaining to the Property as
early as possible in the process and involve the Owner in
appropriate meetings related thereto. Owner acknowledges that
City will not be in breach of this Agreement for failure to
provide notice to Owner other than notice as required by law.
5.1.3 If the interchange improvements at Otay
Valley Road and I-80S are needed to serve the Project, the
city will hold appropriate hearings to consider an amendment
to its Transportation Phasing Plan (TPP) and Development
Impact Fee (DIF) Program to include said improvements as may
be deemed appropriate by the City to accommodate the project
phasing. The City agrees to reasonably cooperate and work
with CALTRANS to complete plans for said interchange improve-
ment.
-7- 11/0-"
. ----. -..... "-.----.- ~_...- _._._,_..~..~----_._----_.,..,..-_.__._.._-
5.1. 4 city shall initiate contact and diligently
pursue discussions with the county of San Diego and the City
of San Diego to determine the number, scheduling and financing
of the otay River road and bridge crossings.
5.1.5 city shall allow the owner for purposes of
processing entitlements to proceed with planning of the
Property on a first come first served basis, with other prop-
erties in the area of the Annexation. In addition, if
requested by the applicant the city shall, with proper
environmental review, consider in its discretion an amendment
to the Village Phasing Plan to facilitate the planning and
development of the properties covered by this Agreement.
5.1.6 To the extent any of the foregoing com-
mitments of city are embodied in changes to the Development
Plan or the rules, regulations, ordinances, resolutions,
policies, conditions, environmental regulations, phasing
controls, exactions, entitlements, assessments, and fees
applicable to and governing development of the Property,
whether adopted before or after the Effective Date, such
changes shall be deemed applicable to the Property without
change to this Agreement.
5.1.7 City shall diligently process any amend-
ments, applications, maps, or other development applications.
5.1.8 City may make such modifications or
amendments to the Existing Project Approvals/Future Discre-
tionary Approvals, as may be ordered by a court of competent
jurisdiction.
5.2 Development of Propertv. The development of the
Property will be governed by this Agreement and Existing Project
Approvals and such development shall comply and be governed by all
rules, regulations, policies, resolutions, ordinances, and
standards in effect as of the Effective Date subject to the
provisions of section 5.2.1 below. The city shall retain its
discretionary authority as to Future Discretionary Approvals,
provided however, such Future Discretionary Approvals shall be
regulated by the Existing Project Approvals, this Agreement, and
City rules, regulations, standards, ordinances, resolutions and
policies in effect on the Effective Date of this Agreement and
subject to section 5.2.1.
Notwithstanding the foregoing, the City may make such changes to
the city's Growth Management Ordinance applicable to the Project as
are reasonable and consistent with the purpose and intent of the
existing Growth Management Ordinance and which are generally
applicable to all private projects citywide or east of 1-805 or
within a specific benefit, fee or reimbursement district created
pursuant to the California Government Code.
5.2.1 New or Amended Rules. Reaulations.
Policies. Standards. Ordinances and Resolutions. The city may
-8- 1'18-"
.._ _.... ___.~___u_._"....-.___·_..··..___,__·,_.·_.~_··~__~·__'__·__
apply to the Project, including Future Discretionary Approv-
als, new or amended rules, laws, regulations, policies,
ordinances, resolutions and standards generally applicable to
all private projects east of 1-805 or within a specific
benefit fee or reimbursement district created pursuant to the
California Government Code. The application of such new
rules, or amended laws, regulations, resolutions, policies,
ordinances and standards will not unreasonably prevent or
unreasonably delay development of the Property to the uses,
densities or intensities of development specified herein or as
authorized by the Existing Project Approvals. The city may
also apply changes in city laws, regulations, ordinances,
standards or policies specifically mandated by changes in
state or federal law in compliance with section 13.3 herein.
5.2.2 Developer may elect with City's consent,
to have applied to the project any rules, regulations,
policies, ordinances or standards enacted after the date of
this Agreement. Such an election has to be made in a manner
consistent with section 5.2 of this Agreement.
5.2.3 Modifications to Existinq Pro;ect
ADDrovals. It is contemplated by the parties to this
Agreement that the City and Developer may mutually seek and
agree to modifications to the Existing Project Approvals.
Such modifications are contemplated as within the scope of
this Agreement, and shall, upon written acceptance by all
parties, constitute for all purposes an Existing Project
Approval. The parties agree that any such modifications may
not constitute an amendment to this Agreement nor require an
amendment to the Agreement.
5.2.4 Future Discretionarv ADDrovals. It is
contemplated by the parties to this Agreement that the City
and Developer may agree to Future Discretionary Approvals. The
parties agree that any such Future Approvals may not consti-
tute an amendment to this Agreement nor require an amendment
to the Agreement.
5.3 Dedication and Reservation of Land for Public
PurDoses. Except as expressly required by this Agreement or the
Existing Project Approvals and Future Discretionary Approvals and
excepting dedications required within the boundaries of any parcel
created by the subsequent subdivision of the Property as required
by the Subdivision Map Act, no dedication or reservation of real
property within or outside the Property shall be required by City
or Developer in conjunction with the Project. Any dedications and
reservations of land imposed shall be in accordance with section
7.2 and section 7.8 herein.
City acknowledges that Developer will not be required to dedicate
land for the sole purpose of satisfying an obligation of otay
Ranch, L.P., a California limited partnership, Tiger Development
Two, a California limited partnership, Tigerheart, Inc., a
California corporation or its general partner, Village Development,
-9- 1'18"'/4
._-.~_.. .- ._.._---~--_....- --~-----~---_._----
a California general partnership, or their successor(s) interest
but Developer understands that Developer shall be required to
satisfy its obligations as required by Existing and Future
Discretionary Approvals.
5.4 Time for Construction and Completion of Proiect.
Because the California Supreme Court held in Pardee Construction
Companv v. citv of Camarillo (1984) 27 Cal.3d 465, that the failure
of the parties to provide for the timing of development resulted in
a later-adopted initiative restricting the timing of development to
prevail over such parties' Agreement, it is the intention of the
parties to this Agreement to cure that deficiency by specifically
acknowledging that timing and phasing of development is completely
and exclusively governed by the Existing Project Approvals,
including the Chula vista Growth Management Ordinance. The purpose
of the Chula vista Growth Management Ordinance is to "control the
timing and location of development by tying the pace of development
to the provision of public facilities and improvements to conform
to the City's threshold standards." (Municipal Code Section
19.09.010A.7) The findings in support of the Growth Management
Ordinance conclude that the ordinance "does not affect the number
of houses which may be built... (Municipal Code section
19.09.010B.3) Therefore, the parties acknowledge that the Chula
vista Growth Management Ordinance completely occupies the topic of
development timing and phasing and expressly precludes the adoption
of housing caps, urban reserves or any other means by which the
rate of development may be controlled or regulated. The City
agrees that the Developer shall be entitled to, apply for and
receive all permits necessary for the development of property,
consistent with the Growth Management Ordinance, Existing Project
Approvals, Future Discretionary Approvals and this Agreement.
5.5 Benefit of vestinq. Nothing in this Agreement will
be construed as limiting or impairing Developer's vested right, if
any, to proceed with the development and use of the Property
pursuant to the Federal and State Constitutions, and pursuant to
statutory and decisional law.
5.6 vestinq of Entitlements. All rights conferred by
this Agreement vest with the Effective Date hereof. The approval
of Future Discretionary approvals shall not be deemed to limit
Developer's rights authorized by this Agreement, and once such
approvals are obtained they shall be vested to the same extent as
the Existing Project Approvals provided Developer is not in default
of its obliqations under this Aqreement.
6. DEVELOPMENT PROGRAM.
6.1 processinq of Future Discretionarv Approvals. City
will accept and diligently process development applications and
requests for Future Discretionary Approvals, or other entitlements
with respect to the development and use of the Property, provided
said applications and requests are in accordance with this
Agreement. City costs for processing work related to the Project,
including hiring of additional City personnel and/or the retaining
-10- 14"4-//
.---.. .. - -~ ~.-._,._._-~ ... --.--
of professional consultants, will be reimbursed to city by
Developer.
6.2 Lenqth of Validitv of Tentative Subdivision Maps.
Government Code section 66452.6 provides that tentative subdivision
map(s) may remain valid for a length up to the term of a Develop-
ment Agreement. The city agrees that tentative subdivision map(s)
for the property shall be for a term of six (6) years and may be
extended by the City council for a period of time not to exceed a
total of twenty (20) years and in no event beyond the term of this
Agreement.
6.3 Pre-Final Map Development. If Developer desires to
do certain work on the Property after approval of a tentative map
(for example, grading) prior to the recordation of a final map, it
may do so by obtaining a grading and/or other required approvals
from the City which are authorized by the City prior to recordation
of a final map. The permit may be approved or denied by the city
in accordance with the City's Municipal Code, regulations and
policies and provided Developer is in compliance with this
Agreement and with the terms of all Existing and Future Discretion-
ary Approvals. In addition, the Developer shall be required to
post a bond or other reasonably adequate security required by city
in an amount determined by the City to assure the rehabilitation of
the land if the applicable final map does not record.
6.4 Final Maps.
6.4.1 "A" Maps and "B" Maps. If Developer so
elects, the City shall accept and process a master subdivision
or parcel map ("A" Map) showing "Super Block" lots and
backbone street dedications. "Super Block" lots shall be
consistent with the GDP and subsequent Sectional Plan Area
plans, and shall not subdivide land into individual single-
family lots. All "Super Blocks" created shall have access to
dedicated public streets. The city shall not require improve-
ment plans in order to record a final map for any "A" Map
lots, but the City shall require bonding for the completion of
backbone facilities prior to recording in an amount to be
determined by the city. Following the approval by City of any
final map for an "A" Map lot and its recordation, Developer
may convey the "Super Block" lot. The buyer of a "Super
Block" lot may then process final improvement plans and
grading plans and a final map ("B" Map) for each "Super Block"
lot which the city shall process if such documents are in
compliance with the City's Municipal Code, standard policies,
and the applicable tentative map. The "B" Maps shall be in
substantial conformance with the related approved "A" Map. In
the instance of the multi-family dwelling unit areas, a
separate tentative subdivision map may be submitted to the
city and the "B" Map(s) for these areas may be submitted to
the City after the City Planning commission approves said
tentative subdivision map.
-11- II/ß-/~
"...-_. ._.._---,~-,.. --.--..
6.4.2 Recordation of Final Subdivision MaD in
Name of Builder or Third Partv. Developer may, if it so
elects, convey to a Builder or third party any "super block"
lot(s) shown on the recorded Superblock Final Map. In such
case, the Builder or third party will (i) process any neces-
sary final improvement and grading plans and a final map for
each such "super block" lot ("B" map), which map City shall
accept and process if such map is in compliance with the
city's Municipal Code, standard policies, and the applicable
tentative map, as subsequent phases in a multi-phase project,
(ii) enter into a subdivision improvement agreement with City
with respect to the subdivision improvements which are
required for such super block lot, and (iii) provide security
and insurance satisfactory to City for the completion of the
subdivision improvements.
6.4.3 Recordation of Final Subdivision MaD in
DeveloDer's Name: Transfer of Obliqations Under Subdivision
ImDrovement Aqreement(s). If Developer so elects, it may
defer the conveyance of any super block lot to a Builder or
third party until after the final map of such super block lot
has been recorded. If Developer elects to proceed in this
manner, it will enter into City's standard subdivision
improvement agreement(s) with City for the improvements
required as a condition to the approval of such map(s) . Upon
sale to a Builder or third party, if such Builder or third
party assumes Developer's obligations under the improvement
agreement and provides its own security and insurance for the
completion of the subdivision improvements satisfactory to the
City and as approved by the city, Developer shall be released
from liability under the subdivision improvement agreement(s)
and Developer's security shall be released.
6.4.4 Transfer of Riqhts and Obliqations of
Development. Whenever Developer conveys a portion of the
Property, the rights and obligations of this Agreement shall
transfer in accordance with section 15 herein.
7. DEVELOPER'S OBLIGATIONS.
7.1 Condition to Developer's Obliqations to Dedicate. Fund or
Construct Public Facilities. Developer agrees to develop or
provide the public improvements, facilities, dedications, or
reservations of land and satisfy other exactions conditioning the
development of the Property which are set forth hereinbelow and by
the Existing and Future Discretionary Approvals. The obligations
of the Developer pursuant to this Agreement are conditioned upon:
(i) the city not being in default of its obligations under this
agreement; and (ii) the City not unreasonably preventing or
unreasonably delaying the development of the property, and (iii) if
the Agreement has been suspended in response to changes in state or
federal law or due to the City's obligations being suspended
pursuant to section 13.2, said obligations of Developer shall be
suspended for the same period of time.
-12- /'II1-/J
"--.---"---. _________..____..____ ..._____ nm__
7.2 Dedications and Reservations of Land for Publicpurooses.
The policies by which property will be required to be reserved,
dedicated or improved for public purposes are identified in the
Existing Project Approvals. A more precise delineation of the
property to be preserved, dedicated or improved for public purposes
shall occur as part of Future Discretionary Approvals consistent
with development of property as set forth in section 5.2 herein.
7.3 Growth Manaqement Ordinance. Developer shall commit the
public facilities and City shall issue building permits as provided
in this section and in accordance with Existing Project Approvals
and Future Discretionary Approvals. The city shall have the right
to withhold the issuance of building permits any time after the
City reasonably determines a Threshold has been exceeded, unless
and until the Developer has mitigated the deficiency in accordance
with the City's Growth Management Ordinance.
Developer agrees that building permits may be withheld where the
public facilities described in the Existing Project Approvals/
Future Discretionary Approvals required for a particular Threshold
have not been committed.
In the event a Threshold is not met and future building permit
issuance may be withheld, the notice provisions and procedures
contained in section 19. 09. 100C of the Municipal Code will be
followed. In the event the issuance of building permits is
suspended pursuant to the provisions herein, such suspension shall
not constitute a breach of the terms of this Agreement by Developer
or City. Furthermore, any such suspension which is not caused by
the actions or omissions of the Developer, shall toll the term of
this Agreement as provided for in section 16.12 of this Agreement,
and suspend the Developer's obligations pursuant to this Agreement.
7.3.1 Required Condemnation. The City and Developer
recognize that certain portions of the Resource Preserve and
of the public facilities identified in the Existing Project
Approvals/Future Discretionary Approvals are required to
comply with city requirements and are located on properties
which neither the Developer nor the City has, or will have,
title to or control of. with respect to such land for public
facilities, the City shall identify such property or proper-
ties and at the time of filing of the final map commence
timely negotiations or, where the property is within the
City's jurisdiction, commence timely proceedings pursuant to
Title 7 (commencing with § 1230.010) of Part 3 of the Code of
civil Procedure to acquire an interest in the property or
properties. Developer's share of the cost involved in any
such acquisition shall be based on its proportionate share of
the public facility as defined in the Existing Project
Approvals/Future Discretionary Approvals. Notwithstanding the
foregoing, nothing in this Agreement shall be deemed to
preclude the city from requiring the Developer to pay the cost
of acquiring such off-site land. For that portion of the cost
beyond the Developer's fair share responsibility of the land
-13- 1'10__/'/
~---+--_.- ....__._.---~~-~._--_._--
needed for public facilities, the city shall take all reason-
able steps to establish a procedure whereby the developer is
reimbursed for such costs beyond its fair share.
7.3.2 Information Reqardinq Thresholds. Upon
Developer's written request of the city Manager, the City will
provide Developer with information regarding the current
status of a Threshold. Developer shall be responsible for any
staff costs incurred in providing said written response.
7.4 Improvements Reauired bv a Subdivision Map. As may
be required pursuant to the terms of a tentative subdivision map
approval, it shall be the responsibility of Developer to construct
the improvements required by the subdivision map. Where Developer
is required to construct a public improvement which has been
identified as the responsibility of another party or to provide
public improvements of supplemental size, capacity, number or
length benefiting property not within the tentative subdivision
map, City shall process for consideration to approve or deny in its
sole discretion a reimbursement agreement with the Developer in
accordance with the City's Municipal Code and Article 6 of Chapter
4 of the Subdivision Map Act, commencing with Government Code
section 66485, and section 7.5, below. This does not preclude the
Developer or the City from considering alternative financing
mechanisms.
7.5 Facilities which Are the Obliqations of Another
Partv. or Are of Excessive Size. Capacitv. Lenath or Number.
Developer may offer to advance monies and/or construct public
improvements which are the responsibility of another land owner, or
outside the City's jurisdictional boundaries, or which are of
supplemental size, capacity, number or length for the benefit of
land not within the Property. City, where requesting such funding
or construction of oversized public improvements, shall consider
after a public hearing, contemporaneous with the imposition of the
obligation, the formation of a reimbursement district, assessment
district, facility benefit assessment, or reimbursement agreement
or other reimbursement mechanism.
7.6 pioneerina of Facilities. To the extent Developer
itself constructs (Le. , "Pioneers") any public facilities or
public improvements which are covered by a DIF Program, Developer
shall be given a credit against DIFs otherwise payable, subject to
the City's Director of Public Works reasonable determination that
such costs are allowable under the applicable DIF Program. It is
specifically intended that Developer be given DIF credit for the
DIF Program improvements it makes. The fact that such improvements
may be financed by an assessment district or other financing
mechanism, shall not prevent DIF credit from being given to the
extent that such costs are allowed under the applicable DIF
Program. Notwithstanding the foregoing, if an assessment district
is used to finance said improvements and the developer has been
paid back its costs, DIF credit shall be given to those property
owners assessed for said improvements.
-14- J~ß' /..5
-- - --"-...--..-'-----"-- - '.-..- ._...__.w ._--_._-----~.....,--..-
7.7 Insurance. Developer shall name city as additional
insured for all insurance policies obtained by Developer for the
Project as pertains to the Developer's activities and operation on
the Project.
7.8 Other Land Owners. Developer hereby agrees to
dedicate adequate rights-of-way within the boundaries of the
Property for other land owners to "Pioneer" public facilities on
the Property; provided, however, as follows: (i) dedications shall
be restricted to those reasonably necessary for the construction of
facilities identified in the City's adopted public facility plans;
(ii) this provision shall not be binding on the successors-in-
interest or assignees of Developer following recordation of the
final "Super Block" or "A" Map; and (iii) the city shall use its
reasonable best efforts to obtain agreements similar to this
subsection from other developers and to obtain equitable reimburse-
ment for Developer for any excess dedications.
7.9 Assurance 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 Manager determines that the Owner is not in default
of its obligations under this Agreement including but not limited
to those set forth in section 7.10 and 14.
7.10 Complete Construction. Developer agrees to
diligently complete construction once a building permit has been
issued for Property which is covered by this Agreement. Should
development stop once the building permits have been issued by the
city, which the City in its sole discretion determines has created
a nuisance or fire or safety hazard, the developer agrees to take
such steps necessary to cure the nuisance or hazard. Should
developer fail to do so to the City's satisfaction, the City may
take what ~teps it deems necessary to cure the nuisance or hazard
at developer's sole cost and expense.
8. DEVELOPMENT IMPACT FEES.
8.1 Existinq Development Impact Fee Proqram Pavments.
Developer shall pay to the City a DIF, or construct improvements in
lieu of payment, for DIF improvements which are conditions of a
tentative subdivision map upon the issuance of building permits (s) ,
or at a later time as specified by city ordinance, the Subdivision
Map Act, or Public Facility Financing Plan (PFFP). The DIF will be
in the amount in effect at the time payment is made and may only be
increased pursuant to section 8.6 herein.
8.2 Other Undeveloped Properties. The city will use its
reasonable best efforts to impose and collect, or cause the
imposition and collection of, the same DIF program on all the
undeveloped real properties which benefit from the provision of the
public facility through the DIF program, or provided as a condition
of Project Approvals.
-15- JJlß'I¿,
-~------_._-~_._-_. ..-.---....---.----.------
8.3 Use of Development Impact Fee Proaram. The DIF
amounts paid to the City by Developer and others with respect to
the Area of Benefit shall be placed by the city in a capital
facility fund account established pursuant to California Government
Code sections 66000-66009. The city shall expend such funds only
for the Projects described in the adopted fee program as may be
modified from time to time. The City will use its reasonable best
efforts to cause such Projects to be completed as soon as practica-
ble; however, the city shall not be obligated to use its general
funds for such Projects.
8.4 wi thholdina of Permits. Developer agrees that City
shall have the right to withhold issuance of the building permit
for any structure or improvement on the Property unless and until
the DIF is paid for such structure or improvement.
8.5 Development Impact Fee Credit. Upon the completion
and acceptance by the City of any public facility, the city shall
immediately credit Developer with the appropriate amount of cash
credits ("EDUs") as determined by Developer and city. However, if
the improvements are paid for through an Assessment District, the
city shall credit the Developer with the appropriate number of
Equivalent Dwelling unit Credits (EDUs) . Developer shall be
entitled to apply any and all credits accrued pursuant to this
subsection toward the required payment of future DIF for any phase,
stage or increment of development of the Project.
8.6 Modification of Development Impact Fees. The
parties recognize that from time to time during the duration of the
Agreement it will be necessary for the City to update and modify
its DIF fees. Such reasonable modifications are contemplated by
the City and the Developer and shall not constitute a modification
to the Agreement so long as: (i) the modification incorporates the
reasonable costs of providing facilities identified in the Existing
or Future project Approvals; (ii) are based upon methodologies in
substantial compliance with the methodology contained in the
existing DIF programs; or other methodology approved by the city
council following a public hearing; (iii) complies with the
provisions of Government Code sections 66000-66009.
8.7 Standards for Financina Obliaations of Owner. In
connection with the development of the Property, the following
standards regarding the financing of public improvements shall
apply:
8.7.1 Owner shall pay its fair share for the
interchanges described in Paragraph 5.1.3, based upon the
number of dwelling units or equivalent dwellings of develop-
ment allowed on the Property as compared to the total dwelling
units or equivalent dwelling units allowed on properties
served by such interchanges.
8.7.2 Owner shall participate in the DIF Program
for the Otay Valley Parcel with other owners in proportion to
the total dwelling units or equivalent dwelling units allowed
-16- /1/0-/7
--..---- ^-.--.-.-.-.......---....-..--.- -_.~_._.....__._----
on the Property as compared with the total of such units
allowed on properties in that particular DIF or by some other
equitable methodology decided by the City Council.
8.7.3 The city shall diligently pursue the
requirements that the Eastern Territories' DIF requires
offsite third parties and adjacent jurisdictions to bear their
fair share of all Otay River Valley crossings.
9. CITY OBLIGATIONS.
9.1 Urban Infrastructure. To the extent it is within
the authority and ability of the City to provide, city shall
accommodate urban infrastructure to the project, consistent with
Existing Project Approvals. Where it is necessary to utilize City
property to provide urban infrastructure consistent with the
Existing Project Approvals, the City agrees to make such land
available for such uses, provided that the City if it so chooses is
compensated at fair market value for the property. To the extent
that the provision of urban infrastructure is within the authority
of another public or quasi-public agency or utility, the City
agrees to fully cooperate with such agency or agencies to accommo-
date the urban infrastructure, consistent with Existing Project
Approvals. Urban infrastructure shall include, but not be limited
to gas, electricity, telephone, cable and facilities identified in
the Otay Ranch Facility Implementation Plan.
9.2 Sewer Capacitv. The city agrees to provide adequate
sewer capacity for the project, upon the payment of ordinary and
necessary sewer connection, capacity and/or service fees.
10. ANNUAL REVIEW.
10.1 citv and Owner Responsibilities. city will, at
least every twelve (12) months during the Term of this Agreement,
pursuant to California Government Code §65865.1, review the extent
of good faith substantial compliance by Owner with the terms of
this Agreement. Pursuant to California Government Code section
65865.1, as amended, Owner shall have the duty to demonstrate by
substantial evidence its good faith compliance with the terms of
this Agreement at the periodic review. Either City or Owner may
address any requirement of the Agreement during the review.
10.2 Evidence. The parties recognize that this Agreement
and the documents incorporated herein could be deemed to contain
hundreds of requirements and that evidence of each and every
requirement would be a wasteful exercise of the parties' resources.
Accordingly, Developer shall be deemed to have satisfied its good
faith compliance when it presents evidence of substantial com-
pliance with the major provisions of this Agreement. Generalized
evidence or statements shall be accepted in the absence of any
evidence that such evidence is untrue.
10.3 Review Letter. If Owner is found to be in com-
pliance with this Agreement after the annual review, City shall,
-17- J'Iß-/f'
-"--' .._.._...______._ m___
within forty-five (45) days after Owner's written request, issue a
review letter in recordable form to Owner ("Letter") stating that
based upon information known or made known to the council, the City
Planning commission and/or the City Planning Director, this
Agreement remains in effect and Owner is not in default. Owner may
record the Letter in the Official Records of the county of San
Diego.
10.4 Failure of Periodic Review. City's failure to
review at least annually Owner's compliance with the terms and
conditions of this Agreement shall not constitute, or be asserted
by city or Owner as, a breach of the Agreement.
11. DEFAULT.
11.1 Events of Default. A default under this Agreement
shall be deemed to have occurred upon the happening of one or more
of the following events or conditions:
11.1.1 A warranty, representation or statement
made or furnished by Owner to City is false or proves to have
been false in any material respect when it was made.
11.1.2 A finding and determination by city made
following a periodic review under the procedure provided for
in California Government Code section 65865.1 that upon the
basis of substantial evidence Owner has not complied in good
faith with one or more of the terms or conditions of this
Agreement.
11.1.3 city does not accept, timely review, or
consider requested development permits or entitlements
submitted in accordance with the provisions of this Agreement.
11.1. 4 P.ll remcàica at la\: or ifl eE \ii1>y \:fiieh are
eeftcistent ,:ith the ~Le~isießD of thio Lgrccmen'E are a~ailablc to
City and O\;RCr t.o purDue iß tRC c·;cßt there io û. by-cash prew;iàeà,
Beuc~cr, neither party oh~ll ha~c the remedy af monetary àama~es
afJaìPlÐ't the ether e)!Ðe~t for ~ß auarà af litigatioß seat.s aßà.
atterßcya fece.
11.2 Procedure Upon Default.
11.2.1 Upon the occurrence of default by the
other party, City or Owner may terminate this Agreement after
providing the other party thirty (30) days written notice
specifying the nature of the alleged default and, when
appropriate, the manner in which said default may be satis-
factorily cured. After proper notice and expiration of said
thirty (30) day cure period without cure, this Agreement may
be terminated. In the event that city's or Owner's default is
not subject to cure within the thirty (30) day period, city or
Owner shall be deemed not to remain in default in the event
that City or Owner commences to cure within such thirty (30)
day period and diligently prosecutes such cure to completion.
-18- 1110-1'
_....___n___"_'""
Failure or delay in giving notice of any default shall not
constitute a waiver of any default, nor shall it change the
time of default. Notwithstanding any other provision of this
Agreement, City reserves the right to formulate and propose to
Owner options for curing any defaults under this Agreement for
which a cure is not specified in this Agreement.
11.2.2 city does not waive any claim of defect in
performance by Owner if, on periodic review, city does not
propose to modify or terminate this Agreement.
11. 2 . 3 Subject to Paragraph 16.12 of this
Agreement, the failure of a third person shall not excuse a
party's nonperformance under this agreement.
11. 2.4 Remedies Upon Default. In the event af a
defa~lt BY either party to this A§reement, the parties shall
ha7Ð ~he remedies af apceifie pcrfarmûncc, lIIandalllus, injuno
~ieß and ether c~Hit~blc remedicD. Neither party shall have
the remedy af lIIonetary dallla§es a§ainst the athe£1 pre,;iàeà,
Þ1Ð\lc·,:cr, that the a\;arà of CÐztc af lititJatieR aßå atterfic}"s'
føøc shall Rot ceRÐtit~tc àama~CÐ easeà apsn a ereach af this
A§reelllent '.here such an a'lard is lillli ted to (i) tHe cest.e af
litilJatien ine~rred BY the City, and (ii) the "fee" eEI~ivaleRt.
af Cit.y's eests for the services attriButaBle te litiEJat.ieR
anå reprcûcntatioR BY the City ~tterßcy, inclaàiRE) assistants
anå etaff. All remedies at law or in equity which are consis-
tent with the provisions of this Aqreement are available to
citv and Owner to pursue in the event there is a breach
provided. however. neither partv shall have the remedY of
monetary damaqes aqainst the other except for an award of
litiqation costs and attornevs fees.
12. ENCUMBRANCES AND RELEASES ON PROPERTY.
12.1 Discretion to Encumber. This Agreement shall not
prevent or limit Owner in any manner at Owner's sole discretion,
from encumbering the Property, or any portion of the Property, or
any improvement on the Property, by any mortgage, deed of trust, or
other security device securing financing with respect to the
Property or its improvement.
12.2 Mortqaqee Riqhts and Obliqations. The mortgagee of
a mortgage or beneficiary of a deed of trust encumbering the
Property, or any part thereof, and their successors and assigns
shall, upon written request to City, be entitled to receive from
City written notification of any default by Owner of the
performance of Owner's obligations under the Agreement which has
not been cured within thirty (30) days following the date of
default.
12.3 Releases. City agrees that upon written request of
Owner and payment of all fees and performance of the require-
ments and conditions required of Owner by this Agreement with
respect to the Property, or any portion thereof, City may
-19- 1'I8-~
-- .-- ~ . ~._.- ._--_..-._--"--~._-----"._._._-_.."--------,,---. .-_.._---_.~-
execute and deliver to Owner appropriate release(s) of further
obligations imposed by this Agreement in form and substance
acceptable to the San Diego County Recorder and title
insurance company, if any, or as may otherwise be necessary to
effect the release. City Manager shall not unreasonably
withhold approval of such release(s) .
12.4 Obliqation to Modifv. city acknowledges that the
lenders providing financing for the proj ect may require certain
modifications to this Agreement and city agrees, upon request from
time to time, to meet with Owner and/or representatives of such
lenders to negotiate in good faith any such requirement for
modification. City will not unreasonably withhold its consent to
any such requested modification.
13. MODIFICATION OR SUSPENSION.
13.1 Modification to Aqreement bv Mutual Consent. This
Agreement may be modified, from time to time, by the mutual consent
of the parties only in the same manner as its adoption by an
ordinance as set forth in California Government Code sections
65867, 65867.5 and 65868. The term, "this Agreement" as used in
this Agreement, will include any such modification properly
approved and executed.
13.2 Unforeseen Health or Safety circumstances. If, as
a result of facts, events, or circumstances presently unknown,
unforeseeable, and which could not have been known to the parties
prior to the commencement of this Agreement, city finds that
failure to suspend this Agreement would have an impact on the
immediate health or safety of the City's residents or the City.
The following shall occur:
13.2.1 Notification of Unforeseen Circumstances.
Notify Developer of (i) City's determination; and (ii) the
reasons for city's determination, and all facts upon which
such reasons are based;
13.2.2 Notice of Hearinq. Notify Developer in
writing at least fourteen (14) days prior to the date, of the
date, time and place of the hearing and forward to Developer
a minimum of ten (10) days prior to the hearings described in
section 13.2.3, all documents related to such determination
and reasons therefor; and
13.2.3 Hearinq. Hold a hearing on the deter-
mination, at which hearing Developer will have the right to
address the city Council. At the conclusion of said hearing,
ci ty may take action to suspend this Agreement as provided
herein. The City may suspend this Agreement if, at the
conclusion of said hearing, based upon the evidence presented
by the parties, the City finds failure to suspend would have
an impact on the immediate health or safety of the city's
residents or the city.
-20- I~ß-j.1
___..______._.~_u_
13.3 Chanae in state or Federal Law or Reaulations. If
any state or federal law or regulation enacted during the Term of
this Agreement, or the action or inaction of any other affected
governmental jurisdiction, precludes compliance with one or more
provisions of this Agreement, or requires changes in plans, maps,
or permits approved by city, the parties will act pursuant to
sections 13.3.1 and 13.3.2, below.
13.3.1 Notice: Meetina. The party first becoming
aware of such enactment or action or inaction will provide the
other party(ies) with written notice of such state or federal
law or regulation and provide a copy of such law or regulation
and a statement regarding its conflict with the provisions of
this Agreement. The parties will promptly meet and confer in
a good faith and reasonable attempt to modify or suspend this
Agreement to comply with such federal or state law or regula-
tion.
13.3.2 Hearina. If an agreed upon modification
or suspension would not require an amendment to this Agree-
ment, no hearing shall be held. otherwise, the matter of such
federal or state law or regulation will be scheduled for
hearing before the city. Fifteen (15) days' written notice of
such hearing shall be provided to Developer, and the City, at
such hearing, will determine and issue findings on the
modification or suspension which is required by such federal
or state law or regulation. Developer, at the hearing, shall
have the right to offer testimony and other evidence. If the
parties fail to agree after said hearing, the matter may be
submitted to mediation pursuant to subsection 13.3.3, below.
Any modification or suspension shall be taken by the affirma-
tive vote of not less than a majority of the authorized voting
members of the city. Any suspension or modification may be
subject to judicial review in conformance with subsection
16.19 of this Agreement.
13.3.3 Mediation of Disputes. In the event the
dispute between the parties with respect to the provisions of
this paragraph has not been resolved to the satisfaction of
both parties following the city hearing required by subsection
13.3.2, the matter shall be submitted to mediation prior to
the filing of any legal action by any party. The mediation
will be conducted by the San Diego Mediation Center; if San
Diego Mediation Center is unable to conduct the mediation, the
parties shall submit the dispute for mediation to the Judicial
Arbitration and Mediation Service or similar organization and
make a good faith effort to resolve the dispute. The cost of
any such mediation shall be divided equally between the
Developer and city.
13.4 Natural Communities Conservation Act INCCP). The
parties recognize that Developer and the city are individually
negotiating agreements with the united States Fish and wildlife
Service ("USF&W") and the California Department of Fish and Game
pursuant to the ongoing regional effort to implement the Natural
-21- I'IO-:¿'-
_.. __m_.m__ .,.'.'.. ._'.__._________ __.___.__.__
Communities Conservation Act ("NCCP"), locally proposed to be
implemented through the MUlti-Species Conservation Program
("MSCP"). The parties further recognize that implementation of the
agreements may necessitate modification to the Existing Project
Approvals. The parties agree to utilize their best efforts to
implement these agreements, once executed, through the timely
processing of modifications to the Existing Project Approvals as
they relate to the Property. The Developer agrees to pay the
reasonable City cost for processing work related to the modifica-
tions. Once such modifications are obtained they shall be vested
to the same extent as Existing Project Approvals.
14. DISTRICTS. PUBLIC FINANCING MECHANISMS.
This Agreement and the Existing Project Approvals recognize
that assessment districts, community facility districts, or other
public financing mechanisms, may be necessary to finance the cost
of public improvements borne by this Project. If Developer,
pursuant to the Existing Project Approvals/Future Discretionary
Approvals, is required by the City to install improvements through
the use of assessment districts, or other public financing
mechanisms, the city shall initiate and take final action to
approve or deny appropriate proceedings for the formation of such
financing district or funding mechanism, under applicable laws,
ordinances, or policies. Developer may request that the City, but
the City is not obligated to, utilize any other financing methods
which may become available under City laws or ordinances. All
costs associated with the consideration and formation of such
financing districts or funding mechanisms shall be paid by
Developer subject to reimbursement, as may be legally authorized
out of the proceeds of any financing district or funding mechanism.
Developer shall comply with the terms of any assessment districts
or other financing mechanisms so approved by the City for Property
covered by this Agreement and shall make timely payments as
required by said financing mechanism. The city retains its rights
to take any actions legally authorized as it deems appropriate to
guarantee payment.
15. ASSIGNMENT AND DELEGATION.
15.1 Assianment. Owner shall have the right to transfer
or assign its interest in the Property, in whole or in part,
to any persons, partnership, joint venture, firm, or corpora-
tion at any time during the Term of this Agreement without the
consent of city. Owner also shall have the right to assign or
transfer all or any portion of its interest or rights under
this Agreement to third parties acquiring an interest or
estate in the Property at any time during the Term of this
Agreement without the consent of City.
15.2 Deleaation/Release. In addition, Owner shall have
the right to delegate or transfer its obligations under this
Agreement to third parties acquiring an interest or estate in
the Property after receiving the prior written consent of the
City Manager, which consent shall not be unreasonably withheld
-22- I¥ß"~'
'-"---.-'-- --_.__..__.~.,,-_.._....._,.
or delayed or conditioned. Provided, however, the City may
deny such delegation and release if the city determines that
the performance of such obligation would be jeopardized by
such transfer. Once the city Manager has consented to a
transfer, delivery to and acceptance by the city Manager of an
unqualified written assumption of Owner's obligations under
this Agreement by such transferee shall relieve Owner of the
obligations under this Agreement to the extent the obligations
have been expressly assumed by the transferee and as approved
by the city. Such transferee shall not be entitled to amend
this Agreement without the written consent of the entity that,
as of the Effective Date, is Owner, which consent shall not be
unreasonably withheld, delayed, or conditioned. The entity
that is Owner as of the Effective Date, however, shall be
entitled to amend this Agreement without the written consent
of such transferee.
16. MISCELLANEOUS PROVISIONS.
16.1 Bindina Effect of Aareement. Except to the extent
otherwise provided in this Agreement, the burdens of this Agreement
bind, and the benef i ts of this Agreement inure, to City's and
Owner's successors-in-interest and shall run with the land.
16.2 Relationship of citv and Owner. The contractual
relationship between city and Owner arising out of this Agreement
is one of independent contractor and not agency. This Agreement
does not create any third-party beneficiary rights.
16.3 Notices. All notices, demands, and correspondence
required or permitted by this Agreement shall be in writing and
delivered in person, or mailed by first-class or certified mail,
postage prepaid, addressed as follows:
If to City, to: City of Chula vista
276 Fourth Avenue
Chula Vista, CA 91910
Attention: City Manager
If to Owner, to: Attention: Mr. Jim Johnson
Baldwin Builders
16811 Hale Avenue
Irvine, CA 92606
city or Owner may change its address by giving notice in writing to
the other. Thereafter, notices, demands, and correspondence shall
be addressed and transmitted to the new address. Notice shall be
deemed given upon personal delivery, or, if mailed, two (2)
business days following deposit in the united States mail.
16.4 Rules of Construction. In this Agreement, the use
of the singular includes the plural; the masculine gender includes
the feminine; "shall" is mandatory; "may" is permissive.
-23- J'Iß - ~1
-- ---_. _._,.. --..-.... -_._,-_..._.._-~"------,-_.-
16.5 Entire Aqreement. Waivers. and Recorded statement.
This Agreement constitutes the entire understanding and agreement
of city and Owner with respect to the matters set forth in this
Agreement. This Agreement supersedes all negotiations or previous
agreements between city and Owner respecting this Agreement. All
waivers of the provisions of this Agreement must be in writing and
signed by the appropriate authorities of city and Owner. upon the
completion of performance of this Agreement, or its revocation or
termination, a statement evidencing completion, revocation, or
termination signed by the appropriate agents of city sha 11 be
recorded in the Official Records of San Diego County, California.
16.6 proiect as a Private Undertakinq. It is
specifically understood by City and Owner that (i) the Project is
a private development; (ii) city has no interest in or
responsibilities for or duty to third parties concerning any
improvements to the Property until City accepts the improvements
pursuant to the provisions of the Agreement or in connection with
subdivision map approvals; and (iii) Owner shall have the full
power and exclusive control of the Property subject to the
obligations of Owner set forth in this Agreement.
16.7 Incorporation of Recitals. The recitals set forth
in Paragraph 1 of this Agreement are part of this Agreement.
16.8 captions. The captions of this Agreement are for
convenience and reference only and shall not define, explain,
modify, construe, limit, amplify, or aid in the interpretation,
construction, or meaning of any of the provisions of this
Agreement.
16.9 Consent. Where the consent or approval of City or
Owner is required or necessary under this Agreement, the consent or
approval shall not be unreasonably withheld, delayed, or con-
ditioned.
16.10 Covenant of Cooperation. City and Owner sha 11
cooperate and deal with each other in good faith, and assist each
other in the performance of the provisions of this Agreement.
16.11 Recordinq. The City Clerk shall cause a copy of
this Agreement to be recorded with the Office of the County
Recorder of San Diego County, California, within ten (10) days
following the Effective Date.
16.12 Delav. Extension of Time for Performance. In
addition to any specific provision of this Agreement, performance
by either city or Owner of its obligations hereunder shall be
excused, and the Term of this Agreement and the Development Plan
extended, during any period of delay caused at any time by reason
of any event beyond the control of city or Owner which prevents or
delays and impacts city's or Owner's ability to perform obligations
under this Agreement, including, but not limited to, acts of God,
enactment of new conflicting federal or state laws or regulations
(example: listing of a species as threatened or endangered) ,
-24- I¥O-.25'
-,.,~-_...--_._~---------'~-
judicial actions such as the issuance of restraining orders and
injunctions, riots, strikes, or damage to work in process by reason
of fire, floods, earthquake, or other such casualties. If City or
Owner seeks excuse from performance, it shall provide written
notice of such delay to the other within thirty (30) days of the
commencement of such delay. If the delay or default is beyond the
control of city or Owner, and is excused, an extension of time for
such cause will be granted in writing for the period of the
enforced delay, or longer as may be mutually agreed upon.
16.13 Covenant of Good Faith and Fair Dealinqs. No party
shall do anything which shall have the effect of harming or
injuring the right of the other parties to receive the benefits of
this Agreement; each party shall refrain from doing anything which
would render its performance under this Agreement impossible; and
each party shall do everything which this Agreement contemplates
that such party shall do in order to accomplish the objectives and
purposes of this Agreement.
16.14 Operatinq Memorandum. The parties acknowledge that
the provisions of this Agreement require a close degree of
cooperation between City and Developer, and that the refinements
and further development of the Project may demonstrate that minor
changes are appropriate with respect to the details of performance
of the parties. The parties, therefore, retain a certain degree of
flexibility with respect to those items covered in general under
this Agreement. When and if the parties mutually find that minor
changes or adjustments are necessary or appropriate, they may
effectuate changes or adjustments through operating memoranda
approved by the parties. For purposes of this section 16.14, the
city Manager, or his designee, shall have the authority to approve
the operating memoranda on behalf of city. No operating memoranda
shall require notice or hearing or constitute an amendment to this
Agreement.
16.15 Time of Essence. Time is of the essence in the
performance of the provisions of this Agreement as to which time is
an element.
16.16 Amendment or Cancellation of Aqreement. This
Agreement may be amended from time to time or canceled by the
mutual consent of City and Owner only in the same manner as its
adoption, by an ordinance as set forth in California Government
Code section 65868, and shall be in a form suitable for recording
in the Official Records of San Diego County, California. The term
"Agreement" shall include any such amendment properly approved and
executed. City and Owner acknowledge that the provisions of this
Agreement require a close degree of cooperation between them, and
that minor or insubstantial changes to the Project and the
Development Plan may be required from time to time to accommodate
design changes, engineering changes, and other refinements.
Accordingly, changes to the Project and the Development Plan that
do not result in a change in use, an increase in density or
intensity of use, cause new or increased environmental impacts, or
violate any applicable health and safety regulations, may be
-25- IJ/ß"'.J./'
"----,---.---....-------- - --~...._. ..._.~.._-_.._._------_._---"---
considered minor or insubstantial by the City Manager and made
without amending this Agreement.
16.17 Estoppel certificate. within 30 calendar days
following a written request by any of the parties, the other
parties to this Agreement shall execute and deliver to the
requesting party a statement certifying that (i) this Agreement is
unmodified and in full force and effect, or if there have been
modifications hereto, that this Agreement is in full force and
effect as modified and stating the date and nature of such
modifications; (ii) there are no known current uncured defaults
under this Agreement, or specifying the dates and nature of any
such default; and (iii) any other reasonable information requested.
The failure to deliver such a statement within such time shall
constitute a conclusive presumption against the party which fails
to deliver such statement that this Agreement is in full force and
effect without modification, except as may be represented by the
requesting party, and that there are no uncured defaults in the
performance of the requesting party, except as may be represented
by the requesting party.
16.18 Severabilitv. If any material provision of this
Agreement is held invalid, this Agreement will be automatically
terminated with neither party bearing any liability hereunder.
Notwithstanding the foregoing, within 15 days after such provision is
held invalid if the party holding rights under the invalidated
provision affirms the balance of this Agreement in writing, this
Agreement shall not be terminated. This provision will not affect
the right of the parties to modify or suspend this Agreement by
mutual consent pursuant to Paragraph 12.4.
16.19 Institution of Leqal Proceedinq. In addition to any
other rights or remedies, any party may institute legal action to
cure, correct, or remedy any default, to enforce any covenants or
agreements herein, or to enjoin any threatened or attempted violation
thereof; to recover damages for any default as allowed by this
Agreement or to obtain any remedies consistent with the purpose of
this Agreement. Such legal actions must be instituted in the
Superior Court of the County of San Diego, State of California.
16.20 Attornevs' Fees and Costs. If any party commences
litigation or other proceedings (including, without limitation,
arbitration) for the interpretation, reformation, enforcement, or
rescission of this Agreement, the prevailing party, as determined by
the court, will be entitled to its reasonable attorneys' fees and
costs.
16.21 Hold Harmless. Developer agrees to and shall hold
city, its officers, agents, employees and representatives harmless
from liability for damage or claims for damage for personal injury,
including death, and claims for property damage which may arise from
the direct or indirect operations of Developer or those of its
contractors, subcontractors, agents, employees or other persons
acting on Developer's behalf which relate to the Project. Developer
agrees to and shall defend City and its officers, agents, employees
-26- II! 8-.17
_ _.._. ___ ______.___.__."~___..__._ _.____ __'"u..
and representatives from actions for damage caused or alleged to have
been caused by reason of Developer's activities in connection with
the Project. Developer agrees to indemnify, hold harmless, pay all
costs and provide a defense for city in any legal action filed in a
court of competent jurisdiction by a third party challenging the
validity of this Agreement. The provisions of this Section 16.21
shall not apply to the extent such damage, liability or claim is
caused by the intentional or negligent act or omission of City, its
officers, agents, employees or representatives.
17. AUTHORITY.
The City has entered into this Agreement based upon Baldwin's
representation that it has the authority to enter into this Agree-
ment.
-27- 14//J-J,Y
---~ ._..__._.,,"._-~- ---.------
SIGNATURE PAGE TO RESTATED AND AMENDED PRE-ANNEXATION DEVELOPMENT
AGREEMENT.
Dated this _ day of , 1997.
"CITY"
CITY OF CHULA VISTA
By:
SHIRLEY HORTON, MAYOR
"OWNER"
BALDWIN BUILDERS, a CA corporation
By:
I hereby approve the form and legality of the foregoing Restated
and Amended Pre-Annexation Development Agreement this day of
, 1997.
John M. Kaheny, City Attorney
By:
Ann Moore
Assistant City Attorney
IYO'J.'
-28-
- -.-_..._---------- -- "--"".'-_._-'~
- - .-,. ,
.' .
EXHIBIT A
-
-
~\,~
-.-
. -
~:t~~
01Y OF
CHUlA VISTA
PLANNING DEPARTMEp.;T
THE BALDWIN COMPANY 11/!J~.3/) 7/1 O,'Q6
---...-."....---.-"... ...-.
_.
, ,
:¡
~ t::
~
'" '" "0 z~ ~~
"'"0 '"
-;¡; c (;)'õa "0 - ;:: ~~J ~~
.- ::> cc c ... (¡~ <1-> :c
> 0 >",.~ "'0 "0'" "0 '"
",CC ...~'" E= "'E c ... tI 0 ~
:;» -"'::> E~ "'.t:: ...-c:t
::>.t::_ ...J.!:! >- -- II~ ~:S ~
,¡:;:=: .t:: 0.- 0",11\ OU >.U"O ~~
C 0....'"
uu uu>E uc'" 0- tI ",tI:J U U~ i
z CJce ...11>... _0...::;
LlJ tt:~~ D.C~ Ou>u>
t:J I - u~
LlJ - ~
~ -
...J I I æ 0
w
I ¡;
I
I
11\
. E.
:¡¡
N-
. , I ~t
--I
I 0'
I
L_,
..J
I .,
l,
I
I
\
~ -.}
.
0 \ I
Z \,,-j
t: J ::::!!
ctS 0 J I
..... .- ('or I
en.....
._ CO· I
c:c > .t:!
l!:=->
ctS t:
+J _ ctS
:5::30)
-- .r:: ....
~()O .
_I
w~Cl>
00:: L
Þ"5
.- t:
()
ro 11/8-;1/
0::
>-
ro
...... -...."'..-- - - ----.- -.---- --..-------..,---..-.-.
- - ,
-
EXHIBIT MC' I I
PRE-ANNEXATION DEVELOPMENT AGREEMENT
0I3v Va1kv Parcel 643~70~1 Baldwin Builders 219.68
OIaY Vallev Pan:d 643~70~3 Baldwin Buildcn; 611.43
OIaY Vallev Part:d 644-C80.{)6 Baldwin Buildm 160.11
Olav Vallev Parcel 644-C80-C7 Baldwin Builders 212.97
TOTAL 1.204.19
J~IJ4Þ j~
-- -_."---_._~.._.._._------- .,--- --
- ~--_.__.-
--- ~-~------'-'------~
J .,'#/ SEPo 6.1S!9Eo::O ~1<l7f.r1·"""n£ u.a< o:x-PÇN'( IRVlr-t:..... ....,..,...,... HO.bebd"'~'C'~ --
J - I~ 0- ..-.
. , ~ F ~':>
. -.....-- . .
~ ;
MÄY231M .
1 LEW%S R. ~^U [8&. 14~)'1 I
JOSEPH I. eAMCREX
a (P~O u.c V1~ ,enðin;)
~t;ÞENCOn, WZW" . IKER'I
S 304. Century 'ar~ Ea.t. SUita )400
Loa Ant.lal. c.llrornl.. 'OO67-)aOa
. 4 ~.lepbon., (no) 177-41~O Exhibit D
5 ¡hogO.ad) coun..l for b.v14 Gw14, Chapter ~r Troaij!IEi?~D -
o~ ebtou .~Dwnl DUll-DDS and L\LDWlN aU:n.Þltlr-" -. ,-.
, CO)lTL\C'l'OI\S tW23S£6 I
I
, .
. . .
WI'1'En ''rAn~ ~tn'1'CY COUlt'r .. .
.
c:~ ÞU'l'JUt"1' or CJ.LtFOMU
10 .
11 %n~ } ca.. .os. JIJ) '5-U057-U aM
JIJ) U-UO!5I-U
U
1 (Jointly ~d»lni.ter.4 Under
U Ce.. '0. ND .S-10)S7-U)
. BALDWIN ~Ul~£RS. .. califo~nia ) c:hapta.r 11
1t Corpor.~10nl an4 IAtDWIH }
ItJlt.ÞING CONTAACTOU. a } OJtr)~ UP~OVI)IG DŒ'I..onmrT
15 California ~1al~.d 'artnerahlp.) COnMCT aETilttR nUSTU ~
) 07UQ(Y Þ. ",OmcIOM
U }
}
1'7 1
O.btor..
11
)
it ~
10 )
)
21 )
)
n )
.
n .
u
-u .
.
...
U '.
17
.
21
I ~~\t'I'~~""
Ii/ß" 33 \
..m_ L
- ---.--- --_._---_.,-----~._~
_....~. b.;¡,~~· ~·6t(t't·1 1rL. ~ .......... ,~.. ....-.-
. . ~.: .
. .
. '.
. ., - , .
.
1- ':b.- Coun; h' ~nl14ard the .ot1ce o~ A¡lpl1c&t1on aM .
a Appl1¡;lIt1.on Qt Þavi4 oou1.11 to uplol J~l 1>. JOMaon .. Chi,r
) bao\lUn OUloa~ of ~ lIJ~ate., r1nt Mena.nt &Dð eorr.ct1OM
4 to ~pu._~s.on of !>&v1...·0.ul. to "pl~ ~~ D. .7obnaen .. c:hid
-
I lxaeut1v. Officer of the I.rtat.. and the liecunt10na Of-JLay Þ.
5 Johnlon, X. no441e Þ1,., cath.t1na 1110b01u, and Dav14 Oou14 1n
7 .upport. th.reot, .. vIll .. IU O~.ct1oM tharau.
. 'Z'b. court, f~1n9 ~at ..04 C&\&I.a ax1lt. Þ POUlt ~.
t ApplLca~loft, b.r.bfl
. ,
~O ~aJ)D.J' thlt ~'ApplioaUen, .. aaended 1a aJlFOWiI! M0-
II . . It 18 tunbar, C.
~.'
12 Oat)DJ:þ, ~1I't all objlc:ticm.a ua overruled .-.... ->t)'. It
l' b hñbu,
14 ~DI:), that JLmrt Þ. .70Ma0a, 1JI "b Qlpac;1'tr .. ~
11 Þe!*ora' Chi.f lxac:ut1.w orUc" 1. au~d&o4 ~o uac:u1:a a.c:rov
1& 1n.tr\&ct1or.l, ,rant 1IM4a an4 related .~ fot" ..1.1 1n the
17 of"41n'~ oour.. of bue1M", I' vlll .. .&1.. pnvioudy .pproT~
U ~ U. 'l'r\&I1:e1 aM thi. coUJ't.
U IT II 10 O~IRID. ROB1N \.. R\B\1T
20 I)A't'EDI M4YU_
1tQ»¡tI If. a+au:r ,
n . UltI'l'1I> nATU ~ .TOÞGt
. .
U
U
u
as
-16
a7
,II ....
"'......""\IDÞ~...,
-I-
11/0--;1'1
'.
_._..._..._.__._."--_.,""_.._---~ --
COUNCIL AGENDA STATEMENT
Item No. Ir
Meeting Date 2/25/97
ITEM TITLE: Public Hearing - Ordinances Adopting the Amended
and Restated Otay Ranch Pre-Annexation Development
Agreements Between:
A) #.t'4r~SNMB, Ltd., and the City of Chula Vista;
B) # ~ 1~/Jewels of Charity, and the city of Chula
Vista;
C) # ..1741.1stephen and Mary Birch Foundation, and
the city of Chula Vista;
D) #:11"-~regory T. smith and Georgiana R. smith,
and the C1ty of Chula vista
E) #~nited Enterprises, Ltd. and the city of
Chula V1S a
.UBKI.... BY' Deputy city Manager ~
Planning Director
REVIEWED BY: City Manage~{j''ð: --r 4/5ths Vote: No
The purpose of this item is to pr ent five restated pre-annexation
development agreements for properties on the Otay Ranch. These are
all agreements that the Planning commission and Council previously
adopted but which expired due to a provision of the prior
agreements stating that they all became null and void if the
annexation did not occur by January 1, 1997. The annexation is
still pending.
RECOMMENDATION: Approve the Amended and Restated Development
Agreements Ordinances
BOARD/COMMISSION
RECOMMENDATION: At their 2/19/97 meeting, the Planning
commission recommended approval of all five
agreements by a 4-0 vote (two members were
absent and there is one vacancy).
BACKGROUND:
In May, 1996 the city of Chula vista entered into a Property Tax
and Otay Landfill Agreement with the County of San Diego as a pre-
requisite for annexation of the western parcel of the otay Ranch.
The Landfill Agreement required that Nuisance Easements be provided
to the County for properties within 1,000 feet of the landfill.
satisfaction of this provision was a LAFCO condition of annexation.
1"'-/
. ~.---._-.-..---.-_._-~-'---------.--
Unfortunately, the easements have not yet been perfected to the
satisfaction of the County and thus the annexation has not yet
occurred. During the same time period, in order to elicit property
owner support for the annexation, the City agreed to enter into
pre-annexation development agreements with the property owners.
Obviously there were other benefits to both the City and the
property owners associated with entering into the agreements as
well. In any event, the section 3, ~, of the agreements
contained a provision that if the annexation was not accomplished
by January 1, 1997, then the agreements would expire. At the time,
which was last summer, it was contemplated that the annexation
would have reasonably occurred by now. since it hasn't, it is the
city's intent to reinstate the agreements with a new term provision
and a couple of other changes. In all other regards, the prior.
agreements are simply proposed for readoption.
Environmental review for the development agreements was covered
with the environmental review approved for the Otay Ranch General
Development Plan adopted by the city on October 28, 1996.
DISCUSSION
For Council's information the benefits to the parties are.
reiterated below:
1. Benefits to the Parties
a. Benefits to the citv
* Developer support for annexation of the Otay Parcel
to Chula vista.
* Assurance that the Developer will dedicate needed
R.O.W. for SR #125.
* Granting of landfill nuisance easements to the
County for the Otay Landfill Buffer Area.
* provision of property for the Chula vista Greenbelt
open space areas and MSCP compliance.
* Assurance of adequate public facilities when
needed, and in some cases development of excess
capacity or facilities sooner than required.
* Compliance with the city's Growth Management
Program.
b. Benefits to the DeveloDer
* vests permitted land uses, density, intensity of
use per the approved General Development Plan and
timing and phasing of development per Future
Discretionary Approvals (i. e. , SPA Plan and Public
/S-.J.
--..---.-..."..- --.-. ---------.- ..._-_._._--_._-_._-~-~--_._---_.---
Facility Finance Plan) and in compliance with the
City's Growth Management Ordinance.
* Grants the owner certainty to proceed with the
development of the property in general accordance
wi th today' s ordinances, rules, regulations and
standards or as they may be changed in the future
citywide or east of 1-805.
* Allows for fee credits and/or reimbursement
mechanisms for extraordinary facility improvements
or pioneering thereof and specifies that DIF fees
will be used to facilitate regional backbone
facilities.
* Allows the Developer to receive timely processing
on an equal basis with other Developers of Future
Discretionary Approvals and allows those approvals
to be covered by these Agreements.
Description of the Chanqes to the Aqreement Terms
The changes to the development agreement are limited to one overall
change affecting all of the agreements (Term), and two other
provisions which are needed because the recommended language is in
a couple of the agreements but not all (default provisions), and
finally a provision for the United Enterprises Agreement having to
do with subordination by them of the nuisance easement for the
landfill (the only remaining step left on the annexation) with the
second reading of the development agreement. The link between the
subordination and the second reading of the agreement would also
pertain to the SNMB, Jewels of Charity, stephen and Mary Birch
Foundation and Greg Smith Agreements. The Village Development
Agreement already contained such a provision.
The term change obviously has to do with replacing the prior
expiration date of January 1, 1997 with a new date. The new date
is July 1, 1997. The LAFCO approval action occurred on July 1,
1996 and is good for one year, thus the July, 1997 term.
The second change states that in the event of a default by either
party the parties shall have the remedies of specific performance,
mandamus, injunction, and other equitable remedies without having
to first prove there is an inadequate remedy at law. In addition,
for the city's protection, language is included that neither party
shall have the remedy of monetary damages against the other. This
provision is included in all of the agreements except those that
were adopted last summer and have not undergone any subsequent
changes; namely, united Enterprises and Greg smith.
The third change stipulates that United Enterprises deliver a
subordination agreement to the city prior to the second reading of
their development agreement or by March 4, 1997. otherwise the
/5" .3
_._._-,_.._--'.._--~---_.._--_......._---~-_._--_._-----.------~._-
Development Agreement is automatically terminated. If there is no
second reading of the Agreement, the City shall return said
subordination agreement to the Developer. This ensures that both
parties will receive the guarantees they need to facilitate the
annexation and approval of the Development Agreement. As mentioned
previously, this would tie to the SNMB Ltd., Jewels of Charity,
stephen and Mary Birch Foundation and Greg smith Agreements
becoming effective as well. In addition, the City would agree to
carry the Agreements forward from First to Second Reading without
change. This would normally be the case in any event.
Fiscal ImDact
It isn't possible to quantify the value of the Agreement to the
city or the other parties. Through annexation and the related
property tax, sales tax, etc. , the city will realize significant
benefits. Likewise, the Developers benefit from the vesting and
certainty provided by the Property in accordance with current and
future approvals.
I~¥
--_.._-~-_. - --,-- ------ ~.~-_._-_._----_._---
02/19/97 17:23 ft213 612 2318 ù il S LA raJ002
ri]RRICK, HERRINGfON
&. SUTCLIFFE LLP
February 19, 1997
DfmtDlal
(213) 612-2375
Mr.. Oc:mge Krempl
Deputy City 'UalUlger
City of ChuIa VJSta
276 Fourth Avenue
. Chula VISIa, CaIifomia 92010
Re: Otay Ranch PIc-ÁIIJ:If'!dtinn Dcvdopmcnt ~hI -
~h"" & Ma1J' Rircl! Fonnl1atinn. Tnc. and Jewels of C'!harlt;y. Inc.
Dear Mr. Krempl:
This oßicC has beenanthorlzed to send this letter to you on bebaIf of the
Stephen & Mary Bb:ch Fonn",,"nn, Inc. and Jewe1s of Cbarlty, Inc., with rc.spect to the.Pre-
AnPCTatinu Development Agreements proposed to be exooltM by such .....titüo.: and the City
of Chula Vista conœming the P!uþCIty owned by such entities at OIay Ranch,
Nci.tber the Stephea & Mary Birch FoI,nilatinn. Inc. nor Jewe1s of Charlty,
Juc. will be repns nlM at today'. ~..g of the Chu1a Vuta pJann¡l'Ig Commi""'øn that will
eonaitl.... such agree"""'hI; it is our UDderBIaDdiDg that both Uni!IId BntapIisea, Ltd. and
SNMB Limited Partnership will be .~ymv~ at such meeting. Please be advised that wblle
the forms of the agr-m....hI to be e.m:uted by the Stephen It Mary Bb:ch Foun<IIItinn, Inc.
and by Jewels of Cbarlty, Inc. that were se:ot to Mr. Chris Patek are geœra1ly acœp1ab1e to
such .....titi...... such .....lili"'s COIICIII in any comments that may be given to you by the
representalives ofUDited Entetprlses. Ltd. and SNMB Limited Parmer!hip, In paIIicu1ar,
but without 1¡m¡ti~ the foregoing, it is critical to both the Stephen & Mary Birch
F<,mMatinn., Inc. and Jewels of Cbarlty, Inc. that the anlV"Dltino. by the City of Chn1a Vista
not occur pñor to the second reading and adoption of an of the deveIopmen.t agreements by
the Chula VISta City Cooncil. If for some muon the development agreements are not finally
adopted by the Chula VJSta City CouncIl, or if for any reason any xequired action by the
County of San Diego does not occur, tbc:n ,...ther the Stephen & Mary BiIch Foo...m.tinn.
Inc. nor Jewe1s of Charity. Inc. consent to the annexation of thcirrelpCCtive portions of the
0Iay Ranch into the 'City of Chula VJSta.
Sincerely,
/~¿e~
777 sOuth FI¡ucma Street . SuIte 3200 . tDs.Angrlts. CaW'ami& 90017·5832
1i:kpboDc 113 629 2.020 . facåmlIe. 2.13 612 2199
N<w1bllt . ~ . Sclnl'nln<isœ' 5Œmn\ldL:y . SiIlflll"R' \\IoIt..,...,o.c.
I.At·163I63.1
1~5'
..-.,....,-------..-...-
ORDINANCE NO. .1. '7''1
AN ORDINANCE OF THE CITY OF CHULA VISTA
ADOPTING THE RESTATED AND AMENDED PRE-
ANNEXATION DEVELOPMENT AGREEMENT WITH SNMB,
LTD.
WHEREAS, on August 6, 1996, the city council approved
Ordinance 2688 on first reading, which adopted the Pre-Annexation
Development Agreement between the City of Chula vista and SNMB,
Ltd. ("previously Negotiated Agreement"); and
WHEREAS, the Previously Negotiated Agreement was not
executed by SNMB, Ltd. so no second reading of the ordinance was
held and therefore no agreement is currently in existence; and
WHEREAS, there is now a mutual desire by the City and
SNMB, Ltd. to restate and amend the Previously Negotiated Agreement
in order for the Previously Negotiated Agreement to become
effective ("Restated Agreement"); and
WHEREAS, on February 19, 1997, the Planning commission
reviewed the Restated Agreement and voted to approve same; and
NOW, THEREFORE, the City Council of the city of Chula
vista ordains as follows:
SECTION I: The city Council does hereby adopt, amend and
restate the Restated and Amended Pre-Annexation Development
Agreement with SNMB, Ltd. on file in the office of the City Clerk
as Document No. .
SECTION II: The Mayor of the city of Chula vista is
hereby authorized and directed to execute said Restated Agreement
for and on behalf of the City of Chula vista.
SECTION III: This ordinance shall take effect and be of
full force on the effective date of annexation as set forth in the
attached Restated Agreement.
Presented by Approved as to form by
rJv-.- ~~~ ~~
George Krempl, Deputy City John M. Kaheny, City A torney
Manager
C:\or\sn.b
IS'A -I
..--....-^.--.- . ,-- -- _ ---.--,-----.-.------. -----...
AMENDED AND RESTATED
PRE-ANNEXATION DEVELOPMENT AGREEMENT
THIS AMENDED AND RESTATED PRE-ANNEXATION DEVELOPMENT AGREEMENT
(" Agreement") is made effective on the date hereinafter set forth
below by and among the CITY OF CHULA VISTA ("city") and SNMB, LTD.
("SNMB") , who agree as follows:
1. RECITALS. This Agreement is made with respect to the
following facts:
1.1 OWner. The owners of the properties subject to this
Agreement (hereinafter collectively referred to as "Owner" or as
"Developer") are as follows:
1.1.1 SNMB is the owner of approximately 1,827
acres of undeveloped real property ("the SNMB Property") in
the unincorporated area of the County of San Diego ("County"),
described in Exhibits "A" and "E, attached hereto and incorpo-
rated herein by this reference.
1.1.2 The SNMB Property (the "Property") is part
of a larger area commonly known, and referred to herein, as
"the Otay Valley Parcel of otay Ranch." Portions of SNMB
Property are located in Villages 2, 3, 4, 7, 8, 9 and Planning
Areas 12 and 18B of the Otay Ranch Property.
1.2 citv. The City of Chula vista is a municipal
corporation with Charter city powers incorporated within the
County.
1.3 Code Authorization and Acknowledaments.
1.3.1 city is authorized pursuant to its
charter, self-rule powers and California Government Code
sections 65864 through 65869.5 to enter into development
agreements for the purpose of establishing certainty for both
city and owners of real property in the development process.
1.3.2 Government Code section 65865 expressly
authorizes a city to enter into a development agreement with
any person having a legal or equitable interest in real
property in unincorporated territory within that city's sphere
of influence for the development of property as provided in
the Development Agreement Law; provided that the agreement
shall not become operative unless annexation proceedings
annexing the property to the city are completed within the
time specified by the agreement.
1.3.3 city enters into this Agreement pursuant
to the provisions of the California Government Code, its home-
rule powers, and applicable city ordinances, rules, regula-
tions and policies.
-1- /.5'A' J.
--_..~.------"-,._.._.._.- - - _.._~--- _._.._--~-_._.,-----_._-_.
1.3.4 City and Owner intend to enter into this
agreement for the following purposes:
1.3.4.1 To assure adequate public facilities
at the time of development.
1.3.4.2 To assure development in accordance
with city's capital improvement plans.
1.3.4.3 To provide certainty to Owner in the
development approval process by vesting the permitted
use(s), density, intensity of use, and the timing and
phasing of development as described in the Development
Plan, which is defined in Paragraph 2.4 of this Agree-
ment, in exchange for Owner's entering into this Agree-
ment and for its commitment to support the Annexation
described below.
1.3.4.4 To permit achievement of city growth
management goals and objectives.
1.3.4.5 To allow City to realize significant
economic, recreational, park, open space, social, and
public facilities benefits for the City, some of which
are of regional significance.
1.3.4.6 To provide and assure that the city
receive sales tax revenues, increase in the property tax
base, residential housing and other development, sewer,
water and street facilities.
1.3.4.7 To provide and assure that the City
receives public facilities in excess of project generated
impacts and such facilities shall be of supplemental
size, number capacity or length, which shall be provided
earlier than could be provided either by funds from the
City or than would strictly be necessary to mitigate
project related impacts at any development phase.
1.3.4.8 To provide the city the developer's
support to secure annexation of the lands depicted in
Exhibit "B".
L 3 . 4 . 9 To enable the city to secure title to
the land within the boundaries of the Property necessary
to complete the Chula vista greenbelt system as defined
in the Chula vista General Plan.
L 3.4.10 To assure the city that the Developer
will dedicate rights-of-way to the City for SR-125, a
route which, when constructed, will substantially
alleviate congestion on 1-805 and 1-5, and also will
facilitate the economic development of Chula vista.
-2- )5A-:3
n' ...~ _ _ _.~..,_,~~ ___._
1.3.4.11 Because of the complexities of the
financing of the infrastructure, park, open space, and
other dedications, and regional and community facilities,
and the significant nature of such facilities, certainty
in the development process is an absolute necessity. The
phasing, timing, and development of public infrastructure
necessitate a significant commitment of resources,
planning, and effort by Owner for the public facilities
financing, construction, and dedication to be success-
fully completed. In return for Owner's participation and
commitment to these significant contributions of private
resources for public purposes and for Owner's consent to
the Annexation described below, city is willing to
exercise its authority to enter into this Agreement and
to make a commitment of certainty for the development
process for the Property.
1.3.4.12 In consideration of Owner's agreement
to provide the significant benefits and for Owner's
consent to the Annexation described below, City hereby
grants Owner assurances that it can proceed with develop-
ment of the Property in accordance with City's
ordinances, rules, regulations, and policies existing as
of the effective date of this Agreement subject to
section 5.2.1 below. Owner would not enter into this
Agreement or agree to provide the public benefits and
improvements described in this Agreement if it were not
for the commitment of city that the Property subject to
this Agreement can be developed in accordance with city's
ordinances, rules, regulations, and policies existing as
of the effective date of this Agreement subject to
section 5.2.1 below.
1.4 The Annexation. On July 1, 1996, the Local Agency
Formation Commission ("LAFCO") approved annexation of Sphere of
Influence Planning Area 1 "The Otay Parcel", Planning Area 2
"Inverted L" and the Mary Patrick Estate Parcel (see Attachment
"B") .
1.5 Sphere of Influence. On February 5, 1996 and July
1, 1996 the Local Agency Formation Commission approved the
inclusion of Planning Area 1, "The "Otay Parcel", into the city
Sphere of Influence (Sphere of Influence Planning Area 1 "the Otay
Parcel", Planning Area 2 "Inverted L" and the Mary Patrick Estate
Parcel - see Attachment "B").
1.6 Planninq Documents. On October 28, 1993, city and
County adopted the Otay Ranch General Development Plan/Subregional
Plan ("the GDP") which includes the Otay Ranch Village Phasing
Plan, Facility Implementation Plan, Resource Management Plan and
Service Revenue Plan, for approximately 23,000 acres of the Otay
Ranch, including the Otay Valley Parcel and the SNMB property.
-3- I.rA.~
____._'u _.~_.
1.7 Owner Consent. City desires to have the cooperation
and consent of Owner to include the property in the Annexation in
order to better plan, finance, construct and maintain the infra-
structure for the Otay Valley Parcel; and SNMB desires to give
their cooperation and consent, provided that they obtain certain
assurances, as set forth in this Agreement.
1.8 City Ordinance. , 199~1 is the
date of adoption by the city Council of Ordinance No. ;!-6&&
approving this Agreement. The ordinance shall take effect and be
in full force on the effective date of Annexation.
2. DEFINITIONS. In this Agreement, unless the context
otherwise requires:
2.1 "Annexation" means the proposed annexation of that
portion of the Otay Ranch into the city as depicted on Exhibit "0".
2.2 "city" means the City of Chula vista, in the County
of San Diego, State of California.
2.3 "County" means the County of San Diego, State of
California.
2.4 "Development Plan" means the GDP.
2.5 "GDP" means the General Development Plan/Subregional
Plan for the Otay Ranch, described in Paragraph 1.6, above.
2.6 "Owner" or "Developer" means the person, persons, or
entity having a legal and equitable interest in the Property, or
parts thereof, and includes Owner's successors-in-interest.
2.7 "Project" means the physical development of the
private and public improvements on the Property as provided for in
the Existing Project Approvals and as may be authorized by the City
in Future Discretionary Approvals.
2.8 "Property" means the real property described in
Paragraph 1.1.1.
2.9 The "Term" of this Agreement means the period
defined in Paragraph 3, below.
2.10 "Builder" means developer to whom Developer has sold
or conveyed property within the Property for purposes of its
improvement for residential, commercial, industrial or other use.
2.11 "CEQA" means the California Environmental Quality
Act, California Public Resources Code section 21000, et seq.
2.12 "City Council" means the city of Chula vista city
Council.
-4- 15'.19 '5'
-- ~-_. ._..__._----_._--_....._.._~----- -----~----~-----~-
2.13 "Commit" or "Committed" means all of the following
requirements have been met with respect to any pUblic facility:
2.13.1 For a public facility within the City's
jurisdictional boundaries and a responsibility of the develop-
er.
2.13 . 1. 1 All discretionary permits required of
the Developer have been obtained for construction of the
public facility; and
2.13.1.2 Plans for the construction of the
public facility have all the necessary governmental
approvals; and
2 . 13 . 1. 3 Adequate funds (i.e. , letters of
credit, cash deposits, performance bonds or land secured
public financing, including facility benefit assessments,
Mello-Roos assessment districts of similar assessment
mechanism) are available such that the City can construct
the public facility if construction has not commenced
within thirty (30) days of issuance of a notice to
proceed by the Director of Public Works, or construction
is not progressing towards completion in a reasonable
manner as reasonably deemed by the Director of Public
Works.
2.13.2 For a public facility within the City's
jurisdictional boundaries, but to be provided by other than
Developer.
2.13.2.1 Developer's proportionate share of
the cost of such public facility as defined in the
existing Project Approvals and Future Discretionary
Approvals has been provided or assured by Developer
through the payment or impositions of development impact
fee or other similar exaction mechanism.
2.13.3 For public facility not within City's
jurisdictional boundaries:
2.13.3.1 Developer's proportionate share of
the cost of such public facility as defined in the
existing Project Approvals and Future Discretionary
Approvals has been provided for or otherwise assured by
Developer to the reasonable satisfaction of the Director
of Public Works.
2.14 "Development Impact Fee (DIF)" means fees imposed
upon new development pursuant to the City of Chu1a vista
Development Impact Fee Program, for example, including but not
limited to the Transportation Development Impact Fee Program, the
Interim SR-125 Development Impact Fee Program, the salt Creek Sewer
DIF and the Public Facilities DIF.
-5- 1.5'1I'¿,
-~._..---~... ...-.--,..-.----..--....--.----..'"
2.15 "Existing Project Approvals" means all discretionary
approvals affecting the Project which have been approved or
established in conjunction with, or preceding, the effective date
consisting of, but not limited to the GDP, the Chula vista General
Plan, the otay Ranch Reserve Fund Program adopted pursuant to
Resolution 18288, and the Phase I and II Resource Management Plan
(RMP), as may be amended from time to time consistent with this
agreement.
2.16 "Final Map(s)" means any final subdivision map for
all or any portion of the Property other than the Superblock Final
Map ("A" Maps).
2.17 "Future Discretionary Approvals" means all permits
and approvals by the City granted after the effective date and
excluding existing Project Approvals, including, but not limited
to: (i) grading permits; (ii) site plan reviews; (iii) design
guidelines and reviews; (iv) precise plan reviews; (v) subdivisions
of the Property or re-subdivisions of the Property previously
subdivided pursuant to the Subdivision Map Act; (vi) conditional
use permits; (vii) variances; (viii) encroachment permits;
(ix) Sectional Planning Area plans; (x) Preserve Conveyance Plan
and (xi) all other reviews, permits, and approvals of any type
which may be required from time to time to authorize public or
private on- or off-site facilities which are a part of the Project.
2.18 "Planning Commission" means the Planning Commission
of the City of Chula vista.
2.19 "Preserve Conveyance Plan" means a plan that will,
when adopted, set forth policies and identify the schedule for
transfer of ~ land and/or fees to be paid to insure the orderly
conveyance of the Otay Ranch land to the Preserve Owner Manager.
The purpose of the plan is to fulfill the obligations to convey
resource sensitive land, per the criteria contained in the phase I
and II Resource Management Plans and to mitigate environmental
impacts of the otay Ranch Project.
2.20 "Public Facility" or "Public Facilities" means those
public facilities described in the otay Ranch Facility
Implementation Plan.
2.21 "Subdivision Map Act" means the California
Subdivision Map Act, Government Code section 66410, et seq., and
its amendments as may from time to time be adopted.
2.22 "Substantial Compliance" means that the party
charged with the performance of a covenant herein has sufficiently
followed the terms of this Agreement so as to carry out the intent
of the parties in entering into this Agreement.
2.23 "Threshold" means the facility thresholds set forth
in the City's Municipal Code section 19.19.040.
-6- /5"¿'7
-'-'" ._..~- ,_...--~._...- ---,-----...- -~._~--~--------~.,."--
3. TERM. This Agreement shall become effective as a
development agreement upon the effective date of the Annexation
("the Effective Date"); provided, however, that if the Annexation
does not occur on or before Julv January 1, 1997, this Agreement
shall be null and void unless the annexation Droceedinas have been
extended bv LAFCO. If the annexation Droceedinas have been
extended. this Aareement shall become effective UDon the effective
date of such Annexation: Drovided however. if the annexation does
not occur bv the end of such extension(s). this Aareement shall
become null and void. Any of the foregoing to the contrary
notwithstanding, from the date of the first reading of the
ordinance approving this Agreement, and unless or until this
Agreement becomes null and void, Owner shall be bound by the terms
of Paragraph~. The Term of this Agreement for purposes other than
Paragraph ~ shall begin upon the Effective Date, and shall continue
for a period of twenty (20) years ("the Term"). The Term shall
also be extended for any period of time during which issuance of
building permits to Owner is suspended for any reason other than
the default of Owner, and for a period of time equal to the period
of time during which any action by city or court action limits the
processing of future discretionary approvals, issuance of building
permits or any other development of the Property consistent with
this Agreement.
4. OWNER CONSENT TO ANNEXATION. Owner hereby consents to
and shall cooperate with the applications of city to declare that
the Otay Valley Parcel is within City's sphere of influence and to
annex the Otay Valley Parcel to the City; provided, however, that
Owner may withdraw such consent and withhold further cooperation if
the city, prior to the Effective Date, adopts rules, regulations,
ordinances, pOlicies, conditions, environmental regulations,
phasing controls, exactions, entitlements, assessments or fees
applicable to and governing development of the Property which are
inconsistent with, or render impractical development of the
Property according to, the Development Plan or the additional
commitments of City set forth in Paragraphs 5.1.1 through 5.1.8,
below. Owner also agrees not to challenge the annexation of the
Otay Valley Parcel into the City.
4.1 The DeveloDer understands and aarees that this
Aareement shall become effective and valid onlY UDon the
Effective Date of the annexation Droceedinas. as more fullY
described in DaraaraDh 3 of this Aareement. DeveloDer further
understands that as a condition Drecedent to the comDletion of
annexation Droceedinas. and this Aareement becomina effective.
certain DrODertv owners such as SNMB. Ltd.. are reauired to
Drovide certain easements and subordination aareements
satisfactory to the County. DeveloDer aarees that the city's
second readina of the Ordinance aDDrovina this Aareement shall
not occur unless and until said subordination aareements have
been acceDted bv the Countv. No terms of this Aareement shall
be sub;ect to reneaotiation between the first and second
readina of the ordinance aDDrovina this Aareement exceDt bv
mutual consent of the Darties to this Aareement.
-7- lfif-r
._----".. .~-""
5. VESTED RIGHTS. Notwi thstanding any future action or
inaction of the city during the term of this Agreement, whether
such action is by ordinance, resolution or policy of the City,
Owner and Developer shall have a vested right, except as may be
otherwise provided in this section 5, to construct the Project in
accordance with:
5.1 Existing proj ect Approvals, subj ect to the following
requests for modifications if approved by the City:
5.1.1 city shall reasonably consider in its
discretion and with proper environmental review, a request to
increase the residential density of Villages 2, 4, and 8, up
to the number of residential units provided in Village 3 by
the County adopted GDP.
5.1. 2 city shall reasonably consider in its
discretion and with proper environmental review a request to
change the primary land use designation for Village 3 from
Industrial to commercial, recreational, visitor-serving, and
some residential uses in addition to the Industrial use. The
exact acreages of the residential, industrial, commercial, or
other uses, shall be agreed upon and set forth in a general
plan amendment.
5.1.3 If the interchange improvements at otay
Valley Road and I-805 are needed to serve the Project, the
City will hold appropriate hearings to consider an amendment
to its Transportation Phasing Plan (TPP) and Development
Impact Fee (DIF) Program to include said improvements as may
be deemed appropriate by the City to accommodate the project
phasing. The city agrees to reasonably cooperate and work
with CALTRANS to complete plans for said interchange improve-
ment.
5.1.4 ci ty shall initiate contact and diligently
pursue discussions with the County of San Diego and the city
of San Diego to determine the number, scheduling and financing
of the otay River road and bridge crossings.
5.1. 5 city shall allow the owner for purposes of
processing entitlements to proceed with planning of the
Property on a first come first served basis, with other
properties in the area of the Annexation. In addition, if
necessary the City shall, with proper environmental review,
consider in its discretion an amendment to the Village Phasing
Plan to facilitate the planning and development of the
properties covered by this Agreement.
5.1.6 To the extent any of the foregoing changes
are embodied in the Development Plan or the rules, regula-
tions, ordinances, policies, conditions, environmental
regulations, phasing controls, exactions, entitlements,
assessments, and fees applicable to and governing development
of the Property, whether adopted before or after the Effective
-8- If A .. ,
- - .---- - --.---".---"..---- ---
Date, such changes shall be deemed applicable to the Property
without change to this Agreement.
5.1. 7 city shall diligently process any amend-
ments, applications, maps, or other development applications.
5.1. 8 City shall diligently process and reason-
ably consider in its discretion with proper environmental
review a request to expand the development areas of Villages
2, 3, 4 and 8 in the event future environmental studies
indicate that areas once considered environmentally con-
strained can be developed without significant, unmitigable
environmental impacts.
5.1.9. city may make such modifications or amend-
ments to the Existing Project Approvals/Future Discretionary
Approvals, as may be ordered by a court of competent jurisdiction
in an action in which the Developer is a party or has had an
opportunity to appear or has been provided notice of such action by
the city.
5.2 DeveloDment of ProDertv. The development of the
Property will be governed by this Agreement and Existing Project
Approvals and such development shall comply and be governed by all
rules, regulations, policies, resolutions, ordinances, and
standards in effect as of the Effective Date subject to the
provisions of section 5.2.1 below. The city shall retain its
discretionary authority as to Future Discretionary Approvals,
provided however, such Future Discretionary Approvals shall be
regulated by the Existing Project Approvals, this Agreement, and
City rules, regulations, standards, ordinances, resolutions and
policies in effect on the Effective Date of this Agreement and
subject to section 5.2.1.
Notwithstanding the foregoing, the city may make such changes to
the City's Growth Management Ordinance applicable to the Project as
are reasonable and consistent with the purpose and intent of the
existing Growth Management Ordinance and which are generally
applicable to all private projects citywide or east of I-80S or
within a specific benefit, fee or reimbursement district created
pursuant to the California Government Code.
5.2.1 New or Amended Rules. Reaulations.
Policies. Standards. Ordinances and Resolutions. The city may
apply to the Project, including Future Discretionary Approv-
als, new or amended rules, laws, regulations, policies,
ordinances, resolutions and standards generally applicable to
all private projects east of I-80S or within a specific
benefit fee or reimbursement district created pursuant to the
California Government Code. The application of such new
rules, or amended laws, regulations, resolutions, policies,
ordinances and standards will not unreasonably prevent or
delay development of the Property to the uses, densities or
intensities of development specified herein or as authorized
by the Existing Project Approvals. The City may also apply
-9- Jf ¡I '/"
.--- -_...._-~~._---_.._-,_...- -------------..-
changes in City laws, regulations, ordinances, standards or
policies specifically mandated by changes in state or federal
law in compliance with section 13.3 herein.
5.2.2 Developer may elect with city's consent,
to have applied to the project any rules, regulations,
policies, ordinances or standards enacted after the date of
this Agreement. Such an election has to be made in a manner
consistent with section 5.2 of this Agreement.
5.2.3 Modifications to Existinq Proiect
Approvals. It is contemplated by the parties to this
Agreement that the city and Developer may mutually seek and
agree to modifications to the Existing Project Approvals.
Such modifications are contemplated as wi thin the scope of
this Agreement, and shall, upon written acceptance by all
parties, constitute for all purposes an Existing Project
Approval. The parties agree that any such modifications may
not constitute an amendment to this Agreement nor require an
amendment to the Agreement.
5.2.4 Future Discretionarv Approvals. It is
contemplated by the parties to this Agreement that the City
and Developer may agree to Future Discretionary Approvals. The
parties agree that any such Future Approvals may not consti-
tute an amendment to this Agreement nor require an amendment
to the Agreement.
5.3 Dedication and Reservation of Land for Public
Purposes. Except as expressly required by this Agreement or the
Existing Project Approvals and Future Discretionary Approvals
(excepting dedications required within the boundaries of any parcel
created by the subsequent subdivision of the Property as required
by the Subdivision Map Act), no dedication or reservation of real
property within or outside the Property shall be required by City
or Developer in conjunction with the Project. Any dedications and
reservations of land imposed shall be in accordance with Section
7.2 and section 7.8 herein.
5.4 Time for Construction and Completion of Proiect.
Because the California Supreme Court held in Pardee Construction
Companv v. Citv of Camarillo (1984) 27 Cal.3d 465, that the failure
of the parties to provide for the timing of development resulted in
a later-adopted initiative restricting the timing of development to
prevail over such parties' Agreement, it is the intention of the
parties to this Agreement to cure that deficiency by specifically
acknowledging that timing and phasing of development is completely
and exclusively governed by the Existing Project Approvals,
including the Chula Vista Growth Management Ordinance. The purpose
of the Chula vista Growth Management Ordinance is to "control the
timing and location of development by tying the pace of development
to the provision of public facilities and improvements to conform
to the City's threshold standards." (Municipal Code Section
19.09.010A.7) The findings in support of the Growth Management
Ordinance conclude that the ordinance "does not affect the number
-10- I5'A'//
~-_.- ^_."..._----_..,--_._-~-
of houses which may be built." (Municipal Code section
19.09.010B.3) Therefore, the parties acknowledge that the Chula
vista Growth Management Ordinance completely occupies the topic of
development timing and phasing and expressly precludes the adoption
of housing caps, urban reserves or any other means by which the
rate of development may be controlled or regulated. The City
agrees that the Developer shall be entitled to, apply for and
receive all permits necessary for the development of property,
consistent with the Growth Management Ordinance, Existing Project
Approvals, Future Discretionary Approvals and this Agreement.
5.5 Benefit of Vestinq. Nothing in this Agreement will
be construed as limiting or impairing Developer's vested right, if
any, to proceed with the development and use of the Property
pursuant to the Federal and state Constitutions, and pursuant to
statutory and decisional law.
5.6 Vestinq of Entitlements. All rights conferred by
this Agreement vest with the Effective Date hereof. The approval
of Future Discretionary approvals shall not be deemed to limit
Developer's rights authorized by this Agreement, and once such
approvals are obtained they shall be vested to the same extent as
the Existing Project Approvals.
6. DEVELOPMENT PROGRAM.
6.1 processinq of Future Discretionarv Approvals. City
will accept and diligently process development applications and
requests for Future Discretionary Approvals, or other entitlements
with respect to the development and use of the Property, provided
said applications and requests are in accordance with this
Agreement. City costs for processing work related to the Project,
including hiring of additional city personnel and/or the retaining
of professional consultants, will be reimbursed to city by
Developer.
6.2 Lenqth of Validitv of Tentative Subdivision Maps.
Government Code Section 66452.6 provides that tentative subdivision
map{s) may remain valid for a length up to the term of a Develop-
ment Agreement. The City agrees that tentative subdivision map(s)
for the property shall be for a term of six (6) years and may be
extended by the City Council for a period of time not to exceed a
total of twenty (20) years and in no event beyond the term of this
Agreement.
6.3 Pre-Final Map Development. If Developer desires to
do certain work on the Property after approval of a tentative map
(for example, grading) prior to the recordation of a final map, it
may do so by obtaining a grading and/or other required approvals
from the city which are authorized by the city prior to recordation
of a final map. Such permit shall be issued to Developer, or its
contractor, upon Developer's application, approval, and provided
Developer posts a bond or other reasonably adequate security
required by city in an amount to assure the rehabilitation of the
land if the applicable final map does not record.
-11- J5A'J~
~---_. --_._---_.~.._.._--_._._.._---_.-
6.4 Final MaDS.
6.4.1 "A" MaDs and "B" MaDs. If Developer so
elects, the City shall accept and process a master subdivision
or parcel map ("A" Map) showing "Super Block" lots and
backbone street dedications. "Super Block" lots shall be
consistent with the GDP and subsequent Sectional Plan Area
plans, and shall not subdivide land into individual single-
family lots. All "Super Blocks" created shall have access to
dedicated pUblic streets. The City shall not require improve-
ment plans in order to record a final map for any "A" Map
lots, but the City shall require bonding for the completion of
backbone facilities prior to recording in an amount to be
determined by the city. Following the approval by City of any
final map for an "A" Map lot and its recordation, Developer
may convey the "Super Block" lot. The buyer of a "Super
Block" lot shall then process final improvement plans and
grading plans and a final map ("B" Map) for each "Super Block"
lot which the city shall process. The "B" Maps shall be in
substantial conformance with the related approved "A" Map. In
the instance of the multi-family dwelling unit areas, a
separate tentative subdivision map may be submitted to the
City and the "B" Map(s) for these areas may be submitted to
the city after the City Planning Commission approves said
tentative subdivision map.
6.4.2 Recordation of Final Subdivision MaD in
Name of Builder or Third Partv. Developer may, if it so
elects, convey to a Builder or third party any "super block"
lot(s) shown on the recorded Superblock Final Map. In such
case, the Builder or third party will (i) process any neces-
sary final improvement and grading plans and a final map for
each such "super block" lot, which map city shall accept and
process as subsequent phases in a multi-phase project, (ii)
enter into a subdivision improvement agreement with City with
respect to the subdivision improvements which are required for
such super block lot, and (iii) provide security and insurance
satisfactory to City for the completion of the subdivision
improvements.
6.4.3 Recordation of Final Subdivision MaD in
DeveloDer's Name: Transfer of Obliqations Under Subdivision
ImDrovement Aqreement (s) . If Developer so elects, it may
defer the conveyance of any super block lot to a Builder or
third party until after the final map of such super block lot
has been recorded. If Developer elects to proceed in this
manner, it will enter into City's standard subdivision
improvement agreement(s) with City for the improvements
required as a condition to the approval of such map(s). Upon
sale to a Builder or third party, if such Builder or third
party assumes Developer's obligations under the improvement
agreement and provides its own security and insurance for the
completion of the subdivision improvements as approved by the
City, Developer shall be released from liability under the
-12- I5"A'/~
_.--_.~~_._----_._.._----_.__.-
subdivision improvement agreement(s) and Developer's security
shall be released.
6.4.4 Transfer of Riqhts and Obliqations of
Development. Whenever Developer conveys a portion of the
Property, the rights and obligations of this Agreement shall
transfer in accordance with section 15 herein.
7. DEVELOPER'S OBLIGATIONS.
7.1 Condition to Developer's Obliqations to Dedicate. Fund or
Construct Public Facilities. Developer agrees to develop or
provide the public improvements, facilities, dedications, or
reservations of land and satisfy other exactions conditioning the
development of the Property which are set forth hereinbelow. The
obligations of the Developer pursuant to this Agreement are
conditioned upon: (i) the City not being in default of its obliga-
tions under this agreement; and (ii) the City not preventing or
unreasonably delaying the development of the property; and (iii)
the Agreement having not been suspended in response to changes in
stàte or federal law; and (iv) the city's obligations having not
been suspended pursuant to section 13.2.
7.2 Dedications and Reservations of Land for Public Purposes.
The policies by which property will be required to be reserved,
dedicated or improved for public purposes are identified in the
Existing proj ect Approvals. A more precise delineation of the
property to be preserved, dedicated or improved for public purposes
shall occur as part of Future Discretionary Approvals, consistent
with the Existing Project Approvals.
7.2.1 Dedication of Land for SR 125. Developer agrees
to dedicate land for right-of-way purposes and property owned
by the Developer that is reasonably necessary for the SR-125
configuration selected by CALTRANS and depicted: (1) general-
ly in the GDP or (2) that alignment identified as the Brown
Field Modified Alignment which is generally depicted in the
SR-125 draft Environmental Impact Report/Statement and as
revised in the Final Environmental Impact Report/Statement to
respond to engineering, design, environmental and similar
constraints.
Notwithstanding the foregoing, should CALTRANS not select
alignment (1) or (2) above, the Developer shall dedicate land
for any such alternate SR-125 configuration only on the
condition that the city agree to relocate any land uses
displaced by such alternate Freeway alignment.
city agrees that in the event city shall negotiate with
California Transportation Ventures (CTV) or other toll road
builder any participation or advantages to city that City
shall share such rights with subsequent owner/resident of the
property.
-13- IfA'/Ý
-..,-.....,...--,.-... ..........-.-----.....--..-.-
7.2.2 Landfill Nuisance Easements. The parties to this
Agreement understand and acknowledge that the "Landfill
Nuisance Easement" is an integral part of this Agreement.
Developer shall deliver to the City "Landfill Nuisance
Easements" in the form attached as Exhibit "c" and satisfacto-
ry to the County of San Diego prior to the second reading of
the Ordinance approving the Agreement. If there is no second
reading of this Agreement, the City shall return said ease-
ments to the Developer. If the County Board of Supervisors
does not accept or approve said easements, this Agreement
shall be automatically terminated with neither party bearing
any liability hereunder.
7.2.3 city shall reasonably consider in its discretion
and with proper environmental review, a request to relocate
all land uses which may be eliminated as a result of an
unknown relocation of SR-125 from the route currently depicted
in the GDP.
7.3 Growth Manaaement Ordinance. Developer shall commit the
public facilities and city shall issue building permits as provided
in this section. The City shall have the right to withhold the
issuance of building permits any time after the City reasonably
determines a Threshold has been exceeded, unless and until the
Developer has mitigated the deficiency in accordance with the
City's Growth Management Ordinance.
Developer agrees that building permits may be withheld where the
public facilities described in the Existing Project Approvals/-
Future Discretionary Approvals required for a particular Threshold
have not been committed.
In the event a Threshold is not met and future building permit
issuance may be withheld, the notice provisions and procedures
contained in section 19.09 .100C of the Municipal Code will be
followed. In the event the issuance of building permits is
suspended pursuant to the provisions herein, such suspension shall
not constitute a breach of the terms of this Agreement by Developer
or city. Furthermore, any such suspension which is not caused by
the actions or omissions of the Developer, shall toll the term of
this Agreement as provided for in section 16.12 of this Agreement,
and suspend the Developer's obligations pursuant to this Agreement.
7.3.1 Reauired Condemnation. The city and Developer
recognize that certain of the public facilities identified in
the Existing Project Approvals/Future Discretionary Approvals
and required to comply with a threshold are located on
properties which neither the Developer nor the City has, or
will have, title to or control of. The City shall identify
such property or properties and at the time of filing of the
final map commence timely negotiations or, where the property
is within the city's jurisdiction, commence timely proceedings
pursuant to Title 7 (commencing with § 1230.010) of Part 3 of
the Code of Civil Procedure to acquire an interest in the
property or properties. Developer's share of the cost
-14- 15~ ~/..r
.-...---.... ,.--..-"---"..--- --~-
involved in any such acquisition shall be based on its
proportionate share of the public facility as defined in the
Existing Project Approvals/Future Discretionary Approvals.
Nothing in this Agreement shall be deemed to preclude the city
from requiring the Developer to pay the cost of acquiring such
off-site land. For that portion of the cost beyond the
Developer's fair share responsibility, the City shall take all
reasonable steps to establish a procedure whereby the develop-
er is reimbursed for such costs beyond its fair share.
7.3.2 Information Reaardina Thresholds. Upon
Developer's written requests of the City Manager, the City
will provide Developer with information regarding the current
status of a Threshold. Developer shall be responsible for any
staff costs incurred in providing said written response.
7.4 ImDrovements Reauired bv a Subdivision MaD. As may
be required pursuant to the terms of a subdivision map, it shall be
the responsibility of Developer to construct the improvements
required by a subdivision map. Where Developer is required to
construct a public improvement which has been identified as the
responsibility of another party or to provide public improvements
of supplemental size, capacity, number or length benefiting
property not within the subdivision, City sha 11 process a reim-
bursement agreement to the Developer in accordance with Article 6
of Chapter 4 of the Subdivision Map Act, commencing with Government
Code section 66485, and section 7.5, below.
7.5 Facilities Which Are the Obliaations of Another
Partv. or Are of Excessive Size. CaDacitv. Lenath or Number.
Developer may offer to advance monies and/or construct public
improvements which are the responsibility of another land owner, or
outside the city's jurisdictional boundaries, or which are of
supplemental size, capacity, number or length for the benefit of
land not within the Property. city, where requesting such funding
or construction of oversized public improvements, shall consider
after a public hearing, contemporaneous with the imposition of the
obligation, the formation of a reimbursement district, assessment
district, facility benefit assessment, or reimbursement agreement
or other reimbursement mechanism.
7.6 Pioneerina of Facilities. To the extent Developer
itself constructs (i.e. , "Pioneers") any public facilities or
public improvements which are covered by a DIF Program, Developer
shall be given a credit against DIFs otherwise payable, subject to
the city's Director of Public Works reasonable determination that
such costs are allowable under the applicable DIF Program. It is
specifically intended that Developer be given DIF credit for the
DIF Program improvements it makes. The fact that such improvements
may be financed by an assessment district or other financing
mechanism, shall not prevent DIF credit from being given to the
extent that such costs are allowed under the applicable DIF Program
-15- I5'A-/¿
'"_'·'___~____"'M.__..
7.7 Insurance. Developer shall name City as additional
insured for all insurance policies obtained by Developer for the
Project as pertains to the Developer's activities and operation on
the Project.
7.8 Other Land Owners. Developer hereby agrees to
dedicate adequate rights-of-way within the boundaries of the
Property for other land owners to "Pioneer" public facilities on
the Property; provided, however, as follows: (i) dedications shall
be restricted to those reasonably necessary for the construction of
facilities identified in the city's adopted public facility plans;
(ii) this provision shall not be binding on the successors-in-
interest or assignees of Developer following recordation of the
final "Super Block" or "A" Map; and (iii) the City shall use its
reasonable best efforts to obtain agreements similar to this
subsection from other developers and to obtain equitable reimburse-
ment for Developer for any excess dedications.
8. DEVELOPMENT IMPACT FEES.
8.1 Existinq Development Impact Fee Proqram Pavments.
Developer shall pay to the City a DIF, or construct improvements in
lieu of payment, for improvements which are conditions of a
tentative subdivision map upon the issuance of building permits (s) ,
or at a later time as specified by city ordinance, the Subdivision
Map Act, or Public Facility Financing Plan (PFFP). The DIF will be
in the amount in effect at the time payment is made and may only be
increased pursuant to section 8.6 herein.
8.2 Other Undeveloped Properties. The City will use its
reasonable best efforts to impose and collect, or cause the
imposition and collection of, the same DIF program on all the
undeveloped real properties which benefit from the provision of the
public facility through the DIF program, or provided as a condition
of Project Approvals.
8.3 Use of Development Impact Fee Proqram. The DIF
amounts paid to the City by Developer and others with respect to
the Area of Benefit sha 11 be placed by the city in a capital
facility fund account established pursuant to California Government
Code sections 66000-66009. The City shall expend such funds only
for the Projects described in the adopted fee program as may be
modified from time to time. The City will use its reasonable best
efforts to cause such Projects to be completed as soon as practica-
ble; however, the City shall not be obligated to use its general
funds for such Projects.
8.4 withholdinq of Permits. Developer agrees that City
shall have the right to withhold issuance of the building permit
for any structure or improvement on the Property unless and until
the DIF is paid for such structure or improvement.
8.5 Development Impact Fee Credit. Upon the completion
and acceptance by the city of any public facility, the city shall
immediately credit Developer with the appropriate amount of cash
-16- If A -I?
-----,-.. - -----------------^------...----.
credits ("EDUs") as determined by Developer and city. However, if
the improvements are paid for through an Assessment District, the
City shall credit the Developer with the appropriate number of
Equivalent Dwelling unit Credits (EDU's). Developer shall be
entitled to apply any and all credits accrued pursuant to this
subsection toward the required payment of future DIF for any phase,
stage or increment of development of the Project.
8.6 Modification of DeveloDment ImDact Fees. The
parties recognize that from time to time during the duration of the
Agreement it will be necessary for the City to update and modify
its DIF fees. Such reasonable modifications are contemplated by
the city and the Developer and shall not constitute a modification
to the Agreement so long as: (i) the modification incorporates the
reasonable costs of providing facilities identified in the Existing
Project Approvals; (ii) are based upon methodologies in substantial
compliance with the methodology contained in the existing DIF
programs; or other methodology approved by the City Council
following a public hearing; (iii) complies with the provisions of
Government Code sections 66000-66009.
8.7 Standards for Financinq Obliqations of Owner. In
connection with the development of the Property, the following
standards regarding the financing of public improvements shall
apply:
8.7.1 Owner shall pay its fair share for the
interchanges described in Paragraph 5. 1. 3 , based upon the
number of dwelling units or equivalent dwellings of develop-
ment allowed on the Property as compared to the total dwelling
units or equivalent dwelling units allowed on properties
served by such interchanges.
8.7.2 Owner shall participate in the DIF Program
for the Otay Valley Parcel with other owners in proportion to
the total dwelling units or equivalent dwelling units allowed
on the Property as compared with the total of such units
allowed on properties in that particular DIF or by some other
equitable methodology decided by the city Council.
8.7.3 The City shall diligently pursue the
requirements that the Eastern Territories' DIF requires
offsite third parties and adjacent jurisdictions to bear their
fair share of all otay River Valley crossings.
9. CITY OBLIGATIONS.
9.1 Urban Infrastructure. To the extent it is within
the authority of the City to provide, City shall accommodate urban
infrastructure to the project, consistent with Existing Project
Approvals. Where it is necessary to utilize City property to
provide urban infrastructure consistent with the Existing Project
Approvals, the city agrees to make such land available for such
uses, provided that the City if it so chooses is compensated at
fair market value for the property. To the extent that the
-17- 15',4 -II'
. -,.__._,~---_."._.- - .--.-
provision of urban infrastructure is within the authority of
another public or quasi-public agency or utility, the City agrees
to fully cooperate with such agency or agencies to accommodate the
urban infrastructure, consistent with Existing Project Approvals.
Urban infrastructure shall include, but not be limited to gas,
electricity, telephone, cable and facilities identified in the Otay
Ranch Facility Implementation Plan.
9.2 Sewer Capaci tv. The city agrees to provide adequate
sewer capacity for the project, upon the payment of ordinary and
necessary sewer connection, capacity and/or service fees.
10. ANNUAL REVIEW.
10.1 citv and Owner Responsibilities. City will, at
least every twelve (12) months during the Term of this Agreement,
pursuant to California Government Code §65865.1, review the extent
of good faith substantial compliance by Owner with the terms of
this Agreement. Pursuant to California Government Code section
65865.1, as amended, Owner shall have the duty to demonstrate by
substantial evidence its good faith compliance with the terms of
this Agreement at the periodic review. Either City or Owner may
address any requirement of the Agreement during the review.
10.2 Evidence. The parties recognize that this Agreement
and the documents incorporated herein could be deemed to contain
hundreds of requirements and that evidence of each and every
requirement would be a wasteful exercise of the parties' resources.
Accordingly, Developer shall be deemed to have satisfied its good
faith compliance when it presents evidence of substantial com-
pliance with the major provisions of this Agreement. Generalized
evidence or statements shall be accepted in the absence of any
evidence that such evidence is untrue.
10.3 Review Letter. If Owner is found to be in com-
pliance with this Agreement after the annual review, City shall,
within forty-five (45) days after Owner's written request, issue a
review letter in recordable form to Owner ("Letter") stating that
based upon information known or made known to the Council, the city
Planning commission and/or the City Planning Director, this
Agreement remains in effect and Owner is not in default. Owner may
record the Letter in the Official Records of the County of San
Diego.
10.4 Failure of Periodic Review. City's failure to
review at least annually Owner's compliance with the terms and
conditions of this Agreement shall not constitute, or be asserted
by city or Owner as, a breach of the Agreement.
11. DEFAULT.
11.1 Events of Default. A default under this Agreement
shall be deemed to have occurred upon the happening of one or more
of the following events or conditions:
-18- /5',4*""
---."... - .---
11.1.1 A warranty, representation or statement
made or furnished by Owner to city is false or proves to have
been false in any material respect when it was made.
11.1.2 A finding and determination by city made
following a periodic review under the procedure provided for
in California Government Code section 65865.1 that upon the
basis of substantial evidence Owner has not complied in good
faith with one or more of the terms or conditions of this
Agreement.
11.1. 3 city does not accept, timely review, or
consider requested development permits or entitlements
submitted in accordance with the provisions of this Agreement.
11.1. 4 Any other act or omission by City OJ:" Owner
which materially interferes with the terms of this Agreement.
11.2 Procedure Upon Default.
11. 2 . 1 Upon the occurrence of default by the
other party, City or Owner may terminate this Agreement after
providing the other party thirty (30) days written notice
specifying the nature of the alleged default and, when
appropriate, the manner in which said default may be satis-
factorily cured. After proper notice and expiration of said
thirty (30) day cure period without cure, this Agreement may
be terminated. In the event that City's or Owner's default is
not subject to cure within the thirty (30) day period, city or
Owner shall be deemed not to remain in default in the event
that city or Owner commences to cure within such thirty (30)
day period and diligently prosecutes such cure to completion.
Failure or delay in giving notice of any default shall not
constitute a waiver of any default, nor shall it change the
time of default. Notwithstanding any other provision of this
Agreement, City reserves the right to formulate and propose to
Owner options for curing any defaults under this Agreement for
which a cure is not specified in this Agreement.
11. 2 . 2 city does not waive any claim of defect in
performance by Owner if, on periodic review, City does not
propose to modify or terminate this Agreement.
11. 2 . 3 Subject to Paragraph 16.12 of this
Agreement, the failure of a third person shall not excuse a
party's nonperformance under this agreement.
11. 2.4 Remedies Upon Default. In the event of a
default by either party to this Agreement, the parties shall
have the remedies of specific performance, mandamus, injunc-
tion and other equitable remedies without having to first
prove there is an inadequate remedy at law. Neither party
shall have the remedy of monetary damages against the other;
provided, however, that the award of costs of litigation and
attorneys' fees shall not constitute damage.
-19- ¡fA '~(J
. _.,._u._.._._____',._.._._.__..__.___
12. ENCUMBRANCES AND RELEASES ON PROPERTY.
12.1 Discretion to Encumber. This Agreement shall not
prevent or limit Owner in any manner at Owner's sole discretion,
from encumbering the Property, or any portion of the Property, or
any improvement on the Property, by any mortgage, deed of trust, or
other security device securing financing with respect to the
Property or its improvement.
12.2 Mortqaqee Riqhts and Obliqations. The mortgagee of
a mortgage or beneficiary of a deed of trust encumbering the
Property, or any part thereof, and their successors and assigns
shall, upon written request to City, be entitled to receive from
City written notification of any default by Owner of the
performance of Owner's obligations under the Agreement which has
not been cured within thirty (30) days following the date of
default.
12.3 Releases. City agrees that upon written request of
Owner and payment of all fees and performance of the require-
ments and conditions required of Owner by this Agreement with
respect to the Property, or any portion thereof, City may
execute and deliver to Owner appropriate release(s) of further
obligations imposed by this Agreement in form and substance
acceptable to the San Diego County Recorder and title
insurance company, if any, or as may otherwise be necessary to
effect the release. city Manager shall not unreasonably
withhold approval of such release(s).
12.4 Obliqation to Modifv. City acknowledges that the
lenders providing financing for the Project may require certain
modifications to this Agreement and city agrees, upon request from
time to time, to meet with Owner and/or representatives of such
lenders to negotiate in good faith any such requirement for
modification. City will not unreasonably withhold its consent to
any such requested modification.
13. MODIFICATION OR SUSPENSION.
13.1 Modification to Aqreement bv Mutual Consent. This
Agreement may be modified, from time to time, by the mutual consent
of the parties only in the same manner as its adoption by an
ordinance as set forth in California Government Code sections
65867, 65867.5 and 65868. The term, "this Agreement" as used in
this Agreement, will include any such modification properly
approved and executed.
13.2 Unforeseen Health or Safety Circumstances. If, as
a result of facts, events, or circumstances presently unknown,
unforeseeable, and which could not have been known to the parties
prior to the commencement of this Agreement, city finds that
failure to suspend this Agreement would place the residents of City
in a severe and immediate emergency to their health or safety.
-20- 151'1...J.1
-'.-----..". _..._--_....__._..._-_._----~--
13.2.1 Notification of Unforeseen Circumstances.
Notify Developer of (i) City's determination; and (ii) the
reasons for City's determination, and all facts upon which
such reasons are based;
13.2.2 Notice of Hearina. Notify Developer in
writing at least fourteen (14) days prior to the date, of the
date, time and place of the hearing and forward to Developer
a minimum of ten (10) days prior to the hearings described in
section 13.2.3, all documents related to such determination
and reasons therefor; and
13.2.3 Hearina. Hold a hearing on the deter-
mination, at which hearing Developer will have the right to
address the city Council. At the conclusion of said hearing,
City may take action to suspend this Agreement as provided
herein. The city may suspend this Agreement if, at the
conclusion of said hearing, based upon the evidence presented
by the parties, the City finds failure to suspend would place
the residents of the City in a severe and immediate emergency
to their health or safety.
13.3 Chanqe in State or Federal Law or Reaulations. If
any state or federal law or regulation enacted during the Term of
this Agreement, or the action or inaction of any other affected
governmental jurisdiction, precludes compliance with one or more
provisions of this Agreement, or requires changes in plans, maps,
or permits approved by City, the parties will act pursuant to
sections 13.3.1 and 13.3.2, below.
13.3.1 Notice: Meetina. The party first becoming
aware of such enactment or action or inaction will provide the
other party(ies) with written notice of such state or federal
law or regulation and provide a copy of such law or regulation
and a statement regarding its conflict with the provisions of
this Agreement. The parties will promptly meet and confer in
a good faith and reasonable attempt to modify or suspend this
Agreement to comply with such federal or state law or regula-
tion.
13.3.2 Hearinq. If an agreed upon modification
or suspension would not require an amendment to this Agree-
ment, no hearing shall be held. Otherwise, the matter of such
federal or state law or regulation will be scheduled for
hearing before the City. Fifteen (15) days' written notice of
such hearing shall be provided to Developer, and the city, at
such hearing, will determine and issue findings on the
modification or suspension which is required by such federal
or state law or regulation. Developer, at the hearing, shall
have the right to offer testimony and other evidence. If the
parties fail to agree after said hearing, the matter may be
submitted to mediation pursuant to subsection 13.3.3, below.
Any modification or suspension shall be taken by the affirma-
tive vote of not less than a majority of the authorized voting
members of the city. Any suspension or modification may be
-21- 1.5',1} -.1.1
--------*-~.*-~..--_...__._._-_.-
subject to jUdicial review in conformance with subsection
16.19 of this Agreement.
13.3.3 Mediation of DisDutes. In the event the
dispute between the parties with respect to the provisions of
this paragraph has not been resolved to the satisfaction of
both parties following the City hearing required by subsection
13.3.2, the matter shall be submitted to mediation prior to
the filing of any legal action by any party. The mediation
will be conducted by the San Diego Mediation Center; if San
Diego Mediation Center is unable to conduct the mediation, the
parties shall submit the dispute for mediation to the Judicial
Arbitration and Mediation Service or similar organization and
make a good faith effort to resolve the dispute. The cost of
any such mediation shall be divided equally between the
Developer and City.
13.4 Natural Communities Conservation Act (NCCP). The
parties recognize that Developer and the City are individually
negotiating agreements with the United States Fish and wildlife
Service ("USF&W") and the California Department of Fish and Game
pursuant to the ongoing regional effort to implement the Natural
Communities Conservation Act ("NCCP"), locally proposed to be
implemented through the Multi-Species Conservation Program
("MSCP"). The parties further recognize that implementation of the
agreements may necessitate modification to the Existing Project
Approvals. The parties agree to utilize their best efforts to
implement these agreements, once executed, through the timely
processing of modifications to the Existing Project Approvals as
they relate to the Property. The Developer agrees to pay the
reasonable City cost for processing work related to the modifica-
tions. Once such modifications are obtained they shall be vested
to the same extent as Existing Project Approvals.
14. DISTRICTS. PUBLIC FINANCING MECHANISMS.
This Agreement and the Existing Project Approvals recognize
that assessment districts, community facility districts, or other
public financing mechanisms, may be necessary to finance the cost
of public improvements borne by this proj ect. If Developer,
pursuant to the Existing Project Approvals/Future Discretionary
Approvals, is required to install improvements through the use of
assessment districts, community facility districts, or other public
financing mechanisms, the city shall initiate and conclude
appropriate proceedings for the formation of such financing
district or funding mechanism, under applicable laws or ordinances.
Developer may request that the city utilize any other financing
methods which may become available under City laws or ordinances.
All costs associated with the consideration and formation of such
financing districts or funding mechanisms shall be paid by
Developer subject to reimbursement, as may be legally authorized
out of the proceeds of any financing district or funding mechanism.
15. ASSIGNMENT AND DELEGATION.
-22- 15/1 *'~3
-----_..,-- --._-_._---.-'--'_'_-'--" - -""~_.-.-.._.~-~,,---_._..
15.1 Assiqnment. Owner shall have the right to transfer
or assign its interest in the Property, in whole or in part,
to any persons, partnership, joint venture, firm, or corpora-
tion at any time during the Term of this Agreement without the
consent of city. Owner also shall have the right to assign or
transfer all or any portion of its interest or rights under
this Agreement to third parties acquiring an interest or
estate in the Property at any time during the Term of this
Agreement without the consent of city.
15.2 Deleqation. In addition, Owner shall have the
right to delegate or transfer its obligations under this
Agreement to third parties acquiring an interest or estate in
the Property after receiving the prior written consent of the
city Manager, which consent shall not be unreasonably with-
held, delayed, or conditioned. Once the city Manager has
consented to a transfer, delivery to and acceptance by the
City Manager of an unqualified written assumption of Owner's
obligations under this Agreement by such transferee shall
relieve Owner of the obligations under this Agreement to the
extent the obligations have been expressly assumed by the
transferee. Such transferee shall not be entitled to amend
this Agreement without the written consent of the entity that,
as of the Effective Date, is Owner, which consent shall not be
unreasonably withheld, delayed, or conditioned. The entity
that is Owner as of the Effective Date, however, shall be
entitled to amend this Agreement without the written consent
of such transferee.
16. MISCELLANEOUS PROVISIONS.
16.1 Bindinq Effect of Aqreement. Except to the extent
otherwise provided in this Agreement, the burdens of this Agreement
bind, and the benefits of this Agreement inure, to city's and
Owner's successors-in-interest and shall run with the land.
16.2 Relationship of Citv and Owner. The contractual
relationship between city and Owner arising out of this Agreement
is one of independent contractor and not agency. This Agreement
does not create any third-party beneficiary rights.
16.3 Notices. All notices, demands, and correspondence
required or permitted by this Agreement shall be in writing and
delivered in person, or mailed by first-class or certified mail,
postage prepaid, addressed as follows:
If to City, to: City of Chula vista
276 Fourth Avenue
Chula Vista, CA 9],910
Attention: City Manager
If to Owner, to: SNMB, LTD.
7811 La Mesa Boulevard
suite B-3
La Mesa, CA 91941
-23- IfA-';' 'I
.~.'..n~___~._. _ ___..
Attention: Christopher Patek
with a copy to: STEPHENSON, WORLEY, GARRATT
SCHWARTZ, HEIDEL & PRAIRIE
101 West Broadway, suite 1300
San Diego, CA 92101
Attention: Donald R. Worley, Esq.
City or Owner may change its address by giving notice in writing to
the other. Thereafter, notices, demands, and correspondence shall
be addressed and transmitted to the new address. Notice shall be
deemed given upon personal delivery, or, if mailed, two (2)
business days following deposit in the united States mail.
16.4 Rules of Construction. In this Agreement, the use
of the singular includes the plural; the masculine gender includes
the feminine; "shall" is mandatory; "may" is permissive.
16.5 Entire Aqreement. Waivers. and Recorded Statement.
This Agreement constitutes the entire understanding and agreement
of City and Owner with respect to the matters set forth in this
Agreement. This Agreement supersedes all negotiations or previous
agreements between city and Owner respecting this Agreement. All
waivers of the provisions of this Agreement must be in writing and
signed by the appropriate authorities of city and Owner. Upon the
completion of performance of this Agreement, or its revocation or
termination, a statement evidencing completion, revocation, or
termination signed by the appropriate agents of City shall be
recorded in the Official Records of San Diego County, California.
16.6 proiect as a Private Undertakinq. It is
specifically understood by City and Owner that (i) the Project is
a private development; (ii) city has no interest in or
responsibilities for or duty to third parties concerning any
improvements to the Property until City accepts the improvements
pursuant to the provisions of the Agreement or in connection with
subdivision map approvals; and (iii) Owner shall have the full
power and exclusive control of the Property subject to the
obligations of Owner set forth in this Agreement.
16.7 Incorporation of Recitals. The recitals set forth
in Paragraph 1 of this Agreement are part of this Agreement.
16.8 captions. The captions of this Agreement are for
convenience and reference only and shall not define, explain,
modify, construe, limit, amplify, or aid in the interpretation,
construction, or meaning of any of the provisions of this
Agreement.
16.9 Consent. Where the consent or approval of City or
Owner is required or necessary under this Agreement, the consent or
approval shall not be unreasonably withheld, delayed, or con-
ditioned.
-24- ¡fA ',J..$'
---, -.-....--..--- -- --,..,----_.---,-_.-_._-- ---..-.
16.10 Covenant of Cooperation. City and Owner shall
cooperate and deal with each other in good faith, and assist each
other in the performance of the provisions of this Agreement.
16.11 Recordinq. The City Clerk shall cause a copy of
this Agreement to be recorded with the Office of the County
Recorder of San Diego County, California, within ten (10) days
following the Effective Date.
16.12 Delav. Extension of Time for Performance. In
addition to any specific provision of this Agreement, performance
by either City or Owner of its obligations hereunder shall be
excused, and the Term of this Agreement and the Development Plan
extended, during any period of delay caused at any time by reason
of any event beyond the control of City or Owner which prevents or
delays and impacts city's or Owner's ability to perform obligations
under this Agreement, including, but not limited to, acts of God,
enactment of new conflicting federal or state laws or regulations
(example: listing of a species as threatened or endangered),
judicial actions such as the issuance of restraining orders and
injunctions, riots, strikes, or damage to work in process by reason
of fire, floods, earthquake, or other such casualties. If city or
Owner seeks excuse from performance, it shall provide written
notice of such delay to the other within thirty (30) days of the
commencement of such delay. If the delay or default is beyond the
control of City or Owner, and is excused, an extension of time for
such cause will be granted in writing for the period of the
enforced delay, or longer as may be mutually agreed upon.
16.13 Covenant of Good Faith and Fair Dealinqs. No party
shall do anything which shall have the effect of harming or
injuring the right of the other parties to receive the benefits of
this Agreement; each party shall refrain from doing anything which
would render its performance under this Agreement impossible; and
each party shall do everything which this Agreement contemplates
that such party shall do in order to accomplish the objectives and
purposes of this Agreement.
16.14 Operatinq Memorandum. The parties acknowledge that
the provisions of this Agreement require a close degree of
cooperation between City and Developer, and that the refinements
and further development of the Project may demonstrate that minor
changes are appropriate with respect to the details of performance
of the parties. The parties, therefore, retain a certain degree of
flexibility with respect to those items covered in general under
this Agreement. When and if the parties mutually find that minor
changes or adjustments are necessary or appropriate, they may
effectuate changes or adjustments through operating memoranda
approved by the parties. For purposes of this section 16.14, the
City Manager, or his designee, shall have the authority to approve
the operating memoranda on behalf of City. No operating memoranda
shall require notice or hearing or constitute an amendment to this
Agreement.
-25- ~5'A'~
---..-..- -.-.-..-.--.--,.,.. ---,---
16.15 Time of Essence. Time is of the essence in the
performance of the provisions of this Agreement as to which time is
an element.
16.16 Amendment or Cancellation of Aareement. This
Agreement may be amended from time to time or canceled by the
mutual consent of city and Owner only in the same manner as its
adoption, by an ordinance as set forth in California Government
Code section 65868, and shall be in a form suitable for recording
in the Official Records of San Diego County, California. The term
"Agreement" shall include any such amendment properly approved and
executed. City and Owner acknowledge that the provisions of this
Agreement require a close degree of cooperation between them, and
that minor or insubstantial changes to the Project and the
Development Plan may be required from time to time to accommodate
design changes, engineering changes, and other refinements.
Accordingly, changes to the Project and the Development Plan that
do not result in a change in use, an increase in density or
intensity of use, cause new or increased environmental impacts, or
violate any applicable health and safety regulations, may be
considered minor or insubstantial by the city Manager and made
without amending this Agreement.
16.17 EstoDDel Certificate. Within 30 calendar days
following a written request by any of the parties, the other
parties to this Agreement shall execute and deliver to the
requesting party a statement certifying that (i) this Agreement is
.unmodified and in full force and effect, or if there have been
modifications hereto, that this Agreement is in full force and
effect as modified and stating the date and nature of such
modifications; (ii) there are no known current uncured defaults
under this Agreement, or specifying the dates and nature of any
such default; and (iii) any other reasonable information requested.
The failure to deliver such a statement within such time shall
constitute a conclusive presumption against the party which fails
to deliver such statement that this Agreement is in full force and
effect without modification, except as may be represented by the
requesting party, and that there are no uncured defaults in the
performance of the requesting party, except as may be represented
by the requesting party.
16.18 Severabilitv. If any material provision of this
Agreement is held invalid, this Agreement will be automatically
terminated with neither party bearing any liability hereunder.
Notwithstanding the foregoing, within 15 days after such provision is
held invalid, if the party holding rights under the invalidated
provision affirms the balance of this Agreement in writing this
Agreement shall not be terminated. This provision will not affect
the right of the parties to modify or suspend this Agreement by
mutual consent pursuant to Paragraph 12.4.
16.19 Institution of Leaal Proceedina. In addition to any
other rights or remedies, any party may institute legal action to
cure, correct, or remedy any default, to enforce any covenants or
agreements herein, or to enjoin any threatened or attempted violation
-26- d'~·~7
--. --.---. ....~-_. . . _..._.._------~--~-----_._-
thereof; to recover damages for any default as allowed by this
Agreement or to obtain any remedies consistent with the purpose of
this Agreement. Such legal actions must be instituted in the
Superior Court of the County of San Diego, State of California.
16.20 Attornevs' Fees and Costs. If any party commences
litigation or other proceedings (including, without limitation,
arbitration) for the interpretation, reformation, enforcement, or
rescission of this Agreement, the prevailing party, as determined by
the court, will be entitled to its reasonable attorneys' fees and
costs.
16.21 Hold Harmless. Developer agrees to and shall hold
City, its officers, agents, employees and representatives harmless
from liability for damage or claims for damage for personal injury,
including death, and claims for property damage which may arise from
the direct or indirect operations of Developer or those of its
contractors, subcontractors, agents, employees or other persons
acting on Developer's behalf which relate to the Project. Developer
agrees to and shall defend City and its officers, agents, employees
and representatives from actions for damage caused or alleged to have
been caused by reason of Developer's activities in connection with
the Project. Developer agrees to indemnify, hold harmless, pay all
costs and provide a defense for city in any legal action filed in a
court of competent jurisdiction by a third party challenging the
validity of this Agreement. The provisions of this Section 16.21
shall not apply to the extent such damage, liability or claim is
caused by the intentional or negligent act or omission of City, its
officers, agents, employees or representatives.
17. AUTHORITY
Each signatory and party hereto hereby warrants and represents
to the other party that it has legal authority and capacity and
direction from its principal to enter into this Agreement, and that
all resolutions or other actions have been taken so as to enable it
to enter into this Agreement.
-27- 15Ã-.J.r
-_.... .-..- --.---.------- ""~--
SIGNATURE PAGE TO PRE-ANNEXATION DEVELOPMENT AGREEMENT.
Dated this _ day of , 1997.
"CITY"
CITY OF CHULA VISTA
By:
SHIRLEY HORTON, MAYOR
"OWNER"
SNMB, LTD.
By:
CHRISTOPHER PATEK, General Partner
I hereby approve the form and legality of the foregoing Pre-
Annexation Development Agreement this day of , 1997.
John M. Kaheny, City Attorney
By:
Ann Moore
Assistant City Attorney
,,>;,-,;¡,
-28-
.-...-. ._,...._........___._ ._._.__u...__.
. .,
.
EXHIBIT A
CJlY Of
CHUIA VISTA
" PLANNINC DEPARTMENT
SNMB, LTD. þf'~3# 611 9/96
, ....-. .-.-..-" - -_.._-----------_..-_._--_..~_.._._..._,- -_._-----,~---_._-_.,_._---,_._--
----------------- -- .-.-- ---
~
è:' =
...
~ ~ 'C ..
~ GI z~ '"
_'C -- - Z
III C .!!!OGl 'C - I;: ~~ 0
.- :J >Glg CC C ~ ¡::
> 0 GlO 'CGI 'C GI ~ I;
~a:J ~"GI E; GlE ;-~ :¡ £
-Gl:J ~ III.c ..
:J >0 :J.c_ E>CIII ..J.!!! >0 - 0 c:
S:;~ .c 0.- Ou 7Ji ... t
0 OGl~ o.~~ >oU'C !;
Z uu U(t).E uCGI O-GI ~GI:J ..
GlC" ..GI.. - c..o:; u
w a::ctct Q.cct 0(1)(1) 0:
C) 1 c
w ..
..J 1 ~ m <J
ìl··· 0
....
1 <J
1 "~I~'
!I~t
1
..
- .5:!
¡
N-
I ~I
--I
1 c:>
I
L_,
oJ
I .,
l,
1
1
\
~ _J
.
0 \
z \,....-
s:: J
CU 0 ,
+-' .-
f/)+-' ('r
._ CU
CO >.~
CU s::
... - CU
.- ::3
.Q C)
.- .c ...
~O 0
Wit-CD
oC:::
:>,.c
+-'U
.- s::
o CU
c:::
:>,
CU
+-' ,
0 15A'~1 ,
\
_. ____._____n__.._...___·. _._.....__.__.__ --~-- - --- -- - - -- ..--.-'--'- -..-." ._--_.."-_.--~_..
..... --
.
¡
EXHIBIT "C"
"
.....,1. .....,.. 1)<, .... -.
IMTf'" ,,- .._ Tel
ellie' .-clllc,..the Offl_
-.. -'.... ,,-
t6GG ..If Ie ...,.
..... .1.., ca .,01
'.
-- - .... & .'. 11M3
u.Jml"ru. Jft7%SANCJt UoSEKBN'1'
&HI)
COVJ:NM'1'S mnnr:mc¡ wrrH ftŒ UND
· (hereinafter ref.rred to a. "Crantor·), tor valuable ,
· con. ide ration , doe.' h.reby CRANT to tha 00t1N'l'Y 01' SAN DIEGO, a
, political .ubd1vi.icn of the state ot California (hereinafter
r.f.n:. to _ ..or.nt....) .. toM own.r of that. 1'..1 FOpert:y
·log.ted in th. Coum:y Of San Di.qo, California known a. th. "ouy
¡,andf1U" which 18 Dore particularly desoribed in ·¡:xhl.bit ,."
· . hereto (her.inatt.r ref.rred to .. the ·Ðoainant. Tan_ant.") and
it. au.og...or. 1n int.rut t.o the Doa1nant. Tan_ant., an ZASDŒNT
Charainatt.er r.f.rred to .. ·~uiaano. 3.._ont") over .11 ~t.
real ~pert.y located. 1n the county of San Di&'1o, C.l1tornia
de.cr d in "Exhibit. ... hereto (hereinafter reterr.d to .. th.
". "serviant ~ant·).
~ia hiaance u....nt 18 for tha usa aniS ~an.fit of Grantee
ancl it.. .u.cc...ora in intere.t and invit..e! fU..t.. in the aond~ct.
of .011d w..te landtill1n; operat.iona on the Doainant '1'anament,
· for the fr.. and unobatl:'Ucted pa...... on, ont.o, 1n, t.bro\aqb, and
aoro.. the .urrace and .ire~.o. above th. ~f.o. ot th. S.rvient
Ten..ant ot the tollowiftl¡ in;. (her.inatter rete~cS u a. :
"Nui.anc. %t...·),
dust, "noi.e, v!.brat.10na, any and all chaaical. or partiele.
.u.pend.d cpar.aanant.li or teaporarily) in th. air and vineS
1ncl\l4in; but not U.. ted to ..thane p., 0401'.' tvae., tue1
particle., ...lJIalla .niS other .aav.~er ~1r4a and the
excraant drcpp1nq. therefrom, an4 the un~.tructecl pa..a;e
, I:Þelow th. .urface of l..c!late and other pollutant.., and for
.a=, .vary and all .tt.ct.. a. "1" be gauaad bIn or ~..ult
. ~r_ the o~.t10a .f a l&114f111 vb1= 1& now .x1a~enoe
.. or vb1ch "1" M ..va1oped 1n ~ fut\ln,
1:oq.th.r v1t.b the oont.bua1aq r1¢i: u gau.. or allow in all ot
aucb Servient. T.n_ant .uch øui.anc. 1t-.. it tI.inq und..rstooc1
aa4 &;1'.&4 that. OraBte., or 1t. lNocas.or. ill 1nt.rs.t, 1ntanc1lJ
~o d.velop, ..inteiD and axpanct th. landfill on the aiSjacent.
. Ðoa1nant ttan...nt in INch a ..nner 1:bat .ai4 lanc1Ull and th.
.....ent ~ted hna1n will be usa4 at aU't1JD.. in coapl1ance
with all &ppl1CÙ11. Stat. aD4 F.deral l.w. and the lawful ~era
1>/J';l2..
---~~ ~---_.._,_..--- ...._._._--_._.._...__._-,_._------_._,---~ _._----_..._._...-._-------_._--~-_..
. ,
.
.
.. .
. ,
·
·
·
of .t&1:e and Fe4aral a9enci.. nqulat1fttJ envirouental tacto:ra,
1:oX1c and/or hasU'dou. wa.~, and ~ opuoaUon of ~ landfill.
. Grantor, tor i~.lt and it. .1M:C...on and a..1f1n., do..
berëy fully waive and reI.... any dpt or CAlia. of action Vbiob
·they or any of tMa MY now bave or ..y haVe in the tuture
a9a1n.t Grantee, i~ successor. aDd a..lqn., on account of or
ar1.1n<¡ ollt: ot .~ M\¡iaanoe %~ bar.tofore U\4 ber_tt.r
oau..4 by ~ oJl4ratioll ot a landfill.
Grantor, for 1uelt aM it. .~.lIOn and ..8197\&,
covenant. and aqr_., with the \\nCS~ini and intent ti'aat such
shall run with the land, anI! wll:b .mall nm with the land, 'that
ne1ther they nor any of th_ w111 OOIIIIIence or aa1nu1n a .uit,
action, writ, U'Þltratlon, or other le;al or equitable prOQee~1ng
aqa1n.t Grante. or ite .ucce..or. or a..lf1n5 wherein the relier
aought is the oa...t1on or lbûtation on the uae of tha Dominant.
Irene.ent a. a landfill. Grantor, for itNlt and it. .ucoa.sora
aneS ...19M', coYanan~ ceS aRae., with the u.n4U'.tandin9 &lieS
1ntant that .ul:b Gall I'Un w th the lan4, and Vb1øh ahal1 I'Un
·.with the laneS, 'that 1n the event 'that they viol.te the aÞove
oov~nUi ot 'the tor~oinq sentence, they è.ll pay to Cr.nte.
. .ugh attorA.Y.' te.. and ocsts a. _y ba d.tera1nec1 to be
na.ona1l1e !:>y a Co~ ot OCllllpe~t jur1.4ict10n. Inquiri.s or
. "qu..t. tor antoroea.nt aa4. by Grantor, 1t. .uoo.s.or. or
as.l9N1 to State or Federal .q8l1ci.. with regul.tory author1ty
OVer the operation ot laneSt1Us Gall not be oona1c1erecS a
'violation Of this parac¡rap!¡.
mn the terainatlgn of __ of the DoID1nant Ten_ant tor
lU\4ti 1 pqrpo..., (iDclu41nq ooapl.tlon of act1ve landfill
operations and all olosuz. and po.t-olceure activ1t1..), Gr.ntor,
it:. aucoeaaon or a.d;M aay requ..t that Grantee, it.
·.~..ora or ...1qM, throu;h the .prU.~l. leval r~OOedur.,
..oate or 1:era1nate thi. .....-.nt, vh I:b r~..t w11 noot!:>.
·.-unreallO~ly v1tbelc1.
,
;'Zxeou'ted tlli. clay of , 1"', at 'aD Ciego,
. ·ca1irornia.
...~
'. .
,
.
. .....
-. I.5'AfII3;J
......... ...... ..~ ,.,..,.,. CCt:T II~ ICO
_ __ _ __...___......_.._.__._·O.M·_··. _ __.__....'___.____.________.____.___........._ ,___ ,.".., - -~~-~ ---- --- -
J'~ 0
~ ~
T1!
J'<')
"<of
...." s;:
~-f
'P" Z
~
0
.,.,
-
~ r
r
In - 0
,.,......
(') ~ ~ r- »
- In S
-oJ ~ ==< (,< z
-
...... 0
.,.
5 CD
-4
.. C
.
.,.,
.,.,
fTl
::::0
;¡::o .
»-4
,,~
0>::0
"'»
I>o>z \J
n
~ -
. »
:::0
0
1'1
r
¡:¡ ~ Q (Q
.. -n > (J)
~
.. T -<
~
... ; r- I
å
. :>
,. > Z 0
\
,0 0'0
111 "T')
.> ¡:: -......J
~ r())
. I
-
I5'A "3,/ , »
.
,
.
{
'. .
.
EXHIBIT "E" I
Pre-ennaxatfon Devalopmant Aareemant
Plannina Area ASSB880r Ownerahip Acreicle
Parcel Numbers
Olav ValIcv Parcel 644-030-07 SNMBLtd. 134.2S
Olav ValIcv Parcel 644-060-07 SNMBLtd. IS9.18
Olav Valley Parcel 644-060-08 SNMBLtd. 80.00
Olav Valley Parcel 644-060-09 SNMBLtd. 80.00
Olav Vallcv Parcel 644-060-10 SNMBLtd. 289.70
Olav Valley Parcel 644-060-12 SNMBLtd. 82.20
Olav Valley Parcel 644-070-08 SNMBLtd. 313.28
Olav Valley Parcel 64S-030·19 SNMBLtd. 33S.34
Olav Valley Parcel 646-0 I 0-02 SNMBLtd. 3S2.70
. 1,826.65 Total
'.
1.5'~' .:Jð'
- -- --~_..__.- --_._,-_._.__.._._---_.__..._..__._._~-"-_.__.__.- .-----,-------.------..-"--" -' -.._.._._--_."-_._~_.-
ORDINANCE NO. ,J. 7111
AN ORDINANCE OF THE CITY OF CHULA VISTA
ADOPTING THE RESTATED AND AMENDED PRE-
ANNEXATION DEVELOPMENT AGREEMENT WITH JEWELS
OF CHARITY
WHEREAS, on August 6, 1996, the City Council approved
Ordinance 2687 on first reading, which adopted the Pre-Annexation
Development Agreement between the city of Chula Vista and Jewels of
Charity ("Previously Negotiated Agreement") ; and
WHEREAS, the Previously Negotiated Agreement was not
executed by Jewels of Charity so no second reading of the ordinance
was held and therefore no agreement is currently in existence; and
WHEREAS, there is now a mutual desire by the City and
Jewels of Charity to restate and amend the Previously Negotiated
Agreement in order for the Previously Negotiated Agreement to
become effective ("Restated Agreement"); and
WHEREAS, on February 19, 1997, the Planning commission
reviewed the Restated Agreement and voted to approve same; and
NOW, THEREFORE, the City council of the City of Chula
vista ordains as follows:
SECTION I: The city Council does hereby adopt, amend and
restate the Restated and Amended Pre-Annexation Development
Agreement with Jewels of Charity on file in the office of the City
Clerk as Document No. .
SECTION II: The Mayor of the City of Chula vista is
hereby authorized and directed to execute said Restated Agreement
for and on behalf of the City of Chula vista.
SECTION III: This ordinance shall take effect and be of
full force on the effective date of annexation as set forth in the
attached Restated Agreement.
Presented by Approved as to form by
Deputy city ~~~
George Krempl, John M. Kaheny, City Attorney
Manager
C:\or\jewe1s
)5ß~1
._ ".."._._.~_.m~_.._...._._ .--_._.---_._._._._-----~---~_._.._--_._-_._._---
AMENDED AND RESTATED
PRE-ANNEXATION DEVELOPMENT AGREEMENT
THIS AMENDED AND RESTATED PRE-ANNEXATION DEVELOPMENT AGREEMENT
("Agreement") is made effective on the date hereinafter set forth
below by and among the CITY OF CHULA VISTA ("city") and JEWELS OF
CHARITY ("Jewels"), who agree as follows:
1. RECITALS. This Agreement is made with respect to the
following facts:
1.1 Owner. The owners of the properties subject to this
Agreement (hereinafter collectively referred to as "Owner" or as
"Developer" ) are as follows:
1.1.1 Jewels is the owner of approximately 475
acres of undeveloped real property ("the Jewels property") in
the unincorporated area of the County, described in Exhibits
"A" and "C", attached hereto and incorporated herein by this
reference. Portions of Jewels Property are located in
Villages 9 and 10 of the Otay Ranch property.
1.1.2 Jewels (the "property" ) is part of a
larger area commonly known, and referred to herein, as "the
otay valley Parcel of otay Ranch."
1.2 Ç,lli . The city of Chula vista is a municipal
corporation with Charter city powers incorporated within the
County.
1.3 Code Authorization and Acknowledqments.
1.3.1 city is authorized pursuant to its
charter, self-rule powers and California Government Code
sections 65864 through 65869.5 to enter into development
agreements for the purpose of establishing certainty for both
City and owners of real property in the development process.
1. 3. 2 Government Code section 65865 expressly
authorizes a city to enter into a development agreement with
any person having a legal or equitable interest in real
property in unincorporated territory within that city's sphere
of influence for the development of property as provided in
the Development Agreement Law; provided that the agreement
shall not become operative unless annexation proceedings
annexing the property to the city are completed within the
time specified by the agreement.
1. 3.3 City enters into this Agreement pursuant
to the provisions of the California Government code, its home-
rule powers, and applicable city ordinances, rules, regula-
tions and policies.
-1- 15"(1-.1-
-_._.~- -....+..---.-.---.--..-....-..---
1.3.4 city and Owner intend to enter into this
agreement for the following purposes:
1.3.4.1 To assure adequate public facilities
at the time of development.
1.3.4.2 To assure development in accordance
with City's capital improvement plans.
1.3.4.3 To provide certainty to Owner in the
development approval process by vesting the permitted
use(s), density, intensity of use, and the timing and
phasing of development as described in the Development
Plan, which is defined in Paragraph 2.4 of this Agree-
ment, in exchange for Owner's entering into this Agree-
ment and for its commitment to support the Annexation
described below.
1.3.4.4 To permit achievement of City growth
management goals and objectives.
1.3.4.5 To allow City to realize significant
economic, recreational, park, open space, social, and
public facilities benefits for the City, some of which
are of regional significance.
1.3.4.6 To provide and assure that the city
receive sales tax revenues, increase in the property tax
base, residential housing and other development, sewer,
water and street facilities.
1.3.4.7 To provide and assure that the City
receives pUblic facilities in excess of project generated
impacts and such facilities shall be of supplemental
size, number capacity or length, which shall be provided
earlier than could be provided either by funds from the
city or than would strictly be necessary to mitigate
project related impacts at any development phase.
1.3.4.8 To provide the city the developer's
support to secure annexation of the lands depicted in
Exhibit "B".
1. 3 . 4 . 9 To enable the City to secure title to
the land within the boundaries of the Property necessary
to complete the Chula vista greenbelt system as defined
in the Chula vista General Plan.
1.3.4.10 Because of the complexities of the
financing of the infrastructure, park, open space, and
other dedications, and regional and community facilities,
and the significant nature of such facilities, certainty
in the development process is an absolute necessity. The
phasing, timing, and development of public infrastructure
necessitate a significant commitment of resources,
planning, and effort by Owner for the pUblic facilities
financing, construction, and dedication to be success-
fully completed. In return for Owner's participation and
-2- /50-;1
- -...-,.....-.-.--..- ---_.~
commitment to these significant contributions of private
resources for public purposes and for Owner's consent to
the Annexation described below, ci ty is willing to
exercise its authority to enter into this Agreement and
to make a commitment of certainty for the development
process for the Property.
1.3.4.11 In consideration of Owner's agreement
to provide the significant benefits and for Owner's
consent to the Annexation described below, City hereby
grants Owner assurances that it can proceed with develop-
ment of the Property in accordance with city's
ordinances, rules, regulations, and policies existing as
of the effective date of this Agreement subject to
section 5.2.1 below. Owner would not enter into this
Agreement or agree to provide the public benefits and
improvements described in this Agreement if it were not
for the commitment of City that the Property subject to
this Agreement can be developed in accordance with City's
ordinances, rules, regulations, and policies existing as
of the effective date of this Agreement subject to
section 5.2.1 below.
1.4 The Annexation. On July 1, 1996, the Local Agency
Formation Commission ("LAFCO") approved annexation of Sphere of
Influence Planning Area 1 "The Otay Parcel", Planning Area 2
"Inverted L" and the Mary Patrick Estate Parcel (see Attachment
"B") .
1.5 Sphere of Influence. On February 5, 1996 and July
1, 1996 the Local Agency Formation Commission approved the
inclusion of Planning Area 1, "The "Otay Parcel", into the city
Sphere of Influence (Sphere of Influence Planning Area 1 "the Otay
Parcel", Planning Area 2 "Inverted L" and the Mary Patrick Estate
Parcel - see Attachment "B").
1.6 Planninq Documents. On October 28, 1993, city and
County adopted the Otay Ranch General Development Plan/Subregional
Plan ("the GDP") which includes the Otay Ranch Village Phasing
Plan, Facility Implementation Plan, Resource Management Plan and
Service Revenue Plan, for approximately 23,000 acres of the Otay
Ranch, including the Otay Valley Parcel and the Jewels property.
1. 7 Owner Consent. City desires to have the cooperation
and consent of Owner to include the Property in the Annexation in
order to better plan, finance, construct and maintain the infra-
structure for the Otay Valley Parcel; and Jewels desires to give
their cooperation and consent, provided that they obtain certain
assurances, as set forth in this Agreement.
1. 8 ci tv Ordinance. , 199~2 is the date of
adoption by the city Council of Ordinance No. ~ approving
this Agreement. The ordinance shall take effect and be in full
force on the effective date of Annexation.
-3- 158'1/
- ..-"._.-,--,-_.......- --"'-'-'" --._.,-,~-~"-_.._.._-_._-
2 . DEFINITIONS. In this Agreement, unless the context
otherwise requires:
2.1 "Annexation" means the proposed annexation of that
portion of the otay Ranch into the City as depicted on Exhibit "B".
2.2 "city" means the City of Chula Vista, in the County
of San Diego, State of California.
2.3 "County" means the County of San Diego, State of
California.
2.4 "Development Plan" means the GDP.
2.5 "GDP" means the General Development Plan/Subregional
Plan for the otay Ranch, described in Paragraph 1.6, above.
2.6 "Owner" or "Developer" means the person, persons, or
entity having a legal and equitable interest in the Property, or
parts thereof, and includes Owner's successors-in-interest.
2.7 "Project" means the physical development of the
private and public improvements on the Property as provided for in
the Existing Project Approvals and as may be authorized by the City
in Future Discretionary Approvals.
2.8 "Property" means the real property described in
Paragraph 1.1.1.
2.9 The "Term" of this Agreement means the period
defined in Paragraph 3, below.
2.10 "Builder" means developer to whom Developer has sold
or conveyed property within the Property for purposes of its
improvement for residential, commercial, industrial or other use.
2.11 "CEQA" means the California Environmental Quality
Act, California Public Resources Code section 21000, et seq.
2.12 "city Council" means the city of Chula vista city
Council.
2.13 "Commit" or "Committed" means all of the following
requirements have been met with respect to any public facility:
2.13.1 For a public facility within the city's
jurisdictional boundaries and a responsibility of the develop-
er.
2.13.1.1 All discretionary permits required of
the Developer have been obtained for construction of the
public facility;
2.13.1.2 Plans for the construction of the
public facility have all the necessary governmental
approvals; and
-4- Iß,5
-......-----.----...-...-.
2.13.1.3 Adequate funds (i.e., letters of
credit, cash deposits, performance bonds or land secured
pUblic financing, including facility benefit assessments,
Mello-Roos assessment districts of similar assessment
mechanism) are available such that the City can construct
the public facility if construction has not commenced
within thirty (30) days of issuance of a notice to
proceed by the Director of Public Works, or construction
is not progressing towards completion in a reasonable
manner as reasonably deemed by the Director of Public
Works.
2.13.2 For a public facility within the City's
jurisdictional boundaries, but to be provided by other than
Developer.
2.13.2.1 Developer's proportionate share of
the cost of such public facility as defined in the
existing Project Approvals and Future Discretionary
Approvals has been provided or assured by Developer
through the payment or impositions of development impact
fee or other similar exaction mechanism.
2.13.3 For public facility not within City's
jurisdi~tional boundaries:
2.13.3.1 Developer's proportionate share of
the cost of such public facility as defined in the
existing Project Approvals and Future Discretionary
Approvals has been provided for or otherwise assured by
Developer to the reasonable satisfaction of the Director
of Public Works.
2.14 "Development Impact Fee (DIF)" means fees imposed
upon new development pursuant to the City of Chula vista
Development Impact Fee Program, for example, including but not
limited to the Transportation Development Impact Fee Program, the
Interim SR-125 Development Impact Fee Program, the Salt Creek Sewer
DIF and the Public Facilities DIF.
2.15 "Existing Project Approvals" means all discretionary
approvals affecting the Project which have been approved or
established in conjunction with, or preceding, the effective date
consisting of, but not limited to the GDP, the Chula vista General
Plan, the otay Ranch Reserve Fund Program adopted pursuant to
Resolution 18288, and the Phase I and II Resource Management Plan
(RMP), as may be amended from time to time consistent with this
agreement.
2.16 "Final Map(s)" means any final subdivision map for
all or any portion of the Property other than the Superblock Final
Map ("A" Maps).
2.17 "Future Discretionary Approvals" means all permits
and approvals by the City granted after the effective date and
excluding existing Project Approvals, including, but not limited
to: (i) grading permits; (ii) site plan reviews; (iii) design
guidelines and reviews; (iv) precise plan reviews; (v) subdivisions
-5- I'>O"¿'
-...--+-- --_.._...__._"..__..._.~,.,.,..- "---~-"--'-'--"-'----'-
of the Property or re-subdivisions of the Property previously
subdivided pursuant to the Subdivision Map Act; (vi) conditional
use permits; (vii) variances; (viii) encroachment permits;
(ix) sectional Planning Area plans; (x) Preserve Conveyance Plan
and (xi) all other reviews, permits, and approvals of any type
which may be required from time to time to authorize public or
private on- or off-site facilities which are a part of the Project.
2.18 "Planning Commission" means the Planning Commission
of the City of Chula vista.
2.19 "Preserve Conveyance Plan" means a plan that will,
when adopted, sets forth pOlicies and identify the schedule for
transfer of land and/or fees to be paid to insure the orderly
conveyance of the Otay Ranch land to the Preserve Owner Manager.
The purpose of the plan is to fulfill the obligations to convey
resource sensitive land, per the criteria contained in the phase I
and II Resource Management Plans and to mitigate environmental
impacts of the Otay Ranch Project.
2.20 "Public Facility" or "Public Facilities" means those
public facilities described in the Otay Ranch Facility
Implementation Plan.
2.21 "Subdivision Map Act" means the California
Subdivision Map Act, Government Code section 66410, et seq., and
its amendments as may from time to time be adopted.
2.22 "Substantial Compliance" means that the party
charged with the performance of a covenant herein has sufficiently
followed the terms of this Agreement so as to carry out the intent
of the parties in entering into this Agreement.
2.23 "Threshold" means the facility thresholds set forth
in the city's Municipal Code section 19.19.040.
3. TERM. This Agreement shall become effective as a
development agreement upon the effective date of the Annexation
("the Effective Date"); provided, however, that if the Annexation
does not occur on or before Julv JaRaaFY 1, 1997, this Agreement
shall be null and void unless the annexation proceedinqs have been
extended bv LAFCO. If the annexation proceedinqs have been
extended. this Aqreement shall become effective upon the effective
date of such Annexation: provided however. if the annexation does
not occur bv the end of such extension(s). this Aqreement shall
become null and void. Any of the foregoing to the contrary
notwithstanding, from the date of the first reading of the
ordinance approving this Agreement, and unless or until this
Agreement becomes null and void, Owner shall be bound by the terms
of paragraph.1.. The Term of this Agreement for purposes other than
Paragraph .1. shall begin upon the Effective Date, and shall continue
for a period of twenty (20) years ("the Term"). The Term shall
also be extended for any period of time during which issuance of
building permits to Owner is suspended for any reason other than
the default of Owner, and for a period of time equal to the period
of time during which any action by City or court action limits the
processing of future discretionary approvals, issuance of building
permits or any other development of the Property consistent with
-6- /S"O' 7
~_..__~_.__ _.___. ___N__.._·..··__·_.~_._~_·____·_~______
this Agreement.
4. OWNER CONSENT TO ANNEXATION. Owner hereby consents to
and shall cooperate with the applications of City to declare that
the Otay Valley Parcel is within City's sphere of influence and to
annex the Otay Valley Parcel to the City; provided, however, that
Owner may withdraw such consent and withhold further cooperation if
the city, prior to the Effective Date, adopts rules, regulations,
ordinances, policies, conditions, environmental regulations,
phasing controls, exactions, entitlements, assessments or fees
applicable to and governing development of the Property which are
inconsistent with, or render impractical development of the
Property according to, the Development Plan or the additional
commitments of City set forth in Paragraphs 5.1.1 through 5.1.5,
below. Owner also agrees not to challenge the annexation of the
Otay Valley Parcel into the city.
4 . 1 The Developer understands and aarees that this
Aareement shall become effective and valid onlv upon the
Effective Date of the annexation proceedinas. as more fullv
described in paraaraph 3 of this Aareement. Developer further
understands that as a condition precedent to the completion of
annexation proceedinas. and this Aareement becomina effective.
certain propertv owners such as SNMB. Ltd.. are reauired to
provide certain easements and subordination aareements
satisfactorv to the Countv. Developer aarees that the citv's
second readina of the Ordinance approvina this Aareement shall
not occur unless and until said subordination aareements have
been accepted bv the Countv. No terms of this Aareement shall
be subiect to reneaotiation between the first and second
readina of the ordinance approvina this Aareement except bv
mutual consent of the parties to this Aareement.
5. VESTED RIGHTS. Notwi thstanding any future action or
inaction of the city during the term of this Agreement, whether
such action is by ordinance, resolution or policy of the City,
Owner and Developer shall have a vested right, except as may be
otherwise provided in this Section 5, to construct the Project in
accordance with:
5.1 Existing Project Approvals, subject to the following
requests for modifications, if approved by the City:
5.1.1 If the interchange improvements at Otay
Valley Road and I-80S are needed to serve the Project, the
City will hold appropriate hearings to consider an amendment
to its Transportation Phasing Plan (TPP) and Development
Impact Fee (DIF) Program to include said improvements as may
be deemed appropriate by the City to accommodate the project
phasing. The City agrees to reasonably cooperate and work
with CALTRANS to complete plans for said interchange improve-
ment.
5.1. 2 city shall initiate contact and diligently
pursue discussions with the County of San Diego and the city
of San Diego to determine the number, scheduling and financing
of the Otay River road and bridge crossings.
-7- IS'ß,r
-.---. ..". _.....__._~._-- -.- - ----,----'.-,.
5.1. 3 city shall allow the owner for purposes of
processing entitlements to proceed with planning of the
Property on a first come first served basis, with other
properties in the area of the Annexation. In addition, if
necessary the City shall, with proper environmental review,
consider in its discretion an amendment to the Village Phasing
Plan to facilitate the planning and development of the
properties covered by this Agreement.
5.1.4 To the extent any of the foregoing
commitments of City are embodied in changes to the Development
Plan or the rules, regulations, ordinances, policies,
conditions, environmental regulations, phasing controls,
exactions, entitlements, assessments, and fees applicable to
and governing development of the Property, whether adopted
before or after the Effective Date, such changes shall be
deemed applicable to the Property without change to this
Agreement.
5.1.5 city shall diligently process any
amendments, applications, maps, or other development applica-
tions.
5.1.6 City may make such modifications or
amendments to the Existing Project Approvals/Future Discretionary
Approvals, as may be ordered by a court of competent jurisdiction,
in an action in which the Developer is a party or has had an
opportunity to appear or has been provided notice of such action by
the city.
5.2 Develoument of Prouertv. The development of the
Property will be governed by this Agreement and Existing Project
Approvals and such development shall comply and be governed by all
rules, regulations, policies, resolutions, ordinances, and
standards in effect as of the Effective Date subject to the
provisions of section 5.2.1 below. The City shall retain its
discretionary authority as to Future Discretionary Approvals,
provided however, such Future Discretionary Approvals shall be
regulated by the Existing Project Approvals, this Agreement, and
city rules, regulations, standards, ordinances, resolutions and
policies in effect on the Effective Date of this Agreement and
subject to section 5.2.1.
Notwithstanding the foregoing, the city may make such changes to
the city's Growth Management Ordinance applicable to the Project as
are reasonable and consistent with the purpose and intent of the
existing Growth Management Ordinance and which are generally
applicable to all private projects citywide or east of I-805 or
within a specific benefit, fee or reimbursement district created
pursuant to the California Government Code.
5.2.1 New or Amended Rules. Reaulations.
Policies. Standards. Ordinances and Resolutions. The city may
apply to the Project, including Future Discretionary Approv-
als, new or amended rules, laws, regulations, policies,
ordinances, resolutions and standards generally applicable to
-8- 150--9
_..._...,_._..._-".,~,~--.. ----.
all private projects east of 1-805 or within a specific
benefit fee or reimbursement district created pursuant to the
California Government Code. The application of such new
rules, or amended laws, regulations, resolutions, policies,
ordinances and standards will not unreasonably prevent or
delay development of the Property to the uses, densities or
intensities of development specified herein or as authorized
by the Existing Project Approvals. The city may also apply
changes in city laws, regulations, ordinances, standards or
policies specifically mandated by changes in state or federal
law in compliance with section 13.3 herein.
5.2.2 Developer may elect with City's consent,
to have applied to the project any rules, regulations,
policies, ordinances or standards enacted after the date of
this Agreement. Such an election has to be made in a manner
consistent with section 5.2 of this Agreement.
5.2.3 Modifications to Existinq Proiect
Approvals. It is contemplated by the parties to this
Agreement that the City and Developer may mutually seek and
agree to modifications to the Existing Project Approvals.
Such modifications are contemplated as within the scope of
this Agreement, and shall, upon written acceptance by all
parties, constitute for all purposes an Existing Project
Approval. The parties agree that any such modifications may
not constitute an amendment to this Agreement nor require an
amendment to the Agreement.
5.2.4 Future Discretionarv Approvals. It is
contemplated by the parties to this Agreement that the city
and Developer may agree to Future Discretionary Approvals. The
parties agree that any such Future Approvals may not consti-
tute an amendment to this Agreement nor require an amendment
to the Agreement.
5.3 Dedication and Reservation of Land for Public
Purposes. Except as expressly required by this Agreement or the
Existing Project Approvals and Future Discretionary Approvals
(excepting dedications required within the boundaries of any parcel
created by the subsequent subdivision of the Property as required
by the Subdivision Map Act), no dedication or reservation of real
property within or outside the Property shall be required by City
or Developer in conjunction with the Project. Any dedications and
reservations of land imposed shall be in accordance with section
7.2 and section 7.8 herein.
5.4 Time for Construction and Completion of Proiect.
Because the California Supreme Court held in Pardee Construction
Companv v. citv of Camarillo (1984) 27 Cal.3d 465, that the failure
of the parties to provide for the timing of development resulted in
a later-adopted initiative restricting the timing of development to
prevail over such parties' Agreement, it is the intention of the
parties to this Agreement to cure that deficiency by specifically
acknowledging that timing and phasing of development is completely
and exclusively governed by the Existing Project Approvals,
including the Chula vista Growth Management Ordinance. The purpose
of the Chula vista Growth Management Ordinance is to "control the
-9- ~..> ß'" /0
-- -----~---._.....~,._._.~-_._,--.- ---. ....-".---..---.---"--- --...-
timing and location of development by tying the pace of development
to the provision of public facilities and improvements to conform
to the city's threshold standards." (Municipal Code Section
19.09. 010A. 7) The findings in support of the Growth Management
Ordinance conclude that the ordinance "does not affect the number
of houses which may be built." (Municipal Code section
19.09.010B.3) Therefore, the parties acknowledge that the Chula
vista Growth Management Ordinance completely occupies the topic of
development timing and phasing and expressly precludes the adoption
of housing caps, urban reserves or any other means by which the
rate of development may be controlled or regulated. The City
agrees that the Developer shall be entitled to, apply for and
receive all permits necessary for the development of property,
consistent with the Growth Management Ordinance, Existing Project
Approvals, Future Discretionary Approvals and this Agreement.
5.5 Benefit of Vestinq. Nothing in this Agreement will
be construed as limiting or impairing Developer's vested right, if
any, to proceed with the development and use of the Property
pursuant to the Federal and State Constitutions, and pursuant to
statutory and decisional law.
5.6 vestinq of Entitlements. All rights conferred by
this Agreement vest with the Effective Date hereof. The approval
of Future Discretionary approvals shall not be deemed to limit
Developer's rights authorized by this Agreement, and once such
approvals are obtained they shall be vested to the same extent as
the Existing Project Approvals.
6. DEVELOPMENT PROGRAM.
6.1 processinq of Future Discretionarv Approvals. city
will accept and diligently process development applications and
requests for Future Discretionary Approvals, or other entitlements
with respect to the development and use of the Property, provided
said applications and requests are in accordance with this
Agreement. city costs for processing work related to the Project,
including hiring of additional city personnel and/or the retaining
of professional consultants, will be reimbursed to city by
Developer.
6.2 Lenqth of Validi tv of Tentative Subdivision Maps.
Government Code Section 66452.6 provides that tentative subdivision
map(s) may remain valid for a length up to the term of a Develop-
ment Agreement. The City agrees that tentative subdivision map(s)
for the property shall be for a term of six (6) years and may be
extended by the City Council for a period of time not to exceed a
total of twenty (20) years and in no event beyond the term of this
Agreement.
6.3 Pre-Final Map Development. If Developer desires to
do certain work on the Property after approval of a tentative map
(for example, grading) prior to the recordation of a final map, it
may do so by obtaining a grading and/or other required approvals
from the city which are authorized by the city prior to recordation
of a final map. Such permit shall be issued to Developer, or its
contractor, upon Developer's application, approval, and provided
-10- 150'1/
.-.---. . -~--- ...__.~-_._---_..._._.-
Developer posts a bond or other reasonably adequate security
required by City in an amount to assure the rehabilitation of the
land if the applicable final map does not record.
6.4 Final Maps.
6.4.1 "A" Maps and "B" Maps. If Developer so
elects, the city shall accept and process a master subdivision
or parcel map ("A" Map) showing "Super Block" lots and
backbone street dedications. "Super Block" lots shall be
consistent with the GDP and subsequent sectional Plan Area
plans, and shall not subdivide land into individual single-
family lots. All "Super Blocks" created shall have access to
dedicated public streets. The City shall not require improve-
ment plans in order to record a final map for any "A" Map
lots, but the city shall require bonding for the completion of
backbone facilities prior to recording in an amount to be
determined by the city. Following the approval by city of any
final map for an "A" Map lot and its recordation, Developer
may convey the "Super Block" lot. The buyer of a "Super
Block" lot shall then process final improvement plans and
grading plans and a final map ("B" Map) for each "Super Block"
lot which the City shall process. The "B" Maps shall be in
substantial conformance with the related approved "A" Map. In
the instance of the mUlti-family dwelling unit areas, a
separate tentative subdivision map may be submitted to the
city and the "B" Map(s) for these areas may be submitted to
the city after the city Planning Commission approves said
tentative subdivision map.
6.4.2 Recordation of Final Subdivision Map in
Name of Builder or Third Partv. Developer may, if it so
elects, convey to a Builder or third party any "super block"
lot(s) shown on the recorded Superblock Final Map. In such
case, the Builder or third party will (i) process any neces-
sary final improvement and grading plans and a final map for
each such "super block" lot, which map City shall accept and
process as subsequent phases in a multi-phase project, (ii)
enter into a subdivision improvement agreement with City with
respect to the subdivision improvements which are required for
such super block lot, and (iii) provide security and insurance
satisfactory to City for the completion of the subdivision
improvements.
6.4.3 Recordation of Final Subdivision Map in
Developer's Name: Transfer of Obliaations Under Subdivision
Improvement Aareement(s). If Developer so elects, it may
defer the conveyance of any super block lot to a Builder or
third party until after the final map of such super block lot
has been recorded. If Developer elects to proceed in this
manner, it will enter into City's standard subdivision
improvement agreement(s) with City for the improvements
required as a condition to the approval of such map(s). Upon
sale to a Builder or third party, if such Builder or third
party assumes Developer's obligations under the improvement
agreement and provides its own security and insurance for the
completion of the subdivision improvements as approved by the
city, Developer shall be released from liability under the
-11- /58"/ t2
-_.~.,.,.,-_.-,_._-_._-- ----
subdivision improvement agreement(s) and Developer's security
shall be released.
6.4.4 Transfer of Riahts and Obliaations of
DeveloDment. Whenever Developer conveys a portion of the
Property, the rights and obligations of this Agreement shall
transfer in accordance with section 15 herein.
7. DEVELOPER'S OBLIGATIONS.
7.1 Condition to DeveloDer's Obliaations to Dedicate. Fund or
Construct Public Facilities. Developer agrees to develop or
provide the public improvements, facilities, dedications, or
reservations of land and satisfy other exactions conditioning the
development of the Property which are set forth hereinbelow. The
obligations of the Developer pursuant to this Agreement are
conditioned upon: (i) the City not being in default of its obliga-
tions under this agreement; and (ii) the City not preventing or
unreasonably delaying the development of the property; and (iii)
the Agreement having not been suspended in response to changes in
state or federal law; and (iv) the city's obligations having not
been suspended pursuant to section 13.2.
7.2 Dedications and Reservations of Land for Public Purposes.
The policies by which property will be required to be reserved,
dedicated or improved for public purposes are identified in the
Existing Project Approvals. A more precise delineation of the
property to be preserved, dedicated or improved for public purposes
shall occur as part of Future Discretionary Approvals, consistent
with the Existing Project Approvals.
7.3 Growth Manaaement Ordinance. Developer shall commit the
public facilities and city shall issue building permits as provided
in this section. The city shall have the right to withhold the
issuance of building permits any time after the city reasonably
determines a Threshold has been exceeded, unless and until the
Developer has mitigated the deficiency in accordance with the
City's Growth Management Ordinance.
Developer agrees that building permits may be withheld where the
public facilities described in the Existing Project Approvals/-
Future Discretionary Approvals required for a particular Threshold
have not been committed.
In the event a Threshold is not met and future building permit
issuance may be withheld, the notice provisions and procedures
contained in section 19.09. 100C of the Municipal Code will be
followed. In the event the issuance of building permits is
suspended pursuant to the provisions herein, such suspension shall
not constitute a breach of the terms of this Agreement by Developer
or city. Furthermore, any such suspension which is not caused by
the actions or omissions of the Developer, shall toll the term of
this Agreement as provided for in section 16.12 of this Agreement,
and suspend the Developer's obligations pursuant to this Agreement.
7.3.1 Reauired Condemnation. The City and Developer
recognize that certain of the public facilities identified in
-12- 1S'8-1:1
-...- - -- - -+ - - --~--,--- ---_.._._._.._..~".".
the Existing Project Approvals/Future Discretionary Approvals
and required to comply with a threshold are located on
properties which neither the Developer nor the City has, or
will have, title to or control of. The City shall identify
such property or properties and at the time of filing of the
final map commence timely negotiations or, where the property
is within the City's jurisdiction, commence timely proceedings
pursuant to Title 7 (commencing with § 1230.010) of Part 3 of
the Code of civil Procedure to acquire an interest in the
property or properties. Developer's share of the cost
involved in any such acquisition shall be based on its
proportionate share of the public facility as defined in the
Existing Project Approvals/Future Discretionary Approvals.
Nothing in this Agreement shall be deemed to preclude the City
from requiring the Developer to pay the cost of acquiring such
off-site land. For that portion of the cost beyond the
Developer's fair share responsibility, the city shall take all
reasonable steps to establish a procedure whereby the develop-
er is reimbursed for such costs beyond its fair share.
7.3.2 Information Reqardinq Thresholds. Upon
Developer's written requests of the City Manager, the City
will provide Developer with information regarding the current
status of a Threshold. Developer shall be responsible for any
staff costs incurred in providing said written response.
7.4 Improvements Required bv a Subdivision Map. Asmay
be required pursuant to the terms of a subdivision map, it shall be
the responsibility of Developer to construct the improvements
required by a subdivision map. Where Developer is required to
construct a public improvement which has been identified as the
responsibility of another party or to provide public improvements
of supplemental size, capacity, number or length benefiting
property not within the subdivision, City shall process a reim-
bursement agreement to the Developer in accordance with Article 6
of Chapter 4 of the Subdivision Map Act, commencing with Government
Code section 66485, and section 7.5, below.
7.5 Facilities Which Are the Obliqations of Another
Partv. or Are of Excessive Size. Capacitv. Lenqth or Number.
Developer may offer to advance monies and/or construct public
improvements which are the responsibility of another land owner, or
outside the City's jurisdictional boundaries, or which are of
supplemental size, capacity, number or length for the benefit of
land not within the Property. City, where requesting such funding
or construction of oversized public improvements, shall consider
after a public hearing, contemporaneous with the imposition of the
obligation, the formation of a reimbursement district, assessment
district, facility benefit assessment, or reimbursement agreement
or other reimbursement mechanism.
7.6 pioneerinq of Facilities. To the extent Developer
itself constructs (i.e., "Pioneers") any public facilities or
public improvements which are covered by a DIF Program, Developer
shall be given a credit against DIFs otherwise payable, subject to
the City's Director of Public Works reasonable determination that
such costs are allowable under the applicable DIF Program. It is
-13- 15'0--1'1
- ----..._-~--,-_._-_._-------
specifically intended that Developer be given DIF credit for the
DIF Program improvements it makes. The fact that such improvements
may be financed by an assessment district or other financing
mechanism, shall not prevent DIF credit from being given to the
extent that such costs are allowed under the applicable DIF Program
7.7 Insurance. Developer shall name city as additional
insured for all insurance policies obtained by Developer for the
Project as pertains to the Developer's activities and operation on
the Project.
7.8 other Land Owners. Developer hereby agrees to
dedicate adequate rights-of-way within the boundaries of the
Property for other land owners to "Pioneer" public facilities on
the Property; provided, however, as follows: (i) dedications shall
be restricted to those reasonably necessary for the construction of
facilities identified in the City's adopted public facility plans;
(ii) this provision shall not be binding on the successors-in-
interest or assignees of Developer following recordation of the
final "Super Block" or "A" Map; and (iii) the City shall use its
reasonable best efforts to obtain agreements similar to this
subsection from other developers and to obtain equitable reimburse-
ment for Developer for any excess dedications.
8. DEVELOPMENT IMPACT FEES.
8.1 Existina Development Impact Fee Proaram Pavments.
Developer shall pay to the City a DIF, or construct improvements in
lieu of payment, for improvements which are conditions of a
tentative subdivision map upon the issuance of building permits (s) ,
or at a later time as specified by city ordinance, the Subdivision
Map Act, or Public Facility Financing Plan (PFFP). The DIF will be
in the amount in effect at the time payment is made and may only be
increased pursuant to section 8.6 herein.
8.2 Other Undeveloped Properties. The City will use its
reasonable best efforts to impose and collect, or cause the
imposition and collection of, the same DIF program on all the
undeveloped real properties which benefit from the provision of the
public facility through the DIF program, or provided as a condition
of Project Approvals.
8.3 Use of Development Impact Fee Proaram. The DIF
amounts paid to the City by Developer and others with respect to
the Area of Benefit shall be placed by the City in a capital
facility fund account established pursuant to california Government
Code sections 66000-66009. The City shall expend such funds only
for the Projects described in the adopted fee program as may be
modified from time to time. The city will use its reasonable best
efforts to cause such Projects to be completed as soon as practica-
ble; however, the City shall not be obligated to use its general
funds for such Projects.
8.4 withholdina of Permits. Developer agrees that City
shall have the right to withhold· issuance of the building permit
for any structure or improvement on the Property unless and until
the DIF is paid for such structure or improvement.
-14- 151l'/~
._.,--_._--_.._"_.._-~._--_..._-
8.5 Develoument Imuact Fee Credit. Upon the completion
and acceptance by the City of any public facility, the city shall
immediately credit Developer with the appropriate amount of cash
credits ("EDUs") as determined by Developer and city. However, if
the improvements are paid for through an Assessment District, the
city shall credit the Developer with the appropriate number of
Equivalent Dwelling Unit Credits (EDU's). Developer shall be
entitled to apply any and all credits accrued pursuant to this
subsection toward the required payment of future DIF for any phase,
stage or increment of development of the Project.
8.6 Modification of Develoument Imuact Fees. The
parties recognize that from time to time during the duration of the
Agreement it will be necessary for the City to update and modify
its DIF fees. Such reasonable modifications are contemplated by
the City and the Developer and shall not constitute a modification
to the Agreement so long as: (i) the modification incorporates the
reasonable costs of providing facilities identified in the Existing
Project Approvals; (ii) are based upon methodologies in substantial
compliance with the methodology contained in the existing DIF
programs; or other methodology approved by the City council
following a public hearing; (Hi) complies with the provisions of
Government Code sections 66000-66009.
8.7 Standards for Financina Obliaations of Owner. In
connection with the development of the Property, the following
standards regarding the financing of public improvements shall
apply:
8.7.1 Owner shall pay its fair share for the
interchanges described in Paragraph 5.1.1, based upon the
number of dwelling units or equivalent dwellings of develop-
ment allowed on the Property as compared to the total dwelling
units or equivalent dwelling units allowed on properties
served by such interchanges.
8.7.2 Owner shall participate in the DIF Program
for the Otay Valley Parcel with other owners in proportion to
the total dwelling units or equivalent dwelling units allowed
on the Property as compared with the total of such units
allowed on properties in that particular DIF or by some other
equitable methodology decided by the city Council.
8.7.3 The City shall diligently pursue the
requirements that the Eastern Territories' DIF requires
offsite third parties and adjacent jurisdictions to bear their
fair share of all Otay River Valley crossings.
9. CITY OBLIGATIONS.
9.1 Urban Infrastructure. To the extent it is within
the authority of the city to provide, city shall accommodate urban
infrastructure to the project, consistent with Existing Project
Approvals. Where it is necessary to utilize City property to
provide urban infrastructure consistent with the Existing Project
Approvals, the city agrees to make such land available for such
uses, provided that the city if it so chooses is compensated at
fair market value for the property. To the extent that the
-15- /~ß'/¿
"-
-
.. .~--._._._.- ..- ~"---'--'--"- . ---.....---..
provision of urban infrastructure is within the authority of
another public or quasi-public agency or utility, the City agrees
to fully cooperate with such agency or agencies to accommodate the
urban infrastructure, consistent with Existing Project Approvals.
Urban infrastructure shall include, but not be limited to gas,
electricity, telephone, cable and facilities identified in the Otay
Ranch Facility Implementation Plan.
9.2 Sewer Capacitv. The City agrees to provide adequate
sewer capacity for the project, upon the payment of ordinary and
necessary sewer connection, capacity and/or service fees.
10. ANNUAL REVIEW.
10.1 ci tv and Owner Responsibilities. ci ty will, at
least every twelve (12) months during the Term of this Agreement,
pursuant to California Government Code §65865.1, review the extent
of good faith substantial compliance by Owner with the terms of
this Agreement. Pursuant to California Government Code section
65865.1, as amended, Owner shall have the duty to demonstrate by
substantial evidence its good faith compliance with the terms of
this Agreement at the periodic review. Either City or Owner may
address any requirement of the Agreement during the review.
10.2 Evidence. The parties recognize that this Agreement
and the documents incorporated herein could be deemed to contain
hundreds of requirements and that evidence of each and every
requirement would be a wasteful exercise of the parties' resources.
Accordingly, Developer shall be deemed to have satisfied its good
faith compliance when it presents evidence of substantial com-
pliance with the major provisions of this Agreement. Generalized
evidence or statements shall be accepted in the absence of any
evidence that such evidence is untrue.
10.3 Review Letter. If Owner is found to be in com-
pliance with this Agreement after the annual review, city shall,
within forty-five (45) days after Owner's written request, issue a
review letter in recordable form to Owner ("Letter") stating that
based upon information known or made known to the Council, the City
Planning commission and/or the City Planning Director, this
Agreement remains in effect and Owner is not in default. Owner may
record the Letter in the Official Records of the county of San
Diego.
10.4 Failure of periodic Review. City's failure to
review at least annually Owner's compliance with the terms and
conditions of this Agreement shall not constitute, or be asserted
by city or Owner as, a breach of the Agreement.
11. DEFAULT.
11.1 Events of Default. A default under this Agreement
shall be deemed to have occurred upon the happening of one or more
of the following events or conditions:
11.1.1 A warranty, representation or statement
made or furnished by Owner to City is false or proves to have
been false in any material respect when it was made.
-16- /5'0-/7
I
.-.....--...-.------,.--.-...
11.1. 2 A finding and determination by City made
following a periodic review under the procedure provided for
in California Government Code section 65865.1 that upon the
basis of substantial evidence Owner has not complied in good
faith with one or more of the terms or conditions of this
Agreement.
11. 1. 3 City does not accept, timely review, or
consider requested development permits or entitlements
submitted in accordance with the provisions of this Agreement.
11.1. 4 Any other act or omission by City or Owner
which materially interferes with the terms of this Agreement.
11.2 Procedure Uuon Default.
11. 2 . 1 Upon the occurrence of default by the
other party, City or Owner may terminate this Agreement after
providing the other party thirty (30) days written notice
specifying the nature of the alleged default and, when
appropriate, the manner in which said default may be satis-
factorily cured. After proper notice and expiration of said
thirty (30) day cure period without cure, this Agreement may
be terminated. In the event that city's or Owner's default is
not subject to cure within the thirty (30) day period, city or
Owner shall be deemed not to remain in default in the event
that city or Owner commences to cure within such thirty (30)
day period and diligently prosecutes such cure to completion.
Failure or delay in giving notice of any default shall not
constitute a waiver of any default, nor shall it change the
time of default. Notwithstanding any other provision of this
Agreement, City reserves the right to formulate and propose to
Owner options for curing any defaults under this Agreement for
which a cure is not specified in this Agreement.
11. 2.2 City does not waive any claim of defect in
performance by Owner if, on periodic review, city does not
propose to modify or terminate this Agreement.
11. 2 . 3 Subject to Paragraph 16.12 of this
Agreement, the failure of a third person shall not excuse a
party's nonperformance under this agreement.
11. 2.4 Remedies Uuon Default. In the event of a
default by either party to this Agreement, the parties shall
have the remedies of specific performance, mandamus, injunc-
tion and other equitable remedies without having to first
prove there is an inadequate remedy at law. Neither party
shall have the remedy of monetary damages against the other;
provided, however, that the award of costs of litigation and
attorneys' fees shall not constitute damage.
12. ENCUMBRANCES AND RELEASES ON PROPERTY.
12.1 Discretion to Encumber. This Agreement shall not
prevent or limit Owner in any manner at Owner's sole discretion,
from encumbering the Property, or any portion of the Property, or
any improvement on the Property, by any mortgage, deed of trust, or
-17- I$P-I6'
,;.-\
'¿
---... .-...__.__._-_._-~.__.._---- ----.-.-- ._--_.--_.._---~-- --
other security device securing financing with respect to the
Property or its improvement.
12.2 Mortaaaee Riahts and Obliaations. The mortgagee of
a mortgage or beneficiary of a deed of trust encumbering the
Property, or any part thereof, and their successors and assigns
shall, upon written request to city, be entitled to receive from
City written notification of any default by Owner of the
performance of Owner's obligations under the Agreement which has
not been cured within thirty (30) days following the date of
default.
12.3 Releases. City agrees that upon written request of
Owner and payment of all fees and performance of the require-
ments and conditions required of Owner by this Agreement with
respect to the Property, or any portion thereof, city may
execute and deliver to Owner appropriate release(s) of further
obligations imposed by this Agreement in form and substance
acceptable to the San Diego County Recorder and title
insurance company, if any, or as may otherwise be necessary to
effect the release. City Manager shall not unreasonably
withhold approval of such release(s).
12.4 Obliaation to Modifv. City acknowledges that the
lenders providing financing for the Project may require certain
modifications to this Agreement and City agrees, upon request from
time to time, to meet with Owner and/or representatives of such
lenders to negotiate in good faith any such requirement for
modification. city will not unreasonably withhold its consent to
any such requested modification.
13. MODIFICATION OR SUSPENSION.
13.1 Modification to Aareement bv Mutual Consent. This
Agreement may be modified, from time to time, by the mutual consent
of the parties only in the same manner as its adoption by an
ordinance as set forth in California Government Code sections
65867, 65867.5 and 65868. The term, "this Agreement" as used in
this Agreement, will include any such modification properly
approved and executed.
13.2 Unforeseen Health or Safetv Circumstances. If, as
a result of facts, events, or circumstances presently unknown,
unforeseeable, and which could not have been known to the parties
prior to the commencement of this Agreement, City finds that
failure to suspend this Agreement would place the residents of city
in a severe and immediate emergency to their health or safety.
13.2.1 Notification of Unforeseen Circumstances.
Notify Developer of (i) City's determination; and (ii) the
reasons for City's determination, and all facts upon which
such reasons are based;
13.2.2 Notice of Hearina. Notify Developer in
writing at least fourteen (14) days prior to the date, of the
date, time and place of the hearing and forward to Developer
a minimum of ten (10) days prior to the hearings described in
Section 13.2.3, all documents related to such determination
-18- 15P-19
" .)
P'7;/'"
!/
.'-"'--. --".'..
and reasons therefor; and
13.2.3 Hearinq. Hold a hearing on the deter-
mination, at which hearing Developer will have the right to
address the City Council. At the conclusion of said hearing,
ci ty may take action to suspend this Agreement as provided
herein. The city may suspend this Agreement if, at the
conclusion of said hearing, based upon the evidence presented
by the parties, the city finds failure to suspend would place
the residents of the City in a severe and immediate emergency
to their health or safety.
13.3 Chanqe in state or Federal Law or Requlations. If
any state or federal law or regulation enacted during the Term of
this Agreement, or the action or inaction of any other affected
governmental jurisdiction, precludes compliance with one or more
provisions of this Agreement, or requires changes in plans, maps,
or permits approved by city, the parties will act pursuant to
Sections 13.3.1 and 13.3.2, below.
13.3.1 Notice: Meetinq. The party first becoming
aware of such enactment or action or inaction will provide the
other party(ies) with written notice of such state or federal
law or regulation and provide a copy of such law or regulation
and a statement regarding its conflict with the provisions of
this Agreement. The parties will promptly meet and confer in
a good faith and reasonable attempt to modify or suspend this
Agreement to comply with such federal or state law or regula-
tion.
13.3.2 Hearinq. If an agreed upon modification
or suspension would not require an amendment to this Agree-
ment, no hearing shall be held. Otherwise, the matter of such
federal or state law or regulation will be scheduled for
hearing before the City. Fifteen (15) days' written notice of
such hearing shall be provided to Developer, and the city, at
such hearing, will determine and issue findings on the
modification or suspension which is required by such federal
or state law or regulation. Developer, at the hearing, shall
have the right to offer testimony and other evidence. If the
parties fail to agree after said hearing, the matter may be
submitted to mediation pursuant to subsection 13.3.3, below.
Any modification or suspension shall be taken by the affirma-
tive vote of not less than a majority of the authorized voting
members of the city. Any suspension or modification may be
subject to judicial review in conformance with subsection
16.19 of this Agreement.
13.3.3 Mediation of Disputes. In the event the
dispute between the parties with respect to the provisions of
this paragraph has not been resolved to the satisfaction of
both parties following the city hearing required by subsection
13.3.2, the matter shall be submitted to mediation prior to
the filing of any legal action by any party. The mediation
will be conducted by the San Diego Mediation Center; if San
Diego Mediation Center is unable to conduct the mediation, the
-19- /50-.26
~-} ...
---....---,-..-.-..--,-. . -.-... ---------~-_._---,--
parties shall submit the dispute for mediation to the Judicial
Arbitration and Mediation Service or similar organization and
make a good faith effort to resolve the dispute. The cost of
any such mediation shall be divided equally between the
Developer and city.
13.4 Natural Communities Conservation Act INCCP). The
parties recognize that Developer and the city are individually
negotiating agreements with the United states Fish and Wildlife
Service ("USF&W") and the California Department of Fish and Game
pursuant to the ongoing regional effort to implement the Natural
Communities Conservation Act ("NCCP"), locally proposed to be
implemented through the MUlti-Species Conservation Program
("MSCP"). The parties further recognize that implementation of the
agreements may necessitate modification to the Existing Project
Approvals. The parties agree to utilize their best efforts to
implement these agreements, once executed, through the timely
processing of modifications to the Existing Project Approvals as
they relate to the Property. The Developer agrees to pay the
reasonable City cost for processing work related to the modifica-
tions. Once such modifications are obtained they shall be vested
to the same extent as Existing Project Approvals.
14. DISTRICTS. PUBLIC FINANCING MECHANISMS.
This Agreement and the Existing Project Approvals recognize
that assessment districts, community facility districts, or other
public financing mechanisms, may be necessary to finance the cost
of public improvements borne by this Project. If Developer,
pursuant to the Existing Project Approvals/Future Discretionary
Approvals, is required to install improvements through the use of
assessment districts, community facility districts, or other public
financing mechanisms, the city shall initiate and conclude
appropriate proceedings for the formation of such financing
district or funding mechanism, under applicable laws or ordinances.
Developer may request that the City utilize any other financing
methods which may become available under city laws or ordinances.
All costs associated with the consideration and formation of such
financing districts or funding mechanisms shall be paid by
Developer subject to reimbursement, as may be legally authorized
out of the proceeds of any financing district or funding mechanism.
15. ASSIGNMENT AND DELEGATION.
15.1 Assianment. Owner shall have the right to transfer
or assign its interest in the Property, in whole or in part,
to any persons, partnership, joint venture, firm, or corpora-
tion at any time during the Term of this Agreement without the
consent of City. Owner also shall have the right to assign or
transfer all or any portion of its interest or rights under
this Agreement to third parties acquiring an interest or
estate in the Property at any time during the Term of this
Agreement without the consent of city.
15.2 Deleaation. In addition, Owner shall have the
right to delegate or transfer its obligations under this
Agreement to third parties acquiring an interest or estate in
the Property after receiving the prior written consent of the
-20- I.s'p'. ./
-_._.._-----~ --
City Manager, which consent shall not be unreasonably with-
held, delayed, or conditioned. Once the City Manager has
consented to a transfer, delivery to and acceptance by the
city Manager of an unqualified written assumption of Owner's
obligations under this Agreement by such transferee shall
relieve Owner of the obligations under this Agreement to the
extent the obligations have been expressly assumed by the
transferee. Such transferee shall not be entitled to amend
this Agreement without the written consent of the entity that,
as of the Effective Date, is Owner, which consent shall not be
unreasonably withheld, delayed, or conditioned. The entity
that is Owner as of the Effective Date, however, shall be
entitled to amend this Agreement without the written consent
of such transferee.
16. MISCELLANEOUS PROVISIONS.
16.1 Bindina Effect of Aareement. Except to the extent
otherwise provided in this Agreement, the burdens of this Agreement
bind, and the benefits of this Agreement inure, to City's and
Owner's successors-in-interest and shall run with the land.
16.2 RelationshiD of citv and Owner. The contractual
relationship between City and Owner arising out of this Agreement
is one of independent contractor and not agency. This Agreement
does not create any third-party beneficiary rights.
16.3 Notices. All notices, demands, and correspondence
required or permitted by this Agreement shall be in writing and
delivered in person, or mailed by first-class or certified mail,
postage prepaid, addressed as follows:
If to City, to: City of Chula vista
276 Fourth Avenue
Chula Vista, CA 91910
Attention: City Manager
If to Owner, to: Jewels of Charity, Inc.
705 Severn Road, suite 1040
Wilmington, DE 19803
Attention: Patrick Patek
with a Copy to: STEPHENSON, WORLEY, GARRATT
SCHWARTZ, HEIDEL & PRAIRIE
101 West Broadway, suite 1300
San Diego, CA 92101
Attention: Donald R. Worley, Esq.
city or Owner may change its address by giving notice in writing to
the other. Thereafter, notices, demands, and correspondence shall
be addressed and transmitted to the new address. Notice shall be
deemed given upon personal delivery, or, if mailed, two (2)
business days following deposit in the united States mail.
16.4 Rules of Construction. In this Agreement, the use
of the singular includes the plural; the masculine gender includes
the feminine; "shall" is mandatory; "may" is permissive.
-21- I5'ß-.J~
- __ ___.__,._._____._.~_.._ . .___ .. 0"'_----" __~__ .___.,.__...._
16.5 Entire Aareement. Waivers. and Recorded statement.
This Agreement constitutes the entire understanding and agreement
of city and Owner with respect to the matters set forth in this
Agreement. This Agreement supersedes all negotiations or previous
agreements between City and Owner respecting this Agreement. All
waivers of the provisions of this Agreement must be in writing and
signed by the appropriate authorities of city and Owner. Upon the
completion of performance of this Agreement, or its revocation or
termination, a statement evidencing completion, revocation, or
termination signed by the appropriate agents of City shall be
recorded in the Official Records of San Diego County, California.
16.6 Pro;ect as a Private Undertakina. It is
specifically understood by City and OWner that (i) the Project is
a private development; (H) City has no interest in or
responsibilities for or duty to third parties concerning any
improvements to the Property until City accepts the improvements
pursuant to the provisions of the Agreement or in connection with
subdivision map approvals; and (Hi) Owner shall have the full
power and exclusive control of the Property subject to the
obligations of Owner set forth in this Agreement.
16.7 Incorporation of Recitals. The recitals set forth
in Paragraph 1 of this Agreement are part of this Agreement.
16.8 Captions. The captions of this Agreement are for
convenience and reference only and shall not define, explain,
modify, construe, limit, amplify, or aid in the interpretation,
construction, or meaning of any of the provisions of this
Agreement.
16.9 Consent. Where the consent or approval of City or
Owner is required or necessary under this Agreement, the consent or
approval shall not be unreasonably withheld, delayed, or con-
ditioned.
16.10 Covenant of Cooperation. City and Owner shall
cooperate and deal with each other in good faith, and assist each
other in the performance of the provisions of this Agreement.
16.11 Recordina. The City Clerk shall cause a copy of
this Agreement to be recorded with the Office of the County
Recorder of San Diego County, California, within ten (10) days
following the Effective Date.
16.12 Delav. Extension of Time for Performance. In
addition to any specific provision of this Agreement, performance
by either city or Owner of its obligations hereunder shall be
excused, and the Term of this Agreement and the Development Plan
extended, during any period of delay caused at any time by reason
of any event beyond the control of City or Owner which prevents or
delays and impacts city's or Owner's ability to perform obligations
under this Agreement, including, but not limited to, acts of God,
enactment of new conflicting federal or state laws or regulations
(example: listing of a species as threatened or endangered) ,
judicial actions such as the issuance of restraining orders and
injunctions, riots, strikes, or damage to work in process by reason
of fire, floods, earthquake, or other such casualties. If city or
-22- 15!1'~'
~._-------_. . """-
Owner seeks excuse from performance, it shall provide written
notice of such delay to the other within thirty (30) days of the
commencement of such delay. If the delay or default is beyond the
control of City or Owner, and is excused, an extension of time for
such cause will be granted in writing for the period of the
enforced delay, or longer as may be mutually agreed upon.
16.13 Covenant of Good Faith and Fair Dealinas. No party
shall do anything which shall have the effect of harming or
injuring the right of the other parties to receive the benefits of
this Agreement; each party shall refrain from doing anything which
would render its performance under this Agreement impossible; and
each party shall do everything which this Agreement contemplates
that such party shall do in order to accomplish the objectives and
purposes of this Agreement.
16.14 Operatina Memorandum. The parties acknowledge that
the provisions of this Agreement require a close degree of
cooperation between City and Developer, and that the refinements
and further development of the Project may demonstrate that minor
changes are appropriate with respect to the details of performance
of the parties. The parties, therefore, retain a certain degree of
flexibility with respect to those items covered in general under
this Agreement. When and if the parties mutually find that minor
changes or adjustments are necessary or appropriate, they may
effectuate changes or adjustments through operating memoranda
approved by the parties. For purposes of this section 16.14, the
City Manager, or his designee, shall have the authority to approve
the operating memoranda on behalf of city. No operating memoranda
shall require notice or hearing or constitute an amendment to this
Agreement.
16.15 Time of Essence. Time is of the essence in the
performance of the provisions of this Agreement as to which time is
an element.
16.16 Amendment or Cancellation of Aareement. This
Agreement may be amended from time to time or canceled by the
mutual consent of City and Owner only in the same manner as its
adoption, by an ordinance as set forth in California Government
Code section 65868, and shall be in a form suitable for recording
in the Official Records of San Diego County, California. The term
"Agreement" shall include any such amendment properly approved and
executed. city and Owner acknowledge that the provisions of this
Agreement require a close degree of cooperation between them, and
that minor or insubstantial changes to the Project and the
Development Plan may be required from time to time to accommodate
design changes, engineering changes, and other refinements.
Accordingly, changes to the Project and the Development Plan that
do not result in a change in use, an increase in density or
intensity of use, cause new or increased environmental impacts, or
violate any applicable health and safety regulations, may be
considered minor or insubstantial by the city Manager and made
without amending this Agreement.
16.17 Estoppel certificate. Within 30 calendar days
following a written request by any of the parties, the other
parties to this Agreement shall execute and deliver to the
-23- 150 'J.'/
.,
requesting party a statement certifying that (i) this Agreement is
unmodified and in full force and effect, or if there have been
modifications hereto, that this Agreement is in full force and
effect as modified and stating the date and nature of such
modifications; (ii) there are no known current uncured defaults
under this Agreement, or specifying the dates and nature of any
such default; and (iii) any other reasonable information requested.
The failure to deliver such a statement within such time shall
constitute a conclusive presumption against the party which fails
to deliver such statement that this Agreement is in full force and
effect without modification, except as may be represented by the
requesting party, and that there are no uncured defaults in the
performance of the requesting party, except as may be represented
by the requesting party.
16.18 Severabili tv. If any material provision of this
Agreement is held invalid, this Agreement will be automatically
terminated with neither party bearing any liability hereunder.
Notwithstanding the foregoing, within 15 days after such provision is
held invalid, if the party holding rights under the invalidated
provision affirms the balance of this Agreement in writing this
Agreement shall not be terminated. This provision will not affect
the right of the parties to modify or suspend this Agreement by
mutual consent pursuant to Paragraph 12.4.
16.19 Institution of Leaal Proceedina. In addition to any
other rights or remedies, any party may institute legal action to
cure, correct, or remedy any default, to enforce any covenants or
agreements herein, or to enjoin any threatened or attempted violation
thereof; to recover damages for any default as allowed by this
Agreement or to obtain any remedies consistent with the purpose of
this Agreement. Such legal actions must be insti tuted in the
Superior Court of the County of San Diego, State of California.
16.20 Attornevs' Fees and Costs. If any party commences
litigation or other proceedings (including, without limitation,
arbitration) for the interpretation, reformation, enforcement, or
rescission of this Agreement, the prevailing party, as determined by
the court, will be entitled to its reasonable attorneys' fees and
costs.
16.21 Hold Harmless. Developer agrees to and shall hold
City, its officers, agents, employees and representatives harmless
from liability for damage or claims for damage for personal injury,
including death, and claims for property damage which may arise from
the direct or indirect operations of Developer or those of its
contractors, subcontractors, agents, employees or other persons
acting on Developer's behalf which relate to the Project. Developer
agrees to and shall defend City and its officers, agents, employees
and representatives from actions for damage caused or alleged to have
been caused by reason of Developer's activities in connection with
the Project. Developer agrees to indemnify, hold harmless, pay all
costs and provide a defense for city in any legal action filed in a
court of competent jurisdiction by a third party challenging the
validity of this Agreement. The provisions of this section 16.21
shall not apply to the extent such damage, liability or claim is
caused by the intentional or negligent act or omission of city, its
officers, agents, employees or representatives.
-24- /.$'8'»
_^"... ___.,._. _..~. ___._, _ '__m~_'_'_____~_'_'____""____"'____·"_
17. AUTHORITY
Each signatory and party hereto hereby warrants and represents
to the other party that it has legal authority and capacity and
direction from its principal to enter into this Agreement, and that
all resolutions or other actions have been taken so as to enable it
to enter into this Agreement.
-25- /5'0....,1.(,
~.----_... --~_..,--,..._~..._-_..,.----_.__..._.._._..,-- -.
SIGNATURE PAGE TO PRE-ANNEXATION DEVELOPMENT AGREEMENT.
Dated this _ day of , 1997.
"CITY"
CITY OF CHULA VISTA
By:
SHIRLEY HORTON, MAYOR
"OWNER"
JEWELS OF CHARITY
By:
PATRICK PATEK, PRESIDENT
I hereby approve the form and legality of the foregoing Pre-
Annexation Development Agreement this day of , 1997.
John M. Kaheny, City Attorney
By:
Ann Moore
Assistant City Attorney
-26- J50'.l7
...-.- .-.-----.,._------ --..-----..--
,
EXHIBIT A
~{ft..
-.-
'-- ---
-- --
- -
OlY OF
CHUIA VISTA
PLANNING DEPARTMENT
STEPHEN AND MARY BIRCH FOUNDATION 7/3/96
JS'ß .,,~V
_._._-._--_.._-~._--------- - ---~-_.._--_._------~~-_.~--~---.
, - ,
. .
~
'" '" ... "
-" - :¡
'" c: .!!!õ", '" t::
.- ::I " - z~ ~5
>0 > '" u c:c: - ¡,;
c:
,!!!CD .......t: "'0 "", " '" ~! I/¡ ~ ¡
-",'" E+:: c>
::I » ::I.r: ::I c>E c: ....
c .s::.=: .r:. ~;:: E~", "'.r: "'-« Š (~Ô> i ;
z uu uen.E Ou ...J'"
0"'", c.",,,, .- »
W uc:", »u"
0"'''' "''''::I 7J! ~ ~:S; ;
C) C>c:.... ....C>....
1 D::«« -=
w c..c« Oenen U o~ i '
...J 1
I ~
1 æ u:
c.:
1 c
...
1 c.:
, '
. III
.E
~
- "I-
I ]
--I
1
I
L_,
...J
1 ..,
l,
I
'\""" ,I
. -)
0
Z ,
c \...- - J
n3 0 J
..... .- J
en.....
._ CI:S t'~
m>'~
.... n3 C
__ - ca
.c:::lC)
.- .!:
~(,) 0
W...... Q)
00:::
~.'5
(,) c
CI:S
0:::
>-
CI:S
.....
0
.,
, .
.
EXHIBIT 'C' I
Pre-annexation Development Aoraemant
Planning Area Assessor Ownership Acreaoe
Parcel Numbars
Ranch House S9S-090-oS Steohen & Marv Birch 71.S6
Ranch House S9S-090..Q6 Stephen & Mary Birch 0.22
Ranch House S9S-090-o8 Steohen & Marv Birch 96.2S
168.03 Total
J5'ß-JP
_m_____'_ --~.- -----~---,.,~....._----_._._- -". ._--._-. ---------
ORDINANCE NO. ~ 7d.,2
AN ORDINANCE OF THE CITY OF CHULA VISTA
ADOPTING THE RESTATED AND AMENDED PRE-
ANNEXATION DEVELOPMENT AGREEMENT WITH STEPHEN
AND MARY BIRCH FOUNDATION
WHEREAS, on August 6, 1996, the City Council approved
Ordinance 2689 on first reading, which adopted the Pre-Annexation
Development Agreement between the City of Chula vista and Stephen
and Mary Birch Foundation ("Previously Negotiated Agreement"); and
WHEREAS, the Previously Negotiated Agreement was not
executed by Stephen and Mary Birch Foundation so no second reading
of the ordinance was held and therefore no agreement is currently
in existence; and
WHEREAS, there is now a mutual desire by the City and
Stephen and Mary Birch Foundation to restate and amend the
Previously Negotiated Agreement in order for the Previously
Negotiated Agreement to become effective ("Restated Agreement");
and
WHEREAS, on February 19, 1997, the Planning Commission
reviewed the Restated Agreement and voted to approve same; and
NOW, THEREFORE, the City Council of the city of Chula
vista ordains as follows:
SECTION I: The City Council does hereby adopt, amend and
restate the Restated and Amended Pre-Annexation Development
Agreement with Stephen and Mary Birch Foundation on file in the
office of the City Clerk as Document No. .
SECTION II: The Mayor of the City of Chula Vista is
hereby authorized and directed to execute said Restated Agreement
for and on behalf of the City of Chula Vista.
SECTION III: This ordinance shall take effect and be of
full force on the effective date of annexation as set forth in the
attached Restated Agreement.
Presented by Approved as to form by
George Krempl, Deputy City Ov--~_~
John M. Kaheny, City Attorney
Manager
C:\or\birch
15C-1
~_··,__·,_..·.____·__._..__......_._w,.,.____._.~__~____~.____
AMENDED AND RESTATED
PRE-ANNEXATION DEVELOPMENT AGREEMENT
THIS AMENDED AND RESTATED PRE-ANNEXATION DEVELOPMENT AGREEMENT
("Agreement") is made effective on the date hereinafter set forth
below by and among the CITY OF CHULA VISTA ("City") and STEPHEN AND
MARY BIRCH FOUNDATION ("Foundation"), who agree as follows:
1. RECITALS. This Agreement is made with respect to the
following facts:
1. 1 Owner. The owners of the properties subj ect to this
Agreement (hereinafter collectively referred to as "Owner" or as
"Developer") are as follows:
1.1.1 Foundation is the owner of approximately
168 acres of undeveloped real property ("the Foundation
Property") in the unincorporated area of the county, described
in Exhibits "A" and "C", attached hereto and incorporated
herein by this reference.
1.1.2 The Foundation property ("Property") is
part of a larger area commonly known, and referred to herein,
as "the Otay Valley Parcel of otay Ranch."
1.2 ci tv. The City of Chula vista is a municipal
corporation with Charter City powers incorporated within the
County.
1.3 Code Authorization and Acknowledaments.
1.3.1 City is authorized pursuant to its
charter, self-rule powers and California Government Code
sections 65864 through 65869.5 to enter into development
agreements for the purpose of establishing certainty for both
city and owners of real property in the development process.
1.3.2 Government Code section 65865 expressly
authorizes a city to enter into a development agreement with
any person having a legal or equitable interest in real
property in unincorporated territory within that city's sphere
of influence for the development of property as provided in
the Development Agreement Law; provided that the agreement
shall not become operative unless annexation proceedings
annexing the property to the city are completed within the
time specified by the agreement.
1.3.3 city enters into this Agreement pursuant
to the provisions of the California Government Code, its home-
rule powers, and applicable City ordinances, rules, regula-
tions and policies.
1.3.4 city and Owner intend to enter into this
agreement for the following purposes:
-1- J$C-~
_.._---,-- ..-.-..---.. -,_.._._....._~_._._-_._----_.._-
1.3.4.1 To assure adequate pUblic facilities
at the time of development.
1.3.4.2 To assure development in accordance
with city's capital improvement plans.
1. 3 . 4 . 3 To provide certainty to Owner in the
development approval process by vesting the permitted
use(s), density, intensity of use, and the timing and
phasing of development as described in the Development
Plan, which is defined in Paragraph 2.4 of this Agree-
ment, in exchange for Owner's entering into this Agree-
ment and for its commitment to support the Annexation
described below.
1.3.4.4 To permit achievement of City growth
management goals and objectives.
1.3.4.5 To allow City to realize significant
economic, recreational, park, open space, social, and
public facilities benefits for the city, some of which
are of regional significance.
1.3.4.6 To provide and assure that the City
receive sales tax revenues, increase in the property tax
base, residential housing and other development, sewer,
water and street facilities.
1.3.4.7 To provide and assure that the City
receives public facilities in excess of project generated
impacts and such facilities shall be of supplemental
size, number capacity or length, which shall be provided
earlier than could be provided either by funds from the
city or than would strictly be necessary to mitigate
project related impacts at any development phase.
1.3.4.8 To provide the City the developer's
support to secure annexation of the lands depicted in
Exhibit "B".
1. 3 . 4 . 9 To enable the city to secure title to
the land within the boundaries of the Property necessary
to complete the Chula vista greenbelt system as defined
in the Chula vista General Plan.
1.3.4.10 Because of the complexities of the
financing of the infrastructure, park, open space, and
other dedications, and regional and community facilities,
and the significant nature of such facilities, certainty
in the development process is an absolute necessity. The
phasing, timing, and development of public infrastructure
necessitate a significant commitment of resources,
planning, and effort by Owner for the public facilities
financing, construction, and dedication to be success-
fully completed. In return for Owner's participation and
-2- 15C -;l
.-"' --- - -~,- ---~--_.__.__._---~--_...._--
commitment to these significant contributions of private
resources for public purposes and for Owner's consent to
the Annexation described below, City is willing to
exercise its authority to enter into this Agreement and
to make a commitment of certainty for the development
process for the Property.
1.3.4.11 In consideration of Owner's agreement
to provide the significant benefits and for Owner's
consent to the Annexation described below, City hereby
grants Owner assurances that it can proceed with develop-
ment of the Property in accordance with City's
ordinances, rules, regulations, and policies existing as
of the effective date of this Agreement subject to
section 5.2.1 below. Owner would not enter into this
Agreement or agree to provide the public benefits and
improvements described in this Agreement if it were not
for the commitment of city that the Property subject to
this Agreement can be developed in accordance with City's
ordinances, rules, regulations, and policies existing as
of the effective date of this Agreement subject to
section 5.2.1 below.
1.4 The Annexation. On July 1, 1996, the Local Agency
Formation Commission ("LAFCO") approved annexation of Sphere of
Influence Planning Area 1 "The otay Parcel", Planning Area 2
"Inverted L" and the Mary Patrick Estate Parcel (see Attachment
"B") .
1.5 Sphere of Influence. On February 5, 1996 and July
1, 1996 the Local Agency Formation Commission approved the
inclusion of Planning Area 1, "The "Otay Parcel", into the city
Sphere of Influence (Sphere of Influence Planning Area 1 "the otay
Parcel", Planning Area 2 "Inverted L" and the Mary Patrick Estate
Parcel - see Attachment "B").
1.6 Plannina Documents. On October 28, 1993, City and
County adopted the Otay Ranch General Development Plan/Subregional
Plan ("the GDP") which includes the Otay Ranch Village Phasing
Plan, Facility Implementation Plan, Resource Management Plan and
Service Revenue Plan, for approximately 23,000 acres of the Otay
Ranch, including the Otay Valley Parcel and the Foundation
property.
1. 7 Owner Consent. City desires to have the cooperation
and consent of Owner to include the Property in the Annexation in
order to better plan, finance, construct and maintain the infra-
structure for the Otay Valley Parcel; and the Foundation desires to
give their cooperation and consent, provided that they obtain
certain assurances, as set forth in this Agreement.
1. 8 Citv Ordinance. , 19961. is the
date of adoption by the City Council of Ordinance No. ~
approving this Agreement. The ordinance shall take effect and be
in full force on the effective date of Annexation.
-3- Ifc-Jf
m_·_ ..____ ..__...._...__._...._ ___.
2. DEFINITIONS. In this Agreement, unless the context
otherwise requires:
2.1 "Annexation" means the proposed annexation of that
portion of the Otay Ranch into the City as depicted on Exhibit "D".
2.2 "City" means the City of Chula Vista, in the County
of San Diego, State of California.
2.3 "County" means the County of San Diego, State of
California.
2.4 "Development Plan" means the GDP.
2.5 "GDP" means the General Development Plan/Subregional
Plan for the otay Ranch, described in Paragraph 1.6, above.
2.6 "Owner" or "Developer" means the person, persons, or
entity having a legal and equitable interest in the Property, or
parts thereof, and includes Owner's successors-in-interest.
2.7 "Project" means the physical development of the
private and pUblic improvements on the Property as provided for in
the Existing Project Approvals and as may be authorized by the City
in Future Discretionary Approvals.
2.8 "Property" means the real property described in
Paragraph 1.1.1.
2.9 The "Term" of this Agreement means the period
defined in Paragraph 3, below.
2.10 "Builder" means developer to whom Developer has sold
or conveyed property within the Property for purposes of its
improvement for residential, commercial, industrial or other use.
2.11 "CEQA" means the California Environmental Quality
Act, California Public Resources Code section 21000, et seq.
2.12 "city Council" means the City of Chula Vista city
Council.
2.13 "Commit" or "Committed" means all of the following
requirements have been met with respect to any public facility:
2.13.1 For a pUblic facility within the city's
jurisdictional boundaries and a responsibility of the develop-
er.
2. 13 . 1. 1 All discretionary permits required of
the Developer have been obtained for construction of the
public facility;
-4- I.>C-f
·_··__·_'___"'_."'_M . ~._
2.13.1.2 Plans for the construction of the
public facility have all the necessary governmental
approvals; and
2 . 13 . 1. 3 Adequate funds (i.e. , letters of
credit, cash deposits, performance bonds or land secured
public financing, including facility benefit assessments,
Mello-Roos assessment districts of similar assessment
mechanism) are available such that the City can construct
the public facility if construction has not commenced
within thirty (30) days of issuance of a notice to
proceed by the Director of Public Works, or construction
is not progressing towards completion in a reasonable
manner as reasonably deemed by the Director of Public
Works.
2.13.2 For a public facility within the City's
jurisdictional boundaries, but to be provided by other than
Developer.
2.13.2.1 Developer's proportionate share of
the cost of such public facility as defined in the
existing Project Approvals and Future Discretionary
Approvals has been provided or assured by Developer
through the payment or impositions of development impact
fee or other similar exaction mechanism.
2.13.3 For public facility not within City's
jurisdictional boundaries:
2.13.3.1 Developer's proportionate share of
the cost of such public facility as defined in the
existing Project Approvals and Future Discretionary
Approvals has been provided for or otherwise assured by
Developer to the reasonable satisfaction of the Director
of Public Works.
2.14 "Development Impact Fee (DIF)" means fees imposed
upon new development pursuant to the city of Chula vista
Development Impact Fee Program, for example, including but not
limited to the Transportation Development Impact Fee Program, the
Interim SR-125 Development Impact Fee Program, the Salt Creek Sewer
DIF and the Public Facilities DIF.
2.15 "Existing Project Approvals" means all discretionary
approvals affecting the Project which have been approved or
established in conjunction with, or preceding, the effective date
consisting of, but not limited to the GDP, the Chula vista General
Plan, the otay Ranch Reserve Fund Program adopted pursuant to
Resolution 18288, and the Phase I and II Resource Management Plan
(RMP) , as may be amended from time to time consistent with this
agreement.
-5- l.r~-~
--" ~ _..~."--_.,----,,_._.,,. -.--......-
2.16 "Final Map(s)" means any final subdivision map for
all or any portion of the Property other than the Superblock Final
Map ("A" Maps).
2.17 "Future Discretionary Approvals" means all permits
and approvals by the City granted after the effective date and
excluding existing project Approvals, including, but not limited
to: (i) grading permits; (ii) site plan reviews; (iii) design
guidelines and reviews; (i v) precise plan reviews; (v) subdivisions
of the Property or re-subdivisions of the Property previously
subdivided pursuant to the Subdivision Map Act; (vi) conditional
use permits; (vii) variances; (viii) encroachment permits;
(h) sectional Planning Area plans; (x) Preserve Conveyance Plan
and (xi) all other reviews, permits, and approvals of any type
which may be required from time to time to authorize public or
private on- or off-site facilities which are a part of the Project.
2.18 "Planning Commission" means the Planning commission
of the City of Chula vista.
2.19 "Preserve Conveyance Plan" means a plan that will,
when adopted, set forth policies and identify the schedule for
transfer of land and/or fees to be paid to insure the orderly
conveyance of the Otay Ranch land to the Preserve Owner Manager.
The purpose of the plan is to fulfill the obligations to convey
resource sensitive land, per the criteria contained in the phase I
and II Resource Management Plans and to mitigate environmental
impacts of the Otay Ranch Project.
2.20 "Public Facility" or "Public Facilities" means those
public facilities described in the otay Ranch Facility
Implementation Plan.
2.21 "Subdivision Map Act" means the California
Subdivision Map Act, Government Code section 66410, et seq., and
its amendments as may from time to time be adopted.
2.22 "Substantial Compliance" means that the party
charged with the performance of a covenant herein has sufficiently
followed the terms of this Agreement so as to carry out the intent
of the parties in entering into this Agreement.
2.23 "Threshold" means the facility thresholds set forth
in the City's Municipal Code section 19.19.040.
3. TERM. This Agreement sha 11 become effective as a
development agreement upon the effective date of the Annexation
("the Effective Date"); provided, however, that if the Annexation
does not occur on or before Julv Ja~uary 1, 1997, this Agreement
shall be null and void unless the annexation proceedinqs have been
extended bv LAFCO. If the annexation proceedinqs have been
extended. this Aqreement shall become effective upon the effective
date of such Annexation: provided however. if the annexation does
not occur bv the end of such extensionls) . this Aqreement shall
become null and void. Any of the foregoing to the contrary
-6- /5c.-7
_.._--,-~_._--- -- - -..---- . - .~...._..._--_._-_._..- -- -- -.-
notwithstanding, from the date of the first reading of the
ordinance approving this Agreement, and unless or until this
Agreement becomes null and void, Owner shall be bound by the terms
of Paragraph~. The Term of this Agreement for purposes other than
Paragraph ~ shall begin upon the Effective Date, and shall continue
for a period of twenty (20) years ("the Term"). The Term shall
also be extended for any period of time during which issuance of
building permits to Owner is suspended for any reason other than
the default of Owner, and for a period of time equal to the period
of time during which any action by city or court action limits the
processing of future discretionary approvals, issuance of building
permits or any other development of the Property consistent with
this Agreement.
4. OWNER CONSENT TO ANNEXATION. Owner hereby consents to
and shall cooperate with the applications of City to declare that
the Otay Valley Parcel is within City's sphere of influence and to
annex the Otay Valley Parcel to the City; provided, however, that
Owner may withdraw such consent and withhold further cooperation if
the city, prior to the Effective Date, adopts rules, regulations,
ordinances, policies, conditions, environmental regulations,
phasing controls, exactions, entitlements, assessments or fees
applicable to and governing development of the Property which are
inconsistent with, or render impractical development of the
Property according to, the Development Plan or the additional
commitments of city set forth in Paragraphs 5.1.1 through 5.1.5,
below. Owner also agrees not to challenge the annexation of the
Otay Valley Parcel into the City.
4.1 The Developer understands and aqrees that this
Aqreement shall become effective and valid on Iv upon the
Effective Date of the annexation proceedinqs. as more fullv
described in paraqraph 3 of this Aqreement. Developer further
understands that as a condition precedent to the completion of
annexation proceedinqs. and this Aqreement becominq effective.
certain propertv owners such as SNMB. Ltd.. are required to
provide certain easements and subordination aqreements
satisfactorv to the County. Developer aqrees that the city's
second readinq of the Ordinance approvinq this Aqreement shall
not occur unless and until said subordination aqreements have
been accepted bv the County. No terms of this Aqreement shall
be subíect to reneqotiation between the first and second
readinq of the ordinance approvinq this Aqreement except bv
mutual consent of the parties to this Aqreement.
5. VESTED RIGHTS. Notwithstanding any future action or
inaction of the city during the term of this Agreement, whether
such action is by ordinance, resolution or policy of the City,
Owner and Developer shall have a vested right, except as may be
otherwise provided in this section 5, to construct the Project in
accordance with:
5.1 Existing Project Approvals, subject to the following
requests for modifications if approved by the City:
-7- JS'c-r
--~._--_.~----~-,~._-_.- ----- ----~-- - ---.---------..-...-- ---"---------
5.1.1 If the interchange improvements at otay
Valley Road and I-805 are needed to serve the Project, the
City will hold appropriate hearings to consider an amendment
to its Transportation Phasing Plan (TPP) and Development
Impact Fee (DIF) Program to include said improvements as may
be deemed appropriate by the city to accommodate the project
phasing. The City agrees to reasonably cooperate and work
with CALTRANS to complete plans for said interchange improve-
ment.
5.1.2 City shall initiate contact and diligently
pursue discussions with the County of San Diego and the city
of San Diego to determine the number, scheduling and financing
of the otay River road and bridge crossings.
5.1. 3 City shall allow the owner for purposes of
processing entitlements to proceed with planning of the
Property on a first come first served basis, with other
properties in the area of the Annexation. In addition, if
necessary the City shall, with proper environmental review,
consider in its discretion an amendment to the Village Phasing
Plan to facilitate the planning and development of the
properties covered by this Agreement.
5.1.4 To the extent any of the foregoing
commitments of city are embodied in changes to the Development
Plan or the rules, regulations, ordinances, policies,
conditions, environmental regulations, phasing controls,
exactions, entitlements, assessments, and fees applicable to
and governing development of the Property, whether adopted
before or after the Effective Date, such changes shall be
deemed applicable to the Property without change to this
Agreement.
5.1.5 city shall diligently process any amend-
ments, applications, maps, or other development applications.
5.1.6. city may make such modifications or
amendments to the Existing Project Approvals/Future Discretionary
Approvals, as may be ordered by a court of competent jurisdiction
in an action in which the Developer is a party or has had an
opportunity to appear or has been provided notice of such action by
the City.
5.2 DeveloDment of ProDertv. The development of the
Property will be governed by this Agreement and Existing Project
Approvals and such development shall comply and be governed by all
rules, regulations, policies, resolutions, ordinances, and
standards in effect as of the Effective Date subject to the
provisions of Section 5.2.1 below. The city shall retain its
discretionary authority as to Future Discretionary Approvals,
provided however, such Future Discretionary Approvals shall be
regulated by the Existing Project Approvals, this Agreement, and
city rules, regulations, standards, ordinances, resolutions and
-8- IS'C-'
-- ---- ..-.......--.- . .-..- " . -- .--...----.-.".---------.----- ,.-
policies in effect on the Effective Date of this Agreement and
subject to section 5.2.1.
Notwithstanding the foregoing, the City may make such changes to
the city's Growth Management Ordinance applicable to the Project as
are reasonable and consistent with the purpose and intent of the
existing Growth Management Ordinance and which are generally
applicable to all private projects citywide or east of I-80S or
within a specific benefit, fee or reimbursement district created
pursuant to the California Government Code.
5.2.1 New or Amended Rules. Reaulations.
Policies. Standards. Ordinances and Resolutions. The city may
apply to the Project, including Future Discretionary Approv-
als, new or amended rules, laws, regulations, policies,
ordinances, resolutions and standards generally applicable to
all private projects east of I-80S or within a specific
benefit fee or reimbursement district created pursuant to the
California Government Code. The application of such new
rules, or amended laws, regulations, resolutions, policies,
ordinances and standards will not unreasonably prevent or
delay development of the Property to the uses, densities or
intensities of development specified herein or as authorized
by the Existing Project Approvals. The City may also apply
changes in City laws, regulations, ordinances, standards or
policies specifically mandated by changes in state or federal
law in compliance with section 13.3 herein.
5.2.2 Developer may elect with city's consent,
to have applied to the project any rules, regulations,
policies, ordinances or standards enacted after the date of
this Agreement. Such an election has to be made in a manner
consistent with section 5.2 of this Agreement.
5.2.3 Modifications to Existinq proiect
Approvals. It is contemplated by the parties to this
Agreement that the city and Developer may mutually seek and
agree to modifications to the Existing Project Approvals.
Such modifications are contemplated as within the scope of
this Agreement, and shall, upon written acceptance by all
parties, constitute for all purposes an Existing Project
Approval. The parties agree that any such modifications may
not constitute an amendment to this Agreement nor require an
amendment to the Agreement.
5.2.4 Future Discretionarv Approvals. It is
contemplated by the parties to this Agreement that the City
and Developer may agree to Future Discretionary Approvals. The
parties agree that any such Future Approvals may not consti-
tute an amendment to this Agreement nor require an amendment
to the Agreement.
5.3 Dedication and Reservation of Land for Public
Purposes. Except as expressly required by this Agreement or the
Existing Project Approvals and Future Discretionary Approvals
-9- IfC-It)
. .......--.- - _.._.~~.~.- -......_._.._~--~-_.._----_.
(excepting dedications required within the boundaries of any parcel
created by the subsequent sUbdivision of the property as required
by the Subdivision Map Act), no dedication or reservation of real
property within or outside the Property shall be required by city
or Developer in conjunction with the Project. Any dedications and
reservations of land imposed shall be in accordance with section
7.2 and section 7.8 herein.
5.4 Time for Construction and ComDletion of Proiect.
Because the California Supreme Court held in Pardee Construction
ComDanv v. Citv of Camarillo (1984) 27 Cal.3d 465, that the failure
of the parties to provide for the timing of development resulted in
a later-adopted initiative restricting the timing of development to
prevail over such parties' Agreement, it is the intention of the
parties to this Agreement to cure that deficiency by specifically
acknowledging that timing and phasing of development is completely
and exclusively governed by the Existing Project Approvals,
including the Chula vista Growth Management Ordinance. The purpose
of the Chula vista Growth Management Ordinance is to "control the
timing and location of development by tying the pace of development
to the provision of public facilities and improvements to conform
to the city's threshold standards. " (Municipal Code section
19.09.010A.7) The findings in support of the Growth Management
Ordinance conclude that the ordinance "does not affect the number
of houses which may be built." (Municipal Code section
19.09.010B.3) Therefore, the parties acknowledge that the Chula
vista Growth Management Ordinance completely occupies the topic of
development timing and phasing and expressly precludes the adoption
of housing caps, urban reserves or any other means by which the
rate of development may be controlled or regulated. The City
agrees that the Developer shall be entitled to, apply for and
receive all permits necessary for the development of property,
consistent with the Growth Management Ordinance, Existing Project
Approvals, Future Discretionary Approvals and this Agreement.
5.5 Benefit of Vestinq. Nothing in this Agreement will
be construed as limiting or impairing Developer's vested right, if
any, to proceed with the development and use of the Property
pursuant to the Federal and State Constitutions, and pursuant to
statutory and decisional law.
5.6 vestinq of Entitlements. All rights conferred by
this Agreement vest with the Effective Date hereof. The approval
of Future Discretionary approvals shall not be deemed to limit
Developer's rights authorized by this Agreement, and once such
approvals are obtained they shall be vested to the same extent as
the Existing Project Approvals.
6. DEVELOPMENT PROGRAM.
6.1 processinq of Future Discretionarv ADDrovals. City
will accept and diligently process development applications and
requests for Future Discretionary Approvals, or other entitlements
with respect to the development and use of the Property, provided
said applications and requests are in accordance with this
-10- IfC-11
--.-.--.........-. .._~._--_.__._,-_._--- --- .---.
Agreement. city costs for processing work related to the Project,
including hiring of additional City personnel and/or the retaining
of professional consultants, will be reimbursed to city by
Developer.
6.2 Lenqth of Validitv of Tentative Subdivision Maps.
Government Code section 66452.6 provides that tentative subdivision
map(s) may remain valid for a length up to the term of a Develop-
ment Agreement. The City agrees that tentative subdivision map(s)
for the property shall be for a term of six (6) years and may be
extended by the city council for a period of time not to exceed a
total of twenty (20) years and in no event beyond the term of this
Agreement.
6.3 Pre-Final Map Development. If Developer desires to
do certain work on the Property after approval of a tentative map
(for example, grading) prior to the recordation of a final map, it
may do so by obtaining a grading and/or other required approvals
from the City which are authorized by the City prior to recordation
of a final map. Such permit shall be issued to Developer, or its
contractor, upon Developer's application, approval, and provided
Developer posts a bond or other reasonably adequate security
required by City in an amount to assure the rehabilitation of the
land if the applicable final map does not record.
6.4 Final Maps.
6.4.1 "A" Maps and "B" Maps. If Developer so
elects, the City shall accept and process a master subdivision
or parcel map ("A" Map) showing "Super Block" lots and
backbone street dedications. "Super Block" lots shall be
consistent with the GDP and subsequent sectional Plan Area
plans, and shall not subdivide land into individual single-
family lots. All "Super Blocks" created shall have access to
dedicated public streets. The City shall not require improve-
ment plans in order to record a final map for any nAil Map
lots, but the City shall require bonding for the completion of
backbone facilities prior to recording in an amount to be
determined by the city. Following the approval by city of any
final map for an "A" Map lot and its recordation, Developer
may convey the "Super Block" lot. The buyer of a "Super
Block" lot sha 11 then process final improvement plans and
grading plans and a final map ("B" Map) for each "Super Block"
lot which the city shall process. The "B" Maps shall be in
substantial conformance with the related approved "A" Map. In
the instance of the mUlti-family dwelling unit areas, a
separate tentative subdivision map may be submitted to the
City and the "B" Map(s) for these areas may be submitted to
the city after the City Planning Commission approves said
tentative subdivision map.
6.4.2 Recordation of Final Subdivision Map in
Name of Builder or Third Partv. Developer may, if it so
elects, convey to a Builder or third party any "super block"
lot(s) shown on the recorded Superblock Final Map. In such
-11- /fC-/.1
-----.- ---- --+-----.------.-. "'--.---.
case, the Builder or third party will (i) process any neces-
sary final improvement and grading plans and a final map for
each such "super block" lot, which map city shall accept and
process as subsequent phases in a mUlti-phase project, (ii)
enter into a subdivision improvement agreement with city with
respect to the subdivision improvements which are required for
such super block lot, and (iii) provide security and insurance
satisfactory to City for the completion of the subdivision
improvements.
6.4.3 Recordation of Final Subdivision Map in
Developer's Name: Transfer of Obliqations Under Subdivision
Imurovement Aqreement(s). If Developer so elects, it may
defer the conveyance of any super block lot to a Builder or
third party until after the final map of such super block lot
has been recorded. If Developer elects to proceed in this
manner, it will enter into City's standard subdivision
improvement agreement(s) with City for the improvements
required as a condition to the approval of such map(s). Upon
sale to a Builder or third party, if such Builder or third
party assumes Developer's obligations under the improvement
agreement and provides its own security and insurance for the
completion of the subdivision improvements as approved by the
City, Developer shall be released from liability under the
subdivision improvement agreement{s) and Developer's security
shall be released.
6.4.4 Transfer of Riqhts and Obliqations of
Development. Whenever Developer conveys a portion of the
Property, the rights and obligations of this Agreement shall
transfer in accordance with section 15 herein.
7. DEVELOPER'S OBLIGATIONS.
7.1 Condition to Developer's Obliqations to Dedicate. Fund or
Construct Public Facilities. Developer agrees to develop or
provide the public improvements, facilities, dedications, or
reservations of land and satisfy other exactions conditioning the
development of the Property which are set forth hereinbelow. The
obligations of the Developer pursuant to this Agreement are
conditioned upon: (i) the City not being in default of its obliga-
tions under this agreement; and (ii) the city not preventing or
unreasonably delaying the development of the property; and (iii)
the Agreement having not been suspended in response to changes in
state or federal law; and (iv) the City's obligations having not
been suspended pursuant to section 13.2.
7.2 Dedications and Reservations of Land for Public Purposes.
The policies by which property will be required to be reserved,
dedicated or improved for public purposes are identified in the
Existing Project Approvals. A more precise delineation of the
property to be preserved, dedicated or improved for public purposes
shall occur as part of Future Discretionary Approvals, consistent
with the Existing Project Approvals.
-12- I~C-I;J
._".. --_..._--
7.3 Growth Manaaement Ordinance. Developer shall commit the
public facilities and City shall issue building permits as provided
in this section. The City shall have the right to withhold the
issuance of building permits any time after the city reasonably
determines a Threshold has been exceeded, unless and until the
Developer has mitigated the deficiency in accordance with the
City's Growth Management Ordinance.
Developer agrees that building permits may be withheld where the
pUblic facilities described in the Existing Project Approvals/-
Future Discretionary Approvals required for a particular Threshold
have not been committed.
In the event a Threshold is not met and future building permit
issuance may be withheld, the notice provisions and procedures
contained in section 19.09.100C of the Municipal Code will be
followed. In the event the issuance of building permits is
suspended pursuant to the provisions herein, such suspension shall
not constitute a breach of the terms of this Agreement by Developer
or citv. Furthermore, any such suspension which is not caused by
the actions or omissions of the Developer, shall toll the term of
this Agreement as provided for in section 16.12 of this Agreement,
and suspend the Developer's obligations pursuant to this Agreement.
7.3.1 Reauired Condemnation. The city and Developer
recognize that certain of the public facilities identified in
the Existing Project Approvals/Future Discretionary Approvals
and required to comply with a threshold are located on
properties which neither the Developer nor the City has, or
will have, title to or control of. The City shall identify
such property or properties and at the time of filing of the
final map commence timely negotiations or, where the property
is within the City's jurisdiction, commence timely proceedings
pursuant to Title 7 (commencing with § 1230.010) of Part 3 of
the Code of civil Procedure to acquire an interest in the
property or properties. Developer's share of the cost
involved in any such acquisition shall be based on its
proportionate share of the public facility as defined in the
Existing Project Approvals/Future Discretionary Approvals.
Nothing in this Agreement shall be deemed to preclude the City
from requiring the Developer to pay the cost of acquiring such
off-site land. For that portion of the cost beyond the
Developer's fair share responsibility, the city shall take all
reasonable steps to establish a procedure whereby the develop-
er is reimbursed for such costs beyond its fair share.
7.3.2 Information Reaardina Thresholds. Upon
Developer's written requests of the City Manager, the city
will provide Developer with information regarding the current
status of a Threshold. Developer shall be responsible for any
staff costs incurred in providing said written response.
7.4 Improvements Reauired bv a SUbdivision Map. As may
be required pursuant to the terms of a sUbdivision map, it shall be
-13- /5(;-1'1
-~------
the responsibility of Developer to construct the improvements
required by a subdivision map. Where Developer is required to
construct a public improvement which has been identified as the
responsibility of another party or to provide public improvements
of supplemental size, capacity, number or length benefiting
property not within the subdivision, City shall process a reim-
bursement agreement to the Developer in accordance with Article 6
of Chapter 4 of the Subdivision Map Act, commencing with Government
Code section 66485, and section 7.5, below.
7.5 Facilities Which Are the Obliaations of Another
Partv. or Are of Excessive size. Capacitv. Lenath or Number.
Developer may offer to advance monies and/or construct public
improvements which are the responsibility of another land owner, or
outside the city's jurisdictional boundaries, or which are of
supplemental size, capacity, number or length for the benefit of
land not within the Property. City, where requesting such funding
or construction of oversized public improvements, shall consider
after a public hearing, contemporaneous with the imposition of the
obligation, the formation of a reimbursement district, assessment
district, facility benefit assessment, or reimbursement agreement
or other reimbursement mechanism.
7.6 pioneerina of Facilities. To the extent Developer
itself constructs (i.e., "Pioneers") any public facilities or
public improvements which are covered by a DIF Program, Developer
shall be given a credit against DIFs otherwise payable, subject to
the City's Director of Public Works reasonable determination that
such costs are allowable under the applicable DIF Program. It is
specifically intended that Developer be given DIF credit for the
DIF Program improvements it makes. The fact that such improvements
may be financed by an assessment district or other financing
mechanism, shall not prevent DIF credit from being given to the
extent that such costs are allowed under the applicable DIF Program
7.7 Insurance. Developer shall name city as additional
insured for all insurance policies obtained by Developer for the
Project as pertains to the Developer's activities and operation on
the Project.
7.8 Other Land Owners. Developer hereby agrees to
dedicate adequate rights-of-way within the boundaries of the
Property for other land owners to "Pioneer" public facilities on
the Property; provided, however, as follows: (i) dedications shall
be restricted to those reasonably necessary for the construction of
facilities identified in the City's adopted public facility plans;
(ii) this provision shall not be binding on the successors-in-
interest or assignees of Developer following recordation of the
final "Super Block" or "A" Map; and (iii) the city shall use its
reasonable best efforts to obtain agreements similar to this
subsection from other developers and to obtain equitable reimburse-
ment for Developer for any excess dedications.
8. DEVELOPMENT IMPACT FEES.
-14- /5" C -If
..··_....·__.__'___..m._..___.._
8.1 Existina DeveloDment ImDact Fee Proaram Pavments.
Developer shall pay to the city a DIF, or construct improvements in
lieu of payment, for improvements which are conditions of a
tentative subdivision map upon the issuance of building permits (s) ,
or at a later time as specified by City ordinance, the subdivision
Map Act, or Public Facility Financing Plan (PFFP). The DIF will be
in the amount in effect at the time payment is made and may only be
increased pursuant to section 8.6 herein.
8.2 Other UndeveloDed ProDerties. The city will use its
reasonable best efforts to impose and collect, or cause the
imposi tion and collection of, the same DIF program on all the
undeveloped real properties which benefit from the provision of the
public facility through the DIF program, or provided as a condition
of Project Approvals.
8.3 Use of DeveloDment ImDact Fee Proaram. The DIF
amounts paid to the city by Developer and others with respect to
the Area of Benefit shall be placed by the city in a capital
facility fund account established pursuant to California Government
Code sections 66000-66009. The City shall expend such funds only
for the Projects described in the adopted fee program as may be
modified from time to time. The City will use its reasonable best
efforts to cause such Projects to be completed as soon as practica-
ble; however, the city shall not be obligated to use its general
funds for such Projects.
8.4 Withholdina of Permits. Developer agrees that City
shall have the right to withhold issuance of the building permit
for any structure or improvement on the Property unless and until
the DIF is paid for such structure or improvement.
8.5 DeveloDment ImDact Fee Credit. Upon the completion
and acceptance by the City of any public facility, the city shall
immediately credit Developer with the appropriate amount of cash
credits ("EDUs") as determined by Developer and City. However, if
the improvements are paid for through an Assessment District, the
city shall credit the Developer with the appropriate number of
Equivalent Dwelling unit Credits (EDU's). Developer shall be
entitled to apply any and all credits accrued pursuant to this
subsection toward the required payment of future DIF for any phase,
stage or increment of development of the Project.
8.6 Modification of DeveloDment ImDact Fees. The
parties recognize that from time to time during the duration of the
Agreement it will be necessary for the City to update and modify
its DIF fees. Such reasonable modifications are contemplated by
the City and the Developer and shall not constitute a modification
to the Agreement so long as: (i) the modification incorporates the
reasonable costs of providing facilities identified in the Existing
Project Approvals; (ii) are based upon methodologies in substantial
compliance with the methodology contained in the existing DIF
programs; or other methodology approved by the City council
following a public hearing; (iii) complies with the provisions of
Government Code sections 66000-66009.
-15- /fC- /¿,
-........-..- ". --,._---~---_._._------_.~.._-
8.7 Standards for Financina Obliaations of Owner. In
connection with the development of the Property, the following
standards regarding the financing of public improvements shall
apply:
8.7.1 Owner shall pay its fair share for the
interchanges described in Paragraph 5.1.1, based upon the
number of dwelling units or equivalent dwellings of develop-
ment allowed on the Property as compared to the total dwelling
units or equivalent dwelling units allowed on properties
served by such interchanges.
8.7.2 Owner shall participate in the DIF Program
for the Otay Valley Parcel with other owners in proportion to
the total dwelling units or equivalent dwelling units allowed
on the Property as compared with the total of such units
allowed on properties in that particular DIF or by some other
equitable methodology decided by the City Council.
8.7.3 The city shall diligently pursue the
requirements that the Eastern Territories' DIF requires
offsite third parties and adjacent jurisdictions to bear their
fair share of all Otay River Valley crossings.
9. CITY OBLIGATIONS.
9.1 Urban Infrastructure. To the extent it is within
the authority of the city to provide, City shall accommodate urban
infrastructure to the project, consistent with Existing Project
Approvals. Where it is necessary to utilize City property to
provide urban infrastructure consistent with the Existing Project
Approvals, the city agrees to make such land available for such
uses, provided that the City if it so chooses is compensated at
fair market value for the property. To the extent that the
provision of urban infrastructure is within the authority of
another public or quasi-public agency or utility, the city agrees
to fully cooperate with such agency or agencies to accommodate the
urban infrastructure, consistent with Existing Project Approvals.
Urban infrastructure shall include, but not be limited to gas,
electricity, telephone, cable and facilities identified in the Otay
Ranch Facility Implementation Plan.
9.2 Sewer Capaci tv. The city agrees to provide adequate
sewer capacity for the project, upon the payment of ordinary and
necessary sewer connection, capacity and/or service fees.
10. ANNUAL REVIEW.
10.1 citv and Owner Responsibilities. city will, at
least every twelve (12) months during the Term of this Agreement,
pursuant to California Government Code §65865.1, review the extent
of good faith substantial compliance by Owner with the terms of
this Agreement. Pursuant to California Government Code section
65865.1, as amended, Owner shall have the duty to demonstrate by
substantial evidence its good faith compliance with the terms of
-16- 15~'1/
_. . __._.._,_,..__~..m__"_"_·._,,·. __,_._.__ '.___.'''_
this Agreement at the periodic review. Either city or Owner may
address any requirement of the Agreement during the review.
10.2 Evidence. The parties recognize that this Agreement
and the documents incorporated herein could be deemed to contain
hundreds of requirements and that evidence of each and every
requirement would be a wasteful exercise of the parties' resources.
Accordingly, Developer shall be deemed to have satisfied its good
faith compliance when it presents evidence of substantial com-
pliance with the major provisions of this Agreement. Generalized
evidence or statements shall be accepted in the absence of any
evidence that such evidence is untrue.
10.3 Review Letter. If Owner is found to be in com-
pliance with this Agreement after the annual review, City shall,
within forty-five (45) days after Owner's written request, issue a
review letter in recordable form to Owner ("Letter") stating that
based upon information known or made known to the Council, the City
Planning commission and/or the City Planning Director, this
Agreement remains in effect and Owner is not in default. Owner may
record the Letter in the Official Records of the County of San
Diego.
10.4 Failure of Periodic Review. city's failure to
review at least annually Owner's compliance with the terms and
conditions of this Agreement shall not constitute, or be asserted
by City or Owner as, a breach of the Agreement.
11. DEFAULT.
11.1 Events of Default. A default under this Agreement
shall be deemed to have occurred upon the happening of one or more
of the following events or conditions:
11.1.1 A warranty, representation or statement
made or furnished by Owner to City is false or proves to have
been false in any material respect when it was made.
11.1.2 A finding and determination by City made
following a periodic review under the procedure provided for
in California Government Code section 65865.1 that upon the
basis of substantial evidence Owner has not complied in good
faith with one or more of the terms or conditions of this
Agreement.
11.1.3 City does not accept, timely review, or
consider requested development permits or entitlements
submitted in accordance with the provisions of this Agreement.
11.1.4 Any other act or omission by City or Owner
which materially interferes with the terms of this Agreement.
11.2 Procedure Uuon Default.
-17- Ifc.-¡Y
--------------.-. - -",,-
11. 2.1 Upon the occurrence of default by the
other party, City or Owner may terminate this Agreement after
providing the other party thirty (30) days written notice
specifying the nature of the alleged default and, when
appropriate, the manner in which said default may be satis-
factorily cured. After proper notice and expiration of said
thirty (30) day cure period without cure, this Agreement may
be terminated. In the event that City's or Owner's default is
not subject to cure within the thirty (30) day period, city or
Owner shall be deemed not to remain in default in the event
that City or Owner commences to cure within such thirty (30)
day period and diligently prosecutes such cure to completion.
Failure or delay in giving notice of any default shall not
constitute a waiver of any default, nor shall it change the
time of default. Notwithstanding any other provision of this
Agreement, City reserves the right to formulate and propose to
Owner options for curing any defaults under this Agreement for
which a cure is not specified in this Agreement.
11. 2.2 City does not waive any claim of defect in
performance by Owner if, on periodic review, City does not
propose to modify or terminate this Agreement.
11. 2.3 Subject to Paragraph 16.12 of this
Agreement, the failure of a third person shall not excuse a
party's nonperformance under this agreement.
11. 2.4 Remedies Upon Default. In the event of a
default by either party to this Agreement, the parties shall
have the remedies of specific performance, mandamus, injunc-
tion and other equitable remedies without having to first
prove there is an inadequate remedy at law. Neither party
shall have the remedy of monetary damages against the other;
provided, however, that the award of costs of litigation and
attorneys' fees shall not constitute damage.
12. ENCUMBRANCES AND RELEASES ON PROPERTY.
12.1 Discretion to Encumber. This Agreement shall not
prevent or limit Owner in any manner at Owner's sole discretion,
from encumbering the Property, or any portion of the Property, or
any improvement on the Property, by any mortgage, deed of trust, or
other security device securing financing with respect to the
Property or its improvement.
12.2 Mortqaqee Riqhts and Obliqations. The mortgagee of
a mortgage or beneficiary of a deed of trust encumbering the
Property, or any part thereof, and their successors and assigns
shall, upon written request to city, be entitled to receive from
city written notification of any default by Owner of the
performance of Owner's obligations under the Agreement which has
not been cured within thirty (30) days following the date of
default.
-18- 15c'-J'
-----..---.. -.....,,--...-. ---------_..----_.~-------
12.3 Releases. City agrees that upon written request of
Owner and payment of all fees and performance of the require-
ments and conditions required of Owner by this Agreement with
respect to the Property, or any portion thereof, City may
execute and deliver to Owner appropriate release(s) of further
obligations imposed by this Agreement in form and substance
acceptable to the San Diego County Recorder and title
insurance company, if any, or as may otherwise be necessary to
effect the release. City Manager shall not unreasonably
withhold approval of such release(s).
12.4 Obliaation to Modifv. City acknowledges that the
lenders providing financing for the proj ect may require certain
modifications to this Agreement and City agrees, upon request from
time to time, to meet with Owner and/or representatives of such
lenders to negotiate in good faith any such requirement for
modification. city will not unreasonably withhold its consent to
any such requested modification.
13. MODIFICATION OR SUSPENSION.
13.1 Modification to Aareement bv Mutual Consent. This
Agreement may be mOdified, from time to time, by the mutual consent
of the parties only in the same manner as its adoption by an
ordinance as set forth in California Government Code sections
65867, 65867.5 and 65868. The term, "this Agreement" as used in
this Agreement, will include any such modification properly
approved and executed.
13.2 Unforeseen Health or Safety Circumstances. If, as
a result of facts, events, or circumstances presently unknown,
unforeseeable, and which could not have been known to the parties
prior to the commencement of this Agreement, city finds that
failure to suspend this Agreement would place the residents of city
in a severe and immediate emergency to their health or safety.
13.2.1 Notification of Unforeseen Circumstances.
Notify Developer of (i) City's determination; and (ii) the
reasons for city's determination, and all facts upon which
such reasons are based;
13.2.2 Notice of Hearina. Notify Developer in
writing at least fourteen (14) days prior to the date, of the
date, time and place of the hearing and forward to Developer
a minimum of ten (10) days prior to the hearings described in
section 13.2.3, all documents related to such determination
and reasons therefor; and
13.2.3 Hearina. Hold a hearing on the deter-
mination, at which hearing Developer will have the right to
address the City Council. At the conclusion of said hearing,
ci ty may take action to suspend this Agreement as provided
herein. The city may suspend this Agreement if, at the
conclusion of said hearing, based upon the evidence presented
by the parties, the City finds failure to suspend would place
-19- I~(;"'~
-.--.-. - --~-'-'- -~""---'----"'-"-- ......--.".--
the residents of the City in a severe and immediate emergency
to their health or safety.
13.3 Chanae in state or Federal Law or Reaulations. If
any state or federal law or regulation enacted during the Term of
this Agreement, or the action or inaction of any other affected
governmental jurisdiction, precludes compliance with one or more
provisions of this Agreement, or requires changes in plans, maps,
or permits approved by City, the parties will act pursuant to
sections 13.3.1 and 13.3.2, below.
13.3.1 Notice: Meetina. The party first becoming
aware of such enactment or action or inaction will provide the
other party(ies) with written notice of such state or federal
law or regulation and provide a copy of such law or regulation
and a statement regarding its conflict with the provisions of
this Agreement. The parties will promptly meet and confer in
a good faith and reasonable attempt to modify or suspend this
Agreement to comply with such federal or state law or regula-
tion.
13.3.2 Hearina. If an agreed upon modification
or suspension would not require an amendment to this Agree-
ment, no hearing shall be held. Otherwise, the matter of such
federal or state law or regulation will be scheduled for
hearing before the city. Fifteen (15) days' written notice of
such hearing shall be provided to Developer, and the City, at
such hearing, will determine and issue findings on the
modification or suspension which is required by such federal
or state law or regulation. Developer, at the hearing, shall
have the right to offer testimony and other evidence. If the
parties fail to agree after said hearing, the matter may be
submitted to mediation pursuant to subsection 13.3.3, below.
Any modification or suspension shall be taken by the affirma-
tive vote of not less than a majority of the authorized voting
members of the city. Any suspension or modification may be
subject to jUdicial review in conformance with subsection
16.19 of this Agreement.
13.3.3 Mediation of DisDutes. In the event the
dispute between the parties with respect to the provisions of
this paragraph has not been resolved to the satisfaction of
both parties following the City hearing required by subsection
13.3.2, the matter shall be submitted to mediation prior to
the filing of any legal action by any party. The mediation
will be conducted by the San Diego Mediation Center; if San
Diego Mediation Center is unable to conduct the mediation, the
parties shall submit the dispute for mediation to the Judicial
Arbitration and Mediation Service or similar organization and
make a good faith effort to resolve the dispute. The cost of
any such mediation shall be divided equally between the
Developer and city.
-20- />c4l'~1
"..~._-_._---_._.__.- --- "
13.4 Natural Communities Conservation Act (NCCP). The
parties recognize that Developer and the City are individually
negotiating agreements with the united states Fish and wildlife
Service ("USF&W") and the California Department of Fish and Game
pursuant to the ongoing regional effort to implement the Natural
Communities Conservation Act ("NCCP"), locally proposed to be
implemented through the Multi-Species Conservation Program
("MSCP"). The parties further recognize that implementation of the
agreements may necessitate modification to the Existing Project
Approvals. The parties agree to utilize their best efforts to
implement these agreements, once executed, through the timely
processing of modifications to the Existing Project Approvals as
they relate to the Property. The Developer agrees to pay the
reasonable city cost for processing work related to the modifica-
tions. Once such modifications are obtained they shall be vested
to the same extent as Existing Project Approvals.
14. DISTRICTS. PUBLIC FINANCING MECHANISMS.
This Agreement and the Existing Project Approvals recognize
that assessment districts, community facility districts, or other
public financing mechanisms, may be necessary to finance the cost
of public improvements borne by this proj ect. If Developer,
pursuant to the Existing Project Approvals/Future Discretionary
Approvals, is required to install improvements through the use of
assessment districts, community facility districts, or other public
financing mechanisms, the city shall initiate and conclude
appropriate proceedings for the formation of such financing
district or funding mechanism, under applicable laws or ordinances.
Developer may request that the city utilize any other financing
methods which may become available under city laws or ordinances.
All costs associated with the consideration and formation of such
financing districts or funding mechanisms shall be paid by
Developer sUbject to reimbUrsement, as may be legally authorized
out of the proceeds of any financing district or funding mechanism.
15. ASSIGNMENT AND DELEGATION.
15.1 Assianment. Owner shall have the right to transfer
or assign its interest in the Property, in whole or in part,
to any persons, partnership, joint venture, firm, or corpora-
tion at any time during the Term of this Agreement without the
consent of city. Owner also shall have the right to assign or
transfer all or any portion of its interest or rights under
this Agreement to third parties acquiring an interest or
estate in the Property at any time during the Term of this
Agreement without the consent of City.
15.2 Deleaation. In addition, Owner shall have the
right to delegate or transfer its obligations under this
Agreement to third parties acquiring an interest or estate in
the Property after receiving the prior written consent of the
city Manager, which consent shall not be unreasonably with-
held, delayed, or conditioned. Once the city Manager has
consented to a transfer, delivery to and acceptance by the
-21- 15C-~
-- ---- . -- ~~ .- --'--'-'" ---..-....-- .------ ~.,- ---.------.- - -,_.._--
City Manager of an unqualified written assumption of Owner's
obligations under this Agreement by such transferee shall
relieve Owner of the obligations under this Agreement to the
extent the obligations have been expressly assumed by the
transferee. Such transferee shall not be entitled to amend
this Agreement without the written consent of the entity that,
as of the Effective Date, is Owner, which consent shall not be
unreasonably withheld, delayed, or conditioned. The entity
that is Owner as of the Effective Date, however, shall be
entitled to amend this Agreement without the written consent
of such transferee.
16. MISCELLANEOUS PROVISIONS.
16.1 Bindina Effect of Aareement. Except to the extent
otherwise provided in this Agreement, the burdens of this Agreement
bind, and the benefits of this Agreement inure, to city's and
Owner's successors-in-interest and shall run with the land.
16.2 Re1ationshiD of citv and Owner. The contractual
relationship between City and Owner arising out of this Agreement
is one of independent contractor and not agency. This Agreement
does not create any third-party beneficiary rights.
16.3 Notices. All notices, demands, and correspondence
required or permitted by this Agreement shall be in writing and
delivered in person, or mailed by first-class or certified mail,
postage prepaid, addressed as follows:
If to City, to: city of Chula vista
276 Fourth Avenue
Chula Vista, CA 91910
Attention: City Manager
If to Owner, to: Stephen and Mary Birch Foundation
705 Severn Road
suite 1048
Wilmington, DE 19803
Attention: Patrick Patek
with a Copy to: STEPHENSON, WORLEY, GARRATT
SCHWARTZ, HEIDEL & PRAIRIE
101 West Broadway, suite 1300
San Diego, CA 92101
Attention: Donald R. Worley, Esq.
City or Owner may change its address by giving notice in writing to
the other. Thereafter, notices, demands, and correspondence shall
be addressed and transmitted to the new address. Notice shall be
deemed given upon personal delivery, or, if mailed, two (2)
business days following deposit in the united States mail.
16.4 Rules of Construction. In this Agreement, the use
of the singular includes the plural; the masculine gender includes
the feminine; "shall" is mandatory; "may" is permissive.
-22- J5C-~~
"-.- - ----"- ..--_....__._._---,_.~._-_.
16.5 Entire Aareement. Waivers. and Recorded statement.
This Agreement constitutes the entire understanding and agreement
of City and Owner with respect to the matters set forth in this
Agreement. This Agreement supersedes all negotiations or previous
agreements between city and Owner respecting this Agreement. All
waivers of the provisions of this Agreement must be in writing and
signed by the appropriate authorities of city and Owner. Upon the
completion of performance of this Agreement, or its revocation or
termination, a statement evidencing completion, revocation, or
termination signed by the appropriate agents of city shall be
recorded in the Official Records of San Diego County, California.
16.6 proiect as a Private Undertakina. It is
specifically understood by City and Owner that (i) the Project is
a private development; (ii) city has no interest in or
responsibilities for or duty to third parties concerning any
improvements to the Property until City accepts the improvements
pursuant to the provisions of the Agreement or in connection with
subdivision map approvals; and (iii) Owner shall have the full
power and exclusive control of the Property subject to the
obligations of Owner set forth in this Agreement.
16.7 Incoruoration of Recitals. The recitals set forth
in Paragraph 1 of this Agreement are part of this Agreement.
16.8 cautions. The captions of this Agreement are for
convenience and reference only and shall not define, explain,
modify, construe, limit, amplify, or aid in the interpretation,
construction, or meaning of any of the provisions of this
Agreement.
16.9 Consent. Where the consent or approval of City or
Owner is required or necessary under this Agreement, the consent or
approval shall not be unreasonably withheld, delayed, or con-
ditioned.
16.10 Covenant of Cooueration. city and Owner shall
cooperate and deal with each other in good faith, and assist each
other in the performance of the provisions of this Agreement.
16.11 Recordina. The city Clerk shall cause a copy of
this Agreement to be recorded with the Office of the County
Recorder of San Diego County, California, within ten (10) days
following the Effective Date.
16.12 Delav. Extension of Time for Performance. In
addition to any specific provision of this Agreement, performance
by either City or Owner of its obligations hereunder shall be
excused, and the Term of this Agreement and the Development Plan
extended, during any period of delay caused at any time by reason
of any event beyond the control of City or Owner which prevents or
delays and impacts city's or Owner's ability to perform obligations
under this Agreement, including, but not limited to, acts of God,
enactment of new conflicting federal or state laws or regulations
(example: listing of a species as threatened or endangered) ,
-23- ,S-C-.21{
_.._~....._--_._,..-- -'--
judicial actions such as the issuance of restraining orders and
injunctions, riots, strikes, or damage to work in process by reason
of fire, floods, earthquake, or other such casualties. If City or
Owner seeks excuse from performance, it shall provide written
notice of such delay to the other within thirty (30) days of the
commencement of such delay. If the delay or default is beyond the
control of City or Owner, and is excused, an extension of time for
such cause will be granted in writing for the period of the
enforced delay, or longer as may be mutually agreed upon.
16.13 Covenant of Good Faith and Fair Dealinas. Noparty
shall do anything which shall have the effect of harming or
injuring the right of the other parties to receive the benefits of
this Agreement; each party shall refrain from doing anything which
would render its performance under this Agreement impossible; and
each party shall do everything which this Agreement contemplates
that such party shall do in order to accomplish the objectives and
purposes of this Agreement.
16.14 Operatina Memorandum. The parties acknowledge that
the provisions of this Agreement require a close degree of
cooperation between City and Developer, and that the refinements
and further development of the Project may demonstrate that minor
changes are appropriate with respect to the details of performance
of the parties. The parties, therefore, retain a certain degree of
flexibility with respect to those items covered in general under
this Agreement. When and if the parties mutually find that minor
changes or adjustments are necessary or appropriate, they may
effectuate changes or adjustments through operating memoranda
approved by the parties. For purposes of this Section 16.14, the
City Manager, or his designee, shall have the authority to approve
the operating memoranda on behalf of city. No operating memoranda
shall require notice or hearing or constitute an amendment to this
Agreement.
16.15 Time of Essence. Time is of the essence in the
performance of the provisions of this Agreement as to which time is
an element.
16.16 Amendment or Cancellation of Aareement. This
Agreement may be amended from time to time or canceled by the
mutual consent of city and Owner only in the same manner as its
adoption, by an ordinance as set forth in California Government
Code section 65868, and shall be in a form suitable for recording
in the Official Records of San Diego County, California. The term
"Agreement" shall include any such amendment properly approved and
executed. City and Owner acknowledge that the provisions of this
Agreement require a close degree of cooperation between them, and
that minor or insubstantial changes to the Project and the
Development Plan may be required from time to time to accommodate
design changes, engineering changes, and other refinements.
Accordingly, changes to the Project and the Development Plan that
do not result in a change in use, an increase in density or
intensity of use, cause new or increased environmental impacts, or
violate any applicable health and safety regulations, may be
-24- /,S'C·.J5'
considered minor or insubstantial by the City Manager and made
without amending this Agreement.
16.17 Estoppel Certificate. Within 30 calendar days
following a written request by any of the parties, the other
parties to this Agreement shall execute and deliver to the
requesting party a statement certifying that (i) this Agreement is
unmodified and in full force and effect, or if there have been
modifications hereto, that this Agreement is in full force and
effect as modified and stating the date and nature of such
modifications; (ii) there are no known current uncured defaults
under this Agreement, or specifying the dates and nature of any
such default; and (iii) any other reasonable information requested.
The failure to deliver such a statement within such time shall
constitute a conclusive presumption against the party which fails
to deliver such statement that this Agreement is in full force and
effect without modification, except as may be represented by the
requesting party, and that there are no uncured defaults in the
performance of the requesting party, except as may be represented
by the requesting party.
16.18 Severabilitv. If any material provision of this
Agreement is held invalid, this Agreement will be automatically
terminated with neither party bearing any liability hereunder.
Notwithstanding the foregoing, within 15 days after such provision is
held invalid, if the party holding rights under the invalidated
provision affirms the balance of this Agreement in writing, this
Agreement shall not be terminated. This provision will not affect
the right of the parties to modify or suspend this Agreement by
mutual consent pursuant to Paragraph 12.4.
16.19 Institution of Leaal Proceedina. In addition to any
other rights or remedies, any party may institute legal action to
cure, correct, or remedy any default, to enforce any covenants or
agreements herein, or to enjoin any threatened or attempted violation
thereof; to recover damages for any default as allowed by this
Agreement or to obtain any remedies consistent with the purpose of
this Agreement. Such legal actions must be instituted in the
Superior Court of the County of San Diego, State of California.
16.20 Attornevs' Fees and Costs. If any party commences
litigation or other proceedings (including, without limitation,
arbitration) for the interpretation, reformation, enforcement, or
rescission of this Agreement, the prevailing party, as determined by
the court, will be entitled to its reasonable attorneys' fees and
costs.
16.21 Hold Harmless. Developer agrees to and shall hold
city, its officers, agents, employees and representatives harmless
from liability for damage or claims for damage for personal injury,
including death, and claims for property damage which may arise from
the direct or indirect operations of Developer or those of its
contractors, subcontractors, agents, employees or other persons
acting on Developer's behalf which relate to the Project. Developer
agrees to and shall defend City and its officers, agents, employees
-25- /.5'c-~"
_.~ . ,__.__._...._.~.____._.. .w_
and representatives from actions for damage caused or alleged to have
been caused by reason of Developer's activities in connection with
the Project. Developer agrees to indemnify, hold harmless, pay all
costs and provide a defense for city in any legal action filed in a
court of competent jurisdiction by a third party challenging the
validity of this Agreement. The provisions of this section 16.21
shall not apply to the extent such damage, liability or claim is
caused by the intentional or negligent act or omission of city, its
officers, agents, employees or representatives.
17. AUTHORITY
Each signatory and party hereto hereby warrants and represents
to the other party that it has legal authority and capacity and
direction from its principal to enter into this Agreement, and that
all resolutions or other actions have been taken so as to enable it
to enter into this Agreement.
-26- If~"~')
----.-.. -...-..........- .--.-"......-------...---...,-..-.'-----.
SIGNATURE PAGE TO PRE-ANNEXATION DEVELOPMENT AGREEMENT.
Dated this _ day of , 1997.
"CITY"
CITY OF CHULA VISTA
By:
SHIRLEY HORTON, MAYOR
"OWNER"
STEPHEN AND MARY BIRCH FOUNDATION
By:
PATRICK PATEK, PRESIDENT
I hereby approve the form and legality of the foregoing Pre-
Annexation Development Agreement this day of , 1997.
John M. Kaheny, City Attorney
By:
Ann Moore
Assistant city Attorney
-27- /5'c....1r
~·.·~.,..,.._..__·._b__·___·___ _"_ ___ -----_."_.~-~
, \
. . EXHIBIT A
.-- -_.. .._-
CI1Y OF
CHUIA VISTA
PLANNING DEPARTMENT
.I~-~' 6119/95
JEWELS OF CHARITY
.__.~_.,,--- - ---------'._-
--------.----._._ ___~_._._._._._ __._ _ _._.__.. ___~___ _._m_.___
.
,
,
,
è:'
'" '" '" "0
_"0 - ,.
'" c: "'..... '" ..
..
.- ::I __ 0 C) "0 ..
> 0 >",u c:c: - ¡¡: z~ ~¡
!!C!J ",...C: "'0 c: '"
-",'" E:;:; "0'" "0 '"
::I >- ::I.c: ::! "'E c: ... ~! l- ,
c .r.~ ~ Co;:: E~", I/).c: ",-c:(
z UU UI/).!: OU -'.!!! >- :::3 ,~O> ~ ;
0<:>", c.",,,,
W uc:", 0- '" >-u-c ?Jl ' ~::; ~ !
C) "'C:... ..."'''' ",OJ::!
1 D::c:(c:( _c...;:;
W c.Cc:( OI/)l/) o O~ ~ '
-' 1
I ~
I æ U ~
..:
I 0
...
1 ..:
. '"
~
~
- N-
I ]
--I
I
I
L_,
...J
I .,
L,
I
- ,I
. .....,)
0
z ,
c \,.. ..... J
ra 0 J
..... .- J
11).....
.- ra t''r
m >.~
.... ra C
__ - ca
.c::JC)
.- .s:::
~<..>O
W'!-Q.)
00::
~.s:::
.- (.)
<..> C
ctS
0:: 15'C? 31.1
>-
ra
.....
.._ .. ._...1:L
--..- --
........-..--. ....--
-
-
.
.
EXHIBIT ·C·
Pre-annexation Development Agreemant
Plenning Area Assassor Ownership Acreaae
Parcel Numbers
Olav Valley Parcel 644-080-10 Jewels of Charity 315.17
Otay Vallev Parcel 644-090-03 Jewels of CharilY 160.00
475.17 Total
Ife....;J1
._----~--"-_.----~~.~_..._._---~---'-_.._------~_.__..--------------_.
ORDINANCE NO. ~ '7d3
AN ORDINANCE OF THE CITY OF CHULA VISTA
ADOPTING THE RESTATED AND AMENDED PRE-
ANNEXATION DEVELOPMENT AGREEMENT WITH GREGORY
T. SMITH AND GEORGIANA R. SMITH
WHEREAS, on July 16, 1996, the city Council approved a
Pre-Annexation Development Agreement between the City of Chula
Vista and Gregory T. Smith and Georgiana R. Smith, pursuant to
Ordinance No. 2682; and
WHEREAS, by the terms of the Previous Agreement, this
Agreement expired as of Jan. 1, 1997, because the annexation
proceeding was not completed by that date; and
WHEREAS, there is now a mutual desire by the City and
Gregory T. smith and Georgiana R. smith to restate and amend the
Previous Agreement in order for the Previous Agreement to become
effective once again ("Restated Amendment"); and
WHEREAS, on February 19, 1997, the Planning Commission
reviewed the Restated Agreement and voted to approve the same.
NOW, THEREFORE, the City council of the City of Chula
vista ordains as follows:
SECTION I: The Previous Agreement between Gregory T.
smith and Georgiana R. smith, and the City of Chula Vista is hereby
amended, restated and adopted as set forth in the Restated and
Amended Pre-Annexation Development Agreement on file in the office
of the City Clerk as Document No. .
SECTION II: The Mayor of the City of Chula vista is
hereby authorized and directed to execute said Restated Agreement
for and on behalf of the city of Chula vista.
SECTION III: This ordinance shall take effect and be of
full force on the effective date of annexation as set forth in the
attached Restated Agreement.
Presented by Approved as to form by
~ ~919-<L- ~
George Krempl, Deputy City John M. Kaheny, City Attorney
Manager
c: \or\s.lth
15'/)-/
. -.--.-.--.-.--..---.------..-."
AMENDED AND RESTATED
PRE-ANNEXATION DEVELOPMENT AGREEMENT
THIS AMENDED AND RESTATED PRE-ANNEXATION DEVELOPMENT AGREEMENT
("Agreement") is made effective on the date hereinafter set forth
below by and among the CITY OF CHULA VISTA ("City") and GREGORY T.
SMITH AND GEORGIANA R. SMITH ("Smiths"), who agree as follows:
1. RECITALS. This Agreement is made with respect to the
following facts:
1. 1 OWner. The owners of the properties subj ect to this
Agreement (hereinafter collectively referred to as "Owner" or as
"Developer") are as follows:
1.1.1 smiths are the owners of approximately 330
acres of undeveloped real property in the unincorporated area
of the County of San Diego ("County"), described in Exhibit
"A" (County Assessor Parcels #585-150-01 and #595-050-03),
attached hereto and incorporated herein by this reference.
1.2 citv. The City of Chula vista is a municipal
corporation and an incorporated city within the County.
1.3 Code Authorization and Acknowledaments.
1.3.1 City is authorized pursuant to California
Government Code sections 65864 through 65869.5 to enter into
development agreements for the purpose of establishing
certainty for both city and owners of real property in the
development process.
1.3.2 Government Code section 65865 expressly
authorizes a city to enter into a development agreement with
any person having a legal or equitable interest in real
property in unincorporated territory within that city's sphere
of influence for the development of property as provided in
the Development Agreement Law; provided that the agreement
shall not become operative unless annexation proceedings
annexing the property to the city are completed within the
time specified by the agreement.
1.3.3 City enters into this Agreement pursuant
to the provisions of the California Government Code, its home-
rule powers, and applicable City ordinances, rules, regula-
tions and policies.
1.3.4 City and Owner acknowledge:
1. 3 .4. 1 This Agreement assures adequate
public facilities at the time of development.
1. 3 . 4 . 2 This Agreement assures development in
accordance with City's capital improvement plans.
-1- 1J'þ-J.
."__... _..."__.~_ __ ._n. __._.___.____."__ , ..__.. _.. __._________
1. 3 .4.3 This Agreement constitutes a current
exercise of City's police powers to provide certainty to
Owner in the development approval process by vesting the
permitted use (s), density, intensity of use, and the
timing and phasing of development as described in the
Development Plan, which is defined in Paragraph 2.4 of
this Agreement, in exchange for Owner's entering into
this Agreement and for its commitment to support the
Annexation described below.
1.3.4.4 This Agreement will permit achieve-
ment of City growth management goals and objectives.
1.3.4.5 This Agreement will allow City to
realize significant economic, recreational, park, open
space, social, and public facilities benefits, some of
which are of regional significance.
1.3.4.6 This Agreement will provide and
assure that the City receive sales tax revenues, increase
in the property tax base, residential housing and other
development, sewer, water and street facilities.
1.3.4.7 This Agreement will provide and
assure that the City receives public facilities in excess
of project generated impacts and such facilities shall be
of supplemental size, number capacity or length, which
shall be provided earlier than could be provided either
by funds from the City or than would strictly be
necessary to mitigate project related impacts at any
development phase.
1.3.4.8 This Agreement will provide the City
the developer's support to secure annexation of the lands
depicted in Exhibit "B".
1.3.4.9 This Agreement will enable the city
to secure title to the land within the boundaries of the
Property necessary to complete the Chula Vista greenbelt
system as defined in the Chula vista General Plan.
1.3.4.10 This Agreement will facilitate the
economic development of Chula Vista.
1.3.4.11 Because of the complexities of the
financing of the infrastructure, park, open space, and
other dedications, and regional and community facilities,
and the significant nature of such facilities, certainty
in the development process is an absolute necessity. The
phasing, timing, and development of public infrastructure
necessitate a significant commitment of resources,
planning, and effort by Owner for the public facilities
financing, construction, and dedication to be success-
fully completed. In return for Owner's participation and
commitment to these significant contributions of private
-2- Isþ..J
".__._... .__ _"_'0- "~_,,,,._._.___.____~~_.________"~__
resources for pUblic purposes and for Owner's consent to
the Annexation described below, City is willing to
exercise its authority to enter into this Agreement and
to make a commitment of certainty for the development
process for the Property.
1.3.4.12 In consideration of Owner's agreement
to provide the significant benefits and for Owner's
consent to the Annexation described below, City hereby
grants Owner assurances that it can proceed with develop-
ment of the Property in accordance with city's
ordinances, rules, regulations, and policies existing as
of the effective date of this Agreement. Owner would not
enter into this Agreement or agree to provide the public
benefits and improvements described in this Agreement if
it were not for the commitment of city that the Property
subject to this Agreement can be developed in accordance
with City's ordinances, rules, regulations, and policies
existing as of the effective date of this Agreement.
1.4 The Annexation. The City has applied to the Local
Agency Formation commission ("LAFCO") for annexation of Sphere of
Influence Planning Area 1 "The Otay Parcel", Planning Area 2
"Inverted L" and the Mary Patrick Estate Parcel (see Attachment
"B") .
1.5 Sphere of Influence. A City application is pending
before LAFCO to have the Otay Valley Parcel included within City's
sphere of influence. On February 5, 1996 the Local Agency
Formation Commission approved the inclusion of approximately 7,600
acres into the City Sphere of Influence (Sphere of Influence
Planning Area 2 and the northern two thirds of Planning Area 1),
and designated the Otay River Valley an Village 3 as special study
areas.
1.6 Planninq Documents. On October 28, 1993, city and
County adopted the Otay Ranch General Development Plan/Subregional
Plan ("the GDP") which includes the Otay Ranch Village Phasing
Plan, Facility Implementation Plan, Resource Management Plan and
Service Revenue Plan, for approximately 23,000 acres of the Otay
Ranch, including the Otay Valley Parcel and the smiths' Properties.
1. 7 Owner Consent. City desires to have the cooperation
and consent of Owner to include the Property in the Annexation in
order to better plan, finance, construct and maintain the infra-
structure for the Otay Valley Parcel; and the smiths' desire to
give their cooperation and consent, provided that they obtain
certain assurances, as set forth in this Agreement.
1.8 Citv Ordinance. is the date of
adoption by the city Council of Ordinance No. approving this
Agreement. The ordinance shall take effect and be in full force on
the effective date of Annexation.
-3- IS'Þ"¥
._--,------_._--~------..-_. --
2. DEFINITIONS. In this Agreement, unless the context
otherwise requires:
2.1 "Annexation" means the proposed annexation of that
portion of the otay Ranch into the city as depicted on Exhibit "D".
2.2 "City" means the City of Chula Vista, in the County
of San Diego, State of California.
2.3 "County" means the County of San Diego, State of
California.
2.4 "Development Plan" means the GDP.
2.5 "GDP" means the General Development Plan/Subregional
Plan for the Otay Ranch, described in Paragraph 1.6, above.
2.6 "Owner" or "Developer" means the person, persons, or
entity having a legal and equitable interest in the Property, or
parts thereof, and includes Owner's successors-in-interest.
2.7 "Project" means the physical development of the
private and public improvements on the Property as provided for in
the Existing Project Approvals and as may be authorized by the City
in Future Discretionary Approvals.
2.8 "Property" means the real property described in
Paragraph 1.1.1.
2.9 The "Term1l of this Agreement means the period
defined in Paragraph 3, below.
2 . 10 "Builder" means developer to whom Developer has sold
or conveyed property within the Property for purposes of its
improvement for residential, commercial, industrial or other use.
2.11 "CEQA" means the California Environmental Quality
Act, California Public Resources Code section 21000, et seq.
2.12 "City Council" means the City of Chula vista city
Council.
2.13 "Commit" or "Committed" means all of the following
requirements have been met with respect to any public facility:
2.13.1 For a public facility within the city's
jurisdictional boundaries and a responsibility of the develop-
er.
2.13.1.1 All discretionary permits required of
the Developer have been obtained for construction of the
public facility;
-4- I5'P~
-------------------
2.13.1.2 Plans for the construction of the
public facility have all the necessary governmental
approvals; and
2.13.1.3 Adequate funds (i.e., letters of
credit, cash deposits, performance bonds or land secured
public financing, including facility benefit assessments,
Mello-Roos assessment districts of similar assessment
mechanism) are available such that the city can construct
the public facility if construction has not commenced
within thirty (30) days of issuance of a notice to
proceed by the Director of Public Works, or construction
is not progressing towards completion in a reasonable
manner as reasonably deemed by the Director of Public
Works.
2.13.2 For a public facility within the City's
jurisdictional boundaries, but to be provided by other than
Developer.
2.13.2.1 Developer's proportionate share of
the cost of such public facility as defined in the
existing Project Approvals and Future Discretionary
Approvals has been provided or assured by Developer
through the payment or impositions of development impact
fee or other similar exaction mechanism.
2.13.3 For public facility not within City's
jurisdictional boundaries:
2.13.3.1 Developer's proportionate share of
the cost of such public facility as defined in the
existing Project Approvals and Future Discretionary
Approvals has been provided for or otherwise assured by
Developer to the reasonable satisfaction of the Director
of Public Works.
2.14 "Development Impact Fee (DIF)" means fees imposed
upon new development pursuant to the City of Chula vista
Development Impact Fee Program, for example, including but not
limited to the Transportation Development Impact Fee Program, the
Interim SR-125 Development Impact Fee Program, the Salt Creek Sewer
DIF and the Public Facilities DIF.
2.15 "Existing Project Approvals" means all discretionary
approvals affecting the Project which have been approved or
established in conjunction with, or preceding, the effective date
consisting of, but not limited to the GDP, the Chula vista General
Plan, the otay Ranch Reserve Fund Program adopted pursuant to
Resolution 18288, and the Phase II Resource Management Plan (RMP),
as may be amended from time to time consistent with this agreement.
2.16 "Final Map(s)" means any final subdivision map for
all or any portion of the property other than the Superblock Final
Map ("A" Maps).
-5- If]) -¿
____._._______.n.__
2.17 "Future Discretionary Approvals" means all permits
and approvals by the City granted after the effective date and
excluding existing Project Approvals, including, but not limited
to: (i) grading permits; (ii) site plan reviews; (iii) design
guidelines and reviews; (iv) precise plan reviews; (v) subdivisions
of the Property or re-subdivisions of the Property previously
subdivided pursuant to the Subdivision Map Act; (vi) conditional
use permits; (vii) variances; (viii) encroachment permits;
(ix) Sectional Planning Area plans; (x) Preserve Conveyance Plan
and (xi) all other reviews, permits, and approvals of any type
which may be required from time to time to authorize public or
private on- or off-site facilities which are a part of the Project.
2.18 "Planning commission" means the Planning Commission
of the city of Chula vista.
2.19 "Preserve Conveyance Plan" means a plan that sets
forth policies and identifies land to be transferred and/or fees to
be paid to insure the orderly conveyance of the Otay Ranch land to
the Preserve Owner Manager. The purpose of the plan is to fulfill
the obligations to convey resource sensitive land, per the criteria
contained in the phase I and II Resource Management Plans and to
mitigate environmental impacts of the otay Ranch Project.
2.20 "Public Facility" or "Public Facilities" means those
public facilities described in the Otay Ranch Facility
Implementation Plan.
2.21 "Subdivision Map Act" means the California
Subdivision Map Act, Government Code section 66410, et seq., and
its amendments as may from time to time be adopted.
2.22 "Substantial Compliance" means that the party
charged with the performance of a covenant herein has sufficiently
followed the terms of this Agreement so as to carry out the intent
of the parties in entering into this Agreement.
2.23 "Threshold" means the facility thresholds set forth
in the City's Municipal Code section 19.19.040.
3. ~. This Agreement shall become effective as a
development agreement upon the effective date of the Annexation
("the Effective Date"); provided, however, that if the Annexation
does not occur on or before Julv Jaßuary 1, 1997, this Agreement
shall be null and void unless the annexation proceedinqs have been
extended bv LAFCO. If the annexation proceedinqs have been
extended. this Aqreement shall become effective upon the effective
date of such Annexation: provided however. if the annexation does
not occur bv the end of such extension(s) . this Aqreement shall
become null and void. Any of the foregoing to the contrary
notwithstanding, from the date of the first reading of the
ordinance approving this Agreement, and unless or until this
Agreement becomes null and void, Owner shall be bound by the terms
of Paragraph~. The Term of this Agreement for purposes other than
Paragraph ~ shall begin upon the Effective Date, and shall continue
-6- IS'P' 7
. -_._~~---_.. --.-.....---
for a period of twenty (20) years ("the Term"). The Term shall
also be extended for any period of time during which issuance of
building permits to Owner is suspended for any reason other than
the default of Owner, and for a period of time equal to the period
of time during which any action by City or court action limits the
processing of future discretionary approvals, issuance of building
permits or any other development of the Property consistent with
this Agreement.
4. OWNER CONSENT TO ANNEXATION. Owner hereby consents to
and shall cooperate with the applications of city to declare that
the Otay Valley Parcel is within City's sphere of influence and to
annex the Otay Valley Parcel to the City; provided, however, that
Owner may withdraw such consent and withhold further cooperation if
the city, prior to the Effective Date, adopts rules, regulations,
ordinances, policies, conditions, environmental regulations,
phasing controls, exactions, entitlements, assessments or fees
applicable to and governing development of the Property which are
inconsistent with, or render impractical development of the
Property according to, the Development Plan.
4.1 The Developer understands and aqrees that this
Aqreement shall become effective and valid on Iv upon the
Effective Date of the annexation proceedinqs. as more fullv
described in paraqraph 3 of this Aqreement. Developer further
understands that as a condition precedent to the completion of
annexation proceedinqs. and this Aqreement becominq effective.
certain propertv owners such as SNMB. Ltd.. are required to
provide certain easements and subordination aqreements
satisfactorv to the Countv. Developer aqrees that the citv's
second readinq of the Ordinance approvinq this Aqreement shall
not occur unless and until said subordination aqreements have
been accepted bv the Countv. No terms of this Aqreement shall
be subiect to reneqotiation between the first and second
readinq of the ordinance approvinq this Aqreement except bv
mutual consent of the parties to this Aqreement.
5. VESTED RIGHTS. Notwi thstanding any future action or
inaction of the City during the term of this Agreement, whether
such action is by ordinance, resolution or policy of the city,
Owner and Developer shall have a vested right, except as may be
otherwise provided in this section 5, to construct the Project.
5.1 Existing Project Approvals.
5.2 Development of Propertv. The development of the
Property will be governed by this Agreement and Existing Project
Approvals and such development shall comply and be governed by all
rules, regulations, policies, resolutions, ordinances, and
standards in effect as of the Effective Date subject to the
provisions of section 5.2.1 below. The City shall retain its
discretionary authority as to Future Discretionary Approvals,
provided however, such Future Discretionary Approvals shall be
-7- l5'p-r
.--------.--..--.--.----.--".--.-....
regulated by the Existing Project Approvals, this Agreement, and
City rules, regulations, standards, ordinances, resolutions and
policies in effect on the Effective Date of this Agreement and
subject to section 5.2.1.
Notwithstanding the foregoing, the City may make such changes to
the city's Growth Management Ordinance applicable to the Project as
are reasonable and consistent with the purpose and intent of the
existing Growth Management Ordinance and which are generally
applicable to all private projects citywide or east of 1-805 or
within a specific benefit, fee or reimbursement district created
pursuant to the California Government Code.
5.2.1 New or Amended Rules. Reaulations.
Policies. Standards. Ordinances and Resolutions. The City may
apply to the Project, including Future Discretionary Approv-
als, new or amended rules, laws, regulations, policies,
ordinances, resolutions and standards generally applicable to
all private projects east of 1-805 or within a specific
benefit fee or reimbursement district created pursuant to the
California Government Code. The application of such new
rules, or amended laws, regulations, resolutions, policies,
ordinances and standards will not unreasonably prevent or
delay development of the Property to the uses, densities or
intensities of development specified herein or as authorized
by the Existing Project Approvals. The City may also apply
changes in City laws, regulations, ordinances, standards or
policies specifically mandated by changes in state or federal
law in compliance with section 13.3 herein.
5.2.2 Developer may elect with city's consent,
to have applied to the project any rules, regulations,
policies, ordinances or standards enacted after the date of
this Agreement. Such an election has to be made in a manner
consistent with section 5.2 of this Agreement.
5.2.3 Modifications to Existina proiect
ADDrovals. It is contemplated by the parties to this
Agreement that the city and Developer may mutually seek and
agree to modifications to the Existing Project Approvals.
Such modifications are contemplated as within the scope of
this Agreement, and shall, upon written acceptance by all
parties, constitute for all purposes an Existing Project
Approval. The parties agree that any such modifications may
not constitute an amendment to this Agreement nor require an
amendment to the Agreement.
5.2.4 Future Discretionarv ADDrovals. It is
contemplated by the parties to this Agreement that the City
and Developer may agree to Future Discretionary Approvals. The
parties agree that any such Future Approvals may not consti-
tute an amendment to this Agreement nor require an amendment
to the Agreement.
-8- 15'1'-'
- ---.-'0"'-- _ _ ._~.._._..________.___..__._ .._.._.__
5.3 Dedication and Reservation of Land for Public
Purposes. Except as expressly required by this Agreement or the
Existing Project Approvals and Future Discretionary Approvals
(excepting dedications required within the boundaries of any parcel
created by the subsequent subdivision of the Property as required
by the Subdivision Map Act), no dedication or reservation of real
property within or outside the Property shall be required by City
or Developer in conjunction with the Project. Any dedications and
reservations of land imposed shall be in accordance with section
7.2 and section 7.8 herein.
5.4 Time for Construction and Completion of Proiect.
Because the California Supreme Court held in Pardee Construction
Companv v. citv of Camarillo (1984) 27 Cal.3d 465, that the failure
of the parties to provide for the timing of development resulted in
a later-adopted initiative restricting the timing of development to
prevail over such parties' Agreement, it is the intention of the
parties to this Agreement to cure that deficiency by specifically
acknowledging that timing and phasing of development is completely
and exclusively governed by the Existing Project Approvals,
including the Chula vista Growth Management Ordinance. The purpose
of the Chula vista Growth Management Ordinance is to "control the
timing and location of development by tying the pace of development
to the provision of public facilities and improvements to conform
to the City's threshold standards." (Municipal Code section
19.09.010A.7) The findings in support of the Growth Management
Ordinance conclude that the ordinance "does not affect the number
of houses which may be built." (Municipal Code section
19.09.010B.3) Therefore, the parties acknowledge that the Chula
vista Growth Management Ordinance completely occupies the topic of
development timing and phasing and expressly precludes the adoption
of housing caps, urban reserves or any other means by which the
rate of development may be controlled or regulated. The City
agrees that the Developer shall be entitled to, apply for and
receive all permits necessary for the development of property,
consistent with the Growth Management Ordinance, Existing Project
Approvals, Future Discretionary Approvals and this Agreement.
5.5 Benefit of vestinq. Nothing in this Agreement will
be construed as limiting or impairing Developer's vested right, if
any, to proceed with the development and use of the Property
pursuant to the Federal and State Constitutions, and pursuant to
statutory and decisional law.
5.6 Vestinq of Entitlements. All rights conferred by
this Agreement vest with the Effective Date hereof. The approval
of Future Discretionary approvals shall not be deemed to limit
Developer's rights authorized by this Agreement, and once such
approvals are obtained they shall be vested to the same extent as
the Existing Project Approvals.
6. DEVELOPMENT PROGRAM.
6.1 processinq of Future Discretionarv Approvals. City
will accept and diligently process development applications and
-9- 1.$7)-/,
-- --..---.------ ,. ----.-...-.-..------
requests for Future Discretionary Approvals, or other entitlements
with respect to the development and use of the Property, provided
said applications and requests are in accordance with this
Agreement. City costs for processing work related to the Project,
including hiring of additional City personnel and/or the retaining
of professional consultants, will be reimbursed to city by
Developer.
6.2 Lenqth of Validitv of Tentative Subdivision Maps.
Government Code section 66452.6 provides that tentative subdivision
map(s) may remain valid for a length up to the term of a Develop-
ment Agreement. The city agrees that tentative subdivision map(s)
for the property shall be for a term of six (6) years and may be
extended by the city council for a period of time not to exceed a
total of twenty (20) years and in no event beyond the term of this
Agreement.
6.3 Pre-Final Map Development. If Developer desires to
do certain work on the Property after approval of a tentative map
(for example, grading) prior to the recordation of a final map, it
may do so by obtaining a grading and/or other required approvals
from the City which are authorized by the City prior to recordation
of a final map. Such permit shall be issued to Developer, or its
contractor, upon Developer's application, approval, and provided
Developer posts a bond or other reasonably adequate security
required by city in an amount to assure the rehabilitation of the
land if the applicable final map does not record.
6.4 Final Maps.
6.4.1 "A" Maps and "B" Maps. If Developer so
elects, the City shall accept and process a master subdivision
or parcel map ("A" Map) showing "Super Block" lots and
backbone street dedications. "Super Block" lots shall be
consistent with the GDP and subsequent sectional Plan Area
plans, and shall not subdivide land into individual single-
family lots. All "Super Blocks" created shall have access to
dedicated public streets. The City shall not require improve-
ment plans in order to record a final map for any "A" Map
lots, but the City shall require bonding for the completion of
backbone facilities prior to recording in an amount to be
determined by the City. Following the approval by city of any
final map for an "A" Map lot and its recordation, Developer
may convey the "Super Block" lot. The buyer of a "Super
Block" lot shall then process final improvement plans and
grading plans and a final map ("B" Map) for each "Super Block"
lot which the City shall process. The "B" Maps shall be in
substantial conformance with the related approved "A" Map. In
the instance of the mUlti-family dwelling unit areas, a
separate tentative subdivision map may be submitted to the
City and the "B" Map{s) for these areas may be submitted to
the city after the city Planning commission approves said
tentative subdivision map.
-lo-If'P-,J/
.._,._.,--------~-_._-
6.4.2 Recordation of Final Subdivision Map in
Name of Builder or Third Partv. Developer may, if it so
elects, convey to a Builder or third party any "super block"
lot(s) shown on the recorded Superblock Final Map. In such
case, the Builder or third party will (i) process any neces-
sary final improvement and grading plans and a final map for
each such "super block" lot, which map city shall accept and
process as subsequent phases in a mUlti-phase project, (ii)
enter into a subdivision improvement agreement with City with
respect to the subdivision improvements which are required for
such super block lot, and (iii) provide security and insurance
satisfactory to City for the completion of the subdivision
improvements.
6.4.3 Recordation of Final Subdivision Map in
Developer's Name; Transfer of Obliqations Under Subdivision
Improvement Aqreement(s). If Developer so elects, it may
defer the conveyance of any super block lot to a Builder or
third party until after the final map of such super block lot
has been recorded. If Developer elects to proceed in this
manner, it will enter into City's standard subdivision
improvement agreement(s) with City for the improvements
required as a condition to the approval of such map(s) . Upon
sale to a Builder or third party, if such Builder or third
party assumes Developer's obligations under the improvement
agreement and provides its own security and insurance for the
completion of the subdivision improvements as approved by the
city, Developer shall be released from liability under the
subdivision improvement agreement(s) and Developer's security
shall be released.
6.4.4 Transfer of Riqhts and Obliqations of
Development. Whenever Developer conveys a portion of the
Property, the rights and obligations of this Agreement shall
transfer in accordance with section 15 herein.
7. DEVELOPER'S OBLIGATIONS.
7.1 Condition to Developer's Obliqations to Dedicate. Fund or
Construct Public Facilities. Developer agrees to develop or
provide the public improvements, facilities, dedications, or
reservations of land and satisfy other exactions conditioning the
development of the Property which are set forth hereinbelow. The
obligations of the Developer pursuant to this Agreement are
conditioned upon: (i) the City not being in default of its obliga-
tions under this agreement; and (ii) the City not preventing or
unreasonably delaying the development of the property; and (iii)
the Agreement having not been suspended in response to changes in
state or federal law; and (iv) the City's obligations having not
been suspended pursuant to section 13.2.
7.2 Dedications and Reservations of Land for Public Purposes.
The policies by which property will be required to be reserved,
dedicated or improved for public purposes are identified in the
Existing Project Approvals. A more precise delineation of the
-11- 1S'!>-/ø1.
-..--..--.--.,.--. -~_.'---'--
property to be preserved, dedicated or improved for public purposes
shall occur as part of Future Discretionary Approvals, consistent
with the Existing Project Approvals.
7.2.1 Preserve Convevance Plan. The City and the
Developer shall mutually agree upon a Preserve Conveyance
Plan. The City shall in good faith consider for adoption such
a plan and the Developer shall convey property and/or fees in
lieu of land as set forth in such Plan.
7.3 Growth Manaqement Ordinance. Developer shall commit the
public facilities and City shall issue building permits as provided
in this Section. The City shall have the right to withhold the
issuance of building permits any time after the City reasonably
determines a Threshold has been exceeded, unless and until the
Developer has mitigated the deficiency in accordance with the
City's Growth Management Ordinance.
Developer agrees that building permits may be withheld where the
public facilities described in the Existing Project Approvals/-
Future Discretionary Approvals required for a particular Threshold
have not been committed.
In the event a Threshold is not met and future building permit
issuance may be withheld, the notice provisions and procedures
contained in section 19.09.100C of the Municipal Code will be
followed. In the event the issuance of building permits is
suspended pursuant to the provisions herein, such suspension shall
not constitute a breach of the terms of this Agreement by Develop-
er. Furthermore, any such suspension which is not caused by the
actions or omissions of the Developer, shall toll the term of this
Agreement as provided for in section 16.12 of this Agreement, and
suspend the Developer's obligations pursuant to this Agreement.
7.3.1 Required Condemnation. The City and Developer
recognize that certain of the public facilities identified in
the Existing Project Approvals/Future Discretionary Approvals
and required to comply with a threshold are located on
properties which neither the Developer nor the City has, or
will have, title to or control of. The City shall identify
such property or properties and at the time of filing of the
final map commence timely negotiations or, where the property
is within the city's jurisdiction, commence timely proceedings
pursuant to Title 7 (commencing with § 1230.010) of Part 3 of
the Code of civil Procedure to acquire an interest in the
property or properties. Developer's share of the cost
involved in any such acquisition shall be based on its
proportionate share of the public facility as defined in the
Existing Project Approvals/Future Discretionary Approvals.
Nothing in this Agreement shall be deemed to preclude the City
from requiring the Developer to pay the cost of acquiring such
off-site land. For that portion of the cost beyond the
Developer's fair share responsibility, the City shall take all
reasonable steps to establish a procedure whereby the develop-
er is reimbursed for such costs beyond its fair share.
-12- /5þ-l;J
-"...-------.---... .---.-.--------- -.---"-'-'---".-
7.3.2 Information Reqardinq Thresholds. Upon
Developer's written requests of the City Manager, the City
will provide Developer with information regarding the current
status of a Threshold. Developer shall be responsible for any
staff costs incurred in providing said written response.
7.4 Improvements Required bv a Subdivision Map. As may
be required pursuant to the terms of a subdivision map, it shall be
the responsibility of Developer to construct the improvements
required by a subdivision map. Where Developer is required to
construct a public improvement which has been identif ied as the
responsibility of another party or to provide public improvements
of supplemental size, capacity, number or length benefiting
property not within the subdivision, City shall process a reim-
bursement agreement to the Developer in accordance with Article 6
of Chapter 4 of the Subdivision Map Act, commencing with Government
Code section 66485, and section 7.5, below.
7.5 Facilities Which Are the Obliqations of Another
Partv. or Are of Excessive Size. Capacitv. Lenqth or Number.
Developer may offer to advance monies and/or construct public
improvements which are the responsibility of another land owner, or
outside the City's jurisdictional boundaries, or which are of
supplemental size, capacity, number or length for the benefit of
land not within the Property. City, where requesting such funding
or construction of oversized public improvements, shall consider
after a public hearing, contemporaneous with the imposition of the
obligation, the formation of a reimbursement district, assessment
district, facility benefit assessment, or reimbursement agreement
or other reimbursement mechanism.
7.6 pioneerinq of Facilities. To the extent Developer
itself constructs (i.e. , "Pioneers") any public facilities or
public improvements which are covered by a DIF Program, Developer
shall be given a credit against DIFs otherwise payable, subject to
the City's Director of Public Works reasonable determination that
such costs are allowable under the applicable DIF Program. It is
specifically intended that Developer be given DIF credit for the
DIF Program improvements it makes. The fact that such improvements
may be financed by an assessment district or other financing
mechanism, shall not prevent DIF credit from being given to the
extent that such costs are allowed under the applicable DIF Program
7.7 Insurance. Developer shall name City as additional
insured for all insurance policies obtained by Developer for the
Project as pertains to the Developer's activities and operation on
the Project.
7.8 Other Land Owners. Developer hereby agrees to
dedicate adequate rights-of-way within the boundaries of the
Property for other land owners to "pioneer" public facilities on
the Property; provided, however, as follows: (i) dedications shall
be restricted to those reasonably necessary for the construction of
facilities identified in the City's adopted public facility plans;
-13- I.5P·~~
- -_....__...~ ~._.._..--._._- ..-.----,- - - ..-....-.-.-..-.- -- - - ---.--------.,.-..--.......--....--
(ii) this provision shall not be binding on the successors-in-
interest or assignees of Developer following recordation of the
final "Super Block" or "A" Map; and (iii) the City shall use its
reasonable best efforts to obtain agreements similar to this
subsection from other developers and to obtain equitable reimburse-
ment for Developer for any excess dedications.
8. DEVELOPMENT IMPACT FEES.
8.1 Existinq Development Impact Fee Proqram Pavments.
Developer shall pay to the city a DIF, or construct improvements in
lieu of payment, for improvements which are conditions of a
tentative subdivision map upon the issuance of building permits (s) ,
or at a later time as specified by City ordinance, the Subdivision
Map Act, or Public Facility Financing Plan (PFFP). The DIF will be
in the amount in effect at the time payment is made and may only be
increased pursuant to section 8.6 herein.
8.2 Other Undeveloped Properties. The city will use its
reasonable best efforts to impose and collect, or cause the
imposition and collection of, the same DIF program on all the
undeveloped real properties which benefit from the provision of the
public facility through the DIF program, or provided as a condition
of Project Approvals.
8.3 Use of Development Impact Fee Proqram. The DIF
amounts paid to the city by Developer and others with respect to
the Area of Benefit shall be placed by the City in a capital
facility fund account established pursuant to California Government
Code sections 66000-66009. The city shall expend such funds only
for the Projects described in the adopted fee program as may be
modified from time to time. The city will use its reasonable best
efforts to cause such Projects to be completed as soon as practica-
ble; however, the City shall not be obligated to use its general
funds for such Projects.
8.4 withholdinq of Permits. Developer agrees that City
shall have the right to withhold issuance of the building permit
for any structure or improvement on the Property unless and until
the DIF is paid for such structure or improvement.
8.5 Development Impact Fee Credit. Upon the completion
and acceptance by the city of any public facility, the city shall
immediately credit Developer with the appropriate amount of cash
credits ("EDUs") as determined by Developer and city. However, if
the improvements are paid for through an Assessment District, the
city shall credit the Developer with the appropriate number of
Equivalent Dwelling unit Credits (EDU' s) . Developer shall be
entitled to apply any and all credits accrued pursuant to this
subsection toward the required payment of future DIF for any phase,
stage or increment of development of the Project.
8.6 Modification of Development Impact Fees. The
parties recognize that from time to time during the duration of the
Agreement it will be necessary for the city to update and modify
-14- 1S'þ-I5'
__ ~__..._ ~""_____'_"'_'M'__
its DIF fees. Such reasonable modifications are contemplated by
the City and the Developer and shall not constitute a modification
to the Agreement so long as: (i) the modification incorporates the
reasonable costs of providing facilities identified in the Existing
Project Approvals; (H) are based upon methodologies in substantial
compliance with the methodology contained in the existing DIF
programs; or other methodology approved by the city council
following a public hearing; (Hi) complies with the provisions of
Government Code sections 66000-66009.
8.7 Standards for Financinq Obliqations of Owner. In
connection with the development of the Property, the following
standards regarding the financing of public improvements shall
apply:
8.7.1 Owner shall pay its fair share for the
interchanges described in Paragraph 5.1. 3, based upon the
number of dwelling units or equivalent dwellings of develop-
ment allowed on the Property as compared to the total dwelling
units or equivalent dwelling units allowed on properties
served by such interchanges.
8.7.2 Owner shall participate in the DIF Program
for the Otay Valley Parcel with other owners in proportion to
the total dwelling units or equivalent dwelling units allowed
on the Property as compared with the total of such units
allowed on properties in that particular DIF or by some other
equitable methodology decided by the City council.
8.7.3 The city sha 11 diligently pursue the
requirements that the Eastern Territories' DIF requires
offsite third parties and adjacent jurisdictions to bear their
fair share of all Otay River Valley crossings.
9. CITY OBLIGATIONS.
9.1 Urban Infrastructure. To the extent it is within
the authority of the City to provide, City shall accommodate urban
infrastructure to the project, consistent with Existing Project
Approvals. Where it is necessary to utilize City property to
provide urban infrastructure consistent with the Existing Project
Approvals, the city agrees to make such land available for such
uses, provided that the City if it so chooses is compensated at
fair market value for the property. To the extent that the
provision of urban infrastructure is within the authority of
another pUblic or quasi-public agency or utility, the City agrees
to fully cooperate with such agency or agencies to accommodate the
urban infrastructure, consistent with Existing Project Approvals.
Urban infrastructure shall include, but not be limited to gas,
electricity, telephone, cable and facilities identified in the Otay
Ranch Facility Implementation Plan.
9.2 Sewer Capacity. The City agrees to provide adequate
sewer capacity for the project, upon the payment of ordinary and
necessary sewer connection, capacity and/or service fees.
-15- /5'þ-/¿
--"--. . -,-----_..~..._-----_..- ....-...--
10. ANNUAL REVIEW.
10.1 citv and Owner Responsibilities. City will, at
least every twelve (12) months during the Term of this Agreement,
pursuant to California Government Code §65865.1, review the extent
of good faith substantial compliance by Owner with the terms of
this Agreement. Pursuant to California Government Code section
65865.1, as amended, Owner shall have the duty to demonstrate by
substantial evidence its good faith compliance with the terms of
this Agreement at the periodic review. Either City or Owner may
address any requirement of the Agreement during the review.
10.2 Evidence. The parties recognize that this Agreement
and the documents incorporated herein could be deemed to contain
hundreds of requirements and that evidence of each and every
requirement would be a wasteful exercise of the parties' resources.
Accordingly, Developer shall be deemed to have satisfied its good
faith compliance when it presents evidence of substantial com-
pliance with the major provisions of this Agreement. Generalized
evidence or statements shall be accepted in the absence of any
evidence that such evidence is untrue.
10.3 Review Letter. If Owner is found to be in com-
pliance with this Agreement after the annual review, city shall,
within forty-five (45) days after Owner's written request, issue a
review letter in recordable form to Owner ("Letter" ) stating that
based upon information known or made known to the Council, the city
Planning commission and/or the City Planning Director, this
Agreement remains in effect and Owner is not in default. Owner may
record the Letter in the Official Records of the County of San
Diego.
10.4 Failure of periodic Review. City's failure to
review at least annually Owner's compliance with the terms and
conditions of this Agreement shall not constitute, or be asserted
by city or Owner as, a breach of the Agreement.
11. DEFAULT.
11.1 Events of Default. A default under this Agreement
shall be deemed to have occurred upon the happening of one or more
of the following events or conditions:
11.1.1 A warranty, representation or statement
made or furnished by Owner to city is false or proves to have
been false in any material respect when it was made.
11. 1. 2 A finding and determination by City made
following a periodic review under the procedure provided for
in California Government Code section 65865.1 that upon the
basis of substantial evidence Owner has not complied in good
faith with one or more of the terms or conditions of this
Agreement.
-16- /S])'J7
,--- --~-_.._._,.. _ _ ,._~-- .-"--.------- -------
11.1.3 city does not accept, timely review, or
consider requested development permits or entitlements
submitted in accordance with the provisions of this Agreement.
11.1. 4 Any other act or omission by City or Owner
which materially interferes with the terms of this Agreement.
11.2 Procedure Upon Default.
11.2.1 Upon the occurrence of default by the
other party, city or Owner may terminate this Agreement after
providing the other party thirty (30) days written notice
specifying the nature of the alleged default and, when
appropriate, the manner in which said default may be satis-
factorily cured. After proper notice and expiration of said
thirty (30) day cure period without cure, this Agreement may
be terminated. In the event that City's or Owner's default is
not subject to cure within the thirty (30) day period, City or
Owner shall be deemed not to remain in default in the event
that City or Owner commences to cure within such thirty (30)
day period and diligently prosecutes such cure to completion.
Failure or delay in giving notice of any default shall not
constitute a waiver of any default, nor shall it change the
time of default. Notwithstanding any other provision of this
Agreement, City reserves the right to formulate and propose to
Owner options for curing any defaults under this Agreement for
which a cure is not specified in this Agreement.
11. 2.2 City does not waive any claim of defect in
performance by Owner if, on periodic review, City does not
propose to modify or terminate this Agreement.
11.2.3 Subject to Paragraph 16.12 of this
Agreement, the failure of a third person shall not excuse a
party's nonperformance under this agreement.
11. 2.4 All othcr rClRcdicG at la',; or in equity
which arc conGi3tcnt ',lith thc proviGion3 of this AEjreelRent. are
a9;ailaelc te City and OURer te puroue in the c9"T.cßt t.here is a
breach. In the event of a default bv either partv to this
Aqreement. the parties shall have the remedies of specific
performance. mandamus. iniunction and other equitable remedies
without havinq to first prove there is an inadequate remedv at
law. Neither partv shall have the remedv of monetarv damaqes
aqainst the other: provided. however. that the award of costs
of litiqation and attornevs' fees shall not constitute damaqe.
12. ENCUMBRANCES AND RELEASES ON PROPERTY.
12.1 Discretion to Encumber. This Agreement shall not
prevent or limit Owner in any manner at Owner's sole discretion,
from encumbering the Property, or any portion of the Property, or
any improvement on the Property, by any mortgage, deed of trust, or
other security device securing financing with respect to the
Property or its improvement.
-17- ~~p-Jr
~...__. - -,---_._.._~~_.._.__...-
12.2 Mortqaqee Riqhts and Obliqations. The mortgagee of
a mortgage or beneficiary of a deed of trust encumbering the
Property, or any part thereof, and their successors and assigns
shall, upon written request to City, be entitled to receive from
city written notification of any default by Owner of the
performance of Owner's obligations under the Agreement which has
not been cured within thirty (30) days following the date of
default.
12.3 Releases. City agrees that upon written request of
Owner and payment of all fees and performance of the require-
ments and conditions required of Owner by this Agreement with
respect to the Property, or any portion thereof, city may
execute and deliver to Owner appropriate release(s) of further
obligations imposed by this Agreement in form and substance
acceptable to the San Diego County Recorder and title
insurance company, if any, or as may otherwise be necessary to
effect the release. city Manager shall not unreasonably
withhold approval of such release(s).
12.4 Obliqation to Modifv. City acknowledges that the
lenders providing financing for the Project may require certain
modifications to this Agreement and city agrees, upon request from
time to time, to meet with Owner and/or representatives of such
lenders to negotiate in good faith any such requirement for
modification. City will not unreasonably withhold its consent to
any such requested modification.
13. MODIFICATION OR SUSPENSION.
13.1 Modification to Aqreement bv Mutual Consent. This
Agreement may be modified, from time to time, by the mutual consent
of the parties only in the same manner as its adoption by an
ordinance as set forth in California Government Code sections
65867, 65867.5 and 65868. The term, "this Agreement" as used in
this Agreement, will include any such modification properly
approved and executed.
13.2 Unforeseen Health or Safetv Circumstances. If, as
a result of facts, events, or circumstances presently unknown,
unforeseeable, and which could not have been known to the parties
prior to the commencement of this Agreement, City finds that
failure to suspend this Agreement would place the residents of City
in a severe and immediate emergency to their health or safety, the
City shall:
13.2.1 Notification of Unforeseen Circumstances.
Notify Developer of (i) City's determination; and (ii) the
reasons for City's determination, and all facts upon which
such reasons are based;
13.2.2 Notice of Hearinq. Notify Developer in
writing at least fourteen (14) days prior to the date, of the
date, time and place of the hearing and forward to Developer
a minimum of ten (10) days prior to the hearings described in
-18- /fp-/7
._ _...__... ____._______.___.__ _____ ...__ __,,_.._._~.,_,. "__._. ......._.... .,.__,_,______n.____._______.
section 13.2.3, all documents related to such determination
and reasons therefor; and
13.2.3 Hearinq. Hold a hearing on the deter-
mination, at which hearing Developer will have the right to
address the City Council. At the conclusion of said hearing,
City may take action to suspend this Agreement as provided
herein. The City may suspend this Agreement if, at the
conclusion of said hearing, based upon the evidence presented
by the parties, the City finds failure to suspend would place
the residents of the City in a severe and immediate emergency
to their health or safety.
13.3 Chanqe in state or Federal Law or Requlations. If
any state or federal law or regulation enacted during the Term of
this Agreement, or the action or inaction of any other affected
governmental jurisdiction, precludes compliance with one or more
provisions of this Agreement, or requires changes in plans, maps,
or permits approved by City, the parties will act pursuant to
sections 13.3.1 and 13.3.2, below.
13.3.1 Notice: Meetinq. The party first becoming
aware of such enactment or action or inaction will provide the
other party(ies) with written notice of such state or federal
law or regulation and provide a copy of such law or regulation
and a statement regarding its conflict with the provisions of
this Agreement. The parties will promptly meet and confer in
a good faith and reasonable attempt to modify or suspend this
Agreement to comply with such federal or state law or regula-
tion.
13.3.2 Hearinq. If an agreed upon modification
or suspension would not require an amendment to this Agree-
ment, no hearing shall be held. Otherwise, the matter of such
federal or state law or regulation will be scheduled for
hearing before the City. Fifteen (15) days' written notice of
such hearing shall be provided to Developer, and the city, at
such hearing, will determine and issue findings on the
modification or suspension which is required by such federal
or state law or regulation. Developer, at the hearing, shall
have the right to offer testimony and other evidence. If the
parties fail to agree after said hearing, the matter may be
submitted to mediation pursuant to subsection 13.3.3, below.
Any modification or suspension shall be taken by the affirma-
tive vote of not less than a majority of the authorized voting
members of the City. Any suspension or modification may be
subject to judicial review in conformance with subsection
16.19 of this Agreement.
13.3.3 Mediation of Disputes. In the event the
dispute between the parties with respect to the provisions of
this paragraph has not been resolved to the satisfaction of
both parties following the city hearing required by subsection
13.3.2, the matter shall be submitted to mediation prior to
the filing of any legal action by any party. The mediation
-19- 1,$'7/.~
-...._-_.._._-_...__...~.._._~--~---_......._-"..._...---
will be conducted by the San Diego Mediation Center; if San
Diego Mediation Center is unable to conduct the mediation, the
parties shall submit the dispute for mediation to the Judicial
Arbitration and Mediation Service or similar organization and
make a good faith effort to resolve the dispute. The cost of
any such mediation shall be divided equally between the
Developer and City.
13.4 Natural Communities Conservation Act (NCCP). The
parties recognize that Developer and the city are individually
negotiating agreements with the united States Fish and wildlife
Service ("USF&W") and the California Department of Fish and Game
pursuant to the ongoing regional effort to implement the Natural
Communities Conservation Act ("NCCP"), locally proposed to be
implemented through the Multi-Species Conservation Program
("MSCP"). The parties further recognize that implementation of the
agreements may necessitate modification to the Existing Project
Approvals. The parties agree to utilize their best efforts to
implement these agreements, once executed, through the timely
processing of modifications to the Existing Project Approvals as
they relate to the Property. The Developer agrees to pay the
reasonable city cost for processing work related to the modifica-
tions. Once such modifications are obtained they shall be vested
to the same extent as Existing Project Approvals.
14. DISTRICTS. PUBLIC FINANCING MECHANISMS.
This Agreement and the Existing Project Approvals recognize
that assessment districts, community facility districts, or other
public financing mechanisms, may be necessary to finance the cost
of public improvements borne by this proj ect. If Developer,
pursuant to the Existing Project Approvals/Future Discretionary
Approvals, is required to install improvements through the use of
assessment districts, community facility districts, or other public
financing mechanisms, the City shall initiate and conclude
appropriate proceedings for the formation of such financing
district or funding mechanism, under applicable laws or ordinances.
Developer may request that the city utilize any other financing
methods which may become available under City laws or ordinances.
All costs associated with the consideration and formation of such
financing districts or funding mechanisms shall be paid by
Developer subject to reimbursement, as may be legally authorized
out of the proceeds of any financing district or funding mechanism.
15. ASSIGNMENT AND DELEGATION.
15.1 Assiqnment. Owner shall have the right to transfer
or assign its interest in the Property, in whole or in part,
to any persons, partnership, joint venture, firm, or corpora-
tion at any time during the Term of this Agreement without the
consent of City. Owner also shall have the right to assign or
transfer all or any portion of its interest or rights under
this Agreement to third parties acquiring an interest or
estate in the Property at any time during the Term of this
Agreement without the consent of city.
-20- 15'Þ'~1
,-_.._-_._._-_._.~..._-------_._---
15.2 Deleqation. In addition, Owner shall have the
right to delegate or transfer its obligations under this
Agreement to third parties acquiring an interest or estate in
the Property after receiving the prior written consent of the
City Manager, which consent shall not be unreasonably with-
held, delayed, or conditioned. Once the City Manager has
consented to a transfer, delivery to and acceptance by the
City Manager of an unqualified written assumption of Owner's
obligations under this Agreement by such transferee shall
relieve Owner of the obligations under this Agreement to the
extent the obligations have been expressly assumed by the
transferee. Such transferee shall not be entitled to amend
this Agreement without the written consent of the entity that,
as of the Effective Date, is Owner, which consent shall not be
unreasonably withheld, delayed, or conditioned. The entity
that is Owner as of the Effective Date, however, shall be
entitled to amend this Agreement without the written consent
of such transferee.
16. MISCELLANEOUS PROVISIONS.
16.1 Bindinq Effect of Aqreement. Except to the extent
otherwise provided in this Agreement, the burdens of this Agreement
bind, and the benefits of this Agreement inure, to City's and
Owner's successors-in-interest and shall run with the land.
16.2 Relationship of citv and Owner. The contractual
relationship between City and Owner arising out of this Agreement
is one of independent contractor and not agency. This Agreement
does not create any third-party beneficiary rights.
16.3 Notices. All notices, demands, and correspondence
required or permitted by this Agreement shall be in writing and
delivered in person, or mailed by first-class or certified mail,
postage prepaid, addressed as follows:
If to City, to: City of Chula vista
276 Fourth Avenue
Chula vista, CA 91910
Attention: city Manager
If to Owner, to: Gregory T. or Georgiana R. smith
P. 0 Box 2786
Rancho Santa Fe, CA 92067
Attention: Gregory T. smith
with a Copy to: STEPHENSON, WORLEY, GARRATT,
SCHWARTZ, HEIDEL & PRAIRIE
101 West Broadway, suite 1300
San Diego, CA 92101
Attention: Donald R. Worley, Esq.
-21- 1..1'/)"'.}:J..
...-,....---.--.-.-...-......---...-
City or Owner may change its address by giving notice in writing to
the other. Thereafter, notices, demands, and correspondence shall
be addressed and transmitted to the new address. Notice shall be
deemed given upon personal delivery, or, if mailed, two (2)
business days following deposit in the United states mail.
16.4 Rules of Construction. In this Agreement, the use
of the singular includes the plural; the masculine gender includes
the feminine; "shall" is mandatory; "may" is permissive.
16.5 Entire Aqreement. Waivers. and Recorded statement.
This Agreement constitutes the entire understanding and agreement
of city and Owner with respect to the matters set forth in this
Agreement. This Agreement supersedes all negotiations or previous
agreements between city and Owner respecting this Agreement. All
waivers of the provisions of this Agreement must be in writing and
signed by the appropriate authorities of city and Owner. Upon the
completion of performance of this Agreement, or its revocation or
termination, a statement evidencing completion, revocation, or
termination signed by the appropriate agents of City shall be
recorded in the Official Records of San Diego County, California.
16.6 proiect as a Private Undertakinq. It is
specifically understood by city and Owner that (i) the Project is
a private development; (ii) City has no interest in or
responsibilities for or duty to third parties concerning any
improvements to the Property until city accepts the improvements
pursuant to the provisions of the Agreement or in connection with
subdivision map approvals; and (iii) Owner shall have the full
power and exclusive control of the Property subject to the
obligations of Owner set forth in this Agreement.
16.7 Incorporation of Recitals. The recitals set forth
in Paragraph 1 of this Agreement are part of this Agreement.
16.8 captions. The captions of this Agreement are for
convenience and reference only and shall not define, explain,
modify, construe, limit, amplify, or aid in the interpretation,
construction, or meaning of any of the provisions of this
Agreement.
16.9 Consent. Where the consent or approval of city or
Owner is required or necessary under this Agreement, the consent or
approval shall not be unreasonably withheld, delayed, or con-
ditioned.
16.10 Covenant of Cooperation. City and Owner shall
cooperate and deal with each other in good faith, and assist each
other in the performance of the provisions of this Agreement.
16.11 Recordinq. The City Clerk shall cause a copy of
this Agreement to be recorded with the Office of the County
Recorder of San Diego County, California, within ten (10) days
following the Effective Date.
-22- J5p-.u
_.__" _.__._..~___,.___,_"._..m_._
16.12 Delav. Extension of Time for Performance. In
addition to any specific provision of this Agreement, performance
by either City or Owner of its obligations hereunder shall be
excused, and the Term of this Agreement and the Development Plan
extended, during any period of delay caused at any time by reason
of any event beyond the control of city or Owner which prevents or
delays and impacts City's or Owner's ability to perform obligations
under this Agreement, including, but not limited to, acts of God,
enactment of new conflicting federal or state laws or regulations
(example: listing of a species as threatened or endangered),
judicial actions such as the issuance of restraining orders and
injunctions, riots, strikes, or damage to work in process by reason
of fire, floods, earthquake, or other such casualties. If city or
Owner seeks excuse from performance, it shall provide written
notice of such delay to the other within thirty (30) days of the
commencement of such delay. If the delay or default is beyond the
control of City or Owner, and is excused, an extension of time for
such cause will be granted in writing for the period of the
enforced delay, or longer as may be mutually agreed upon.
16.13 Covenant of Good Faith and Fair Dealinqs. Noparty
shall do anything which shall have the effect of harming or
injuring the right of the other parties to receive the benefits of
this Agreement; each party shall refrain from doing anything which
would render its performance under this Agreement impossible; and
each party shall do everything which this Agreement contemplates
that such party shall do in order to accomplish the objectives and
purposes of this Agreement.
16.14 Operatinq Memorandum. The parties acknowledge that
the provisions of this Agreement require a close degree of
cooperation between City and Developer, and that the refinements
and further development of the Project may demonstrate that minor
changes are appropriate with respect to the details of performance
of the parties. The parties, therefore, retain a certain degree of
flexibility with respect to those items covered in general under
this Agreement. When and if the parties mutually find that minor
changes or adjustments are necessary or appropriate, they may
effectuate changes or adjustments through operating memoranda
approved by the parties. For purposes of this section 16.14, the
City Manager, or his designee, shall have the authority to approve
the operating memoranda on behalf of city. No operating memoranda
shall require notice or hearing or constitute an amendment to this
Agreement.
16.15 Time of Essence. Time is of the essence in the
performance of the provisions of this Agreement as to which time is
an element.
16.16 Amendment or Cancellation of Aqreement. This
Agreement may be amended from time to time or canceled by the
mutual consent of city and Owner only in the same manner as its
adoption, by an ordinance as set forth in California Government
Code section 65868, and shall be in a form suitable for recording
in the Official Records of San Diego County, California. The term
-23- I.5'P-J. 'I
----,-,..------..-..--- -----
"Agreement" shall include any such amendment properly approved and
executed. City and Owner acknowledge that the provisions of this
Agreement require a close degree of cooperation between them, and
that minor or insubstantial changes to the Project and the
Development Plan may be required from time to time to accommodate
design changes, engineering changes, and other refinements.
Accordingly, changes to the project and the Development Plan that
do not result in a change in use, an increase in density or
intensity of use, cause new or increased environmental impacts, or
violate any applicable health and safety regulations, may be
considered minor or insubstantial by the city Manager and made
without amending this Agreement.
16.17 Estoppel certificate. within 30 calendar days
following a written request by any of the parties, the other
parties to this Agreement shall execute and deliver to the
requesting party a statement certifying that (i) this Agreement is
unmodified and in full force and effect, or if there have been
modifications hereto, that this Agreement is in full force and
effect as modified and stating the date and nature of such
modifications; (ii) there are no known current uncured defaults
under this Agreement, or specifying the dates and nature of any
such default; and (iii) any other reasonable information requested.
The failure to deliver such a statement within such time shall
constitute a conclusive presumption against the party which fails
to deliver such statement that this Agreement is in full force and
effect without modification, except as may be represented by the
requesting party, and that there are no uncured defaults in the
performance of the requesting party, except as may be represented
by the requesting party.
16.18 Severabili tv. If any material provision of this
Agreement is held invalid, this Agreement will be automatically
terminated unless within 15 days after such provision is held invalid
the party holding rights under the invalidated provision affirms the
balance of this Agreement in writing. This provision will not affect
the right of the parties to modify or suspend this Agreement by
mutual consent pursuant to Paragraph 12.4.
16.19 Institution of Leqal Proceedinq. In addition to any
other rights or remedies, any party may institute legal action to
cure, correct, or remedy any default, to enforce any covenants or
agreements herein, or to enjoin any threatened or attempted violation
thereof; to recover damages for any default or to obtain any remedies
consistent with the purpose of this Agreement. Such legal actions
must be instituted in the Superior Court of the County of San Diego,
State of California.
16.20 Attornevs' Fees and Costs. If any party commences
litigation or other proceedings (including, without limitation,
arbitration) for the interpretation, reformation, enforcement, or
rescission of this Agreement, the prevailing party, as determined by
the court, will be entitled to its reasonable attorneys' fees and
costs.
-24- I,S'Þ -.:A.r
---~_.__...,_..~._...._,---~._-~_.-_.~--
16.21 Hold Harmless. Developer agrees to and shall hold
City, its officers, agents, employees and representatives harmless
from liability for damage or claims for damage for personal injury,
including death, and claims for property damage which may arise from
the direct or indirect operations of Developer or those of its
contractors, subcontractors, agents, employees or other persons
acting on Developer's behalf which relate to the Project. Developer
agrees to and shall defend City and its officers, agents, employees
and representatives from actions for damage caused or alleged to have
been caused by reason of Developer's activities in connection with
the Project. Developer agrees to indemnify, hold harmless, pay all
costs and provide a defense for City in any legal action filed in a
court of competent jurisdiction by a third party challenging the
validi ty of this Agreement. The provisions of this section 16.21
shall not apply to the extent such damage, liability or claim is
caused by the intentional or negligent act or omission of city, its
officers, agents, employees or representatives.
15'0 -~¿,
-25-
--_.._-~... ._~--,-_.._--_.__..._.__.._.." ~-_..-
SIGNATURE PAGE TO PRE-ANNEXATION DEVELOPMENT AGREEMENT.
Dated this day of , 1997
"CITY"
CITY OF CHULA VISTA
By:
Shirley Horton, Mayor
"OWNER"
GREGORY T. SMITH AND GEORGIANA R. SMITH
By:
Gregory T. smith
By:
Georgiana R. smith
I hereby approve the form and legality of the foregoing Pre-
Annexation Development Agreement this day of ,
1997.
John M. Kaheny, city Attorney
By:
Ann Moore
Assistant City Attorney
I~P-:lJ
-26-
-- --~----" .. .. - -.--------- .,.-..--..-----. ... . --.-.
.- ' '
.'
EXHIBIT A
~Ift..
-.-
"- - ----
~~::f~
01Y OF
CHUlA VISTA
~LANNING DEPARTMENT
GREGORY T. AND GEORGIANA R. SMITH J.5'1) ~ ~,g¡g6
,
_.M__
:r
=
..
z~ ~~
~ 'C iE '" ~! I¡¡ o~ ~ !
., - - , ~ z ~
'" '" 'C c: 'C .,
....
"''C û).....m c:c: 'C., ~-CI: ?)~ 0 o~ ~ r
':ïí c: -Ou "0 .,E
.- ::¡ >"c: E;:: CIIJ: ...J.!!! >,
>0 "'....., '" Ou >,u'C
",CD -"'::¡ E><CII c.",,,, "''''::I U~
->, ::IJ:_ 0"'", 0- ., - c.::: 0
::I... J: 0.- uc:., ...."'.... OtlHf) ...
J: ._ Uw.!: "'c:.... CoOCl: ~
0 Uu 0::««
Z m
W WJ
C) I I
w I In
...J .E
.-
I ~
I N-
o
I
-I
CO
--I
I
I
l_,
-J
I .,
l,\
I
I
\
.)
-
- \
. \.,.. - J
0 J
Z I
t: (''r'
ra 0
.... .-
....
en ra-
.- N I
> .-
CQrat: .-
l
... - ra
.- :3 en
.c
.- .c "-
.cUO
>< Q)
W't-~
0
~-5
.- t: 15P-~1 --
U ra .-
~
>-
ra
""".
ORDINANCE NO. -l?#¥
AN ORDINANCE .OF THE CITY OF CHULA VISTA
ADOPTING THE RESTATED AND AMENDED PRE-
ANNEXATION DEVELOPMENT AGREEMENT WITH UNITED
ENTERPRISES
WHEREAS, on July 16, 1996, the City Council approved a
Pre-Annexation Development Agreement between the city of Chula
Vista and United Enterprises, pursuant to Ordinance No. 2681 ; and
WHEREAS, by the terms of the Previous Agreement, this
Agreement expired as of Jan. 1, 1997, because the annexation
proceeding was not completed by that date; and
WHEREAS, there is now a mutual desire by the City and
united Enterprises to restate and amend the Previous Agreement in
order for the Previous Agreement to become effective once again
("Restated Amendment"); and
WHEREAS, on February 19, 1997, the Planning commission
reviewed the Restated Agreement and voted to approve the same.
NOW, THEREFORE, the City Council of the City of Chula
vista ordains as follows:
SECTION I: The Previous Agreement between united
Enterprises and the City of Chula vista is hereby amended, restated
and adopted as set forth in the Restated and Amended Pre-Annexation
Development Agreement on file in the office of the City Clerk as
Document No. .
SECTION II: The Mayor of the City of Chula vista is
hereby authorized and directed to execute said Restated Agreement
for and on behalf of the City of Chula vista.
SECTION III: This ordinance shall take effect and be of
full force on the effective date of annexation as set forth in the
attached Restated Agreement.
Presented by Approved as to form by
George Krempl, Deputy City ~~~
John M. Kaheny, city ttorney
Manager
c: \or\united.ent
1.5£-1
----"-" ..---- -.---..--'-..---.--...---.---........ --. ,. _ ._.__ .__._.__~_._._a ___.__..__,."_.'". .....-.-..--..
AMENDED AND RESTATED
PRE-ANNEXATION DEVELOPMENT AGREEMENT
THIS AMENDED AND RESTATED PRE-ANNEXATION DEVELOPMENT AGREEMENT
( "Agreement" ) is made effective on the date hereinafter set forth
below by and between UNITED ENTERPRISES, LTD. ( "owner") and the
CITY OF CHULA VISTA ("city"), who agree as follows:
1. RECITALS. This Agreement is made with respect to the
following facts:
1.1 Owner. united Enterprises is the owner of
approximately 136.47 acres of real property (the "Property" )
located in the unincorporated area of the County of San Diego (the
"County"), described in Exhibit "A", attached hereto and
incorporated herein by this reference.
1.1.1 For approximately the last 40 years, the
Property has been used for rock quarry operations, including but
not limited to the mining and crushing of rock, the processing of
rock through a cement treated base plant, and the sale and trucking
of rock and cement treated base material (together, "Rock Quarry
operations."). The use of the Property for Rock Quarry Operations
constitutes a legal, non-conforming use by virtue of the imposition
by the county, subsequent to the vesting of the use, of an
ordinance which would otherwise require that the use be subject to
a use permit.
1.1.2 In accordance with the Surface Mining and
Reclamation Act, the Rock Quarry Operations are currently being
operated pursuant to a reclamation plan approved by the County and
filed with the State Division of Mines and Geology (the
"Reclamation Plan") .
1.2 citv. The city of Chula vista is a municipal
corporation and an incorporated City within the County.
1.3 Code Authorization and Acknowledqements.
1.3.1 City is authorized pursuant to California
Government Code sections 65864 through 65869.5 to enter into
development agreements for the purpose of establishing certainty
for both city and owners of real property in the development
process.
1.3.2 Government Code Section 65865 expressly
authorizes a city to enter into a development agreement with any
person having a legal or equitable interest in real property in
unincorporated territory within the city's sphere of influence for
the development of property as provided in the Development
Agreement Law; provided that the agreement shall not become
operative unless annexation proceedings annexing the property to
Pre·Annexation Developlent Agreelent
J...Çf, .J..
-,,--- ._..~._..,-_..- _.-...._._..._~.,---_._-~------,---
the city are completed within the time specified by the agreement.
1. 3.3 City enters into this Agreement pursuant to
the provisions of the California Government Code, its home-rule
powers, and applicable city ordinances, rules, regulations and
policies.
1. 3.4 City and Owner acknowledge:
1.3.4.1 This Agreement assures adequate public
facilities at the time of development.
1.3.4.2 This Agreement assures development in
accordance with city's capital improvement plans.
1.3.4.3 This Agreement constitutes a current
exercise of City's police powers to provide certainty to Owner in
the development approval process by vesting the permitted use(s),
density, intensity of use, and the timing and phasing of
development, in exchange for Owner's entering into this Agreement
and for its commitment to support the Annexation described below.
1.3.4.4 This Agreement will permit achievement
of City growth management goals and objectives.
1.3.4.5 This Agreement will allow City to
realize significant economic, recreational, park, open space,
social, and public facilities benefits, some of which are of
regional significance.
1.3.4.6 This Agreement will provide and assure
that City receive sales tax revenues, increase in the property tax
base, residential housing and other development, sewer, water and
street facilities.
1.3.4.7 This Agreement will assure that City
receives public facilities in excess of project generated impacts
and such facilities shall be of supplemental size, number capacity
or length, which shall be provided earlier than could be provided
either by funds from the City or than would strictly be necessary
to mitigate project related impacts at any development phase.
1.3.4.8 This Agreement will provide City
Owner's support to secure annexation of the lands depicted in
Exhibit liB", attached hereto and incorporated herein by this
reference.
1.3.4.9 Because of the complexities of the
financing of the infrastructure, park, open space, and other
dedications, and regional and community facilities, and the
significant nature of such facilities, certainty in the development
process is an absolute necessity. The phasing, timing, and
Pre-Annexation Develop.ent Agreelent 2
151'· :J
-.--.--...---- _._+._._____.__.____.,__.._.~.___,__._,______.,___,_._.__._ ,on
development of public infrastructure necessitate a significant
commitment of resources, planning, and effort by Owner for the
public facilities financing, construction and dedication to be
successfully completed. In return for Owner's participation and
commitment to these significant contributions of private resources
for public purposes and for Owner's consent to the Annexation
described below, city is willing to exercise its authority to enter
into this Agreement and to make a commitment of certainty for the
development process for the Property.
1.3.4.10 In consideration of Owner's
agreement to provide the significant benefits and for Owner's
consent to the Annexation described below, City hereby grants Owner
assurances that it can proceed with development of the Property in
accordance with City's laws, ordinances, rules, regulations and
policies existing as of the effective date of this Agreement (as
defined in Paragraph 3 of this Agreement). Owner would not enter
into this Agreement or agree to provide the public benefits and
improvements described in this Agreement if it were not for the
commitment of City that the Property subject to this Agreement can
be developed in accordance with City's laws, ordinances, rules,
regulations, and policies existing as of the effective date of this
Agreement.
1.4 The Annexation. The City has applied to the Local
Agency Formation Commission ("LAFCO") for annexation of Sphere of
Influence. Planning Area 1 "The Otay Parcel", Planning Area 2
"Inverted L" and the Mary Patrick Estate Parcel (see Attachment
"B") .
1.5 Schere of Influence. A city application is pending
before LAFCO to have the Otay Valley Parcel included within city's
sphere of influence. On February 5, 1996 the Local Agency
Formation Commission approved the inclusion of approximately 7,600
acres into the City Sphere of Influence (Sphere of Influence
Planning Area 2 and the norther two thirds of Planning Area 1), and
designated the Otay River Valley and Village 3 as special study
areas.
1.6 Owner Consent. city desires to have the cooperation
and consent of Owner to include the Property in the Annexation in
order to better plan, finance, construct and maintain the
infrastructure for the Otay Valley Parcel¡ and Owner desires to
give its cooperation and consent, provided that it obtains certain
assurances, as set forth in this Agreement.
1.7 ci tv Ordinance. On , the City
Council adopted Ordinance No. approving this Agreement.
2. DEFINITIONS. In this Agreement, unless the context
otherwise requires:
Pre-Annexation Develop.eot Agree.ent 3
/5'L~
.._--_.._,..__.,-_._----~_._~~ -...----------
2.1 "Annexation" means the proposed annexation of that
portion of the otay Ranch into the City as depicted on Exhibit "B".
2.2 "Builder" means a third party to whom Owner has sold
or conveyed property within the Property for purposes of its
improvement for residential commercial, industrial or other uses.
2.3 "City" means the City of Chula Vista, in the County
of San Diego, State of California.
2.4 "city council" means the City of Chula vista City
Council.
2.5 "County" means the county of San Diego, State of
California.
2.6 "Development Impact Fee (DIF)" means fees imposed
upon new development pursuant to the City of Chula vista
Development Impact Fee Program, for example, including but not
limited to the Transportation Development Impact Fee Program, the
Interim SR-125 Development Impact Fee Program, the Salt Creek Sewer
DIF and the Public Facilities DIF.
2.7 "Existing Project Approvals" means (i) the common
law vested right to continue use of the Property for Rock Quarry
Operations, (ii) all discretionary approvals affecting the Property
which have been approved or established by the County in
conjunction with, or preceding, the Effective Date consisting of,
but not limited to, the Reclamation Plan, all as may be amended
from time to time consistent with this Agreement; (iii) all
discretionary approvals affecting the Property which have been
approved or established by City in conjunction with, or preceding,
the Effective Date consisting of, but not limited to, the prezoning
of the Property to City's P-C Planned Community Zone, the otay
Ranch Reserve Fund Program adopted pursuant to City Resolution No.
18288, and the Chula vista General Plan open space designation, all
as may be amended from time to time consistent with this Agreement;
and (iv) all laws, rules, regulation, policies, ordinances or
standards as of the Effective Date which do not conflict with this
Agreement.
2.8 "Final Map(s)" means any final subdivision map for
all or any portion of the Property, other than the Super Block
Final Maps (A Maps).
2.9 "Future Discretionary Approvals" means all permits
and approvals by city granted after the Effective Date and
excluding Existing Project Approvals, including, but not limited
to: (i) grading permits, (ii) site plan reviews; (iii) design
guidelines and reviews; (iv) precise plan reviews; (v) subdivisions
of the Property or re-subdivisions of the Property previously
subdivided pursuant to the Subdivision Map Act; (vi) conditional
Pre-Annexation Deve1op.ent Agreelent 4
Iff"
--..........---....,-....-.-. - -~.~.. - ~--,._-_.._---_.__."..._-,-,_...-
use permits; (vii) variances; (viii) encroachment permits; (ix)
sectional Planning Area plans; (x) zone reclassifications; (xi)
general plan amendments; (xii) any preserve conveyance plan; and
(xi) all other reviews, permits, and approvals of any type which
may be required from time to time to authorize public or private
on- or off-site facilities which are a part of the Project.
2.10 .. Owner II means united Enterprises, Ltd., a
California limited partnership, and its successors-in-interest.
2.11 "Planning Commission" means the Planning Commission
of the City of Chula vista.
2.12 "Preserve Conveyance Plan" means a plan that
designates the specific parcells) of land or the amount of fees to
be paid and policies for the orderly conveyance of the otay Ranch
land to a preserve owner manager. The purpose of the plan is to
fulfill the obligation to convey resource sensitive land and to
mitigate the environmental impact of development on sensitive
species.
2.13 "Project" means the physical development of the
private and public improvements on the Property as provided for in
the Existing Project Approvals and as may be authorized by the city
in Future Discretionary Approvals.
2.14 "Property" means the real property described in
Paragraph 1.1.
2.15 "Public Facility" or "Public Facilities" means
those public facilities described in the otay Ranch Facility
Implementation Plan.
2.16 "Rock Quarry Operations" means the mining and
crushing of rock, the processing of rock through a cement treated
base plant, and the sale and trucking of rock and cement treated
base materials.
2.17 "Subdivision Map Act" means the California
Subdivision Map Act, Government Code section 66410, et seq., and
its amendments as may from time to time be adopted.
2.18 "Substantial Compliance" means that the party
charged with the performance of a covenant herein has sufficiently
followed the terms of this Agreement so as to carry out the intent
of the parties in entering into this Agreement.
2.19 The IITerm" of this Agreement means the period
defined in Paragraph 3, below.
2.20 "Threshold" means the facility thresholds set forth
Pre-Annexation Cevelop.ent Agree.ent 5
I,£-¿'
-... __ M' ___.___', _ ~__.~_____,.__,______.._._...
in the City's Municipal Code section 19.19.040.
2.21 "Ultimate Development" means the planning and
development of the Property for uses other than those related to
Rock Quarry Operations.
3. TERM. This Agreement shall become effective as a
development agreement upon the effective date of the Annexation
("the Effective Date"); provided, however, that if the Annexation
does not occur on or before Julv JaRuary 1, 1997, this Agreement
shall be null and void unless the annexation proceedinqs have been
extended bv LAFCO. If the annexation proceedinqs have been
extended. this Aqreement shall become effective upon the effective
date of such Annexation: provided however. if the annexation does
not occur bv the end of such extension(s) . this Aqreement shall
become null and void. Any of the foregoing to the contrary
notwithstanding, from the date of the first reading of the
ordinance approving this Agreement, and unless or until this
Agreement becomes null and void, Owner shall be bound by the terms
of Paragraph .i. The Term of this Agreement for purposes other than
Paragraph .1. shall begin upon the Effective Date, and shall continue
for a period of twenty (20) years ("the Term"). The Term shall
also be extended for any period of time during which issuance of
building permits to Owner is suspended for any reason other than
the default of Owner, and for a period of time equal to the period
of time during which any action by City or court action limits the
processing of future discretionary approvals, issuance of building
permits or any other development of the Property consistent with
this Agreement.
4. OWNER CONSENT TO ANNEXATION. Owner hereby consents to and
shall cooperate with the applications of city to declare that the
otay Valley Parcel is within City's sphere of influence and to
annex the Otay Valley Parcel to the City; provided, however, that
Owner may withdraw such consent and withhold further cooperation if
the city, prior to the Effective Date, adopts rules, regulations,
ordinances, policies, conditions, environmental regulations,
phasing controls, exactions, entitlements, assessments or fees
applicable to and governing development of the Property which are
inconsistent with, or render impractical, development of the
Property according to the commitments of city set forth in
Paragraphs 5.1.1 through 5.1.4, below.
4.1 Landfill Nuisance Easements. Developer. as the
lienholder havinq an interest in propertv for which landfill
nuisance easements have been delivered to the Countv bv SNMB. Ltd..
aqrees to execute subordination aqreements. in a form acceptable to
the Countv. to ensure that such landfill nuisance easements have a
priori tv position over Developer's lien(s) . The subordination
aqreements shall be delivered to the citv prior to the second
readinq of the Ordinance approvinq this Aqreement. Notwithstandinq
the foreqoinq, if said subordination aqreement is not provided to
Pre-Annexation Develop.ent Agree.ent 6
15E" ')
_..~'_.- - - ---_.~.._-------_._------_.,_..._-
the citv bv March 4. 1997. or if the Countv Board of Sunervisors
does not accent or ann rove the landfill easements or the
subordination aqreement nrovided bv the Develoner. this Aqreement
shall be automaticallv terminated with neither nartv bearinq anv
liabili tv hereunder. If there is no second readinq of this
Aqreement. the citv shall return said subordination aqreements to
the Develoner.
5. VESTED RIGHTS. Notwi thstanding any future action or
inaction of City during the term of this Agreement, whether such
action is by ordinance, resolution or policy of City, Owner shall
have a vested right, except as may be otherwise provided in this
Paragraph 5, to use and develop the Property in accordance with:
5.1 EXISTING AND RELATED USES.
5.1.1 Owner will be allowed to continue to use the
Property for Rock Quarry Operations for the Term of this Agreement
and for such longer period of time as is provided pursuant to the
Existing Project Approvals and any future permits and applications
issued by City;
5.1. 2 City shall diligently process any
applications for related and concurrent uses of the Property
(including but not limited to asphalt and concrete batch plants,
sand and gravel operations, vehicle and equipment maintenance,
office/administrative functions, the manufacturing, sales, and
leasing of building and farm materials and equipment, and the
trucking of all such materials and equipment). City acknowledges
that such applications could include application (s) for general
plan amendment(s), re-zone(s), subdivision map(s), conditional use
permit(s), building permit(s), or other entitlements or permits;
5.1.3 city shall allow Owner to proceed with
planning of the Property for uses other than those related to Rock
Quarry Operations (the "Ultimate Development"), and for purposes of
entitlements the Property shall be treated on an equal basis,
first-come first-served, with other properties in the area of the
Annexation; and
5.1.4 To the extent any of the foregoing
commitments of City, issued at Owner's application or request, are
embodied in changes to rules, regulations, ordinances, policies,
conditions, environmental regulations, phasing controls, exactions,
entitlements, assessments, and fees applicable to and governing
development of the Property, whether adopted before or after the
Effective Date, such changes but only to the extent they are
necessitated by Owner's application or request, shall be deemed
applicable to the Property without change to this Agreement.
5.2 Develonment of Pronertv. The development of the
Property will be governed by this Agreement and Existing Project
Pre-Annexation Develop.ent Agree.ent 7
15~--r
._---,-._--_. ~----~---_.~.._--_._._-_._._._---
Approvals and such development shall comply and be governed by all
rules, regulations, policies, resolutions, ordinances, and
standards in effect as of the Effective Date subject to the
provisions of Paragraph 5.2.1 below. The City shall retain its
discretionary authority as to Future Discretionary Approvals,
provided however, such Future Discretionary Approvals shall be
regulated by the Existing project Approvals, this Agreement, and
City rules, regulations, standards, ordinances, resolutions and
policies in effect on the Effective Date of this Agreement and
subject to Paragraph 5.2.1.
Notwithstanding the foregoing, City may make such changes to City's
Growth Management Ordinance applicable to the Project as are
reasonable and consistent with the purpose and intent of the
existing Growth Management Ordinance and which are generally
applicable to all private projects citywide or east of I-80S or
within a specific benefit, fee or reimbursement district created
pursuant to the California Government Code.
5.2.1 New or Amended Rules. Requlations. policies.
Standards. Ordinances and Resolutions. ci ty may apply to the
Project, including Future Discretionary Approvals, new or amended
rules, laws, regulations, policies, ordinances, resolutions and
standards generally applicable to all private projects east of 1-
805 or within a specific benefit, fee or reimbursement district
created pursuant to the California Government Code. The
application of such new rules, or amended laws, regulations,
resolutions, policies, ordinances and standards will not
unreasonably prevent or delay development of the Property to the
uses, densities or intensities of development specified herein or
as authorized by the Existing Project Approvals. City may also
apply change in City laws, regulations, ordinances, standards or
policies specifically mandated by changes in state or federal law
in compliance with Paragraph 13.3 herein. Owner may elect with
city's consent to have applied to the project any rules,
regulations, policies ordinances or standards enacted after the
date of this Agreement. Such an election has to be made in a
manner consistent with Paragraph 5.2.1 of this Agreement.
5.2.2 Modifications to Existinq proiect Approvals.
It is contemplated by the parties to this Agreement that City and
Owner may mutually seek and agree to modifications to the Existing
Project Approvals. Such modifications are contemplated as within
the scope of this Agreement, and shall, upon written acceptance by
all parties, constitute for all purposes an Existing Project
Approval. The parties agree that any such modifications may not
constitute an amendment to this Agreement nor require an amendment
to the Agreement.
5.2.3 Future Discretionarv Approvals. It is
contemplated by the parties to this Agreement that City and Owner
may agree to Future Discretionary Approvals. The parties agree
Pre-Annexation Develop.ent Agree.ent 8
15£-'
- ------ - -- - - .....~-,...._~.._.- ,....-...,-----..-...----.'---........-..-
that any such Future Approvals may not constitute an amendment to
this Agreement nor require an amendment to the Agreement.
5.3 Dedication and Reservation of land for Public
Purposes. Except as expressly required by this Agreement or the
Existing Project Approvals and Future Discretionary Approvals
(excepting dedications required within the boundaries of any parcel
created by the subsequent subdivision of the Property as required
by the Subdivision Map Act), no dedication or reservation of real
property within or outside the Property shall be required by city
in conjunction with the Project. Any dedications and reservations
of land imposed shall be in accordance with Paragraphs 7.2 and 7.8
herein.
5.4 Time for Construction and Completion of Proiect.
Because the California Supreme Court held in Pardee Construction
Companv v. City of Camarillo (1984) 27 Cal.3d 465, that the failure
of the parties to provide for the timing of development resulted in
a later-adopted initiative restricting the timing of development to
prevail over such parties' agreement, it is the intention of the
parties to this Agreement to cure that deficiency by specifically
acknowledging that timing and phasing of development is completely
and exclusively governed by the Existing Project Approvals,
including the Chula vista Growth Management Ordinance. The purpose
of the Chula vista Growth Management Ordinance is to "control the
timing and location of development by tying the pace of development
to the provision of public facilities and improvements to conform
to the City's threshold standards. " (Municipal Code section
19.09.010A.7) The findings in support of the Growth Management
Ordinance conclude that the ordinance "does not affect the number
of houses which may be built. " (Municipal Code section
19.09.010B.3) Therefore, the parties acknowledge that the Chula
Vista Growth Management Ordinance completely occupies the topic of
development timing and phasing and expressly precludes the adoption
of housing caps, urban reserves or any other means by which the
rate of development may be controlled or regulated. The City
agrees that the Owner shall be entitles to, apply for and receive
all permits necessary for the development of property, consistent
with the Growth Management Ordinance, Existing Project Approvals,
Future Discretionary Approvals and this Agreement.
5.5 Benefit of vestinq. Nothing in this Agreement will
be construed as limiting or impairing Owner's earlier vested right,
if any, to proceed with the development and use of the Property
pursuant to the Federal and State Constitutions, and pursuant to
statutory and decisional law.
5.6 vestinq of Entitlements. All rights conferred by
this Agreement vest with the Effective Date hereof. The approval
of Future Discretionary approvals shall not be deemed to limit
Owner's rights authorized by this Agreement, and once such
approvals are obtained they shall be vested to the same extent as
Pre-Annexation Develop.ent Agree.ent 9
J5E~J¡J
- - -~.._-_._- -_._-~._,-,-~,--,----",-,---
the Existing Project Approvals. Nothing in this Agreement shall be
construed to alter the date of the vesting of Owner's rights as
described in Paragraph 1.1.1 of this Agreement.
6. DEVELOPMENT PROGRAM.
6.1 processinq of Future Discretionarv Approvals. City
will accept and diligently process development applications and
requests for Future Discretionary Approvals, or other entitlements
with respect to the development and use of the Property, provided
said applications and requests are in accordance with this
Agreement. city costs for processing work related to the Project,
including hiring of additional City personnel and/or the retaining
of professional consultants, will be reimbursed to City by Owner.
6.2 Lenqth of Validitv of Tentative Subdivision Maps.
Government Code section 66452.6 provides that tentative subdivision
map(s) may remain valid for a length up to the Term of this
Agreement. City agrees that tentative subdivision map(s) for the
Property shall be for a term of six (6) years and may be extended
by the City council for a period of time not to exceed a total of
twenty (20) years, and in no event beyond the Term of this
Agreement.
6.3 Pre-Final Map Development. If Owner desires to do
certain work on the Property after approval of a tentative map (for
example, grading) prior to the recordation of a final map, it may
do so by obtaining a grading and/or other required approvals from
City which are authorized by city prior to recordation of a final
map. Such permit shall be issued to owner, or its contractor, upon
Owner's application, approval, and provided Owner posts a bond or
other reasonably adequate security required by City in an amount to
assure the rehabilitation of the land if the applicable final map
does not record.
6.4 Final Maps.
6.4.1 "A" Maps and "B" Maps. If Owner so elects,
the City shall accept and process a master subdivision or parcel
map ("A" Map) showing "Super Block" lots and backbone street
dedications. "Super Block" lots shall be consistent with
subsequent sectional plan area plans, and shall not subdivide land
into individual single-family lots. All "Super Blocks" created
shall have access to dedicated public streets. City shall not
require improvement plans in order to record a final map for any
"A" Map lots, but City shall require bonding for the completion of
backbone streets prior to recording in an amount to be determined
by City. Following the approval by City of any final map for an
"A" Map lot and its recordation, Owner may convey the "Super Block"
lot. The buyer of a "Super Block" lot shall then process final
improvement plans and grading plans and a final map ("B" Map) for
each "Super Block" lot which City shall process. The "B" Maps
Pre-Annexation Develop.ent Agree.ent 10
/5£'1/
-- -- ._--+----_._---_.~----~._._._-_.. --------~
shall be in substantial conformance with the related approved "A"
Map. In the instance of the mUlti-family dwelling unit areas, a
separate tentative sUbdivision map may be submitted to City and the
"B" Map(s) for these areas may be submitted to City after the
Planning Commission approves said tentative subdivision map.
6.4.2 Recordation of Final Subdivision MaD in Name
of Builder or Third Party. Owner may, if it so elects, convey to
a Builder or third party any "Super Block" lot(s) shown on the
recorded Master Final Map. In such case, the Builder or third
party will (i) process final improvement and grading plans and a
final map for each such "Super Block" lot, which map City shall
accept and process as subsequent phases in a multi-phase project,
(ii) enter into a subdivision improvement agreement with city with
respect to the subdivision improvements which are required for such
"Super Block" lot, and (iii) provide security and insurance
satisfactory to City for the completion of the subdivision
improvements.
6.4.3 Recordation of final Subdivision Map in
Owner's Name: Transfer of Obliqations Under Subdivision Improvement
Aqreement(s). If Owner so elects, it may defer the conveyance of
any "super Block" lot to a Builder or third party until after the
final map of such "Super Block" lot has been recorded. If Owner
elects to proceed in this manner, it will enter into city's
standard subdivision improvement agreement(s) with city for the
improvements required as a condition to the approval of such
map(s). Upon sale to a Builder or third party, if such Builder or
third party assumes Owner's obligations under the improvement
agreement and provides its own security and insurance for the
completion of the subdivision improvements as approved by the City,
Owner shall be released from liability under the subdivision
improvement agreement(s) and Owner's security shall be released.
6.4.4 Transfer of Riqhts and Obliaations of
Development. Whenever Owner conveys a portion of the Property, the
rights and obligations of this Agreement shall transfer in
accordance with Paragraph 15 herein.
7. OWNER'S OBLIGATIONS.
7.1 Condition to Owner's Obliqations to Dedicate. Fund
or Construct Public Facilities. Owner agrees to develop or provide
the public improvements, facilities, dedications, or reservations
of land and satisfy other exactions conditioning the development of
the Property which are set forth hereinbelow. The obligations of
the Owner pursuant to this Agreement are conditioned upon: (i) city
not being in default of its obligations under this agreement; and
(ii) City not preventing or unreasonably delaying the development
of the property; and (iii) the Agreement having not been suspended
in response to changes in state or federal law; and (iv) City's
obligations having not been suspended pursuant to Paragraph 13.2.
Pre-Annexation Develop.ent Agreuent 11
/5£øJ).
-..'-.-----,-.-.- - ...._._.,_._-----_..--.~._..._-
7.2 Dedications and Reservations of Land for Public
PurDoses. The policies by which property will be required to be
reserved, dedicated or improved for public purposes are identified
in the Existing Project Approvals. A more precise delineation of
the property to be preserved, dedicated or improved for public
purposes shall occur as part of Future Discretionary Approvals,
consistent with the Existing Project Approvals.
7.3 Growth Manaqement Ordinance. Owner shall commit the
public facilities and City shall issue building permits as provided
in this Paragraph. city shall have the right to withhold the
issuance of building permits any time after city reasonably
determines a Threshold has been exceeded, unless and until Owner
has mitigated the deficiency in accordance with City's Growth
Management Ordinance.
Owner agrees that building permits may be withheld where the public
facilities described in the Existing Project Approvals/Future
Discretionary Approvals required for a particular Threshold have
not been committed.
In the event a Threshold is not met and future building permit
issuance may be withheld, the notice provisions and procedures
contained in section 19.09. 100C of the Municipal Code will be
followed. In the event the issuance of building permits is
suspended pursuant to the provisions herein, such suspension shall
not constitute a breach of the terms of this Agreement by Owner.
Furthermore, any such suspension which is not caused by the actions
or omissions of Owner, shall toll the term of this Agreement as
provided for in section 16.12 of this Agreement, and suspend
Owner's obligations pursuant to this Agreement.
7.3.1 Required Condemnation. Ci ty and Owner
recognize that certain of the public facilities identified in the
Existing Project Approvals/Future Discretionary Approvals and
required to comply with a Threshold are located on properties which
neither Owner nor City has, or will have, title to or control of.
City shall identify such property or properties and at the time of
filing of the final map commence timely negotiations or, where the
property is within City's jurisdiction, commence timely proceedings
pursuant to Title 7 (commencing with § 1230.010) of Part 3 of the
Code of civil Procedure to acquire an interest in the property or
properties. Owner's share of the cost involved in any such
acquisition shall be based on its proportionate share of the public
facility as defined in the Existing project Approvals/Future
Discretionary Approvals. Nothing in this Agreement shall be deemed
to preclude city from requiring Owner to pay the cost of acquiring
such off-site land. For that portion of the cost beyond Owner's
fair share responsibility, City shall take all reasonable steps to
establish a procedure whereby owner is reimbursed for such costs
beyond its fair share.
Pre-Annexation Develop.ent Agree.ent 12
15'f:./J
_......__ _ ____m"__..._____,..____ _.___.._
7.3.2 Information Reqardinq Thresholds. Upon
Owner's written requests of the City Manager, City will provide
Owner with information regarding the current status of a Threshold.
Owner shall be responsible for any staff costs incurred in
providing said written response.
7.4 Improvements Required bv a Subdivision Map. As may
be required pursuant to the terms of a subdivision map, it shall be
the responsibility of Owner to construct the improvements required
by a subdivision map. Where Owner is required to construct a
public improvement which has been identified as the responsibility
of another party or to provide public improvements of supplemental
size, capacity, number or length benefiting property not within the
subdivision, City shall process a reimbursement agreement to Owner
in accordance with Article 6 of Chapter 4 of the Subdivision Map
Act, commencing with Government Code section 66485, and Paragraph
7.5, below.
7.5 Facilities Which Are the Obliqations of Another
Partv. or Are of Excessive Size. Capacitv. Lenqth or Number. Owner
may offer to advance monies and/or construct public improvements
which are the responsibility of another land owner, or outside
City's jurisdictional boundaries, or which are of supplemental
size, capacity, number or length for the benefit of land not within
the Property. City, where requesting such funding or construction
of oversized public improvements, shall consider after a public
hearing, contemporaneous with the imposition of the obligation, the
formation of a reimbursement district, assessment district,
facility benefit assessment, or reimbursement agreement or other
reimbursement mechanism.
7.6 Pioneerinq of Facilities. To the extent Owner
itself constructs (i.e., "Pioneers") any public facilities or
public improvements which are covered by a DIF Program, Owner shall
be given a credit against DIFs otherwise payable, subject to city's
Director of Public Works reasonable determination that such costs
are allowable under the applicable DIF Program. It is specifically
intended that Owner be given DIF credit for the DIF Program
improvements it makes. The fact that such improvements may be
financed by an assessment district or other financing mechanism,
shall not prevent DIF credit from being given to the extent that
such costs are allowed under the applicable DIF Program.
7.7 Insurance. Owner shall name City as additional
insured for all insurance policies obtained by Owner for the
Project as pertains to the Owner's activities and operation on the
Project.
7.8 Other Land Owners. Owner hereby agrees to dedicate
adequate rights-of-way within the boundaries of the Property for
other land owners to "Pioneer" public facilities on the Property;
provided, however, as follows: (i) dedications shall be restricted
Pre-Annexation Develop.ent Agree.ent 13
15£'1,/
._._..._._..__.,_..._"._"----~----,-~-
to those reasonably necessary for the construction of facilities
identified in City's adopted public facility plans; (ii) this
provision shall not be binding on the successors-in-interest or
assignees of Owner following recordation of the final "Super Block"
or "A" Map; and (iii) City shall use its reasonable best efforts to
obtain agreements similar to this Paragraph from other Owners an to
obtain equitable reimbursement for Owner for any excess
dedications.
8. DEVELOPMENT IMPACT FEES.
8.1 Existinq Development Impact Fee Proqram Pavments.
Owner shall pay to city a DIF, or construct improvements in lieu of
payment, for improvements which are conditions of a tentative
subdivision map upon the issuance of building permit(s), or at a
later time as specified by city ordinance, the Subdivision Map Act,
or Public Facility Financing Plan (PFFP). The DIF will be in the
amount in effect at the time payment is made and may only be
increased pursuant to Paragraph 8.6 herein.
8.2 Other Undeveloped Properties. City will use its
reasonable best efforts to impose and collect, or cause the
imposition and collection of, the same DIF program on all the
undeveloped real properties which benefit from the provision of the
public facility through the DIF program, or provided as a condition
of Project Approvals.
8.3 Use of Development Impact Fee Proqram. The DIF
amounts paid to city by Owner and others with respect to the Area
of Benefit shall be placed by City in a capital facility fund
account established pursuant to California Government Code sections
66000-66009. City shall expend such funds only for the projects
described in the adopted fee program as may be modified from time
to time. city will use its reasonable best efforts to cause such
project to be completed as soon as practicable; however, City shall
not be obligated to use its general fund for such projects.
8.4 wi thholdinq of Permits. Owner agrees that City
shall have the right to withhold issuance of the building permit
for any structure or improvement on the Property unless and until
the DIF is paid for such structure or improvement.
8.5 Development Impact Fee Credit. Upon the completion
and acceptance by City of any public facility, city shall
immediately credit Owner with the appropriate amount of cash
credits ("EDU's) as determined by Owner and City. However, if the
improvements are paid for through an Assessment District, City
shall credit the Owner with the appropriate number of Equivalent
Dwelling unit Credits (EDU's). Owner shall be entitled to apply
any and all credits accrued pursuant to this Paragraph toward the
required payment of future DIF for any phase, stage or increment of
development of the Project.
Pre-Annexation Developlent Agrenent 14
Iff'l$'
--_._.~.~- .._---. -_...~._----_._.._-----_. -...-..-
8.6 Modification of Development Impact Fees. The
parties recognize that from time to time during the duration of
this Agreement it will be necessary for City to update and modify
its DIF fees. Such reasonable modifications are contemplated by
City and Owner and shall not constitute a modification to this
Agreement so long as: (i) the modification incorporates the
reasonable costs of providing facilities identified in the Existing
Project Approvals; (ii) are based upon methodologies in substantial
compliance with the methodology contained in the existing DIF
programs; or other methodology approved by the City Council
following a public hearing; and (iii) comply with the provisions of
Government Code Sections 66000-66009.
8.7 Standards for Financinq Obliqations of Owner. In
connection with the development of the Property, the following
standards regarding the financing of public improvements shall
apply:
8.7.1 Owner shall participate in the DIF Program
for the Otay Valley Parcel with other owners in proportion to the
total dwelling units or equivalent dwelling units allowed on the
Property as compared with the total of such units allowed on
properties in that particular DIF or by some other equitable
methodology decided by the City Council.
8.7.2 City shall diligently pursue the requirements
that the Eastern Territories' DIF requires offsite third parties
and adjacent jurisdictions to bear their fair share of all Otay
River Valley crossings.
9. CITY OBLIGATIONS.
9.1 Urban Infrastructure. To the extent it is within
the authority of City to provide, City shall reasonable accommodate
urban infrastructure to the Project, consistent with Existing
Project Approvals. Where it is necessary to utilize city property
to provide urban infrastructure consistent with the Existing
Project Approvals, City agrees to make such land available for such
uses, provided that City if it so chooses is compensated at Fair
Market Value for the property. To the extent that the provision of
urban infrastructure is within the authority of another pUblic or
quasi-public agency or utility, City agrees to fully cooperate with
such agency or agencies to accommodate the urban infrastructure,
consistent with Existing Project Approvals. Urban infrastructure
shall include, but not be limited to gas, electricity, telephone,
cable and facilities identified in the Otay Ranch Facility
Implementation Plan.
9.2 Sewer Capacity. City agrees to provide adequate
sewer capacity for the Project upon the payment of ordinary and
necessary sewer connection, capacity and/or service fees.
Pre-Annexation Developlent Agreelent 15
16E-/¿,
. ^ .~.-- - .-..__......_,_._.._--~.._----
10. ANNUAL REVIEW.
10.1 citv and Owner Responsibilities. city will, at
least every twelve (12) months during the Term of this Agreement,
pursuant to California Government Code section 65865.1, review the
extent of good faith substantial compliance by Owner with the terms
of this Agreement. Pursuant to California Government Code section
65865.1, as amended, Owner shall have the duty to demonstrate by
substantial evidence its good faith compliance with the terms of
this Agreement at the periodic review. Either city or Owner may
address any requirement of the Agreement during the review.
10.2 Evidence. The parties recognize that this
Agreement and the documents incorporated herein could be deemed to
contain hundreds of requirements and that evidence of each and
every requirement would be a wasteful exercise of the parties'
resources. Accordingly, Owner shall be deemed to have satisfied
its good faith compliance when it presents evidence of substantial
compliance with the major provisions of this Agreement.
Generalized evidence or statements shall be accepted in the absence
of any evidence that such evidence is untrue.
10.3 Review Letter. If Owner is found to be in
compliance with this Agreement after the annual review, City shall,
within forty-five (45) days after Owner's written request, issue a
review letter in recordable form to Owner ("Letter") stating that
based upon information known or made known to the Council, City
Planning Commission and/or the City Planning Director, this
Agreement remains in effect and Owner is not in default. Owner may
record the Letter in the Official Records of the County.
10.4 Failure of periodic Review. City's failure to
review at least annually Owner's compliance with the terms and
conditions of this Agreement shall not constitute, or be asserted
by City or Owner as, a breach of the Agreement.
11. DEFAULT.
11.1 Events of Default. A default under this Agreement
shall be deemed to have occurred upon the happening of one or more
of the following events or conditions:
11.1.1 A warranty, representation or statement made
or furnished by Owner to City is false or proves to have been false
in any material respect when it was made.
11.1.2 A finding and determination by City made
following a periodic review under the procedure provided for in
California Government Code section 65865.1 that upon the basis of
substantial evidence Owner has not complied in good faith with one
or more of the terms or conditions of this Agreement.
Pre·Annexation Develop.ent Agree.ent 16
Jf'£'I?
- . .--..,-,. -- - - ----..--- --. ~-_._-_._-_._. ..,,-. ..---.- ------
11.1.3 City does not accept, review, or consider
requested development permits or entitlements submitted in
accordance with the provisions of this Agreement.
11.1.4 Any other act or omission by city or Owner
which materially interferes with the terms of this Agreement.
11.2 Procedure Upon Default.
11.2.1 Upon the occurrence of default by the other
party, city or Owner may terminate this Agreement after providing
the other party thirty (30) days written notice specifying the
nature of the alleged default and, when appropriate, the manner in
which said default may be satisfactorily cured. After proper
notice and expiration of said thirty (30) day cure period without
cure, this Agreement may be terminated. In the event that city's
or Owner's default is not subject to cure within the thirty (30)
day period, city or Owner shall be deemed not to remain in default
in the event that City or Owner commences to cure within such
thirty (30) day period and diligently prosecuted such cure to
completion. Failure or delay in giving notice of any default shall
not constitute a waiver of any default, nor shall it change the
time of default. Notwithstanding any other provision of this
Agreement, City reserves the right to formulate and propose to
Owner options for curing any defaults under this Agreement for
which a cure is not specified in this Agreement.
11.2.2 City does not waive any claim of defect in
performance by Owner if, on periodic review, City does not propose
to modify or terminate this Agreement.
11.2.3 Subject to Paragraph 16.12 of this Agreement,
the failure of a third person shall not excuse a party's
nonperformance under this agreement.
11. 2.4 .'\11 other remedies a~ la',J or iR cqui~y
vhieh arc cORoiotcnt ¡¡itA. the pro"'"rioioRa of thia A§:E'Ðem£:JCl'£ arc
available ~e City aRà O,:Rer to punme iR the C·.·CRt taere is a
breaea. In the event of a default bv either partv to this
Aareement. the parties shall have the remedies of specific
performance. mandamus. iniunction and other eauitable remedies
without havina to first prove there is an inadeauate remedv at law.
Neither partv shall have the remedv of monetarv damaaes aaainst the
other: provided. however. that the award of costs of litiaation and
attornevs' fees shall not constitute damaae.
12. ENCUMBRANCES AND RELEASES ON PROPERTY.
12.1 Discretion to Encumber. This Agreement shall not
prevent or limit Owner in any manner at Owner's sole discretion,
from encumbering the Property, or any portion of the Property, or
any improvement on the Property, by any mortgage, deed of trust, or
Pre-Annexation Develop.ent Agree.ent 17
¡f£-Jr
- -- -...---.---- -- - -~~
other security device securing financing with respect to the
Property or its improvement.
12.2 Mortqaqee Riqhts and Obliqations. The mortgagee of'
a mortgage or beneficiary of a deed of trust encumbering the
Property, or any part thereof, and their successors and assigns
shall, upon written request to City, be entitled to receive from
City written notification of any default by Owner of the
performance of Owner's obligations under the Agreement which has
not been cured within thirty (30) days following the date of
default.
12.3 Releases. City agrees that upon written request of
Owner and payment of all fees and performance of the requirements
and conditions required of Owner by this Agreement with respect to
the Property, or any portion thereof, City may execute and deliver
to Owner appropriate releasers) of further obligations imposed by
this Agreement in form and substance acceptable to the San Diego
County Recorder and title insurance company, if any, or any may
otherwise be necessary to effect the release. city Manager shall
not unreasonably withhold approval of such releasers).
12.4 Obliqation to Modifv. City acknowledges that the
lenders providing financing for the Project may require certain
modifications to this Agreement and City agrees, upon request from
time to time, to meet with Owner and/or representatives of such
lenders to negotiate in good faith any such requirements for
modification. City will not unreasonably withhold its consent to
any such requested modification.
13. MODIFICATION OR SUSPENSION.
13.1 Modification bv Mutual Consent. This Agreement may
be modified, from time to time, by the mutual consent of the
parties only in the same manner as its adoption by an ordinance as
set forth in California Government Code Sections 65867, 65867.5 and
65868. The term, "this Agreement" as used in this Agreement, will
include any such modification properly approved and executed.
13.2 Unforeseen Health. Safety or General Welfare
Circumstances. If, as a result of facts, events, or circumstances
presently unknown, unforeseeable, and which could not have been
known to the parties prior to the commencement of this Agreement,
City finds that failure to suspend this Agreement would place the
residents of City in a severe and immediate emergency to their
health, safety, or general welfare, City shall:
13.2.1 Notification of Unforeseen Circumstances.
Notify Owner of (i) City's determination; and (ii) the reasons for
City's determination, and all facts upon which such reasons are
based;
Pre-Annexation Develop.ent Agree.ent 18
15£-1l'J
^-----" ------. -~.__._------
13.2.2 Notice of Hearinq. 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 13.2.3, all
documents related to such determination and reasons therefore;
13.2.3 Hearinq. Hold a hearing on the
determination, at which hearing Owner will have the right to
address the city Council. At the conclusion of said hearing, City
may take action to suspend this Agreement as provided herein. City
may suspend this Agreement if, at the conclusion of said hearing,
based upon the evidence presented by the parties, city finds
failure to suspend would place the residents of City in a severe
and immediate emergency to their health, safety, or general
welfare.
13.3 Chanqe in state or Federal Law or Requlations. If
any state or federal law or regulation enacted during the Term of
this Agreement, or the action or inaction of any other affected
governmental jurisdiction, precludes compliance with one or more
provisions of this Agreement, or requires changes in plans, maps,
or permits approved by city, the parties will act pursuant to
paragraphs 13.3.1 and 13.3.2, below.
13.3.1 Notice: Meetinq. The party first becoming
aware of such enactment or action or inaction will provide the
other party(ies) with written notice of such state or federal law
or regulation and provide a copy of such law or regulation and a
statement regarding its conflict with the provisions of this
Agreement. The parties will promptly meet and confer in a good
faith and reasonable attempt to modify or suspend this Agreement to
comply with such federal or state law or regulation.
13.3.2 Hearinq. If an agreed upon modification or
suspension would not require an amendment to this Agreement, no
hearing shall be held. Otherwise, the matter of such federal or
state law or regulation will be scheduled for hearing before city.
Fifteen (15) days' written notice of such hearing shall be provided
to Owner, and City, at such hearing, will determine and issue
findings on the modification or suspension which is required by
such federal or state law or regulation. Owner, at the hearing,
shall have the right to offer testimony and other evidence. If the
parties fail to agree after said hearing, the matter may be
submitted to mediation pursuant to paragraph 13.3.3, below. Any
modification or suspension shall be taken by the affirmative vote
of not less than a majority of the authorized voting members of
city. Any suspension or modification may be subject to judicial
review in conformance with Paragraph 16.19 of this Agreement.
13.3.3 Mediation to Disputes. In the event the
dispute between the parties with respect to the provisions of this
paragraph has not been resolved to the satisfaction of both parties
Pre·Annexation DevelopMent Agree.ent 19
15£ ,.;¡.,
.-.---.---...----...-...---
following City hearing required by paragraph 13.3.2, the matter
shall be submitted to mediation prior to the filing of any legal
action by any party. The mediation will be conducted by the San
Diego Mediation Center; if San Diego Mediation Center is unable to
conduct the mediation, the parties shall submit the dispute for
mediation to the Judicial Arbitration and Mediation Service or
similar organization and make a good faith effort to resolve the
dispute. The cost of any such mediation shall be divided equally
between Owner and City.
14. DISTRICTS. PUBLIC FINANCIAL MECHANISMS.
This Agreement and the Existing Project Approvals recognize that
assessment districts, community facility districts, or other public
financing mechanisms, may be necessary to finance the cost of
public improvements borne by this Project. If Owner, pursuant to
the Existing Project Approvals/Future Discretionary Approvals, is
required to install improvements through the use of assessment
districts, community facility districts, or other public financing
mechanisms, City shall initiate and conclude appropriate
proceedings for the formation of such financing district or funding
mechanism, under applicable laws or ordinances. Owner may request
that City utilize any other financing methods which may become
available under city laws or ordinances. All costs associated with
the consideration and formation of such financing districts or
funding mechanisms shall be paid by Owner subject to reimbursement,
as may be legally authorized out of the proceeds of any financing
district or funding mechanism.
15. ASSIGNMENT AND DELEGATION.
15.1 Assiqnment. Owner shall have the right to transfer
or assign its interest in the Property, in whole or in part, to any
persons, partnership, joint venture, firm, or corporation at any
time during the Term of this Assignment with the consent of city.
owner also shall have the right to assign or transfer all or any
portion of its interest or rights under this Agreement to third
parties acquiring an interest or estate in the property at any time
during the Term of this Agreement with the consent of city.
15.2 Deleqation. In addition, Owner shall have the
right to delegate or transfer its obligations under this Agreement
to third parties acquiring an interest or estate in the Property
after receiving the prior written consent of the City Manager,
which consent shall not be unreasonably withheld, delayed, or
conditioned. Once the city Manager has consented to a transfer,
delivery to and acceptance by the City Manager of an unqualified
written assumption of Owner's obligations under this Agreement by
such transferee shall relieve Owner of the obligations under this
Agreement to the extent the obligations have been expressly assumed
by the transferee. Such transferee shall not be entitled to amend
this Agreement without the written consent of the entity that, as
Pre-Annexation Developlent Agreuent 20
/5f....l1
. __" ___~____."__._.._.. ._n.
of the Effective Date, is Owner, which consent shall not be
unreasonably withheld, delayed, or conditioned. The entity that is
Owner as of the Effective Date, however, shall be entitled to amend
this Agreement without the written consent of such transferee.
16. MISCELLANEOUS PROVISIONS.
16.1. Bindinq Effect of Aqreement. Except to the extent
otherwise provided in this Agreement, the burdens of this Agreement
bind, and the benefits of this Agreement inure, to city's and
Owner's successors-in-interest and shall run with the land.
16.2 Relationship of citv and Owner. The contractual
relationship between City and Owner arising out of this Agreement
is one of independent contractor and not agency. This Agreement
does not create any third-party beneficiary rights.
16.3 Notices. All notices, demands, and correspondence
required or permitted by this Agreement shall be in writing and
delivered in person, or mailed by first-class or certified mail,
postage prepaid, addressed as follows:
If to City, to: City of Chula vista
276 Fourth Avenue
Chula Vista, CA 91910
Attn: City Manager
If to Owner, to: united Enterprises, Ltd.
1007 Fifth Avenue, suite 2000
San Diego, CA 92101
Attn: Mr. Patrick Patek
with a copy to: Solomon Ward Seidenwurm & smith
401 "B" Street, suite 1200
San Diego, CA 92101
Attn: Cynthia L. Eldred, Esq.
city or Owner may change its address by giving notice in writing to
the other. Thereafter, notices, demands, and correspondence shall
be addressed and transmitted to the new address. Notice shall be
deemed given upon personal delivery, or, if mailed, two (2)
business days following deposit in the united States mail.
16.4 Rules of Construction. In this Agreement, the use
of the singular includes the plural; the masculine gender includes
the feminine; "shall" is mandatory; "may" is permissive.
16.5 Entire Aqreement. Waivers, and Recorded Statement.
This Agreement constitutes the entire understanding and agreement
of City and Owner with respect to the matters set forth in this
Agreement. This Agreement supersedes all negotiations or previous
agreements between City and Owner respecting this Agreement. All
Pre-Annexation Develop.ent Agreeaent 21
15£ '.J.;J..
--,,-------- - .-.._..__._"--~,._---,.__.-----_....- -----,
waivers of the provisions of this Agreement must be in writing and
signed by the appropriate authorities of City and Owner. upon the
completion of performance of this Agreement, or its revocation or
termination, a statement evidencing completion, revocation, or
termination signed by the appropriate agents of City shall be
recorded in the Official Records of San Diego County, California.
16.6 proiect as a Private Undertakinq. It is
specifically understood by city and Owner that (i) the Project is
a private development; (ii) City has no interest in or
responsibilities for or duty to third parties concerning any
improvements to the property until City accepts the improvements
pursuant to the provisions of the Agreement or in connection with
subdivision map approvals; and (iii) Owner shall have the full
power and exclusive control of the Property subject to the
obligations of Owner set forth in this Agreement.
16.7 Incorporation of Recitals. The recitals set forth
in Paragraph 1 of this Agreement are part of this Agreement.
16.8 captions. The captions of this Agreement are for
convenience and reference only and shall not define, explain,
modify, construe, limit, amplify, or aid in the interpretation,
construction, or meaning of any of the provisions of this
Agreement.
16.9 Consent. Where the consent or approval of city or
Owner is required or necessary under this Agreement, the consent or
approval shall not be unreasonably withheld, delayed, or
conditioned.
16.10 Covenant of Cooperation. City and Owner shall
cooperate and deal with each other in good faith, and assist each
other in the performance of the provisions of this Agreement.
16.11 Recordinq. The City Clerk shall cause a copy of
this Agreement to be recorded with the Office of the County
Recorder of San Diego County, California, within ten (10) days
following the Effective Date.
16.12 Delav. Extension of Time for Performance. In
addition to any specific provision of this Agreement, performance
by either city or Owner of its obligations hereunder shall be
excused, and the Term of this Agreement and the Development Plan
extended, during any period of delay caused at any time by reason
of any event beyond the control of city or Owner which prevents or
delays and impacts City's or Owner's ability to perform obligations
under this Agreement, including, but not limited to, acts of God,
enactment of new conflicting federal or state laws or regulations
(example: listing of a species as threatened or endangered),
judicial actions such as the issuance of restraining orders and
injunctions, riots, strikes, or damage to work in process by reason
Pre·Annexation Oevelopunt Agrenent 22
/fE"~~
""0_0___.' "_. ___ __~...______________.___._...___._
of fire, floods, earthquake, or other such casualties. If City or
Owner seeks excuse from performance, it shall provide written
notice of such delay to the other within thirty (30) days of the
commencement of such delay. If the delay or default is beyond the
control of city or Owner, and is excused, an extension of time for
such cause will be granted in writing for the period of the
enforced delay, or longer as may be mutually agreed upon.
16.13 Covenant of Good Faith and Fair Dealincrs. No
party shall do anything which shall have the effect of harming or
injuring the right of the other parties to receive the benefits of
this Agreement; each party shall refrain from doing anything which
would render its performance under this Agreement impossible; and
each party shall do everything which this Agreement contemplates
that such party shall do in order to accomplish the objectives and
purposes of this Agreement.
16.14 Operatincr Memorandum. The parties acknowledge
that the provisions of this Agreement require a close degree of
cooperation between City and Owner, and that the refinements and
further development of the Project may demonstrate that minor
changes are appropriate with respect to the details of performance
of the parties. The parties, therefore, retain a certain degree of
flexibility with respect to those items covered in general under
this Agreement. When and if the parties mutually find that minor
changes or adjustments are necessary or appropriate, they may
effectuate changes or adjustments through operating memoranda
approved by the parties. For purposes of this Paragraph 16.14, the
City Manger, or his designee, shall have the authority to approve
the operating memoranda on behalf of city. No operating memoranda
shall require notice or hearing or constitute an amendment to this
Agreement.
16.15 Time of Essence. Time is of the essence in the
performance of the provisions of this Agreement as to which time is
an element.
16.16 Amendment or Cancellation of Acrreement. This
Agreement may be amended from time to time or canceled by the
mutual consent of city and Owner only in the same manner as its
adoption, by an ordinance as set forth in California Government
Code section 65868, and shall be in a form suitable for recording
in the Official Records of San Diego County, California. The term
"Agreement" shall include any such amendment properly approved and
executed. City and Owner acknowledge that the provisions of this
Agreement require a close degree of cooperation between them, and
that minor or insubstantial changes to the project and the
Development Plan may be required from time to time to accommodate
design changes, engineering changes, and other refinements.
Accordingly, changes to the Project and the Development Plan that
do not result in a change in use, an increase in density or
intensity of use, cause new or increased environmental impacts, or
Pre-Annexation Develop.ent Agree.ent 23
/f.£ '.J.ý
_ _._ ___ ,n... ......_.._~.____.~__.__._
violate any applicable health and safety regulations, may be
considered minor or insubstantial by the City Manager and made
without amending this Agreement.
16.17 Estoppel certificate. within 30 calendar days
following a written request by any of the parties, the other
parties to this Agreement shall execute and deliver to the
requesting party a statement certifying that (i) this Agreement is
unmodified and in full force and effect, or if there have been
modifications hereto, that this Agreement is in full force and
effect as modified and stating the date and nature of such
modifications; (ii) there are no known current uncured defaults
under this Agreement, or specifying the dates and nature of any
such default; and (iii) any other reasonable information requested.
The failure to deliver such a statement within such time shall
constitute a conclusive presumption against the party which fails
to deliver such statement that this Agreement is in full force and
effect without modification, except as may be represented by the
requesting party, and that there are no uncured defaults in the
performance of the requesting party, except as may be represented
by the requesting party.
16.18 Severabilitv. If any material provision of this
Agreement is held invalid, this Agreement will be automatically
terminated unless within 15 days after such provision is held
invalid the party holding rights under the invalidated provision
affirms the balance of this Agreement in writing. This provision
will not affect the right of the parties to modify or suspend this
Agreement by mutual consent pursuant to Paragraph 12.4.
16.19 Institution of Leqal Proceedinq. In addition to
an other rights or remedies, any party may institute legal action
to cure, correct, or remedy any default, to enforce any covenants
or agreements herein, or to enjoin any threatened or attempted
violation thereof; to recover damages for any default or to obtain
any remedies consistent with the purpose of this Agreement. Such
legal actions must be instituted in the Superior Court of the
County of San Diego, State of California.
16.20 Attornev's Fees and Costs. If any party commences
litigation or other proceedings (including, without limitation,
arbitration) for the interpretation, reformation, enforcement, or
rescission of this Agreement, the prevailing party, as determined
by the court, will be entitled to its reasonable attorneys' fees
and costs.
16.21 Hold Harmless. Owner agrees to and shall hold
city, its officers, agents, employees and representatives harmless
from liability for damage or claims for damage for personal injury,
including death, and claims for property damage which may arise
from the direct or indirect operations of Owner or those of its
contractors, subcontractors, agents, employees or other persons
Pre-Annexation Develop.ent Agreennt 24
15£"'~5
-..---- -- - .---.- . ._---_..~,--_._.~---"-"-------
acting on Owner's behalf which relate to the Project. Owner agrees
to and shall defend City and its officers, agents, employees and
representatives from actions for damage caused or alleged to have
been caused by reason of Owner's activities in connection with the
Project. Owner agrees to indemnify, hold harmless, pay all costs
and provide a defense for City in any legal action filed in a court
of competent jurisdiction by a third party challenging the validity
of this Agreement. The provisions of this Paragraph 16.21 shall
not apply to the extent such damage, liability or claim is caused
by the intentional or negligent act or omission of city, its
officers, agents, employees or representatives.
IN WITNESS WHEREOF, this Agreement has been executed by the CITY OF
CHULA VISTA, acting by and through its City Manager, pursuant to
Ordinance No. authorizing such execution, and by Owner.
Dated this _ day of , 1997.
"OWNER "CITY"
UNITED ENTERPRISES, LTD. CITY OF CHULA VISTA
By:
Its: Its:
I hereby approve the form and legality of the foregoing Agreement
this day of , 1997.
John M. Kaheny
city Attorney
By:
Ann Moore
Assistant City Attorney
Pre-Annexation Develop.ent Agreement 25
15'£" -l.¡'
.~.~.'--.~.-.._._-.----- ------
EXHIBIT A
, . ~~ft..
, -I'd-
"'tg
mY Of
CHUIA VISTA
PLANNING DEPARTMENT
UNITED ENTERPRISES, LTD. 611 D/96
15£#.2')
. ... m._ ____..._______._.__..~_,.~__.,_____._
0
.....
s:u
'<
;::0
s:u 0
::s
n -.
:T~
,;::00
. ( ) ..., m
o (') )(
"':T:::T
(Q -.
cC"
D.) --.
::s s:u ....
~,,} Ñ' < ca
s:u -.
I .....cn
r -. .....
o s:u
(-"\ ::s
-' Z
\ 0
.
I' ...¡.
I
# \.,
I
~
L_,
[ 1
I
I_-
I
-....
~
¡¡¡
III .
.. .
œ ~ ;~~?N€l I
~ "'~¥1.i
.. ~¡~y.:,:~... 1
0 $~~~~~'~"
in .~,~
i'i"·,.,,,t~ 1
· ~ eo r ~:í~~~i~
,~ 1 r-
(/)(/)0 :Þo"tJ :þ:Þ;Q 1 m
~ ; >~ ~- ...."... G')
¡ ; SIO ¡¡ Co'" I» ."....0 "':J'"
'< !l '< 1»1»"0 ''':In m
nO 1».,,0 5"(/)0 00 Z
~Z :þ1»r- (/I~3 =="0 ::T
-I» ::T(/I ;::;::T 0
¡¡: :J 3'" =.3 C ::TC '<C
Š~ Co ."Co .,,"'- mã>
I» 0." :J...I»
=t :J :J:J n"'< o <
-
~ /.1'£ ...a.r - Co' .,,0-' c-
." ....(/1 :J (/I
s ....
Co I» Co-
I» I»
-<
-""" --
¡
CITY OF CHULA VISTA /5/ i
REQUEST FOR
DEPARTMENTAL FILE NO. DIRECT PAYMENT VENDOR
i
INSTRUCTIONS: I
1. Original to Finance. Payments for materials or supplies require Purchasing Agent's approval. Retain departmental copy. (Canary).
2, Within the area for DESCRIPTIVE DATA, include reasons for requiring direct payment. Attach supporting documents if necessary.
3. DISTRIBUTION OF CHARGES are to be completed by the originating department.
PAY TO: The StJr N('\1S DATE'-l/-97
u 0 "OX 1207
,. . u DEPT/ACTIVITY ¡
Chu 1 >.Ì Vis ta, CA 919 E SPECIAL AUTHORITY I
i
RESIDOC NO. I
CITY STATE ZIP I
DESCRIPTIVE DATA: I
Pavment on Invoice No. 4287 dated ~-8-97
Public Hrarin~; Notice - Dcvelopr'lent ,Agrecments - OtdY Kanc!1
CV8895
$ 59.70 to be paid by Planning Departr'lent for P'lanning Comr'lisiion ;~f:"ting
59.70 to be paid by City Cl"rk for City Council Mdeeting
$119.40
DISTRIBUTION OF CHARGES: FOR FINANCE
DEPTI OBJECT OIR TAX USE ONLY:
FUND ACT. or GlL PROJECT CODe CODe AMOUNT Warrant Status Check One:
WO 0621 5211 $ 59.70
/CZJ C::?/C:;·C ~"...2// 59.7U Paid 0 Unpaid 0
Warrant No.
REQUESTING DEPT.
I CERl1FY THE ABOVE ClAIM IS
TRU~ ~D C9 R~T A$ ~TATED:
. "/)' ~_. "ï, /, -'? ......'--~,:(
1(' I~' ^
_, _, "", c' Ii '..;
'-( ,,' ~,: / .'
bi ~i. J . " l,.Ùt
DEPT. IfEAD or DESIGNEE
PURCHASING APPROVAL
FINANCE APPROVAL
F-228 (rev 11/89) TOTAL $119..'0
.~,,__u.~___.. ..h ._ .,....""'._:_-.-_.,;."'",,...~~ .._.'...,~ ... < .~, ..,," _,. '~" "._"__ -". --,-",-~-,-.'_ >_e...........__~~......__~ .,~_~_. ........__~__~.................. . .~. _ ~... ""f.' ..J,
"ø'~"'f
INVOICE & STATEMENT
T~ N '11''' 4287
tar-· ews (,_
Direct Payments to: P.O. Box 1207, Chula Vista, CA 91912 Mail Address:
835 Third Ave, Chula Vista, CA 91911
~ (619) 427-3000
Date: 2-8-97
CITY OF CHULA VISTA Acct. No. CV508900
OFFICE OF THE CITY CLERK
276 FOURTH AVE.
CHULA VISTA, CA. 91910
tt RE: PUBI,IC HEARING * PLEASE RETURN ONE COpy OF STATEMENT WITH YOUR REMITTANCE
DESCRIPTION !;>ATE INCHES COPIES UNIT CfjARGES BALANCE
, ' .-~ . ., PRICE
CV 8895 2/8 4x3 12" 9.95 119.40
Otay Ranch 119.40
FORM so· 14
CHULA VISTA STAR-NEWS -:c NATIONAL CITY STAR-NEWS -:c IMPERIAL BEACH STAR-NEWS
~.., "", ..-4. I
; ",'j:"':,,,, ~.....................:.:.. " ' , '.
February 17, 1997
TO: Beverly Authelet, city Clerk
FROM: Joan~t, Planning Department
Regarding the attached invoice from star News covering a legal on
Development Agreements/Otay Ranch for a Planning commission meeting
and a City council meeting, I know that Carla had asked you, on my
request, if you would pay the entire amount of $119.40. You said
that you were unable to do this. I had told Carla that we were
already deficit in our Advertising account.
Upon talking with Ken Lee this morning, I was told to charge 1/2 of
the $119.40 or $59.70 against our part for the Planning Commission
meeting and request that you pay the other 1/2 for the city Council
meeting.
Enclosed please find a Direct Payment request; I filled in our
portion for the $59.70 and had it signed. Please fill in your
account number and sign it. I have a copy of it for my records.
-"_.._.._..~--_.- ----
·
PUBLIC HEARING CHECK LIST
-
SUBJECT:
PUBLICATION DATE
MAILED NOTICES TO PROPERTY OWNERS NO. MAILED
PER GC §54992 Legislative Staff, Construction I duslry Fed, 6336 Greenwich Dr Suite F. San Diego, 92122
---
LOGGED IN AGENDA BOOK
COPIES TO: /'
Administration (4)
Planning
Originating Department ~
Engineering
Others
City Clerk's Office (2) V
~Jj17
POST ON BULLETIN BOARDS
SPECIAL INSTRUCTIONS:
\
_..-/ 'Þ (]/~
..
f3/1
7/93 -S5-
--_._--,-_._~,-_._-----
~~~
:~-;
...¡¡:--~~
",,-- -~
CllY OF
CHULA VISTA
OFFICE OF THE CITY CLERK
TELEFAX COVER IEITER
Telecopier No. (619) 585-5612
DATE: c;</;-h 7
TO: Star News Le2aI / Joann
FAX NO: (619) 426-6346
FROM: Carla J. Griffin
SUBJECf: -
é?~' c?~--'-1-<:3
TOTAL NO. PAGES (including cover): =<
PUBUCATION DATE: H d2-/~/9?
/ /
If all pages are not received, please call Carla @ (619) 691-5041.
:;¡z: a ~ Z;A~ )
C0~ tZ¡J 1/ (jy~
~
276 FOURTH AVE/CHULA VISTA. CALIFORNIA 91910'(619) 691-5041
---.-----.-.-
NOTICE OF PUBLIC HEARINGS BY THE
CITY PLANNING COMMISSION AND CITY COUNCIL OF
CHULA VISTA, CALIFORNIA
NOTICE IS HEREBY GIVEN THAT PUBLIC HEARINGS WILL BE HELD BY THE
CITY PLANNING COMMISSION AND THE CITY COUNCIL of Chula Vista, California,
for the purpose of:
1. Consideration of development agreements for the Otay Ranch, approximately 7,000 acres
of land located generally south of the rural community of Jamul, 2 miles north of the
United States-Mexico border, abutting the eastern Chula Vista City limits, and the eastern
boundary of which is generally State Route 94; and south of Telegraph Canyon Road in
the City of Chula Vista, as requested by the following property owners:
a. SNMB, Ltd., Jewels of Charity, and Steven and Mary Birch Foundation;
b. Greg Smith
c. United Enterprises
The proposed development agreements would facilitate future development of the property in
accordance with previously approved plans, which are on file at the City Clerk's office.
If you wish to challenge the City's action on this development agreements in court, you may be
limited to raising only those issues you or someone else raised at the public hearings, described
in this notice, or in written correspondence delivered to the Planning Commission and City
Council at or prior to the public hearings.
SAID PUBLIC HEARINGS WILL BE HELD BY THE PLANNING COMMISSION on
Wednesday, February 19, at 5:30 p.m. and on Tuesday, February 25,1997, at 6:00 p.m.
in Conference Rooms 2/3 of the Public Services Building. The CITY COUNCIL meeting
will be held on Tuesday, February 25, 1997, at 6:00 p.m. in the Council Chambers, Public
Services Building, 276 Fourth Avenue, at which time any person desiring to be heard may
appear.
(M:\HOME\PLANNING\NANCY\ORDEV AG2.NOT)
COUNCIL AGENDA STATEMENT
Item /¿,
Meeting Date 02/25/97
ITEM TITLE: PUBLIC HEARING: Modification of Certain City Fees for Development of
a Water Theme Park in the Otay Rio Business Park
Resolution I,n,a Authorizing the Modification of Certain City
Permit and Development Impact Fees for the White Water Canyon Water
Theme Park
SUBMITTED BY: Comm,,", Do"'oom'"tlJ!¡" C> '
REVIEWED BY: City Manager~ ~ (4/5ths Vote: Yes_ No.1U
.-?
BACKGROUND: On July 23, 1 996, the City Council approved an Agreement with Hice
Enterprises, Inc. for the development of a water theme park on Phase II property of the Otay Rio
Business Park. In accordance with the Agreement, the City is to provide certain public
improvements and assistance in the reduction of certain City and third party fees due to the unique
and seasonal operation of the park. In return, the developer is to provide the City with a 2% share
of certain revenues generated by the operation of the water park. The Agreement also established
a cap of $500,000 on total City fees and related expenses for the project. Fees and expenses
which exceeded the cap will be deducted from the City's 2% revenue share.
In accordance with the terms of the Agreement, City staff has calculated City Development Impact
and Traffic Signal Fees in consideration of the limited usage of the park and are presenting the
adjusted fees to the City Council for public hearing and approval as required by the City Municipal
Code. The City Council has previously approved the purchase and pass through of Sewer Capacity
from National City for this project which effectively reduces the project's sewer capacity charges.
RECOMMENDATION: It is recommended that the City Council hold the Public Hearing and
approve the Resolution modifying certain City development impact fees.
BOARDS/COMMISSIONS RECOMMENDATION: Not applicable.
DISCUSSION:
The City entered into an agreement with Hice Enterprises, Inc., for the development of a water
theme park in the Otay Valley in July, 1996. The Agreement requires the City to assist the
developer by providing certain public roadway improvements (which have since been completed).
and assist the developer in reducing certain City and third party fees including City of Chula Vista
Sewer Capacity, Traffic Signal and Development Impact Fees, and San Diego's Facilities Benefit
District Fees.
On December 17, 1996, the City Council approved resolution 18535 authorizing the use of sewer
capacity purchased from National City by the water park project. The City negotiated the
purchase of sewer capacity from National City for approximately half of the normal Chula Vista
charge. The savings was passed on to the project on the basis that the project will tie directly into
the San Diego system and thus not use Chula Vista sewer facilities. Other projects which will
I~-J
Page 2, Item _
Meeting Date 02/25/97
qualify for the use of the purchased capacity will be the MCA Amphitheater and SDG&E power
plant improvements.
The remaining fees under consideration for adjustment are the City's Traffic Signal and Public
Facilities Development Impact Fees (PFDIF). It is proposed that these fees be reduced from a total
of $395,227 to $172,066 based upon the seasonal operation of the project. The park will open
during the four weekends prior to Memorial Day (beginning of May); it will be open every day from
Memorial Day until Labor Day; and it will be open during the four weekends after Labor Day
(month of September). This represents 115 days of operation (approximately 1/3 year). From
October through April, the business office will remain open, but the Park will be closed to the
general public. Given this park operation schedule, the impacts from this project on traffic and on
public facilities financed by the PFDIF will be significantly less than if the park were to be open on
a year-round basis.
In adjusting the fees for the categories mentioned above, staff has applied the same basic rationale
applied to the MCA Amphitheater Project. Other factors that were considered include the unique
land use category of the project, which falls outside of existing commercial or industrial categories,
and the limited number of full-time employees. Also considered were the public benefits of the
project including the free use of the facility to train City safety personnel, and the income accruing
to the City from its operations.
City Municipal Code sections 3.45.010, 3.50.160 and 15.51.010 provide for the waiver andlor
the modification of City fees after a public hearing if certain findings can be made. In general, the
City needs to find that under the circumstances the imposition of standard City development
impact fees would (1) be unreasonable and overly burdensome; and (2) impose peculiar economic
hardship or other injustice which outweighs the need for the full fee revenue and a uniform system
for collecting fees.
The City was able to make these findings for the MCA Amphitheater and can make similar findings
for the water park based upon the seasonal nature of operations, the limited workforce, reduced
impact upon City facilities and right of use (per Agreement) of the facility by City staff for the
training of safety personnel, and accessibility to the public.
Fee Formulas
The full Public Facilities Development Impact Fee (PFDIF) for commercial and industrial
development is $10,750 per acre. Commercial uses are normally in operation 5-7 days per week,
while industrial uses are mainly a 5 day per week operation. While the water park administrative
offices and box office on site will be open 5 or 7 days per week, the park activities will take place
only during 115 days of the year. The PFDIF for the water park is therefore divided into two parts.
One, the commercial portion, based on a building area of 15,500 square feet (0.36 acres) to be
in operation year round, is assessed the full fee of $10,750 per acre. The second part of the
formula is for the seasonal operation of the park based on the industrial land use category and a
land area of 32.92 acres (the 0.36 acres occupied by the buildings that are part of the commercial
portion of the formula are deducted from the 33.28 acres of the entire site).
I¿ .. ~
Page 3, Item _
Meeting Date 02/25/97
These two formulas are shown as follows:
Commercial Portion: 0.36 ac. X $10,750 per acre = $3,870
Seasonal Portion: 115/(5 X 52) X (32.92 ac.) X $10,750 per acre = $156,526
Therefore, the total adjusted DIF amount is $160,396 instead of the full fee amount of $358,190.
The City's Traffic Signal Fee is normally calculated on the basis of average daily trips generated
by a project over the course of a year. Since the water park will be operational only during the
summer months (approximately 1/3 of the year), it is appropriate to calculate its trip generation
on a partial year rather than a yearly basis. A similar calculation was made for the Amphitheater
which is also seasonal.
Calculation of the adjusted Traffic Signal Fee based upon the number of days of operation of the
facility results in the following:
Assumptions
Number of days of operation: 115 out of 365
Average Daily Trips (ADT's): 2,849
City charge per ADT: $13
Traffic Signal Fee: 115 days/365 days X 2,849 ADT's X $13 per ADT = $11,670
The full fee, based upon 365 days of operation, would have been $37,037.
Developer's Reauest to Reduce the Cap on Citv Fees
The Agreement entered into between the City and George Hice, dated August 23, 1996, capped
water park development fees and expenses at $500,000. If total City fees exceeded that amount,
the developer would still pay the required fees when due, but the City's 2% revenues would be
reduced by the amount of fees which exceeded $500,000. City of San Diego fees, water district,
and school fees were not included in the cap.
It is noted for Council's information that the developer has indicated a desire to reduce the cap on
City fees to $350,000 due to increased project costs, higher than anticipated third party
development fees including the San Diego Facilities Benefit District charges, and revenues which
will be forthcoming to the City from the project.
This project, along with the amphitheater is unique in that they are the onlv proiects in the city
subject to both the Chula Vista Development Impact Fee and the San Diego Facilities Benefit
Assessment Fee. The latter fee will be approximately $11,000 per acre (a total of $352,000) for
the project. In addition, the City of San Diego will levy sewer hook-up fees of approximately
$60,000 on each project.
At this time, the total City of Chula Vista fees and related expenses are estimated at approximately
$312,000. However, additional permits will be necessary for the water slides and shade
structures. It has not yet been determined whether a reduction in fee cap will be necessary.
II, .. :J
Page 4. Item _
Meeting Date 02/25/97
Staff will not have all of the information necessary to calculate total fees until plans for the water
slides are submitted since permit fees are based upon the estimated value of the improvements.
The developer is moving forward with the project with deliberate speed in order to open by
Memorial Day. He will be required to pay up front all permit fees to complete the project. If total
fees and related expenses exceed $350,000, the developer may request that the Council consider
lowering the cap on fees and reimburse the overage from the City's share of revenues from the
water park. This will allow the developer to pull all the necessary permits to complete the project
without delay.
FISCAL IMPACT: If the Water Park site (Phase" of the Otay Rio Industrial Park) was developed
with industrial land uses as originally intended, DIF fees would have totalled $358,190. Traffic
Impact Fees would have also been $37,037, based upon year round traffic generated by
development of the site.
Although the site was originally intended for industrial use, there has been no market for industrial
development in this area and the full development of this site would undoubtedly take years. (The
City was at one time interested in acquiring this site for its Public Services Yard relocation.)
The proposed land uses for the Otay Rio Business Park, including the MCA Amphitheater and
Water Park, will pay lower fees based upon their seasonal operations. They will also have lesser
impact on roads and other City services which are covered by the fees.
Additionally, both projects, if successful, will provide a steady income stream to the City from
operations which will eventually far exceed the amount of fee reduction. In the case of the Water
Park, the total fee reduction proposed totals $216,284 (not including the sewer capacity fees),
but the park will provide to the General Fund an estimated $120,000 initially. This amount is
expected to increase each year as attendance increases.
(MT) M:\HOME\COMMDEV\STAFF.REP\02-2S_97\H20PAKFE.RPT [February 18, 1997 {4;39pm)]
I¿-Y
RESOLUTION NO. Jrf'J..
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA
VISTA AUTHORIZING THE MODIFICATION OF CERTAIN CITY
PERMIT AND DEVELOPMENT IMPACT FEES FOR THE WHITE
WATER CANYON WATER THEME PARK
WHEREAS, the property which is the subject matter of this resolution is commonly
known as the southerly half of Phase II of the Otay Rio Business Park comprised of approximately
32.4 gross acres of land located at the southwest quadrant of Heritage Road and Otay Rio Road
("Project Site"); and
WHEREAS, with respect to the Project Site, the City Council has adopted Mitigated
Negative Declaration IS-96-21 and approved a Conditional Land Use Permit for the development
and operation of a water theme park ("Project") proposed by Hice Enterprises, Inc. ("Developer");
and
WHEREAS, the City Council approved an Agreement Regarding Development and
Operation of Whitewater Water Park between the City of Chula Vista and Hice Enterprises, Inc.
on July 23, 1996 (" Agreement") which provided that, in consideration of assistance from the City
including the construction of roadway improvements, facilitation in the reduction of certain third
party and certain City impact fees including the Traffic Signal and Development Impact Fees as
well as in consideration of an adjustment in City fees in consideration of the unique nature of the
project, the Developer agreed to provide the City with a percentage of revenues from operation
of the water park; and
WHEREAS, the Chula Vista Municipal Code (CVMC) provides a basis for City fee
abatement or modification pursuant to Sections 3.45.010, 3.50.160, and 15.51.010, et seq; and
WHEREAS, City staff has analyzed the Developer's proposal and has determined
that, in consideration of the seasonal nature of operation of the water park and consequential
limited use of City facilities, public and quasi-public benefits of the Project and revenues accruing
to the City from the Project, certain fee modifications are recommended to the City Council for
approval; and
WHEREAS, a public hearing was properly noticed and held on the proposed fee
modification and the City Council considered all testimony presented at such hearing; and
WHEREAS, the City Council found and determined that the modification of certain
City fees and that imposing the standard City Development Impact Fees on the Project would be
unreasonable and overly burdensome because of (a) the overall nature of the Project which does
not fit squarely into any of the City's fee categories; (b) the less than full fee rate impacts on City
facilities that the Project will generate in light of the number of days per year of operation and the
number of employees working at the Project; and (c) the public and quasi-public uses associated
with the Project including the provision of unique recreational opportunities to the citizens of Chula
Vista and the City's right to use the facility to train public safety personnel; and'
WHEREAS, the City Council further found and determined that such circumstances
outweigh the need of the City for the full fee revenue and the uniform way of collecting fees.
1/,--5'
- -_.._.._---_.__.._~.._._..,..----~
NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista
does hereby find, order and determine as follows:
1. The above findings and determinations are true and correct.
2. In accordance with Sections 3.45.010 and 3.50.160 of the CVMC and City
staff's application thereof, the City Public Facilities Development Impact Fee for the Project shall
be $160,396.
3. In accordance with Section 3.45.010 and Chapter 15.51 of the CVMC and
staff's application thereof, the City Traffic Signal Fee for the Project shall be $11,670.
4. These amounts shall be subject to upward adjustment by the City in the event
that the water park operations exceed the thresholds which formed the basis for this
modification.
Presented by Approved as to form by
Chris Salomone
Director of Community Development
[(fk N:\lh.rld\lttorney\HICE.RSO (F,brulry 19, 1997 (11 :66.m)
1/'-(,
.~..__..~--_... ._~-_._----,----- -.. ,._~._------_.-
COUNCIL AGENDA STATEMENT
Item 1'7
Meeting Date Februarv 25. 1997
ITEM TITLE: Quarterly Fiscal Status Report for the Second Quarter of Fiscal
Year 1996-97
SUBMITTED BY: Director of Finance~
REVIEWED BY: City Manag?9 (4/5ths Vote: Yes _NolLl
In accordance with Charter Section 504(f), attached for your consideration is the fiscal
status report covering the first half of Fiscal Year 1 996-97.
RECOMMENDATION: That Council accept the report as submitted.
DISCUSSION:
Section 504(f) of the City Charter requires quarterly and annual fiscal status reports
to be filed by the Director of Finance through the City Manager. Attached for your
consideration is a report covering the period through December 31, 1996 for Fiscal
Year 1996-97.
The report reflects that although projections in most revenue categories are generally
less than budget estimates, sales tax revenue will exceed budgeted amounts and the
City has received a significant amount of revenue that staff had anticipated, but was
not certain enough to include in the adopted budget. The result is a positive overall
revenue projection for the year. As far as expenditures, nothing has come to our
attention that would cause us to project any significant variances from the adopted
budget at this time.
FISCAL IMPACT: There is no fiscal impact relative to accepting or rejecting the
report, since it is for information purposes only. The City General Fund began Fiscal
Year 1996-97 with an Available Fund Balance of $3.7 million and based on the limited
information available this early in the fiscal year, it appears that this amount will
increase in an amount proportionate to any expenditure savings realized by year end.
I?--/
~'---'-'-'-~"-"'--- -....-
COUNCIL INFORMATION
DATE: February 10, 1997
TO: Honorable Mayor and City Council
VIA: John D. Goss, City Manage&
FROM: Robert W. Powell, Director of Finance~
SUBJECT: QUARTERLY FISCAL STATUS REPORT
In accordance with section 504(f) of the City Charter, please find attached the following
summary schedules Fiscal Year 1996"97 through the second quarter ending December 31,
1996:
Schedule A ..... General Fund Budget Amendments
Schedule B..... General Fund Revenues, Summary by Revenue Category
Schedule C ..... General Fund Revenues, Fiscal Year Projections Compared to Budget
Schedule D ..... General Fund Budget Status
Schedule E ..... Budget Transfers Approved by Administration
The following is a summary that compares that the current General Fund budget, including any
amendments subsequent to original adoption, with the projections for the fiscal year. At this
point in the fiscal year, the projected figures are necessarily somewhat conservative for both
revenues and expenditures. In other words, when arriving at the projections, we will always
tend to underestimate revenues and overestimate expenditures at this time of year. When the
third quarter report is prepared, we will have a much better indication of what the actual
revenues and expenditures for the year will be.
The adopted budget included appropriations totaling $14,589 more than the estimated
revenues and transfers-out. As of December 31, 1996, Council had approved supplemental
appropriations totaling $375,345 more than estimated revenues. In summary, the current
amended budget contemplates absorbing $389,933 in reserves. Refer to Schedule A for the
detail of the supplemental budget items to be funded from reserves.
ADOPTED AMENDED PROJECTED
BUDGET BUDGET ACTUAL VARIANCE
Revenues/ $60,130,753 $61,172,604 $61,382,587 $ 209,983
Transfers-In
Expenditures/ ($60,145,342) ($61,562,537) ($61,562,537) $ °
Transfers-Out
TOTAL ($ 14,589) ($ 389,933) ($ 179,950) $ 209,983
17-,J,
-.--. .---....-...--.--.-
2
The overall projection at this time anticipates that the aggregate sources of funds (revenues
and transfers-in) will fall short of the aggregate uses of funds (expenditures and transfers-out)
by approximately $179,950, thereby decreasing Available Fund Balance by that amount.
Although not the best of news, this should be viewed in the context of where we typically are
at this time each fiscal year. At the end of the second quarter last fiscal year, we were
projecting an operating deficit of $3 million, and during fiscal year 1994-95 we were projecting
an operating deficit of $2.5 million. Although we cannot project an operating surplus which
is where we would like to be, we are in significantly better shape at this time of the fiscal year
than in any recent year. It should also be kept in mind that this projection is without the
benefit of any projected expenditure savings since although they typically range between $1 .0
and $3.0 million, it is somewhat early in the year to provide a reliable estimate. The third
quarter report will include such an estimate.
REVENUES/TRANSFERS-IN
Actual revenues are projected to exceed budget estimates by more than $200,000 (0.35%).
Although this is positive, it will be achieved in large part, by unanticipated one time revenues.
Without these somewhat unexpected one time revenues, it is currently projected that
revenues would fall short of budget estimates by almost $1 million this fiscal year. However,
please be reminded that prudent financial management requires us to be fairly conservative
in our revenue projections at this time of the year.
As reflected in Schedule C, actual revenues in most categories are projected to fall short of
budget estimates, but overall, are offset by a very large positive projection of one time
revenues shown under the category of Other Revenues. The significant one time revenues
are PERS Surplus ($987,994). which was budgeted at $400,000, SDG&E Industrial Revenue
Bond Origination Fees ($247,250), a refund of surplus from our self-insurance pool
($105,182). a card room license settlement ($40,000), and a refund of overcharges from the
County Registrar of Voters ($37,545). Other than the one time revenues, the most significant
positive projection is for Sales Tax Revenues, which are projected to exceed budget estimates
by approximately $313.400, or 2.5%.
The amount of the projected shortfall in those revenue categories that are projected to fall
short of budget estimates ranges from 1.7% in Property Taxes to 5.6% in Charges for Current
Services. The explanations for all significant projected shortfalls are included in the narrative
following Schedule C.
EXPENDITURES/TRANSFERS-OUT
As mentioned previously, expenditures and transfers-out are projected to be equal to budget
estimates at this time although savings are typically realized by year end. Nothing has come
to our attention that would cause us to anticipate any significant negative variances. The third
quarter status report will include a somewhat refined estimate of budgetary savings.
,,-;r
--,-_.,..._.~.__...- .-..
Schedule A
GENERAL FUND BUDGET AMENDMENTS
Fiscal Year 1996-97 as of December 31, 1996
This schedule includes only those additional appropriations approved by Council since the
original budget was adopted which are not funded by specific unanticipated or
over-realized revenues:
Additional
Appropriations
Professional Services related to biological analysis of
University site alternatives 10,000
Legal fees and costs in connection with MCA Amphitheater litigation 32,042
Farmer's Market Advertising 2,500
FY96-97 IAFF MOU 164,831
Reinstatement of salary reductions for City Council,
Executive and Middle Managers 133,317
Amendment of Unrepresented Employees' fringe benefits 8,580
Amendment of WCE MOU for FY 96-97 thru FY 97-98 24,075
Year to Date Total through December 31, 1996 $375,345
I'-i
....._.._"._-.~-- --.-.
Schedule B
GENERAL FUND REVENUES
Summary by Revenue Category
Fiscal Year 1996-97 as of December 31,1996
AMENDED ACTUAL PERCENT
BUDGET TO DATE REALIZED
Property Taxes $8,447,960 $4,047,074 47.9%
Other Local Taxas
Sales 12,721,000 2,958,237 23.3%
Franchise Tax 2,360,790 441,981 18.7%
Transient Lodging Tax 1,500,000 473,043 31.5%
Utility Users Tax 2,757,000 1,100,151 39.9%
Business License Tax 740,000 154,824 20.9%
Other 297,980 107,906 36.2%
Total Other Local Taxes 20,376,770 5,236,142 25.7%
Licensas and Permits
Building, Plumbing, Electrical, Housing 1,716,590 803,764 46.8%
Other 273,500 92,703 33.9%
Total Licenses and Permits 1,990,090 896,467 45.0%
Fines, Forfeituras & Penalties 603,500 311,745 51.7%
Revenue from Use of Money & Property 536,109 60,445 11.3%
Revenue from Othar Agencias
State Motor Vehicle Licence Fee 5,871,000 2,302,085 39.2%
Other 3,140,338 447,939 14.3%
Total Revenue from Other Agencies 9,011,338 2,750,024 30.5%
Charges for Current Services
Development Related Services 2,171,299 1,017,375 46.9%
Other Police, P&R & Mise Charges 885,808 341,134 38.5%
Total Charges for Currant Services 3,057,107 1,358,509 44.4%
Other Revenues
Reimbursement from Large Development Proj 688,560 174,898 25.4%
Reimbursement - Redevelopment Agency 1,905,740 317,310 16.7%
Other Reimbursements 6,826,682 1,772,547 26.0%
BECA Revenues 1,046,319 39,000 3.7%
Other 1,003,120 571,577 57.0%
Total Othar Revenuas 11,470,421 2,875,332 25.1%
TOTAL REVENUES 55,493,295 17 ,535, 738 31.6%
TOTAL TRANSFERS IN 5,679,309 967,929 17.0%
TOTAL REVENUES AND TRANSFERS IN $61,172,604 $18,503,667 30.2%
17,$'
m.__....
Schedule C
GENERAL FUND REVENUES
Fiscal Year Projections Compared to Budget
Fiscal Year 1996-97 as of December 31,1996
AMENDED PROJECTED PROJECTED
BUDGET ACTUAL VARIANCE
Property Taxes $8,447,960 $8,302,000 ($145,960)
Other Local Taxes
Sales 12,721,000 13,034,400 313,400
Franchise 2,360,790 2,200,000 (160,790)
Transient Lodging Tax 1,500,000 1,375,000 (125,000)
Utility Users Tax 2,757,000 2,757,000 0
Business License Tax 740,000 740,000 0
Other 297,980 250,000 (47,980)
Total Other Local Taxes 20,376,770 20,356,400 (20,370)
Licenses & Permits
Building, Plumbing Electrical, Housing 1,716,590 1,670,550 (46,040)
Other 273,500 240,900 (32,600)
Total Licenses and Permits 1,990,090 1,911,450 (78,640)
Fines Forfeitures & Penalties 603,500 610,590 7,090
Revenue from Use of Money & Property 536,109 633,165 97,056
Revenue from Other Agencies
State Motor Vehicle License Fee 5,871,000 5,900,000 29,000
Other 3,140,338 2,932,573 (207,765)
Total Revenue from Other Agencies 9,011,338 8,832,573 (178,765)
Charges for Current Services
Development Related Services 2,171,299 2,111,061 (60,238)
Other Police, P&R & Misc Charges 885,808 775,202 (110,606)
Total Charges for Current Services 3,057,107 2,886,263 (170,844)
Other Revenues
Reimbursement from Large Development Proj 688,560 519,065 (169,495)
Reimbursement - Redevelopment Agency 1,905,740 1,810,000 (95,740)
Other Reimbursements 6,826,682 6,693,674 (133,008)
BECA Revenues 1,046,319 1,046,319 0
Other 1,003,120 2,044,850 1,041,730
Total Other Revenues 11,470,421 12,113,908 643,487
TOTAL REVENUES 55,493,295 55,646,349 153,054
TOTAL TRANSFERS IN 5,679,309 (1) 5,736,238 (2) 56,929
TOTAL REVENUES AND TRANSFERS IN $61,172,604 $61,382,587 $209,983
(1) Includes $288,964 loan repayment from Otay Valley.
(2) Includes $345,893 proceeds of long term loan repayments from Olay Valley and AD 90-2.
J?-¿'
_,__~..___"'_...._. ·_·~__...M...____._
Schedule C
SUMMARY OF VARIANCE ANALYSIS
Fiscal Year 1996-97 as of December 31, 1997
REVENUES
Overall, actual revenues are projected to slightly exceed budget
estimates. There is, however, one area of concern. The overall
budget estimate is achieved, in large part, by unanticipated
unbudgeted one time revenues. Without these one time revenues, it
is projected that revenues would fall short of budget estimates by
more than $1 million this fiscal year. The revenue projection is
the net result of positive and negative variances among the many
revenue accounts described below. With a few exceptions, negative
variances are the cumulative result of shortfalls in numerous
accounts and are spread throughout most revenue areas including
property taxes, other taxes, reimbursements, revenue from other
agencies, and charges for current services.
Property Taxes - Projected revenue $8,302,000, variance ($145,960),
(1. 7%)
Chula Vista is expected to see a 1.1% growth in property tax
revenue over last fiscal year. This growth rate is lower than that
anticipated in the budget, apparently due to the County Assessor
continuing to process a large backlog of assessment appeals.
Sales Tax - Projected revenue $13,034,400, variance $313,400,
(2.5%)
Sales tax revenues are exceeding projections due to an overall
improvement in the economy. Since one full year of peso
devaluation has been experienced, sales tax receipts, as compared
to the previous year, are expected to reflect any overall
improvements in economic conditions.
Franchise Taxes. Transient Occupancy Tax. Utility Users Taxes.
Business License Tax and Real property Transfer Tax - Projected
revenue $7,332,000, variance ($333,770), (4.4%)
Franchise fees are expected to increase 1.4% from last fiscal year,
representing slower than budgeted growth and resulting in a
variance of ($160,790). Transient Occupancy Taxes show projected
growth of 2.8%, but also have not grown at the level anticipated,
resulting in a variance of ($125,000). Utility Users Taxes and
Business License Taxes are projected at the budgeted level. Real
Property Transfer Tax is reflecting a variance of ($47,980) due to
slower growth than anticipated, consistent with other property-
related tax receipts.
J?-7
- --_.,._----'"._-~
Schedule C
Licenses & Permits - Projected revenue $1,911,450, variance
($78,640), (4%)
Two significant offsetting factors are reflected here. Housing
permit revenue is down by ($284,800) due solely to not implementing
a housing permit fee for single-family and duplex rental units
which was included in budgeted revenues. It is unlikely this fee
will be implemented this fiscal year due to Proposition 218
constraints. On the other hand, building, plumbing and electrical
permits which are related to development and remodeling activities
are performing much better than budgeted and are currently
projected to result in a positive variance of $238,760, a 20.5%
increase from last fiscal year. It appears that the long
anticipated increase in building permit activity has finally
arrived.
Fines, Forfeitures & Penalties - Projected revenue $610,590,
variance $7,090, 1.2%
This variance is composed of some positive variances and some
negative variances. A $20,000 variance is due to parking citation
penalty increases last year generating higher than anticipated
revenue. A ($10,000) variance is due to a delay in implementation
of a new penalty for fire safety inspection violations which was
included in the budget but is not expected to be implemented this
year.
Revenue from Use of Money and Property - Projected revenue
$633,165, variance $97,056, 18.1%
This variance is primarily due to one-time interest revenue of
$70,975 from loan repayments from the Redevelopment Agency-Otay
Valley Project Area and the Otay Valley Road Assessment District.
Revenue from Other Aqencies - Projected revenue $8,832,573,
variance ($178,765), (2%)
For the second year in a row State Motor Vehicle License Fees is
projected to exceed the budgeted estimate, resulting in a $29,000
variance. The majority of other revenues are projected close to
budget estimates with the exception of law enforcement grant
revenue ($84,000) and Port District reimbursements ($109,564).
Both negative variances appear to be due to optimistic budget
estimates which will not likely be met.
Charqes for Current Services - Projected revenue $2,886,263,
variance ($170,844), (5.6%)
This variance consists of both negative and positive variances in
a large number of accounts. One area to point out is that in
general, anticipated revenues from increased park and recreation
fees have not met expectations due to various reasons.
J,-Y
.....-_."~".,,- -
ScheduI.e C
Other Revenues - Projected revenue $11,935,221, variance $643,487,
5.6%
This category includes several significant revenue accounts, some
with positive variances and some with negative variances. The
account shows a net positive variance due to the receipt of
unbudgeted one-time revenues of $1,041,730 resulting from receiving
$597,994 more than anticipated in PERS surplus, receiving $247,250
from SDG&E Industrial Development Bond origination fees, and
receiving other unanticipated refunds and surpluses totalling
$182,727. Offsetting these one-time revenues is a negative
variance of ($229,495) in Otay Ranch reimbursements due to the
slower than anticipated progress on the project. Redevelopment
Agency reimbursements show a projected negative variance of
($95,740) as less staff time than anticipated has been focused
within project areas. Other reimbursements show a ($133, 088)
variance reflecting optimistic budget projections from
reimbursements from other agencies, development impact fees,
abandoned vehicle abatement and various parks and recreation
services.
17-1
.-.---.----.-----------.---
Schadule D
GENERAL FUND BUDGET STATUS
Summary by Department
Fiscal Year 1996-97 as of December 31, 1996
Amended Expanditures Outstanding Available Percent
Department Budget & Transfers Out Encumbrances Balance Available
105 City Council $406,804 $190,514 $642 $215,648 53.0%
110 Boards and Commissions 33,308 10,516 995 21,797 65.4%
129 Community Promotions 278,237 148,075 56,222 73,940 26.6%
150 City Attorney 915,798 423,821 57,771 434,206 47.4%
160 City Clerk 254,043 111,800 4,200 138,043 54.3%
210 Administration 743,824 368,908 8,534 366,382 49.3%
211 Mgmt & Information Services 885,652 396,913 46,852 441,887 49.9%
245 Human Resources 757,640 380,788 4,028 372,824 49.2%
260 Community Development 2,431,547 756,727 436,067 1,238,753 50.9%
400 Finance 1,435,845 667,759 13,772 754,314 52.5%
600 Planning 1,738,443 879,048 1,642 857,753 49.3%
700 Insurance 737,960 420,092 3,962 313,906 42.5%
730 Non-Departmental & Transfers 2,425,743 453,688 30,688 1,941,367 80.0%
1000 Police 19,624,829 8,938,346 282,726 10,403,757 53.0%
1200 Fire 7,631,082 3,650,723 6,498 3,973,861 52.1%
1300 Building & Housing 1,080,701 448,735 13,357 618,609 57.2%
1400 Public Works 11,121,828 4,685,435 349,618 6,086,775 54.7%
1500 Parks & Recreation 5,273,311 2,541,788 107,042 2,624,481 49.8%
1700 Library 3,785,942 1,658,114 194,454 1,933,374 51.1%
TOTAL GENERAL FUND $61,562,537 $27,131,790 $1,619,070 $32,811,677 53.3%
1')-/8
. --.-.--.---.--.,-,--.- --.-
Schedule E
BUDGET TRANSFERS APPROVED BY ADMINISTRA nON
Fiscal Year 1996-97 as of December 31, 1996
Department Amount
Library $1,735
From: Salaries & Wages
To: Training
J7'11
-.--.-... _._____.....____..... .'.__,__..u'__
~!f?
~~-
~~~~
0lY OF
CHULA VISTA
COITNCTT.INFORMA.TION
Item #_
February 20, 1997
TO The Honorable Mayor and City Council
VIA John D. Goss, City Manageri
FROM Dawn Herring, Budget Manag~
SUBJECT Department Head Presentations at the February 25, 1997 Council
Meeting
Presentations will be given at the February 25, 1997 Council meeting by Jim Hardiman, Fire
Chief, Ken Larsen, Director of Building and Housing and Bob Powell, Director of Finance.
Attached are the updated Goals and Objectives for each of these departments.
Attachments
M:\HOME\ADMIN\BUD98\GOAL&OBl. WPD
ITb"/
-...-....---.---------
FIRE DEPARTMENT
PROPOSED DEPARTMENTAL GOALS, OBJECTIVES
AND OUTPUT MEASURES
JYÞ'~
.-. ....._._-_.._".._-,~.~.-.._~_.._._...._,..."
FIRE
DEPARTMENTAL GOALS
1211
Goals:
l. Establish and maintain efficient and effective fire and emergency
response for all residents and visitors to Chula Vista.
2. Plan for long-range fire/emergency service delivery to our growing
community.
3. Maintain an effective training program to ensure the best and safest
performance of emergency services.
4. Maintain an effective emergency preparedness program that will ensure
the greatest safety to the residents of our community.
5. Provide effective fire safety education to local schools, businesses,
and the general public.
FY97-98 Adopted Budget/Goals & Objectives J Y/J., j
-.-- ._-~_.-.-...~- - -.----- _..~-_._--~~-,. .-,.-".----.,--
FIRE
DEPARTMENTAL GOALS
1211
continued...
Objectives:
1. Achieve compliance with the Fire Department Threshold Standard of
responding to 85% of all emergency calls in Chula Vista in 7 minutes or
less.
2. Respond to cases of pulseless, non-breathing patients, and perform
treatment as necessary in attempts to restart the heart muscle (using CPR
or semi-automatic defibrillators), in accordance with County protocols.
3. Maintain and expand the Fire Department participation in the San Diego
County Urban Search and Rescue Team and continue participation in the Fire
Service Regional Training Program.
4. Continue staff participation in the update to the Fire Station Master
Plan and the update of all pertinent Fire Department data for inclusion in
the Computer-Aided Dispatch system.
5. Continue lead role in project management for the new 800 MHz radio
communications system.
6. Conduct drills as necessary and coordinate with the County of San Diego
Office of Disaster Preparedness for emergency preparedness.
7. Continue to conduct Fire Prevention Inspections, pre-fire planning of
high-risk occupancies, and public education demonstrations in order to
reduce property damage, injury, or death due to fire or exposure to
hazardous materials.
Note: The following statistics are collected on a calendar year basis
(January through December).
Definitions for the Defibrillator Program:
Call:A response to a request for service where the criteria to actually
attach the equipment to the patient was met.
Qualified patient: Patients who exhibit certain heart rhythms and
subsequently receive defribrillation shocks to the heart muscle.
Save: A patient outcome where the patient is ultimately discharged from a
medical facility with full faculties.
FY97-98 Adopted Budget/Goals & Objectives 'I'IJ-'f
.--.-...--..-..,-- .--- -- ---._._--_..._--_._------_.~~-
FIRE
DEPARTMENTAL GOALS
1211
continued. . .
OUTPUT MEASURES:
DESCRIPTION UNIT FY95-96 FY96-97 FY97-98
Inspections completed Number 5206 3954 4200
Fire Investigations Number 189 111 150
Fire Loss Dollars $2,607,385 $2,084,21 $2,400,000
Average Fire Loss (150K pop city) Dollars $3,849,000 $3,849,00 $3,850,000
Fire Safety Presentations Number 59 127 80
Pre-Fire Plans of Hi-Risk Uses Number None None 12
Calls responded to within 7 min Percent 80 77 77
Calls within 7 minutes 45 seconds Percent 89 85 85
Call Volume: Medical Aids Number 5775 5994 6010
Fires Number 798 749 775
False Alarms Number 828 787 800
Citizen Assistance Number 582 552 560
Hazardous Conditions Number 235 198 215
Other Calls Number 34 32 33
Totals Number 8252 8312 8350
Defibrillator pgm Calls to 1/1/97
Total Calls Number 242 303 365
Qualified Patients Treated Number 75 90 105
Actual Saves (per definition) Number 7 9 11
Individual Year Stats
Total Calls Number 66 61 60
Qualified Patients Treated Number 19 15 17
Actual Saves (per definition) Number 2 2 2
Percent Saves in Chula Vista Percent 3.0
Percent Saves Countywide Percent 3.0
FY97-98 Adopted Budget/Goals & Objectives JS'~-f
"_··._..n._____.~_~_____
FIRE DEPARTMENT
UPDATE OF EXISTING DIVISIONAL GOALS, OBJECTIVES
AND OUTPUT MEASURES
l8'b"'¿
--- -~--.- __.0._0____- ....---.----
FIRE TRAINING
NEW-HIRE/PROMOTIONAL APPLICANT PROCESSING
1212
Goals:
Activity period January 1996- December 1996
Objectives:
To plan and coordinate new-hire and promotional exams and interview
processes in cooperation with the Personnel Department.
OUTPUT MEASURES:
DESCRIPTION UNIT FY95-96 FY96-97 FY97-98
New Hire Primary Screening Intervws 1030 0 0
New Hire Secondary Intervws 305 0 0
New Hire Physical Agility Tests 33 0 0
New Hire Final Selection Intervws 33 21 15
Fire Marshal # App1ic 11 0 0
Fire Captain # Applic 13 15 0
Fire Engineer # Applic 9 0 20
FY97-98 Proposed Budget/Goals & Objectives J 8'6 .,?
" . -----,--..-----..- --_.-
FIRE TRAINING
TRAINING OF DEPARTMENT PERSONNEL
1212
Goals.
Activity period: July 1995-June 1996
Objectives:
To coordinate the training needs for Department personnel consistent with
Federal and state mandates, and Local Directives.
OUTPUT MEASURES:
DESCRIPTION UNIT FY95-96 FY96-97 FY97-98
Fire Prevention Hours 1889 1695 1750
Emergency Medical Hours 1923 1134 1200
Rescue Operations Hours 2602 1641 1800
Vehicle Operation and Pump Use Hours 4639 4074 4300
Fire Ground Emergency Operations Hours 2212 2175 2200
Administration, Mgmt, Supervision Hours 3920 3414 3600
FY97-98 Proposed Budget/Goals & Objectives l8'þ-1"
..."_.' ..._.___..._,.__~__._____....._~.u~
FIRE PREVENTION
PUBLIC EDUCATION
1230
Goals:
Fire Safety House Activity Period: May-December 1996
Fire Safety Presentations Period: January-December 1996
Objectives:
To make the Fire Safety House available for public display at events in the
greater Chula Vista area.
~o make fire safety presentaions for local community groups, schools, and
commercial activities as requested.
OUTPUT MEASURES:
DESCRIPTION UNIT FY95-96 FY96-97 FY97-98
Fire Safety House Displays # 19 17 18
Volume touring Fire Safety House #peop1e 4909 9380 5000
Fire Safety Presentations # 59 127 80
FY97-98 Proposed Budget/Goals & Objectives IrD-'
._ _~ ...__'_..._____.__·_..m__
FIRE PREVENTION
FIRE/ARSON INVESTIGATION
1230
Goals:
Activity Period: January-December 1996
Objectives:
To investigate all suspicious or incendiary fire which
include any/all of the following preliminary elements:
(1) $50,000 or greater loss
(2) Suspect Information
(3) Injury, or
(4) Death.
OUTPUT MEASURES:
DESCRIPTION UNIT FY95-96 FY96-97 FY97-98
Fire Investigations # 189 111 150
Fire Loss $ 2607385 2084215 2400000
Average Fire Loss (150K pop city) $ 3849000 3849000 3850000
FY97-98 Proposed Budget/Goals & Objectives 186"/'
.---.....---- .__..._------~_._._~-.-
FIRE PREVENTION
BUILDING CONSTRUCTION PLAN CHECK
1230
Goals:
Activity Period: January-December 1996
Objectives:
To consult with applicant and review plans for building construction for
conformance with Uniform Fire Code, Uniform Building Code, and applicable
City Ordinances.
OUTPUT MEASURES:
DESCRIPTION UNIT FY95-96 FY96-97 FY97-98
Plan Checks # 612 728 700
Contractor/public consultations # 202 332 300
FY97-98 Proposed Budget/Goals & Objectives IrJ'//
. -,,---------.----..-..,.,,-
FIRE PREVENTION
COMMERCIAL, BUSINESS LICENSE, CODE ENFORCEMENT INSP
1230
Goals:
Activity period: January-December 1996
Objectives:
To conduct inspections of Assembly, Educational, Hazardous Material, and
Institutional occupancies in accordance with the Uniform Fire Code and City
Ordinances.
OUTPUT MEASURES:
DESCRIPTION UNIT FY95-96 FY96-97 FY97-98
Inspections completed # 5206 3954 4200
Inspections per Inspector # 1041 791 840
FY97-98 Proposed Budget/Goals & Objectives 186-/.J
."_....._.'·~_m..·._. --.----.
FIRE SUPPRESSION
RESPONSE TIME THRESHOLD STANDARD
1240
Goals:
Response Time Activity Period: July 1995 June 1996
Call Volume Activity Period: January- December 1996
The Chula Vista Fire Department participates in the First Responder system,
where, during emergencies (medical, fire, hazardous materials, etc.) , the
closest emergency unit is dispatched to assist.
Objectives:
To respond to 85% of all emergencies in 7 minutes or less (pursuant to the
City-adopted Threshold Standard).Response time includes Call Intake and
Dispatch components which are performed by the Dispatch Center, in addition
to the Turnout and Travel Time components which are performed by the Engine
Company.
OUTPUT MEASURES:
DESCRIPTION UNIT FY95-96 FY96-97 FY97-98
Calls responded to within 7 min. % 77 77
Calls within 7 min 48 Seconds % 85 85
Call Volume:Medical Aids # 5775 5994 6010
Fires # 798 749 775
False Alarms # 828 787 800
Citizen Assistance # 582 552 560
Hazardous Conditions # 235 198 215
Other Calls # 34 32 33
Totals # 8252 8312 8350
FY97-98 Proposed Budget/Goals & Objectives Jr/J .~
~- ~.__.._,._.._._._-- ----."--------"
FIRE SUPPRESSION
EMT-D (DEFIBRILLATOR) PROGRAM
1240
Goals:
Program began in June of 1991. Activity period of current statistics:
January-December 1996
Definitions:
Calls: A call for service where the criteria to attach the equipment to the
patient was met.
Qualified Patients Treated: Patients which exhibit certain heart rhythms
and subsequently receive defibrillation shocks to the heart muscle.
Save: A patient which is ultimately discharged from a medical facility with
full faculties (patients which are discharged with less than full faculties
following successful defibrillation treatment/intervention are not included
in the "save" statistic) .
Objectives:
To respond to cases of pulseless, non-breathing patients, and perform
treatment as necessary in attempts to restart the heart muscle using CPR
and/or heart monitoring/shock machines (semi-automatic defibrillators), in
accordance with County protocols.
OUTPUT MEASURES:
DESCRIPTION UNIT FY95-96 FY96-97 FY97-98
Program Calls to Date
Total Calls # 242 303 365
Qualified Patients Treated # 75 90 105
Actual Saves (per definition) # 7 9 11
Individual Year Stats
Total Calls # 66 61 60
Qualified Patients Treated # 19 15 17
Actual Saves (per definition) # 2 2 2
Percent Saves in Chula Vista % 3.0
Percent Saves Countywide % 3.0
FY97-98 proposed Budget/Goals & Objectives J?/J-/ý
-..,._._,._----~--- _.~--
FIRE SUPPRESSION
ENGINE COMPANY PRE-FIRE PLAN PREPARATION
- 1240
Goals:
Activity period: January - December 1997
Objectives:
In Calendar Year 1996, to inspect businesses, areas of public assembly,
hospitals, and other regulated occupancies, for life and safety hazards in
accordance with the Uniform Fire Code and Local ordinances and enforce
compliance with the same.
New Program for Calendar Year 1997: Pre-Fire Plan Preparation.
To document various pertinent operational characteristics associated with
specific high risk occupancies (such as multi-dwelling residential
complexes, hazardous material manufacturers, and shopping centers), in
order to familiarize firefighting personnel with the occupancy to the point
that firefighting safety and effectiveness is maximized.
OUTPUT MEASURES:
DESCRIPTION UNIT FY95-96 FY96-97 FY97-98
# of Inspections/Pre-Fire Plans # 1021 811 252
Average Inspections per Station # .170 135
Pre-Plans per Eng Company/year # 12
,
FY97-98 Proposed Budget/Goals & Objectives /8'/J ./5'
~-------'~~-~-~.__._._._-~
DISASTER PREPAREDNESS
EMERGENCY MANAGEMENT ASSISTANCE PROGRAM
1250
Goals:
Starting with the 1995 Budget Year, the Emergency Program Manager Position
was reduced to a half-time position, and the commensurate reduction in
funding is reflected in the totals below.
Objectives:
To continue to meet the FEMA/Governor's Office of Emergency Services (OES)
criteria for participation in the FEMA program which provides a maximum of
50% funding for the half-time Emergency Program Manager.
To maintain the City's Emergency Plan in accordance with FEMA, OES, and
local directives.
To train staff and elected officials on the Standardized Emergency
Management System and to conduct periodic exercises of the Emergency Plan.
OUTPUT MEASURES:
DESCRIPTION UNIT FY95-96 FY96-97 FY97-98
Fed Fiscal Year Funding Received Dollars 28242 14877 14877
% of Total Personnel Costs Percent 41 41 41
FY97-98 Proposed Budget/Goals & Objectives "6-/¿'
.'-----..-......--...-...-.- .'-.'-"-..--.
BUILDING AND HOUSING DEPARTMENT
PROPOSED DEPARTMENTAL GOALS, OBJECTIVES
AND OUTPUT MEASURES
18'6'1'
-..----. _..._--_._-_..~--_..__.._~-------"-_._.,_.
BUILDING & HOUSING ADMIN
DEPARTMENTAL GOALS
1301
Goals:
l. Manages affairs by providing code interpretations for construction
standards, assessing service levels relative to workload and staffing,
maintaining permanent City private property database records, and preparing
and monitoring the budget.
2. Assures quality construction of buildings by ensuring they are designed
in a manner that provides for the safety and comfort of their occupants.
3. Conducts periodic inspections of each building project to confirm
construction is in accordance with approved plans.
4. Preserves community appearance and property values by enforcing
compliance with City adopted zoning and property standard regulations.
5. Preserves the quality of existing housing units Citywide by enforcing
minimum health and safety standards.
FY97-98 Adopted Budget/Goals & Obj ecti ves IrJÞ'/8'
.._..__~___U"
BUILDING & HOUSING ADMIN
DEPARTMENTAL GOALS
1301
Continued. . .
Objectives:
l. To develop and manage Department revenues and workload projections.
2. To review projects for compliance with all standards mandated by the
adopted Federal, State and City codes.
3. To assist the public in all aspects of the building permit and building
inspection process. Records of all plans, permits and construction
activity are also made available for public viewing and reference.
4. To verify by site inspection that all structures constructed comply
with appliable Building, Electrical, Mechanical, Plumbing, Energy and
Disabled Access Codes. These Uniform Codes provide that fire and life
safety standards are maintained at a consistent level throughout the
community.
5. To maintain readiness to perform damage assessment and emergency
surveys in the event of an earthquake or other disaster.
6. TO respond to citizen complaints to enforce zoning code and property
standards, and to abate public and attractive nuisances.
7. To eliminate hazardous conditions, and to investigate complaints of
illegal construction activity.
8. To periodically inspect multi-family rental units and mobilehome park
facilities to ensure compliance with State mandated health and safety
requirements.
9. To respond to requests for inspections based on complaints of
substandard housing.
10. To work with property owners to preserve and upgrade the existing
housing stock in our community.
FY97-98 Adopted Budget/Goals & Obj ecti ves 11-/:1 -/1
._.."---_..,.-._._-~ - - ----.
BUILDING & HOUSING ADMIN
DEPARTMENTAL GOALS
1301
Continued. . .
OUTPUT MEASURES:
DESCRIPTION UNIT FY95-96 FY96 - 97 FY97-98
TOTAL PERMIT VALUATION Total $ $150 mil. $179 miL $185 mil.
PUBLIC INFORMATION COUNTER Total # 4,897 5,100 5,400
Number of Assistance Processed Assisted
at Public Counter
CUSTOMER SERVICE SURVEYS Total %' 68% 85% 90%-
% of Surveys Indicating a High Highly
Level of Satisfaction with Rated
Department's Service
TOTAL PERMIT ISSUANCE Total # 3,131 3,700 4,200
PLAN CHECK PROCESSING TIMES Total %-
Based on Average Turn-around Within
Times for First Time Plan Check Target
Review (B&H Only) Dates
(Residential Projects - 10 days) 76% 85% 90%
(Commercial Projects - 21 days) 87% 90% 95%-
BUILDING INSPECTIONS Total # 9,119 10,500 11,000
ELECTRICAL INSPECTIONS Total # 4,929 4,500 4,700
PLUMBING INSPECTIONS Total # 6,149 6,800 7,000
MECHANICAL INSPECTIONS Total # 2,716 3,000 3,200
MISCELLANEOUS INSPECTIONS Total # 2,479 2,700 2,900
(Pool/Reroof/Walls/Signs)
SPECIAL INSPECTIONS Total # 290 320 340
(Inspections of a Unique Nature)
AVG. # OF INSPECTIONS/INSPECTOR #Per Day 18.2/day 20.6/day 21. 6/day
ABANDONED/INOPERABLE VEHICLES # Insptn 939 672 739
SANITATION INSPECTIONS # Insptn 655 507 558
PROPERTY INSPECTIONS # Insptn 656 276 304
SIGN INSPECTIONS # Insptn 1,555 1,600 1,650
GRAFFITI COMPLAINTS # Complt 44 57 63
BUSINESS COMPLAINTS # Complt 130 102 112
RENTAL PROPERTY COMPLAINTS Total # 460 323 300
RENTAL HOUSING INSPECTIONS (APTS.) Total # 1,897 2,000 2,600
MOBILEHOME PARK INSPECTIONS Total # 618 630 700
FY97-98 Adopted Budget/Goals & Objectives 18/J ..:¡,
- . -. _......_~---,.."-_._-- ---
BUILDING AND HOUSING DEPARTMENT
UPDATE OF EXISTING DIVISIONAL GOALS, OBJECTIVES
AND OUTPUT MEASURES
l8'b ".ill
..--,.-------."'----.- ----~-
BUILDING & HOUSING ADMIN
1301
Goals:
The Department manages affairs by providing code interpretations for
construction standards, assessing service levels relative to workload and
staffing, maintaining permanent City private property database records, and
preparing and monitoring the budget. The Department Director serves as
Secretary to the Board of Appeals & Advisors and the Access Appeals Board.
Objectives:
TO assess the community's satisfaction with Department services.
To develop and manage Department revenues and workload projections.
To develop and monitor Department budget, expenditures and revenues.
To provide staff support to Advisory Boards and Commissions.
O!ITP!IT MEASURES:
DESCRIPTION UNIT FY95 - 96 FY96 - 97 FY97-98
DISTRIBUTE SERVICE QUESTIONNAIRES # OF 300 400 450
TO PERMIT APPLICANTS SURVEYS
PARTICIPATE IN BUILDING INDUSTRY # OF 4 4 4
ASSOCIATION (BIA) MEETINGS MEETINGS
PARTICIPATE IN VARIOUS LOCAL # OF 3 4 4
PROFESSIONAL ASSOCIATIONS MEETINGS
(Broadway Business Association,
Downtown Business Association,
Board of Realtors, etc. )
SOLICIT PROJECTED ACTIVITY REPORTS QTRLY 4 4 4
FROM MAJOR DEVELOPERS
FY97-98 Adopted Budget/Goals I< Obj ecti yes II"¿ i12*
.- .-.... -,,-----~--_...._----
BUILDING & HOUSING INSP
PLAN REVIEW/PERMIT PROCESSING
1320
Goals:
Assures quality construction of buildings by ensuring they are designed in
a manner that provides for the safety and comfort of their occupants.
Objectives:
To review projects for compliance with all standards mandated by the
adopted Federal, State and City codes.
To issue permits for approved projects.
To assist the public in all aspects of the building permit and building
inspection process. Records of all plans, permits and construction
activity are also made available for public viewing and reference.
OUTPUT MEASURES:
DESCRIPTION UNIT FY95 - 96 FY96 - 97 FY97-98
TOTAL PERMIT VALUATION Total $ $150 mil. $179 mil. $185 mil.
Value of Construction Work
Performed
PUBLIC INFORMATION COUNTER Total # 4,897 5,100 5,400
Number of Assistance Requests Customer
per Year Processed at Public Assisted
Counter
CUSTOMER SERVICE SURVEYS Total % 68% 85% 90%
% of Surveys Indicating a High Highly
Level of Satisfaction with Rated
Department's Service
TOTAL PERMIT ISSUANCE Total # 3,131 3,700 4,200
Combined Permit Totals for Permits
Building, Plumbing, Mechanical Issued
and Electrical Permits
PLAN CHECK PROCESSING TIMES
Based on Average Turn-around
Times for First Time Plan Check Total %
Review (B&H Only) Within
(Residential Projects - 10 Days) Target 76%' 85% 90%
(Commercial Projects - 21 Days) Dates 87% 90% 95%
FY97-98 Adopted Budget/Goals & Obj ecti ves Il'þ-ø2;J
- ......-.-----"..".
BUILDING & HOUSING INSP
BUILDING INSPECTIONS
1320
Goals:
Conducts periodic inspections of each building project to confirm
construction is in accordance with approved plans.
Objectives:
To verify by site inspection that all structures constructed comply with
applicable Building, Electrical, Mechanical, Plumbing, Energy and Disabled
Access Codes. These Uniform Codes provide that fire and life safety
standards are maintained at a consistent level throughout the community.
TO create and maintain legal documentation for each construction phase of a
project.
To maintain readiness to perform damage assessment and emergency surveys in
the event of an earthquake or other disaster.
OUTPUT MEASURES:
DESCRIPTION UNIT FY95 - 96 FY96 - 97 FY97-98
BUILDING INSPECTIONS Total # 9,119 10,500 11,000
Total Number of Inspections Inspect
(Includes Residential and
Commercial Inspections)
ELECTRICAL INSPECTIONS Total # 4,292 4,500 4,700
(Residential and Commercial) Inspect
PLUMBING INSPECTIONS Total # 6,149 6,800 7,000
(Residential and Commercial) Inspect
MECHANICAL INSPECTIONS Total # 2,716 3,000 3,200
(Residential and Commercial) Inspect
MISCELLANEOUS INSPECTIONS Total # 2,479 2,700 2,900
(Pool/Reroof/Walls/Temp Power Inspect
Signs/etc. )
SPECIAL INSPECTIONS Total # 290 320 340
(Inspections of a Unique Nature Inspect
such as ADA Inspections,
Compliance Surveys, etc. )
AVERAGE NUMBER OF INSPECTIONS # Per 18.2/day 20.6/day 21.6/day
PER INSPECTOR Day
FY97-98 Adopted Budget/Goals & Obj ecti yes IT --l'l
..--...-... .-.
BUILDING & HOUSING INSP
CODE ENFORCEMENT/COMMUNITY PRESERVATION
1320
Goals:
Preserves community appearance and property values by enforcing compliance
with City adopted zoning and property standard regulations.
Objectives:
To respond to complaints to enforce zoning code and property standards.
To abate public nuisances.
TO eliminate potentially hazardous conditions, and to investigate
complaints of illegal construction activity and non-permitted work.
MAJOR ISSUE:
In the past, this Division has been responsible for a number of proactive
code enforcement programs, including the Community Appearance Program and
the Neighborhood Clean-up Campaign. With budget cutbacks in FY-95 and
FY-96 however, there has been a reduction in these and other more ambitious
code enforcement efforts. Current code enforcement efforts seek to
communicate property standard requirements to property owners and
complainants through field inspections and/or correspondence.
OUTPUT MEASURES:
DESCRIPTION UNIT FY95-96 FY96 - 97 FY97-98
ABANDONED/INOPERABLE VEHICLES # Insptn 939 672 739
INSPECTIONS
SANITATION INSPECTIONS # Insptn 655 507 558
PROPERTY INSPECTIONS # Insptn 656 276 304
SIGN INSPECTIONS # Insptn 1,555 1,600 1,650
GRAFFITI COMPLAINTS # Complt 44 57 63
BUSINESS COMPLAINTS # Complt 130 102 112
FY97-98 Adopted Budget/Goals &. Objectives 11"6-»'
-_....~_. .."--~.
BUILDING & HOUSING INSP
HOUSING INSPECTIONS
1320
Goals,
Preserves the quality of existing housing units Citywide by enforcing
minimum health and safety standards.
Objectives,
To periodically inspect multi-family rental units and mobilehome park
facilities to ensure compliance with State mandated health and safety
requirements.
To respond to requests for inspections based on complaints of substandard
housing and other deficiencies (i. e., lack of hot and cold running water,
inadequate bathroom facilities, inadequate lighting, etc.) .
To strive to work closely with property owners, whenever possible, to
upgrade and preserve the existing housing stock in our community.
OUTPUT MEASURES,
DESCRIPTION UNIT FY95-96 FY96-97 FY97-98
RENTAL PROPERTY COMPLAINTS Total # 460 323 300
(Performed When Complaint Inspect
Recei ved)
RENTAL HOUSING INSPECTIONS Total # 1,897 2,000 2,600
(Multi-Family Units) Inspect
MOBILEHOME PARK INSPECTIONS Total # 618 630 700
(Performed on a Citywide Basis) Inspect
FY97-98 Adopted Budget/Goals & Objectives /I'ð ..l¿
.._..----....__._.__.,~---_..__.__...-
FINANCE DEPARTMENT
PROPOSED DEPARTMENTAL GOALS, OBJECTIVES
AND OUTPUT MEASURES
II'J.-';' /
'-"'-~"-"--'--'----~- ~---~~-
FINANCE
DEPARTMENTAL GOALS
0420
Goals:
l. Provide the fiduciary functions of accounts payable, payroll , cash
management, debt management, expenditure and revenue projections, and
budgetary control.
2. Serve as official financial record keeper, provide general accounting
functions and issue required financial reports.
3. Provide support to the City Council, City administration, and other City
Departments, citizens and outside entities with special financial research
and reporting requests.
4. Bill, collect and deposit all revenue and reimbursements at the levels
specified by ordinance, resolution, contract or grants in a timely and
accurate manner.
5. Decrease bad debt and delinquent receivables through the operation of an
effective collections program.
6. Ensure all businesses located within the City or operating within the
City are licensed.
7. Maximize revenue from existing programs, including inter-fund
reimbursements.
8. Respond to departmental requests for the procurement of goods and
services in a prompt and appropriate manner.
Objectives:
FINANCE OPERATIONS
l. Provide general accounting functions of maintaining the City's general
ledgers, subsidiary ledgers, fixed assets and chart of accounts as needed
to maintain financial information according to accepted governmental
accounting standards.
2. Assist in the preparation of and monitor the expenditure budget in
accordance with Council direction and appropriation limits; and prepare
revenue estimates and track whether revenues are meeting expectations.
3. In a timely and accurate maaner, verify and process payment requests for
the City's obligations for goods and services.
FY97-98 Proposed Budget/Goals & objectives l8'b -~y
-----..-- -.- _..__._--~ ------".---.-
FINANCE
DEPARTMENTAL GOALS
0420
Continued. . .
4. Provide accurate and timely payroll functions including issuing employee
paychecks, recording and reporting retirement, health insurance and other
employee benefits.
5. Coordinate annual audit and issue official reports in a timely and
accurate manner to the City Council, state and Federal Government, citizens
and other governmental entities.
6. Invest idle cash to meet the goals of security, liquidity and yield
within the official City investment policy.
7. Coordinate long term borrowing for City, Redevelopment Agency and
Special Assessment Districts.
REVENUE AND RECOVERY
l. Prepare and mail invoices for all City departments in a timely manner.
2. Prepare and bill all business license tax renewals, fire inspection
fees, building inspection fees for motels, apartments and mobile home parks
and downtown improvement district assessments annually, in a timely manner.
3. Collect, deposit, and account for revenues from invoices, licenses,
permits, fees, and other receivables, received over the counter and by
mail, in a timely and accurate manner.
4. Maximize recovery of receivables.
5. Ensure all unlicensed businesses obtain a business license through a
program to identify unlicensed businesses through various sources.
6. Ensure the City and its departments are properly calculating, charging,
collecting and reimbursing costs for various City services.
7. Provide customers applying for permits or licenses, or paying fees or
fines with accurate information and process their transactions promptly.
PURCHASING
l. Procure goods and services for all City functions as ~fficiently as
possible.
FY97-98 Proposed Budget/Goals & Objectives /rJ-J.1
- ~-~-_....,~._..- ----.-.
FINANCE
DEPARTMENTAL GOALS
0420
continued. . .
.
OUTPUT MEASURES:
DESCRIPTION UNIT FY95-96 FY96-97 FY97-98
Appropriations controlled dollars $149.1 mil $152.2 mi $156.8 mil
Vendor checks issued number 14,552 14,840 15,136
Employees paid per pay period number 1,028 1,008 1,015
Avg. investment portfolio managed dollars $87.0 mil $84.0 mil $86.0 mil
Bond issues managed number 15 15 15
Receivable invoices issued number 2,042 2,450 2,700
Delinquent receivables collected dollars $41,394 $87,000 $135,000
Insufficient funds checks
recovered number 175 210 225
Businesses licensed number 7,895 8,171 8,334
New businesses licensed number 2,251 2,300 2,350
Alarm permits issued number 2,342 2,600 2,400
Purchase requisitions processed number N/A 4,018 4,000
FY97-98 Proposed Budget/Goals & Objectives l8'þ,:/t:J
.--...-.--.--.... _._-~-"._.
FINANCE DEPARTMENT
UPDATE OF EXISTING DMSIONAL GOALS, OBJECTIVES
AND OUTPUT MEASURES
18'1.>'3/
~'",--'_._'-' _.~,~._.-
FINANCE OPERATIONS
0420
Goals:
Professionally and prudently serve as fiscal stewards for the City of Chula
Vista providing fiduciary functions, serving as official financial record
keeper and fulfilling special financial research and reporting requests.
Objectives:
1. Provide the fiduciary functions of accounts payable, payroll, cash
management, debt management, expenditure and revenue projection and
monitoring.
A. In a timely and accurate manner, verify and process payment requests
for the City's obligations for goods and services.
l. It is projected that 14,840 checks will be issued during FY
96-97, which equates to 5,936 per accounts payable clerk (2.5 clerks).
2. It is projected that a total of $50,788,000 will be disbursed by
Accounts Payable during FY 96-97, equating to $20,315,200 per accounts
payable clerk.
B. Provide accurate and timely payroll functions including calculating
and issuing employee paychecks, balancing and reporting retirement, health
insurance and other employee benefits.
l. It is projected that the annual payroll will total $37,765,600
for FY 96-97.
2. The average number of employees paid each biweekly pay day is
1,200. This is accomplished by one payroll technician.
C. Invest idle cash for all Funds to meet the goals of security,
liquidity and yield within the official City investment policy.
l. The investment portfolio of temporarily idle cash is averaging
approximately $80 million..
2. The annualized yield on the investment portfolio as of 12/96 is
5.804%.
D. Coordinate long term borrowing for general City, Redevelopment
Agency and Special Assessment Districts.
FY97-98 Proposed Budget/Goals & Objectives IliJ-.3:J.
---,-_.....,._.~----_._.._----_._._..-
FINANCE OPERATIONS
0420
Continued. . .
1- The nu~ber of new bond issues during FY 96-97 has been 3,
including two Industrial Development Bond (IDB) Issues for SDG&E. (Note:
The IDB issues are not included in the total under D.2.).
2. The debt management workload now includes 15 bond issues
totaling $117,963,210 in outstanding principal. (These figures do not
include several long term loans payable, industrial development bonds,
etc. )
E. Prepare and monitor the expenditure budget in accordance with
Council direction and appropriation limits; and prepare revenue estimates
and track whether revenues are meeting expectations.
1- The total operating and CIP budget appropriations and revenue
estimates for FY 96-97 are $157,240,277 and $118,785,435 respectively.
2. The number of mid-year budget amendments by Council is projected
to be 80 during FY 96-97.
II. Serve as official financial record keeper, provide general accounting
functions and issue required financial reports.
A. Provide general accounting functions of maintaining the City's
general ledgers, subsidiary ledgers, fixed assets and chart of accounts as
needed to maintain financial information according to general accepted
governmental accounting standards.
1. The City currently has 218 funds maintained by 4 accounting
staff which equates to 55 funds per accountant.
B. The City's annual financial statement audit required by City
Charter.
1. The City's Annual Financial Report for FY 95-96 will receive an
unqualified opinion from the contract audit firm during FY 96-97.
III. Provide support to the City Council, City administration, other City
Departments, citizens and outside entities with special financial research
and reporting requests.
A. Research and report special requests.
1. Number of requests requiring more than a day of research by
category of request.
FY97-98 Proposed Budget/Goals & Objectives 1'6"'3~
- -" -----..,--.---.-
PURCHASING
0440
Goals:
R~spond to departmental requests for goods and services in a prompt and
appropriate manner.
Objectives:
A. Procure goods and services for all city functions as efficiently as
possible.
1- It is projected that 4,018 Purchase Requisitions and 744 Stores
Inventory Requisitions will be processed during FY 96-97. 100% of these
requisitions will be processed within prescribed time lines and procedures.
B. Consolidate materials/service contracts on a City-wide basis when
in the City's best interest.
1- It is projected that 3 new City-wide contracts will be issued
during FY 96-97 for Print Services, Copy and Computer Paper, and Office
Furniture.
C. Improve communications with customer department.
1- It is projected that seven (7 ) informational and training
meetings will be held with departmental representatives during FY 96-97.
2. It is projected that a major re-write of the Municipal Code
relating to Purchasing will be completed and that a Departmental Handbook
will be distributed during FY 96-97.
FY97-98 proposed Budget/Goals & Objectives lB'b-:J'I
------_."--_._--~_.- -------..---
REVENUE AND RECOVERY
0480
Goals:
To provide customers with prompt courteous service and accurate information
while enhancing and maximizing City revenues.
Objectives:
I. Bill, collect and deposit all City revenue and reimbursements at the
levels specified by ordinance, resolution, contract or grants in a timely
and accurate manner.
A. Prepare and mail invoices for all City departments in a timely
manner.
1- It is projected that 2,450 inovices will be issued during FY
96-97. This represents a 20% increase.
B. Prepare and bill all business license tax renewals, fire inspection
fees, building inspection fees for motels, apartments and mobile home parks
and downtown improvement district assessments annually, in a timely manner.
1- There are currently 8,171 businesses licensed by the City,
representing a 3.5% increase over the prior year.
II. Decrease bad debt and non-collectibles through the City-wide past due
receivables collection program.
A. Act as a clearinghouse for all bad (insufficient funds) checks.
l. It is projected that 210 bad checks will be recovered this
year, representing a 20% increase over the prior year.
B. Decrease bad debt and uncollected receivables.
l. It is projected that revenue totaling $51,700 will be generated
by following up on past due accounts, which represents a 27% increase over
the prior year.
III. Ensure all businesses operating within the City are licensed.
A. Identify unlicensed businesses through various sources including:
non-renewal licenses, field checks, other department referrals, state
resale permits, fictitious names registered, business listings, phone books
and advertisements.
FY97-98 Proposed Budget/Goals & Objectives Irb -:Jf
- ------------------------.
REVENUE AND RECOVERY
0480
continued. . .
1- It is projected $50,000 will be collected this fiscal year in
Business License Tax Penalty revenue.
IV. Maximize revenue from existing programs, including inter-fund
reimbursements.
A. Retain and seek to expand current contracts for services with other
agencies.
1- It is projected that $24,200 will be collected from contracts
for parking citation and dog license processing services during FY 96-97.
B. Ensure the City and its departments are properly calculating,
charging, collec~ing and reimbursing costs for various City services.
1- The Master Fee Schedule update will be completed by the end of
FY 96-97, but not by the original target date of 1/31/97. The delay is
caused by staff turnover and the impact of the new sewer billing collection
activity.
2. The City's Indirect Cost Allocation Plan (Full Cost Recovery)
is projected to be completed by the end of the fiscal year. The delay is
caused by staff turnover and the impact of new sewer billing collection
activity.
V. Assist customers with all transactions promptly, courteously and
accurately.
A. Assist customers in applying for permits and licenses and issue
permits and licenses in person and via mail.
l. It is projected that 2,095 licenses will be issued for new
businesses this fiscal year.
2. It is projected that 3,000 dog licenses will be issued during
FY 97-97.
3. It is projected that 2,600 Alarm Permits will be issued during
FY 96-97.
FY97-98 Proposed Budget/Goals & Objectives '8'''- ~¿,
_·u_._.u."__..___ ------
~f~ INFORMATION MEMORANDUM
.,
oifI.~ February 24, 1997
TO: Honorable Mayor and City Council
VIA: 101m D. Goo'. Ci";~~
~
FROM: Michael T. Meacham, Conservation Coordinator
SUBJECT: Yard Waste Collection Service Schedule
In November of 1996 the City began a temporary pilot program to change the residential yard waste collection
schedule from weekly to every other week. The program was implemented to reduce yard waste collection
costs and therefore reduce the impact of a residential rate increase proposed by Laidlaw Waste Systems earlier
in the year. In previous years, yard waste customers had generated approximately 50% less green waste during
the months of October through March as they pid between April and September. Laidlaw Waste Systems
projected that the schedule change could produce $65,000 to $80,000 in vehicle and labor related savings that
could be passed on to rate payers without sacrificing landfill diversion goals.
Landfill diversion goals were met during the every other week pilot schedule. Slightly more yard waste was
collected and composted during the pilot schedule months than the same months in the previous year. The
program's fmancial goals where also met. Laidlaw Waste Systems estimates that approximately $60,000 in
savings was accrued during the 4 months that the program was in place. Residents should know that all the
savings accrued by the program will be applied to maintaining or reducing rates and will not be kept by
Laidlaw Waste Systems or the City. Chula Vista's residential rates have been the lowest or second lowest in the
county for the past two years (Coronado is currently $0.05 lower than Chula Vista and pays all recycling costs
plus y. ofrefuse costs in Coronado).
The City has received more telephone calls and letters regarding this program schedule change than any other
solid waste issue in recent years (approximately 100 per month). Far more of the calls received by the City on
this program were about the program itself and could not be remedied by providing information. Laidlaw
Waste Systems has also received approximately 550 yard waste related calls of which they categorize
approximately 80% as information only. Although staff will continue to work with Laidlaw Waste Systems to
make solid waste and recycling services as efficient and effective for residents as possible, those who called and
wrote City Hall have left a clear message, quality of service and convenience is as important, if not more
important than cost.
Staff recommends that the pilot program be eliminated and that the yard waste collection program return to
weekly collection effective March 3, 1997. Subsequent to Council approval, Laidlaw Waste Systems will
notify the public by placing a message in the next refuse bill in the next few days. Staff will also work with
Laidlaw Waste Systems to promote the return to weekly yard waste collection in the local media.
mtm:cac-rcc: yw-pilot.inf /B'c - /
Printed on post-consumer content recycled paper, Naturally!
^--^--_._~ -,.."-- ---^'--
February 25, 1997
To: Mayor Shirley Horton
Deputy Mayor Steve Padilla
Councilmembers Jerry Rindone and John Moot
From: Councilmember Mary Salas
Re: Trip to Irapuato February 14-18, 1997
Thank you for allowing me to represent the City of Chula Vista and to participate in the
festivities commemorating the 450th anniversary of the founding of our sister city,
Irapuato.
I was warmly received by the Mayor, Jose Aben Amar Gonzalez Herrera who extends his
appreciation for Chula Vista's proclamation honoring this milestone in Irapuato's history.
I want to thank Ernesto Arredondo Herrera and his wife, Maria Guadalupe Taboado de
Arredondo for their hospitality. I was a guest in their home during my stay in Irapuato.
I arrived in the city on Friday, February 14th at 5 p.m. That evening, I attended an open
air concert in the main plaza in the company ofthe Mayor. After the concert, I was taken
on a brief tour of City Hall and met with Lic. Jose Luis Huerta, Director of Economic
Development. Sf. Huerta briefed me on the schedule of activities for the rest of the trip.
,
Saturday morning, I attended a parade in the company ofthe Mayor and Sf. Huerta. After
the parade, I attended a luncheon given in honor of all the invited dignitaries. I said a few
words on behalf of the City of Chula Vista to thank the City of Irapuato for their invitation
and hospitality. Later that evening, I was invited to view the ceremonies ITom the main
stage. I was introduced to the Governor ofGuanajuato, Vicente Fox Quesada. After the
music, speeches and fireworks, I attended a reception at the city's cultural museum At the
reception, Governor Vicente Fox Quesada, presented the city with a commemorative
stamp in honor ofIrapuato's 450th anniversary and I presented the City ofChula Vista's
proclamation to the Mayor. A dinner dance ended Saturday's activities.
Sunday, I rested.
Monday morning began with a meeting with Lic. Jose Luis Huerta. Sr. Huerta briefed me
on the area's economic strengths which are basically in agriculture and food processing
with a growing importance in textiles and garment production and biotech research. He
expressed his desire to expand the sister city relationship to include an exchange of
commerce as well as culture. Sf. Huerta presented me with a planning map of the city. The
city boasts prime land dedicated to the development of industrial sites. I met briefly with
Ing. Jose M. Mendoza Marquez, Secretary of Economic Development for the State of
Guanajuato and presented him with a package of material from Rudy Fernandez, the
--~._-_._-----,------_.__._----._-_.
Director of the Office of CaliforniafMexico Affairs for the State of California. Future talks
between the two may lead to and exchange of commerce between the two states.
A press conference in the Mayor's office followed. Once again, the Mayor mentioned his
desire to develop an economic relationship with the City of Chula Vista. I extended an
invitation to the Mayor to visit Chula Vista and he gladly accepted. The tentative dates of
his visit are March 9th though the 13th. The International Friendship Commission will be
meeting on Wednesday to arrange a schedule of activities for the visiting dignitaries of
Irapuato.
Lunch was followed by a tour of the city museum. Sr. Alffedo Olmos Villegas guided us
through the museum and gave us a history ofthe city.
Later that afternoon, I toured the Centro de Investigacion y de Estudios A vanzados del
Unidad Irapuato. The center is world renowned for its research on genetic engineering of
plants. Successful projects have included the development of a disease resistant potato,
development of a predator fungus which kills crop harming fungi while leaving the plant
unaffected and altering the growth cycle of numerous plants to prolong the production of
crops for a longer growing season. I discussed Chula Vista's desire to attract
biotechnology industries to our city with Dr. Ochoa Alejo, Academic Coordinator of the
Center. He said he would be more than happy to exchange information and ideas with our
staff or with Bruce Carlin.
In the evening, the city architect gave us a tour of the major historical buildings and
explained the significance of the mural at city hall and of the mosaic mural in the town
plaza.
At 10 p.m. attended a farewell dinner with my host family and Sr. Jose Luis Huerta.
It was a wonderful trip. The people ofIrapuato sincerely value the Sister Cities Program
and wish to establish closer ties to our community. I look forward to welcoming them to
our beautiful city with the same enthusiasm and hospitality this coming March.
. -,,- ~----------_.