HomeMy WebLinkAboutAgenda Packet 1997/03/18
... declare IInder penalty of perjury that I am
employed by the City of Chura Vista in the
Office of the City Clerk and that I posted
thi8 Agenda/Notice on the Dulletin Board at
Tuesday, March 18, 1997 the Public ~rv~es Building and at Cit·( Hall on Council Chamhers
6:00 p.m. DATED,:3 /J 9? SIGNED 6/.I(b ~~" Publi¡.: Services Building
/ /
Regular Meeting of the Citv of Chula Vista Citv Council
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: March 1 , 1997 (Special Meeting/Worksession), March 10, 1997
(Special Meeting), and March II, 1997 (Regular Meeting).
4. SPECIAL ORDERS OF THE DAY:
a. Oath of Office: Planning Commission - M. Kevin O'Neil; and Town Centre Proje-çl Area
Committee - Tom Money and Linda R. Navarro.
b. Presentation regarding Utility Restructuring by Steve Sachs. SAN DAG.
CONSENT CALENDAR
(ltem,\' 5 through 9)
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 Fonn" avaiklble 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 to the best of his knowledge from observance of
actions taken in the Closed Session on 3/11/97 in which the City Attorney participated, that
there were no reportable actions which are required under the Brown Act to be reported.
It is recommended that the letter be received and filed.
6.A. ORDINANCE 2700 ADOPTING THE RESTATED AND AMENDED PRE-ANNEXATION
DEVELOPMENT AGREEMENT WITH SNMB, LTD. (second reading and
adootion) - The purpose of this item is to present five: restated pre-anne:xation
development agreements for properties on Otay Ranch. These are all
agreements that the Planning Commission and Coum;il previously adopted hut
which expired due to a provision of the prior agreements stating that they all
became null and void if the annexation did not oCI..'ur hy 1/1/97. The annexation
is still pending. Staff recommends Council place the onlLnances on st;X;ond
æading and adoption. (Deputy City Manager and Director of Planning)
Continued from the meeting of 3/11/97.
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Agenda -2- March 18, 1997
B. ORDINANCE 2701 ADOPfING THE RESTATED AND AMENDED PRE-ANNEXATION
DEVELOPMENT AGREEMENT WITH JEWELS OF CHARITY (second
readin!! and adoDtion)
C. ORDINANCE 2702 ADOPTING THE RESTATED AND AMENDED PRE-ANNEXATION
DEVELOPMENT AGREEMENT WITH STEPHEN AND MARY BIRCH
FOUNDATION (second readin~ and adootion)
D. ORDINANCE 2703 ADOPTING THE RESTATED AND AMENDED PRE-ANNEXATION
DEVELOPMENT AGREEMENT WITH GREGORY T. SMITH AND
GEORGIANA R. SMITH (second readin~ and adootion)
E. ORDINANCE 2704 ADOPTING THE RESTATED AND AMENDED PRE-ANNEXATION
DEVELOPMENT AGREEMENT WITH UNITED ENTERPRISES (second
readin~ and adootion)
7. RESOLUTION 18600 AMENDING THE BUDGET TO INCLUDE CONTRACT LABOR
NEGOTIATIONS SERVICES AND APPROPRIATING $10,000 FROM
THE UNAPPROPRIATED BALANCE OF THE GENERAL FUND
RESERVE -In the last ten years, the formal meet and confer process, as
provided for by the Meyers-Milias-Brown Act, has been impacted by Unions use
of Attorneys or Labor Law experts as their Chief Negotiators. Issues raised by
both Labor and Management have become increasingly more complex and the
negotiating sessions and related background work are becoming more and more
time-consuming. As a result, Council is being asked to approve funds for the
purpose of contracting with a Labor Relations Expert to serve as Management's
Chief Negotiator with the Chula Vista Police Officer's Assoc.:iation. Staff
recommends approval of the resolution. (City Manager) 4/Sth's vote required,
8. RESOLUTION 18601 CONCEPTUALLY APPROVING THE MARKETING OF CITY
PROPERTIES FOR USE BY TELECOMMUNICATIONS COMPANIES-
As cellular and Personal Communication Services (peS) companies look to
expand their infrastructure and provide more reliable coverage, there is a need
to place additional antennas and other facilities throughout their service areas.
In the interest of facilitating these actions and making effective use of availahle
city properties, staff has been working with a number of communications
companies on potential licenses/conditional use permits to use City-owned
properties. Prior to negotiation of any such licenses (each of which would then
come back for Council approval), staff is seeking Counl:i!'s general dire¡,;tion to
proceed. Staff reconunends approval of the resolution. (Director of Planning
and Principal Management Assistant Y ollng)
9.A. RESOLUTION 18602 APPROVING CHANGE ORDER NUMBER 4 FOR THE
"IMPROVEMENT OF ASSESSMENT DISTRICT NUMBER 90-2 (OTAY
V ALLEY ROAD, PHASES II AND III) IN THE CITY (ST-123)"
PROJECT, AND AUTHORIZING THE DIRECTOR OF PUBLIC WORKS
TO EXECUTE IT ON BEHALF OF THE CITY - On 6/7/97, Council
awarded a contract in the amount of $2,374,136.70 to Signs and Pinnick. Inc.
for the construction of the Otay Valley Road Phases 11 and 111 Widening Prolect.
The project was financed via the formation of Assessment District Number 90-2.
The approval of Change Order Number 4 will diminate three contract hid items
for environment mitigation for a new contract reduction of $166,990. Staff
recommends approval of the resolutions. (Director of Puhllc Works)
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Agenda -3- March 18, 1997
B. RESOLUTION 18603 WAIVING BIDDING PROCESS AND AUTHORIZING THE CITY
MANAGER TO ENTER INTO A CONTRACT WITH PACIFIC
SOUTHWEST BIOLOGICAL SERVICES FOR A COWBIRD TRAPPING
PROGRAM
* * * END OF CONSENT CALENDAR * * *
ORAL COMMUNICATIONS
This is an opportunity for the general public to address the City Council on any subject matter within the
Council'sjurisdiction that is not an item on this agenda for public discussion. (State klw, however, generally
prohibits the City Council from taking action on any issues not included on the posted agenda.) If you wish to
address the Council on such a subject, please complete the "Request to Speak Under Oral Communications
Fonn" 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 Fonn" available in the lobby and submit it to the City
Clerk prior to the meeting.
10. PUBLIC HEARING CONSIDERING AMENDMENTS TO THE MUNICIPAL CODE AND THE
MASTER FEE SCHEDULE TO PROVIDE FOR A PERMANENT, LOCAL
PROCESS FOR DETERMINATION OF PUBLIC CONVENIENCE OR
NECESSITY FOR ALCOHOLIC BEVERAGE LICENSING AND A
DEPOSIT TO COVER THE COST OF PROCESSING SUCH
APPLICATIONS - In August 1995, Council approved a resolution providing
the Police Chief with the authority, on a temporary basIs, to make
determinations of public convenience or necessity on ¡,;ertain akoholic beverage
licenses as required by State law. This proposal provides for the permanent
processing of such requests. Staff reconummJs Council place the ordinance on
first reading and approve the resolution. (Director of Planning)
A. ORDINANCE 2705 CREATING AND ADDING CHAPTER 5.09 TO THE MUNICIPAL CODE
FOR THE PURPOSE OF PROVIDING A PERMANENT PROCESS FOR
DETERMINATION OF PUBLIC CONVENIENCE OR NECESSITY FOR
CERTAIN ALCOHOLIC BEVERAGE LICENSES (tirst reading)
B. RESOLUTION 18604 AMENDING THE MASTER FEE SCHEDULE TO ESTABLISH A
DEPOSIT FOR PROCESSING OF REQUESTS FOR DETERMINATION
OF PUBLIC CONVENIENCE OR NECESSITY FOR CERTAIN
ALCOHOLIC BEVERAGE LICENSES
BOARD AND COMMISSION 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.
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Agenda -4- March 18, 1997
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" fonn avaiklble in the lobby and submit it to the City Clerk prior to the meeting.
II.A. RESOLUTION 18605 APPROVING A 1.16 ACRE LAND DONATION FOR AN EIGHTEEN (18)
UNIT AFFORDABLE HOUSING PROJECT PROPOSED TO BE
DEVELOPED AS TROLLEY TERRACE TOWNHOMES AND THE
AMENDED AND RESTATED CONVEYANCE AGREEMENT AND
ESCROW INSTRUCTIONS WITH SOUTH BAY COMMUNITY
SERVICES WITH RESPECT TO 1.16 ACRES OF REAL PROPERTY
LOCATED AT 746 AND 750 ADA STREET - On 5/21/96, Council approved
the Conveyance Agreement and Escrow Instructions with South Bay Community
Services (SBCS) to develop an 18 unit affordable housing complex and commit
$509,311 from the HOME Program funds to be loaned for such development.
SBCS returned to the City to request additional public funding in order to
augment the competitiveness of its Tax Credit Allocation Committee application
which is due by the end of March 1997. Staff recommends approval of the
resolutions. (Director of Community Development)
B. RESOLUTION 18606 APPROVING A FIVE HUNDRED TWENTY-THREE THOUSAND NINE
HUNDRED AND SIXTY FIVE DOLLARS ($523,965) COMMITMENT
FROM THE HOME PROGRAM FOR THE DEVELOPMENT OF AN
EIGHTEEN (18) UNIT AFFORDABLE HOUSING RENTAL PROJECT AT
746 AND 750 ADA STREET
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
12. CITY MANAGER'S REPORTCS)
a. Scheduling of meetings.
. A representative of the City's lobbying firm will be available to med with Council next
week, March 25th, from 4:00 until 6:00 p.m., prior to the start of the Council meeting.
Senator Deddeh will be attending the Council meeting that evening and will present the
Council with a quarterly report under Special Orders of the Day. Any members of
Council wishing to meet with Senator Deddeh should contact Colleen Kelly, and she'lJ
set up an appointment for you,
. Request to schedule worksession for Council review of Growth Management Oversight
Commission'5 1996 Annual Report.
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Agenda -5- March 18. 1997
13. MAYOR'S REPORT IS)
a. Ratification of appointments: Cultural Arts Commission - Patricia B. Kelly (to till vacancy
created by Commissioner Cemitz whose term expires 6/30/98); Economic Development
Commission - Richard A. Reynolds (to fill vacancy created by Commissioner Martija whose term
expires 6/30/98) and Nate Rubin (to fill vacancy created by Commissioner Read whose term
expires 6/30/97); and Human Relations Commission - Jetlrey Scott (to till vacancy created by
Commissioner Morton whose term expires 6/30/97).
14. COUNCIL COMMENTS
ADJOURNMENT
The meeting will adjourn to (a closed session and thence to) the regular City Council meeting on March 25, 1997
at 6:00 p.m. in the City Council Chambers.
A regular meeting of the Redevelopment Agency will be held immediately following the City Counl:il meding.
.__... '_m__' .-',-.........----.-...--
"I declare ~nder penelty of perjury that I am
emploJ'ed by the ':';ity of Chula Vista in the
Tuesday. March 18, 1997 Office of the City Clerk and that r d Council Chamhers
6:00 p.m. this Agenda/Notice on the Bull t' ~ost~ ,uhliç Services Building
C ed' I ~ II . h C C î MF . I e In oer a
Imm late y 0 OWlllg t e Ity ouncl t <P8ø i~ðes Building an at Cit Hall on
DATED..3 '/ ? SIGNED . "
/
Citv of Chula Vista Citv Council
CLOSED SESSION AGENDA
Effective April I, 1994, there have been new amendments to the Brown Act. Unless the City Attorney, the City
Manager or the City Council states otherwise at this time, the Council will discuss and deliberate on the following
items of business which are pennitted by klw to be the subject of a closed session discussion, and which the
Council is advised should be discussed in closed session to best protect the interests of the City. The Council is
required by klw to return to open session, issue any reports of final oction taken in closed session, and the votes
taken. However, due to the typical length of time taken up by closed sessions, the videotaping will be tenninated
at this point in order to save costs so that the Council's return from closed session, reports of final action taken,
and adjournment will not be videotaped. Nevertheless, the report of final action taken will be recorded in the
minutes which will be avaiklble in the City Clerk's Office.
, CONFERENCE WITH LEGAL COUNSEL REGARDING - Existing litigation pursuant to
Government Code Section 54956.9
· City of Chula Vista v. The Fieldstone Company, et al.
· Claim of Steve Griffin.
· Divinagracia v. City of Chula Vista.
PUBLIC EMPLOYEE PERFORMANCE EVALUATION - Pursuant to Government Code Section
54957 - City Clerk.
CONFERENCE WITH LABOR NEGOTIATOR - Pursuant to Government Code Section 54957.6
· Agency negotiator: John Goss or designee for CVEA, WCE, POA, IAFF, ExtXutive
Management. Mid-Management, and Unrepresented.
Employee organization: Chula Vista Employees Association (CVEA) and Western Council of
Engineers (WCE), Police Ofticers Association (POA) and International Association of Fire
Fighters (lAFF).
Unrepresented employee: Executive Management, Mid-Management. and UnrepresenteJ.
2. REPORT OF ACTIONS TAKEN IN CLOSED SESSION
....·...___n._...._...._..
March 13, 1997
TO: The Honorable Mayor and City coun~ NOT SCANNED
ç
FROM: John D. Goss, City Manage~ ~ .
SUBJECT: City Council Meeting of March 18, 1997
This will transmit the agenda and related materials for the regular City Council meeting of
Tuesday, March 18, 1997. Comments regarding the Written Communications are as follows:
Sa. This is a letter from the City Attorney stating that to the best of his knowledge from
observance of actions taken in the Closed Session on 3/11/97 in which the City Attorney
participated, that there were no reportable actions which are required under the Brown
Act to be reported.
IT IS RECOMMENDED THAT THIS LETTER BE RECEIVED AND FILED.
JDG:mab
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OlY Of
CHULA VISTA
OFFICE OF THE CITY ATTORNEY
Date: March 12, 1997
To: The Honorable Mayor and City Council
From: John M. K....Y, City Attorn.~ "_....
Re: Report Regarding Actions Tak 'n Closed
for the Meeting of 3/11/97 .
The City Council met in Closed Session to discuss the claim of
Steve Griffin, Divinagracia v. City of Chula Vista, Public Employee
Performance Evaluation - city Clerk and Conference with Labor
Negotiator.
The city Attorney hereby reports to the best of his knowledge from
observance of actions taken in the Closed session in which the City
Attorney participated, that there were no reportable actions which
are required under the Brown Act to be reported.
JMK: Igk
C:\lt\clo88e88.no
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276 FOURTH AVENUE' CHULA VISTA· CALIFORNIA 91910 . (619) 691-5037 . FAX (619) 585-5612
rh Post.Qnunørfa)dJdp....
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March 13, 1997
Item No. 6
TO: Honorable Mayor and city council
VIA: John Goss, City Manager ~
FROM: George Krempl, Deputy ci y Manager &V
SUBJECT: Ordinances Adopting the Amended and Restated Otay Ranch
Pre-Annexation Development Agreements with United
Enterprises, Ltd. et.al. (Second Reading)
On March 11, 1997, City council continued this item to the meeting
of March 18,1996 and also asked for further written material from
the applicant as to why this item has had to be continued and
explaining why the landfill nuisance easement subordination had not
been accomplished.
We are pleased to be able to advise Council that as of March 13,
1997 the easement documents have all been delivered, and are in a
fora satisfaotory to the Deputy county Counsel. The signature of
the Trustee under the Deed of Trust is expected to be obtained on
March 14, 1997.
Attached for Council information is correspondence from cynthia
Eldred, Esq. of Solomon, Ward, Seidenwurm & Smith representing
United Enterprises and William W. Taylor, Esq. , Deputy County
Counsel, providing further background on the issue.
GK:mab
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1 _.13.1997 3:55PM NO. 222 P.2/S
Oi
¡ SOLOMON WARD SEIDENWURM lit SMITH, LLP
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March 13, 1997 IfQIINAttt.IMn'R
I OIIWDLIICUIMCN
MJØ1IR'I'J.IOLOCON
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VIA FACSIMn.E
Mayor and City Council of Chula Vista
do Mr. George Kmmpl
276 Fourth Avenue
Chula Vista, CA 91910
Reõ United Enterprises, Ltc!.
Pr...Amuuwion Developm.e.œ Agreement
Hearing Date: March 18, 1997
Honotable Mayor and Members of the City Council:
I unclerstlmd from George Krempl that, at its Marcl111, 1997 =tÏng, the City C01.'ID.cil
requested that I: (1) provide 'Written exp1anar.ion for the delay in Uuited Enterpri5e, Ltd.',
cleliveryr of a œrtain Subordination Agreement which 'We have been discussiug¡ and (2) attend
yoIU' March 18, 1997 meeting. I apologiæ that I was unable bec¡¡\1S of scheduliug conflicts 1:0
attend the March 11, 1997 meeting and to respond to your questions 'It that time.
At your Much 4, 1997 meeting, I told you that I had received the United EDtelprise, Ltd.
("UE") Subordination Agreement and fucd a copy of it to Deputy County Counsel William
W. Taylor for his review and approval. Mr. Taylor did not receive the copy ¡¡¡¡tit he rel:lU'ned
to the office from vacation on March 10, 1997. At that time, Mr. Taylor det:ermiaed that
UE's signature on the Subordination Agree=t had not been properly Dotarized. UE's
general partner lives in !:he Bay Area. Mr. Taylor ovcrnighted new docwneuts for signatUre
on Tuesday, March 11, and rcœived them bad, properJy notarized, this morning, March 13.
Mr. Taylor eçects to bo!:h obtain the signaa¡re of !:he Trustee under the Deed of Tcust beiQg
subordinated pursuant to the SubordiuatioD Agreement, and obtain approval of the
Subordination Agr-uent from the COUDty of San Diego's Chief Admicistrative Officer on
March 14. I am enclosing a copy of~. Taylor's March 12, 1997 letter to me in which he
describes the reasons for the one-week delay.
I am 80rry that I will not be able to attend the City Council's March 18, 1997 meeting, lIS
requested by the City Council. I will be undergoing surgery earlier that day. My p3<tDcr,
Miguel Smith, will attend the meeting in my place.
401 B St....t, Suite 1200 8&11 Dial/a, Califarnill 92101 Tel.p!.ano (619) 231-0303 F.""¡,,,il. (619) 2314766
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i MAR. 13. 1997 3: 56PM NO. 222 P.3.-'5
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Ml%r and City Council
I March 13, 1997
PIIp 2
I I hope thaJ; this letter adequately responds to your requests.
Very truly yours,
(J~.,J
CynthiG¡ L. Eldred
SOLOMON WARD SEIDENWURM &: SMITH, UP
CLEldek
Enclosure
ce: United Enterprises, Ltd.
George Krempl, Deputy City Manager
Beverly Authelet, City C1erk
Ann Y. Moore, Assistant City Attomey
P~88,Ql:46027.002
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SANDIEGOCOUNTYCOUNSEL TEL No.619-531-6005 Mar 13.97 11:21 No.004 P.02
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March 12, 1997 -..- IW.PIIW.~
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Cynthia Eldred, Esq.
Solomon, ward, Seidenwurm & Smith
401 "B" Street, SuiLe 1200
San Diego, CA 92101
Re: Otay Landfill Buffer Area Easement Subordination
Dear cindy:
This will confirm our telephone conversation of March 10,
1997, related to the above easement. You had forwarded a .copy of
the easement for our review. Our review disclosed two matters
relating to the signing of the easement which will require
attention before it can be accepted and recorded.
First, the signature of John T. Knox, the general partner of
United Enterprises, Ltd.. was not properly notarized. The form
of notarial acknowledgment used does not contain the matters i
required by statute. (See Civil code 11189.) We verified that I
the San Diego County Recorder would not allow the document to be I
recorded in its present condition. To cw:-e this, with your I
concurrence, we have express-mailed to Mr. Knox a new original
easement, with a correct form of notarial acknowledgment and a
return express mail envelope.
Second, the signature of the Trustee under the Deed of Trust !
being subordinated, First American Title Insurance Company, needs
to be obtained. We have agreed to do this, and have contacted ,
First American and have been assw:-ed that we may present the I
easement to them by a ·walk-in- visit immediately upon our
receipt of the signed original from Mr. Knox.
I
While the 8bove two co=ective measuz'eS aJ:'e illIJorLanl and I
necessary, we have no reason to believe that they will require
more than a few days to complete. The County of San Diego
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SANDIEGOCOUNTYCOUNSEL TEL No.619-531-6005 Mar 13.97 11:21 No.004 P.03
Ms. Eldr.ed -2- March 13. 199'1
strongly desires to expedite all o[ Lhe steps necess~ry to
complete the Ot~y Ranch annexation, and this office will continue
to give these matters highest prior.ity attention while ~ssurin9 ,
that they ar.e Qone correctly. .
,
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Very truly yours, I
1
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JOHN ,). SANSONE, County Counsel I
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By
WILLIAM W. TA'XLOR I
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ORDINANCE NO. .a '7t1d
í\\O~
AN ORDINANCE OF THE CITY OF CHULA V~¡
ADOPTING THE RESTATED AND AMENDE~~ E-
ANNEXATION DEVELOPMENT AGREEMENT WH SNMB,
LTD. d»~/
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WHEREAS, on August 6, 19 e City Council approved
Ordinance 2688 on first reading, w~ 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
George Krempl, Deputy City r~~~~
John M. Kaheny, City A orney
Manager
C:\or\ln.b
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AMENDED AND RESTATED
PRE-ANNEXATION DEVELOPMENT AGREEMENT
ENDED AND RESTATED PRE-ANNEXATION DEVELOPMEN AGREEMENT
(" Agreemen ") is made effective on the date hereinafte set forth
bel-ow by an among the CITY OF CHULA VISTA ("City") a SNMB, LTD.
("S "),wh agree as follows:
. This Agreement is made with
. The owners of the proper es subject to this
Agreement ereina ter collectively referred o as "Owner" or as
"Developer") are as ollows:
SNMB is the owne of approximately 1,827
"the SNMB Property") in
ea of the Coun of San Diego ("County"),
tached hereto and incorpo-
") is part
of a kn wn, and referred herein, as
Po tions of SNMB
, 9 and Planning
1.2 ~. The a municipal
corporation with Charter within the
County.
1.3
to its
charter, ia Government Code
into development
ertainty for both
the dev 10pment process.
section
a city t enter into a d ve10pment
a legal or equi able inte st in real
orated territory 101 :thin that c ty's sphere
the development of p perty as p ovided in
eve10pme Agreement Law; provide that the reement
come operative unless ann xation pro edings
e property to the city are co p1eted with the
fied by the agreement.
1.3.3 city enters into this Agr ment pursuant
e provisions of the California Government C e, its home-
e powers, and applicable City ordinances, rul , regula-
tions and policies.
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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 pr.ovided
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 develòper'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 To assure the City that the Developer
will dedicate rights-of-way to the city for SR-125, a
route which, when constructed, will substantially
alleviate congestion on I-80S and 1-5, and also will
facilitate the economic development of Chula vista~
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~._.__~_.___u_._...._" _ ..-----.----..."
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 Schere 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 SNMB property.
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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 citv 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.
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.
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_.n". ____u.__n. __ .__~_
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; sng
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 (Le., 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-12S Development Impact Fee Program, the Salt Creek Sewer
DIF and the Public Facilities DIF.
-S- 15/1"'¿'
I
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) secti~nal 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.
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..- -......---....-"
3. ~. This Agreement shall become effective as a
development agreement upon the effective date of the Annexation
(lithe Effective Date"); provided, however, that if the Annexation
does not occur on or before ~ JaRaa~y 1, 1997, this Agreement
shall be null and void unless the annexation proceedinas have been
extended bv LAFCO. If the annexation proceedinas have been
extended. this Aareement 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 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 (lithe Term"). The Term shall
also be extended for any period of time during which issuance of
building permits to Owner is suspended for any reason other than
the default of Owner, and for a period of time equal to the period
of time during which any action by City or court action limits the
processing of future discretionary approvals, issuance of building
permits or any other development of the Property consistent with
this Agreement.
4. OWNER CONSENT TO ANNEXATION. Owner hereby consents to
and shall cooperate with the applications of City to declare that
the Otay Valley Parcel is within City's sphere of influence and to
annex the Otay Valley Parcel to the City; provided, however, that
Owner may withdraw such consent and withhold further cooperation if
the city, prior to the Effective Date, adopts rules, regulations,
ordinances, policies, conditions, environmental regulations,
phasing controls, exactions, entitlements, assessments or fees
applicable to and governing development of the Property which are
inconsistent with, or render impractical development of the
Property according to, the Development Plan or the additional
commitments of City set forth in Paragraphs 5.1.1 through 5.1.8,
below. Owner also agrees not to challenge the annexation of the
otay Valley Parcel into the city.
4. 1 The Developer understands and aarees that this
Aareement shall become effective and valid only 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 County. Developer aarees that the City'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.
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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 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-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.
5.1.4 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 Ci ty shall allow the owner for purposes of
processing entitlements to proceed with planning of the
Property on a first come first served basis, with other
properties in the area of the Annexation. In addition, if
necessary the city shall, with proper environmental review,
consider in its discretion an amendment to the Village Phasing
Plan to facilitate the planning and development of the
properties covered by this Agreement.
5.1.6 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 IÞ ,
.-. _."'". - --...---- - ....---
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- 15¡1 '~"
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
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
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
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n_____
of houses which may be built." (Municipal Code Section
19.09.0105.3) 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 Vestina. 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 Vestina 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 Processina 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
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 Lenath of Validity of Tentative Subdivision MaDS.
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 MaD DeveloDment. 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.
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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 Bui lder 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
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__..._,__ ._..·__.....·_.._.,_·__w ._
subdivision improvement agreement(s) and Developer's security
shall be released.
6.4.4 Transfer of Riqhts and Obliqations of
Development. Whenever Developer conveys a portion of the
Property, the rights and obligations of this Agreement shall
transfer in accordance with Section 15 herein.
7. DEVELOPER'S OBLIGATIONS.
7.1 Condition to Developer's Obliqations to Dedicate. Fund or
Construct Public Facilities. Developer agrees to develop or
provide the pUblic improvements, facilities, dedications, or
reservations of land and satisfy other exactions conditioning the
development of the Property which are set forth hereinbelow. The
obligations of the Developer pursuant to this Agreement are
conditioned upon: (i) the City not being in default of its obliga-
tions under this agreement; and (ii) the City not preventing or
unreasonably delaying the development of the property; and (iii)
the Agreement having not been suspended in response to changes in
state or federal law; and (iv) the City's obligations having not
been suspended pursuant to Section 13.2.
7.2 Dedications and Reservations of Land for PublicPurposes.
The policies by which property will be required to be reserved,
dedicated or improved for public purposes are identified in the
Existing 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.
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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 S 1230.010) of Part 3 of
the Code of Civil Procedure to acquire an interest in the
property or properties. Developer's share of the cost
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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
Develope~'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 Required bv a SUbdivision Mac. As may
be required pursuant to the terms of a subdivision map, it shall be
the responsibility of Developer to construct the improvements
required by a subdivision map.. Where Developer is required to
construct a public improvement which has been identified as the
responsibility of another party or to provide public improvements
of supplemental size, capacity, number or length benefiting
property not within the subdivision, city shall process a reim-
bursement agreement to the Developer in accordance with Article 6
of Chapter 4 of the Subdivision Map Act, commencing with Government
Code section 66485, and Section 7.5, below.
7.5 Facilities Which Are the Obliaations of Another
Partv. or Are of Excessive size. Cacacitv. 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
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.
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 DeveloDment lmDact Fee proaram PaYments.
Developer shall pay to the city a DlF, 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 DlF 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
imposition and collection of, the same DlF 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 lmDact Fee Proaram. The DlF
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 DlF 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
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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 rpasonable 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 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
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- /5'19 ølY
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 CaDaci 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 ResDonsibilities. 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 evidènce 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:
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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 UDon 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 (3D) 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 (3D) 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 (3D)
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 UDon 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.
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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 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.
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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 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.
Ariy 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- If", -.aJ
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 CNCCPI. 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.
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.".- ........--.---.-----
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
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 9],910
Attention: city Manager
If to Owner, to: SNMB, LTD.
7811 La Mesa Boulevard
Suite B-3
La Mesa, CA 91941
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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 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 Incorcoration of Recitals. The recitals set forth
in Paragraph 1 of this Agreement are part of this Agreement.
16.8 CaDtions. 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- IrA 'J.5'
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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
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.
-25- ~5'A".u-
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 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
-26- d'¿f-.l7
+._u __ ...
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.
~~. ~~-.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
-
,"-;'-,;J.'
-28-
. "
EXHIBIT A
CI1Y OF
CHUlA VISTA
PLANNINC DEPARTMENT
SNMB. LTD. Ø'A-3# 611811I6
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UJn)J'Iu, IIt7ISANCII DSEMB1fT
aND
CC7VJ:NM'1'S mnorINC¡ wrrB 1U UoND
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. (hereinafter referred to a. -Qrantor-), ~or Y.l~le
· con.ideration, doe.' hereby GRANT to the COt7NTY or SAN ElI!IQO, a
, political' .w~cUvldon ot tb. ftate ot Califonli. (hveinafter
refe~. ~ _ -arant..·) - tJw cnmer of ~t r.al p¥oper1:y
'loeated in the COunty of San Dieqo, calitol111. known a. the ·ouy
LandtillW whioh i. aore particular~y cSe.cd~.d in ·¡:Kh~lt A·
·.hereto (her.iutter referred to a. the .Doainant Tan_ent·) and
Lt. suoe...or. in interaat to the Ðoainant Tan_ant, an &ASDœN'1'
(hereinafter reterred to .. -.uiaance .....ent-) over all that
real ~perty locatK in tha county of San Dleqo, CaU.tonlia
d..cr d in ·ZXJ¡lbit .. hereto (hereinafter retNTe4 to a. the
'. wservient ~t-).
~. ~.anc. þ....nt 1a tor the ua. an4 ~anafLt of Grant..
anc! ita s\lOO...ors in intere.t and iJIvited quut. ia the oonduet
of .0114 wa.te landtillinv oparationa em the Doainant ~ent,
· for the tr.. aad unol)atruøtacS pa...qe on, onto, in. thz'ouql1, and
acro.. the surtac. and aLre~oe ebove the ~taoe of the s.rvient
'l'ene.ant of tJw followlnv 12118 (bar.1nattu- ref.noelS ~ a. :
wN\, l.aJ\Ge %1:....),
. . dust' ..01..: vlbratlona: any anc:I all ahuJ.cals or particle.
auapended cpenanenuI or taporadly) in the &11' aJ\ct win4
Inclu4ag a"ft not u. te4 to ..than. ...: oc!œa, ~., fuel
particl.., ...g\a1b aDd other aoavenqv blrc!a and the
exoraaent cIropp1nc¡. therefroa, aM the W\~.t.%U~ pas.a;e
, belov the .urf.oa of l..chate anc! other pollutanta: and for
..=, evazy and aU .tf~. a. aay be cav..ect ~ or ~ult
. froll the ~etloD of . landf111 wlob 1a now ex1at~
" Or wbiah aay be ..va1opecS in t.be t\at\ln,
1:oqat!aar v1t:!a the oon~lDulav Z'19b~ 1:0 cau.a or .llow In all ot
auob 'e.n1en~ Tan_ant .uch ltuiaanoa Item.. it: bei1\9 understood
.aD4 .91'e" that Ora.atee, 01' It. nooa..or. ill 1rItars.t. 1ntaJ\c!a
'1:0 ....lop, aainta1a and axpancS the lan4t111 on tha a4~.oan~ .
· Ðoa1J\ant 'l'enaant 1n n= a "Mer ~at .ai4 lanc!t111 aJ\4 the
..._ent 9ftDtec! barein will 1M uae4 at all' U.e. 1n ooaapl1anoa
with all appl1CÙ11. .tata aIICS '.cSera! lav. anc1 the lavtul Qrien
If A ";12.
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of .tau uad P".ral _c¡enoi.. nqulat~ env1ro-.ntal f.~or.,
t.ox1c and,/or hazazoclou. va.u, and tbe opera~1cm of tbe l&114t111.
. Grantor, tor it..lt aM it. .uc:c:...ora aM a..1vn., do..
~erebf fully waive and "1.... any dpt or caua. of aotion wic:h
·~.Y or any of ~ ..y now bave or ..y bav. in tbe f~ure
_c¡a1n.t oran~, it. .\loce..or. .114 ".1;n., on aoooW\~ of or
.1'181"9 o~ ot .\IdI MYi.anoe ¡~ _re~roZ'e &lid b.r..t~U'
ða~ JÞr ~ operaUOII of _ landfill.
Grantor, for :Ltaelf u4 ita euoc:e.eora and ...19M,
. oovenant. and .F.... v1~ tbe 1aftISeZ'IItan41þt and intent ~t au"
pall rwI vitia ~. land, an« whi= &ball nn with ~a land, ~t
neith.r ~ay nor any of th_ will CIOIIIIIenca or aaintain a au1t,
action, vri~, arbitration, or other l.;al or equitabl. proceeding
aqatn.t Grant.. or it. .uooe..or. or ...ivn. wher.in the relief
eought U ~. ca...tion or l1aitation on the WI. Of the Ðollu.nt
~enaaant .. . lancltLll. Cll"antor, for 1t..lf anel it. aue_a.ora
and ...iqnlJ, oOŸenant. an4 .~..., with tbe uncIU'.~4~ ancI
intent tbet _uob aball Z'WI. v th tbe 1aN!, and vb10b Ãall Z'\m
·.with the lancSt that in the .vent that tlaay .1olat. th. aJ)ova
oovenanu of th. forAqo1nq aentanoa, they aball pay to Cr.nt.e
. au" attoJ:U.Y.' t... and. ooat. a. ..y M d.t.n~d t:o M
_a.ona1lla by a C:o~ ot ooape~t ;ur1.4i~1oD. %nqI¡1r1.. or
. zoequut. tor entoroea.nt aacSa tIy Grantor, it. .UClea..or. or
_819M to .tat. or l'e4enl .qanel.. with regulatory' authority
over the operation of lan4tllle aball not N oona14ara4 a
'violation of thLa ~_qrapA. .
Open 1:h. t.n1natlcm of __ ot the DOIIinant ~en_ent tor
landtill purpo..., (iD01\141n¡ oo.p1.ticm ot _~1v.·lan4ti11
~at10Nl and. .11 olo.ur. ancl po.t-c1oaure .œ1v1t1..), Grantor,
it. auc__on or ..819M aay NqU..t that Grante., it.
·.ucoa..ora or ...19M, through th. .pplic:abl. l.q.l trOOK\1r.,
v.oat. or tara1nat. thi. .....ant, Vh10b rac¡u..t vi1 not b.
',~aeo~ly witbe1e1.
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EXHIBIT ·E" I
Pre,"nnex"tion Dllvelopment Aarellment
PI,nnlna Are, A.....or Ownership Acre,ae
Percel Numbers
Olav Vallcv Parcel 644-C30-C7 SNMBLId. 134,25
0i2V Vallcv Parcel 644-C60-C7 SNMBLId. 159.18
Olav Vallev Parcel 6440060-C8 SNMBLtd. 80.00
Olav Vallev Parcel 6440060-C9 SNMBLtd. 80,00
0i2V ValJ,;V Parcel 644-060-10 SNMBLtd. 289.70
ÛI1Iv Vallev Parcel 6440060-12 SNMBLId. 82.20
ÛI1Iv Valle.. Parcel 644-C70-C8 SNMBLId. 313.28
Olav Vallev Parcel 645-C30-19 SNMBLId. 335.34
0i2V Vallev Parcel 646-C 10-C2 SNMBLId. 352.70
. 1,826.65 Tot,.
-.
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_ __'_'__~.M..·.'.." ..__..._...... _~~...._~_._
ORDINANCE NO. J. 7 PI
'i('\ \o~
AN ORDINANCE OF THE CITY OF CHULA VISTA .~'\) ¡>-'\P
ADOPTING THE RESTATED AND AMENDED ~-\"'-
ANNEXATION DEVELOPMENT AGREEMENT WITH J
OF CHARITY . ~ '
~~/
WHEREAS, on August 6, 1996, the~ty Council approved
Ordinance 2687 on first reading, which adopted the Pre-Annexation
Development Agreement between the City ofChula 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
~~~
George Krempl, Deputy city John M. Kaheny, City Attorney
Manager
c: \0,., jewels
o
.!ftl4 ø--r tIS ~ 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 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 subj ect 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 P~operty 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~. 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- J.rt/-:L
.
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, 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 benefit:s 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 ( "I.JlFCO") 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 Sahere 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 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 Citv Ordinance. , 199~7 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- 150'1/
.
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 "proj ect" 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- IR~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
jurisdiçtional 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 (DIP)" 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 Pee Program, the
Interim SR-125 Development Impact Fee Program, the Salt Creek Sewer
DIF and the Public Facilities DIP.
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- J 5'0-¿,
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 thé 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 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
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 ~ JaRaa~y 1, 1997, this Agreement
shall be null and void unless the annexation Droceedinqs have been
extended bv LAFCO. If the annexation Droceedinqs 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 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
for a period of twenty (20) years ("the Terin"). 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
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...-..".."-"-.
~-- -~
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 DeveloDer understands and aqrees that this
Aqreement shall become effective and valid only UDon the
Effective Date of the annexation Droceedinqs. as more fully
described in DaraqraDh 3 of this Aqreement. DeveloDer further
understands that as a condition Drecedent to the comDletion of
annexation Droceedinqs. and this Aqreement becominq effective.
certain DrODertv owners such as SNMB. Ltd.. are reauired to
Drovide certain easements and subordination aqreements
satisfactory to the Countv. DeveloDer aqrees that the City's
second readinq of the Ordinance aDDrovinq this Aqreement shall
not occur unless and until said subordination aqreements have
been acceDted bY the County. No terms of this Aqreement shall
be sub;ect to reneqotiation between the first and second
readinq of the ordinance aDDrovinq this Aqreement exceDt by
mutual consent of the Darties 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:
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.
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5.1. J 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
coromi tments of city are embodied in changes to the Development
Plan or the rules, regulations, ordinances, policies,
conditions, environmental regulations, phasing controls,
exactions, entitlements, assessments, and fees applicable to
and governing development of the Property, whether adopted
before or after the Effective Date, such changes shall be
deemed applicable to the Property without change to this
Agreement.
5.1.5 City shall diligently process any
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 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 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
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".....m~.___. ._-_..__.-..._-,-_..,.,.._._...._-_._---~.__.-
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 Existina Pro;ect
Approvals. It is contemplated by the parties to this
Agreement that the City and Developer may mutually seek and
agree to modifications to the Existing Project Approvals.
Such modifications are contemplated as within the scope of
this Agreement, and shall, upon written acceptance by all
parties, constitute for all purposes an Existing proj ect
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 Pro;ect.
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- IS P'" /(1
timing and location of development by tying the pace of development
to the provision of public facilities and improvements to conform
to the City's threshold standards." (Municipal Code Section
19.09.0l0A.7) The findings in support of the Growth Management
Ordinance conclude that the ordinance "does not affect the number
of houses which may be built... (Municipal Code section
19.09.010B.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 tò 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 SuMi vision 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
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.-.......-."
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 AareementCs\. 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 improv~ment
agreement a~d 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
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.
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 (Hi)
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 PublicPurDoses.
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.l00C 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
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uo._._....__.. __........____.·o.._.._.. '," ",_.,._.__,__~__
the Existing Project Approvals/Future Discretionary Approvals
and required to comply with a threshold are located on
properties which neither the Developer nor the city has, or
will have, title to or control of. The city shall identify
such property or properties and at the time of filing of the
final map commence timely negotiations or, where the property
is within the City's jurisdiction, commence timely proceedings
pursuant to Title 7 (commencing with S 1230.010) of Part 3 of
the Code of civil Procedure to acquire .an interest in the
property or properties. Developer's share of the cost
involved in any such acquisition shall be based on its
proportionate share of the public facility as defined in the
Existing Project Approvals/Future Discretionary Approvals.
Nothing in this Agreement shall be deemed to preclude the city
from requiring the Developer to pay the cost of acquiring such
off-site land. For that portion of the cost beyond the
Developer's fair share responsibility, the City shall take all
reasonable steps to establish a procedure whereby the develop-
er is reimbursed for such costs beyond its fair share.
7.3.2 Information 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. 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 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
-13- ISO-I'I
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 DeveloDment ImDact Fee Proaram PaYments.
Developer shall pay to the city a DIF, or construct improvements in
lieu of payment, for improvements which are conditions of a
tentative subdivision map upon the issuance of building permits{s),
or at a later time as specifi~d 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
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 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.
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__ __ ._,__ _'.._,__ ___,__m. , ~__ ........,..-".-------...
8.5 Development Impact Fee Credit. Upon the completion
and acceptance by the City of any public facility, the City shall
immediately credit Developer with the appropriate amount of cash
credits ("EDUs") as determined by Developer and City. However, if
the improvements are paid for through an Assessment District, the
City shall credit the Developer with the appropriate number of
Equivalent Dwelling unit Credits (EDU's). Developer shall be
entitled to apply any and all credits accrued pursuant to this
subsection toward the required payment of future DIF for any phase,
stage or increment of development of the Project.
8.6 Modification of Development Impact Fees. The
parties recognize that from time to time during the duration of the
Agreement it will be necessary for the city to update and modify
its DIF fees. Such reasonable modifications are contemplated by
the City and the Developer and shall not constitute a modification
to the Agreement so long as: (i) the modification incorporates the
reasonable costs of providing facilities identified in the Existing
Project Approvals; (ii) are based upon methodologies in substantial
compliance with the methodology contained in the existing DIF
programs; or other methodology approved by the City Council
following a public hearing; (iii) complies with the provisions of
Government Code sections 66000-66009.
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 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.
-16- 158-/7
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 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.
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-IFr
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- ISP-/f
_ -- -----.,---...--...--
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 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: 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
subj ect 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
-19- /50-.211
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 Commúnities Conservation Act (NCCPI. The
parties recognize that Developer and the city are individually
negotiating agreements with the united states Fish and wildlife
Service ("USF&W") and the California Department of Fish and Game
pursuant to the ongoing regional effort to implement the Natural
Communities Conservation Act ("NCCP"), locally proposed to be
implemented through the Multi-species Conservation Program
("MSCP"). The parties further recognize that implementation of the
agreements may necessitate modification to the Existing Project
Þ.pprovals. 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 requèst 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- Ifp'~1
-....--.----...--.-
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 Relationshic 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
Wilmin9ton, 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- 15'8-~~
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 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 subj ect . to the
obligations of Owner set forth in this Agreement.
16.7 Incorcoration 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
-22- 15'(J*'J,'
_....n ---"------...------- .
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 Qperatina 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 fr.om 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- ~(J 'J.f
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
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".Jf
__...._,___..,_ __'_··..····_··_···_____n_
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- /S'g-.¿e"
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- J5P"'~,
.__.,_..~..,..._._-
,
EXHIBIT A
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ClY OF
CHUIA VISTA
PLANNING DEPARTMENT
STEPHEN AND MARY BIRCH FOUNDATION 7/3JÇ6
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EXHIBIT .·C· I
Pre-annexlltion Development Aareement
Planning Araa Assessor Ownership Acreaae
Parcel Numbers
Ranch House S9S~90~S Stephen It Marv Birch . 71.S6
Ranch House S9S~90-% Stephen It Marv Bin:h 0.22
Ranch House S9S~9().{)8 Stcohcn It Marv Bin:h 96.2S
168.03 Total
J5'lJ-;lP
ORDINANCE NO. ~ ?d ~ O~
f(~~
AN ORDINANCE OF THE CITY O~~ VISTA
ADOPTING THE RESTATED AND NDED PRE-
ANNEXATION DEVELOPMENT AGRE~ WITH STEPHEN
AND MARY BIRCH FOUNDATION ~ .
~<:;).
~9
WHEREAS, on August ~ 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.-~a ~
John M. Kaheny, City Attorney
Manager
c: \or\blrch
.~~~C-/
..._"'..
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 subject to this
Agreement (hereinafter collectively referred to as "Owner" or as
"Developer") are as follows:
1.1.1 Foundation is the owner of approximately
168 acres of undeveloped real property ("the Foundation
Property") in the unincorporated area of the County, described
in Exhibits "A" and "C", attached hereto and incorporated
herein by this reference.
1.1.2 The Foundation property ("Property" ) is
part of a larger area commonly known, and referred to herein,
as "the otay Valley Parcel of Otay Ranch."
1.2 ~. The City of Chula vista is a municipal
corporation with Charter city powers incorporated within the
County.
1.3 Code Authorization and 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- ~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
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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 liThe Otay Parcel", Planning Area 2
"Inverted L" and the Mary Patrick Estate Parcel (see Attachment
"B") .
1.5 SDhere 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 lithe 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 (lithe 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. , 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.
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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 seg.
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 . 1.3 . 1. 1 All discretionary permits required of
the Developer have been obtained for construction of the
public facility;
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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 (Le. , 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· def ined 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.
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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.
3. :!%EM . 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 ~ 3aBaary 1, 1997, this Agreement
shall be null and void unless the annexation nroceedinas have been
extended bv LAFCO. If the annexation nroceedinas have been
extended. this Aareement shall become effective unon the effective
date of such Annexation: nrovided 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
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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 aarees that this
Aareement shall become effective and valid only upon the
Effective Date of the annexation proOeedinas. as more fullY
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 property owners such as SNMB. Ltd.. are reauired to
provide certain easements and subordination aareements
satisfactory to the County. Developer aarees that the City's
second readina of the Ordinance approvina this Aareement shall
not occur unless and until said subordination aareements have
been accepted bv the County. 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. 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 Existinq Project Approvals, subject to the following
requests for modifications if approved by the City:
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5.1.1 If the interchange improvements at otay
Valley Road and I-80S are needed to serve the Project, the
City will hold appropriate hearings to consider an amendment
to its Transportation Phasing Plan (TPP) and Development
Impact Fee (DIF) Program to include said improvements as may
be deemed appropriate by the City to accommodate the project
phasing. The City agrees to reasonably cooperate and work
with CALTRANS to complete plans for said interchange improve-
ment.
5. 1. 2 ci ty shall initiate contact and diligently
. pursue discussions with the County of San Diego and the City
of San Diego to determine the number, scheduling and financing
of the otay River road and bridge crossings.
5.1.3 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
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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 proj ect 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 rèquire 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
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.
(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
19.09.0l0A~7) The findings in support of the Growth Management
Ordinance conclude that the ordinance "does not affect the number
of houses which may be built. " (Municipal Code section
19.09.0l0B.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 Vestina. 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 Vestina 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 processina 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
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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
maý do so by obtaining a grading and/or other required approvals
from the City which are authorized by the City prior to recordation
of a final map. Such permit shall be issued to Developer, or its
contractor, upon Developer's application, approval, and provided
Developer posts a bond or other reasonably adequate security
required by city in an amount to assure the rehabilitation of the
land if the applicable final map does not record.
6.4 Final Maps.
6.4.1 "A" Maps and "B" Maps. If Developer so
elects, the City shall accept and process a master subdivision
or parcel map ("A" Map) showing "Super Block" lots and
backbone street dedications. "Super Block" lots shall be
consistent with the GDP and subsequent Sectional Plan Area
plans, and shall not subdivide land into individual single-
family lots. All "Super Blocks" created shall have access to
dedicated public streets. The city shall not require improve-
ment plans in order to record a final map for any "A" Map
lots, but the city shall require bonding for the completion of
backbone facilities prior to recording in an amount to be
determined by the city. Following the approval by city of any
final map for an "A" Map lot and its recordation, Developer
may convey the "Super Block" lot. The buyer of a "Super
Block" lot shall then process final improvement plans and
grading plans and a final map ("B" Map) for each "Super Block"
lot which the City shall process. The "B" Maps shall be in
substantial conformance with the related approved "A" Map. In
the instance of the multi-family dwelling unit areas, a
separate tentative subdivision map may be submitted to the
City and the "B" Map(s) for these areas may be submitted to
the City after the city Planning commission approves said
tentative subdivision map.
6.4.2 Recordation of Final Subdivision Map in
Name of Builder or Third 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
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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
subdivision improvement agreement(s) and Developer's security
shall be released.
6.4.4 Transfer of Riqhts and Obliqations 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 PublicPurDoses.
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.
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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 ~ccordance 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 'rhreshold 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 S 1230.010) of Part 3 of
the Code of civil Procedure to acquire an interest in the
property or properties. Developer's share of the cost
involved in any such acquisition shall be based on its
proportionate share of the public facility as defined in the
Existing Project Approvals/Future Discretionary Approvals.
Nothing in this Agreement shall be deemed to preclude the City
from requiring the Developer to pay the cost of acquiring such
off-site land. For that portion of the cost beyond the
Developer's fair share responsibility, the city shall take all
reasonable steps to establish a procedure whereby the develop-
er is reimbursed for such costs beyond its fair share.
7.3.2 Information Reqardinq Thresholds. Upon
Developer's written requests of the city Manager, the city
will provide Developer with information regarding the current
status of a Threshold. Developer shall be responsible for any
staff costs incurred in providing said written response.
7.4 ImDrovements Reauired bv a Subdivision MaD. Asmay
be required pursuant to the terms of a subdivision map, it shall be
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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. Catlacitv. 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
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.
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'"_·___M"'···_···__·__·_·
8.1 Existina DeveloDment ImDact Fee Proaram PaYments.
Developer shall pay to the city a DIF, or construct improvements in
lieu of payment, for improvements which are conditions of a
tentative subdivision map upon the issuance of building permits(s),
or at a later time as specified by city ordinance, the Subdivision
Map Act, or Public Facility Financing Plan (PFFP). The DIF will be
in the amount in effect at the time payment is made and may only be
increased pursuant to section 8.6 herein.
8.2 Other UndeveloDed ProDerties. 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 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
ci ty shall credit the Developer with the appropriate number of
Equivalent Dwelling Unit Credits (EDU's). Developer shall be
enti tIed 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 CaDacitv. 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 ResDonsibilities. City will, at
least every twelve (12) months during the Term of this Agreement,
pursuant to California Government Code 565865.1, 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
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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 UDon Default.
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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 UDon 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 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.
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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
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
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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.
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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 múdifications 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
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- I.5'C-.u.
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 Relationship of city and OWner. The contractual
relationship between city and OWner arising out of this Agreement
is one of independent contractor and not agency. This Agreement
does not create any third-party beneficiary rights.
16.3 Notices. All notices, demands, and correspondence
required or permitted by this Agreement shall be in writing and
delivered in person, or mailed by first-class or certified mail,
postage prepaid, addressed as follows:
If to city, to: City of Chula Vista
276 Fourth Avenue
Chula Vista, CA 91910
Attention: City Manager
If to Owner, to: 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.
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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 Incorcoration of Recitals. The recitals set forth
in Paragraph 1 of this Agreement are part of this Agreement. .
16.8 CaDtions. 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 CooDeration. 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- /rc -:J. 'I
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 r&ceive 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 Oceratina 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 app~opriate 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
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-----_._----_._~.__._---- -----..----- - ~-,_._- -..-.---, --.
considered minor or insubstantial by the City Manager and made
without amending this Agreement.
16.17 Estot:>Del 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 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- /~C-~"
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- 1f'~øÞ~'
.....-......,.....--........
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-.a.r
. . ,
. , EXHIBIT A
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PlANNING DEPARTMENT
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EXHIBIT ·C· I
Pre-annexation Development Aareement
Planning Area Assessor Ownership Acreaae
Parcel Numbers
Otay Valley Parcel 644~80·10 Jewels of Charity 315.17
Olav Valley Parcel 644~90~3 Jewels of Charity 160.00
475.17 Total
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ORDINANCE NO. ~ '1":1 r\'O~
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AN ORDINANCE OF THE CITY OF CHULA VIS't<;)
ADOPTING THE RESTATED AND AMENDED ~ -
ANNEXATION DEVELOPMENT AGREEMENT WITH ~ ORY
T. SMITH AND GEORGIANA R. SMITH <¿.<:)
O~<::)
WHEREAS, on July 16, 1996, the ~ty 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
~ -wv.9<~ ~
George Krempl, Deputy City John M. Kaheny, city Attorney
Manager
C:\or\..i'th
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.____..u.~._._..'___
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 subject to this
Agreement (hereinafter collectively referred to as "Owner" or as
"Developer" ) are as follows:
1.1.1 Smiths are the owners of approximately 330
acres of undeveloped real property in the unincorporated area
of the County of San Diego ("County") , described in Exhibit
"A" (county Assessor Parcels #585-150-01 and #595-050-03),
attached hereto and incorporated herein by this reference.
1.2 ~. The City of Chula Vista is a municipal
corporation and an incorporated city within the County.
1.3 Code Authorization and 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.
-1-1Jþ_J.
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 publ ic 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
._--,. -----_.---,~--- ",.. -~-- _.~-_.~-_..._...- ..~-
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 SDhere 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 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 smiths' Properties.
1. 7 Owner Consent. city desires to have the cooperation
and consent of Owner to include the Property in the Annexation in
order to better plan, finance, construct and maintain the infra-
structure for the Otay Valley Parcel; and the smiths' desire to
give their cooperation and consent, provided that they obtain
certain assurances, as set forth in this Agreement.
1.8. City Ordinance. 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-If
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- I5'P':.S'
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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 (Le. , 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 Qeveloper'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- IS]) ..¿
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. îEEH· 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 Jaft~ary 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- 1$;;7
--"_..__..._------'.-
for a period of twenty (20) years (lithe 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 Vallpy 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 DeveloDer understands and aarees that this
Aareement shall become effective and valid onlv UDon the
Effective Date of the annexation Droceedinas. as more fullv
described in DaraaraDh 3 of this Aareernent. DeveloDer further
understands that as a condition Drecedent to the comDletion of
annexation Droceedinas. and this Aareernent becomina effective.
certain DrODertv owners such as SNMB. Ltd.. are reauired to
Drovide certain easements and subordination aareements
satisfactorv to the Countv. 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.
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.
5.1 Existing Project Approvals.
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
-7- J5"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
Accrovals. 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 Accrovals. 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- 15p",
_.~---_..._._-_...- -- .-,,-....--,.-.,....p.--- --------...--..--
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
(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. city of Camarillo (1984) 27 Cal.3d 465, that the failure
of the parties to provide for the timing of development resulted in
a later-adopted initiative restricting the timing of development to
prevail over such parties' Agreement, it is the intention of the
parties to this Agreement to cure that deficiency by specifically
acknowledging that timing and phasing of development is completely
and exclusively governed by the Existing Project Approvals,
including the Chula Vista Growth Management Ordinance. The purpose
of the Chula Vista Growth Management Ordinance is to "control the
timing and location of development by tying the pace of development
to the provision of public facilities and improvements to conform
to the City's threshold standards." (Municipal Code Section
19.09.010A.7) The findings in support of the Growth Management
Ordinance conclude that the ordinance "does not affect the number
of houses which may be built." (Municipal Code Section
19.09.010B.3) Therefore, the parties acknowledge that the Chula
Vista Growth Management Ordinance completely occupies the topic of
development timing and phasing and expressly precludes the adoption
of housing caps, urban reserves or any other means by which the
rate of development may be controlled or regulated. The City
agrees that the Developer shall be entitled to, apply for and
receive all permits necessary for the development of property,
consistent with the Growth Management Ordinance, Existing Project
Approvals, Future Discretionary Approvals and this Agreement.
5.5 Benefi t of Vestina. 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 Vestina 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 processina of Future Discretionarv ADDrovals. City
will accept and diligently process development applications and
-9- 1$7)-j,
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 Lenath 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 sha 11 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 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 "An Map. In
the instance of the mUlti-family dwelling unit areas, a
separate tentative subdivision map may be submitted to the
City and the "B" Map(s) for these areas may be submitted to
the city after the City Planning commission approves said
tentative subdivision map.
-10- Ifp,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
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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.l00C 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 of the public facilities identified in
the Existing Project Approvals/Future Discretionary Approvals
and required to comply with a threshold are located on
properties which neither the Developer nor the city has, or
will have, title to or control of. The City shall identify
such property or properties and at the time of filing of the
final map commence timely negotiations or, where the property
is within the City's jurisdiction, commence timely proceedings
pursuant to Title 7 (commencing with S 1230.010) of Part 3 of
the Code of civil Procedure to acquire an interest in the
property or properties. Developer's share of the cost
involved in any such acquisition shall be based on its
proportionate share of the public facility as defined in the
Existing Project Approvals/Future Discretionary Approvals.
Nothing in this Agreement shall be deemed to preclude the city
from requiring the Developer to pay the cost of acquiring such
off-site land. For that portion of the cost beyond the
Developer's fair share responsibility, the city shall take all
reasonable steps to establish a procedure whereby the develop-
er is reimbursed for such costs beyond its fair share.
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-'"._._-~---- ______...._____._ _..__.____,__....~____._ ... ..___ ... .m._. .
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. 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 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 (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;
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(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 pl'aced by the City in a capital
facility fund account established pursuant to California Government
Code sections 66000-66009. The City shall expend such funds only
for the Projects described in the adopted fee program as may be
modified from time to time. The City will use its reasonable best
efforts to cause such Projects to be completed as soon as practica-
ble; however, the city shall not be obligated to use its general
funds for such Projects.
8.4 wi thholdinq of Permits. Developer agrees that city
shall have the right to withhold issuance of the building permit
for any structure or improvement on the Property unless and until
the DIF is paid for such structure or improvement.
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
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_~__"". "0 .__..______,.~._....__.____.____~__...__. -~_
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; (Ui) 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
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 CaDacitv. 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.
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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
fai th 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.
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--,_..- ----. ---_._"---_._.,'---._._-_.."--~--~-----~.._.+~_...__.-...-
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 UDonDefault.
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 ether FcmeElies a'k law eE" iR eE!\ii'ty
whish arc eeHsis~eRt with the pre.isisfts af this ^greemsßt are
availasle te eit:r aftå Ð\;ßer te fJaE'S\:le iß 'EftS e-.refl't! tRera is a
sreasa. In the event of a default bv either Dartv to this
Aareement. the Darties shall have the remedies of sDecific
Derformance. mandamus. iniunction and other eauitable remedies
without havina to first Drove there is an inadeauate remedv at
law. Neither Dartv shall have the remedv of monetarY damaaes
aaainst the other: Drovided. 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
other security device securing financing with respect to the
Property or its improvement.
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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, 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 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
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~-_._..._"- ....-...-..----.,--.,---
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 conclus~on 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 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
-19- 1.1'1/-J.4
will be conducted by the San Diego Mediation Center; if San
Diego Mediation Center is unable to conduct the mediation, the
parties shall submit the dispute for mediation to the Judicial
Arbitration and Mediation Service or similar organization and
make a good faith effort to resolve the dispute. The cost of
any such mediation shall be divided equally between the
Developer and city.
13.4 Natural Communities Conservation Act (NCCP). The
parties recognize that Developer and the City are individually
negotiating agreements with the United States Fish and wildlife
Service ("USF&W") and the California Department of Fish and Game
pursuant to the ongoing regional effort to implement the Natural
Communities Conservation Act ("NCCP"), locally proposed to be
implemented . through the Multi-Species Conservation Program
("MSCP"). The parties further recognize that implementation of the
agreements may necessitate modification to the Existing Project
Approvals. The parties agree to utilize their best efforts to
implement these agreements, once executed, through the timely
processing of modifications to the Existing Project Approvals as
they relate to the Property. The Developer agrees to pay the
reasonable city cost for processing work related to the modifica-
tions. Once such modifications are obtained they shall be vested
to the same extent as Existing Project Approvals.
14. DISTRICTS. PUBLIC FINANCING MECHANISMS.
This Agreement and the Existing Project Approvals recognize
that assessment districts, community facility districts, or other
public financing mechanisms, may be necessary to finance the cost
of public improvements borne by this Project. If Developer,
pursuant to the Existing Project Approvals/Future Discretionary
Approvals, is required to install improvements through the use of
assessment districts, community facility districts, or other public
financing mechanisms, the City shall initiate and conclude
appropriate proceedings for. the formation of such financing
district or funding mechanism, under applicable laws or ordinances.
Developer may request that the City utilize any other financing
methods which may become available under city laws or ordinances.
All costs associated with the consideration and formation of such
financing districts or funding mechanisms shall be paid by
Developer subject to reimbursement, as may be legally authorized
out of the proceeds of any financing district or funding mechanism.
15. ASSIGNMENT AND DELEGATION.
15.1 Assiqnment. Owner shall have the right to transfer
or assign its interest in the Property, in whole or in part,
to any persons, partnership, joint venture, firm, or corpora-
tion at any time during the Term of this Agreement without the
consent of City. Owner also shall have the right to assign or
transfer all or any portion of its interest or rights under
this Agreement to third parties acquiring an interest or
estate in the Property at any time during the Term of this
Agreement without the consent of City.
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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 toa 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 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: 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/".1)"
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 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; (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 (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 IncorDoration of Recitals. The recitals set forth
in Paragraph 1 of this Agreement are part of this Agreement.
16.8 caDtions. 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 CooDeration. 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.
.
-22- 15p.~
. _ .~.___.,.,_ _ __ _. ...._... .__.'H'__.__u ._,____u.. .. _.___,~__.._,_....._ ___ _.___._____...____.......
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 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 ODeratina 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
-23- 15l)-J.'f
"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 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 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 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- I5'D -~r
__.....__..u_._· _. . .___.._~. n ._.._..__.___~____.__ ~__
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.
1~1)-.a¿'
.-?I';-
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
-
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-26-
.- .,--------,.--.-.-... ---.--
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EXHIBIT A
C1Y Of
0iUIA VISTA
;;.yIANNING DEPARTMENT
~~~~n~v T ANn m=nRGIANA R. SMITH 1.5'1) ~ ,..,é1D6
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ORDINANCE NO. .17111/ f('\\o~
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AN ORDINANCE OF THE CITY OF CH~ VISTA
ADOPTING THE RESTATED ~~DED PRE-
ANNEXATION DEVELOPMENT AGRE . . WITH UNITED
ENTERPRISES ~~
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WHEREAS, on July 16, 1~6, 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 CA./'- ~~
John M. Kaheny, City ttorney
Manager
C:\or\un1tld.lnt
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---_._-..__._--"--~------_._~._......_._-_.-
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 Acknowledaements.
. 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 Dey.lo~.nt Agre...nt
d.£"..1
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 suppòrt to secure annexation of the lands depicted in
Exhibit "BII, 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 necessi ty. The phasing, timing, and
Pre-Annexation Develop.ent Agree..ot 2
154''' :J
-_._.~------_.. -.- .. .-.... -....--- _..._._------~_.
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
p9licies 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 liThe Otay Parcel ", Planning Area 2
"Inverted L" and the Mary Patrick Estate Parcel (see Attachment
"B") .
1.5 Sphere of Influence. A city application is pending
before LAFCO to have the Otay Valley Parcel included within City's
sphere of influence. On February 5, 1996 the Local Agency
Formation Commission approved the inclusion of approximately 7,600
acres into the City sphere of Influence (Sphere of Influence
Planning Area 2 and the norther two thirds of Planning Area 1), and
designated the Otay River Valley and Village 3 as special study
areas.
1. 6 Owner Consent. 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 city Ordinance. On , the City
Council adopted Ordinance No. approving this Agreement.
2. DEFINITIONS. In this Agreement, unless the context
otherwise requires:
Pre-Annexat1on Dev,lop..ot Ag.......ot 3
, I..rL~
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; (Hi) all
discretionary approvals affecting the Property which have been
approved or established by City in conjunction with, or preceding,
the Effective Date consisting of, but not limited to, the prezoning
of the Property to City's P-C Planned Community Zone, the otay
Ranch Reserve Fund Program adopted pursuant to City Resolution No.
18288, and the Chula Vista General Plan open space designation, all
as may be amended from time to time consistent with this Agreement;
and (iv) all laws, rules, regulation, policies, ordinances or
standards as of the Effective Date which do not conflict with this
Agreement.
2.8 "Final Map(s)" means any final subdivision map for
all or any portion of the Property, other than the Super Block
Final Maps (A Maps).
2.9 "Future Discretionary Approvals" means all permits
and approvals by City granted after the Effective Date and
excluding Existing Project Approvals, including, but not limited
to: (i) grading permits, (H) site plan reviews; (iH) 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 Develop'ent Agr....nt 4
I"I'L',
.._----_.._~.,--_._-,-------~_.-- ----
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" 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 parcel(s) of land or the amount of fees to
be paid and policies for the orderly conveyance of the Otay Ranch
land to a preserve owner manager. The purpose of the plan is to
fulfill the obligation to convey resource sensitive land and to
mitigate the environmental impact of development on sensitive
species.
2.13 "Project" means the physical development of the
private and public improvements on the Property as provided for in
the Existing Project Approvals and as may be authorized by the City
in Future Discretionary Approvals.
2.14 "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 "Term" of this Agreement means the period
defined in Paragraph 3, below.
2.20 "Threshold" means the facility thresholds set.forth
Pre·Annexation Develop.ent Agree.ent 5
I,£-¿'
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
(lithe Effective Date") ; provided, however, that if the Annexation
does not occur on or before Julv Jan~aFY 1, 1997, this Agreement
shall be null and void unless the annexation proceedinas have been
extended bv LAFCO. If . the annexation proceedinas have been
extended. this Aareement 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 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 J,. The Term of this Agreement for purposes other than
Paragraph J, shall begin upon the Effective Date, and shall continue
for a period of twenty (20) years (lithe 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 ånd 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, enti tlements, 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 havina an interest in property for which landfill
nuisance easements have been delivered to the County bv SNMB. Ltd..
aarees to execute subordination aareements. in a form acceptable to
the Countv. to ensure that such landfill nuisance easements have a
prioritv position over Developer's lien(s) . The subordination
aareements shall be delivered to the city prior to the second
readina of the Ordinance approvina this Aareement. Notwithstandina
the foreaoina. if said subordination aareement is not provided to
Pre-Annexation Dev.lo~.nt Agree..nt 6
15E· ')
__m_..__.__ "-.--........----......-.-...-.-.--.-..-.-.-.,----.----, ...--
the citv bv March 4. 1997. or if the Countv Board of Supervisors
does not accept or approve the landfill easements or the
subordination aqreement provided bY the Developer. this Aqreement
shall be automaticallv terminated with neither partv bearinq anv
liabilitv hereunder. If there is no second readinq of this
Aqreement. the citv shall return said subordination aqreements to
the Developer.
5. VESTED RIGHTS. Notwithstanding 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,
condi tions, environmental regulations, phasing controls, exactions,
enti tlements, assessments,. and fees applicable to and governing
development of the Property, whether adopted before or after the
Effective Date, such changes but only to the extent they are
necessitated by Owner's application or request, shall be deemed
applicable to the Property without change to this Agreement.
5.2 Development of Propertv. The development of the
Property will be governed by this Agreement and Existing Project
Pre-Annexation Develop..ot Agr....ot 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 1-805 or
within a specific benefit, fee or reimbursement district created
pursuant to the California Government Code.
5.2.1 New or Amended Rules. Requlations. policies.
Standards. Ordinances and Resolutions. 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 Agre..ent 8
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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. 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 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 Vestina. 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 Vestina 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 QeveloPlent Agree.ent 9
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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 processina 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 Lenath 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 ( 2 0) 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
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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 Mac in Name
of Builder or Third Partv. 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 Mac in
Owner's Name: Transfer of Obliaations Under Subdivision Imcrovement
Aareementls). 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 Riahts and Obliaations of
Develocment. 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 Obliaations 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.ant Agree.tnt 11
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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. 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 . city 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 Developaent Agreeaent 12
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7.3.2 Information Reoardino 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 Reouired 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. Capaci tv. 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 Pioneerino of Facilities. To the extent Owner
itself constructs (Le. , "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..ot Agree.eot 13
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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 (Ui) 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 Existina Development Impact Fee Proaram Payments.
Owner shall pay to City a DIF, or construct improvements in lieu of
payment, for improvements which are conditions of a tentative
subdivision map upon the issuance of building permit(s), or at a
later time as specified by City ordinance, the Subdivision Map Act,
or Public Facility Financing Plan (PFFP). The DIF will be in the
amount in effect at the time payment is made and may only be
increased pursuant to Paragraph 8.6 herein.
8.2 Other 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 Proaram. 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 withholdina 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 Develop..ot Agree.tnt 14
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8.6 Modification of DeveloDment ImDact 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 CaDacitv. City agrees to provide adequate
sewer capacity for the Project upon the payment of ordinary and
necessary sewer connection, capacity and/or service fees.
P,..·Annlxatlon Oey.lo~.nt Ag,.....nt 15
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10. ANNUAL REVIEW.
10.1 Citv and Owner ResDonsibilities. 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 Deve10pnnt Agr..~ent 16
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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 All et.A.Ðr re:meeliea a-e law e:r in ef!uì t.y
·.,,,~ftieft are eeßsia~eß-e ,.·i~h the pre"9-iaiaß6 af 'Ehie l..,reemeJ\'E are
a-Jailasle t.8 Sity aRd O·,x.."er ta parS\::1C in tÞle a-lent there is a
sreaea. 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 eaui table remedies
without havina to first prove there is an inadeauate remedv at law.
Neither nartv 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 Oeve1o~.nt Agr....nt 17
iff-II'
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;
P,..·Annexation Develop.ent Agreuent 18
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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 re~pect to the provisions of this
paragraph has not been resolved to the satisfaction of both parties
p,..·Annexation Develo~ent Agrenent 19
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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 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 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 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 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 Dlyelapaent Agre...nt 20
1.$&"'.2.1
- --..---..-.-....-.- ,.,'. ..-... -- .---_..~_...- . - . -----_.'.-
of the Effective Date, is Owner, which consent shall not be
unreasonably withheld, delayed, or conditioned. The entity that is
Owner as of the Effective Date, however, shall be entitled to amend
this Agreement without the written consent of such transferee.
16. MISCELLANEOUS PROVISIONS.
16.1- Bindinq Effect of Aqreement. Except to the extent
otherwise provided in this Agreement, the burdens of this Agreement
bind, and the benefits of this Agreement inure, to City's and
Owner's successors-in-interest and shall run with the land.
16.2 Relationship of city and Owner. The contractual
relationship between City and Owner arising out of this Agreement
is one of independent contractor and not agency. This Agreement
does not create any third-party beneficiary rights.
16.3 Notices. All notices, demands, and correspondence
required or permitted by this Agreement shall be in writing and
delivered in person, or mailed by first-class or certified mail,
postage prepaid, addressed as follows:
If to City, to: City of Chula vista
276 Fourth Avenue
Chula Vista, CA 91910
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 Dev.lo~.nt Agr....nt 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 IncorDoration of Recitals. The recitals set forth
in Paragraph 1 of this Agreement are part of this Agreement.
16.8 ca~tions. 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 CooDeration. 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 shail 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),
I judicial actions such as the issuance of restraining orders and
injunctions, riots, strikes, or damage to work in process by reason
Pre-Annexation Developllent Agre..ent 22
If£-.2~
_.._--,----,~_.- ..- --- ---------_._~-_._-----,,_....~._------
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. 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 ODeratina 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 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
Pre·Annexation Oeve1op..nt Agree.ant 23
Iff,.2¥'
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 Estot)'oel 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 Oe"eloPllent Agreuent 24
J5£-~5
__.__. ___n___._. ___.~...~._.._~_..__,_.,"__. _ "_'_",".___"'_
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 Developllent Agrenent 25
15£"J..J,
EXHIBIT A
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QUA VISTA
PLANNING DEPARTMENT
UNITED ENTERPRISES, LTD. MIII88
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COUNCIL AGENDA STATEMENT
ITEM 7
MEETING DATE 3/18/97
/ r~t7t?
ITEM TITLE: RESOLUTION Amending the Budget to include Contract Labor
Negotiation Services and Appropriating $10,000 from the
Unappropriated balance of the General Fund Reserve.
SUBMITTED BY: CITY MM<AGER( (4/5th Vote: Yes..x. No_)
SUMMARY:
The City will soon be conducting labor negotiations with the POA. In the past, the City has
generally used in-house management staff to conduct negotiations, with a senior staff
member as the chief negotiator.
DD
RECOMMENDATION: Adopt resolution ,¡c, Authorizing the City Manager to enter
into contract and appropriating $10,000 for labor negotiations services.
BOARD/COMMISSION RECOMMENDATION: N/A
DISCUSSION:
The recommendation to hire a professional negotiator for upcoming negotiations with POA
is based on several factors:
1. Because of recent budget cutbacks, staff no longer has the time (potentially a two
month period) to conduct these negotiations without dropping other top priority projects
such as Metro Sewer issues, Computer Aided Dispatch, the trash agreement with the
County and Utility Deregulation, just to name a few.
2. In recent years, negotiations with POA have gone to impasse, thereby diminishing the
credibility of staff negotiators. It is staff's opinion that an outside negotiator may be in
a better position to effectively negotiate an agreement with POA.
3. An outside negotiator would be viewed as "neutral" compared to potential staff
negotiators and yet, at the same time, they would have experience negotiating with
similar unions in other agencies.
4. An outside negotiator would add balance to the "table" since POA uses an attorney as
chief negotiator.
1 7~/
~..~--._._-"--,~._".,. --..-.
ITEM 7
MEETING DATE.3 -18 - 91
5. It is anticipated that an outside negotiator could devote sufficient time to the process
to conclude in a timely manner, thereby eliminating frustration tied to delays.
FISCAL IMPACT: Fiscal impact will depend upon the number of hours spent in the
negotiation process. It is anticipated that the ultimate cost will not exceed the requested
$10,000.
?- ;¿,
2
. -..._.....-".__.._~~-.-.-------
RESOLUTION NO. /fr¿t/tJ
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA AMENDING THE BUDGET TO INCLUDE
CONTRACT LABOR NEGOTIATIONS SERVICES AND
APPROPRIATING $10,000 FROM THE UNAPPROPRIATED
BALANCE OF THE GENERAL FUND RESERVE
WHEREAS, the city will soon be conducting labor
negotiations with the Police Officers Association (POA)¡ and
WHEREAS, in the past, the City has generally used in-
house management staff to conduct negotiations, with a senior staff
member as the chief negotiator¡ and
WHEREAS, based on the following factors, it is
recommended that a professional negotiator be hired to conduct the
upcoming negotiations with the POA:
l. Because of recent budget cutbacks, staff no longer
has the time (potentially a two month period) to
conduct these negotiations without dropping other
top priority projects such as Metro Sewer issues,
Computer Aided Dispatch, the trash agreement with
the County and utility Deregulation.
2. In recent years, negotiations with POA have gone to
impasse, thereby diminishing the credibility of
staff negotiators. It is staff's opinion that an
outside negotiator may be in a better position to
effectively negotiate an agreement with POA.
3. An outside negotiator would be viewed as "neutral"
since they would have no history with POA. Yet, at
the same time, they would have experience
negotiating with similar unions in other agencies.
4. An outside negotiator would add balance to the
"table" since POA uses an attorney as chief
negotiator.
5. It is anticipated that an outside negotiator could
devote sufficient time to the process to conclude
in a timely manner, thereby eliminating frustration
tied to delays.
NOW, THEREFORE, BE IT RESOLVED the city Council of the
city of Chula vista does hereby amend the budget to include
contract labor negotiations services and appropriate $10,000 from
the unappropriated balance of the General Fund Reserve to Account
0730-520l.
7-3
. .__..,_._---_._,.._._._.~..- - ..-_........_.- ,....-,----------.--.... , -"'..-.------
BE IT FURTHER RESOLVED that the City Manager, or his
designee, is hereby authorized to enter into an agreement with the
contract labor negotiator, in an amount not to exceed $10,000, on
a form approved by the City Attorney, a copy of which shall be kept
on file with the City Clerk as Document No. .
Presented by Approved as to form by
0~~Þ
John D. GoSS, City Manager John M. Kaheny, city Kttorney
c: \re\!abor. poa
1---7
~._--.._._...__.._-_._,--- --- ---.-------- --.....-..--.
COUNCIL AGENDA STATEMENT
Item ~
Meeting Date 3/18/97
ITEM TITLE: Resolution 1f5~tJ/ Conceptually approving the marketing of City
properties for use by telecommunications companies.
SUBMlTn£D BY: Director of Planning ~
Principal Management Assistant Y oun~
REVIEWED BY: City Manager9 (4/5ths Vote: Yes_ NoX)
As cellular and Personal Communication Services (PCS) companies look to expand their
infrastructure and provide more reliable coverage, there is a need to place additional antennas and
other facilities throughout their service areas. In the interest of facilitating these actions and
making effective use of available city properties, staff has been working with a number of
communications companies on potential licenses/CUPs to allow use of city-owned properties.
Prior to negotiation of any such licenses (each of which would be subject to Council approval),
staff is seeking Council's general direction to proceed.
RECOMMENDATION: That Council approve the resolution conceptually approving the
marketing of City properties for use by telecommunications companies.
BOARD/COMMISSION RECOMMENDATIONS:
Not applicable at this time. Depending on specific proposals received from wireless
communication providers, the Resource Conservation Commission, Design Review Committee
and/or Planning Commission may become involved in the future on a case by case basis.
BACKGROUND:
Typically, when a cellular or PCS company has an interest in placing an antenna in an area, their
engineers evaluate topography, proximity of existing antennas and gaps in their existing coverage.
When a likely site has been identified, they negotiate with the property owner, and depending on
the nature of the use, work with the City to process a Conditional Use Permit (CUP). If the
company is looking to locate a number of antennas in the same city, the CUP processing can be
done concurrently to facilitate more timely approval. If the property owners are all the same (e.g.
the City), this can also speed up the companies' processing as the property negotiations can also
be consolidated. It is in this vein that staff has carried on preliminary discussions with local
wireless communication providers. This concept was initially reported to Council as part of both
the FiscalIFinancial and Land Use sections of the citywide priority-setting document forwarded
in December/January and is being brought forward now for a more detailed discussion.
Properly structured, the recommended marketing and negotiations of telecommunications uses on
City property can lead to I) a quicker installation schedule for the companies, 2) effective and
coordinated protection of local zoning and design considerations, including co-location of
8-/
------_..._.~---""._..._._-
Item # ~
March 18, 1997, Page 2
different companies' facilities where technologically feasible, and 3) additional revenues or in-
kind services for the City.
DISCUSSION:
Over the past several months, staff has been in discussions with several telecommunications
companies about their facility needs within the City and their interest in placing facilities on City-
owned properties. At the same time, staff has been investigating zoning/land-use procedures used
by other municipalities and developing the draft documents required to allow for a Master Site
License and Master Conditional Use Permit. Formal adoption of these new procedures would
require a Municipal Code amendment, which would be brought forward following tonight's
conceptual approval to proceed.
Master Site License
A Master Site License (similar to a lease) would set forth the terms of a company's use of any
city property. These would include: compensation, indemnity, co-location with other providers,
non-interference with City frequencies, maintenance, and vacation of premises upon termination
of the license. These same terms would then apply to all subsequent placements by that
company.
Under this scenario, a company needing to locate three antennas in Chula Vista could apply for
a Master Site License and appropriate CUPs, all of which could be processed simultaneously.
If the antennas were to be "architecturally integrated" into an existing facility, thus not impacting
design or views, they could be approved administratively. If they would involve monopoles or
other "non-stealth" placements, they would be subject to consideration by CounciL These CUPs
and the Master Site License would be brought forward to Council as a single agenda item.
In the future, if the company were interested in additional sites on City property, the original
MSL would govern all the terms and conditions of that placement. These new sites would simply
be added as a codicil or administrative amendment to that license. The CUP for the new site
would either be brought to Councilor processed administratively, again depending on whether
facility would be architecturally integrated.
Use of Specific Citv Properties
Based on recent interest shown by various communications companies in locating additional
facilities within the City limits, staff felt that this would be an appropriate time to approach
Council regarding the marketing of City property.
One recent request demonstrated the need for a coordinated policy. This involved a proposed
antenna placement on the South Chula Vista Library. Staff has been in contact with all City
departments to insure that: I) all such proposals are brought to the attention of Administration
[5~ cJ-.
_...._" "...._'_._____________. .__.___... ,._._..__M_·__'~_.____·_·,_·_ __ __.._
Item # 8
March 18, 1997, Page 3
and Planning, and 2) any properties that would be considered "off-limits" to communication
placements be identified up front. Based on the input received, staff was able to develop a GIS
map showing all available city properties for consideration by communication providers.
Although the South Chula Vista Library is included on that map, the Library Director has made
clear his concerns about the placement of any visible antennas on the building itself. Other areas,
such as open space, may be prime locations for communication facilities so long as landscaping
and other criteria can be met.
As discussed above, even after the approval of an MSL, each site would be subject to a CUP.
This would allow for consideration of any site-specific concerns or additional conditions on the
property's use.
Suggested Terms
Although each company's MSL would be negotiated separately, staff has evaluated some baseline
terms under which such licenses might be considered. These would include: monthly
compensation for the use of each site, payment of any costs associated with their occupancy,
landscaping/design work as needed to screen the installation or restore any areas disturbed by the
installation, and potential other in-kind compensation.
Conditional Use Permits
As part of the process of selecting City-owned sites as locations for wireless communications
providers, City-initiated Master Conditional Use Permits could be processed for several City-
owned properties. This would provide a means for the Council to consider the desirability of
allowing multiple companies to co-locate communication facilities on each such site and defining
the standards each provider would have to meet in order to locate there. For example, a Master
Conditional Use Permit could be processed for fire training tower. The process would include
a public forum and consideration by the Resource Conservation and Planning Commission prior
to it coming before the City CounciL Standards would be defined, such as the height of any
antennas, architectural integration, landscaping, colors, total number of providers who can co-
locate on-site, etc. As long as the provider agreed to remain within the limitations of the Master
CUP, and had or obtained a master site license, their only requirement would be to pull a
building permit. By handling the land use issues up front via a master CUP, the City would thus
be able to facilitate consolidated antenna locations, effectively market city-owned properties, and
considerably reduce the companies' approval timelines.
FISCAL IMP ACT
Compensation for licensed properties would vary, but would generally include a fee in the range
of$700-$2,000 per month (depending on alternate site availability, topography, etc.) and potential
in-kind contributions (e.g. communications equipment/services provided for City use).
c:\\sitemktc.l13
2"-- ..J
_..._--,-.-. ^ _._~--_.,-- ,-~----_.~---~-_._...._.-._.."..~-
RESOLUTION NO. / g' ~tfJ/
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA CONCEPTUALLY APPROVING THE
MARKETING OF CITY PROPERTIES FOR USE BY
TELECOMMUNICATIONS COMPANIES
WHEREAS, as cellular and Personal Communication Services
(PCS) companies look to expand their infrastructure and provide
more reliable coverage, there is a need to place additional
antennas and other facilities throughout their service areas; and
WHEREAS, in the interest of facilitating these actions
and making effective use of available city properties, city staff
has been working with a number of communications companies on
potential licenses/CUPs to allow use of city-owned properties; and
WHEREAS, prior to negotiation of any such licenses (each
of which would be subject to council approval), staff is seeking
Council's general direction to proceed.
NOW, THEREFORE, BE IT RESOLVED the city Council of the
City of Chula vista does hereby conceptually approve the marketing
of city properties for use by telecommunications companies.
Presented by Approved as to form by
Robert A. Leiter, Director of city Atto y
Planning
C:\ra\pC8
?5~f
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COUNCIL AGENDA STATEMENT
Item~
Meeting Date 3/18/97
ITEM TITLE: .A~ Resolution / ?tt7...2Approving Change Order No.4 for the "Improvement
of Assessment District No. 90-2 (Otay Valley Road, Phases II and III) in the
City of Chula Vista, California (ST -123)" project, and authorizing the
Director of Public Works to execute it on behalf of the City.
lJ_ Resolution / Y¿'03Waiving Bidding Process and Authorizing the City
Manager to enter into a contract with Pacific Southwest Biological Services
for a cowbird trapping program.
SUBMITfED BY: D;rect" ofPublio wo""~
REVIEWED BY: City Manager0~ ~ .-.--'7 (4/5ths Vote: Yes _ NoX)
On June 7, 1994, the City Council by Resolution No. 17518 awarded a contract in the amount of
$2,374,136.70 to Signs & Pinnick, Inc., for the construction of the Otay Valley Road Phases II & III
Widening Project (ST-123). Tlús project was financed via the formation of Assessment District No.
90-2.
The street work for this project was completed in August, 1996. Included within the Construction
contract were State Fish and Game required wetland mitigation work. When the contract was
awarded a site in the Otay River basin was proposed to be used for the Mitigation. This site was
subsequently found to have contaminated ground water and certain of the bid items could not be
completed. Staff is now pursuing alternative approaches to satisfYing the City's wetland mitigation
obligations. This change order (contract Change Order Number 4) is to delete wetland mitigation
bid items associated with the original contract. However, pursuant to conditions of the Federal
Endangered Species Permit and the State Endangered Species Permit for the project, a cowbird
trapping program is required for 5 years to maintain the validity of the permit (Three years remain
on this requirement.) That program was originally a part of the environmental mitigation bid item,
but was not a separate bid item and the work could not easily be broken out. In order to expedite
the work and save the contractors markup on subcontractors work a new contract must be entered
into for the trapping program. Some of the funds saved by this change order will need to be used for
the cowbird trapping program. Change order No.4 would reduce the contract with Signs & Pinnick,
Inc. by $166,990.00. Pacific Southwest Biological Services has been performing the trapping
program under contract with Signs & Pinnick for the past 2 years. The new contract with Pacific
Southwest Biological SelVices is estimated to cost $42,650 over the three year compliance period.
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Page 2, Item
Meeting Date 3/18/97
RECOMMENDATION: That Council adopt the Resolutions (1) approving change order No.
4, reducing the contract with Signs & Pinnick, Inc. by $166,990, and authorizing the Director of
Public Works to execute it on behalf of the City; and (2) waiving the bidding process and approving
use of $42,650 of the change order savings for contract with PSBS for a 3 year cowbird trapping
program.
BOARDS/COMMISSIONS RECOMMENDATION: Not applicable.
DISCUSSION: The Street work for this project was completed in August, 1996. The final
Contract work for this project is for State Fish and Game required mitigation. The contract required
the contractor to Perform the following work:
1. " Development of wetland mitigation" (bid item No. 62 );
2. Completion of a five-year "RevegetationIPlant Establishment Period" (bid item No. 60 ); and
3. Compliance with the various permits obtained by the City and listed below ("Permits" bid
item No. 57).
A. 404 Permit from the Corps of Engineers.
B. Stream or Lake Alteration ITom the California Department ofFish and Game.
C. Fish and Wildlife Permit ITom the U.S. Department of the Interior.
D. 2081 Permit ITom California Department ofFish and Game.
E. Discharge of Storm Water/State Water Resources Control Board (SWPPP).
As indicated above, when the Signs & Pinnick contract was awarded, a specific mitigation site in the
Otay River basin was proposed to be acquired and improved as project mitigation. However, that
site was found to have contaminated ground water and could not be used. Therefore, the purchase
of the land was never completed. Since that time a new approach to environmental mitigation is in
the process of being set up which may allow us to purchase mitigation credits in lieu of purchasing
and improving the mitigation land as originally anticipated.
Approval of the Change order No.4 would eliminate the mitigation work covered by the bid items
mentioned above. This change order will officially release the contractor ITom these requirements
and will permit the closure of the contract. The net effect of this change order, which has been
approved by the contractor, will reduce the contract with Signs and Pinnick by $166,990.00 as
follows:
Bid Item No. DescriDtion Reduction
57 Permits $ 23,800.00
60 Revegetation and plant establishment $ 35,190.00
62 Wetland Mitigation site Development $108.000.00
Total Deduction $166,990.00
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Page 3, Item
Meeting Date 3/18/97
However, certain conditions of the Federal Endangered Species Permit and the State Endangered
Species Pennit still need to be complied with. Specifically, these include a cowbird trapping program
and either purchasing land and improving it for a mitigation site or purchasing mitigation credits
under the proposed new program.
The cowbird trapping program, which is required to extend 5 years (1994-1999), needs to be
continued to maintain the validity of the environmental permits. The total costs to complete the
program for the three years from 1997 to 1999 is $42,560. This will be paid directly to the
subcontractor (pacific Southwest Biological Services) out of the Change Order savings. A waiver
of the need to obtain competitive bids is being sought in this instance for two specific reasons. First,
the subcontractor was originally selected as a part of the contractor team through a competitive bid
process. Second, and most importantly, the cowbird trapping program is seasonal and traps must be
in place by mid-March, pursuant to the conditions of the Federal Endangered Species Permit and the
State Endangered Species Permit for the project. The subcontractor has demonstrated their
qualifications and ability to complete the work through their prior perfonnance of the work (the first
two years). City staffhas been satisfied with their work. The subcontractor currently possesses the
traps, which are constructed in accordance with Federal and State standards, necessary to carry out
the work. The subcontractor has an existing relationship with staff of the California Department of
Fish and Game and the U.S. Fish and Wildlife Service. Under these circumstances, competitive
bidding is not practical. It is recommended that the City Manager, or his designee, be authorized to
enter into a contract with Pacific Southwest Biological Services in the amount of $42,650.
The contract with PSBS (attached) is on the City's standard two-party fonn.
In addition, when details of the proposed acquisition of a new mitigation site or purchase of
mitigation credits is worked out staff will return with the details for Council approval. This work,
as indicated above, was originally contemplated to be part of the overall project costs. Staff cannot
provide any estimate of the costs at this time.
FISCAL IMPACT: This change order will decrease the contract amount by $166,990.00. The final
construction contract cost with Signs & Pinnick, Inc, therefore, amounts to $2,419,456.85 including
change orders 1-3. The cost of the remaining three years of the cowbird trapping program amounts
to $42,650. This will reduce the amount saved on the Signs & Pinnick contract by that amount. The
net savings after subtracting the costs of the cowbird trapping program would be $124,430.
In addition, there will be additional costs to purchase mitigation credits. Costs for the purchase of
these credits have not yet been established, but are anticipated to be less than the costs associated
with purchasing, improving and maintaining mitigation land.
H:\HOME\ENGINEER\AGENDA\CHNGORD.OVR
March 13, t997 (3:21pm)
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RESOLUTION NO. /~¿él;2
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING CHANGE ORDER NO. 4 FOR
THE "IMPROVEMENT OF ASSESSMENT DISTRICT NO.
90-2 (OTAY VALLEY ROAD, PHASE II AND III) IN
THE CITY OF CHULA VISTA, CALIFORNIA (ST-123)"
PROJECT AND AUTHORIZING THE DIRECTOR OF PUBLIC
WORKS TO EXECUTE IT ON BEHALF OF THE CITY
WHEREAS, on June 7, 1994, the City Council by Resolution
No. 17518 awarded a contract in the amount of $2,374,136.70 to
Signs & pinnick, Inc., for the construction of the Otay Valley Road
Phases II & III Widening Project (ST-123) which project was
financed via the formation of Assessment District No. 90-2; and
WHEREAS, the street work for this project was completed
in August, 1996 and included within the Construction contract were
State Fish and Game required wetland mitigation work; and
WHEREAS, when the Project was awarded the site in the
Otay River basin which was proposed to be used for the Mitigation
was found to have contaminated ground water; and
WHEREAS, the Contractor agreed to delay this work and
apply any costs for original bid items to a new mitigation site;
and
WHEREAS, since that time City staff has been pursuing
alternative approaches to satisfying the city's wetland mitigation
obligations including contribution to an environmental bank for
project Mitigation; and
WHEREAS, this change order (contract Change Order Number
4) is to delete Contract mitigation bid items associated with that
work; and
WHEREAS, funds saved by this action will be applied to
the overall cost for Mitigation for the Otay Valley Road Project
including, specifically, the purchase of mitigation credits and the
continuance of a cowbird trapping program as required by the State
and Federal environmental permits; and
WHEREAS, Change Order NO.4, would reduce the contract by
$166,990.00.
NOW, THEREFORE, BE IT RESOLVED the city Council of the
City of Chula vista does hereby approve Change Order No. 4 for the
"Improvement of Assessment District No. 90-2 (Otay Valley Road,
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Phases II and III) in the City of Chula Vista, California (ST-123)"
project.
BE IT FURTHER RESOLVED the Director of Public Works is
hereby authorized to execute Change Order No. 4 on behalf of the
City and designate the saving resulting from the Change Order be
applied to project-related uses.
Presented by Approved as to form by
'\
John P. Lippitt, Director of ttorney
Public Works
C:\r8\OVR.C04
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RESOLUTION NO. ¡f5¿'tl..3
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA . VISTA WAIVING BIDDING PROCESS AND
AUTHORIZING THE CITY MANAGER TO ENTER INTO A
CONTRACT WITH PACIFIC SOUTHWEST BIOLOGICAL
SERVICES FOR A COWBIRD TRAPPING PROGRAM
WHEREAS, on June 7, 1994, the City Council by Resolution
No. 17518 awarded a contract in the amount of $2,374,136.70 to
Signs & Pinnick, Inc., for the construction of the Otay Valley Road
Phases II & III Widening Project (ST-123) which project was
financed via the formation of Assessment District No. 90-2; and
WHEREAS, the Otay Valley Road Project requires wetlands
mitigation and Pacific Southwest Biological has been performing
cowbird trapping services in connection with Signs & pinnick for
the past two years; and
WHEREAS, concurrent herewith the City is approving a
change Order of the Signs & pinnick contract requiring the City to
enter into a contract with Pacific Southwest Biological Services
for a cowbird trapping program, which is estimated to cost $42,560;
and
WHEREAS, a waiver of the need to obtain competitive bids
is being sought for two specific reasons:
1. The subcontractor was originally selected as a part
of the contractor team through a competitive bid
process.
2. The cowbird trapping program is seasonal and traps
must be in place by mid-March, pursuant to the
conditions of the Federal Endangered Species Permit
and the State Endangered Species Permit for the
project.
WHEREAS, Pacific Southwest Biological Services has
demonstrated their qualifications and ability to complete the work
through their prior performance of the work and the city has been
satisfied with their work; and
WHEREAS, Pacific Southwest Biological Services currently
posseses the traps, which are constructed in accordance with
Federal and State standards, necessary to carry out the work and
has an existing relationship with staff of the California
Department of Fish and Game and the U. S. Fish and wildlife; and
WHEREAS, under these circumstances, competitive bidding
is not practical.
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NOW, THEREFORE, BE IT RESOLVED the City Council of the
City of Chula vista does hereby waive the bidding process in
accordance with section 2.56.070 of the Chula vista Municipal Code
and authorizes the City Manager to enter into a contract with
Pacific Southwest Biological Services for a cowbird trapping
program in an amount not to exceed $42,560, on a form approved by
the City Attorney, a copy of which shall be kept on file with the
City Clerk as Document No. .
Presented by Approved as to form by
~--=- ~
John P. Lippitt, Director of torney
Public Works
C:\re\OVR.C04
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Agreement between
City of Chula Vista
and
Pacific Southwest Biological Services
for Environmental Consulting Services
This agreement ( "Agreement") , dated March 18, 1997 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, the City has constructed improvements to Otay
Valley Road resulting in impacts to wetland and endangered
species resources; and,
Whereas, those impacts required the acquisition of permits
from various resource agencies, including a federal endangered
species take permit for impacts to the least Bell's vireo; and,
Whereas, one of the conditions to the federal take permit
requires the trapping and disposal of brown-headed cowbirds, a
nest parasite to the least Bell's vireo; and
Whereas, City staff does not have the expertise or resources
to perform the trapping; 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
within the time frames herein provided all in accordance with the
terms and conditions of this Agreement;
1
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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 Dutiesll i
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 negotiatin~ 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
fixed fee is otherwise agreed upon. All compensation for
Additional Services shall be paid monthly as billed.
E. Standard of Care
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Consultant, in performing any Services under this agreement,
whether Defined Services or Additional Services I 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
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
demònstrating 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
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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 Attorney
which amount is indicated in the space adjacent to the term,
"Performance Bond", in said Paragraph 19, Exhibi t 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.
4
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._"--_._-_._-~._..,.
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 "checkmark" 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.
This Agreement shall terminate when the Parties have
complied with all executory provisions hereof.
5 . Liquidated Damages
5
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~_ _" _.___..___'._n_" - -- --------,~--,.,-"---,--~---,.,---'--_._~
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.
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.
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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, ("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.
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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.
S. 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
greater than would have resulted if there were no such
negligence, errors, omissions, Consultant shall reimburse City
S
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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
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
9
96--/1
_._-_.-.-._.~._._._-- -.....----.-..---..---.'"
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
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.
10
96 ---/;2.,
---.-.--- . .---_..",...~~_.."_..._-~--+--_.__.~_._-_..-.._-
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
capacity and direction from its principal to enter into this
Agreement, and that all resolutions or other actions have been
taken so as tò 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.
11
96~JJ
____"__...._.__ ."__._,___.'_n_____ ..-
Signature Page
to
Agreement between City of Chula Vista and
Pacific Southwest Biological Services
for Cowbird Trapping
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:
John D. Goss
Approved as to form:
Dated: Pacific Southwest Biological
Services /",c..
I
BY:/(~~/~'
R. Mitchel Beauchamp
Exhibit List to Agreement
(X) Exhibit A.
12
95-/1'
,-.------.--.-..---. _.~..._----~.-
Exhibit A
to
Agreement between
City of Chula Vista
and
Pacific Southwest Biological Services
1. Effective Date of Agreement: March 18, 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
("City")
3 . place of Business for City:
City of Chula Vista,
276 Fourth Avenue,
Chula Vista, CA 91910
4. Consultant:
Pacific Southwest Biological Services
5. Business Form of Consultant:
( ) Sole Proprietorship
( ) Partnership
(X) Corporation
6 . Place of Business, Telephone and Fax Number of Consultant:
P.O. Box 985
National City, CA 91951
Voice Phone (619) 477-5333
Fax Phone (619) 477-5380
7. General Duties:
2PTY9-A.wp Exhibit A to Standard Form Agreement
June 7, 1995 13 Page 13
---
9jJ-'[5
- -- -~.._--_._--_..."_._---"-".
Place and maintain cowbird traps within the Otay River
Valley as approved by the u.s. Fish and Wildlife Service.
8 . Scope of Work and Schedule:
A. Detailed Scope of Work:
Consultant shall conduct a cowbird trapping program for a
three year period beginning in the spring of 1997 through
the summer of 1999. The program shall be conducted in
accordance with the requirements of the Biological Opinion
on the Otay Valley Road Widening Project's effects on the
least Bell's vireo and coastal California gnatcatcher #1-6-
93-F-43 issued by the u.S. Fish and wildlife Service
(Service) . All work shall be conducted in consultation with
and with the approval of the Service. Trap placement shall
be based on the best judgement of a biologist with at least
three years of experience in cowbird trapping. The traps
shall be distributed in a manner that is deemed most
efficient for controlling cowbird parasitism in the subject
area, and shall be subject to the concurrence of the
Service. The trapping program shall run annually for the
specified three year period from April through July and
shall include the maintenance and use of no fewer than eight
traps.
B. Date for Commencement of Consultant Services:
(X) Same as Effective Date of Agreement
( ) Other:
C. Dates or Time Limits for Delivery of Deliverables:
Annùal reports to be provided no later than August 30
D. Date for completion of all Consultant services:
August 30, 1999
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) .
2PTY9-A.wp Exhibit A to Standard Form Agreement
June 7, 1995 14 Page 14
9{!-/~
_........-...~.---~ ..... -""--"~-"'- .- .._-,_.__.~-~---. --
( ) 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. (X) 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 De1iverab1es
set forth below:
Single Fixed Fee Amount: $42,558.75, payable as follows:
Milestone or Event or Deliverable Amount or Percent of Fixed Fee
1. Monthly labor charges up to the delivery and acceptance by
City staff of annual report 1997 not to exceed $13,500.00
2 . Monthly labor charges up to the delivery and acceptance by
City staff of annual report 1997 not to exceed $14,175.00
3. Monthly labor charges up to the delivery and acceptance by
City staff of annual report 1997 not to exceed $14,883.75
(X) 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
2PTY9-A.wp Exhibit A to Standard Form Agreement
June 7, 1995 15 Page 15
9!J - / 7
--_. _._._..~."..'-'- ... -.-~._-....__.
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.
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.
13 . Contract Administrators:
City: Joseph Monaco, AICP, Environmental Projects Manager
Consultant: R. Mitchel Beauchamp, Pacific Southwest
Biological Services
14. Statement of Economic Interests, Consultant Reporting
Categories, per Conflict of Interest Code:
(X) Not Applicable. Not an FPPC Filer.
15. ( ) Consultant is Real Estate Broker and/or Salesman
16. Permitted Subconsultants:
none.
17. Bill Processing:
A. Consultant's Billing to be submitted for the following
period of time:
(X) Monthly
( ) Quarterly
( ) Other:
2PTY9-A.wp Exhibit A to Standard Form Agreement
June 7, 1995 16 Page 16
9{f-/~
-----.-...-." _ ..u..__._._..__.__ -.---.-----
B, Day of the Period for submission of Consultant's
Billing: ( ) First of the Month
( ) 15th Day of each Month
(X) End of the Month
( ) Other:
C. City's Account Number: 996 9960 ST 123
2PTY9-A.wp Exhibit A to Standard Form Agreement
June 7, 1995 17 Page 17
9g~/c¡
- ---.--, -~.__. ....-...-.-.. ,.."-------_..'".-.~-- -~-_._----_..._-
COUNCIL AGENDA STATEMENT /é!
Item
Meeting Date 3/18/97
,/
ITEM TITLE: /I. Ordinance :< 7¿;..!:> Creating and adding Chapter 5.09 to the
Municipal Code for the purpose of providing a permanent, local
process for determination of public convenience or necessity for
alcoholic beverage licensing.
ß . Resolution /8"'.6'ð~mending the Master Fee Schedule to establish a
deposit for processing of requests for the determination of public
convenience or necessity for certain alcoholic beverage licenses.
SUBMITTED BY, Police Chi,f ~ 1Jtt
D"","" of PI~i'g ,G ~
REVIEWED BY: City Manager~ ~
--:?
Recent changes to the State Business and Pro ssions Code involving alcoholic beverage
licensing now require local jurisdictions to make determinations as to whether certain types
of alcoholic beverage licenses should be granted, in situations where there is already an
overconcentration of licenses based on specified criteria, The law provides that the local
governing body (the City Council) shall make these determinations unless this authority is
delegated to staff.
In August of 1995, the City Council approved a Resolution delegating this authority to the
Police Chief on a temporary basis in order to provide staff time to research the matter and
return with a recommendation on a permanent method of handling such requests.
The Environmental Review Coordinator has determined that this action is exempt from
environmental review under CEQA as a 15061(b)(3) (General Rule) exemption.
BOARDS/COMMISSIONS RECOMMENDATION: None.
RECOMMENDATION: That the City Council adopt the Ordinance establishing a
permanent, local process for determination of public convenience or necessity for alcoholic
beverage licensing.
DISCUSSION:
Legislation which was enacted in 1994 (AB 2897) has modified the procedures utilized by the
State Department of Alcoholic Beverage Control in the granting of licenses for certain types
of alcoholic beverage sales. Under previous procedures, where it was determined that there
was an undue concentration of licenses, ABC was required to make a determination that
"public convenience and necessity" would be served by the issuance of the license.
/tJ-!
---...--.-.---".-.--...
Page 2, Item
Meeting Date 3/18/97
Under the new law, applicants for certain types of alcoholic beverage licenses are now
required to obtain this determination from the local governing body of the area if the area
has an over concentration of alcoholic beverage licenses andlor a higher than average crime
rate as defined in Section 23958.4 of the Business and Professions Code (see attached
legislation) .
In August of 1995, the Council approved a Resolution temporarily delegating its authority in
these matters to the Police Chief (please see Resolution 17989, attached). Since that time,
the Police Department has processed numerous applications requesting determinations of
public convenience and necessity, All have been approved, generally with conditions of
approval attached.
The process under which the Police Department has been reviewing these applications
includes a notice to all property owners and residents within a 500' radius from the project
site (the same as that required by ABC), an administrative hearing, and final determination
by the Police Chief. The City Council is notified of each determination via an informational
item. Response to the notices and attendance at the hearings has been minimal.
The processing of these applications has gone quite smoothly, particularly so because the
Police Department has always been involved in the review of applications for alcoholic
beverage licenses in conjunction with ABC and was accustomed to researching and
addressing those issues that routinely arise. None of the determinations issued have been
appealed to or by the City Council, and it is staff's belief that conditions of approval placed
upon the determinations have successfully addressed any issues that have arisen. Staff
therefore finds it appropriate to continue to process these applications in a manner consistent
with the processing utilized during the temporary period, with certain minor modifications.
Although heretofore the Police Department has automatically scheduled these applications for
hearings, as mentioned, attendance has been minimal. Therefore, it is proposed that the
applications be treated similarly to items considered by the Zoning Administrator, While
public notices regarding the applications would be mailed out, hearings would generally be
held only if objections were received.
Further, the City Council has been notified via an information item of each determination
made thus far (see attachment for applications processed thus far). Since no appeals or other
issues have arisen, it appears that, unless Council has a specific interest in continued
notification, this is no longer necessary.
/¿J ~;¿
- ,_._~_._.______.,.__ ___._n
Page 3, Item
Meeting Date 3/18/97
CONCLUSION:
Staff has encountered no problems with the processing of the applications for determination
of public convenience and necessity over the past months. The opportunity to place
conditions of approval on the determinations has provided the Police Department with an
additional mechanism by which potential concerns regarding these establishments can be
addressed. As evidenced by the lack of appeals, this process and accompanying methods
appears to be working successfully. Therefore, staff recommends that the City's authority to
determine public convenience and necessity for alcoholic beverage licensing be delegated
permanently to the Police Department, through the addition of a new Chapter to the
Municipal Code in accordance with the attached Ordinance.
FISCAL IMPACT:
A $250.00 deposit has been, and will continue to be, required on all applications, The use
of the deposit system ensures that full cost recovery is attained for the work involved in
processing each application.
Attachments:
1. Draft City Council Ordinance and Resolution
2. State Legislation (AB2897) NOT SCANNED
3. Resolution 17989 approving temporary NOT S .. .
delegation of authority CANl\£u
4. Applications processed to date
. .
Jd-J ;tl-~
_._.__._._...__._~.__."_.-
.,;:;..,.-;-¡¡";- .:J:;I;> ,¡.1:I.;:)t:J r"P"CU·. f'1DI..;¡V IU I:I~.I.:>J.(J. ......,..
.
~.
Assembly Bjll No. 2897
CHAPTER 630
An act to amend Section 23958 of, and to add Section 239S8.4 to,
the Business and ProfesIÏoÐS Code, relating to alcoholic beverages.
[A..".v.ed by CoYm= ~ber a, 154. Filed with
$eaoetNy 0( Sta. _bet 10, 1*.}
LECISLA'nVE COUNSEL'S DICEST
AB œr, Caldera. Alcoholic beverages: retail lieeœes: UDdue
. concentration.
Existing law provides that the Department of AJcohoJic Beverage
Control may deny an application for a license il the ÏS$UInce would,
among other things. result in or add to an andue cogcentration of
licenses, and the applicant fails to show that public convenience or
necessity would be served by the issuance. Existing reètory law
defines "undue concenb'ation" with regard to app cations for
on·sale and off·sale retail licenses. .
This bill would instead require the Department of Alcoholic
Beverage Control to deny an a~plication il issuance would tend to
create a law enforcement prob em, or would result In or acid to an
undue concentration of licenses. The bill would change the
definition of undue concentration, and would provide that,
notwithstanding the requirement that the department deny an
application that would result in or add to aD Imd1Z concentration of
licenses, a license may be issued with respect to a nonretaillicense,
a retail on-sale bona fide eating place license, à retaillieeme issued
for a hotel. motel, or other lodging establishment, IS defined., a retai.l
license issued in conjunction with , beer manufacturer'slieens.. or
a wiDegrower's license, if the applicant moWl that public
convenience or necessity would be served by the issuaDce, and with
respect to any other lic:ense, if the local goveramg body of the InI&
in which the applicant premises are located determines that public
conven.lence or DeCasity woWd be lerved by the ;O$"."'ce.
The people of the Sä'te of c.Jifortûa do Wet IS ·folJtrm:
SECI10N 1. Section 23958 of the BusfDea md Plor.om Code
is amended to read: ..
23958. Upon receipt of añ 'fcpiication for a!icezøe or for a tnmfer
of a license and the applicab e fee, the d,,_ to..ent sbaU make .
thorou¡h Investiption to determine whether the applicant md the
premises for which a license is applied x;::r for . lIcezue and
whether the provisions of this division have . complied with, and
sba11 investigate all matters connected therewith which may affec:t
the' public welfare and morab. The department Jba1l dea)' aD
1t5J-i " 110
--"-- - ---- -.- --_.~'-_.._'.'-'--' -,,~_.,.~--,_..__.~-.
""'-'" ~..J-.~;I.;;t ¿C·~ rl"l...... """",-,.w;¡,.¡
,~
: . . . '-'..,..... ' .. , .""-'
.
(
Ch. 630 -2-
application for a license or for a transfer of . license if either the
applicant or the premises for which a license is applied do not qualify
for a license under t1W division.
The department further shall deny an application for a license if
issuance of that license would tend to create a law enforcement
problem. or If issuance would rO$\llt m or add to an W1due
concentration of licenses, except as provided in Section 23958.4-
SEC. 2. Section 23958.4 is added to the Business and Professions
Code, to read:
23958.4. <a) For purposes of Section 23958, "~ue
concentration" means the applicant pr~;- for an original or
prem1ses-to-premises transfer of any retailliœnse are located in an
area where any of the following conditions Gist: .
. (l) The applicant premises are located in a crime reporting
district that bas a 20 percent greater number of reported crimes, as
defined in subdivision (c), than the average 'number of reported
crimes as determmed from ail crime reporting districts within the
jurildiction of the loca1law enforcement agency.
(2) As to on·sale retail license applications, the ratio of on-sale
retail licenses to population in the census tract or census division in
which the applicant premises are loc:ated exceeds the ratio of on-sale
retail licenses to pOluJation m the county in which the applicant
premises are locate .
(3) As to off-sale retaillicen.se applications. the ratio of off-sale
retail licenses to population in the census tract or census division in
which the applicant premises aze located exceeds the ratio of off·sale
retailUcenses to ~ulation in the county m which the applicant
premises are locat . .
(b) Notwithstanding Section 23958, the department may issue a
license as follow¡:
(1) With respect to a nonretaillicense, a retail on·sale boua fide
eating place license, a retaillic:ense issued for a botel, motel, or other
lodging establishment, as defined in subdivision (b) of Seetion
2SðQ3.16, a retail license issued in ~UDction with a beer
manufacturer's license, or a winegrower's license, if the :rblicant
show¡ that public: convenience or necessity would be serve Y the
issuance.
(2) With respect to any other license, if the local sovenúz18 body
of the area in which the applicant premises are located òetermiDa
that public couvemence or necessity would be serled by the
tssumce.
(c) For purposes of. this sec:tiOD, the foUowm¡ definitions sba1l
apply:
(1) "Reporting districts" melDoS geographicl1 areu within the
bounòariel of a sIn¡1e governmental entity (city or the
unincorporatecl area of a county), that are ides1tiBeå by the loc:allaw
enEorcement ageuc:y in the compilatiou and maintenuce of
.statistical information on reported crimes and arrests. .
/¿J-5 M ltO
.
---"_._"
. - ----.. ... "~
-- -- - --- -- -- . ..- -- --
'" ..: .
(
-3- Ch. .630
(2) ~Beported crime$" means the mOJt recent yearly compilation
by the local law enforcement agency of reported offemes of c:rimiQa1
homicide. forcible rape. robbery, aggravated usault, burrlazy,
larceny theft. Il1d motor vehicle theft, combined with aU anesa for
other c:rimes, both CeloNes Il1d mØdemell101'S, ezcept traØìc
citations.
. (3) "Population within the census tract or census divilion" means
the population u determined. by the most recent United States
decennial or special censw. The population determinab sba1l not
operate to prevent an applicant from establishing that 1%1 increase of
resident population has occurred withm the cemw b'a.ct or censw
division. .
(4) "Population in the county" shall be determfr1ed by the lm2uaI
population estimate for California counties published by the
Population Research Unit of the Department of Finance.
(5) "Retaillic:enses" shall include the following:
(A) OfF·saIe retail licenses: Type 20 (oi£·saIe beer and wiDe) aDd
Type 21 (off-sale general).
(B) On-sale retail licenses: All retail on-sale licenses. except Type
43 (on·sale beer aDd wine for train), Type 44 (on·sale bee: and wine
for fishing party boat), ~ 45 (on·sale beer and wine for boat).
Type 46 (on·Jlle beer an wine for airplane), Type 53 (on-sale
general for train and sleeping car). Type 54 (ozwale general for
boat). Type M (on·sale general fOT airplane), Type 56 (on-sale
general for vessels of more than 1.000 tons burden), aDd Type 62
(on·sale general bona fide public eating place intermitt=t doclcside
license for vessels of more than 15.000 toes displac:emct).
(6) A "premises to prenUses Innsfer" refers to each Iicease being
separate and distmct and transferable upoD approval of the
department.
(d) For purposes of this section, the Dumber of retaillkemes in
the county shall be determined by the most recent yearly retail
license cOunt published by the department in Its Procedure Manual.
(e) The enactment of this section shall Dot affect aDY ezIstiIIg
~t:s of any holder of a retail license issued prior to April 29, 1992,
w ose Jremises were destroyed or rendered \1DUAble IS . rault of
the ci . disturbances occum.o¡ in Los ADgeJea from April 29 to May
2. 1992, to reopen and operate those licensed premises.
(f) This section shall Dot apply where the pre"'_ have been
licensed and operated with the same type license wit:biD iO da)'l of
. the application.
..
0
JrJ~? N It!D
TOTFl. P.06
--.-" ...--...----.-
-
RESOLUTION NO.1 7989
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
DELEGATING THE CITY'S AUTHORITY TO DETERMINE PUBLIC CONVENIENCE
AND NECESSITY FOR ALCOHOLIC BEVERAGE LICENSING TO THE PQLlCE
DEPARTMENT FOR A PERIOD OF SIX MONTHS.
WHEREAS, the State Legislature in 1994, enacted Business and Professions Code
Section 23958.4, authorizing the City to determine whether an alcoholic beverage application
meets public convenience and necessity notwithstanding a determination of an undue
concentration of licenses; and
WHEREAS, the City Council may delegate the duties of determination to a board,
individual. or department; and
WHEREAS. the determination of whether an application meets public convenience and
necessity is based on, among other things. crime statistics and the ratio of licenses to
population in the area; and
WHEREAS. the Council finds that the proposal is categorically exempt from
environmental review as a 1 50S1 (b)(3). General Rule exemption; and
WHEREAS, the City Council finds that the Police Department has the ability and
resources to determine incidence of crime and the effect of undue concentration of liquor
stores and/or bars.
NOW, THEREFORE. BE IT RESOLVED by the City Council of the City of Chula Vista as
follows:
1. That the above recitations are true and correct.
2. For a period of six months and using such due process as the City Attorney
determines is required and appropriate, the Police Chief is authorized to determine whether
an application for an alcoholic beverage license should be approved based on public
convenience and necessity notwithstani:ling a determination that there is an undue
concentration of licenses. The Police Department shall provide ABC, the Applicant, and the
City Council with written Notice of Determination, and in the case of new applications, report
said Notice to the City Council on their next available agenda as a consent item, during the
trial period.
3. That Applicant may appeal the Police Chief's determination to the City Council
by filing a written appeal with the City Clerk within ten days of mailing of notice.
4. That the City Council will send Applicant and Department of Alcoholic Beverage
and Control Notice of the City Council final determination.
5. That staff shall return to the Council prior to the expiration of the six-month
period with a report and recommendation regarding the permanent treatment of this matter.
/ð-7
""---...
Resolution No. 17989
Page 3
PASSED. APPROVED. and ADOPTED by the City Council of the City of .Chula
Vista. California. this 1 st day of August. 1995. by the following vote:
AYES: Councilmembers: Alevy. Moot. Padilla. Rindòne. Horto~
-
NA YES: Councilmembers: None ,
ABSENT: Council members: None
ABSTAIN: Councilmembers: None
~~
Shirl Horton. Mayor
ATTEST:
~ fLa~t£M
Beverly . Authelet. City Clerk
STATE OF CALIFORNIA )
COUNTY OF SAN DIEGO ) ss.
CITY OF CHULA VISTA )
I. Beverly A. Authelet.City Clerk ofthe City of Chula Vista. California. do hereby certify that
the foregoing Resolution No. 17989 was duly passed. approved. and adopted by the City
Council at e regular meeting of the Chula Vista City Council held on the 1st day of August.
1995.
Executed this 1st day of August. 1995.
,
7i'4 C! (),.:ri. aJ_
Beverly . Authelet. City Clerk
/Þ-r
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Determination of Public Convenience/Necessity
Applications Processed to Date
ABC Applicant Date Applied Status Comments
Kristine Riedlinger 12-18-96 Approved Mail Order Only
1031 Bay Blvd. #P (Specialty Sales)
Michael 1. Crone 11-25-96 Approved
1445 Third Ave
SA V -ON Drugs 6-11-96 Approved
1376 Third Ave
Chevron 3-12-96 Approved
770 Plaza Court
Mirage Market 1-25-96 Approved
1096 Broadway
Kmart Store 1-25-96 Application Withdrawn
875 East H Street
Mi Casita - La Mission 11-2-95 Approved
2350 Main St
Sweetwater Inn 11-2-95 Approved
683 Broadway
)[7-9
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ORDINANCE NO. ~ 70.Ç
AN ORDINANCE OF THE CITY OF CHULA VISTA CREATING AND
ADDING CHAPTER 5.09 TO THE MUNICIPAL CODE FOR THE
PURPOSE OF PROVIDING A PERMANENT PROCESS FOR
DETERMINATION OF PUBLIC CONVENIENCE OR NECESSITY FOR
CERTAIN ALCOHOLIC BEVERAGE LICENSES
WHEREAS, the City Council has established a process for the processing of requests
for the determination of public convenience or necessity for certain types of alcoholic
beverage licenses; and,
WHEREAS, a duly verified application for a Municipal Code text amendment was
initiated with the Planning Department of the City of Chula Vista on July 19, 1994 by the
City of Chula Vista; and,
WHEREAS, said application requests approval of an addition to the Municipal Code
to provide a process for determining public convenience and necessity relating to certain
alcoholic beverage licenses; and,
WHEREAS, the Environmental Review Coordinator has determined that this proposal
is exempt from environmental review under CEQA as a l506l(b)(3) (General Rule)
exemption; and,
WHEREAS, the City Clerk set the time and place for a hearing on said amendments
to the Municipal Code, and notice of said hearing together with its purpose was given by its
publication in a newspaper of general circulation in the City at least 10 days prior to the
hearing; and,
WHEREAS, the hearing was held at the time and place as advertised, namely March
18, 1997, in the Council Chambers, 276 Fourth Avenue, before the City Council and the
hearing was thereafter closed.
NOW, THEREFORE, the City Council of the City of Chula Vista does hereby find,
determine, and ordain as follows:
SECTION I: That the public necessity, convenience, general welfare, and good
zoning practice justify the amendments, and that the amendments are consistent with the City
of Chula Vista General Plan.
SECTION II: That Chapter 5 of the Chula Vista Municipal Code is amended to read
as follows:
1
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Chapter 5.09
ALCOHOLIC BEVERAGE LICENSES
Sections:
5.09.010 Determination of Public Convenience or Necessity - Purpose and
Intent
5.09.020 Determination of Public Convenience or Necessity - Application -
Fee
5.09.030 Determination of Public Convenience or Necessity - Procedure -
Notice Required
5.09.040 Determination of Public Convenience or Necessity - Criteria
for Consideration
5.09.050 Determination of Public Convenience or Necessity - AppeaJs
5.09.060 Determination of Public Convenience or Necessity - AppeaJs - City
Clerk Duties
5.09.010 Determination of Public Convenience or Necessity - Purpose and Intent
State law requires that applicants for certain types of alcoholic beverage licenses obtain from
local jurisdictions a determination that public convenience or necessity is served by the
issuance of said license if the subject premises is not located in an area which has an over
concentration of alcoholic beverage licenses and/or a higher than average crime rate as
defined in Section 23958.4 of the Business and Professions Code. Where the state
Department of Alcoholic Beverage Control requires a determination of public convenience or
necessity, the Chief of Police is authorized to consider and approve, disapprove, or modify
applications for this determination.
5.09.020 Determination of Public Convenience or Necessity - Application - Fee
Applications for a determination of public convenience or necessity shall be made to the
Police Chief in writing on a form prescribed by the Police Chief and shall be accompanied
by data sufficient to describe the proposed operations for which the alcoholic beverage
license and the determination of public convenience or necessity is required. The application
shall be accompanied by a deposit as presently designated, or as may in the future be
amended, in the master fee schedule.
5.09.030 Determination of Public Convenience or Necessity - Procedure - Notice
required
The Chief of Police shall post (or shall require the applicant to post) a notice of the
application on the premises which is the subject of the application. The Chief of Police shall
2
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further provide notice of the public hearing by mailing to property owners of record and
residents within 500 ft. of the site which is the subject of the application.
5.09.040 Determination oC Public Convenience or Necessity - Criteria Cor
Consideration
Upon the conclusion of the public hearing, the Chief of Police may make a determination
that public convenience or necessity is or is not served by the issuance of an alcoholic
beverage license. The Chief of Police may condition a determination of public convenience
or necessity. This decision may be based upon, but not limited to, the following factors:
A. History of the subject business and/or owner.
B. Existing conditions at the site or in the vicinity (e.g. potential for creation of a police
problem, or aggravation of an existing problem).
C. The crime rate within the vicinity of the application.
5.09.050 Determination oC Public Convenience or Necessity - Appeals
The applicant or other interested party may appeal the decision of the Chief of Police to the
City Council within ten days after said decision is med with the city clerk. Said appeal shall
be in writing and med with the city clerk upon forms provided by the Police Department,
and shall specify the reasons the appellant believes there was an error in the decision of the
Chief of Police. If an appeal is med within the time limit specified, it automatically stays
proceedings in the matter until a determination is made by the City Council.
5.09.060 Determination oC Public Convenience or Necessity - Appeals - City Clerk
duties
Upon the filing of the appeal, the city clerk shall set the matter for public hearing, giving the
same notice as required in 5.09.030. The city clerk shall send the Chief of Police a
duplicate copy of the appeal and request the Chief of Police to transmit to the city council a
copy of his decision and findings, minutes of any hearings, and all other evidence, maps,
papers, and exhibits upon which the Chief of Police made his decision.
Upon the hearing of such appeal, the city council may, by resolution, affirm, reverse, or
modify in whole or in part any determination of the Chief of Police. Not later than ten days
following the adoption of said resolution, the city clerk shall transmit a copy of the resolution
and findings to the Chief of Police, and shall mail a copy to the applicant.
Presented by Approved as to form by
Robert A. Leiter, Director of ~ f'fuCHN- ~
John M. Kaheny, City Atto Y
Planning
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RESOLUTION NO. / ~~¿fJ.y
RESOLUTION OF THE CITY COUNCn. OF THE CITY OF CHULA
VISTA AMENDING THE MASTER FEE SClUillULE TO ESTABLISH
A DEPOSIT FOR PROCFSSING OF REQUESTS FOR DETERMI-
NATION OF PUBLIC CONVENIENCE OR NECFSSITY FOR CERTAIN
ALCOHOLIC BEVERAGE LICENSES
WHEREAS, the City Council has established a process for the processing of request
for determination of public convenience or necessity for certain types of alcoholic beverage
licenses; and,
WHEREAS, it is necessary to recover the costs of processing the determinations of
public convenience or necessity; and,
WHEREAS, in accordance with Government Code Sections 66018 and 6062(a),
notice of the public hearing was published in a newspaper of general circulation twice within
10 days prior to the public hearing and said notices were published at least five days apart;
and,
WHEREAS, the proposed deposit will recover all of the cost of providing the service
for which this deposit is requested; and,
WHEREAS, a public hearing was duly noticed and held on March 18, 1997 to
consider the proposed change to the Master Fee Schedule .
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula
Vista does hereby amend the Master Fee Schedule to add a new deposit as follows: Chapter
IV, Section B, add 19. ABC Determination of Public Convenience or Necessity. The filing
fee shall be a deposit to cover the City's full cost including overhead, effective upon
adoption of this resolution.
Presented by: Approved as to form by
Cl, ___ 1)\-<"'lh5è I-r<J-,,-
Rick Emerson, Police Chief John Kaheny, City Attorney
Robert A. Leiter, Planning Director
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COUNCIL AGENDA STATEMENT
Item II
/ 'if~ðl~ Meeting Date 03/18/97
ITEM TITLE: a) Resolution Approving a 1.16 acre Land Donation
for an Eighteen (18) Unit Affordable Housing Project Proposed to be
Developed as Trolley Terrace Townhomes and the Amended and
Restated Conveyance Agreement and Escrow Instructions with
South Bay Community Services with respect to 1.16 acres of real
property located at 746 and 750 Ada Street
b) Resolution /S"d>¿Jú Approving a Five Hundred and Twenty
Three Thousand Nine Hundred and Sixty Five Dollar ($523,965)
Commitment from the HOME Program for the development of an
Eighteen (18) Unit Affordable Housing Rental Project at 746 and
750 Ada Street, subject to later approval of a Disposition and
Development Agreement
SUBMITTED BY: Comm",'" D~""m,m ~ (:7 ·
REVIEWED BY: City Manager J~ b!,ð /~ (4/5ths Vote: Yes_ Noll)
Executive Summary: This item was previously approved on May 21, 1996, however, the
approvals given for the land donation, Conveyance Agreement and Escrow Instructions, and a
HOME fund contribution expired December 31, 1996. The developer did not obtain tax credit
allocations for the project from the California Tax Credit Allocation Committee by November 30,
1996, as required by the Conveyance Agreement dated May 21, 1996. The current requested
action, which reinstates the previous action taken, will be contingent upon the later approval of
a Disposition and Development Agreement (DDA) as well as the terms the DDA sets forth as
conditions to close.
Recently, on January 7, 1997, Council/Agency voted to approve a similar request for the
development of 40 multifamily units at Cordova Village in Rancho del Rey located on the East side
of Chula Vista. The Trolley Terrace Townhomes project will be located on the West side of Chula
Vista. An application for Cordova Village has been sent to the State for non competitive tax credit
funds. With City support, Trolley Terrace Townhomes will have an application sent into the State
for competitive tax credit funds. A commitment for a land donation and contribution of funds are
the only actions necessary at this point to be eligible for competitive tax credits. If tax credits are
secured, then staff will ask Council to approve a DDA.
The balance of this report provides updated information from the previous report of May 21, 1996,
with the exception of new information contained in "Conditions to Close ", "City Obligations Under
Proposed Disposition and Development Agreement", and "Summary of Risks and Mitigation
Measures Inherent in Proposed DDA ".
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Page 2. Item _
Meeting Date 03/18/97
BACKGROUND:
When the City/Agency approved acquisition of the subject property on July 1 g, 1994, the City
was considering a proposal from Habitat for Humanity (HFH) and Episcopal Community Services
(ECS) to develop a twelve unit low income for sale townhome development with an associated
child care facility for 80-100 children. This proposal recommended HFH use its sweat equity
approach in the development of the housing units and ECS use its experience and resources to
develop and operate the child care facility. Eventually both agencies came to the conclusion that
they could not fulfill the terms of this proposal. In the case of ECS, it was determined that they
could not support the project due to other organizational priorities, and HFH decided that it could
not follow through with their commitment to raise the capital required to make the project feasible.
HFH and ECS never submitted a formal proposal to Council for consideration.
In the interim, South Bay Community Services (SBCS) approached the City with a proposal to
develop this land in a slightly modified form of HFH and ECS's proposal and soon assumed the role
as sole developer for the site. At the City Council meeting On May 21, 1996, Council approved
the Conveyance Agreement and Escrow Instructions exclusively with SBCS to develop an 18 unit
affordable housing complex, Trolley Terrace Townhomes, and approved the commitment of
$509,311 from the HOME Program funds to be loaned for such development. HOME funds are
federal dollars allocated on an annual basis to jurisdictions for use on housing related projects. As
was explained then, this project was and is proposed to be financed through a variety of funding
sources including the Bank of America Community Development Bank, Local Support Initiative
Corporation (LlSC), Low Income Housing Tax Credits, Federal Home Loan Bank Affordable Housing
Program, and the City of Chula Vista. The proposal was submitted to the Tax Credit Allocation
Committee (TCAC) for funding in May 1996 and was not selected for funding. The Conveyance
Agreement and Escrow Instructions and the commitment of funds expired On December 31, 1996.
Recently, SBCS returned to the City to request additional public funding in order to augment the
competitiveness of its TCAC application for the next round, which is due by the end of March
1997. In addition to the $509,311 previously approved, another $14,654 is being requested from
the HOME Program funds. The total development cost is estimated to be $2,597,414 (See
Attachment 3 for Sources and Uses Chart).
RECOMMENDATION: That Council: 1) Approve a Land Donation of 1.16 acres at Ada Street and
Industrial Boulevard for the development of an 18-unit affordable housing complex; 2) Approve an
Amended and Restated Conveyance Agreement and Escrow Instructions with South Bay
Community Services; and 3) Approve a funding commitment of $523,965 from the HOME Fund,
which represents an additional commitment of $14,654 from that which was previously approved.
BOARDS/COMMISSIONS RECOMMENDATION: The Housing Advisory Commission recommended
approval of the proposed project at its April 10, 1996 special meeting and again on February 26,
1997. The Child Care Commission also recommended approval of the project at its May 7, 1996
meeting.
DISCUSSION:
The following discussion addresses a Description of the Project; the Proposed Financing; the City's
Obligations, Risks, and Respective Risk Mitigation Measures; and Neighborhood Concerns.
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Page 3, Item _
Meeting Date 03/18/97
Proiect Description
South Bay Community Services proposes to build Trolley Terrace Townhomes, an eighteen (18)
unit affordable housing development consisting of 14 three-bedroom units and 4 two-bedroom
units for very-low income families. The project will be located on the corner of Ada Street and
Industrial Boulevard in Chula Vista (See Attachment 1 for Map), on land now owned by the City.
The property is immediately adjacent to, but not within, the Southwest Redevelopment Project
Area.
Ten (10) units will be "townhome" style three-bedroom units with 1 ,050 square feet. Eight (8)
units will be flats; four two-bedroom, 800 square foot units and four three-bedroom 1,050 square
foot units. All ground floor units will be accessible for the physically challenged. The project will
have a large community room, a tot lot for children to play, spacious outdoor common areas, and
laundry facilities. Trolley Terrace Townhomes is conveniently located across the street from the
Palomar Trolley Station and a commercial shopping center. (See Attachment 2 for Site Design)
Trolley Terrace Townhomes is being designed as a Limited Equity Cooperative (Co-op). This "Co-
op" will be a separate nonprofit 501 (c)(3) organization formed by the residents and will participate
in the overall management and operation of the development once it is built. Residents will
become members of the Co-op by purchasing a "share", which will serve as their equity in the Co-
op. The formation of the Limited Equity Co-op will ensure that residents will be involved and
concerned in the welfare of their neighborhood,
Residents will pay a monthly rent that is affordable to families earning below 40% of the San
Diego County median income, which is approximately $410 for a two-bedroom unit and $473 for
a three-bedroom unit. Similar two and three bedroom apartments in that neighborhood rent for
$ 5 50 and $ 700 respectively.
The subject parcel at 746 and 750 Ada Street amounts to a total of 2,0 acres of which 1.16 acres
is proposed to be used for the 18-unit affordable housing development with the remaining portion
of .84 acres to be set aside for the proposed childcare facility to accommodate approximately 80-
100 children. The lot split for the specified use will be accomplished through a boundary
adjustment which will take place prior to the time a specific plan is submitted to Planning for
review. The .84 acre parcel will be retained by the City pending its proposed future development
into a childcare facility.
Staff feels SBCS has the capacity and skill to administer and implement this housing program,
Recently, January 7, 1997, the Council and Agency approved the funds for a 40 unit affordable
housing project to be developed by South Bay Community Services, Cordova Village. Cordova
Village and Trolley Terrace Townhomes are both new construction, SBCS's staff has expertise in
developing. Cordova, if it successfully secures non competitive tax credit financing, is expected
to begin construction in June, 1997 and Trolley Terrace, if successfully a winner of the
competitive tax credit competition, is expected to begin in October 1997. The Community
Development Director of SBCS feels these two development schedules are staggered enough to
avoid an overload on his staff.
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Page 4. Item _
Meeting Date 03/18/97
Childcare Center
In addition to building affordable housing, SBCS is making a strong effort to develop a child care
center adjacent to the townhomes as a separate project. This center would provide affordable
child care to approximately 80-100 children who will live either in the housing development next
door or elsewhere in the surrounding neighborhood. This facility could also serve as a "children's
community center" with homework assistance, tutoring, literacy training, gang prevention and
intervention services, alcohol, drug, and AIDS education, and parenting classes. The key to
developing this facility will be finding funding to build the center. A few providers have expressed
interest in this project contingent upon funding. Staff and SBCS will be working diligently together
to develop the child care facility,
Tax Credit Process and Schedule
The City's obligation to convey the property and to approve a funding commitment in support of
the proposed development is contingent on a tax credit award. The tax credit application deadline
is March 31, 1997 and it is expected that award notifications will take place by June 1997. This
process is very competitive, however, based on other projects submitted by other developers with
similar financing structure it is very probable that this project will receive tax credit funding
because it is a small project needing relatively few state credits. However, the probability will also
depend on the State selection process.
Proiect Financinq
The proposed housing project will be financed through a variety of funding sources, including: a
Bank of America Community Development Bank construction and permanent loan, Local Initiative
Support Corporation (LlSC) predevelopment loan, Low Income Housing tax credits, and a City of
Chula Vista Development Loan and Land loan. The total development cost is estimated at
$2,597,414. For a specific breakdown of all proposed sources of funds and uses of funds (See
Attachment 3 for Sources and Uses Chart).
In order to bring in over $1.3 million in tax credit investor equity, Trolley Terrace Townhomes will
be initially owned by a limited partnership, in which South Bay Community Services will be the
general partner, and the tax credit investor will be the limited partner. The Co-op will lease the
property from the limited partnership and operate it for the 15 year tax credit period. When the
partnership dissolves after 15 years, the Co-op will have the right to take over full and complete
ownership of the complex, subject to approval of the City and other lenders.
The party named in the proposed conveyance agreement and both loan commitments will be South
Bay Community Services, with assignment pre-approved to the project limited partnership with
SBCS as the general partner.
The proposed conveyance agreement allows SBCS to take ownership of the portion of the property
for the Co-op separately from the day care, upon meeting certain conditions, including the approval
of a subsequent DDA with the City/Agency and obtaining an allocation of tax credits from the
State.
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Page 5. Item _
Meeting Date 03/18/97
It is currently contemplated that the City of Chula Vista development loan will be a 55 year. 3%
simple interest loan. payable from 75% of the residual receipts from operation of the complex.
The lien will be subordinate to the Bank of America loan. and any other institutional liens approved
by the City. Up to $98.085 will be advanced prior to the construction closin9 of the project for
architectural and related predevelopment costs. (See Attachment 4 for Uses of City Loans.) The
remainder of the loan funds will be made available during the construction and permanent financing
periods.
The City land purchase loan is also proposed to be a 55 year. 3% simple interest loan. with
payment from 75% of residual receipts which may be available after satisfaction of the City's
development loan. The lien will be recorded in last position, after the Bank of America loan, the
City's development loan. and any other institutional liens approved by the City.
Conditions To Close for Transfer
Before the City of Chula Vista will close escrow on the land transfer and before the City will
contribute funds, a number of conditions must be met including the following:
1) South Bay Community Services are awarded TCAC funds
2) Copies of the Commitment of Funding from the Bank of America and LlSC be approved
by the City
3) A Disposition and Development Agreement be Approved by the Council and Signed by
All Parties
4) All Parcel Map Conditions be met
5) Loan Agreement Documents be Approved by the City Council and Signed by all
Parties
6) The Property Condition of the Land be Approved by South Bay Community Services
7) Certificate of current "Occurrence Made Insurance Policy" be given to the City
CITY OBLIGATIONS UNDER PROPOSED DISPOSITION AND DEVELOPMENT LOAN AGREEMENT
Although staff is not asking the City Council to approve a Disposition and Development Agreement
(DDA) at this time, staff is proposing below to use the terms substantially similar to the terms
which were used in the Cordova Village DDA recently. At this time only the Amended and
Restated Conveyance Agreement and Escrow Instructions are needed to allow SBCS to apply for
tax credits. If SBCS is successful at securing tax credits for this project, then the City staff will
draft the DDA for Council/Agency approval. (See Attachment 8 for the Amended and Restated
Trolley Terrace Conveyance Agreement and Escrow Instructions)
The proposed DDA (to be drafted once the TCAC award is made) between the City and SBCS
would obligate the City of Chula Vista to lend $523,965 of HOME funds to South Bay Community
Services for a period of 55 years at 3% interest. The loan will be non-recourse and secured by
the property but will be subordinated to the construction loan and permanent project financing.
Of the total $523,965. $98,085 is for predevelopment expenses, the remaining $425.880 is for
development fees and other costs. (See Attachment 5 for the Predevelopment Budget and See
Attachment 6 for the Development Budget.)
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Page 6, Item_
Meeting Date 03/1B197
City funds will be subordinate to the Bank of America Community Development Construction Loan
of $971,961 and to the Local Initiative Support Corporation Loan of up to $100,000 during
construction. City funds will be subordinate only to the bank's permanent financing of $281,517
after construction.
For the first time, the Council recently approved funding predevelopment expenses for the
development of Cordova Village in Rancho Del Rey SPA III. This arrangement has yet to
implemented. As with Cordova Village, the Council is being asked to authorize the distribution of
funds before the construction loan closes for a project. To minimize the risks involved in lending
predevelopment dollars, staff recommends incorporating several measures in the DDA similar those
used in the Cordova Village DDA, briefly described on page 6 under "Summary of Risks and
Mitigation Measures Included in the Proposed DDA".
The total City predevelopment loan requested is $98,085. The total City land loan combined with
the City development loan per unit contribution is approximately $49,828 per unit.
· $523,965 Home Loan
· $372,940 Land Loan
· $896,905 Total Contribution
· $ 49,828 Per Unit Total Contribution
· $ 98,085 Predevelopment Period
· $425,880 Construction Period
· $523,965 Total Loans
· $ 29,109 Per Unit Development Loan Cost
· $ 20.718 Per Unit Land Loan Cost
Staff acknowledges this per unit contribution is higher than the City of Chula Vista has made
before, but feels it reflects the cost of land and the fact that this development is made up of a
majority of large units and is for families of very low income: 14 three-bedroom units and 4 two-
bedroom units for families of very-low income. No one bedroom units will be included. Smaller
units are less costly to build, but larger units are meeting a priority need declared to be a priority
by SANDAG and the City's Housing Element. These townhomes are architecturally designed to
blend into the surrounding community. Plus, the three bedroom units will accommodate families,
mixing well into the immediate neighborhoods predominately made up of families. The private
market is not providing this kind of opportunity for very low income families. (See Attachment
7 for Elevation Design)
Recently the City provided approximately $ 25,000 per unit toward the development of new
construction multifamily affordable housing in Rancho del Rey at Cordova Village. There were no
land cost incurred by the City for Cordova. The Co-op proposed for Trolley Terrace Townhomes
will require a City contribution of approximately $49,828 per unit, which includes $20.718 for
land and $29,110 toward the development. Trolley Terrace Townhomes, like Cordova, are new
construction multifamily affordable housing. This City contribution can be justified on the basis
that this development will provide much needed housing to very low income families earning 40%
of the medium income or below, will provide quasi-ownership opportunity and will be a significant
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Page 7, Item _
Meeting Date 03/18/97
improvement to the neighborhood, which is already experiencing significant improvement as a
result of the Palomar Trolley Shopping Center development.
It is important to note that private market multi-family developments are generally not less than
100 units. The more units developed, the more economies of scale are achieved resulting in a
lower per unit cost. Per unit costs on three bedroom units are higher. In addition, $10,500 of the
Trolley Terrace Townhomes' total per unit cost is because this is a tax credit project. Tax credit
projects require fees and deposits that are not found in a normal private sector project.
The $49,828 per unit requested of the City will be leveraged by bringing in approximately $75,206
per unit in tax credits, and $53,998 per unit from the Bank of America Community Development
Bank, plus a project wide total of $39,069 from the Federal Home Loan Bank Affordable Housing
Program.
Summarv of Risks and MitiQation Measures Inherent in Proposed DDA
Three primary risks are involved in lending funds to the Trolley Terrace Townhomes development.
The first is the fact that the City will need to subordinate its loans to the Bank of America and to
the Local Support Initiative Corporation (LlSC) during the construction period. This can be offset
by obtaining a special notice and cure rights, and the option to purchase and/or assume SBCS's
loans in case of default in order to allow the City to continue the project. Also a performance
bond can be required from the project's general contractor with the City listed as a named
beneficiary.
The second risk is the fact that the loans will be paid back to the City with 75 % of the residual
receipts, which is the amount left over after all expenses are deducted from the income, This is
offset by the fact that the likelihood of repayment is high given there is a high demand for these
units and the vacancy rate is expected to be low. The revenue base should be very reliable. The
Capital Replacement Reserve and the Operating Reserve are required by TCAC to be maintained
above conventional rate rentals. TCAC requirements on rental income are strict to assure steady
cash flow. The operating costs are standard. The City has given approval of the property
management firm, Cuatro Properties Inc., and if a problem occurs the City will be involved to
assure proper handling. TCAC has strict management requirements which will only will be met
by a highly qualified firm.
The third risk is the fact that the predevelopment funds will need to be released before the
construction loan is closed. However, unlike the Cordova Village loan terms, the Trolley Terrace
Townhomes' predevelopment funds will not be released before the tax credits are awarded. South
Bay Community Services proposes not to use City predevelopment funds until July 1997. TCAC
is expected to award its credits by June 1997. If tax credits are not awarded to Trolley Terrace
Townhomes, then the City will not release predevelopment funds. This decreases the risks to the
City of lendin9 funds that may not be recoverable. Mitigation measures that can help offset the
risk of lending funds before construction cloSin9 are that disbursements will only be made on a
reimbursement basis and if construction closing never happens, SBCS will assign the City their
rights to the architect's plans, which are valued at $100,000, which exceeds the total amount of
the City's predevelopment loan.
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Page 8, Item _
Meeting Date 03/18197
Other similar mitigation measures will be incorporated into the Trolley Terrace Townhome's DDA
as was incorporated into the Cordova Village DDA, such as the general contractor shall be
approved by the City. To ensure Bank of America's Community Development Bank's standard 5%
contingency on the construction costs is sufficient, staff proposes to use the same measure
agreed upon for the Cordova Village project, which was if at any time during the course of the
development of the Project, the developer exhausts 50% or more of the contingency amounts set
forth in the Project Budget, the City shall have the right to approve any additional cost overruns.
Staff will also review the construction budget before SBCS signs a construction budget and
review the sufficiency of the contingency fund. These reviews will be a condition to close and
will be handled administratively, unless staff feels it is necessary to bring back to the Council.
A full analysis of risks and mitigation measures will be submitted to Council at the time staff
requests DDA approval.
Neighborhood Concerns: Originally when this proposal was presented by Habitat for Humanity a
community meeting was held with the residents, City officials, and the development team, which
took place about a year and a half ago. The residents were noticed and a small group gathered.
The concept of the project was well received. Recently, City staff noticed the residents and
business/property owners within 1000 feet radius around the subject property to invite them to
participate in the March 18, 1997 Council meeting. A few residents have called in response to
this notice indicating support for the project and asking to be put on a waiting list.
FISCAL IMPACT: On May 21, 1996 the City Council approved the commitment of HOME funds
in the amount of $509,311 for the development of the Trolley Terrace Townhome project as then
proposed. Currently, staff is asking Council to reapprove this amount plus an additional $14,654
of HOME funds. Of the $643,000 of HOME funds previously used to purchase land at the corner
of Ada Street and Industrial Blvd., the value of the land reserved for the townhomes is $372,940.
The remaining parcel, .84 acres valued at $270,060, is planned to host a child care facility.
HOME funds can only be used for these type of projects. These actions would bring the total City
investment for the Trolley Terrace Townhome development to $896,905 of HOME funds
combining the cash allocation with the value of land. The loan will accrue interest at 3% per
annum and is projected to be paid back out of the project's "residual receipts" or refinance
proceeds. The current project pro forma projects that this will occur in approximately 55 years.
The City will receive $360,000 from the developer for payment of the permits and fees.
ATTACHMENTS
1- Map NOT SCANNED
2- Site Design
3- Sources and Uses Chart NOT SCANNED
4- Uses of City Loans lVO
5- Pre-Development Budget '1' SC~
6- Development Budget . '1!:l)
7- Elevation Design NOT SCANNED /
8- Amended and Restated Trolley Terrace Conveyance Agreement and Escrow Instructions
(55) H:\HOME\COMMDEV\STAFF.REP\03-18-97\TTT.113 ¡March 12, 1997 (12:23pm)]
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ATTACHMENT 4
ATTACHMENT 4
Uses of City Predevelopment Loan
Total $98,085
Architecture Design $77,500
Survey & Engineering $ 5,985
Local Permits $10,000
Appraisal $ 2,500
Contingency $ 2,100
Total $98,085
Uses of City Development Loan
Total $425,880
Local Permits and Fees $353,433
Close of Escrow Fees $ 72,447
Total $425,880
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Trolley Terrace Townhomes ATTACHMENT 6
Development Budget
Project Costs
04"Mar-97 Estimated
.... Cost Item Proiect Cost CPU
t Total Land Costs Incl Demolition 372,940 20718.89
Total Acquisition Costs 0 0
Construction
Site Work
On-Site Improvements 161000 8,944
On-Site Landscape 27,043 1,502
Structures 850 500 47250
General Requirements 15,578 865
Bond Premium 20,771 1154
Contractor Overhead 0 0
Contractor Profit 103,854 5,770
Off-site improvements 0 0
~.. Construction Contingency (5%) 57,899 3,217
Total New Construction Costs 1,236,645 68,703
Architecture - Design 100,000 5556
~.. Architecture - Supervision 10,000 556
Survey and Engineering 30,000 1,667
Construction Loan Interest 49,714 2,762
Bridge Loan Interest 0 0
COnstruction Loan Origination Fees 9,671 537
Bond Premium 0 0
Taxes 15,000 833
Insurance 4,500 250
Title and Recording - Constr. Loan 3,000 167
Perm. Loan Origination Fees 3,338 165
Title and Recording Perm. Loan 3000 167
Lender Legal Fees Pd By SBCS 6500 361
Legal: Acquisition 2,000 111
Construction Closing 12,000 667
Permanent Closing 2,500 139
Organization of Partnership 5,000 276
Syndication 25,000 1,369
Appraisal 9,500 526
Operating Reserves 27,000 1,500
Construction Review 6,500 361
TCAC App/AlloclMonitoring Fees 20,302 1,126
./ Environmental Audit 12,000 667
~.. Local Permits and Fees 366,532 21,474
9 Marketing 1,000 56
I) Relocation Expense 0 0
1 Furnishings 0 0
Other Accounting 12,000 667
Other - Coop Training Support 1,000 56
I Title Recording Land 7,000 369
i Soft Cost Contingency 26,772 1,598
i Developer Overhead/Profit 160 000 6669
, Consultant Processing Agent Fees 10,000 556
i Syndication Consulting 25 000 1389
Project Adminstration 0 0
Total Soft Costs 967,629 54,679
Total Development Costs 2,597,414 144,301
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ATTACHMENT 8
AMENDED AND RESTATED TROLLEY TERRACE
.
CONVEYANCE AGREEMENT AND
ESCROW INSTRUCTIONS
THE CITY OF CHULA VISTA,
a California municipal corporation
"CITY"
SOUTH BAY COMMUNITY SERVICES
a California non-profit public benefit corporation
"DEVELOPER"
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TABLE OF CONTENTS
ARTICLE 1 Recitals · · · · · · · · · · · · · · · · · · · · · 1
1.1 The Property. · · · · · · · · · · · · · · · · · · · 1
1.2 Developer. · · · · · · · · · · · · · · · · · · · · 1
1.3 The Proposed Project. · · · · · · · · · · · · · · · 1
1.4 Previous Agreement. · · · · · · · · · · · · · · · · 1
1.5 New TCAC Application; Amended and Restated Agreement 1
ARTICLE 2 Definitions . · · · · · · · · · · · · · · · · · · · 2
2.1 "Acceptance Date" · · · · · · · · · · · · · · · · · 2
2.2 "Agency" · · · · · '. · · · · · · · · · · · · · · · 2
2.3 "city Loan Agreement" . . . . . . · · · · · · · · · 2
2.4 "Appraised Value of the Property" · · · · · · · · · 2
2.5 "Cash" · · · · · · · · · · · · · · · · · · · · · · 2
2.6 "Closing Date" · · · · · · · · · · · · · · · · · · 2
2.7 "Close of Escrow" · · · · · · · · · · · · · · · · · 2
2.8 "city" · · · · · · · · · · · · · · · · · · · · · · 2
2.9 "County" · · · · · · · · · · · · · · · · · · · · · 2
2.10 "Disposition and Development Agreement" · · · · · · 2
2.11 "Escrow Holder" · · · · · · · · · · · · · · · · · · 2
2.12 "General and special real estate taxes" · · · · · · 2
2.13 "Opening of Escrow" · · · · · · · · · · · · · · · · 3
2.14 "New Parcel Map" · · · · · · · · · · · · · · · · · 3
2.15 "Proposed Project" · · · · · · · · · · · · · · · · 3
2.16 "Title Insurer" · · · · · · · · · · · · · · · · · · 3
ARTICLE 3 Conveyance of the Property · · · · · · · · · · · · 3
3.1 Conveyance of the Property. · · · · · · · · · · · · 3
3.2 Consideration for Property. · · · · · · · · · · · · 3
ARTICLE 4 Conditions Precedent · · · · · · · · · · · · · · · 3
4.1 Conditions Precedent. · · · · · · · · · · · · · · · 3
4.2 Satisfaction, Waiver and Failure of Conditions;
Termination. · · · · · · · · · · · · · · · · · · · 4
4.3 Performance By The Other Party. · · · · · · · · · · 5
ARTICLE 5 Developer to Obtain Approvals for and Develop the
Proposed Project · · · · · · · · · · · · · · · · · 5
ARTICLE 6 city's and Developer's Deliveries to Escrow
Holder · · · · · · · · · · · · · · · · · · · · · · 5
6.1 Title/Other Information. · · · · · · · · · · · · · 5
6.2 Reconveyances. · · · · · · · · · · · · · · · · · · 5
6.3 Signature/Acknowledgment of Grant Deed. · · · · · · 5
6.4 Deed of Trust. · · · · · · · · · · · · · · · · · · 5
6.5 Developer Charges. · · · · · · · · · · · · · · · · 6
ARTICLE 7 Right to Enter · · · · · · · · · · · · · · · · · · 6
7.1 Right to Enter the Property. · · · · · · · · · · · 6
7.2 Insurance. · · · · · · · · · · · · · · · · · · · · 6
ARTICLE 8 Condition of Title/Title Insurance · · · · · · · · 7
8.1 Title. · · · · · · · · · · · · · · · · · · · · · · 7
8.2 Title Insurance. · · · · · · · · · · · · · · · · · 8
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8.3 No Liens for Work on Property. · · · · · · · · · · 8
ARTICLE 9 Prorations, Fees, Costs, Payments and
Reimbursements · · · · · · " · · · · · · · · · · 8
9.1 Taxes and Other Prorations. · · · · · · · · · · · 8
9.2 Developer's Charges. · · · · · · · · · · · · · · 8
ARTICLE 10 Distribution of Funds and Documents . · · · · · · 8
10.1 Retention of Cash. · · · · · · · · · · · · · · · 9
10.2 Disbursements. · · · · · · · · · · · · · · · · · 9
10.3 Payment of Encumbrances. · · · · · · · · · · · · 9
10.4 Return After Recording. · · · · · · · · · · · · · 9
10.5 Delivery of Instruments. · · · · · · · · · · · · 9
10.6 Delivery of Cash. · · · · · · · · · · · · · · · · 9
10.7 Delivery of Copy of Instruments. · · · · · · · · 9
ARTICLE 11 Close of Escrow or Termination of Agreement . · · 9
11.1 Close of Escrow. · · · · · · · · · · · · · · · · 9
11.2 Termination of Escrow. · · · · · · · · · · · · 10
ARTICLE 12 Escrow Holder's General Provisions · · · · · · · 10
ARTICLE 13 "As Is" Conveyance · · · · · · · · · · · · · · · 10
13.1 Limit on Escrow Holder's Responsibility. · · · · 10
13.2 "As Is" Conveyance. · · · · · · · · · · · · · · · 10
13.3 No Brokerage Commission or Finder's Fee. · · · · 11
ARTICLE 14 Hazardous Materials . · · · · · · · · · · · · · · 11
14.1 Hazardous Materials. · · · · · · · · · · · · · · 11
14.2 Indemnity of City. · · · · · · · · · · · · · · · 12
ARTICLE 15 Assignment · · · · · · · · · · · · · · · · · · · 12
15.1 Limit on Escrow Holder's Responsibility. · · · · 12
15.2 Assignment Must be Approved by city. · · · · · · 12
15.3 Effect of Approved Assignment. · · · · · · · · · 13
15.4 Assignor's Obligations. · · · · · · · · · · · · · 13
ARTICLE 16 General provisions · · · · · · · · · · · · · · · 13
16.1 Gender, Number. . . . . · · · · · · · · · · · · · 13
16.2 Business Days. .... · · · · · · · · · · · · · 13
16.3 Survival of Provisions. · · · · · · · · · · · · · 13
16.4 Authority of Signatories. · · · · · · · · · · · · 13
16.5 Joint and Several Liability. · · · · · · · · · · 13
16.6 Reservation of Discretion. · · · · · · · · · · · 14
16.7 City's Certification Re Non-Foreign Status. · · · 14
16.8 Captions. · · · · · · · · · · · · · · · · · · · · 14
16.9 Entire Agreement. · · · · · · · · · · · · · · · · 14
16.10 Exhibits. · · · · · · · · · · · · · · · · · · · · 14
16.11 Modifications. · · · · · · · · · · · · · · · · · 14
16.12 Attorney's Fees and Costs. · · · · · · · · · · · 15
16.13 Successors. · · · · · · · · · · · · · · · · · · · 15
16.14 Counterparts. · · · · · · · · · · · · · · · · · · 15
16.15 Applicable Law. · · · · · · · · · · · · · · · · · 15
16.16 Time of Essence. · · · · · · · · · · · · · · · · 15
16.17 Notices. · · · · · · · · · ~;~Jj/ · · · · · 15
~
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AMENDED AND RESTATED TROLLEY
CONVEYANCE AGREEMENT AND ESCROW XNSTRUCTXONS
This AMENDED AND RESTATED TROLLEY TERRACE CONVEYANCE AGREEMENT
AND ESCROW INSTRUCTIONS ("Agreement") is'entered into effective as
of March 18, 1997, between THE CITY OF CHULA VISTA, a California
municipal corporation, ("city") and SOUTH BAY COMMUNITY SERVICES,
a California non-profit public benefit corporation ("Developer").
This Agreement constitutes (i) a contract of conveyance, and (ii)
escrow instructions to Chicago Title Company ("Escrow Holder"),
whose consents appears at the end of this Agreement.
ARTXCLE 1
Recitals
1.1 The Property. ci ty owns that certain real property
comprised of approximately 1.16 acres located on the corner of Ada
Street and Industrial Boulevard in the city of Chula Vista, County
of San Diego, State of California, more particularly described in
Exhibit "A" attached (the "Property").
1.2 Developer. Developer is a California non-profit public
benefit corporation which performs multiple social services and
low/moderate income housing services in the City.
1.3 The Proposed Project. Developer (or a limited
partnership in which Developer is a general partner) intends to
acquire the Property for the purposes of improving it with a multi-
family residential project consisting of eighteen units and
providing affordable housing for very-low income persons, (the
"Proposed Project"). The Proposed Project is more particularly
described on Exhibit "B" attached.
1.4 Previous Agreement. city and Developer entered into that
certain Conveyance Agreement and Escrow Instructions dated May 21,
1996 ("Original Agreement"), pursuant to which city agreed to
convey the Property to Developer for purposes of developing the
Proposed Project subject to certain terms and conditions as more
particularly set forth therein. However, the conditions to close
in the Original Agreement were not satisfied in a timely manner
because the Developer did not obtain a preliminary allocation of
tax credits for the Proposed Project from the California Tax Credit
Allocation Committee by November 30, 1996, as required by Section
4.1(c) of the Original Agreement.
.',
1.5 New TCAC Application; Amended and Restated Agreement.
Developer desires to apply again for the tax credits necessary to
finance the Proposed Project on revised terms. City and Developer
desire to amend and restate the Original Agreement with this
Agreement in order to allow for this new application on the terms
and conditions set forth herein.
1
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ARTICLE 2
Definitions
Unless the context otherwise indic~tes, the following shall
have the meanings as set forth in this Article:
2.1 "Acceptance Date" means the date of signature of City or
Developer, whichever is the last to sign this Agreement.
2.2 "Agency" means the Redevelopment Agency of the City of
Chula vista.
2.3 "city Loan Agreement" means a loan agreement by which
the cit;y agrees to loan funds to Developer for the Proposed
Project. .
2.4 "Appraised Value of the Property" means $372,940, as
established by that certain appraisal by Rasmuson Appraisal
Consultants, Inc. , MAl, dated December 28, 1993.
2.5 "Cash" means (i) currency, (H) if acceptable to Escrow
Holder, a check or checks currently dated, payable to Escrow Holder
or order and honored upon presentation for payment, or (Hi) funds
wire-transferred or otherwise deposited into Escrow Holder's
account at Escrow Holder's direction.
2.6 "Closing Date" means the date scheduled for Close of
Escrow, and unless otherwise agreed to in writing by City and
Developer, or as otherwise set forth herein, the Closing Date shall
be December 31, 1996.
2.7 "Close of Escrow" means the date city's Grant Deed (a
copy of which is attached as Exhibit "C" hereto) and other
documents are filed for record.
2.8 "City" means the city of Chula Vista, a California
municipal corporation.
2.9 "County" means the County of San Diego, State of
California.
2.10 "Disposition and Development Agreement" means the
agreement between city and Developer described in Section 4.1(a).
2.11 "Escrow Holder" means Chicago Title Company, whose
address is 3703 Camino Del Rio South, suite 100, San Diego, Ca.
92108.
2.12 "General and special real estate taxes" means all
charges evidenced by the secured tax bill issued by the Tax
Collector of the County, including, but not limited to, amounts
allocated to (i) County or City general governmental purposes, (H)
bonded indebtedness of the County or City, ( Hi) bonded or other
2
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indebtedness and operating expenses of any school, college, sewer,
water, irrigation, hospital, library, utility, county service,
community facilities district or other district, and (iv) any other
lawful purpose.
2.13 "Opening of Escrow" means the date of, and act of,
Escrow Holder signing the "Consent of Escrow Holder" attached to
this Agreement.
2.14 "New Parcel Map" means the new parcel map which will be
processed, approved and recorded to subdivide the Property and the
adjacent city-owned property ·into two legal lots. Upon the
recording of the New Parcel Map, the new legal description of the
Property as established by the New parcel Map will replace the
legal description on Exhibit "A" attached for all purposes. The
exact property lines of the Property as shown on the New Parcel Map
may vary slightly from those shown on Exhibit "A", but neither any
such variations nor any easements dedicated or other matters shown
on the New Parcel Map shall materially impair Developer's ability
to develop the Proposed Project.
2.15 "proposed proj ect" means the proj ect described in
Section 1.3.
2.16 "Ti tie rnsurer" means CHICAGO TITLE COMPANY, wi th
offices at 3703 Camino del Rio South, Suite 100, San Diego,
California 92108.
ARTICLE 3
conveyance of the Property
3.1 conveyance of the Property. city agrees to grant the
Property to Developer, and Developer agrees to accept the grant of
the Property, on the terms of this Agreement.
3.2 Consideration for property. City and Developer agree
that the fair market value of the Property is the Appraised Value.
city and Developer further agree as consideration for receiving
title to the Property, Developer (a) shall pay the city $372,940
from residual receipts from the Proposed Project, at 3% simple
interest per year over a 55 year period, as more particularly set
forth in the city Loan Agreement and/or Disposition and Development
Agreement; and (b) shall develop the Proposed Project on the
Property in accordance with the terms and conditions of the
Disposition and Development Agreement and the City Loan Agreement.
ARTrCLE 4
Conditions Precedent
4.1 Conditions Precedent. This Agreement, the consummation
of the transaction herein contemplated, the respective rights and
obligations of the parties hereto, and the Close of Escrow are
subject to and contingent upon the good faith satisfaction and
3
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completion of each of the following conditions precedent which are
deemed to be for the mutual benefit of the parties, or the written
waiver thereof by the parties, which are more particularly set
forth below. The time for the approval al,ld satisfaction of each of
the conditions precedent are specified in the paragraphs below.
(a) Disposition and Development Agreement. City and
Developer shall have entered into a Disposition and Development
Agreement by the date following 60 days after the award of tax
credits in accordance with section 4.1(c), hereof, but in no event
later than December 31, 1997, relating to the development of the
Property with the Proposed Proj-ect, and all conditions precedent to
Close of Escrow in the Disposition and Development Agreement shall
have been satisfied.
(b) city Loan Agreement. City and Developer shall have
entered into the City Loan Agreement by the date following 60 days
after the award of tax credits in accordance with section 4.1(c),
hereof, but in no event later than December 31, 1997, relating to
the loan from city to Developer for the Proposed Project in an
amount not less than the amount approved by City pursuant to duly
adopted resolution(s) on March 18, 1997.
(c) Tax Credits. Developer shall have received a
preliminary allocation of federal and/or state low income housing
tax credits from the California Tax Credit Allocation Committee by
December 31, 1997 in an amount acceptable to city and Developer.
(d) New Parcel Map. A duly approved New Parcel Map
shall have been recorded or is recorded concurrently with the Close
of Escrow.
(e) Condition of the property. Developer shall have
reviewed and reasonably approved the condition of the Property.
(f) Feasibility. Developer and city shall have
reasonably determined that the Proposed Project is feasible.
(g) Title. Developer shall approve the condition of
title to the Property and the Title Insurer shall be committed to
issue the required Title Policy pursuant to Article 8 hereof.
4.2 satisfaction, Waiver and Failure of Conditions;
Termination. The waiver of a condition will be effective only if
the same is (i) in writing, (ii) signed by the parties and (iii)
delivered to Escrow Holder and the other parties before termination
of the Agreement. Failure of a condition to be satisfied or waived
within the time provided for satisfying or waiving the condition
shall allow any party not then in default to terminate this
Agreement. If any conditions remain not satisfied (and are not
waived) by December 31, 1997, or such earlier date specified herein
for such condition(s) satisfaction, then any party may terminate
4
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this Agreement at any time before all conditions are satisfied or
waived.
4.3 Performance By The Other Party. Each party's obligation
to perform under this Agreement is subject to material performance
of any prior or concurrent obligation of the other party.
ARTICLE 5
Developer to Obtain Approvals for and Develop the Proposed project
5.1 Developer agrees to use its best efforts and due
diligence to obtain all required approvals, tax credit allocations,
and do all things reasonably required to satisfy all conditions to
the Agreement, and otherwise obtain approval of the Proposed
Project and cause escrow for the Property to close, and once
construction has commenced for the Proposed Project, to diligently
pursue the completion of the Proposed Project.
5.2 City agrees to use reasonable efforts to satisfy the
conditions precedent to this Agreement under its control and to
cause escrow to close hereunder. Notwithstanding the foregoing,
nothing contained in this section shall limit city's reservation of
discretion as provided in section 16.6 hereof, below.
ARTICLE 6
city's and Developer's Deliveries to Escrow Holder
6.1 Tit1e/other Information. within five (5) days of a
request to produce, city and Developer shall furnish such
information as is required by Title Insurer. In addition, each
party shall, within two (2) days of a request, furnish evidence of
such party's legal capacity and a designation of individuals
authorized to bind such party.
6.2 Reconveyances. At least two (2) days before the Closing
Date, City shall arrange for the execution, acknowledgement and
delivery to Escrow Holder for recording at Close of Escrow full
reconveyances of any deed(s) of trust on the Property, or otherwise
provide such assurances as the Title Company may reasonably require
in order to allow the issuance of the required Title Insurance free
from any deed(s) of trust.
6.3 Signature/Acknowledgment of Grant Deed. At least two (2)
days before the Closing Date, City shall execute and acknowledge
the Grant Deed for the Property substantially in the form attached
as Exhibit "c" to this Agreement. If required by the Disposition
and Development Agreement, the Grant Deed may contain a power of
termination in favor of city pursuant to California civil Code
Section 885.010 et seq. to secure Developer's obligations under the
Disposition and Development Agreement.
6.4 Deed of Trust. At least two (2) days before the Closing
Date, Developer shall execute, acknowledge and deliver to Escrow
5 - //-02:1
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Holder for recording at Close of Escrow any deed of trust required
by the Disposition and Development Agreement to secure Developer's
obligations under the Disposition and Development Agreement and/or
the City Loan Agreement.
6.S Developer Charges. At least one (1) day prior to Close
of Escrow, Developer shall deliver to Escrow Holder those amounts
required by Article 9 below.
ARTICLE 7
Right. to Enter
7.1 Right to Enter the Property. Developer , its venture
partners. and their respective employees, agents and independent
contractors may prior to the Closing reasonably go upon the
Property to inspect, survey and test the Property and to design
Developer's planned improvements and the like. Developer will hold
city and the Property harmless from any claim, cost, lien, action
or judgment (including without limitation, City's attorney's fees
and defense costs) (i) incurred by or through Developer for the
services of surveyors, engineers, architects and others, or (ii)
incurred by reason of any personal injury or property damage
resulting from any accident, hazardous waste spill or other event
resulting from such entries by Developer or its agents, employees
or independent contractors. Developer will not be liable or
responsible for temporary damage to the Property which is
reasonably necessary to the investigation of its physical
characteristics, including soils tests and surveying provided,
however, the Developer shall promptly cause any test pits and
borings to be back-filled and properly compacted. Termination of
this Agreement will not terminate Developer's obligations
hereunder.
Developer agrees to give city at least two weeks prior written
notice before entering the Property when the purpose of such entry
is to conduct an environmental or hazardous materials surveyor
study.
7.2 Insurance. As a condition of the right of entry granted
in Section 7.1, Developer shall secure and maintain, at Developer's
sole cost, the following policies of insurance, in which Developer
shall be a named insured and shall include coverage of Developer's
and its agents' contractors', subcontractors' and employees'
activities on or in any way relating to the Property: (a) Broad
Form comprehensive or commercial public liability insurance,
including direct contractual and contingent liability coverages,
with limits of not less than $1,000,000 per occurrence for bodily
injury, property damage or personal injury, and $2,000,000 general
policy aggregate (or alternatively $1,000,000 on a per project
basis) ; (b) comprehensive automobile liability insurance with
limits of not less than $500,000 for personal injury to, or death
of, anyone person, $1,000,000 for bodily injury to, or death of,
6
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- ,.----- -- --_..~--- .~_. -----..-
from anyone accident or occurrence (alternatively $1,000,000
combined single limit for anyone accident or occurrence), and
$500,000 for property damage in anyone accident; (c) workers'
compensation in accordance with the provisions of California law;
and (d) employer's liability insurance of' not less than $1,000,000.
The policies of insurance described in clauses (a) and (b) above
will name City as an additional insured party pursuant to Form B or
similar endorsement and contain a provision that such policy may
not be terminated without thirty (30) days' written notice of the
proposed termination to city (except that only ten (10) days'
written notice of termination shall be required for nonpayment of
premium) . Certificates of insurance evidencing the insurance
policies described in this paragraph will be delivered by Developer
to City.before entry onto the Property by Developer or its agents
or contractors. Claims made coverage is unacceptable. The
insurance coverage required by this section 7.2 may be provided
under a "blanket" policy or policies of insurance also covering
other locations, so long as the requirements of this Section are
met. Before undertaking any activity on the Property which
requires a permit from the appropriate governmental agency,
Developer will obtain such permit and pay any fee or expense
required to obtain or carry out said permit. Any contractor,
surveyor, engineer or similar provider of materials or services who
enters the Property on behalf of Developer must also obtain similar
insurance if City requests they do so.
ARTICLE 8
Condition of Title/Title Insurance
8.1 Title. City agrees, at Close of Escrow, to convey title
to the Property to Developer subject only to:
(a) All standard exceptions and exclusions from coverage
typically set forth in a standard CLTA Owner's title policy.
(b) Non-monetary encumbrances (other than those
described below) reflected in that certain Preliminary Title Report
prepared by Title Insurer with respect to the Property (Order No.
000995289 13) dated April 16, 1996.
(c) General and special real estate taxes and
assessments (including, but not limited to, any applicable
assessment or community facilities districts) which are, as of the
close of escrow, not delinquent and supplemental taxes, if any,
assessed pursuant to California Revenue and Taxation Code Section
75 and following.
(d) Easements dedicated on the New Parcel Map, any other
final map of the Property or reserved in the grant deeds or
otherwise required for development of the Property.
(e) The reservation of water rights and any power of
termination set forth on the Grant Deed.
7 / / -,,;L~
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(f) Any covenants, conditions and restrictions required
by law.
(g) Any lien or other encumbra!,\ce voluntarily imposed by
Developer or its successors or assigns. .
(h) Any lien required by the city Loan Agreement.
8.2 Title Insurance. Prior to Close of Escrow Developer at
Developer's sole cost, shall obtain a Title Policy from Title
Insurer consistent with the terms and conditions of Section 8.1
hereof. City shall reasonably cooperate in connection with any
survey required by Title Insurer in connection therewith.
8.3 No Liens for Work on Property. On the Closing Date, the
City will not be indebted to any contractor, laborer, mechanic,
materialman, architect, engineer or any other person for work,
labor or services performed or rendered, or for materials supplied
or furnished, in connection with the Property for which any such
person could claim a lien against the Property except as may have
been previously approved by Developer in writing.
ARTICLE 9
Prorations, Fees, Costs, Payments and Reimbursements
9.1 Taxes and Other Prorations. Escrow Holder will prorate
(that is, apportion) between the parties, in cash, to Close of
Escrow, on the basis of a thirty (30) days month, general and
special real estate taxes and assessments, based on the regular tax
bill for the fiscal year in which the escrow closes, and any other
income or expenses related to the Property identified by both City
and Developer. If such tax bill has not been issued as of the
Closing Date, such proration shall be based on the regular tax bill
for the fiscal year preceding that in which this escrow closes.
The proration of taxes and assessments shall be without regard to
any supplemental assessments levied pursuant to California Revenue
and Taxation Code sections 75 and following unless such
supplemental taxes have been levied and shown on a tax bill.
9.2 Developer's Charges. Developer shall pay (i) the cash
payment of $41,400 for the Property required by Section 3.2 hereof;
(ii) Escrow Holder's fee for the escrow for the conveyance from
City to Developer and any sub-escrow fees related to Proposed
Project financing; (iii) the County Documentary Transfer Tax, of
any; (iv) usual document-drafting and recording charges; and (v)
the cost of any title insurance policy or endorsements desired by
Developer pursuant to section 8.2 hereof.
ARTICLE 10
Distribution of Funds and Documents
8 J/-,2?
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10.1 Retention of Cash. All Cash received by Escrow Holder
will be, until Close of Escrow, or unless otherwise provided
herein, kept on deposit with other escrow funds in Escrow Holder's
general escrow account(s). Escrow Holder will not have any
obligation to pay interest on cash received.
10.2 Disbursements. Any disbursements by Escrow Holder will
be made by checks unless otherwise Escrow Holder is otherwise
unilaterally instructed by the party receiving such disbursement.
10.3 Payment of Encumtlrances. Escrow Holder will, at the
close of this escrow, pay, from-funds deposited by City with Escrow
Holder, to the appropriate obligees, all existing deeds of trust
and mortgages, provided that City has approved the beneficiary
demands, which approval shall not be unreasonably withheld.
10.4 Return After Recording. Escrow Holder will cause the
County Recorder to mail the city's grant deed (and each other
instruments which is herein expressed to be, or by general usage
is, recorded) after recordation, to the grantee, beneficiary or
person (i) acquiring rights under said document, or (ii) for whose
benefit the instrument was acquired.
10.5 Delivery of Instruments. Escrow Holder will, at the
close of this escrow, deliver by United states mail (or will hold
for personal pickup, if requested) each non-recorded instrument
received by Escrow Holder to the payee or person (i) acquiring
rights under the instrument, or (ii) for whose benefit the
instrument was acquired.
10.6 Delivery of Cash. Escrow Holder will, at the close of
this escrow, deliver by united states mail (or will hold for
personal pickup, if requested) (i) to City, or order, any excess
funds delivered to Escrow Holder by city and (ii) to Developer, on
order, any excess funds delivered to Escrow Holder by Developer.
10.7 Delivery of copy of Instruments. Escrow Holder will, at
Close of Escrow, deliver to City a copy of city's grant deed and
each document recorded to place title in the condition required by
this Agreement.
ARTICLE 11
Close of Escrow or Termination of Agreement
11.1 Close of Escrow. Escrow Holder will close escrow for
the Property by recording the grant deed at Close of Escrow.
Escrow shall close no later than the Closing Date. Each party
further covenants that it will diligently use its best efforts to
cause escrow to close for the Property. If Escrow Holder cannot
close escrow on or before the Closing Date, it will, nevertheless
close this escrow when all conditions have been satisfied or waived
unless, after the Closing Date and prior to the close of this
escrow, Escrow Holder receives a written notice to terminate this
9
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--_..~... ."-'-'-..-
escrow from a party who, at the time the notice is delivered, is
not in default under this Agreement. Nothing herein stated shall
be deemed, however, to imply that time is not of the essence of
this Agreement.
11.2 Termination of Escrow. Escrow Holder will have no
liability or responsibility for determining whether or not a party
giving a notice of termination is in default under this Agreement.
Within three (3) working days after receipt of a termination notice
from one party, Escrow Holder will deliver one copy of the notice
to the other party. Unless written objection to termination of
this escrow is received by Escr~w Holder within ten (10) days after
Escrow Holder delivers the notice to the other party, Escrow Holder
will promptly terminate this escrow and return all funds and
documents held by it to the party depositing the same, except that
Escrow Holder may retain such funds and documents usually retained
by escrow agents in accordance with standard escrow termination
procedures. Escrow Holder may (i) retain any passbooks or
certificates on deposit with Escrow Holder until such time as its
escrow fees are paid in full, or (ii) deduct from any funds held by
Escrow Holder a sufficient amount to pay its escrow fees in full.
If written objection to the termination of this escrow is delivered
to Escrow Holder within the ten (10) day period, Escrow Holder is
authorized to hold all funds and documents delivered to it in
connection with this escrow and Escrow Holder may, in Escrow
Holder's sole discretion, take no further action until otherwise
directed, either by the parties' mutual written instructions or by
a final order of judgment of a court of competent jurisdiction.
ARTICLE 12
Escrow Holder's General provisions
Escrow Holder's General Provisions, attached hereto as Exhibit
"D" are hereby made a part of this Agreement.
ARTICLE 13
"As Is" Conveyance
13.1 Limit on Escrow Holder's Responsibility. Escrow Holder
shall have no concern with, nor liability nor responsibility for,
this Article.
13.2 "As Is" conveyance. Except as otherwise set forth in
this Agreement, city is making absolutely no representations or
warranties with respect to the Property, and Developer will accept
the Property, and the matters relating to the Property listed
below, in their present "as is" condition. The matters are:
(a) Soils. Toooaraohv. Etc. Soils and geological
condition; topography, area and configuration; archeological,
prehistoric and historic artifacts, remains and relics;
contamination by Hazardous Materials; endangered species and
wetlands.
10 J/~~
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(b) utilities. Schools. Etc. Availability of utilities,
schools, public access, and fire and police protection.
(c) Districts. The stat;us, special taxes and
assessments of any and all Mello-Roos Community Facility Districts
and assessment districts.
(d) Plannina and Zonina. Applicable planning, zoning
and sUbdivision statutes, ordinances, regulations and permits.
(e) Development Fees. The character and amount of any
fee or charge which must be ·paid by Developer to develop the
Property.
(f) Easements and Encroachments. Any easement, license
or encroachment which is not a matter of public record, whether or
not visible upon inspection of the Property.
(g) Other Matters. Any other matter relating to the
Property or to the development of the Property, including, but not
limited to, value, feasibility, cost, governmental permissions,
marketing and investment return, except as otherwise expressly
provided in this Agreement.
13.3 No Brokerage Commission or Finder's Fee. Each party
warrants to the other that the warranting party has incurred no
obligation, by reason of this Agreement or the transaction
contemplated hereby, for a real estate brokerage commission or
finder's fee for which the other party would be liable. Each party
will hold the other party free and harmless from and against any
damage or expense the other party may incur by reason of the
untruth as to the warranting party of the foregoing warranty,
including expenses for attorney's fees and court costs.
ARTICLE 14
Hazardous Materials
14.1 Hazardous Materials. The term "Hazardous Materials"
means any material or substance which is (i) defined as a
"hazardous waste" , extremely hazardous waste" , "restricted
hazardous waste", "hazardous material", "hazardous substance", or
any similar formation under or pursuant to any California statute
or common law rule¡ (ii) petroleum and natural gas liquids as those
terms are used in §109(14) of the Comprehensive Environmental
Response, Compensation & Liability Act, 42 U.S.C. §6901, et seq.
(41 U.S.C. §6903)¡ (iii) asbestos¡ (iv) polychlorinated biphenyls¡
(v) designated as a "hazardous substance" pursuant to §311 of the
Clean Water Act, 33 U.S.C., §1251, et seq. (33 U.S.C. §1321) or
listed pursuant to §307 of the Clean Water Act (33 U.S.C. Sl317)¡
(vi) defined as a "hazardous waste" pursuant to S1004 of the
Resource Conversation & Recovery Act, 42 U.S.C. S6903) ¡ or (vii)
defined as a "hazardous substance" pursuant to Comprehensive
11 /1<27
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Environmental Response, Compensation and Liability Act, 42 U.S.C.
§9601, et seq. (41 U.S.C. §9601).
14.2 Indemnity of city. As a material inducement to City,
without which city would not have agreed to the terms set forth
herein, Developer, for itself and its successors and assigns,
hereby agrees to indemnify, defend and hold harmless City and each
of City's employees, agents, attorneys, successors and assigns of
city ("Indemnified Parties"), from and against any and all present
and future liability, losses, damages (including foreseeable or
unforeseeable consequential damages), penalties, fines,
forfeitures, response costs and expenses (including out-of-pocket
litigation costs and reasonable attorneys' fees) directly or
indirectly arising out of (i) the use, generation, storage,
transportation, release, discharge or disposal of Hazardous
Materials on or in the Property by Developer or the partners of
Developer or its respective employees, contractors, subcontractors
or agents, including, without limitation, the cost of any required
or necessary repair, cleanup or detoxification and the preparation
of any closure or other required plans; excluding, however, from
Developer's indemnity any such liability, losses, damages
(including foreseeable or unforeseeable consequential damages),
penalties, fines, forfeitures, response costs and expenses
(including out-of-pocket litigation costs and reasonable attorneys'
fees) directly or indirectly arising out of the actions of City,
Agency or their respective employees, contractors, subcontractors
or agents. The indemnity obligation of this Section 14.2 is not
assignable.
ARTICLE 15
Assignment
15.1 Limit on Escrow Holder's Responsibility. Escrow Holder
shall have no concern with, nor liability nor responsibility for,
this Article.
15.2 Assignment Must be Approved by city. Neither Developer,
nor any person or entity constituting Developer, nor any assignee
of City's or any such person's or entity's rights hereunder, will
have the right or power to assign its or their rights hereunder
without first having obtained City's written approval of any such
assignment. Approval of anyone assignment will not constitute a
waiver of city's right to approve or disapprove any subsequent
proposed assignment. Except as stated in the next sentence, City
shall have absolute discretion to withhold its consent to any such
assignment. Notwithstanding the first sentence of this Section,
city shall approve an assignment of Developer's rights (except for
such rights as are designated as not assignable and such
obligations as are designated as not delegable within this
Agreement;) to a limited partnership of which Developer is a
general partner; any such assignee must assume city's obligation
under this Agreement.
12 J/~3CJ
_ "_'__",._...n~"_" _ ____"..--.._
15.3 Effect of Approved Assignment. Except as otherwise
provided in this Agreement, in the event of any such approved
assignment, the assignee will be and become (i) the grantee of
City's Grant Deed; and (ii) the person(s) having the right or
obligation to (a) deliver statements, (b) deliver documents, (c)
give approvals, (d) waive conditions, or (e) make demands, all as
may be permitted or required by this Agreement and not then already
accomplished by Developer or another approved assignee.
15.4 Assignor's Obligations. No assignment pursuant to this
Article will relieve the assignor of any of its obligations under
this Agreement. .
ARTrCLE 16
General provisions
16.1 Gender, Number. Whenever the context requires, the use
herein of (i) the neuter gender includes the masculine and the
feminine, and (ii) the singular number includes the plural.
16.2 Business Days. If the (i) stated Closing Date, or (ii)
last day for performance of an act falls upon a day during which
Escrow Holder is not open for business, the Closing Date or such
last day, as the case may be, will be the next following regular
business day of Escrow Holder.
16.3 Survival of Provisions. The representations,
warranties, agreements and indemnities set forth in this Agreement
will remain operative, will be deemed made at the close of escrow,
and will survive the closing and the execution and delivery of
City's grant deed.
16.4 Authority of signatories. Each individual signing this
Agreement on behalf of the city warrants that (i) he or she is duly
authorized to sign and deliver this Agreement on behalf of the City
in accordance with a duly adopted resolution of the city Council of
the City and (ii) this Agreement is binding upon the city in
accordance with its terms. Each individual signing this Agreement
on behalf of a corporation warrants that (i) he or she is duly
authorized to sign and deliver this Agreement on behalf of the
corporation, in accordance with a duly adopted resolution of the
board of directors of the corporation or in accordance with the
bylaws of the corporation, and (ii) this Agreement is binding upon
the corporation in accordance with its terms. South Bay Community
Services represents that it has the authority to execute this
Agreement on behalf of Developer and this Agreement is binding upon
Developer in accordance with its terms.
16.5 Joint and Several Liability. If either party consists
of more than one person, the liability of each person signing this
Agreement will be joint and several.
13 //-3/
............~--_..-..-
16.6 Reservation of Discretion. Developer acknowledges and
agrees that nothing contained in this Agreement is intended to, nor
shall have the effect of, reducing the city's legal authority,
discretion or obligation to consider approval or disapproval of
future agreements and other discretionary actions contemplated
hereby or otherwise required in the normal course of business with
respect to the property or the Proposed Project. Developer agrees
to waive any and all claims against City, Agency, and their
respective agents, employees and representatives arising from the
city's election within the scope of its authority and discretion to
disapprove any such agreements or other discretionary actions with
respect to the Property on the Proposed Project. City acknowledges
and agrees that any such election by Development shall not
constitute a breach of this Agreement.
16.7 City's certification Re Non-Foreign status. City
understands that section 1445 of the Internal Revenue Code provides
that a transferee of a United states real property interest must
withhold tax if the transferor is a foreign person. To inform
Developer that withholding of tax is not required upon the
disposition by City of the Property pursuant to this Agreement,
City hereby certifies the following and understands that this
certification may be disclosed to the Internal Revenue Service by
Developer:
(a) City is not a foreign corporation, foreign
p~rtnership, foreign trust or foreign estate (as those terms are
defined in the Internal Revenue Code and Income Tax Regulations).
(b) City's united states Employer Identification Number
is 95-6000690.
(c) City's office address is 276 Fourth Avenue, Chula
Vista, Ca. 91910
16.8 Captions. Captions in this agreement are inserted for
convenience of reference only and do not define, describe or limit
the scope or the intent of this Agreement.
16.9 Entire Agreement. This Agreement contains the entire
agreement between the parties relating to the transaction
contemplated hereby and all prior or contemporaneous agreements,
understandings, representations and statements, oral or written,
are merged herein.
16.10 Exhibits. All exhibits referred to in this Agreement
are attached, and are a part of, this Agreement.
16.11 Modifications. No modification, waiver or discharge of
this Agreement will be valid unless the same is in writing and
signed by the party against which the enforcement of such
modification, waiver or discharge is or may be sought.
14 /. . 7 'J
J / - -.-J v'-..
.......,..,.....--.....-... "._-
16.12 Attorney's Fees and Costs. If either party commences
litigation for the judicial interpretation, reformation,
enforcement or rescission hereof, the prevailing party will be
entitled to a judgment against the other for an amount equal to
reasonable attorney's fees and court and other costs incurred.
16.13 Successors. All terms of this Agreement will be
binding upon and inure to the benefit of the parties and their
respective administrators or executors, successors and assigns;
nothing contained in this Paragraph will affected Article 15.
16.14 Counterparts. This Agreement may be executed in any
number of counterparts, each of which will be deemed to be an
original, but all of which together will constitute one instrument.
16.15 Applicable Law. This Agreement will be construed and
enforced in accordance with the laws of the state of California.
16.16 Time of Essence. Time is of the essence of each and
every provision of this Agreement in which time in an element.
16.17 Notices. Unless otherwise provided herein, all
notices, demands or other communications given hereunder will be in
writing and will be deemed to have been duly delivered upon
personal delivery, or on receipt of a telecopy, or on the second
business day after deposit with Federal Express or other overnight
courier service, or as of the second business day after mailing by
united states registered or certified mail, return receipt
requested, postage prepaid, addressed as follows:
If to DeveloDer:
South Bay Community Services
315 Fourth Avenue, suite E
Chula Vista, Ca. 91910
Attn: Ken Sauder
Telephone: 420-3620
Telecopier: 420-8722
with a copy to:
Kathryn Lembo, Executive Director
If to Citv:
Community Development Director
City of Chula Vista
276 Fourth Avenue
Chula Vista, Ca. 91910
Attn: Housing Coordinator
Telephone: (619) 691-5047
Telecopier: (619) 476-5310
with a CODV to:
15
- / /~.3 3
___"_______ .__n_.__.______._..__._
city Attorney
city of Chu1a vista
276 Fourth Avenue
Chula Vista, Ca. 91910
Attn: Glen R. Googins, Esq.
Telephone: (619) 691-5037
Te1ecopier: (619) 585-5612
If to Escrow Holder:
Chicago Title Company
3703 Camino Del Rio South, Ste. 100
San Diego, Ca. 92108
Attn: Laurie Baccash
Telephone: (619 ) 282-3200
Telecopier: (619 ) 282-5282
[NEXT PAGE IS SIGNATURE PAGE]
16 , /I~ Jt/
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- .~.._..._._._~-~ ._"-_.._.._,.~-,.
.
SIGNATURE PAGE
TO TROLLEY TERRACE AMENDED AND RESTATED
CONVEYANCE AGREEMENT AND ESCROW INSTRUCTIONS
This Agreement has been executed as of the date set forth at
the beginning hereof.
Date: THE CITY OF CHULA VISTA,
a California municipal corporation
.
ATTEST By
Shirley Horton, Mayor
Approved as to form by
City Attorney
Date: DEVELOPER
H BAY COMMUNITY SERVICES
Ca 'fornia non-profit corporation
17 --
'j/-3,}?
--.- - _....n__ _______. __________.__.,._ .
CONSENT OF ESCROW HOLDER
The undersigned Escrow Holder hereby agrees to (i) accept the
foregoing Agreement, (ii) be escrow agent. under said Agreement, and
( Hi) be bound by said Agreement in the performance of its duties
as escrow agent; provided, however, the undersigned shall have no
obligations, liability or responsibility under (a) this Consent or
otherwise, unless and until said Agreement, fully signed by the
parties, has been delivered to the undersigned, or (b) any
amendment to said Agreement unless and until the same is accepted
by the undersigned in writing.
.
Dated:
By
Escrow Officer
18 --'/I-JÞ
----"_..._--"--- ..-..-..--..-...-....---...-.....
F~CI'! SIERRA CHSCA[:E ':OI'¥:Æ'E: PriCIt-ém. 4311-"1::8 Md~. 12 19;7 12:D~M ~2
\ CITY OF CHULA VISTA
ËNGINEERING EXHIBIT A
DEPT.lPLANNING DEPT.
6.DJUSTMENT PLAT NO. ':)",-12
:ONSOLIDA TION PLAT NO.
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'APPROVAL: RECORDATION:
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BY: BY: DOCUMENT NO. -
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FROM : SIERRA CASCADE CONCRETE PHONE NO. : 4311468 Mar. 12 1957
.
EXHIBIT A
EXHIBIT " A II
PARCEL 1, ADJUSTMENT PLAT NO. ~b -I '2
CHULA VISTA, CA.
ALL THAT PORTION OF LOTS 5, 6 AND 7 OF FAIRFIELD MAP NO. 1849,
LOCATED IN TIIE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF
CAUFORNIA;
.
MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWESTERLY CORNER OF SAID LOT 5, THENCE SOUTH
82"S8'34" EAST, 78,31 FEET TO THE TRUE POINT OF BEGINNING;
1. THENCE SOUTH 82°58'34" EAST, 263.00 FEET;
" TIlENCE SOUTH 06'57'08" WEST, 199.95 FEET;
w.
3, THENCE NORTH 83"02'52" WEST, 263.00 FEET;
4. THENCE NORTI! 06"57'08" EAST, 200.28 FEET TO THE POINT OF BEGINNING.
THE AREA OF DEDICATION IS 52630.36 SQ.FT. OR 1.21 ACRES MORE OR LESS.
þi---M //-,JY
.-..-.. -.,-.-----..
!"Pori : SIERRA CASC¡:¡DE CON':RETE PHONE NO. : 431:468 Mar. 12 i '3'37
EXHIBIT A
EXHIBIT "A"
PARCEL 2, ADJUSTMENT PLAT NO. ~,,-\-z..
CHULA VISTA, CA.
ALL THAT PORTION OF LOTS ~, 6 AND 7 OF FAIRFIELD MAP NO. 1849,
LOCATED IN THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF
CAUFORNIA;
MORE PARTICULARLY DESCRIBED AS F.OLLOWS:
BEGINNING AT THE NORTHWESTERLY CORNER OF SAID LOT S, THENCE SOUTH
8Z'~8'34" EAST, 341.31 FEET TO TIIE TRUE POINT OF BEGINNING;
1. THENCE SOUTH 8i'58'34" EAST, 88.44 FEET;
2. THENCE SOUTH 17"48'43" EAST, 143.67 FEET TO A POINT ON A 5610 FOOT
RADIUS CURVE CONCAVE SOUTHWESTERLY;
3. THENCE ALONG THE ARC OF SAID 5610 FOOT RADIUS CURVE. 26.00 FEET,
THE CHORD OF WHICH BEARS SOUTH 17"40'45" EAST, 26.00 FEET TO A
POINT ON A 32.34 FOOT RADIUS CURVE CONCAVE NORTHWESTERLY;
4. THENCE ALONG THE ARC OF SAID 32.34 POOT RADLUS CURVE, 64.63 PEET,
THE CHORD OF WHICH BEARS SOUTH 39°42'47" WEST, 54.40 FEET;
5, THENCE NORTH 83"02'~2" WEST, 130.02 FEET;
6. THENCE NORTH 06~7'08" EAST, 199.95 FEET TO THE POINT OF BEGINNING,
TIlE AREA OF DEDICATION IS 26299.80 SQ. FT. OR 0.60 ACRES MORE OR LESS.
~ I/~J?
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EXHIBIT B
TROLLEY TERRACE TOWN HOMES
Project Description
South Bay.community Services proposes to build Trolley Terrace Townhomes, an eighteen (18)
unit affordable housing development consisting of 14 three-bedroom units and 4 two-bedroom
units for very-low income families. The project will be located On the corner of Ada Street and
Industrial Boulevard in Chula Vista.
Ten units will be "townhome" style three-bedroom units with 1 ,050 square feet. Eight units will
be flats: four two-bedroom 800 square feet units and four three-bedroom 1 ,050 square feet
units. All ground floor units will be accessible for the physically challenged. The project will have
a large community room, a tot lot for children to play, spacious outdoor common areas, and
laundry facilities. Trolley Terrace Townhomes is conveniently located accross the street from the
Palomar Trolley Station and several commercial shopping centers.
Trolley Terrace Townhomes is being designed as a Limited Equity Cooperative (Coop.), which
will lease Trolley Terrace Townhomes from the SBCS/Tax Credit Investor Limited Partnership.
This "Coop." will be formed by the residents and will be very involved in the day-to-day activities
of the Coop. Residents will become members of the Coop. by purchasing a "share" which will
serve as their equity in the Coop. Additionally, the formation of the Limited Equity Coop. will
ensure that residents will be involved and concemed in the welfare of their neighborhood.
Residents will pay a monthly rent that is affordable to families earning 40% of San Diego County
median income, which is approximately $410 for a two-bedroom unit and $449-470 for a three-
bedroom unit. Similar two and three bedroom apartments in that neighborhood rent for $575 and
$750 respectively.
This project meets a local community need through the provision of safe, decent, affordable
housing. According to the City of Chula Vista's COnsolidated Plan, 91 % of renters earning 31 to
50% of median income have housing problems. 87% pay more than 30% of their monthly
income for rent and 44% pay more than 50% of their monthly income for rent (Consolidated Plan,
page 111-8).
This project is being financed through a variety of funding sources, including: a Bank of America
Community Development Bank permanent loan, a City of Chula Vista HOME Development Loan,
a City of Chula Vista Land Purchase Loan, and Low Income Housing Tax Credits. The total
development cost is approximately $2.5 million.
~ //~t/¡/
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Exhibit C
Grant Deed
[To Be Inserted]
.
21 ~ /1- yï
~----~_..- ____.,__.__~.____·u·____
Exhibit D
General Escrow Instructions
[To Be Inserted]
H:\ho.e\attorney\trolley3.
.
22 ~ /I~,/;L
u_ '_..._m.______"__._ ---..---------
RESOLUTION NO. )~¿,~5"
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA
VISTA APPROVING A 1.16 ACRE LAND DONATION FOR AN
EIGHTEEN (18) UNIT AFFORDABLE HOUSING PROJECT PROPOSED
TO BE DEVELOPED AS TROLLEY TERRACE TOWN HOMES AND
THE AMENDED AND RESTATED CONVEYANCE AGREEMENT AND
ESCROW INSTRUCTIONS WITH SOUTH BAY COMMUNITY
SERVICES WITH RESPECT TO 1.16 ACRES OF REAL PROPERTY
LOCATED AT 746 AND 750 ADA STREET.
WHEREAS, South Bay Community Services ("SBCS") has been negotiating with the
City to develop an 18-unit affordable housing project known as Trolley Terrace Townhomes
("Project") at 746 and 750 Ada Street ("Site") and is requesting that the City make a land loan
of Three Hundred Seventy Two Thousand Nine Hundred and Forty Dollars ($372,S40) for purchase
of subject property; and
WHEREAS, City staff and SBCS have negotiated certain terms for the transfer of the Site
by the City to SBCS as more specifically set forth in that certain Trolley Terrace Conveyance
Agreement and Escrow Instruction between the SBCS and the City ("City/SBCS Conveyance
Agreement"); and
WHEREAS, City staff will negotiate with SBCS the terms of a Disposition and Development
Agreement ("DDA") pursuant to which the City would agree to provide SBCS (or an assignee
thereof approved by the City) with financial and other assistance in order to facilitate the
development of the Project if SBCS secures tax credits from the California Tax Credit Allocation
Committee ("TCAC"); and
WHEREAS, to further assist in funding the cost of the Project, SBCS intends to file an
application for Low Income Housing Tax Credit ("LlTHTC") with the California Tax Credit
Allocation Committee ("TCACH) under §42 of the Internal Revenue Code;
WHEREAS, SBCS proposes to fund the project through the following sources; [1] Bank of
America Community Development Bank Construction and Permanent Loan, [2] Local Initiative
Support Corporation Development Loan, [3] Federal Home Loan Bank Affordable Housing Program
Grant, [4] City of Chula Vista Development Loan, [5] City of Chula Vista Land Loan, and [6] a sale
of LI HTCs allocated by TCAC to the project; and
WHEREAS, the deadline for submission of the TCAC application is March 31, 19S7; and
WHEREAS, various actions required by the City procedures and State law in order to permit
the transfer of the Site to SBCS and the development of the Project on the Site, includins but not
limited to, nesotiation and approval of the DDA, will not be completed by March 31, 1997; and
WHEREAS, pursuant to Resolution #18310, City Council has previously adopted Negative
Declaration IS-93-07 and addendum thereto; therefore no further action under CEQA is required
for this project; and
WHEREAS, among the requirements of the TCAC application are: [1] evidence of financing
commitment by any local public agency. including the amounts and sources thereof; and [2]
///! /j
-.-...--....- -----,,-_.,---_..--_.__.._..._---~-_.._--"_.,---_.-
evidence of site control or its equivalent where it is impossible to complete the transfer of the Site
proper to the application deadline; and
WHEREAS, the purpose of this Resolution is to comply with such TCAC application
requirements by providing SBCS with documentation evidencing; [1] the City's commitment to
provide partial financing for the Project from a Land Loan, HOME Program Funds, and [2J Site
control by SBCS and/or a limited partnership of which SBCS is a general partner; and
WHEREAS, on March 18, 1996 the City Council held a public meeting on the matter of this
Resolution at which meeting the City Council considered the staff report, the proposed City/SBCS
Amended and Restated Trolley Terrace Conveyance Agreement and Escrow Instructions, and all
other information and evidence presented.
NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does
hereby find, order, determine and resolve as follows:
1. Recitals True and Correct
The City finds and determines the recitals set forth above are true and correct to the
best of its knowledge,
2. Approval of Citv/SBCS Convevance Aareement
The City: [a] approves the City/SBCS Conveyance Agreement in substantially the form
presented, with such minor modifications as may be required or approved by the City
Attorney; and [b] authorizes the Mayor to execute same, the final form of such Agreement
to be kept on file with the Office of the City Clerk as Document Number
3. Conditions to Citv Commitment
The City commitments set forth above are each conditioned upon and subject to: [a] the
subsequent approval by the City Council of the DDA and related loan documents in
accordance with applicable laws and existing City policies; and [b] TCAC's approval of the
tax credit application which was presented to the City in connection herewith, and its
allocation to the Project of the LlHTC requested thereby.
4. Directions to Staff
City staff is hereby authorized and directed to take any appropriate action consistent
with the purposes of this Resolution including negotiation of a final DDA and presentation
thereof to the City for its approval.
Presented by Approved as to form by
0~, ~
Chris Salomone
Director of Community Development
[(S8) H:\HOME\COMMDEV\RESOS\ttt116 (March 12, 1997 (12:32pm)]
J)/J~;2.,
______,_._....'. .0"_' ..-.
RESOLUTION NO. I%¿tl~
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHÙLA
VISTA APPROVING A FIVE HUNDRED TWENTY THREE THOUSAND
NINE HUNDRED AND SIXTY FIVE DOLLARS ($523,965)
COMMITMENT FROM THE HOME PROGRAM FOR THE
DEVELOPMENT OF AN EIGHTEEN (18) UNIT AFFORDABLE
HOUSING RENTAL PROJECT AT 746 AND 750 ADA STREET
WHEREAS, the City of Chula Vista ("City") is in control of funds under the HOME
Investment Partnership Program (42 U.S.C. § 12741 et seq.) ("Home Program Funds") which
program is designed to provide assistance to affordable housing projects; and
WHEREAS, City staff and SBCS have negotiated certain terms for the transfer of the Site
by the City to SBCS as more specifically set forth in that certain Trolley Terrace Conveyance
Agreement and Escrow Instruction between the SBCS and the City ("City/SBCS Conveyance
Agreement"); and
WHEREAS, City staff will negotiate with SBCS the terms of a Disposition and Development
Agreement ("DDA") pursuant to which the City would agree to provide SBCS (or an assignee
thereof approved by the City) with financial and other assistance in order to facilitate the
development of the Project if SBCS secures tax credits from the California Tax Credit Allocation
Committee ("TCAC"); and
WHEREAS, to further assist in funding the cost of the Project, SBCS intends to file an
application for Low Income Housing Tax Credit ("LlTHTC") with the California Tax Credit
Allocation Committee ("TCAC") under §42 of the Internal Revenue Code;
WHEREAS, SBCS proposes to fund the project through the following sources; [1] Bank of
America Community Development Bank Construction and Permanent Loan, [2] Local Initiative
Support Corporation Development Loan, [3J Federal Home Loan Bank Affordable Housing Program
Grant, [4] City of Chula Vista Development Loan, [5] City of Chula Vista Land Loan, and [6] a sale
of LlHTCs allocated by TCAC to the project; and
WHEREAS, the deadline for submission of the TCAC application is March 31, 1997; and
WHEREAS, various actions required by the City procedures and State law in order to permit
the transfer of the Site to SBCS and the development of the Project on the Site, including but not
limited to, negotiation and approval of the DDA, will not be completed by March 31, 1997; and
WHEREAS, pursuant to Resolution #18310, City Council has previously adopted Negative
Declaration IS-93-07 and addendum thereto; therefore no further action under CEQA is required
for this project; and
WHEREAS, among the requirements of the TCAC application are: [1] evidence of financing
commitment by any local public agency, including the amounts and sources thereof; and [2]
evidence of site control or its equivalent where it is impossible to complete the transfer of the Site
proper to the application deadline; and
//[J-/
. .._-_._---_.-----,---~~.-
WHEREAS, the purpose of this Resolution is to comply with such TCAC application
requirements by providing SBCS with documentation evidencing; [1] the City's commitment to
provide partial financing for the Project from a Land Loan, HOME Program Funds, and [2] Site
control by SBCS and/or a limited partnership of which SBCS is a general partner; and
WHEREAS, on March 18, 1996 the City Council held a public meeting on the matter of this
Resolution at which meeting the City Council considered the staff report, the proposed City/SBCS
Amended and Restated Trolley Terrace Conveyance Agreement and Escrow Instructions, and all
other information and evidence presented.
NOW. THEREFORE. BE IT RESOLVED the City Council of the City of Chula Vista does
hereby find, order, determine and resolve as follows:
1. Recitals True and Correct
The City finds and determines the recitals set forth above are true and correct to the
best of its knowledge.
2. Citv Contribution to the Proiect
The City hereby; [1] approves a funding commitment of Five Hundred Twenty Three
Thousand Nine Hundred and Sixty Five Dollars ($523,965) of HOME Program Funds to be
loaned to SBCS at below market rates; and [bl agrees to provide a Purchase Loan of Three
Hundred Seventy Two Thousand Nine Hundred and Forty Dollars ($372,940) to acquire the
site for the development of the Project on the terms and conditions set forth in the
City/SBCS Conveyance Agreement for the development of the Project.
3. Conditions to City Commitment
The City commitments set forth above are each conditioned upon and subject to: [a] the
subsequent approval by the City Council of the DDA and related loan documents in
accordance with applicable laws and existing City policies: and [b] TCAC's approval of the
tax credit application which was presented to the City in connection herewith, and its
allocation to the Project of the LlHTC requested thereby.
4. Directions to Staff
City staff is hereby authorized and directed to take any appropriate action consistent
with the purposes of this Resolution including negotiation of a final DDA and presentation
thereof to the City for its approval.
Presented by Approved as to form by
0~ ~~ .-/
Chris Salomone ~
Director of Community Development
[(55) H:\HOME\COMMDEV\RESOS\ttt523 (March 12, 1997 112:37pm)]
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