HomeMy WebLinkAboutPlanning Comm Rpts./1996/08/06 (2)
JOINT AGENDA STATEMENT FOR CITY COUNCIL/PLANNING COMMISSION
ITEM TITLE:
Item No.
Meeting Date 8/6/96
Ordinances Adopting Otay Ranch Pre-
Annexation Development Agreements Between:
A) Ordinance 2687 - Jewels of Charity and the City
of Chula vista (first reading)
B) Ordinance 2688 - SNMB, LTD. and the City of
Chula Vista (first reading)
SUBMITTED BY:
C) Ordinance 2689
Foundation and the City
reading} ~
Deputy city Manager (;
Planning Director
Otay Ranch Project Manager
Stephen and Mary
of Chula Vista
Birch
(first
REVIEWED BY:
city Manager
4/5 Vote: Yes
No---X..
The purpose of this item is to present three development agreements
between the city of Chula vista and Jewels of Charity, SNMB, LTD.
and Stephen and Mary Birch Foundation. On June 25, 1996, the
Planning commission and Council took action on a development
agreement for the "Foundation" comprising all three parties in one
document. The agreement has now been split into three separate
agreements at the developers' request and changed accordingly.
certain provisions no longer apply to each of the separate parties
and a few other changes have been made as well. To assist the
Commission and Council with not having to re-read the entire
agreements, a strikeout/underline format has been used to show the
changes.
RECOMMENDATION:
That the Planning commission recommend
approval of the Ordinances and the city
Council place the Ordinances on First Reading.
BOARD/COMMISSION
RECOMMENDATION
The Planning Commission will be reviewing and
taking action on the Agreements on August 6,
1996.
BACKGROUND
On February 5, 1996 and July 1, 1996, the Local Agency Formation
Commission (LAFCO) approved the inclusion of Planning Area 1, "the
Otay Parcel", into the City Sphere of Influence. Also, on July 1,
1996, LAFCO approved the annexation of Sphere of Influence Planning
Area 1, "the Otay Parcel", Planning Area 2, "the Inverted L", and
the Mary Patrick Estate Parcel.
Meeting Date 8/6/96
Page 2
In addition to the LAFCO process and negotiations with property
owners, the city has also been working cooperatively with the
County of San Diego. On May 15, 1996, a Property Tax Sharing
Agreement and an Agreement Regarding Jurisdiction Over and
operation of the otay Landfill were entered into between the city
and county. An agreement to continue to provide fire service to
the Otay Landfill once it is detached has also been negotiated.
county approval occurred on July 30, 1996 and the Agreement is a
companion City Council item on August 6, 1996.
CEQA review is not required for the development agreement since an
in-depth review occurred when the environmental review approved for
the Otay Ranch General Development Plan adopted by the City on
October 28, 1993. (Lonq Beach Sav. and Loan v. Lonq Beach Federal,
232 Cal. Rptr. 772, 781-2 (1986).
DISCUSSION
The following discussion focuses on the benefits of the Agreement
to the parties and a description of the terms of the Agreement
which are constant for all the parties. The benefits to the
parties and the basic deal points have not changed and are the same
as in the prior agreements presented to the Commission and Council
in June (i.e., #~ and #2 below).
1. Benefits to the Parties
a. Benefits to the citv
. developer support for annexation of the Otay Parcel
to Chula vista.
. provision of property for the Chula vista Greenbelt
open space areas and MSCP compliance.
. assurance of adequate public facilities when
needed, and in some cases development of excess
capacity or facilities sooner than required.
. compliance with the City's Growth Management
Program.
b. Benefits to the Developer
. vests permitted land uses, density, intensity of
use per the approved General Development Plan and
timing and phasing of development per Future
Discretionary Approvals (i.e., SPA Plan and Public
Facility Finance Plan) and in compliance with the
City's Growth Management Ordinance.
Meeting Date 8/6/96
Page 3
. grants the owner certainty to proceed with the
development of the property in general accordance
with today's ordinances, rules, regulations and
standards or as they may be changed in the future
citywide or east of I-80S. Special benefit, fee
districts are also contemplated.
. allows for fee credits and/or reimbursement
mechanisms for extraordinary facility improvements
or pioneering thereof and specifies that DIF fees
will be used to facilitate regional backbone
facilities.
. allows the Developer to receive timely processing
on an equal basis with other Developers of Future
Discretionary Approvals and allows those approvals
to be covered by these Agreements.
2. Description of the Aqreement Terms
The Agreement contains the following major points:
(1) The owners consent to the annexation and the annexation
of the Otay Parcel is to be accomplished by January 1,
1997. (Final action by the conducting authority, the
city council, is scheduled for August 20, 1996.)
(2) The term of the Agreement is 20 years.
(3) Application of new or amended Rules, Regulations,
Ordinances, Resolutions, Standards and Policies.
The Agreement permits changes in rules, policies, etc. as
long as they are appIied citywide or east of I-80S and do
not unreasonably prevent or delay the development of the
Property to the approved uses, densities or intensity of
Use. Changes necessitated by changes in State or Federal
law are also covered.
(4)
Modification
contemplated
Agreement.
contemplated
Agreement.
to Existing Project Approvals are
and do not constitute an amendment to the
Future Discretionary Approvals are also
and do not constitute an amendment to the
(5) The dedication and reservation of land is to be
consistent with the Existing Project Approvals.
(6) The timing for project construction is to only be
regulated by the Growth Management Ordinance and
threshold standards which include the adequate provision
Meeting Date 8/6/96
Page 4
of all public facilities needed to serve the Project as
well as project phases through subsequent SPA and Public
Facility Finance Plan Approvals. The Project is subject
to amendments to the Growth Management Ordinance subject
to certain conditions. Changes to the Growth Management
Ordinance and Threshold Standards are to be consistent
wi th the purpose and intent of the existing Growth
Management Ordinance and generally applicable citywide or
east of 1-805 or applicable to a benefit, fee district as
described in earlier sections.
(7)
Application of Fees and Special
and allowed so long as they are
east of 1-805 or relate to some
assessment district formed in
Government Code.
Taxes are contemplated
applicable citywide or
special fee or benefit
accordance with the
(8) The city will accept and diligently process development
applications with the Developer paying for the staff and
consultant costs therewith.
(9) Length of validity of Tentative Maps. The tentative
map(s) are vested for 6 years and may be extended by the
Council for a term not to exceed that of the Agreement.
(10) Recognizes that the Developer can do certain work such as
grading at the pre-final map stage subject to City
approval and posting of required performance bonds.
Acknowledges the ability to record Superblock Final Maps
("A" Maps) for financing purposes as well as the standard
Final Maps ("B" Maps). Allows for maps to be recorded in
the name of builders or third parties and certain
transfer of obligations to occur with City approval.
(11) The Developer is obligated to dedicate or reserve land
and fund/construct public facilities as required by the
General Development Plan and subsequent approvals
(12) The Developer is to comply with the otay Ranch Reserve
Fund Program as adopted as part of the Existing Project
Approvals.
(13) The city has the right to withhold the issuance of
building permits if a threshold has been violated until
the deficiency has been cured per the Growth Management
Ordinance. Permits may also be withheld where public
facilities required for thresholds have not been
committed. The suspension of the project due to building
permits being withheld is not a breach of the Agreement.
Unless the Developer is responsible for the threshold
violation, the Agreement is tolled while permit issuance
Meeting Date 8/6/96
Page 5
has been stopped.
(14) If the Developer constructs a facility which is the
obligation of another Developer or builds a facility of
supplemental size, the city will consider a reimbursement
district. Similarly, the Developer will dedicate land
for others to pioneer projects on the Property.
(15) The Developer agrees to pay DIF fees. The city agrees to
establish and use the DIF fees in an appropriate fashion.
The DIF can be modified if it incorporates reasonable
cost estimates to provide facilities based on specified
methodology and justification. The City can withhold
permits until the DIF is paid. The Developer can get DIF
credits when facilities are completed. The City will
undertake reasonable efforts to collect and impose the
DIF on others and spread the costs on an equitable basis.
The Property Owner will pay its fair share of the DIF for
Otay River Road crossings and the City will pursue other
parties, such as the county and city of San Diego, to pay
their fair share as well.
(16) The City will cooperate in the provision of utilities to
the Project.
(17) The Agreement contains provisions for
defaul t, encumbrances and releases
modification or suspension, assignment
delay and amendments.
annual review,
on property,
and delegation,
(18) A provision has been included that in the event of a
dispute between the parties that a mediation process be
followed. If any party commences litigation, the
prevailing party as determined by the court, will be
entitled to attorney's fees.
(19) The parties recognize that the Developer and the City are
negotiating agreements with the U.S. Fish and wildlife
and California Fish and Game to implement the "NCCP" and
the "MSCP" multi-species habitat programs. Modifications
to the Existing Project Approvals will be required to be
processed by the City, paid for by the Developer, and
would not constitute an amendment to the Agreement.
3. Aqreement Terms Relatinq to Specific Parties
Since each agreement is with a separate party, the specific
changes unique to each are outlined below.
Meeting Date 8/6/96
Page 6
a. Jewels of Charity
The Jewels of Charity Agreement has changes in four sections -
5.1 Vested Rights, 7.0 Developer Obligations, 11. 24 Procedure
Upon Default, and 16.18 Severability. The changes involve
deletions, clarifications or new text. Under Vested Rights,
three sections have been deleted because they refer to
provisions affecting villages which are not part of the Jewels
of Charity ownership. Likewise, two sections of Developer's
Obligations are deleted regarding dedication of land for SR
#125 (not affected by the Jewels ownership) and the Preserve
Conveyance Plan. Where reference is made in Section 5.1 to
the possibility of future discretionary applications,
clarification is made by adding words such as "consider an
amendment," "as may be deemed appropriate by the City," and
"in its discretion." Another clarification on Growth
Management is that if the agreement is suspended due to
building permit stoppage, the agreement is not considered
breached by the Developer or the ci tv. wi th regard to
procedures upon default, the remedies section states that in
the event there is a breach, neither party shall have the
remedy of monetary damages against the other, except for an
award of litigation costs and attorney's fees. Under
Severability, a clarification has been added that neither
party shall hear any liability in the instance where
provisions of the agreement are held invalid. Finally, a new
clause is added (under Vested Rights) that the agreement may
be changed if so ordered by a court of competent jurisdiction.
b. SNMB, LTD.
The clarifications and additions made to the Jewels of Charity
agreement apply as well to the SNMB, LTD. Agreement. In
general, however, the deletions made in the Jewels Agreement
are not pertinent to the SNMB property and thus they have been
left in the text without change. The main modification unique
to the SNMB Agreement is the granting of the landfill nuisance
easements to the County (Section 7.2.2). The nuisance
easements are a requirement of the city/county Landfill
Agreement and pertain to land wi thin 1,000 foot of the
landfill property boundary. The granting of the easements are
also a prerequisite to final approval of the Otay Ranch
Annexation. The prior draft agreement had the nuisance
easements being granted to the County by July 1, 1996. The
current draft has the easements being granted prior to the
second reading of the development agreement by the council and
if there is no second reading the easements will be returned
to the Developer. The point is that the Developer does not
want to grant the easements unless he is assured of having a
development agreement approved through two readings by the
council. Staff is coordinating with the County so that the
Meeting Date 8/6/96
Page 7
easements will be accepted by the Board of Supervisors on
August 20, 1996 in time for the final annexation hearing by
the Council on the same date. If the County does not accept
the easements, the Development Agreement is terminated.
With regard to the right-of-way dedication for SR#125, a new
clause has been added acknowledging that, depending upon which
alignment of SR#125 is selected, the applicant can apply to
shift around the approved land uses (assuming the alignment is
different from that depicted on the adopted otay Ranch GDP).
c. stephen and Mary Birch Foundation
The changes to the Foundation text are primarily the same as
those previously outlined as applying to the Jewels of Charity
agreement.
Fiscal Impact
It isn't possible to quantify the value of the Agreement to the
ci ty or the other parties. Through annexation and the related
property tax, sales tax, etc., the city will realize significant
benefits. Likewise, the Developers benefit from the vesting and
certainty provided by the Agreement to be able to get loans and
sell and develop the Property in accordance with current and future
approvals.
PRE-ANNEXATION DEVELOPMENT AGREEMENT
THIS PRE-ANNEXATION DEVELOPMENT AGREEMENT ("Agreement") is
made effective on the date hereinafter set forth below by and among
the CITY OF CHULA VISTA ("City") and JEWELS OF CHARITY ("Jewels"),
who agree as follows:
1. RECITALS.
following facts:
This Agreement is made with respect to the
1.1 Owner. The owners of the properties subj ect to this
Agreement (hereinafter collectively referred to as "Owner" or as
"Developer") are as follows:
1.1.1 Jewels is the owner of approximately 475
acres of undeveloped real property ("the Jewels Property") in
the unincorporated area of the County, described in Exhibits
"A" and "C", attached hereto and incorporated herein by this
reference. portions of Jewels Property are located in
vi11aqes 9 and 10 of the otav 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 ci tv. The city of Chula vista is a municipal
corporation with charter city powers ane an incorporated e-Hy
within the County.
1.3 Code Authorization and Acknowledqments.
1.3.1 city is authorized pursuant to its
charter. self-rule powers and California Government Code
sections 65864 through 65869.5 to enter into development
agreements for the purpose of establishing certainty for both
City and owners of real property in the development process.
1.3.2 Government Code section 65865 expressly
authorizes a city to enter into a development agreement with
any person having a legal or equitable interest in real
property in unincorporated territory within that city's sphere
of influence for the development of property as provided in
the Development Agreement Law; provided that the agreement
shall not become operative unless annexation proceedings
annexing the property to the city are completed within the
time specified by the agreement.
1.3.3 city enters into this Agreement pursuant
to the provisions of the California Government Code, its home-
rule powers, and applicable City ordinances, rules, regula-
tions and policies.
1.3.4 city and Owner intend to enter into this
aqreement for the followinq purposes: ucJmo',llcdgc:
1.3.4.1 To Thio ~grccmcnt assures adequate
public facilities at the time of development.
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1.3.4.2 To TRiG .'\'jrccJ!lcnt ~dsures development
in accordance with city's capital improvement plans.
1.3.4.3 Thio ~~rccJ!lcnt esnetitutco a current
cxcreise sf city'G pslioe pswors t ~o 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 A'jreomont ".;ill To permit
achievement of city growth management goals and objec-
tives.
1.3.4.5 Thio ...'jreemeFit '.Iill 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
assure that the city
in the property tax
development, sewer,
This Agreement will provide and
receive sales tax revenues, increase
base, residential housing and other
water and street facilities.
1.3.4.7 Thio A'jreomont ~ 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 Thio .'\'jreemeFit ',;ill To provide the
City the developer's support to secure annexation of the
lands depicted in Exhibit "B".
1. 3.4.9 TRio l\'jreement ,;ill 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 TRio 1'.greemcnt ,;ill To assure the
City that the Developer will dedicate rights-of-way to
the City for SR-125, a route which, when constructed,
will substantially alleviate congestion on 1-805 and 1-5,
and also will facilitate the economic development of
Chula vista.
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
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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 subiect 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 subiect to
section 5.2.1 below.
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 II , Planning Area 2
"Inverted L" and the Mary Patrick Estate Parcel (see Attachment
"B") .
1.5 Sphere of Influence. A city application is pending
before LAFCO to have the Otay Valley Parcel included within city's
sphere of influence. On February 5, 1996 the Local Agency
Formation Commission approved the inclusion of approximately 7,600
acres into the City Sphere of Influence (Sphere of Influence
Planning Area 2 and the northern two thirds of Planning Area 1),
and designated the Otay River Valley an Village 3 as special study
areas.
1.6 Planninq Documents. On October 28, 1993, City and
County adopted the otay Ranch General Development Plan/Subregional
Plan (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 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.
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1.8 citv rdinance. Auaust , 1~ is the date of
adoption by the city council of Ordinance No. 2679 approving this
Agreement. The ordinance shall take effect and be in full force on
the effective date of Annexation.
2. DEFINITIONS.
otherwise requires:
In this Agreement, unless the context
2.1 "Annexation" means the proposed annexation of that
portion of the otay Ranch into the City as depicted on Exhibit
fI~B".
2.2 "city" means the city of Chula vista, in the County
of San Diego, State of California.
2.3 "county" means the County of San Diego, State of
California.
2.4 "Development Plan" means the GDP.
2.5 "GDP" means the General Development Plan/ Subregional
Plan for the otay Ranch, described in paragraph 1.6, above.
2.6 "Owner" or "Developer" means the person, persons, or
entity having a legal and equitable interest in the Property, or
parts thereof, and includes Owner's successors-in-interest.
2.7 "Project" means the physical development of the
private and public improvements on the Property as provided for in
the Existing project Approvals and as may be authorized by the city
in Future Discretionary Approvals.
2.8 "Property" means the real property described in
Paragraph 1.1.1.
2.9 The "Term" of this Agreement means the period
defined in Paragraph 3, below.
2.10 "Builder" means developer to whom Developer has sold
or conveyed property within the Property for purposes of its
improvement for residential, commercial, industrial or other use.
2.11 "CEQA" means the California Environmental Quality
Act, California Public Resources Code section 21000, et seq.
2.12 "city council" means the city of Chula vista city
council.
2.13 "commit" or "Committed" means all of the following
requirements have been met with respect to any public facility:
2.13.1 For a public facility within the City's
jurisdictional boundaries and a responsibility of the develop-
er.
2.13.1.1
the Developer have
public facility;
All discretionary permi ts required of
been obtained for construction of the
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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 (i.e., letters of
credit, cash deposits, performance bonds or land secured
public financing, including facility benefit assessments,
Mello-Roos assessment districts of similar assessment
mechanism) are available such that the city can construct
the public facility if construction has not commenced
within thirty (30) days of issuance of a notice to
proceed by the Director of Public Works, or construction
is not progressing towards completion in a reasonable
manner as reasonably deemed by the Director of Public
Works.
2.13.2 For a public facility within the City's
jurisdictional boundaries, but to be provided by other than
Developer.
2.13.2.1 Developer's proportionate share of
the cost of such public facility as defined in the
existing Project Approvals and Future Discretionary
Approvals has been provided or assured by Developer
through the payment or impositions of development impact
fee or other similar exaction mechanism.
2.13.3 For public facility not within city's
jurisdictional boundaries:
the cost
existing
Approvals
Developer
of Public
2.13.3.1 Developer's proportionate share of
of such public facility as defined in the
Project Approvals and Future Discretionary
has been provided for or otherwise assured by
to the reasonable satisfaction of the Director
Works.
2.14 "Development Impact Fee (DIF)" means fees imposed
upon new development pursuant to the City of Chula Vista
Development Impact Fee Program, for example, including but not
limited to the Transportation Development Impact Fee Program, the
Interim SR-125 Development Impact Fee Program, the Salt Creek Sewer
DIF and the Public Facilities DIF.
2.15 "Existing Project Approvals" means all discretionary
approvals affecting the Project which have been approved or
established in conjunction with, or preceding, the effective date
consisting of, but not limited to the GDP, the Chula vista General
Plan, the otay Ranch Reserve Fund Program adopted pursuant to
Resolution 18288, and the Phase 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).
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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 the schedule for lana to ee trans-
ferfed of land and/or fees to be paid to insure the orderly
conveyance of the otay Ranch land to the Preserve Owner Manager.
The purpose of the plan is to fulfill the obligations to convey
resource sensitive land, per the criteria contained in the phase I
and II Resource Management Plans and to mitigate environmental
impacts of the otay Ranch Project.
2.20 "Public Facility"
public facilities described
Implementation Plan.
or "Public Facilities" means those
in the otay Ranch Facility
2.21 " Subdivision Map Act" means the
Subdivision Map Act, Government Code section 66410,
its amendments as may from time to time be adopted.
California
et seq., and
2.22 "Substantial Compliance" means that the party
charged with the performance of a covenant herein has sufficiently
followed the terms of this Agreement so as to carry out the intent
of the parties in entering into this Agreement.
2.23 "Threshold" means the facility thresholds set forth
in the City's Municipal Code section 19.19.040.
3. TERM. This Agreement shall become effective as a
development agreement upon the effective date of the Annexation
("the Effective Date"); provided, however, that if the Annexation
does not occur on or before January 1, 1997, this Agreement shall
be null and void. Any of the foregoing to the contrary notwith-
standing, from the date of 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 4. The Term
of this Agreement for purposes other than Paragraph 4 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 Developer is suspended for any
reason other than the default of Developer, and for a period of
time equal to the period of time during which any action by the
City or court action limits the processing of future discretionary
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approvals, issuance of building permits or any o~her 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
S.1.8, below. OWner also aqrees not to challenqe the annexation of
the otay Valley Parcel into the city.
5. VESTED RIGHTS. Notwi thstanding any future action or
inaction of the City during the term of this Agreement, whether
such action is by ordinance, resolution or policy of the City,
Owner and Developer shall have a vested right, 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, Ghall reaGonably oORsider iR i tG
eiGoreticR aRe ~ith proper eRvironmental Levie\l, a re~Hest te
incrc30c the r~6ia~Rti31 acn~ity of vil13~cD 2, 4, 3na 8, ~~
to tRe RHmber of resideRtial units provided in village 3 hy
the County' adopted CDP.
5.1.2 City sRall reaDonahly oORGider iR itG
Eliscrction .:l19.a preceDo ..:i th 19reper cn"l"ire:Flmct=ltal rCViCi.l a
requeDt to oRaRge the primary laRd UGe deDigRation for Village
3 fram Ifta~etrial ta eemmcrci31, recreational, ~iziter
serving, aRd seme reGidential UDes iR additioR to the InduD
trial Hse. The eNaot aereageG of tRe reGidential, iRduGtrial,
oommereial, or other UDeS, Dhall he agreed upon and set forth
iR a geRcral plan ameRdment.
5.1.35.1.1 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 amena its Transportation Phasing Plan (TPP) and
Development Impact Fee (DIF) Program to include said improve-
ments 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 ~ inter-
change improvement planG.
5.1.45.1.2 City shall initiate contact and
diligently pursue discussions with the County of San Diego and
the City of San Diego to determine the number, scheduling and
financing of the otay River road and bridge crossings.
-7-
5.1.~S.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.
5.1.65.1.4 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.
5.1.75.1.5 city shall diligently process
any amendments, applications, maps, or other development
applications.
5.1.6 city may make such modifications or
amendments to the Existinq proiect Approvals/Future Discretionary
Approvals. as maY be ordered bY a court of competent iurisdiction.
in an action in which teh Developer is a party or has had an
opportunity to appear or has been provided notice of such action bY
the city.
5.1.8 city oHall reaoenasly csnoider and aili
~ently ~reee5s a rcq~eot te expand tHe aevelspment areas sf
vili;~eo 2, 3, 4 and 8 in the event future en~irsnmen;~~
otueiieo indicate that arc~s once cORoiacred environmentally
C6FlotrniFH:.a eaR ]sa aCT;clepc.El \litheut Di~nificant, unmiti~:lslc
cHvireRmc~tal impacto.
5.2 Development of Property. The development of the
Property will be governed by this Agreement and Existing Project
Approvals and such development shall comply and be governed by all
rules, regulations, policies, resolutions, ordinances, and
standards in effect as of the Effective Date subject to the
provisions of section 5.2.1 below. The City shall retain its
discretionary authority as to Future Discretionary Approvals,
provided however, such Future Discretionary Approvals shall be
regulated by the Existing Project Approvals, this Agreement, and
city rules, regulations, standards, ordinances, resolutions and
policies in effect on the Effective Date of this Agreement and
subject to section 5.2.1.
Notwithstanding the foregoing. the city may make such changes to
the city's Growth Management Ordinance applicable to the Project as
are reasonable and consistent with the purpose and intent of the
existing Growth Management Ordinance and which are generally
applicable to all private projects citywide or east of 1-805 or
within a specific benefit, fee or reimbursement district created
pursuant to the California Government Code.
-8-
5.2.1 New or Amended Rules. Requlations.
Policies. standards. Ordinances and Resolutions. The city may
apply to the Project, including Future Discretionary Approv-
als, new or amended rules, laws, regulations, policies,
ordinances, resolutions and standards generally applicable to
all private projects east of 1-805 or within a specific
benefit fee or reimbursement district created pursuant to the
California Government Code. The application of such new
rules, or amended laws, regulations, resolutions, policies,
ordinances and standards will not unreasonably prevent or
delay development of the Property to the uses, densities or
intensities of development specified herein or as authorized
by the Existing Project Approvals. The City may also apply
changes in City laws, regulations, ordinances, standards or
policies specifically mandated by changes in state or federal
law in compliance with section 13.3 herein.
5.2.2 Developer may elect with City's consent,
to have applied to the project any rules, regulations,
policies, ordinances or standards enacted after the date of
this Agreement. Such an election has to be made in a manner
consistent with section 5.2 of this Agreement.
5.2.3 Modifications to Existinq proiect
Approvals. It is contemplated by the parties to this
Agreement that the City and Developer may mutually seek and
agree to modifications to the Existing Project Approvals.
Such modifications are contemplated as within the scope of
this Agreement, and shall, upon written acceptance by all
parties, constitute for all purposes an Existing Project
Approval. The parties agree that any such modifications may
not constitute an amendment to this Agreement nor require an
amendment to the Agreement.
5.2.4 Future Discretionarv Approvals. It is
contemplated by the parties to this Agreement that the City
and Developer may agree to Future Discretionary Approvals. The
parties agree that any such Future Approvals may not consti-
tute an amendment to this Agreement nor require an amendment
to the Agreement.
5.3 Dedication and Reservation of Land for Public
Purposes. Except as expressly required by this Agreement or the
Existing Project Approvals and Future Discretionary Approvals
(excepting dedications required within the boundaries of any parcel
created by the subsequent subdivision of the Property as required
by the Subdivision Map Act), no dedication or reservation of real
property within or outside the Property shall be required by city
or Developer in conjunction with the Project. Any dedications and
reservations of land imposed shall be in accordance with section
7.2 and section 7.8 herein.
5.4 Time for Construction and Completion of Proiect.
Because the California Supreme Court held in Pardee Construction
Companv v. citv of Camarillo (1984) 27 Cal.3d 465, that the failure
of the parties to provide for the timing of development resulted in
a later-adopted initiative restricting the timing of development to
prevail over such parties' Agreement, it is the intention of the
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parties to this Agr~~ment to cure that deficiel. j by specifically
acknowledging that timing and phasing of development is completely
and exclusively governed by the Existing Project Approvals,
including the Chula vista Growth Management Ordinance. The purpose
of the Chula vista Growth Management Ordinance is to "control the
timing and location of development by tying the pace of development
to the provision of public facilities and improvements to conform
to the City's threshold standards." (Municipal Code section
19.09.010A.7) The findings in support of the Growth Management
Ordinance conclude that the ordinance "does not affect the number
of houses which may be built." (Municipal Code section
19.09.010B.3) Therefore, the parties acknowledge that the Chula
vista Growth Management Ordinance completely occupies the topic of
development timing and phasing and expressly precludes the adoption
of housing caps, urban reserves or any other means by which the
rate of development may be controlled or regulated. The City
agrees that the Developer shall be entitled to, apply for and
receive all permits necessary for the development of property,
consistent with the Growth Management Ordinance, Existing Project
Approvals, Future Discretionary Approvals and this Agreement.
5.5 Benefit of vestinq. Nothing in this Agreement will
be construed as limiting or impairing Developer's vested right, if
any, to proceed with the development and use of the Property
pursuant to the Federal and state constitutions, and pursuant to
statutory and decisional law.
5.6 vestinq of Entitlements. All rights conferred by
this Agreement vest with the Effective Date hereof. The approval
of Future Discretionary approvals shall not be deemed to limit
Developer's rights authorized by this Agreement, and' once such
approvals are obtained they shall be vested to the same extent as
the Existing Project Approvals.
6. DEVELOPMENT PROGRAM.
6.1 processinq of Future Discretionarv Approvals. City
will accept and diligently process development applications and
requests for.Future Discretionary Approvals, or other entitlements
with respect to the development and use of the property, provided
said applications and requests are in accordance with this
Agreement. City costs for processing work related to the project,
including hiring of additional city personnel and/or the retaining
of professional consultants, will be reimbursed to city by
Developer.
6.2 Lenqth of Validity of Tentative Subdivision Maps.
Government Code section 66452.6 provides that tentative subdivision
map(s) may remain valid for a length up to the term of a Develop-
ment Agreement. The City agrees that tentative subdivision map(s)
for the property shall be for a term of six (6) years and may be
extended by the city Council for a period of time not to exceed a
total of twenty (20) years and in no event beyond the term of this
Agreement.
6.3 Pre-Final Map Development. If Developer desires to
do certain work on the Property after approval of a tentative map
(for example, grading) prior to the recordation of a final map, it
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may do so by obtaining a grading and/or other required approvals
from the city which are authorized by the City prior to recordation
of a final map. Such permit shall be issued to Developer, or its
contractor, upon Developer's application, approval, and provided
Developer posts a bond or other reasonably adequate security
required by city in an amount to assure the rehabilitation of the
land if the applicable final map does not record.
6.4 Final Maps.
6.4.1 "A" Maps and "B" Maps. If Developer so
elects, the City shall accept and process a master subdivision
or parcel map ("A" Map) showing "super Block" lots and
backbone street dedications. "Super Block" lots shall be
consistent with the GDP and subsequent Sectional Plan Area
plans, and shall not subdivide land into individual single-
family lots. All "super Blocks" created shall have access to
dedicated public streets. The city shall not require improve-
ment plans in order to record a final map for any "A" Map
lots, but the city shall require bonding for the completion of
backbone facilities prior to recording in an amount to be
determined by the city. Following the approval by City of any
final map for an "A" Map lot and its recordation, Developer
may convey the "Super Block" lot. The buyer of a "Super
Block" lot shall then process final improvement plans and
grading plans and a final map ("B" Map) for each "Super Block"
lot which the city shall process. The "B" Maps shall be in
substantial conformance with the related approved "A" Map. In
the instance of the mUlti-family dwelling unit areas, a
separate tentative subdivision map may be submitted to the
City and the "B" Map(s) for these areas may be submitted to
the city after the City Planning commission approves said
tentative subdivision map.
6.4.2 Recordation of Final Subdivision Map in
Name of Builder or Third Party. Developer may, if it so
elects, convey to a Builder or third party any "super block"
lot(s) shown on the recorded Superblock Final Map. In such
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
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party assumes L .veloper' s obligations und, 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 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 Deaication of Lana fer ER 125. Develo~er a~rees to
aeeUoate laRa for ri~ht of ',:ay 19urposes and 19roperty o',med by
the Developer that is reasonably neceooary for the ER 125
oonfi~uratieR that is ~enerally ae~ictea in the ER 125 draft
En,ironmef!tal Im~act Repertjctatement and as re,isea in the
Final Ef!vironmeRtal Impact Report/Etatement to reopond to
cn~inccriRg, dcsign, environmental ~nd eimil~r cORstrainto.
The dedicationo shall be te the city or by an alternate method
acoeptable to the city at ouch time aD requcoted by the city.
city agrees that if! the event City shall Regotiate \:ith
California Traf!oportation Ventures (CTV) or other tell road
builder any partioipation er advantageD to City that City
ohall ohare ouch righto ~ith oubsequent o~ner/reoident of the
property.
7.2.2 Prcoerve Conveyance Plan. The city and the
Developer ohall mutually agree upon a rreoerve Conveyance
rlan. The city ohall in good faith conoider for adoption ouch
a plan and the Devcloper ohall convey property and/or feco in
lieu of land ao oct forth in ouch rlan.
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7.3 Growth ManaGement Ordinance. Developer shall commit the
public facilities and City shall issue building permits as provided
in this Section. The city shall have the right to withhold the
issuance of building permits any time after the City reasonably
determines a Threshold has been exceeded, unless and until the
Developer has mitigated the deficiency in accordance with the
city's Growth Management Ordinance.
Developer agrees that building permits may be withheld where the
public facilities described in the Existing Project Approvals/-
Future Discretionary Approvals required for a particular Threshold
have not been committed.
In the event a Threshold is not met and future building permit
issuance may be withheld, the notice provisions and procedures
contained in section 19.09 .100C of the Municipal Code will be
followed. In the event the issuance of building permits is
suspended pursuant to the provisions herein, such suspension shall
not constitute a breach of the terms of this Agreement by Developer
or citv. Furthermore, any such suspension which is not caused by
the actions or omissions of the Developer, shall toll the term of
this Agreement as provided for in Section 16.12 of this Agreement,
and suspend the Developer's obligations pursuant to this Agreement.
7.3.1 Required Condemnation. The city and Developer
recognize that certain of the public facilities identified in
the Existing Project Approvals/Future Discretionary Approvals
and required to comply with a threshold are located on
properties which neither the Developer nor the city has, or
will have, title to or control of. The city shall identify
such property or properties and at the time of filing of the
final map commence timely negotiations or, where the property
is within the City's jurisdiction, commence timely proceedings
pursuant to Title 7 (commencing with S 1230.010) of Part 3 of
the Code of civil Procedure to acquire an interest in the
property or properties. Developer's share of the cost
involved in any such acquisition shall be based on its
proportionate share of the public facility as defined in the
Existing Project Approvals/Future Discretionary Approvals.
Nothing in this Agreement shall be deemed to preclude the City
from requiring the Developer to pay the cost of acquiring such
off-site land. For that portion of the cost beyond the
Developer's fair share responsibility, the city shall take all
reasonable steps to establish a procedure whereby the develop-
er is reimbursed for such costs beyond its fair share.
7.3.2 Information Reqardinq Thresholds, Upon
Developer's written requests of the City Manager, the City
will provide Developer with information regarding the current
status of a Threshold. Developer shall be responsible for any
staff costs incurred in providing said written response.
7.4 Improvements Required bv a Subdivision Map. As may
be required pursuant to the terms of a subdivision map, it shall be
the responsibi 1 i ty of Developer to construct the improvements
required by a subdivision map. Where Developer is required to
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construct a public _illprovement which has been _dentified as the
responsibility of another party or to provide public improvements
of supplemental size, capacity, number or length benefiting
property not within the subdivision, City shall process a reim-
bursement agreement to the Developer in accordance with Article 6
of Chapter 4 of the Subdivision Map Act, commencing with Government
Code section 66485, and section 7.5, below.
7.5 Facilities Which Are the Obliqations of Another
Partv. or Are of Excessive Size, Capacitv. Lenqth or Number.
Developer may offer to advance monies and/or construct public
improvements which are the responsibility of another land owner, or
outside the city's jurisdictional boundaries, or which are of
supplemental size, capacity, number or length for the benefit of
land not within the Property. city, where requesting such funding
or construction of oversized public improvements, shall consider
after a public hearing, contemporaneous with the imposition of the
obligation, the formation of a reimbursement district, assessment
district, facility benefit assessment, or reimbursement agreement
or other reimbursement mechanism.
7.6 pioneerinq of Facilities. To the extent Developer
itself constructs (i.e., "pioneers") any public facilities or
public improvements which are covered by a DIF Program, Developer
shall be given a credit against DIFs otherwise payable, subject to
the City's Director of Public Works reasonable determination that
such costs are allowable under the applicable DIF Program. It is
specifically intended that Developer be given DIF credit for the
DIF Program improvements it makes. The fact that such improvements
may be financed by an assessment district or other financing
mechanism, shall not prevent DIF credit from being given to the
extent that such costs are allowed under the applicable DIF Program
7.7 Insurance.
insured for all insurance
Project as pertains to the
the Project.
Developer shall name city as additional
policies obtained by Developer for the
Developer's activities and operation on
7.8 Other Land Owners. Developer hereby agrees to
dedicate adequate rights-of-way within the boundaries of the
Property for other land owners to "Pioneer" public facilities on
the Property; provided, however, as follows: (i) dedications shall
be restricted to those reasonably necessary for the construction of
facilities identified in the city's adopted public facility plans;
(ii) this provision shall not be binding on the successors-in-
interest or assignees of Developer following recordation of the
final "Super Block" or "A" Map; and (iii) the city shall use its
reasonable best efforts to obtain agreements similar to this
subsection from other developers and to obtain equitable reimburse-
ment for Developer for any excess dedications.
8. DEVELOPMENT IMPACT FEES.
8.1 Existinq Development Impact Fee prooram Pavments.
Developer shall pay to the City a DIF, or construct improvements in
1 ieu 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
-14-
Map Act, or Public _dcility Financing Plan (PF. ).
in the amount in effect at the time payment is made
increased pursuant to section 8.6 herein.
The DIF will be
and may only be
8.2 Other Undeveloped Properties. The city will use its
reasonable best efforts to impose and collect, or cause the
imposition and collection of, the same DIF program on all the
undeveloped real properties which benefit from the provision of the
public facility through the DIF program, or provided as a condition
of Project Approvals.
8.3 Use of Development Impact Fee Proqram. The DIF
amounts paid to the city by Developer and others with respect to
the Area of Benefit shall be placed by the city in a capital
facility fund account established pursuant to California Government
Code sections 66000-66009. The city shall expend such funds only
for the Projects described in the adopted fee program as may be
modified from time to time. The city will use its reasonable best
efforts to cause such Projects to be completed as soon as practica-
blej however, the City shall not be obligated to use its general
funds for such Projects.
8.4 Withholdinq of Permits. Developer agrees that city
shall have the right to withhold issuance of the building permit
for any structure or improvement on the Property unless and until
the DIF is paid for such structure or improvement.
8.5 Development Impact Fee Credit. upon the completion
and acceptance by the City of any public facility, the city shall
immediately credit Developer with the appropriate amount of cash
credits ("EDUs") as determined by Developer and city. However, if
the improvements are paid for through an Assessment District, the
ci ty 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
programsj or other methodology approved by the city Council
following a public hearing; (iii) complies with the provisions of
Government Code sections 66000-66009.
8.7 Standards for Financinq Obliqations of Owner. In
connection with the development of the Property, the following
standards regarding the financing of public improvements shall
apply:
8.7.1 Owner shall pay its fair share for the
interchanges described in Paragraph 5.1.1 5.1.3, based upon
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the number of dwelling units or equi va_ -,nt
development allowed on the Property as compared
dwelling units or equivalent dwelling units
properties served by such interchanges.
dwellings of
to the total
allowed on
8.7.2 Owner shall participate in the DIF Program
for the Otay Valley Parcel with other owners in proportion to
the total dwelling units or equivalent dwelling units allowed
on the Property as compared with the total of such units
allowed on properties in that particular DIF or by some other
equitable methodology decided by the City Council.
8.7.3 The city shall diligently pursue the
requirements that the Eastern Territories' DIF requires
offsite third parties and adjacent jurisdictions to bear their
fair share of all Otay River Valley crossings.
9. CITY OBLIGATIONS.
9.1 Urban Infrastructure. To the extent it is within
the authority of the City to provide, city shall accommodate urban
infrastructure to the project, consistent with Existing Project
Approvals. Where it is necessary to utilize city property to
provide urban infrastructure consistent with the Existing Project
Approvals, the City agrees to make such land available for such
uses, provided that the City if it so chooses is compensated at
fair market value for the property. To the extent that the
provision of urban infrastructure is within the authority of
another public or quasi-public agency or utility, the city agrees
to fully cooperate with such agency or agencies to accommodate the
urban infrastructure, consistent with Existing Project Approvals.
Urban infrastructure shall include, but not be limited to gas,
electricity, telephone, cable and facilities identified in the otay
Ranch Facility Implementation Plan.
9.2 Sewer Capacity. The City agrees to provide adequate
sewer capacity for the project, upon the payment of ordinary and
necessary sewer connection, capacity and/or service fees.
10. ANNUAL REVIEW.
10.1 city and Owner Responsibilities. 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
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
-16-
evidence or state, nts shall be accepted in
evidence that such evidence is untrue.
.'le absence of any
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:
made
been
11. 1. 1
or furnished
false in any
A warranty, representation or statement
by Owner to city is false or proves to have
material respect when it was made.
11.1.2 A finding and determination by city made
following a periodic review under the procedure provided for
in California Government Code section 65865.1 that upon the
basis of substantial evidence Owner has not complied in good
faith with one or more of the terms or conditions of this
Agreement.
consider
submitted
11.1.3 City does not accept,
requested development permits
in accordance with the provisions
timely review, or
or entitlements
of this Agreement.
11.1. 4 Any other act or omission by city or Owner
which materially interferes with the terms of this Agreement.
11.2 Procedure Upon Default.
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
-17-
time of default.. Notwithstanding any othe~ _,rovision 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 other remedies at law or in equity
which are consistent with the provisions of this Agreement are
available to City and Owner to pursue in the event there is a
breach provided however. neither partv shall have the remedY
of monetary damaqes aqainst the other. except for an award of
litiqation costs and attorney's fees.
12. ENCUMBRANCES AND RELEASES ON PROPERTY.
12.1 Discretion to Encumber. This Agreement shall not
prevent or limit Owner in any manner at Owner's sole discretion,
from encumbering the Property, or any portion of the property, or
any improvement on the property, by any mortgage, deed of trust, or
other security device securing financing with respect to the
Property or its improvement.
12.2 Mortqaqee Riqhts and Obliqations. The mortgagee of
a mortgage or beneficiary of a deed of trust encumbering the
property, or any part thereof, and their successors and assigns
shall, upon written request to city, be entitled to receive from
city written notification of any default by Owner of the
performance of Owner's obligations under the Agreement which has
not been cured within thirty (30) days following the date of
default.
12.3 Releases. city agrees that upon written request of
Owner and payment of all fees and performance of the require-
ments and conditions required of Owner by this Agreement with
respect to the Property, or any portion thereof, city may
execute and deliver to Owner appropriate release(s) of further
obligations imposed by this Agreement in form and substance
acceptable to the San Diego County Recorder and title
insurance company, if any, or as may otherwise be necessary to
effect the release. city Manager shall not unreasonably
withhold approval of such release(s) .
12.4 Obliqation to Modifv. city acknowledges that the
lenders providing financing for the project may require certain
modifications to this Agreement and city agrees, upon request from
time to time, to meet with Owner and/or representatives of such
lenders to negotiate in good fa i th any such requirement for
modification. city will not unreasonably withhold its consent to
any such requested modification.
13. MODIFICATION OR SUSPENSION.
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13.1 Modification to Aqreement bv Mutual Consent. This
Agreement may be modified, from time to time, by the mutual consent
of the parties only in the same manner as its adoption by an
ordinance as set forth in California Government Code sections
65867, 65867.5 and 65868. The term, "this Agreement" as used in
this Agreement, will include any such modification properly
approved and executed.
13.2 Unforeseen Health or Safetv Circumstances. If, as
a result of facts, events, or circumstances presently unknown,
unforeseeable, and which could not have been known to the parties
prior to the commencement of this Agreement, city finds that
failure to suspend this Agreement would place the residents of City
in a severe and immediate emergency to their health or safety.
13.2.1 Notification of Unforeseen Circumstances.
Notify Developer of (i) city's determination; and (ii) the
reasons for city's determination, and all facts upon which
such reasons are based;
13.2.2 Notice of Hearinq. Notify Developer in
writing at least fourteen (14) days prior to the date, of the
date, time and place of the hearing and forward to Developer
a minimum of ten (10) days prior to the hearings described in
section 13.2.3, all documents related to such determination
and reasons therefor; and
13.2.3 Hearinq. Hold a hearing on the deter-
mination, at which hearing Developer will have the right to
address the City Council. At the conclusion of said hearing,
city may take action to suspend this Agreement as provided
herein. The City may suspend this Agreement if, at the
conclusion of said hearing, based upon the evidence presented
by the parties, the city finds failure to suspend would place
the residents of the city in a severe and immediate emergency
to their health or safety.
13.3 Chanqe in state or Federal Law or Requlations. If
any state or federal law or regulation enacted during the Term of
this Agreement, or the action or inaction of any other affected
governmental jurisdiction, precludes compliance with one or more
provisions of this Agreement, or requires changes in plans, maps,
or permits approved by City, the parties will act pursuant to
sections 13.3.1 and 13.3.2, below.
13.3.1 Notice; Meetinq. The party first becoming
aware of such enactment or action or inaction will provide the
other party(ies) with written notice of such state or federal
law or regulation and provide a copy of such law or regulation
and a statement regarding its conflict with the provisions of
this Agreement. The parties will promptly meet and confer in
a good faith and reasonable attempt to modify or suspend this
Agreement to comply with such federal or state law or regula-
tion.
13.3.2 Hearinq. If an agreed upon modification
or suspension would not require an amendment to this Agree-
ment, no hearing shall be held. otherwise, the matter of such
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federal or state law or regulation will be scheduled for
hearing before the city. Fifteen (15) days' written notice of
such hearing shall be provided to Developer, and the city, at
such hearing, will determine and issue findings on the
modification or suspension which is required by such federal
or state law or regulation. Developer, at the hearing, shall
have the right to offer testimony and other evidence. If the
parties fail to agree after said hearing, the matter may be
submitted to mediation pursuant to subsection 13.3.3, below.
Any modification or suspension shall be taken by the affirma-
tive vote of not less than a majority of the authorized voting
members of the city. Any suspension or modification may be
subject to judicial review in conformance with subsection
16.19 of this Agreement.
13.3.3 Mediation of Disputes. In the event the
dispute between the parties with respect to the provisions of
this paragraph has not been resolved to the satisfaction of
both parties following the city hearing required by subsection
13.3.2, the matter shall be submitted to mediation prior to
the filing of any legal action by any party. The mediation
will be conducted by the San Diego Mediation center; if San
Diego Mediation Center is unable to conduct the mediation, the
parties shall submit the dispute for mediation to the Judicial
Arbitration and Mediation Service or similar organization and
make a good faith effort to resolve the dispute. The cost of
any such mediation shall be divided equally between the
Developer and City.
13.4 Natural Communities Conservation Act INCCP). The
parties recognize that Developer and the City are individually
negotiating agreements with the united States Fish and wildlife
Service ("USF&W") and the California Department of Fish and Game
pursuant to the ongoing regional effort to implement the Natural
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
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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.
15.2 Deleqation. In addition, Owner shall have the
right to delegate or transfer its obligations under this
Agreement to third parties acquiring an interest or estate in
the Property after receiving the prior written consent of the
city Manager, which consent shall not be unreasonably with-
held, delayed, or conditioned. Once the city Manager has
consented to a transfer, delivery to and acceptance by the
city Manager of an unqualified written assumption of Owner's
obligations under this Agreement by such transferee shall
relieve Owner of the obligations under this Agreement to the
extent the obligations have been expressly assumed by the
transferee. Such transferee shall not be entitled to amend
this Agreement without the written consent of the entity that,
as of the Effective Date, is Owner, which consent shall not be
unreasonably withheld, delayed, or conditioned. The entity
that is Owner as of the Effective Date, however, shall be
entitled to amend this Agreement without the written consent
of such transferee.
16. MISCELLANEOUS PROVISIONS.
16.1 Bindinq Effect of Aqreement. Except to the extent
otherwise provided in this Agreement, the burdens of this Agreement
bind, and the benefits of this Agreement inure, to City's and
Owner's successors-in-interest and shall run with the land.
16.2 Relationship of citv and Owner. The contractual
relationship between city and Owner arising out of this Agreement
is one of independent contractor and not agency. This Agreement
does not create any third-party beneficiary rights.
16.3 Notices. All notices, demands, and correspondence
required or permitted by this Agreement shall be in writing and
delivered in person, or mailed by first-class or certified mail,
postage prepaid, addressed as follows:
If to City, to:
city of Chula vista
276 Fourth Avenue
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Chula Vista, CA ~1910
Attention: City Manager
If to Owner, to:
Jewels of Charity, Inc.
705 Severn Road, suite 1040
Wilmington, DE 19803
Attention: Patrick Patek
with a copy to:
STEPHENSON, WORLEY, GARRATT
SCHWARTZ, HEIDEL & PRAIRIE
101 West Broadway, suite 1300
San Diego, CA 92101
Attention: Donald R. Worley, Esq.
city or Owner may change its address by giving notice in writing to
the other. Thereafter, notices, demands, and correspondence shall
be addressed and transmitted to the new address. Notice shall be
deemed given upon personal delivery, or, if mailed, two (2)
business days following deposit in the United States mail.
16.4 Rules of Construction. In this Agreement, the use
of the singular includes the plural; the masculine gender includes
the feminine; "shall" is mandatory; "may" is permissive.
16.5 Entire Aqreement. Waivers. and Recorded Statement.
This Agreement constitutes the entire understanding and agreement
of city and Owner with respect to the matters set forth in this
Agreement. This Agreement supersedes all negotiations or previous
agreements between City and Owner respecting this Agreement. All
waivers of the provisions of this Agreement must be in writing and
signed by the appropriate authorities of City and Owner. Upon the
completion of performance of this Agreement, or its revocation or
termination, a statement evidencing completion, revocation, or
termination signed by the appropriate agents of City shall be
recorded in the Official Records of San Diego County, California.
16.6 proiect as a Private Undertakinq. It is
specifically understood by city and Owner that (i) the Project is
a private development; (ii) city has no interest in or
responsibilities for or duty to third parties concerning any
improvements to the Property until city accepts the improvements
pursuant to the provisions of the Agreement or in connection with
subdivision map approvals; and (iii) Owner shall have the full
power and exclusive control of the Property subject to the
obligations of Owner set forth in this Agreement.
16.7 Incorporation of Recitals. The recitals set forth
in Paragraph 1 of this Agreement are part of this Agreement.
16.8 captions. The captions of this Agreement are for
convenience and reference only and shall not define, explain,
modify, construe, limit, amplify, or aid in the interpretation,
construction, or meaning of any of the provisions of this
Agreement.
16.9 Consent. Where the consent or approval of City or
Owner is required or necessary under this Agreement, the consent or
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approval shall not be unreasonably withheld, delayed, or con-
ditioned.
'16.10 Covenant of Cooperation.
cooperate and deal with each other in good
other in the performance of the provisions
City and Owner shall
faith, and assist each
of this Agreement.
16.11 Recordinq. The city Clerk shall cause a copy of
this Agreement to be recorded with the Office of the County
Recorder of San Diego County, California, within ten (10) days
following the Effective Date.
16.12 Delav. Extension of Time for Performance. In
addition to any specific provision of this Agreement, performance
by either City or Owner of its obligations hereunder shall be
excused, and the Term of this Agreement and the Development Plan
extended, during any period of delay caused at any time by reason
of any event beyond the control of City or Owner which prevents or
delays and impacts city's or Owner's ability to perform obligations
under this Agreement, including, but not limited to, acts of God,
enactment of new conflicting federal or state laws or regulations
(example: listing of a species as threatened or endangered),
judicial actions such as the issuance of restraining orders and
injunctions, riots, strikes, or damage to work in process by reason
of fire, floods, earthquake, or other such casualties. If City or
Owner seeks excuse from performance, it shall provide written
notice of such delay to the other within thirty (30) days of the
commencement of such delay. If the delay or default is beyond the
control of City or Owner, and is excused, an extension of time for
such cause will be granted in writing for the period of the
enforced delay, or longer as may be mutually agreed upon.
16.13 Covenant of Good Faith and Fair Dealinqs. No party
shall do anything which shall have the effect of harming or
injuring the right of the other parties to receive the benefits of
this Agreement; each party shall refrain from doing anything which
would render its performance under this Agreement impossible; and
each party shall do everything which this Agreement contemplates
that such party shall do in order to accomplish the objectives and
purposes of this Agreement.
16.14 Operatinq Memorandum. The parties acknowledge that
the provisions of this Agreement require a close degree of
cooperation between city and Developer, and that the refinements
and further development of the Project may demonstrate that minor
changes are appropriate with respect to the details of performance
of the parties. The parties, therefore, retain a certain degree of
flexibility with respect to those items covered in general under
this Agreement. When and if the parties mutually find that minor
changes or adjustments are necessary or appropriate, they may
effectuate changes or adjustments through operating memoranda
approved by the parties. For purposes of this section 16.14, the
city Manager, or his designee, shall have the authority to approve
the operating memoranda on behalf of City. No operating memoranda
shall require notice or hearing or constitute an amendment to this
Agreement.
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16.15 Time of Essence. Time is of " .:. essence in the
performance of the provisions of this Agreement as to which time is
an element.
16.16 Amendment or Cancellation of Aqreement. This
Agreement may be amended from time to time or canceled by the
mutual consent of city and Owner only in the same manner as its
adoption, by an ordinance as set forth in California Government
Code section 65868, and shall be in a form suitable for recording
in the Official Records of San Diego County, California. The term
"Agreement" shall include any such amendment properly approved and
executed. city and Owner acknowledge that the provisions of this
Agreement require a close degree of cooperation between them, and
that minor or insubstantial changes to the Project and the
Development Plan may be required from time to time to accommodate
design changes, engineering changes, and other refinements.
Accordingly, changes to the Project and the Development Plan that
do not result in a change in use, an increase in density or
intensity of use, cause new or increased environmental impacts, or
violate any applicable health and safety regulations, may be
considered minor or insubstantial by the City Manager and made
without amending this Agreement.
16.17 Estoppel certificate. within 30 calendar days
following a written request by any of the parties, the other
parties to this Agreement shall execute and deliver to the
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
modif ications; (ii) there are no known current uncured defaults
under this Agreement, or specifying the dates and nature of any
such default; and (iii) any other reasonable information requested.
The failure to deliver such a statement within such time shall
constitute a conclusive presumption against the party which fails
to deliver such statement that this Agreement is in full force and
effect without modification, except as may be represented by the
requesting party, and that there are no uncured defaults in the
performance of the requesting party, except as may be represented
by the requesting party.
16.18 Severability. If any material provision of this
Agreement is held invalid, this Agreement will be automatically
terminated with neither partv bearinq anv liabilitv hereunder.
Notwithstandinq the foreqoinq. unlcss 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 Aqreement shall not be terminated. This provision will
not affect the right of the parties to modify or suspend this
Agreement by mutual consent pursuant to Paragraph 12.4.
16.19 Institution of Leqal Proceedinq. In addition to any
other rights or remedies, any party may institute legal action to
cure, correct, or remedy any default, to enforce any covenants or
agreements herein, or to enjoin any threatened or attempted violation
thereof; to recover damages for any default as allowed bv this
Aqreement or to obtain any remedies consistent with the purpose of
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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.
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SIGNATURE PAGE TO PRE-ANNEXATION DEVELOPMENT AGREEMENT.
Dated this ____ day of
, 1996.
"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 , 1996.
Ann Moore, Interim city Attorney
City of Chula vista
By:
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PRE-ANNEXATION DEVELOPMENT AGREEMENT
THIS PRE-ANNEXATION DEVELOPMENT AGREEMENT ("Agreement") is
made effective on the date hereinafter set forth below by and among
the CITY OF CHULA VISTA ("City") and SNMB, LTD. ("SNMB"), who agree
as follows:
1. RECITALS.
following facts:
This Agreement is made with respect to the
1.1 Owner. The owners of the properties subj ect to this
Agreement (hereinafter collectively referred to as "Owner" or as
"Developer") are as follows:
1.1.1 SNMB is the owner of approximately 1,827
acres of undeveloped real property ("the SNMB Property") in
the unincorporated area of the County of San Diego ("County"),
described in Exhibits "A" and "E, attached hereto and incorpo-
rated herein by this reference.
1.1.2 The SNMB Property (the "Property") is part
of a larger area commonly known, and referred to herein, as
"the Otay Valley Parcel of otay Ranch." Portions of SNMB
Property are located in Villaqes 2. 3. 4. 7. 8. 9 and Planninq
Areas 12 and 18B of the Otav Ranch Property.
1. 2 ci tv. The city of Chula vista is a municipal
corporation with Charter ci tv powers aFla aFl incorporated ~
within the County.
1.3 Code Authorization and Acknowledqrnents.
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.
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1.3.4 city and Owner intend to enter into this
aqreement for the fo11owinq purposes: acJmO\:lca'3c:
1.3.4.1 To ThiG A'3reCmcRt assures adequate
public facilities at the time of development.
1.3.4.2 To Thia A'!j'reemcRt assures development
in accordance with City's capital improvement plans.
1.3.4.3 This ~'!j'rccmcRt eSRatitutes a eurrcRt
c}:ereise af city's l!slice l!s',:era t ~o 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 ThiG ."''3rccme:mt '.Jill To permit
achievement of city growth management goals and objec-
tives.
1. 3.4.5 Thia "'3rccmcRt ",ill 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
assure that the city
in the property tax
development, sewer,
This Agreement will provide and
receive sales tax revenues, increase
base, residential housing and other
water and street facilities.
1.3.4.7 This A'!j'rccmcRt ~ 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 This "''3rccmeRt ..-ill To provide the
City the developer's support to secure annexation of the
lands depicted in Exhibit "B".
1.3.4.9 This "''3rccmcnt \l i 11 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 This ''\'3rccl!lcnt '.,ill To assure the
City that the Developer will dedicate rights-of-way to
the city for SR-125, a route which, when constructed,
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will substantially alleviate congestion on I-80S and I-5,
and also will facilitate the economic development of
Chula vista.
1.3.4.11 Because of the complexities of the
financing of the infrastructure, park, open space, and
other dedications, and regional and community facilities,
and the significant nature of such facilities, certainty
in the development process is an absolute necessity. The
phasing, timing, and development of public infrastructure
necessitate a significant commitment of resources,
planning, and effort by Owner for the public facilities
financing, construction, and dedication to be success-
fully completed. In return for Owner's participation and
commitment to these significant contributions of private
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 sub;ect 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 sub;ect to
section 5.2.1 below.
1.4 The Annexation. The city has applied to the Local
Agency Formation commission ("LAFCO") for annexation of Sphere of
Influence Planning Area 1 "The Otay Parcel", Planning Area 2
"Inverted L" and the Mary Patrick Estate Parcel (see Attachment
"B") .
1.5 Sphere of Influence. A city application is pending
before LAFCO to have the otay Valley Parcel included within City's
sphere of influence. On February 5, 1996 the Local Agency
Formation commission approved the inclusion of approximately 7,600
acres into the City sphere of Influence (Sphere of Influence
Planning Area 2 and the northern two thirds of Planning Area 1),
and designated the otay River valley an village 3 as special study
areas.
1.6 Planninq Documents. On October 28, 1993, City and
County adopted the otay Ranch General Development Plan/Subregional
Plan ("the GDP") which includes the otay Ranch Village Phasing
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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.
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 i 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. Auqust .July 9, 1996 is the date
of adoption by the city council of Ordinance No. 2679 approving
this Agreement. The ordinance shall take effect and be in full
force on the effective date of Annexation.
2. DEFINITIONS.
otherwise requires:
In this Agreement, unless the context
2.1 "Annexation" means the proposed annexation of that
portion of the Otay Ranch into the City as depicted on Exhibit "D".
2.2 "city" means the City of Chula Vista, in the County
of San Diego, State of California.
2.3 "County" means the County of San Diego, State of
California.
2.4 "Development Plan" means the GDP.
2.5 "GDP" means the General Development Plan/Subregional
Plan for the Otay Ranch, described in Paragraph 1.6, above.
2.6 "Owner" or "Developer" means the person, persons, or
entity having a legal and equitable interest in the Property, or
parts thereof, and includes Owner's successors-in-interest.
2.7 "Project" means the physical development of the
private and public improvements on the Property as provided for in
the Existing Project Approvals and as may be authorized by the City
in Future Discretionary Approvals.
2.8 "Property" means the real property described in
Paragraph 1.1.1.
2.9 The "Term" of this Agreement means the period
defined in Paragraph 3, below.
2.10 "Builder" means developer to whom Developer has sold
or conveyed property within the Property for purposes of its
improvement for residential, commercial, industrial or other use.
2.11 "CEQA" means the California Environmental Quality
Act, California Public Resources Code section 21000, et seq.
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2.12 "city council" means the city of Chula vista city
council.
2.13 "Cornrnit" or "Committed" means all of the following
requirements have been met with respect to any public facility:
2.13.1 For a public facility within the City's
jurisdictional boundaries and a responsibility of the develop-
er.
2.13.1.1 All discretionary permits required of
the Developer have been obtained for construction of the
public facility;
2.13.1.2 Plans for the construction of the
public facility have all the necessary governmental
approvals; and
2.13.1.3 Adequate funds (i.e., letters of
credit, cash deposits, performance bonds or land secured
public financing, including facility benefit assessments,
Mello-Roos assessment districts of similar assessment
mechanism) are available such that the City can construct
the public facility if construction has not cornrnenced
within thirty (30) days of issuance of a notice to
proceed by the Director of Public Works, or construction
is not progressing towards completion in a reasonable
manner as reasonably deemed by the Director of Public
Works.
2.13.2 For a public facility within the City's
jurisdictional boundaries, but to be provided by other than
Developer.
2.13.2.1 Developer's proportionate share of
the cost of such public facility as defined in the
existing Project Approvals and Future Discretionary
Approvals has been provided or assured by Developer
through the payment or impositions of development impact
fee or other similar exaction mechanism.
2.13.3 For public facility not within city's
jurisdictional boundaries:
the cost
existing
Approvals
Developer
of Public
2.13.3.1 Developer's proportionate share of
of such public facility as defined in the
project Approvals and Future Discretionary
has been provided for or otherwise assured by
to the reasonable satisfaction of the Director
Works.
2.14 "Development Impact Fee (DIF)" means fees imposed
upon new development pursuant to the City of Chula vista
Development Impact Fee Program, for example, including but not
limited to the Transportation Development Impact Fee Program, the
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Interim SR-125 Development Impact Fee Program, the Salt Creek Sewer
DIF and the Public Facilities DIF.
2.15 "Existing Project Approvals" means all discretionary
approvals affecting the Project which have been approved or
established in conjunction with, or preceding, the effective date
consisting of, but not limited to the GDP, the Chula vista General
Plan, the otay Ranch Reserve Fund Program adopted pursuant to
Resolution 18288, and the Phase I and II Resource Management Plan
(RMP), as may be amended from time to time consistent with this
agreement.
2.16 "Final Map(s)" means any final subdivision map for
all or any portion of the Property other than the Superblock Final
Map ("A" Maps).
2.17 "Future Discretionary Approvals" means all permits
and approvals by the City granted after the effective date and
excluding existing Project Approvals, including, but not limited
to: (i) grading permits; (ii) site plan reviews; (iii) design
guidelines and reviews; (iv) precise plan reviews; (v) subdivisions
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 the schedule for land to se trans-
ferred of this land and/or fees to be paid to insure the orderly
conveyance of the otay Ranch land to the Preserve Owner Manager.
The purpose of the plan is to fulfill the obligations to convey
resource sensitive land, per the criteria contained in the phase I
and II Resource Management Plans and to mitigate environmental
impacts of the otay Ranch Project.
2.20 "Public Facility"
public facilities described
Implementation Plan.
or "Public Facilities" means those
in the otay Ranch Facility
2.21 "Subdivision Map Act" means the California
Subdivision Map Act, Government Code section 66410, et seq., and
its amendments as may from time to time be adopted.
2.22 "Substantial Compliance" means that the party
charged with the performance of a covenant herein has sUfficiently
followed the terms of this Agreement so as to carry out the intent
of the parties in entering into this Agreement.
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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 January 1, 1997, this Agreement shall
be null and void. Any of the foregoing to the contrary notwith-
standing, from the date of 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 4. The Term
of this Agreement for purposes other than Paragraph 4 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 Developer is suspended for any
reason other than the default of Developer, and for a period of
time equal to the period of time during which any action by the
city or court action limits the processing of future discretionary
approvals, issuance of building permits or any other development of
the property consistent with this Agreement.
4. OWNER CONSENT TO ANNEXATION. Owner hereby consents to
and shall cooperate with the applications of city to declare that
the 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 aqrees not to challenqe the annexation of the
otay Valley Parcel into the city.
5. VESTED RIGHTS. Notwi thstanding any future action or
inaction of the City during the term of this Agreement, whether
such action is by ordinance, resolution or policy of the City,
Owner and Developer shall have a vested right, 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 ci ty 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.
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5.1.2 ci ty shall reasonably consider in its
discretion and procc(3D 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 Indus-
trial 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 amCRS 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 the interchange
improvement plaRo.
5.1.4 ci ty shall initiate contact and diligently
pursue discussions with the county of San Diego and the city
of San Diego to determine the number, scheduling and financing
of the otay River road and bridge crossings.
5.1. 5 City shall allow the owner for purposes of
processing entitlements to proceed with planning of the
Property on a first come first served basis, with other
properties in the area of the Annexation. In addition, if
necessary the City shall, with proper environmental review,
consider in its discretion an amendment to the Village Phasing
Plan to facilitate the planning and development of the
properties covered by this Agreement.
5.1,6 To the extent any of the foregoing
commitmeRto of City are cmbodies in changes are embodied in ~
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.
5.1.7 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 signi f icant, unmi tigable
environmental impacts.
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5.1.9. city maY make such modifications or
amendments to the Existina proiect Approvals/Future Discretionarv
Approvals. as may be ordered bv a court of competent iurisdiction
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 bv
the city.
5.2 Development of Propertv. The development of the
property will be governed by this Agreement and Existing project
Approvals and such development shall comply and be governed by all
rules, regulations, policies, resolutions, ordinances, and
standards in effect as of the Effective Date subject to the
provisions of section 5.2.1 below. The City shall retain its
discretionary authority as to Future Discretionary Approvals,
provided however, such Future Discretionary Approvals shall be
regulated by the Existing Project Approvals, this Agreement, and
city rules, regulations, standards, ordinances, resolutions and
policies in effect on the Effective Date of this Agreement and
subject to Section 5.2.1.
Notwithstanding the foregoing, the City may make such changes to
the city's Growth Management Ordinance applicable to the project as
are reasonable and consistent with the purpose and intent of the
existing Growth Management Ordinance and which are generally
applicable to all private projects citywide or east of 1-805 or
within a specific benefit, fee or reimbursement district created
pursuant to the California Government Code.
5.2.1 New or Amended Rules. Reaulations.
Policies. standards. Ordinances and Resolutions. The City may
apply to the Project, including Future Discretionary Approv-
als, new or amended rules, laws, regulations, policies,
ordinances, resolutions and standards generally applicable to
all private projects east of 1-805 or within a specific
benefit fee or reimbursement district created pursuant to the
california Government Code. The application of such new
rules, or amended laws, regulations, resolutions, policies,
ordinances and standards will not unreasonably prevent or
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
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.
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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. city of Camarillo (1984) 27 Cal.3d 465, that the failure
of the parties to provide for the timing of development resulted in
a later-adopted initiative restricting the timing of development to
prevail over such parties' Agreement, it is the intention of the
parties to this Agreement to cure that deficiency by specifically
acknowledging that timing and phasing of development is completely
and exclusively governed by the Existing Project Approvals,
including the Chula vista Growth Management Ordinance. The purpose
of the Chula vista Growth Management Ordinance is to "control the
timing and location of development by tying the pace of development
to the provision of public facilities and improvements to conform
to the City's threshold standards." (Municipal Code section
19.09.010A.7) The findings in support of the Growth Management
Ordinance conclude that the ordinance "does not affect the number
of houses which may be built." (Municipal Code section
19.09.010B.3) Therefore, the parties acknowledge that the Chula
vista Growth Management Ordinance completely occupies the topic of
development timing and phasing and expressly precludes the adoption
of housing caps, urban reserves or any other means by which the
rate of development may be controlled or regulated. The city
agrees that the Developer shall be entitled to, apply for and
receive all permits necessary for the development of property,
consistent with the Growth Management Ordinance, Existing Project
Approvals, Future Discretionary Approvals and this Agreement.
5.5 Benefit of vestinq. Nothing in this Agreement will
be construed as limiting or impairing Developer's vested right, if
any, to proceed with the development and use of the Property
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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 Discretionary Approvals. city
will accept and diligently process development applications and
requests for Future Discretionary Approvals, or other entitlements
with respect to the development and use of the Property, provided
said applications and requests are in accordance with this
Agreement. city costs for processing work related to the Project,
including hiring of additional City personnel and/or the retaining
of professional consultants, will be reimbursed to city by
Developer.
6.2 Lenqth of Validity of Tentative Subdivision Maps.
Government Code section 66452.6 provides that tentative subdivision
map(s) may remain valid for a length up to the term of a Develop-
ment Agreement. The city agrees that tentative subdivision map(s)
for the property shall be for a term of six (6) years and may be
extended by the city Council for a period of time not to exceed a
total of twenty (20) years and in no event beyond the term of this
Agreement.
6.3 Pre-Final Map Development. If Developer desires to
do certain work on the Property after approval of a tentative map
(for example, grading) prior to the recordation of a final map, it
may do so by obtaining a grading and/or other required approvals
from the City which are authorized by the city prior to recordation
of a final map. Such permit shall be issued to Developer, or its
contractor, upon Developer's application, approval, and provided
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
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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 COIn1nission approves said
tentative subdivision map.
6.4.2 Recordation of Final Subdivision Map in
Name of Builder or Third Party. Developer may, if it so
elects, convey to a Builder or third party any "super block"
lot(s) shown on the recorded Superblock Final Map. In such
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
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reservations of land and satisfy other exactions conditioning the
development of the Property which are set forth hereinbelow. The
obligations of the Developer pursuant to this Agreement are
conditioned upon: (i) the city not being in default of its obliga-
tions under this agreement; and (ii) the city not preventing or
unreasonably delaying the development of the property; and (iii)
the Agreement having not been suspended in response to changes in
state or federal law; and (iv) the city's obligations having not
been suspended pursuant to section 13.2.
7.2 Dedications and Reservations of Land for Public Purposes.
The policies by which property will be required to be reserved,
dedicated or improved for public purposes are identified in the
Existing Project Approvals. A more precise delineation of the
property to be preserved, dedicated or improved for public purposes
shall occur as part of Future Discretionary Approvals, consistent
with the Existing Project Approvals.
7.2.1 Dedication of Land for SR 125. Developer agrees to
dedicate land for right-of-way purposes and property owned by
the Developer that is reasonably necessary for the SR-125
configuration that is generally depicted in the SR-125 draft
Environmental Impact Report/statement and as revised in the
Final Environmental Impact Report/Statement to respond to
engineering, design, environmental and similar constraints.
The dedications shall be to the city or by an alternate method
acceptable to the city at such time as requested by the City.
City agrees that in the event city shall negotiate with
California Transportation Ventures (CTV) or other toll road
builder any participation or advantages to City that city
shall share such rights with subsequent owner/resident of the
property.
7.2.2 Landfill Nuisance Easements. The parties to this
Aqreement understand and acknowledqe that the "Landfill
Nuisance Easement" is an inteqral part of this Aqreement.
Developer shall deliver to the eity "Landfill Nuisance
Easements" in the form attached as Exhibit "e" and satisfacto-
ry to the County of San Dieqo prior to the second readinq of
the Ordinance approvinq the Aqreement. If there is no second
readinq of this Aqreement. the city shall return said ease-
ments to the Developer. If the County Board of Supervisors
does not accept or approve said easements. this Aqreement
shall be automaticallv terminated with neither party bearinq
any liability hereunder. Dcteloper ohall '3rant to the County
by July 1, 199C "Landfill Nuioanoe Easements" s~bstantially in
the form attachea as E){l'>ibit C. The Eaoement ohall coyer all
land ~hioh io ~ithin the otay Lanafill Buffer ~rea of Villageo
2, 3 and Plannin'3 Area l8B af the otay TIanoI'> COP ao sha~R on
E)[hibit D hereto.
7.2.3 citv 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
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unknown relocation of SR-125 from the route current Iv depicted
in the GDP. Preserve ConveyaFloe PIa". TRC City and the
Develof"er shall R\~tually a~rec UpOFl a PreGer,c ConvcyaRee
rlaR. The City sRall iR ~eod faith eeRsider fer adoption such
a plaR aRa tRe Devele~er shall eSRvey property and/or fees in
lieu of laRa as oct fortR iFl such rlan.
7.3 Growth Manaqement Ordinance. Developer shall commit the
public facilities and city shall issue building permits as provided
in this section. The City shall have the right to withhold the
issuance of building permits any time after the City reasonably
determines a Threshold has been exceeded, unless and until the
Developer has mitigated the deficiency in accordance with the
City's Growth Management Ordinance.
Developer agrees that building permits may be withheld where the
public facilities described in the Existing Project Approvals/-
Future Discretionary Approvals required for a particular Threshold
have not been committed.
In the event a Threshold is not met and future building permit
issuance may be withheld, the notice provisions and procedures
contained in section 19.09 .100C of the Municipal Code will be
followed. In the event the issuance of building permits is
suspended pursuant to the provisions herein, such suspension shall
not constitute a breach of the terms of this Agreement by Developer
or citv. Furthermore, any such suspension which is not caused by
the actions or omissions of the Developer, shall toll the term of
this Agreement as provided for in section 16.12 of this Agreement,
and suspend the Developer's obligations pursuant to this Agreement.
7.3.1 Required Condemnation. The city and Developer
recognize that certain of the public facilities identified in
the Existing Project Approvals/Future Discretionary Approvals
and required to comply with a threshold are located on
properties which neither the Developer nor the City has, or
will have, title to or control of. The City shall identify
such property or properties and at the time of filing of the
final map commence timely negotiations or, where the property
is within the City's jurisdiction, commence timely proceedings
pursuant to Title 7 (commencing with S 1230.010) of Part 3 of
the Code of civil Procedure to acquire an interest in the
property or properties. Developer's share of the cost
involved in any such acquisition shall be based on its
proportionate share of the public facility as defined in the
Existing Project Approvals/Future Discretionary Approvals.
Nothing in this Agreement shall be deemed to preclude the city
from requiring the Developer to pay the cost of acquiring such
off-site land. For that portion of the cost beyond the
Developer's fair share responsibility, the city shall take all
reasonable steps to establish a procedure whereby the develop-
er is reimbursed for such costs beyond its fair share.
7.3.2 Information Reqardinq Thresholds. Upon
Developer's written requests of the City Manager, the city
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will provide Developer with information regarding the current
status of a Threshold. Developer shall be responsible for any
staff costs incurred in providing said written response.
7.4 Improvements Required bv a Subdivision Map. Asmay
be required pursuant to the terms of a subdivision map, it shall be
the responsibility of Developer to construct the improvements
required by a subdivision map. Where Developer is required to
construct a public improvement which has been identified as the
responsibility of another party or to provide public improvements
of supplemental size, capacity, number or length benefiting
property not within the subdivision, city shall process a reim-
bursement agreement to the Developer in accordance with Article 6
of Chapter 4 of the Subdivision Map Act, commencing with Government
Code section 66485, and section 7.5, below.
7.5 Facilities Which Are the Obliqations of Another
Partv. or Are of Excessive Size. capacitv. Lenqth or Number.
Developer may offer to advance monies and/or construct public
improvements which are the responsibility of another land owner, or
outside the city's jurisdictional boundaries, or which are of
supplemental size, capacity, number or length for the benefit of
land not within the Property. City, where requesting such funding
or construction of oversized public improvements, shall consider
after a public hearing, contemporaneous with the imposition of the
obligation, the formation of a reimbursement district, assessment
district, facility benefit assessment, or reimbursement agreement
or other reimbursement mechanism.
7.6 pioneerinq of Facilities. To the extent Developer
itself constructs (i.e., "Pioneers") any public facilities or
public improvements which are covered by a DIF Program, Developer
shall be given a credit against DIFs otherwise payable, subject to
the City's Director of Public Works reasonable determination that
such costs are allowable under the applicable DIF Program. It is
specifically intended that Developer be given DIF credit for the
DIF Program improvements it makes. The fact that such improvements
may be financed by an assessment district or other financing
mechanism, shall not prevent DIF credit from being given to the
extent that such costs are allowed under the applicable DIF Program
7.7 Insurance.
insured for all insurance
Project as pertains to the
the Project.
Developer shall name city as additional
policies obtained by Developer for the
Developer's activities and operation on
7.8 other Land Owners. Developer hereby agrees to
dedicate adequate rights-of-way within the boundaries of the
Property for other land owners to "Pioneer" public facilities on
the Property; provided, however, as follows: (i) dedications shall
be restricted to those reasonably necessary for the construction of
facilities identified in the city's adopted public facility plans;
(ii) this provision shall not be binding on the successors-in-
interest or assignees of Developer following recordation of the
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final "super Block" or "A" Map; and (iii) the City shall use its
reasonable best efforts to obtain agreements similar to this
subsection from other developers and to obtain equitable reimburse-
ment for Developer for any excess dedications.
8. DEVELOPMENT IMPACT FEES.
8.1 Existina Development Impact Fee Proaram Pavments.
Developer shall pay to the city a DIF, or construct improvements in
lieu of payment, for improvements which are conditions of a
tentative subdivision map upon the issuance of building permits(s),
or at a later time as specified by city ordinance, the Subdivision
Map Act, or Public Facility Financing Plan (PFFP). The DIF will be
in the amount in effect at the time payment is made and may only be
increased pursuant to section 8.6 herein.
8.2 Other Undeveloped Properties. The city will use its
reasonable best efforts to impose and collect, or cause the
imposition and collection of, the same DIF program on all the
undeveloped real properties which benefit from the provision of the
public facility through the DIF program, or provided as a condition
of Project Approvals.
8.3 Use of Development Impact Fee Proaram. The DIF
amounts paid to the city by Developer and others with respect to
the Area of Benefit shall be placed by the city in a capital
facility fund account established pursuant to California Government
Code sections 66000-66009. The city shall expend such funds only
for the projects described in the adopted fee program as may be
modified from time to time. The city will use its reasonable best
efforts to cause such Projects to be completed as soon as practica-
ble; however, the City shall not be obligated to use its general
funds for such Projects.
8.4 Withholdina of Permits. Developer agrees that city
shall have the right to withhold issuance of the building permit
for any structure or improvement on the Property unless and until
the DIF is paid for such structure or improvement.
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
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 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
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to the Agreement so long as: (i) the modification incorporates the
reasonable costs of providing facilities identified in the Existing
project Approvals; (ii) are based upon methodologies in substantial
compliance with the methodology contained in the existing DIF
programs; or other methodology approved by the city council
following a public hearing; (iii) complies with the provisions of
Government Code sections 66000-66009.
8.7 Standards for Financinq Obliqations of Owner. In
connection with the development of the Property, the following
standards regarding the financing of public improvements shall
apply:
8.7.1 Owner shall pay its fair share for the
interchanges described in Paragraph 5.1.3, based upon the
number of dwelling units or equivalent dwellings of develop-
ment allowed on the Property as compared to the total dwelling
units or equivalent dwelling units allowed on properties
served by such interchanges.
8.7.2 Owner shall participate in the DIF Program
for the otay Valley Parcel with other owners in proportion to
the total dwelling units or equivalent dwelling units allowed
on the Property as compared with the total of such units
allowed on properties in that particular DIF or by some other
equitable methodology decided by the City council.
8.7.3 The city shall diligently pursue the
requirements that the Eastern Territories' DIF requires
offsite third parties and adjacent jurisdictions to bear their
fair share of all otay River Valley crossings.
9. CITY OBLIGATIONS.
9.1 Urban Infrastructure. To the extent it is within
the authority of the city to provide, City shall accommodate urban
infrastructure to the project, consistent with Existing Project
Approvals. Where it is necessary to utilize city property to
provide urban infrastructure consistent with the Existing Project
Approvals, the city agrees to make such land available for such
uses, provided that the city if it so chooses is compensated at
fair market value for the property. To the extent that the
provision of urban infrastructure is within the authority of
another public or quasi-public agency or utility, the city agrees
to fully cooperate with such agency or agencies to accommodate the
urban infrastructure, consistent with Existing Project Approvals.
Urban infrastructure shall include, but not be limited to gas,
electricity, telephone, cable and facilities identified in the Otay
Ranch Facility Implementation Plan.
9.2 Sewer Capacity. The City agrees to provide adequate
sewer capacity for the project, upon the payment of ordinary and
necessary sewer connection, capacity and/or service fees.
10. ANNUAL REVIEW.
-17-
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.
review at
conditions
by city or
10.4 Failure of periodic Review. city's failure to
least annually Owner's compliance with the terms and
of this Agreement shall not constitute, or be asserted
Owner as, a breach of the Agreement.
11.
DEFAULT.
11.1 Events of Default. A default under this Agreement
shall be deemed to have occurred upon the happening of one or more
of the following events or conditions:
made
been
11.1.1
or furnished
false in any
A warranty, representation or statement
by Owner to City is false or proves to have
material respect when it was made.
11.1.2 A finding and determination by city made
following a periodic review under the procedure provided for
in California Government Code section 65865.1 that upon the
basis of substantial evidence Owner has not complied in good
faith with one or more of the terms or conditions of this
Agreement.
consider
submitted
11.1.3 City does not accept,
requested development permits
in accordance with the provisions
timely review, or
or entitlements
of this Agreement.
-18-
11.1.4 Any other act or omission by City or Owner
which materially interferes with the terms of this Agreement.
11.2 Procedure Upon Default.
11.2.1 Upon the occurrence of default by the
other party, City or Owner may terminate this Agreement after
providing the other party thirty (30) days written notice
specifying the nature of the alleged default and, when
appropriate, the manner in which said default may be satis-
factorily cured. After proper notice and expiration of said
thirty (30) day cure period without cure, this Agreement may
be terminated. In the event that City's or Owner's default is
not subject to cure within the thirty (30) day period, city or
Owner shall be deemed not to remain in default in the event
that city or Owner commences to cure within such thirty (30)
day period and diligently prosecutes such cure to completion.
Failure or delay in giving notice of any default shall not
constitute a waiver of any default, nor shall it change the
time of default. Notwithstanding any other provision of this
Agreement, City reserves the right to formulate and propose to
Owner options for curing any defaults under this Agreement for
which a cure is not specified in this Agreement.
11.2.2 City does not waive any claim of defect in
performance by Owner if, on periodic review, city does not
propose to modify or terminate this Agreement.
11.2.3 subject to Paragraph 16.12 of this
Agreement, the failure of a third person shall not excuse a
party's nonperformance under this agreement.
11.2.4 All other remedies at law or in equity
which are consistent with the provisions of this Agreement are
available to City and Owner to pursue in the event there is a
breach provided however. neither party shall have the remedY
of monetary damaqes aqainst the other. except for an award of
litiqation costs and attorney's fees.
12. ENCUMBRANCES AND RELEASES ON PROPERTY.
12.1 Discretion to Encumber. This Agreement shall not
prevent or limit Owner in any manner at Owner's sole discretion,
from encumbering the Property, or any portion of the Property, or
any improvement on the Property, by any mortgage, deed of trust, or
other security device securing financing with respect to the
Property or its improvement.
12.2 Mortqaqee Riqhts and Obliqations. The mortgagee of
a mortgage or beneficiary of a deed of trust encumbering the
Property, or any part thereof, and their successors and assigns
shall, upon written request to City, be entitled to receive from
city written notification of any default by Owner of the
performance of Owner's obligations under the Agreement which has
-19-
not been cured within thirty (30) days following the date of
default.
12.3 Releases. city agrees that upon written request of
Owner and payment of all fees and performance of the require-
ments and conditions required of Owner by this Agreement with
respect to the Property, or any portion thereof, city may
execute and deliver to Owner appropriate release(s) of further
obligations imposed by this Agreement in form and substance
acceptable to the San Diego county Recorder and title
insurance company, if any, or as may otherwise be necessary to
effect the release. city Manager shall not unreasonably
withhold approval of such release(s).
12.4 Obliqation to Modifv. city acknowledges that the
lenders providing financing for the Project may require certain
modifications to this Agreement and city agrees, upon request from
time to time, to meet with Owner and/or representatives of such
lenders to negotiate in good faith any such requirement for
modification. City will not unreasonably withhold its consent to
any such requested modification.
13. MODIFICATION OR SUSPENSION.
13.1 Modification to Aqreement bv Mutual Consent. This
Agreement may be modified, from time to time, by the mutual consent
of the parties only in the same manner as its adoption by an
ordinance as set forth in California Government Code sections
65867, 65867.5 and 65868. The term, "this Agreement" as used in
this Agreement, will include any such modification properly
approved and executed.
13.2 Unforeseen Health or Safetv Circumstances. If, as
a result of facts, events, or circumstances presently unknown,
unforeseeable, and which could not have been known to the parties
prior to the commencement of this Agreement, City finds that
failure to suspend this Agreement would place the residents of City
in a severe and immediate emergency to their health or safety.
13.2.1 Notification of Unforeseen Circumstances.
Notify Developer of (i) city's determination; and (ii) the
reasons for city's determination, and all facts upon which
such reasons are based;
13.2.2 Notice of Hearinq. Notify Developer in
writing at least fourteen (14) days prior to the date, of the
date, time and place of the hearing and forward to Developer
a minimum of ten (10) days prior to the hearings described in
section 13.2.3, all documents related to such determination
and reasons therefor; and
13.2.3 Hearinq. Hold a hearing on the deter-
mination, at which hearing Developer will have the right to
address the city Council. At the conclusion of said hearing,
City may take action to suspend this Agreement as provided
-20-
herein. The city may suspend this Agreement if, at the
conclusion of said hearing, based upon the evidence presented
by the parties, the city finds failure to suspend would place
the residents of the city in a severe and immediate emergency
to their health or safety.
13.3 Chanqe in state or Federal Law or Requlations. If
any state or federal law or regulation enacted during the Term of
this Agreement, or the action or inaction of any other affected
governmental jurisdiction, precludes compliance with one or more
provisions of this Agreement, or requires changes in plans, maps,
or permits approved by city, the parties will act pursuant to
sections 13.3.1 and 13.3.2, below.
13.3.1 Notice: Meetinq. The party first becoming
aware of such enactment or action or inaction will provide the
other party(ies) with written notice of such state or federal
law or regulation and provide a copy of such law or regulation
and a statement regarding its conflict with the provisions of
this Agreement. The parties will promptly meet and confer in
a good faith and reasonable attempt to modify or suspend this
Agreement to comply with such federal or state law or regula-
tion.
13.3.2 Hearinq. If an agreed upon modification
or suspension would not require an amendment to this Agree-
ment, no hearing shall be held. otherwise, the matter of such
federal or state law or regulation will be scheduled for
hearing before the city. Fifteen (15) days' written notice of
such hearing shall be provided to Developer, and the city, at
such hearing, will determine and issue findings on the
modification or suspension which is required by such federal
or state law or regulation. Developer, at the hearing, shall
have the right to offer testimony and other evidence. If the
parties fail to agree after said hearing, the matter may be
submitted to mediation pursuant to subsection 13.3.3, below.
Any modification or suspension shall be taken by the affirma-
tive vote of not less than a majority of the authorized voting
members of the city. Any suspension or modification may be
subject to judicial review in conformance with subsection
16.19 of this Agreement.
13.3.3 Mediation of Disputes. In the event the
dispute between the parties with respect to the provisions of
this paragraph has not been resolved to the satisfaction of
both parties following the City hearing required by subsection
13.3.2, the matter shall be submitted to mediation prior to
the filing of any legal action by any party. The mediation
will be conducted by the San Diego Mediation center; if San
Diego Mediation Center is unable to conduct the mediation, the
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
-21-
any such mediation shall be divided equally between the
Developer and city.
13.4 Natural communities Conservation Act fNCCPJ. 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
conununities Conservation Act ("NCCP"), locally proposed to be
implemented through the Mul ti-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.
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
-22-
city Manager, which consent shall not be unreasonably with-
held, delayed, or conditioned. Once the City Manager has
consented to a transfer, delivery to and acceptance by the
city Manager of an unqualified written assumption of Owner's
obligations under this Agreement by such transferee shall
relieve Owner of the obligations under this Agreement to the
extent the obligations have been expressly assumed by the
transferee. Such transferee shall not be entitled to amend
this Agreement without the written consent of the entity that,
as of the Effective Date, is Owner, which consent shall not be
unreasonably withheld, delayed, or conditioned. The entity
that is Owner as of the Effective Date, however, shall be
entitled to amend this Agreement without the written consent
of such transferee.
16. MISCELLANEOUS PROVISIONS.
16.1 Bindinq Effect of Aqreement. Except to the extent
otherwise provided in this Agreement, the burdens of this Agreement
bind, and the benefits of this Agreement inure, to City's and
Owner's successors-in-interest and shall run with the land.
16.2 Relationship of citv and Owner. The contractual
relationship between City and Owner arising out of this Agreement
is one of independent contractor and not agency. This Agreement
does not create any third-party beneficiary rights.
16.3 Notices. All notices, demands, and correspondence
required or permitted by this Agreement shall be in writing and
delivered in person, or mailed by first-class or certified mail,
postage prepaid, addressed as follows:
If to city, to:
City of Chula vista
276 Fourth Avenue
Chula vista, CA 91910
Attention: city Manager
If to Owner, to:
SNMB, LTD.
7811 La Mesa
suite B-3
La Mesa, CA
Attention:
Boulevard
91941
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.
-23-
16.4 Rules of Construction. In this Agreement, the use
of the singular includes the plural; the masculine gender includes
the feminine; "shall" is mandatory; "may" is permissive.
16.5 Entire Aqreement. Waivers. and Recorded statement.
This Agreement constitutes the entire understanding and agreement
of city and Owner with respect to the matters set forth in this
Agreement. This Agreement supersedes all negotiations or previous
agreements between city and Owner respecting this Agreement. All
waivers of the provisions of this Agreement must be in writing and
signed by the appropriate authorities of city and Owner. Upon the
completion of performance of this Agreement, or its revocation or
termination, a statement evidencing completion, revocation, or
termination signed by the appropriate agents of city shall be
recorded in the Official Records of San Diego County, California.
16.6 proiect as a Private Undertakinq. It is
specifically understood by City and Owner that (i) the Project is
a pri vate 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 (Hi) Owner shall have the full
power and exclusive control of the Property subject to the
obligations of Owner set forth in this Agreement.
16.7 Incorporation of Recitals. The recitals set forth
in Paragraph 1 of this Agreement are part of this Agreement.
16.8 captions. The captions of this Agreement are for
convenience and reference only and shall not define, explain,
modify, construe, limit, amplify, or aid in the interpretation,
construction, or meaning of any of the provisions of this
Agreement.
Owner is
approval
ditioned.
16.9 Consent. Where the consent or approval of City or
required or necessary under this Agreement, the consent or
shall not be unreasonably withheld, delayed, or con-
16.10 Covenant of Cooperation.
cooperate and deal with each other in good
other in the performance of the provisions
City and Owner shall
faith, and assist each
of this Agreement.
16.11 Recordinq. The City Clerk
this Agreement to be recorded with the
Recorder of San Diego County, California,
following the Effective Date.
shall cause a copy of
Off ice of the county
within ten (10) days
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
-24-
delays and impacts city's or Owner's ability to perform obligations
under this Agreement, including, but not limited to, acts of God,
enactment of new conflicting federal or state laws or regulations
(example: listing of a species as threatened or endangered),
judicial actions such as the issuance of restraining orders and
injunctions, riots, strikes, or damage to work in process by reason
of fire, floods, earthquake, or other such casualties. If city or
Owner seeks excuse from performance, it shall provide written
notice of such delay to the other within thirty (30) days of the
commencement of such delay. If the delay or default is beyond the
control of city or Owner, and is excused, an extension of time for
such cause will be granted in writing for the period of the
enforced delay, or longer as may be mutually agreed upon.
16.13 Covenant of Good Faith and Fair Dealinqs. Noparty
shall do anything which shall have the effect of harming or
injuring the right of the other parties to receive the benefits of
this Agreement; each party shall refrain from doing anything which
would render its performance under this Agreement impossible; and
each party shall do everything which this Agreement contemplates
that such party shall do in order to accomplish the objectives and
purposes of this Agreement.
16.14 Qperatinq Memorandum. The parties acknowledge that
the provisions of this Agreement require a close degree of
cooperation between city and Developer, and that the refinements
and further development of the Project may demonstrate that minor
changes are appropriate with respect to the details of performance
of the parties. The parties, therefore, retain a certain degree of
flexibility with respect to those items covered in general under
this Agreement. When and if the parties mutually find that minor
changes or adjustments are necessary or appropriate, they may
effectuate changes or adjustments through operating memoranda
approved by the parties. For purposes of this Section 16.14, the
city Manager, or his designee, shall have the authority to approve
the operating memoranda on behalf of city. No operating memoranda
shall require notice or hearing or constitute an amendment to this
Agreement.
16.15 Time of Essence. Time is of the essence in the
performance of the provisions of this Agreement as to which time is
an element.
16.16 Amendment or Cancellation of Aqreement. This
Agreement may be amended from time to time or canceled by the
mutual consent of city and Owner only in the same manner as its
adoption, by an ordinance as set forth in california Government
Code section 65868, and shall be in a form suitable for recording
in the Official Records of San Diego county, California. The term
"Agreement" shall include any such amendment properly approved and
executed. City and Owner acknowledge that the provisions of this
Agreement require a close degree of cooperation between them, and
that minor or insubstantial changes to the Project and the
Development Plan may be required from time to time to accommodate
design changes, engineering changes, and other refinements.
-25-
Accordingly, changes to the Project and the Development Plan that
do not result in a change in use, an increase in density or
intensity of use, cause new or increased environmental impacts, or
violate any applicable health and safety regulations, may be
considered minor or insubstantial by the city Manager and made
without amending this Agreement.
16.17 Estoppel certificate. within 30 calendar days
following a written request by any of the parties, the other
parties to this Agreement shall execute and deliver to the
requesting party a statement certifying that (i) this Agreement is
unmodified and in full force and effect, or if there have been
modifications hereto, that this Agreement is in full force and
effect as modified and stating the date and nature of such
modifications; (ii) there are no known current uncured defaults
under this Agreement, or specifying the dates and nature of any
such default; and (iii) any other reasonable information requested.
The failure to deliver such a statement within such time shall
constitute a conclusive presumption against the party which fails
to deliver such statement that this Agreement is in full force and
effect without modification, except as may be represented by the
requesting party, and that there are no uncured defaults in the
performance of the requesting party, except as may be represented
by the requesting party.
16.18 Severabili tv. If any material provision of this
Agreement is held invalid, this Agreement will be automatically
terminated with neither party bearinq any liabilitv hereunder.
Notwi thstandinq the foreqoinq. URlcss wi thin 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 Aqreement shall not be terminated. This provision will
not affect the right of the parties to modify or suspend this
Agreement by mutual consent pursuant to Paragraph 12.4.
16.19 Institution of Leqal Proceedinq. In addition to any
other rights or remedies, any party may institute legal action to
cure, correct, or remedy any default, to enforce any covenants or
agreements herein, or to enjoin any threatened or attempted violation
thereof; to recover damages for any default as allowed bv this
Aqreement 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 Attorneys' Fees and Costs. If any party commences
litigation or other proceedings (including, without limitation,
arbitration) for the interpretation, reformation, enforcement, or
rescission of this Agreement, the prevailing party, as determined by
the court, will be entitled to its reasonable attorneys' fees and
costs.
16.21 Hold Harmless. Developer agrees to and shall hold
City, its officers, agents, employees and representatives harmless
from liability for damage or claims for damage for personal injury,
including death, and claims for property damage which may arise from
-26-
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.
-27-
SIGNATURE PAGE TO PRE-ANNEXATION DEVELOPMENT AGREEMENT.
Dated this ____ day of
, 1996.
"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 , 1996.
Ann Moore, Interim city Attorney
City of Chula vista
By:
-28-
PRE-ANNEXATION DEVELOPMENT AGREEMENT
THIS PRE-ANNEXATION DEVELOPMENT AGREEMENT ("Agreement") is
made effective on the date hereinafter set forth below by and among
the CITY OF CHULA VISTA ("city") and STEPHEN AND MARY BIRCH
FOUNDATION ("Foundation'), who agree as follows:
1. RECITALS.
following facts:
This Agreement is made with respect to the
1.1 Owner. The owners of the properties subj ect to this
Agreement (hereinafter collectively referred to as "Owner" or as
"Developer") are as follows:
1.1.1 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 city. The
corporation with Charter
within the County.
city of Chula vista is a municipal
city powers aHa aH incorporated ~
1.3 Code Authorization and Acknowledqments.
1.3.1 city is authorized pursuant to its
charter. self-rule powers and California Government Code
sections 65864 through 65869.5 to enter into development
agreements for the purpose of establishing certainty for both
City and owners of real property in the development process.
1.3.2 Government Code section 65865 expressly
authorizes a city to enter into a development agreement with
any person having a legal or equitable interest in real
property in unincorporated territory within that city's sphere
of influence for the development of property as provided in
the Development Agreement Law; provided that the agreement
shall not become operative unless annexation proceedings
annexing the property to the city are completed within the
time specified by the agreement.
1.3.3 City enters into this Agreement pursuant
to the provisions of the California Government Code, its home-
rule powers, and applicable City ordinances, rules, regula-
tions and policies.
1.3.4 city and Owner intend to enter into this
aqreement for the followinq purposes: acJmO\:lcdgc:
-1-
1.3.4.1 To This ~greement assures adequate
public facilities at the time of development.
1.3.4.2 To This lIgrccmcnt assures development
in accordance with city's capital improvement plans.
1.3.4.3 This lIgreefflent eonstitutes a e~rrcnt
cxercise of city's poliee pO'.lCFS t 1:0 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
achievement of City
tives.
ThiG .".greemcnt ....ill To permit
growth management goals and objec-
1.3.4.5 ThiG .".grecfflcnt ....ill 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
assure that the city
in the property tax
development, sewer,
This Agreement will provide and
receive sales tax revenues, increase
base, residential housing and other
water and street facilities.
1.3.4.7 ThiG ~greemcnt ~ 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 ThiG .".greeIRent "ill To provide the
City the developer's support to secure annexation of the
lands depicted in Exhibit "B".
1. 3.4.9 ThiG .'Igreell\ent '..ill 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 This .".grccmcnt ....ill To assure the
City that the Developer will dedicate rights-of-way to
the city for SR-125, a route which, when constructed,
will substantially alleviate congestion on 1-805 and 1-5,
and also will facilitate the economic development of
Chula vista.
-2-
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 sub;ect 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 sub;ect to
section 5.2.1 below.
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 northern two thirds of Planning Area 1),
and designated the otay River Valley an village 3 as special study
areas.
1.6 Planninq Documents. On October 28, 1993, City and
County adopted the otay Ranch General Development Plan/Subregional
Plan (lithe GDplI) 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
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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 city Ordinance. Auqust ,July 9, 1996 is the date
of adoption by the city council of Ordinance No. 2679 approving
this Agreement. The ordinance shall take effect and be in full
force on the effective date of Annexation.
2. DEFINITIONS.
otherwise requires:
In this Agreement, unless the context
2.1 "Annexation" means the proposed annexation of that
portion of the otay Ranch into the City as depicted on Exhibit "D".
2.2 "city" means the city of Chula Vista, in the County
of San Diego, State of California.
2.3 "County" means the County of San Diego, State of
California.
2.4 "Development Plan" means the GDP.
2.5 "GDP" means the General Development Plan/ subregional
Plan for the otay Ranch, described in Paragraph 1.6, above.
2.6 "Owner" or "Developer" means the person, persons, or
entity having a legal and equitable interest in the Property, or
parts thereof, and includes Owner's successors-in-interest.
2.7 "Project" means the physical development of the
private and public improvements on the Property as provided for in
the Existing project Approvals and as may be authorized by the city
in Future Discretionary Approvals.
2.8 "Property" means the real property described in
Paragraph 1.1.1.
2.9 The "Term" of this Agreement means the period
defined in Paragraph 3, below.
2.10 "Builder" means developer to whom Developer has sold
or conveyed property within the Property for purposes of its
improvement for residential, commercial, industrial or other use.
2.11 "CEQA" means the california Environmental Quality
Act, california Public Resources Code section 21000, et seq.
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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
the Developer have
public facility;
All discretionary permits required of
been obtained for construction of the
2.13.1.2 Plans for the construction of the
public facility have all the necessary governmental
approvals; and
2.13.1.3 Adequate funds (i.e., letters of
credit, cash deposits, performance bonds or land secured
public financing, including facility benefit assessments,
Mello-Roos assessment districts of similar assessment
mechanism) are available such that the city can construct
the public facility if construction has not commenced
within thirty (30) days of issuance of a notice to
proceed by the Director of Public Works, or construction
is not progressing towards completion in a reasonable
manner as reasonably deemed by the Director of Public
Works.
2.13.2 For a public facility within the city's
jurisdictional boundaries, but to be provided by other than
Developer.
2.13.2.1 Developer's proportionate share of
the cost of such public facility as defined in the
existing Project Approvals and Future Discretionary
Approvals has been provided or assured by Developer
through the payment or impositions of development impact
fee or other similar exaction mechanism.
2.13.3 For public facility not within city's
jurisdictional boundaries:
the cost
existing
Approvals
Developer
of Public
2.13.3.1 Developer's proportionate share of
of such public facility as defined in the
Project Approvals and Future Discretionary
has been provided for or otherwise assured by
to the reasonable satisfaction of the Director
Works.
2.14 "Development Impact Fee (DIF)" means fees imposed
upon new development pursuant to the city of Chula vista
Development Impact Fee Program, for example, including but not
limited to the Transportation Development Impact Fee Program, the
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Interim SR-125 Development Impact Fee Program, the Salt Creek Sewer
DIF and the Public Facilities DIF.
2.15 "Existing Project Approvals" means all discretionary
approvals affecting the project which have been approved or
established in conjunction with, or preceding, the effective date
consisting of, but not limited to the GDP, the Chula vista General
Plan, the otay Ranch Reserve Fund Program adopted pursuant to
Resolution 18288, and the Phase I and II Resource Management Plan
(RMP), as may be amended from time to time consistent with this
agreement.
2.16 "Final Map(s)" means any final subdivision map for
all or any portion of the Property other than the superblock Final
Map ("A" Maps).
2.17 "Future Discretionary Approvals" means all permits
and approvals by the city granted after the effective date and
excluding existing Project Approvals, including, but not limited
to: (i) grading permits; (H) site plan reviews; (Hi) design
guidelines and reviews; (iv) precise plan reviews; (v) subdivisions
of the property or re-subdivisions of the Property previously
subdivided pursuant to the Subdivision Map Act; (vi) conditional
use permits; (vii) variances; (viii) encroachment permits;
(ix) 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 the schedule for laRd te se trans-
ferred of land and/or fees to be paid to insure the orderly
conveyance of the otay Ranch land to the Preserve Owner Manager.
The purpose of the plan is to fulfill the obligations to convey
resource sensitive land, per the criteria contained in the phase I
and II Resource Management Plans and to mitigate environmental
impacts of the otay Ranch Project.
2.20 "Public Facility"
public facilities described
Implementation Plan.
or "Public Facilities" means those
in the otay Ranch Facility
2.21 "Subdivision Map Act" means the California
Subdivision Map Act, Government Code section 66410, et seq., and
its amendments as may from time to time be adopted.
2.22 "Substantial Compliance" means that the party
charged with the performance of a covenant herein has sufficiently
followed the terms of this Agreement so as to carry out the intent
of the parties in entering into this Agreement.
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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 January 1, 1997, this Agreement shall
be null and void. Any of the foregoing to the contrary notwith-
standing, from the date of 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 4. The Term
of this Agreement for purposes other than Paragraph 4 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 Developer is suspended for any
reason other than the default of Developer, and for a period of
time equal to the period of time during which any action by the
city or court action limits the processing of future discretionary
approvals, issuance of building permits or any other development of
the property consistent with this Agreement.
4. OWNER CONSENT TO ANNEXATION. Owner hereby consents to
and shall cooperate with the applications of city to declare that
the 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
5.1.B, below. Owner also aqrees not to challenqe the annexation of
the Otav Valley parcel into the city.
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 bV the city:
5.1.1 city sRall reasonaely eonsider in its
!:~~~:~r=~~~~~~~/:i?le~ee:S\\r;n:fe~itA::::~~:: r, F;~~e~~ :~
u F f r 3iacF\tial units provided in village J by
the county' aaoptea CDr.
-7-
5.1.2 city shall reasonably eensieer in ita
di6erctiofl and preecoD .w:i th pro13cr cf'lvironmcntal revic..: :l
requeat te ehan~e the primary lane uoe desi~nation for villa~c
J from Ind~otri31 te cemmcrci:ll, rccrc:ltional, vioitor
scr,in~, ane seme residcntial USeG in addition to thc Ine~s
trial \:lCiC. The c},act acrca'3cD af the rcoidcnti:ll, iFlBuotrial,
cemmcFcial, er ether useD, zfl:lll be :l~rccd upon and oct forth
in a ~cRcral ~l:lR amendmcnt.
5.1.35.1.1 If the interchange improvements at
otay Valley Road and I-805 are needed to serve the Project,
the city will hold appropriate hearings to consider an
amendment to amene its Transportation Phasing Plan (TPP) and
Development Impact Fee (DIF) Program to include said improve-
ments as maY be deemed appropriate bv the city to accommodate
the project phasing. The city agrees to reasonably cooperate
and work with CALTRANS to complete plans for said ~ inter-
change improvement plano.
5.1.q5.1.2 city shall initiate contact and
diligently pursue discussions with the County of San Diego and
the City of San Diego to determine the number, scheduling and
financing of the otay River road and bridge crossings.
5.1.55.1.3 city shall allow the owner for
purposes of processing entitlements to proceed with planning
of the Property on a first corne 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.
5.1.65.1.4 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.
5.1.75.1.5 city shall diligently process
any amendments, applications, maps, or other development
applications.
5.1.6. city maY make such modifications or
amendments to the Existinq Pro4ect Approvals/Future Discretionary
Approvals. as may be ordered bv a court of competent lurisdiction
in an action in whicth the Developer is a party or has had an
opportunity to appear or has been provided notice of such action bv
the city.
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5.1.8 city ohall rcaDoflably conDide}; ana dili
gently ~r6eeGG a rc~ueGt to eH~and the devc16p~~~~ ~~~~~ ~~
vili;~cs 2, 3, 4 and B in the event future cnYironH\:n~~~
3tuaicD iRsioate that arcao ORce cORoidcrcd cRviron~entally
C8RotraiRea c:rA 130 developed ~.li tRout oignificant I uRmi ti'3ablc
cn~irenment3l impacto.
5.2 Development of Propertv. The development of the
Property will be governed by this Agreement and Existing Project
Approvals and such development shall comply and be governed by all
rules, regulations, policies, resolutions, ordinances, and
standards in effect as of the Effective Date subject to the
provisions of section 5.2.1 below. The city shall retain its
discretionary authority as to Future Discretionary Approvals,
provided however, such Future Discretionary Approvals shall be
regulated by the Existing project Approvals, this Agreement, and
city rules, regulations, standards, ordinances, resolutions and
policies in effect on the Effective Date of this Agreement and
subject to section 5.2.1.
Notwithstanding the foregoing, the City may make such changes to
the city's Growth Management Ordinance applicable to the Project as
are reasonable and consistent with the purpose and intent of the
existing Growth Management Ordinance and which are generally
applicable to all private projects citywide or east of I-B05 or
within a specific benefit, fee or reimbursement district created
pursuant to the California Government Code.
5.2.1 New or Amended Rules. Requlations.
policies. standards. Ordinances and Resolutions. The city may
apply to the Project, including Future Discretionary Approv-
als, new or amended rules, laws, regulations, policies,
ordinances, resolutions and standards generally applicable to
all private projects east of I-B05 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 Prolect
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.
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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
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
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pursuant to the Federal and state Constitutions, and pursuant to
statutory and decisional law.
5.6 vestinq of Entitlements. All rights conferred by
this Agreement vest with the Effective Date hereof. The approval
of Future Discretionary approvals shall not be deemed to limit
Developer's rights authorized by this Agreement, and once such
approvals are obtained they shall be vested to the same extent as
the Existing Project Approvals.
6. DEVELOPMENT PROGRAM.
6.1 processinq of Future Discretionarv Approvals. City
will accept and diligently process development applications and
requests for Future Discretionary Approvals, or other entitlements
with respect to the development and use of the Property, provided
said applications and requests are in accordance with this
Agreement. City costs for processing work related to the Project,
including hiring of additional city personnel and/or the retaining
of professional consultants, will be reimbursed to City by
Developer.
6.2 Lenqth of Validity of Tentative Subdivision Maps.
Government Code section 66452.6 provides that tentative subdivision
map(s) may remain valid for a length up to the term of a Develop-
ment Agreement. The city agrees that tentative subdivision map(s)
for the property shall be for a term of six (6) years and may be
extended by the City Council for a period of time not to exceed a
total of twenty (20) years and in no event beyond the term of this
Agreement.
6.3 Pre-Final Map Development. If Developer desires to
do certain work on the Property after approval of a tentative map
(for example, grading) prior to the recordation of a final map, it
may do so by obtaining a grading and/or other required approvals
from the city which are authorized by the City prior to recordation
of a final map. Such permit shall be issued to Developer, or its
contractor, upon Developer's application, approval, and provided
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 "An Map
lots, but the city shall require bonding for the completion of
backbone facilities prior to recording in an amount to be
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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 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
-12-
development of the Property which are set forth hereinbelow. The
obligations of the Developer pursuant to this Agreement are
conditioned upon: (i) the city not being in default of its obliga-
tions under this agreement; and (ii) the City not preventing or
unreasonably delaying the development of the property; and (iii)
the Agreement having not been suspended in response to changes in
state or federal law; and (iv) the City's obligations having not
been suspended pursuant to section 13.2.
7.2 Dedications and Reservations of Land for Public Purposes.
The policies by which property will be required to be reserved,
dedicated or improved for public purposes are identified in the
Existing Project Approvals. A more precise delineation of the
property to be preserved, dedicated or improved for public purposes
shall occur as part of Future Discretionary Approvals, consistent
with the Existing Project Approvals.
7.2.1 Deeication of Land for CR 125. Dcveloper agrcec to
dedicate land for right of o.lay purpoDes and property e,"Ree Isy
the Developer that is reaGoRably neceGGary for the SR 125
configuration that iG generally eepicted in the SR 125 draft
Environmental Impact Report/Statement and as reviGed in the
Final EnvirenmeRtal Impact Re13ert/Etatement to respond to
eRgineering, eesign, environmental and Gimilar constraints.
The aeaications shall lee to the city or by an alternate method
acceptable to the city at such time as requestea ley the City.
ci ty aEjJrees that iR the event city shall negotiate ....i th
California TransportatioR Ventures (CTV) or other toll reaa
builder any partioipatioR or advaRtages to city that City
chall share suoh rights ,..i th subsequent mmer /resident af the
property.
7.2.2 Preserve CSlwe'rance PlaR. The city aRe the
Developcr shall mutually agree upon a Preserve Conveyance
PlaR. The city Ghall in good faith consider for aeoption such
a plan and the Developer Dhall convey prsperty and/or feeD in
lieu of lane 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.
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In the event a Threshold is not met and future building permit
issuance may be withheld, the notice provisions and procedures
contained in section 19.09 .100C of the Municipal Code will be
followed. In the event the issuance of building permits is
suspended pursuant to the provisions herein, such suspension shall
not constitute a breach of the terms of this Agreement by Developer
or citv. Furthermore, any such suspension which is not caused by
the actions or omissions of the Developer, shall toll the term of
this Agreement as provided for in section 16.12 of this Agreement,
and suspend the Developer's obligations pursuant to this Agreement.
7.3.1 Required Condemnation. The City and Developer
recognize that certain of the public facilities identified in
the Existing Project Approvals/Future Discretionary Approvals
and required to comply with a threshold are located on
properties which neither the Developer nor the city has, or
will have, title to or control of. The city shall identify
such property or properties and at the time of filing of the
final map commence timely negotiations or, where the property
is within the city's jurisdiction, commence timely proceedings
pursuant to Title 7 (commencing with S 1230.010) of Part 3 of
the Code of civil Procedure to acquire an interest in the
property or properties. Developer's share of the cost
involved in any such acquisition shall be based on its
proportionate share of the public facility as defined in the
Existing Project Approvals/Future Discretionary Approvals.
Nothing in this Agreement shall be deemed to preclude the City
from requiring the Developer to pay the cost of acquiring such
off-site land. For that portion of the cost beyond the
Developer's fair share responsibility, the city shall take all
reasonable steps to establish a procedure whereby the develop-
er is reimbursed for such costs beyond its fair share.
7.3.2 Information Reqardinq Thresholds. Upon
Developer's written requests of the City Manager, the City
will provide Developer with information regarding the current
status of a Threshold. Developer shall be responsible for any
staff costs incurred in providing said written response.
7.4 Improvements Required bv a Subdivision Map. 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
Partv. or Are
Developer may
Facilities which Are the Obliqations of Another
of Excessive Size. Capacity. Lenqth or Number.
offer to advance monies and/or construct public
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improvements which are the responsibility of another land owner, or
outside the City's jurisdictional boundaries, or which are of
supplemental size, capacity, number or length for the benefit of
land not within the Property. city, where requesting such funding
or construction of oversized public improvements, shall consider
after a public hearing, contemporaneous with the imposition of the
obligation, the formation of a reimbursement district, assessment
district, facility benefit assessment, or reimbursement agreement
or other reimbursement mechanism.
7.6 pioneerinq of Facilities. To the extent Developer
itself constructs (Le., "pioneers") any public facilities or
public improvements which are covered by a DIF Program, Developer
shall be given a credit against DIFs otherwise payable, subject to
the City's Director of Public Works reasonable determination that
such costs are allowable under the applicable DIF Program. It is
specifically intended that Developer be given DIF credit for the
DIF Program improvements it makes. The fact that such improvements
may be financed by an assessment district or other financing
mechanism, shall not prevent DIF credit from being given to the
extent that such costs are allowed under the applicable DIF Program
7.7 Insurance.
insured for all insurance
Project as pertains to the
the Project.
Developer shall name city as additional
policies obtained by Developer for the
Developer's activities and operation on
7.8 other Land Owners. Developer hereby agrees to
dedicate adequate rights-of-way within the boundaries of the
Property for other land owners to "Pioneer" public facilities on
the Property; provided, however, as follows: (i) dedications shall
be restricted to those reasonably necessary for the construction of
facilities identified in the City's adopted public facility plans;
(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
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public facility through the DIF program, or provided as a condition
of Project Approvals.
8.3 Use of Development Impact Fee Proqram. The DIF
amounts paid to the City by Developer and others with respect to
the Area of Benefit shall be placed by the city in a capital
facility fund account established pursuant to California Government
Code sections 66000-66009. The city shall expend such funds only
for the Projects described in the adopted fee program as may be
modified from time to time. The City will use its reasonable best
efforts to cause such projects to be completed as soon as practica-
ble; however, the City shall not be obligated to use its general
funds for such Projects.
8.4 withholdinq of Permits. Developer agrees that city
shall have the right to withhold issuance of the building permit
for any structure or improvement on the Property unless and until
the DIF is paid for such structure or improvement.
8.5 Development Impact Fee Credit. Upon the completion
and acceptance by the City of any public facility, the City shall
immediately credit Developer with the appropriate amount of cash
credits ("EDUs") as determined by Developer and city. However, if
the improvements are paid for through an Assessment District, the
city shall credit the Developer with the appropriate number of
Equivalent Dwelling unit Credits (EDU's). Developer shall be
entitled to apply any and all credits accrued pursuant to this
subsection toward the required payment of future DIF for any phase,
stage or increment of development of the Project.
8.6 Modification of Development Impact Fees. The
parties recognize that from time to time during the duration of the
Agreement it will be necessary for the city to update and modify
its DIF fees. Such reasonable modifications are contemplated by
the city and the Developer and shall not constitute a modification
to the Agreement so long as: (i) the modification incorporates the
reasonable costs of providing facilities identified in the Existing
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 ObI iaations 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 S.1.3, based upon
the number of dwelling units or equivalent dwellings of
development allowed on the Property as compared to the total
dwelling units or equivalent dwelling units allowed on
properties served by such interchanges.
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8.7.2 Owner shall participate in the DIF Program
for the otay valley Parcel with other owners in proportion to
the total dwelling units or equivalent dwelling units allowed
on the property as compared with the total of such units
allowed on properties in that particular DIF or by some other
equitable methodology decided by the city council.
8.7.3 The city shall diligently pursue the
requirements that the Eastern Territories' DIF requires
offsite third parties and adjacent jurisdictions to bear their
fair share of all Otay River Valley crossings.
9. CITY OBLIGATIONS.
9.1 Urban Infrastructure. To the extent it is within
the authority of the city to provide, City shall accommodate urban
infrastructure to the project, consistent with Existing project
Approvals. Where it is necessary to utilize city property to
provide urban infrastructure consistent with the Existing Project
Approvals, the city agrees to make such land available for such
uses, provided that the city if it so chooses is compensated at
fair market value for the property. To the extent that the
provision of urban infrastructure is within the authority of
another public or quasi-public agency or utility, the city agrees
to fully cooperate with such agency or agencies to accommodate the
urban infrastructure, consistent with Existing project Approvals.
Urban infrastructure shall include, but not be limited to gas,
electricity, telephone, cable and facilities identified in the otay
Ranch Facility Implementation Plan.
9.2 Sewer capacity. The city agrees to provide adequate
sewer capacity for the project, upon the payment of ordinary and
necessary sewer connection, capacity and/or service fees.
10. ANNUAL REVIEW.
10.1 citv and Owner Responsibilities. city will, at
least every twelve (12) months during the Term of this Agreement,
pursuant to California Government Code S65865.1, review the extent
of good faith substantial compliance by Owner with the terms of
this Agreement. Pursuant to california Government Code section
65865.1, as amended, Owner shall have the duty to demonstrate by
substantial evidence its good faith compliance with the terms of
this Agreement at the periodic review. Either city or Owner may
address any requirement of the Agreement during the review.
10.2 Evidence. The parties recognize that this Agreement
and the documents incorporated herein could be deemed to contain
hundreds of requirements and that evidence of each and every
requirement would be a wasteful exercise of the parties' resources.
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.
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10.3 Review Letter. If Owner is found to be in com-
pliance with this Agreement after the annual review, City shall,
within forty-five (45) days after Owner's written request, issue a
review letter in recordable form to Owner ("Letter") stating that
based upon information known or made known to the Council, the City
Planning commission and/or the City Planning Director, this
Agreement remains in effect and Owner is not in default. Owner may
record the Letter in the Official Records of the County of San
Diego.
review at
conditions
by City or
10.4 Failure of Periodic Review. City's failure to
least annually Owner's compliance with the terms and
of this Agreement shall not constitute, or be asserted
Owner as, a breach of the Agreement.
11.
DEFAULT.
11.1 Events of Default. A default under this Agreement
shall be deemed to have occurred upon the happening of one or more
of the following events or conditions:
made
been
11. 1. 1
or furnished
false in any
A warranty, representation or statement
by Owner to City is false or proves to have
material respect when it was made.
11.1.2 A finding and determination by City made
following a periodic review under the procedure provided for
in California Government Code section 65865.1 that upon the
basis of substantial evidence Owner has not complied in good
faith with one or more of the terms or conditions of this
Agreement.
consider
submitted
11.1.3 City does not accept,
requested development permits
in accordance with the provisions
timely review, or
or entitlements
of this Agreement.
11.1.4 Any other act or omission by city or Owner
which materially interferes with the terms of this Agreement.
11.2 Procedure Upon Default.
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
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time of default. Notwithstanding any other provision of this
Agreement, City reserves the right to formulate and propose to
Owner options for curing any defaults under this Agreement for
which a cure is not specified in this Agreement.
11. 2.2 ci ty does not waive any claim of defect in
performance by Owner if, on periodic review, city does not
propose to modify or terminate this Agreement.
11.2.3 Subject to Paragraph 16.12 of this
Agreement, the failure of a third person shall not excuse a
party's nonperformance under this agreement.
11. 2.4 All other remedies at law or in equity
which are consistent with the provisions of this Agreement are
available to City and Owner to pursue in the event there is a
breach provided however. neither party shall have the remedY
of monetary damaqes aqainst the other. except for an award of
litiqation costs and attorney's fees.
12. ENCUMBRANCES AND RELEASES ON PROPERTY.
12.1 Discretion to Encumber. This Agreement shall not
prevent or limit Owner in any manner at Owner's sole discretion,
from encumbering the Property, or any portion of the Property, or
any improvement on the Property, by any mortgage, deed of trust, or
other security device securing financing with respect to the
Property or its improvement.
12.2 Mortqaqee Riqhts and Obliqations. The mortgagee of
a mortgage or beneficiary of a deed of trust encumbering the
property, or any part thereof, and their successors and assigns
shall, upon written request to city, be entitled to receive from
City written notification of any default by Owner of the
performance of Owner's obligations under the Agreement which has
not been cured within thirty (30) days following the date of
default.
12.3 Releases. City agrees that upon written request of
Owner and payment of all fees and performance of the require-
ments and conditions required of Owner by this Agreement with
respect to the Property, or any portion thereof, city may
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 as 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 requirement for
-19-
modification. city will not unreasonably withhold its consent to
any such requested modification.
13. MODIFICATION OR SUSPENSION.
13.1 Modification to Aqreement bv Mutual Consent. This
Agreement may be modified, from time to time, by the mutual consent
of the parties only in the same manner as its adoption by an
ordinance as set forth in California Government Code .sections
65867, 65867.5 and 65868. The term, "this Agreement" as used in
this Agreement, will include any such modification properly
approved and executed.
13.2 Unforeseen Health or Safetv Circumstances. If, as
a result of facts, events, or circumstances presently unknown,
unforeseeable, and which could not have been known to the parties
prior to the commencement of this Agreement, City finds that
failure to suspend this Agreement would place the residents of City
in a severe and immediate emergency to their health or safety.
13.2.1 Notification of Unforeseen Circumstances.
Notify Developer of (i) city's determination; and (ii) the
reasons for city's determination, and all facts upon which
such reasons are based;
13.2.2 Notice of Hearinq. Notify Developer in
writing at least fourteen (14) days prior to the date, of the
date, time and place of the hearing and forward to Developer
a minimum of ten (10) days prior to the hearings described in
section 13.2.3, all documents related to such determination
and reasons therefor; and
13.2.3 Hear inq. Hold a hearing on the deter-
mination, at which hearing Developer will have the right to
address the City Council. At the conclusion of said hearing,
City may take action to suspend this Agreement as provided
herein. The City may suspend this Agreement if, at the
conclusion of said hearing, based upon the evidence presented
by the parties, the city finds failure to suspend would place
the residents of the City in a severe and immediate emergency
to their health or safety.
13.3 Chanqe in State or Federal Law or Requlations. If
any state or federal law or regulation enacted during the Term of
this Agreement, or the action or inaction of any other affected
governmental jurisdiction, precludes compliance with one or more
provisions of this Agreement, or requires changes in plans, maps,
or permits approved by City, the parties will act pursuant to
Sections 13.3.1 and 13.3.2, below.
13.3.1 Notice; Meetinq. The party first becoming
aware of such enactment or action or inaction will provide the
other party(ies) with written notice of such state or federal
law or regulation and provide a copy of such law or regulation
and a statement regarding its conflict with the provisions of
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this Agreement. The parties will promptly meet and confer in
a good faith and reasonable attempt to modify or suspend this
Agreement to comply with such federal or state law or regula-
tion.
13.3.2 Hearinq. If an agreed upon modification
or suspension would not require an amendment to this Agree-
ment, no hearing shall be held. Otherwise, the matter of such
federal or state law or regulation will be scheduled for
hearing before the city. Fifteen (15) days' written notice of
such hearing shall be provided to Developer, and the City, at
such hearing, will determine and issue findings on the
modification or suspension which is required by such federal
or state law or regulation. Developer, at the hearing, shall
have the right to offer testimony and other evidence. If the
parties fail to agree after said hearing, the matter may be
submitted to mediation pursuant to subsection 13.3.3, below.
Any modification or suspension shall be taken by the affirma-
tive vote of not less than a majority of the authorized voting
members of the City. Any suspension or modification may be
subject to judicial review in conformance with subsection
16.19 of this Agreement.
13.3.3 Mediation of Disputes. In the event the
dispute between the parties with respect to the provisions of
this paragraph has not been resolved to the satisfaction of
both parties following the City hearing required by subsection
13.3.2, the matter shall be submitted to mediation prior to
the filing of any legal action by any party. The mediation
will be conducted by the San Diego Mediation Center; if San
Diego Mediation Center is unable to conduct the mediation, the
parties shall submit the dispute for mediation to the Judicial
Arbitration and Mediation Service or similar organization and
make a good faith effort to resolve the dispute. The cost of
any such mediation shall be divided equally between the
Developer and City.
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
communi ties 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.
-21-
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.
15.2 Deleqation. In addition, Owner shall have the
right to delegate or transfer its obligations under this
Agreement to third parties acquiring an interest or estate in
the Property after receiving the prior written consent of the
City Manager, which consent shall not be unreasonably with-
held, delayed, or conditioned. Once the city Manager has
consented to a transfer, delivery to and acceptance by the
City Manager of an unqualified written assumption of Owner's
obligations under this Agreement by such transferee shall
relieve Owner of the obligations under this Agreement to the
extent the obligations have been expressly assumed by the
transferee. Such transferee shall not be entitled to amend
this Agreement without the written consent of the entity that,
as of the Effective Date, is Owner, which consent shall not be
unreasonably withheld, delayed, or conditioned. The entity
that is Owner as of the Effective Date. however, shall be
entitled to amend this Agreement without the written consent
of such transferee.
16. MISCELLANEOUS PROVISIONS.
16.1 Bindinq Effect of Aqreement. Except to the extent
otherwise provided in this Agreement, the burdens of this Agreement
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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.
16.5 Entire Aqreement. Waivers. and Recorded Statement.
This Agreement constitutes the entire understanding and agreement
of City and Owner with respect to the matters set forth in this
Agreement. This Agreement supersedes all negotiations or previous
agreements between City and Owner respecting this Agreement. All
waivers of the provisions of this Agreement must be in writing and
signed by the appropriate authorities of city and Owner. Upon the
completion of performance of this Agreement, or its revocation or
termination, a statement evidencing completion, revocation, or
termination signed by the appropriate agents of City shall be
recorded in the Official Records of San Diego County, California.
16.6 Prolect as a Private Undertakinq. It is
specifically understood by city and Owner that (i) the Project is
-23-
a private development; (ii) city has no interest in or
responsibilities for or duty to third parties concerning any
improvements to the Property until city accepts the improvements
pursuant to the provisions of the Agreement or in connection with
subdivision map approvals; and (iii) Owner shall have the full
power and exclusive control of the Property subject to the
obligations of Owner set forth in this Agreement.
16.7 Incorporation of Recitals. The recitals set forth
in Paragraph 1 of this Agreement are part of this Agreement.
16.8 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.
Owner is
approval
ditioned.
16.9 Consent. Where the consent or approval of City or
required or necessary under this Agreement, the consent or
shall not be unreasonably withheld, delayed, or con-
16.10 Covenant of Cooperation.
cooperate and deal with each other in good
other in the performance of the provisions
City and Owner shall
faith, and assist each
of this Agreement.
16.11 Recordinq. The city Clerk shall cause a copy of
this Agreement to be recorded with the Office of the County
Recorder of San Diego county, California, within ten (10) days
following the Effective Date.
16.12 Delav. Extension of Time for Performance. In
addition to any specific provision of this Agreement, performance
by either city or Owner of its obligations hereunder shall be
excused, and the Term of this Agreement and the Development Plan
extended, during any period of delay caused at any time by reason
of any event beyond the control of City or Owner which prevents or
delays and impacts City's or Owner's ability to perform obligations
under this Agreement, including, but not limited to, acts of God,
enactment of new conflicting federal or state laws or regulations
(example: listing of a species as threatened or endangered),
judicial actions such as the issuance of restraining orders and
injunctions, riots, strikes, or damage to work in process by reason
of fire, floods, earthquake, or other such casualties. If City or
Owner seeks excuse from performance, it shall provide written
notice of such delay to the other within thirty (30) days of the
commencement of such delay. If the delay or default is beyond the
control of city or Owner, and is excused, an extension of time for
such cause will be granted in writing for the period of the
enforced delay, or longer as may be mutually agreed upon.
16.13 Covenant of Good Faith and Fair Dealinqs. 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
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would render its performance under this Agreement impossible; and
each party shall do everything which this Agreement contemplates
that such party shall do in order to accomplish the objectives and
purposes of this Agreement.
16.14 Operatinq Memorandum. The 'parties acknowledge that
the provisions of this Agreement requ~re a close degree of
cooperation between City and Developer, and that the refinements
and further development of the Project may demonstrate that minor
changes are appropriate with respect to the details of performance
of the parties. The parties, therefore, retain a certain degree of
flexibility with respect to those items covered in general under
this Agreement. When and if the parties mutually find that minor
changes or adjustments are necessary or appropriate, they may
effectuate changes or adjustments through operating memoranda
approved by the parties. For purposes of this section 16.14, the
City Manager, or his designee, shall have the authority to approve
the operating memoranda on behalf of city. No operating memoranda
shall require notice or hearing or constitute an amendment to this
Agreement.
16.15 Time of Essence. Time is of the essence in the
performance of the provisions of this Agreement as to which time is
an element.
16.16 Amendment or cancellation of Aqreement. This
Agreement may be amended from time to time or canceled by the
mutual consent of city and Owner only in the same manner as its
adoption, by an ordinance as set forth in California Government
Code section 65868, and shall be in a form suitable for recording
in the Official Records of San Diego County, California. The term
"Agreement" shall include any such amendment properly approved and
executed. city and Owner acknowledge that the provisions of this
Agreement require a close degree of cooperation between them, and
that minor or insubstantial changes to the Project and the
Development Plan may be required from time to time to accommodate
design changes, engineering changes, and other refinements.
Accordingly, changes to the Project and the Development Plan that
do not result in a change in use, an increase in density or
intensity of use, cause new or increased environmental impacts, or
violate any applicable health and safety regulations, may be
considered minor or insubstantial by the city Manager and made
without amending this Agreement.
16.17 Estoppel certificate. within 30 calendar days
following a written request by any of the parties, the other
parties to this Agreement shall execute and deliver to the
requesting party a statement certifying that (i) this Agreement is
unmodified and in full force and effect, or if there have been
modif ications hereto, that this Agreement is in full force and
effect as modified and stating the date and nature of such
modif ications; (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
-25-
constitut~ 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 bearinq any liabilitv hereunder.
Notwi thstandinq the foreqoinq, URlc88 wi thin 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 Aqreement shall not be terminated. This provision will
not affect the right of the parties to modify or suspend this
Agreement by mutual consent pursuant to Paragraph 12.4.
16.19 Institution of Leqal Proceedinq. In addition to any
other rights or remedies, any party may institute legal action to
cure, correct, or remedy any default, to enforce any covenants or
agreements herein, or to enjoin any threatened or attempted violation
thereof; to recover damages for any default as allowed bY this
Aqreement 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.
-26-
SIGNATURE PAGE TO PRE-ANNEXATION DEVELOPMENT AGREEMENT.
Dated this day of
, 1996.
"CITY"
CITY OF CHULA VISTA
By:
SHIRLEY HORTON, MAYOR
"OWNER"
STEVEN AND MARY BIRCH FOUNDATION
By:
PATRICK PATEK, PRESIDENT
I hereby approve the form and legality of the foregoing Pre-
Annexation Development Agreement this day of , 1996.
Ann Moore, Interim city Attorney
City of Chula vista
By:
-27-
ORDINANCE NO.
2689
AN ORDINANCE OF THE CITY OF CHULA VISTA
ADOPTING THE PRE-ANNEXATION DEVELOPMENT
AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND
STEPHEN AND MARY BIRCH FOUNDATION
WHEREAS, a city of Chula Vista application to have the
Otay Valley Parcel included within City's sphere of influence was
approved on July 1, 1996 by the Local Agency Formation commission;
and
WHEREAS, the development of the Otay Valley Parcel will
require substantial public improvements phased over a period of
time; and
WHEREAS, a California Government Code S75867.5 et seq.
provides authority for cities to enter into development agreements;
and
WHEREAS, CEQA review is not required for the development
agreement since an in-depth review occurred when the environmental
review was approved for the Otay Ranch General Development Plan and
adopted by the city on October 28, 1993. (LOnq Beach Sav. & Loan
v. Lonq Beach Redevel., 232 Cal.Rtpr. 772, 881-2 [1986J); and
WHEREAS, the Planning commission
joint public hearing on June 25, 1996
Annexation Development Agreement; and
and City council held a
to consider the Pre-
WHEREAS, City Council has found that this Pre-Annexation
Development Agreement is consistent with the City's General Plan
and all applicable mandatory and optional elements thereof as well
as all other applicable policies and regulations of the city; and
WHEREAS, the Planning commission and City Council have
reviewed the Pre-Annexation Development Agreement and recommend its
approval.
NOW, THEREFORE, the City council of the City of Chula
vista ordains as follows:
SECTION I:
Pre-Annexation Development Agreement for
a portion of the otay Valley Parcel.
In accordance with section 65867.5 of the Government
Code, the city Council of the City of Chula vista has
approved that certain document entitled "Pre-Annexation
Development Agreement" for a portion of the Otay Valley
Parcel 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 Agreement for and on
behalf of the City of Chula vista.
SECTION III: This ordinance shall take effect and be in
full force on the effective date of annexation as set forth in the
attached Pre-Annexation Development Agreement.
Presented by
Approved as to form by
George Krempl
Deputy city Manager
Ann Y. Moore
Acting City Attorney
C:\Ord\Preannex.Bir
EXHIBIT A
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STEPHEN AND MARY BIRCH FOUNDATION
OlY OF
CHUIA VISTA
PLANNING DEPARTMENT
7/3/96
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EXHIBIT .C. I I
Pre-annexation Development Agreement
Planning Area Assessor Ownership Acreage
Parcel Numbers
Ranch House 595-090-05 Stephen & Mary Birch 71.56
Ranch House 595-090-06 Stephen & Mary Birch 0.22
Ranch House 595-090-08 Stephen & Mary Birch 96.25
168.03 Totel
ORDINANCE NO.
2688
AN ORDINANCE OF THE CITY OF CHULA VISTA
ADOPTING THE PRE-ANNEXATION DEVELOPMENT
AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND
SNMB, LTD.
WHEREAS, a City of Chula vista application to have the
otay Valley Parcel included within City's sphere of influence was
approved on July 1, 1996 by the Local Agency Formation commission;
and
WHEREAS, the development of the Otay Valley Parcel will
require substantial public improvements phased over a period of
time; and
WHEREAS, a California Government Code S75867.5 et seq.
provides authority for cities to enter into development agreements;
and
.
WHEREAS, CEQA review is not required for the development
agreement since an in-depth review occurred when the environmental
review was approved for the Otay Ranch General Development Plan and
adopted by the city on October 28, 1993. (Lonq Beach Sav. & Loan
v. Lonq Beach Redevel., 232 Cal.Rtpr. 772, 881-2 [1986J); and
WHEREAS, the Planning commission
joint public hearing on June 25, 1996
Annexation Development Agreement; and
and City council held a
to consider the Pre-
WHEREAS, City Council has found that this Pre-Annexation
Development Agreement is consistent with the City's General Plan
and all applicable mandatory and optional elements thereof as well
as all other applicable policies and regulations of the City; and
WHEREAS, the Planning commission and City Council have
reviewed the Pre-Annexation Development Agreement and recommend its
approval.
NOW, THEREFORE, the City Council of the City of Chula
Vista ordains as follows:
SECTION I:
Pre-Annexation Development Agreement for
a portion of the Otay Valley Parcel.
In accordance with section 65867.5 of the Government
Code, the city Council of the City of Chula vista has
approved that certain document entitled "Pre-Annexation
Development Agreement" for a portion of the Otay Valley
Parcel 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 Agreement for and on
behalf of the city of Chula vista.
SECTION III: This ordinance shall take effect and be in
full force on the effective date of annexation as set forth in the
attached Pre-Annexation Development Agreement.
Presented by
Approved as to form by
George Krempl
Deputy City Manager
Ann Y. Moore
Acting City Attorney
C:\Ord\Preannex,SNU
EXHIBIT A
..
alY OF
CHULA VISTA
PLANNING DEPARTMENT
6'1 9/96
SNMB, LTD.
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EXHIBIT "e"
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IAJml"ILL Ift1ISUCJI DSEMBN'r
AND
CO'VENAJf'I'S RUNNING WITH 1'Im LAND
,
. (hereinafter referred to a. "Grantor"), for valuable
.oon.ideration, doe.' hereby GRANT to the COt1N'l'Y OP SAN DUGO, a
political .\lbdividon at the ~ta of california (hereinafter
referr. to .. ..arant....) .. i:he owner of that r.al property
located in the County of San Di~o, California known a. the "ouy
Landtill" which i. Dore particularly described in .Exhibit A"
. . her.to (h.reinaft.r ref.rred. to a. the .DoIainant Ten_ent") and
it. ..ucce..or. in inter..t to the Doainant Ten_ent, an USEKmrr
(hereinatt.r reterred to as "~uiaance Basemont") ovor all that
re.l property located in the county ot San Di~o, California
de.cribed in "Exhibit B. hereto (hereinatter ret~ed to a. the
"servient ~_ent").
Thi. 1I'uisanc. za....nt 1. for the u.. and benefit of arantee
and its .ucc:...or. in intere.t and invitee! CJU..t. in the conduct
ot solid waste landtillin; cperations on the tIoainant: Tenement,
tor the tree and unobstructed pas.aq. on, onto, in, throuqh, and
acro.. the surface and airapac. above the wrtace of the Servient
~enement at the following thin;. (hereinatter rete~d to ..
"Nuisanc. %t....):
dU.t, .noi.e, vibrations, any and .11 Clbeaical. or particl..
suspended (peraanently or teapor.rily) in the air .nd wind
including btrt not luited. to _thane p.t odor.' tume., fuel
particle., ...CJU1h .nd. otbar .cavenger bir~ and the
excrement 4rcppin9. ther.troal and the unobstr\&c:te4 paas.;e
below the surface of leac;Wat. and other pollutantsl and tor
.ach, ev8I'Y and all ett.ct. a. ..y be cauaed bI or r.sult
~roa the o~atio~ of . landtill which i. now ~ .xietenoe
or vb1cb ..y be developed in the flrtun,
~09.tber with the oonti~uin9 right to cause or allow in allot
liuch Servient Tenement such Nuisance Itcu, it beinq understood
a~d agr.ed ~t GraBtee, or its auooas.or. in interest, 1ntende
to CS.velop. ..intaiD ane! expand the landfill on the adjaoe.nt
Doainant '!'en..ent in auch a ..Mer that .aid. landfill and the
.....ent vranteCS har.in will be used at all'tim.s in compliance
with all applicable Stat. and Fedaral l.w. and the lawtul orders
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o~ .tate and Fe4aral aqencl.s requlatlnq envlrouaental ~.ctor.,
toxic anlS/OZ' h..ardCNa wa.w, and the optara~lon o~ the lUl4fll1.
Grantor, tor lwelt ani! its sl.1CC...ora and ...19n., eSoe.
hereby tu1ly vaive and rel_.. eny d;bt or cause ot action vbleh
.Uey or any of t:!Iaa ..y now bave or ..y have in the f~tura
a9ainst CnantM, its sueoa.sor. and as.iqns, on aocoW'lt of or
ar1a1"9 o~ o~ a~ ~ie~ %~ beretotore and b.r_ft.r
cauaa4 by ~ operation of a landfill.
Grantor, tor iwelt and it. .uccaeacr. and assiqns,
covanan1:. and. a'1Z'-., with the Gnder.1:&ndin'i and intent: ~t 8Ucb
shall run with the land, anel Vhleb aball rwt with the land, that
neith.r they nor any ot thaa will oo~ana. or aaintaln a suit,
action, writ, arbitration, or other leqal or .quitable proceeding
aqatnst Grant.. or its .uccessor. or ..siqns wherein the reli.f
.ouqht i. the cesntion or lWtation on th. use of the Dominant
~en.m.nt .. a landfill. Qrantor, tor Itaelt and its .uooe..ora
and a.siqns, ooVenants and aC1Z'ees, with the undar.tan41nq and
in""t that _uch shall run with the land, and. vbioh shall run
with the lanc1/ that in the event that they violate the ~ve
oovenants ot the toreqoinq sent.noe, they shall pay to Crantee
. aucb attoruey.' te.. and co.ts as _y be CSeteratned to be
rea.onable by a C;:ola't ot OOllpeUnt juri.cUc:t:icn. %nquirie. or
. requ..ts ~or entorceaent lI&4e by Grantor, it. successors or
...igna to State or Pe4enl aqaneie. with refiUlatory authority
over the operation of lan4tills shall not be oonai4ered a
.violation of thi. paraqrapA.
Upon the terai.n.atlgn of use ot the DoIIIinant Ten_ant ~or
landfill purpo..., (incIYdinq oaapletion of ac:t:iva lan4fill
operations and all closure and po.t-eloaura ac:t:ivitie.), Grantor,
iw aueca..on or a..1911.8 aay requ..t that Grantee, its
.ucee..on or a.s1911.8, throuqh the applicable 1e9al prooedure,
vacate or terminate this .a....ant, wbich r~..t will not b.
..un:rea.onably w1t.held.
.. BXecN~ this
.calirornia.
day of
, 1"6, at .aQ Diego,
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EXHIBIT "E" I
Pre-annexetion Development Agreement
Planning Area Assessor Ownership Acreage
Parcel Numbers
OIay Valley Parcel 644-030-07 SNMBLtd. 134.25
OIay Valley Parcel 644-060-07 SNMBLtd. 159.18
Olav Valley Parcel 644-060-08 SNMBLtd. 80.00
OIay Valley Parcel 644-060-09 SNMBLtd. 80.00
OIay Valley Parcel 644-060-10 SNMBLtd. 289.70
Olav Valley Parcel 644-060-12 SNMBLtd. 82.20
OIay Valley Parcel 644-070-08 SNMBLtd. 313.28
OIay Valley Parcel 645-030.19 SNMBLtd. 335.34
OIay Valley Parcel 646-010-02 SNMBLtd. 352.70
1,826.65 Total
ORDINANCE NO.
2687
AN ORDINANCE OF
ADOPTING THE
AGREEMENT BETWEEN
JEWELS OF CHARITY
THE CITY OF CHULA VISTA
PRE-ANNEXATION DEVELOPMENT
THE CITY OF CHULA VISTA AND
WHEREAS, a City of Chula vista application to have the
Otay Valley Parcel included within City's sphere of influence was
approved on July 1, 1996 by the Local Agency Formation Commission;
and
WHEREAS, the development of the otay Valley Parcel will
require substantial public improvements phased over a period of
time; and
WHEREAS, a California Government Code S75867.5 et seq.
provides authority for cities to enter into development agreements;
and
WHEREAS, CEQA review is.not required for the development
agreement since an in-depth review occurred when the environmental
review was approved for the otay Ranch General Development Plan and
adopted by the city on October 28, 1993. (Lonq Beach Sav. & Loan
v. Lonq Beach Redevel., 232 Cal.Rtpr. 772, 881-2 [1986J); and
WHEREAS, the Planning Commission
joint public hearing on June 25, 1996
Annexation Development Agreement; and
and city Council held a
to consider the Pre-
WHEREAS, City Council has found that this Pre-Annexation
Development Agreement is consistent with the City's General Plan
and all applicable mandatory and optional elements thereof as well
as all other applicable policies and regulations of the City; and
WHEREAS, the Planning Commission and city Council have
reviewed the Pre-Annexation Development Agreement and recommend its
approval.
NOW, THEREFORE, the city Council of the city of Chula
vista ordains as follows:
SECTION I:
Pre-Annexation Development Agreement for
a portion of the Otay valley Parcel.
In accordance with section 65867.5 of the Government
Code, the city Council of the City of Chula vista has
approved that certain document entitled "Pre-Annexation
Development Agreement" for a portion of the otay Valley
Parcel with Jewels of Charity, on file in the office of
the city Clerk as Document No.
1
J=XHIBIT A
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JEWELS OF CHARITY
01Y OF
CHULA VISTA
PLANNING DEPARTMENT
6119/96
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EXHIBIT 'C'
Pre-annexation Developmant Aareement
Planning Area Assassor Ownarship Aereaae
Parcel Numbers
OIay Vall"" Parcel 644.Q80-10 Jewels of Charity 315.17
Olav Vall"" Parcel 644.Q90.Q3 Jewels of Charity 160.00
475.17 Total