HomeMy WebLinkAboutPlanning Comm Rpts./1996/08/14 (5)
JOINT AGENDA STATEMENT FOR CITY COUNCIL/PLANNING COMMISSION
Item
Planning Comm. Meeting Date
City Council Meeting Date
No. 4
8/1'4796
8/20/96
ITEM TITLE:
Public Hearing Adopting otay
Annexation Development Agreement
Ranch
Pre-
Ordinances - Adopting otay Ranch Pre-
Annexation Development Agreement Between the City
of Chula vista and the Baldwin Company
SUBMITTED BY: Deputy City Manage~lt/
Planning Director ~
otay Ranch Project Manager~
REVIEWED BY: City Manager 4/5 Vote: Yes NO--X-
The purpose of this item is to present a development agreement
between the city of Chula vista and the Baldwin Company. On June
25, 1996, the Planning Commission and City Council considered a
series of development agreements with village Properties, United
Enterprises, Greg Smith and the Foundation. (The Foundation
agreement was subsequently split into three separate agreements in
August.) The remaining party who is a property owner of a portion
of the Otay Ranch property is the Baldwin Company, which is the
trustee for the bankruptcy.
RECOMMENDATION:
That the Planning commission recommend
approval of the Ordinance and the City council
place the Ordinance on First Reading.
BOARD/COMMISSION
RECOMMENDATION
The Planning commission will be reviewing and
taking action on the Agreement on August 14,
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 Parcelll, Planning Area 2, "the Inverted L", and
the Mary Patrick Estate Parcel.
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
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the Otay Landfill once it is detached has also been negotiated.
County approval occurred on July 30, 1996 and City Council approval
on August 6, 1996.
Planning Comm. Meeting Date
city Council Meeting Date
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. (Lona Beach Sav. and Loan v. Lona 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
on June 25, ~996 and on August 6, ~996 (i.e., #~ and #2 below).
The new text discussion is #3.
1. Benefits to the Parties
a. Benefits to the city
. 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, intensi ty 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. .
. 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
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citywide or east of 1-805. Special benefit, fee
districts are also contemplated.
Planning Corom. Meeting Date
City Council Meeting Date
. 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 Aareement 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 applied citywide or east of 1-805 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
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
Planning Comm. Meeting Date
City Council Meeting Date
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to amendments to the Growth Management Ordinance subject
to certain conditions. Changes to the Growth Management
Ordinance and Threshold Standards are to be consistent
with the purpose and intent of the existing Growth
Management Ordinance and generally applicable citywide or
east of I-805 or applicable to a benefit, fee district as
described in earlier sections.
(7) Application of Fees and special Taxes are contemplated
and allowed so long as they are applicable citywide or
east of I-805 or relate to some special fee or benefit
assessment district formed in accordance with the
Government Code.
(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
has been stopped.
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(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.
Planning Comm. Meeting Date
city council Meeting Date
(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
default, encumbrances and releases
modification or suspension, assignment
delay and amendments.
(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.
annual review,
on property,
and delegation,
(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" multiple 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. Aareement Terms Relatina to Specific Parties
The specific changes unique to the Baldwin Agreement are
outlined below.
section 5.1.1 and 5.1. 2 pertain to the Baldwin agreement. The
first request indicates that the City will be willing to
Planning Corom. Meeting Date
City Council Meeting Date
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Page 6
consider modifications to the land use designations of the
General Plan for the Property subject to proper environmental
review and in the City's discretion. The second provision is
that the City will provide legal notice to the Owner of any
actions involving assessment district formation, development
impact fees or other discretionary actions affecting the
Property. In addition, the City will notify the applicant and
use reasonable efforts to involve them early in any pending
discretionary actions for the property.
Section 5.3 has a sentence added that acknowledges that
Baldwin will not be required to dedicate land for the sole
purpose of satisfying an obligation of Otay Ranch L.P., Tiger
Development Two, Tigerheart, Inc. and Village Development or
their successor interests. By way of background, as a part of
Village Development's SPA One approval, an Open Space
conveyance Plan was adopted; This Plan, together with the
entitlements given, requires that the property owners of SPA
One to convey off-site land or pay fees in-lieu of land to the
Preserve Owner/Manager. Village Development no longer
controls the land that was designated as part of the
conveyance Plan. Baldwin Builders has requested that the
provision in section 5.3 be added to protect them from the
burden of conveying open space land for Village Development
entitlements.
section 7.6 has a sentence added clarifying how DIF credits
are given to the property owners in the cases of assessment
districts.
section 13.4 has a sentence added regarding the Natural
Communities Conservation Act (NCCP) and the Multiple Species
Conservation Program (MSCP) . The text states that
implementation of the above programs may require modifications
to the Existing Project Approvals. The sentence added states
that the city will process said modifications for the entire
annexation area in a comprehensive fashion.
staff and the applicant are in agreement on all of the above
changes.
Fiscal ImDact
It isn't possible to quantify the value of the Agreement to the
city or the other parties. Through annexation and the related
property tax, sales tax, etc., the city will realize significant
benefits. Likewise, the Developers benefit from the vesting and
certainty provided by the Agreement to be able to get loans and
sell and develop the Property in accordance with current and future
approvals.
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF CHULA VISTA
ADOPTING OTAY RANCH PRE-ANNEXATION DEVELOPMENT
AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND
THE BALDWIN COMPANY
WHEREAS, a City of Chula vista application is pending
before the County of San Diego and LAFCO to have the Otay Valley
Parcel included within City's sphere of influence; and
WHEREAS, the development of the Otay Valley Parcel will
require substantial pUblic improvements phased over a period of
time; and
WHEREAS, California Government Code 565867.5 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
a~opted by the City on October 28, 1993. (Lonq Beach Sav. & Loan
v. Lonq Beach Redevel., 232 Cal.Rptr. 772, 881-2 [1986]); and
WHEREAS, the Planning Commission held a public hearing on
August 14, 1996 to consider the Pre-Annexation Development
Agreement and the City Council held a pUblic hearing on August 20,
1996 to consider the Pre-Annexation Development Agreement; 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 The Baldwin Company, 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.
1
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: \or\baldwin. or
2
PRE-.~NEXATION DEVELOPMENT AGRh~1ENT
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 BALDWIN COMPANY ("Baldwin"),
who agree as follows:
1. RECITALS.
following facts:
This Agreement is made with respect to the
1.1 Owner. The owners of the properties subject to this
Agreement (hereinafter collectively referred to as "Owner" or as
"Developer") are as follows:
1.1.1 Baldwin is the Owner of approximately 1204
acres of undeveloped real property ("the Property") in the
incorporated area of the County, described in Exhibits "A" and
"C", attached hereto and incorporated herein by this refer-
ence. Portions of the Property are located in Villages 10,
11, Planning Area 12 and the University site of the Otay Ranch
Property.
1.1.2 The "Property" is part of a larger area
commonly known, and referred to herein, as "the Otay Valley
Parcel of Otay Ranch."
1.2~. The City of Chula vista is a municipal
corporation with Charter City powers incorporated within the
County.
1.3 Code Authorization and Acknowledqments.
1.3.1 city is authorized pursuant to its
Charter, self-rule powers, and California Government Code
sections 65864 through 65869.5 to enter into development
agreements for the purpose of establishing certainty for both
City and owners of real property in the development process.
1.3.2 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.
1.3.3 City and Owner intend to enter into this
agreement for the following purposes:
1.3.3.1 To assure adequate public facilities
at the time of development.
1.3.3.2 To assure development in accordance
with City's capital improvement plans.
1.3.3.3 To provide certainty to Owner in the
development approval process by vesting the permitted
use(s), density, intensity of use, and the timing and
phasing of development as described in the Development
Plan, which is defined in Paragraph 2.4 of this Agree-
-1-
ment and for its commitment not to challenge the Annex-
ation described below.
1.3.3.4 To permit achievement of City growth
management goals and objectives.
1.3.3.5 To allow City to realize significant
economic, recreational, park, open space, social, and
public facilities benefits for the city, some of which
are of regional significance.
1.3.3.6 To provide and assure that the City
receive sales tax revenues, increase in the property tax
base, residential housing and other development, sewer,
water and street facilities.
1.3.3.7 This Agreement will provide and
assure that the City receives public facilities in excess
of project generated impacts and such facilities shall be
of supplemental size, number capacity or length, which
shall be provided earlier than could be provided either
by funds from the City or than would strictly be
necessary to mitigate project related impacts at any
development phase.
1. 3 . 3 . 8 To enable the City to secure title to
the land within the boundaries of the Property necessary
to complete the Chula Vista greenbelt system and the Otay
Ranch Open Space Preserve as both are defined in the
Chula vista General Plan.
1. 3 . 3 . 9 Because of the complex! ties 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 agreement
not to challenge the Annexation described below, City is
willing to exercise its authority to enter into this
Agreement and to make a commitment of certainty for the
development process for the Property.
1.3.3.10 In consideration of Owner's agreement
to provide the significant benefits and for Owner's
agreement not to challenge the Annexation described
below, City hereby grants Owner assurances that it can
proceed with development of the Property in accordance
with City's ordinances, rules, regulations, and pOlicies
existing as of the effective date of this Agreement
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subject to section 5.2.1 below. Owner would not enter
. into this Agreement or agree to provide the public
benefits and improvements described in this Agreement if
it were not for the commitment of City that the Property
subject to this Agreement can be developed in accordance
with city's ordinances, rules, regulations, and policies
existing as of the effective date of this Agreement
subject to Section 5.2.1 below.
1.4 The Annexation. On July 1, 1996, the Local Agency
Formation Commission ("LAFCO") approved annexation of Sphere of
Influence Planning Area 1 "The Otay Parcel", Planning Area 2
"Inverted L" and the Mary Patrick Estate Parcel (see Attachment
"B") .
1.5 Sphere of Influence. On February 5, 1996 and July
1, 1996 the Local Agency Formation Commission approved the
inclusion of Planning Area 1, "The Otay Parcel", into the City
Sphere of Influence (Sphere of Influence Planning Area 1 "The Otay
Parcel", Planning Area 2 "Inverted L" and the Mary Patrick Estate
Parcel - see Attachment "B").
1.6 Plannina Documents. On October 28, 1993, city and
County adopted the otay Ranch General Development Plan/Subregional
Plan ("the GDP") which includes the Otay Ranch Village Phasing
Plan, Facility Implementation Plan, Resource Management Plan and
Service Revenue Plan, for approximately 23,000 acres of the Otay
Ranch, including the Otay Valley Parcel and the Property.
1. 7 citv Ordinance. August , 1996 is the date of
adoption by the City Council of Ordinance No. 2679 approving this
Agreement.
2. DEFINITIONS.
otherwise requires:
In this Agreement, unless the context
2.1 "Annexation" means the proposed annexation of that
portion of the otay Ranch which was annexed into the City as
depicted on Exhibit "B".
2 . 2 "ci ty" 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.
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2.7 "Project" means the physical development of the
private and public improvements on the Property as provided for in
the Existing Project Approvals and as may be authorized by the city
in Future Discretionary Approvals.
2.8 "Property" means the real property described in
Paragraph 1.1.1.
2.9 The "Term" of this Agreement means the period
defined in Paragraph 3, below.
2.10 "Builder" means developer to whom Developer has sold
or conveyed property within the Property for purposes of its
improvement for residential, commercial, industrial or other use.
2.11 "CEQA" means the California Environmental Quality
Act, California Public Resources Code section 21000, et seq.
2.12 "City council" means the City of Chula vista City
Council.
2.13 "Commit" or "Committed" means all of the following
requirements have been met with respect to any public facility:
2.13.1 For a public facility within the City's
jurisdictional boundaries and a responsibility of the develop-
er.
2.13.1.1 All discretionary permits required of
the Developer have been obtained for construction of the
public facility;
2.13.1.2 Plans for the construction of the
public facility have all the necessary governmental
approvals; and
2.13.1.3 Adequate funds (i.e., letters of
credit, cash deposits, performance bonds or land secured
public financing, including facility benefit assessments,
Mello-Roos assessment districts of similar assessment
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.
the cost
existing
2.13.2.1
of such
Project
Developer's proportionate share of
public facility as defined in the
Approvals and Future Discretionary
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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 Phase II Resource Management
Plan (RMP), as may be amended from time to time consistent with
this agreement.
2.16 "Final Map(s)" means any final subdivision map for
all or any portion of the Property other than the Superblock Final
Map ("A" Maps).
2.17 "Future Discretionary Approvals" means all permits
and approvals by the City granted after the effective date and
excluding existing Project Approvals, including, but not limited
to: (i) grading permits; (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 will.
when adopted. set forth policies and identify the schedule for
transfer of land and/or fees to be paid to insure the orderly
conveyance of the otay Ranch land to the Preserve Owner Manager.
The purpose of the plan is to fulfill the obligations to convey
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per the criteria contained in the phase I and II Resource Manage-
ment 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.
2.23 "Threshold" means the facility thresholds set forth
in the City's Municipal Code Section 19.19.040.
3. ~. This Agreement shall become effective 30 days
after the second reading of the Ordinance (the "Effective Date").
Any of the foregoing to the contrary notwithstanding, 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 AGREEMENT TO ANNEXATION.
challenge any action taken by the city to
Parcel into the city.
Owner agrees not to
annex the Otay Valley
5. VESTED RIGHTS. Notwi thstanding any future action or
inaction of the city during the term of this Agreement, whether
such action is by ordinance, resolution or policy of the City,
Owner and Developer shall have a vested right, except as may be
otherwise provided in this section 5, to construct the project in
accordance with:
5.1 Existing Project Approvals, subject to the following
requests for modifications, if approved by the city:
5.1.1 city shall reasonablY consider in its
discretion with DrODer environmental review a reauest bv the
owner for any modifications to the land use desianations in
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the General DeveloDment Plan f!or the PrODertv. CH:y shall
reasBRa191y eSRsiEleF' ill its elieoretiaR aRa ._lith ~l'aper 8ft-lireR
MCRtal rc~ic~, a re~He6~ ~e iRereaae the re6ielcR~ial dCRcity
af Villa~ee 2, ., aRa S, ~p ~e the R~mser af rcsiacRtial aRite
provides iR villa~e J sy the Ce~Rty's aeleptea CDP.
5.1.2 ci ty will notice the OWner. as reauired bY
law. of! any actions which involve the f!ormation of! assessment
districts. develoDment imDact f!ees or other discretionary
actions af!f!ectina the ProDerty. In addition. city will use
its reasonable best ef!forts to contact the OWner reaardina any
Dendina discretionary actions Dertainina to the ProDerty as
early as Dossible in the Drocess and involve the OWner in
aDDroDriate meetinas related thereto. OWner acknowledaes that
city will not be in breach of! this Aareement for failure to
Drovide notice to OWner other than notice as reauired bY law.
5.1.3 If the interchange improvements at otay
Valley Road and I-80S are needed to serve the Project, the
city will hold appropriate hearings to consider an amendment
to its Transportation Phasing Plan (TPP)" and Development
Impact Fee (DIF) Program to include said improvements as may
be deemed appropriate by the city to accommodate the project
phasing. The City agrees to reasonably cooperate and work
with CALTRANS to complete plans for said interchange improve-
ment.
5.1.4 city shall initiate contact and diligently
pursue discussions with the County of San Diego and the City
of San Diego to determine the number, scheduling and financing
of the otay River road and bridge crossings.
5.1.5 City shall allow the owner for purposes of
processing entitlements to proceed with planning of the
Property on a first come first served basis, with other prop-
erties in the area of the Annexation. In addition, if
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 com-
mitments 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.
5.1.7 City shall diligently process any amend-
ments, applications, maps, or other development applications.
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5.1.8
amendments to the
tionary Approvals,
jurisdiction.
City may make such modifications or
Existing Project Approvals/Future Discre-
as may be ordered by a court of competent
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. 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
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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.
city acknowledaes that Baldwin will not be reQUired to dedicate
land for the sole purpose of satisfyina an obliaation of Otay
Ranch. L.P.. a California limited partnership. Tiaer Development
Two. a California limited partnership. Tiaerheart. Xnc.. a
California corporation or its aeneral partner. Villaae Development.
a California aeneral partnership. or their successorlsl interest.
5.4 Time for Construction and Completion of Proiect.
Because the California supreme Court held in Pardee Construction
Company 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,
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consistent with the Growth Management Ordinance, Existing Project
Approvals, Future Discretionary Approvals and this Agreement.
5.5 Benefit of vestinq. Nothing in this Agreement will
be construed as limiting or impairing Developer's vested right, if
any, to proceed with the development and use of the Property
pursuant to the Federal and state Constitutions, and pursuant to
statutory and decisional law.
5.6 vestinq of Entitlements. All rights conferred by
this Agreement vest with the Effective Date hereof. The approval
of Future Discretionary approvals shall not be deemed to limit
Developer's rights authorized by this Agreement, and once such
approvals are obtained they shall be vested to the same extent as
the Existing Project Approvals.
6. DEVELOPMENT PROGRAM.
6.1 processinq of Future Discretionarv Approvals. City
will accept and diligently process development applications and
requests for Future Discretionary Approvals, or other entitlements
with respect to the development and use of the Property, provided
said applications and requests are in accordance with this
Agreement. City costs for processing work related to the Project,
including hiring of additional city personnel and/or the retaining
of professional consultants, will be reimbursed to City by
Developer.
6.2 Lenqth of Validitv of Tentative Subdivision Maps.
Government Code section 66452.6 provides that tentative subdivision
map(s) may remain valid for a length up to the term of a Develop-
ment Agreement. The City agrees that tentative subdivision map(s)
for the property shall be for a term of six (6) years and may be
extended by the city Council for a period of time not to exceed a
total of twenty (20) years and in no event beyond the term of this
Agreement.
6.3 Pre-Final Map Development. If Developer desires to
do certain work on the Property after approval of a tentative map
(for example, grading) prior to the recordation of a final map, it
may do so by obtaining a grading and/or other required approvals
from the city which are authorized by the City prior to recordation
of a final map. Such permit shall be issued to Developer, or its
contractor, upon Developer's application, approval, and provided
Developer posts a bond or other reasonably adequate security
required by City in an amount to assure the rehabilitation of the
land if the applicable final map does not record.
6.4 Final Maps.
6.4.1
elects, the City
or parcel map
backbone street
consistent with
"A" Maps and "B" Maps. If Developer so
shall accept and process a master subdivision
("A" Map) showing "Super Block" lots and
dedications. "super Block" lots shall be
the GDP and subsequent Sectional Plan Area
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plans, and shall not subdivide land into individual single-
family lots. All "Super Blocks" created shall have access to
dedicated public streets. The City shall not require improve-
ment plans in order to record a final map for any "A" Map
lots, but the City shall require bonding for the completion of
backbone facilities prior to recording in an amount to be
determined by the City. Following the approval by city of any
final map for an "A" Map lot and its recordation, Developer
may convey the "Super Block" lot. The buyer of a "Super
Block" lot shall then process final improvement plans and
grading plans and a final map ("B" Map) for each "super Block"
lot which the city shall process. The "B" Maps shall be in
substantial conformance with the related approved "A" Map. In
the instance of the multi-family dwelling unit areas, a
separate tentative subdivision map may be submitted to the
City and the "B" Map(s) for these areas may be submitted to
the City after the city Planning commission approves said
tentative subdivision map.
6.4.2 Recordation of Final Subdivision MaD in
Name of Builder or Third Partv. Developer may, if it so
elects, convey to a Builder or third party any "super block"
lot(s) shown on the recorded Superblock Final Map. In such
case, the Builder or third party will (i) process any neces-
sary final improvement and grading plans and a final map for
each such "super block" lot, which map City shall accept and
process as subsequent phases in a multi-phase project, (ii)
enter into a subdivision improvement agreement with City with
respect to the subdivision improvements which are required for
such super block lot, and (iii) provide security and insurance
satisfactory to city for the completion of the subdivision
improvements.
6.4.3 Recordation of Final Subdivision MaD in
DeveloDer's Name: Transfer of Obliaations Under Subdivision
ImDrovement Aareement(s). If Developer so elects, it may
defer the conveyance of any super block lot to a Builder or
third party until after the final map of such super block lot
has been recorded. If Developer elects to proceed in this
manner, it will enter into City's standard subdivision
improvement agreement(s) with city for the improvements
required as a condition to the approval of such map(s). Upon
sale to a Builder or third party, if such Builder or third
party assumes Developer's obligations under the improvement
agreement and provides its own security and insurance for the
completion of the subdivision improvements as approved by the
city, Developer shall be released from liability under the
subdivision improvement agreement(s) and Developer's security
shall be released.
6.4.4 Transfer of Riahts and Obliaations of
DeveloDment. Whenever Developer conveys a portion of the
Property, the rights and obligations of this Agreement shall
transfer in accordance with section 15 herein.
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7. DEVELOPER'S OBLIGATIONS.
7.1 Condition to DeveloDer's Obliaations to Dedicate. Fund or
Construct Public Facilities. Developer agrees to develop or
provide the public improvements, facilities, dedications, or
reservations of land and satisfy other exactions conditioning the
development of the Property which are set forth hereinbelow. The
obligations of the Developer pursuant to this Agreement are
conditioned upon: (i) the City not being in default of its obliga-
tions under this agreement; and (ii) the City not preventing or
unreasonably delaying the development of the property; and (iii)
the Agreement having not been suspended in response to changes in
state or federal law; and (iv) the city's obligations having not
been suspended pursuant to section 13.2.
7.2 Dedications and Reservations of Land for PublicPurDoses.
The policies by which property will be required to be reserved,
dedicated or improved for public purposes are identified in the
Existing Project Approvals. A more precise delineation of the
property to be preserved, dedicated or improved for public purposes
shall occur as part of Future Discretionary Approvals, consistent
with the Existing Project Approvals.
7.3 Growth Manaaement Ordinance. Developer shall commit the
public facilities and city shall issue building permits as provided
in this section. The City shall have the right to withhold the
issuance of building permits any time after the City reasonably
determines a Threshold has been exceeded, unless and until the
Developer has mitigated the deficiency in accordance with the
City's Growth Management Ordinance.
Developer agrees that building permits may be withheld where the
public facilities described in the Existing Project Approvals/-
Future Discretionary Approvals required for a particular Threshold
have not been committed.
In the event a Threshold is not met and future building permit
issuance may be withheld, the notice provisions and procedures
contained in section 19.09 .100C of the Municipal Code will be
followed. In the event the issuance of building permits is
suspended pursuant to the provisions herein, such suspension shall
not constitute a breach of the terms of this Agreement by Developer
or city. Furthermore, any such suspension which is not caused by
the actions or omissions of the Developer, shall toll the term of
this Agreement as provided for in Section 16.12 of this Agreement,
and suspend the Developer's obligations pursuant to this Agreement.
7.3.1 Required Condemnation. The City and Developer
recognize that certain portions of the Open Spade Preserve and
of the public facilities identified in the Existing Project
Approvals/Future Discretionary Approvals and required to
comply with City requirements and are located on properties
which neither the Developer nor the City has, or will have,
title to or control of. with respect to such land for public
facilities, the city shall identify such property or proper-
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ties and at the time of filing of the final map commence
timely negotiations or, where the property is wi thin 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 of the land needed for public facilities, the
City shall take all reasonable steps to establish a procedure
whereby the developer is reimbursed for such costs beyond its
fair share.
7.3.2 Information ReGardinG Thresholds. Upon
Developer's written requests of the city Manager, the City
will provide Developer with information regarding the current
status of a Threshold. Developer shall be responsible for any
staff costs incurred in providing said written response.
7.4 Imcrovements ReGuired bv a Subdivision Mac. 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 ObliGations of Another
Partv. or Are of Excessive Size. Cacacitv. LenGth 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 pioneerinG 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
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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. Notwithstandina the foreaoina. if an assessment district
is used to finance said improvements and the developer has been
Daid back its costs. DIF credit shall be aiven to those proper tv
owners assessed for said improvements.
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 Existina 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
tentati ve subdivision map upon the issuance of building permits (s) ,
or at a later time as specified by city ordinance, the Subdivision
Map Act, or Public Facility Financing Plan (PFFP). The DIF will be
in the amount in effect at the time payment is made and may only be
increased pursuant to section 8.6 herein.
8.2 Other Undeveloped Properties. The City will use its
reasonable best efforts to impose and collect, or cause the
imposition and collection of, the same DIF program on all the
undeveloped real properties which benefit from the provision of the
public facility through the DIF program, or provided as a condition
of project Approvals.
8.3 Use of Development Impact Fee Proqram. The DIF
amounts paid to the city by Developer and others with respect to
the Area of Benefit shall be placed by the City in a capital
facility fund account established pursuant to California Government
Code sections 66000-66009. The City shall expend such funds only
for the Projects described in the adopted fee program as may be
modified from time to time. The City will use its reasonable best
efforts to cause such Projects to be completed as soon as practica-
ble; however, the City shall not be obligated to use its general
funds for such Projects.
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"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 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.
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9.1 Urban Infrastructure. To the extent it is within
the authority of the City to provide, City shall accommodate urban
infrastructure to the project, consistent with Existing Project
Approvals. Where it is necessary to utilize City property to
provide urban infrastructure consistent with the Existing Project
Approvals, the City agrees to make such land available for such
uses, provided that the City if it so chooses is compensated at
fair market value for the property. To the extent that the
provision of urban infrastructure is within the authority of
another public or quasi-public agency or utility, the City agrees
to fully cooperate with such agency or agencies to accommodate the
urban infrastructure, consistent with Existing Project Approvals.
Urban infrastructure shall include, but not be limited to gas,
electricity, telephone, cable and facilities identified in the Otay
Ranch Facility Implementation Plan.
9.2 Sewer Capaci tv. The city agrees to provide adequate
sewer capacity for the project, upon the payment of ordinary and
necessary sewer connection, capacity and/or service fees.
10. ANNUAL REVIEW.
10.1 citv and Owner Responsibilities. City will, at
least every twelve (12) months during the Term of this Agreement,
pursuant to California Government Code 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.
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
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conditions of this Agreement shall not constitute, or be asserted
by City or Owner as, a breach of the Agreement.
11. DEFAULT.
11.1 Events of Default. A default under this Agreement
shall be deemed to have occurred upon the happening of one or more
of the following events or conditions:
11.1.1 A warranty, representation or statement
made or furnished by Owner to city is false or proves to have
been false in any material respect when it was made.
11.1.2 A finding and determination by city made
fOllowing a periodic review under the procedure provided for
in California Government Code section 65865.1 that upon the
basis of substantial evidence Owner has not complied in good
faith with one or more of the terms or conditions of this
Agreement.
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 UDon Default.
11. 2.1 Upon the occurrence of default by the
other party, city or Owner may terminate this Agreement after
providing the other party thirty (30) days written notice
specifying the nature of the alleged default and, when
appropriate, the manner in which said default may be satis-
factorily cured. After proper notice and expiration of said
thirty (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
Agreement, the failure of a third person shall not
party's nonperformance under this agreement.
of this
excuse a
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11.2.4 Remedies Upon Default. In the event of a
default by either party to this Agreement, the parties shall
have the remedies of specific performance, mandamus, injunc-
tion and other equitable remedies. Neither party shall have
the remedy of monetary damages against the other; provided,
however, that the award of costs of litigation and attorneys'
fees shall not constitute damages based upon a breach of this
Agreement where such an award is limited to (i) the costs of
litigation incurred by the City, and (ii) the "fee" equivalent
of City's costs for the services attributable to litigation
and representation by the city Attorney, including assistants
and staff.
12. ENCUMBRANCES AND RELEASES ON PROPERTY.
12.1 Discretion to Encumber. This Agreement shall not
prevent or limit Owner in any manner at Owner's sole discretion,
from encumbering the Property, or any portion of the Property, or
any improvement on the Property, by any mortgage, deed of trust, or
other security device securing financing with respect to the
Property or its improvement.
12.2 Mortqaqee Riqhts and Obliqations. The mortgagee of
a mortgage or beneficiary of a deed of trust encumbering the
Property, or any part thereof, and their successors and assigns
shall, upon written request to city, be entitled to receive from
city written notification of any default by Owner of the
performance of Owner's obligations under the Agreement which has
not been cured within thirty (30) days following the date of
default.
12.3 Releases. City agrees that upon written request of
Owner and payment of all fees and performance of the require-
ments and conditions required of Owner by this Agreement with
respect to the Property, or any portion thereof, city may
execute and deliver to Owner appropriate release (s) of further
obligations imposed by this Agreement in form and substance
acceptable to the San Diego county Recorder and title
insurance company, if any, or as may otherwise be necessary to
effect the release. City Manager shall not unreasonably
withhold approval of such release(s).
12.4 Obliqation to Modifv. City acknowledges that the
lenders providing financing for the Project may require certain
modifications to this Agreement and City agrees, upon request from
time to time, to meet with Owner and/or representatives of such
lenders to negotiate in good faith any such requirement for
modification. City will not unreasonably withhold its consent to
any such requested modification.
13. MODIFICATION OR SUSPENSION.
13.1 Modification to Aqreement bv Mutual Consent. This
Agreement may be modified, from time to time, by the mutual consent
of the parties only in the same manner as its adoption by an
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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
COllUDunities 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 modif ication to the Existing proj ect
Approvals. The city will Drocess said modifications for the entire
Annexation Area in a comDrehensive fashion. 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 modifications. 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, cOllUDunity 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
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Approvals, is required to install improvements through the use of
assessment districts, community facility districts, or other public
financing mechanisms, the City shall initiate and conclude
appropriate proceedings for the formation of such financing
district or funding mechanism, under applicable laws or ordinances.
Developer may request that the city utilize any other financing
methods which may become available under city laws or ordinances.
All costs associated with the consideration and formation of such
financing districts or funding mechanisms shall be paid by
Developer subject to reimbursement, as may be legally authorized
out of the proceeds of any financing district or funding mechanism.
15. ASSIGNMENT AND DELEGATION.
15.1 Assianment. Owner shall have the right to transfer
or assign its interest in the Property, in whole or in part,
to any persons, partnership, joint venture, firm, or corpora-
tion at any time during the Term of this Agreement without the
consent of city. Owner also shall have the right to assign or
transfer all or any portion of its interest or rights under
this Agreement to third parties acquiring an interest or
estate in the Property at any time during the Term of this
Agreement without the consent of City.
15.2 Deleaation. In addition, Owner shall have the
right to delegate or transfer its obligations under this
Agreement to third parties acquiring an interest or estate in
the Property after receiving the prior written consent of the
city Manager, which consent shall not be unreasonably with-
held, delayed, or conditioned. Once the city Manager has
consented to a transfer, delivery to and acceptance by the
city Manager of an unqualified written assumption of Owner's
obligations under this Agreement by such transferee shall
relieve Owner of the obligations under this Agreement to the
extent the obligations have been expressly assumed by the
transferee. Such transferee shall not be entitled to amend
this Agreement without the written consent of the entity that,
as of the Effective Date, is owner, which consent shall not be
unreasonably withheld, delayed, or conditioned. The entity
that is Owner as of the Effective Date, however, shall be
entitled to amend this Agreement without the written consent
of such transferee.
16. MISCELLANEOUS PROVISIONS.
16.1 Bindina Effect of Aareement. Except to the extent
otherwise provided in this Agreement, the burdens of this Agreement
bind, and the benefits of this Agreement inure, to City's and
Owner's successors-in-interest and shall run with the land.
16.2 RelationshiD of citv and Owner. The contractual
relationship between City and Owner arising out of this Agreement
is one of independent contractor and not agency. This Agreement
does not create any third-party beneficiary rights.
-21-
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:
Baldwin Company
with a Copy to:
STEPHENSON, WORLEY, GARRATT
SCHWARTZ, HEIDEL & PRAIRIE
101 West Broadway, Suite 1300
San Diego, CA 92101
Attgntion: 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 Pro;ect as a Private Undertakinq. It is
specifically understood by City and Owner that (i) the Project is
a private development; (H) City has no interest in or
responsibilities for or duty to third parties concerning any
improvements to the Property until City accepts the improvements
pursuant to the provisions of the Agreement or in connection with
subdivision map approvals; and (Hi) Owner shall have the full
power and exclusive control of the Property subject to the
obligations of Owner set forth in this Agreement.
16.7 Incorporation of Recitals. The recitals set forth
in Paragraph 1 of this Agreement are part of this Agreement.
-22-
16.8 Captions. The captions of this Agreement are for
convenience and reference only and shall not define, explain,
modify, construe, limit, amplify, or aid in the interpretation,
construction, or meaning of any of the provisions of this
Agreement.
16.9 Consent. Where the consent or approval of city or
OWner is required or necessary under this Agreement, the consent or
approval shall not be unreasonably withheld, delayed, or con-
ditioned.
16.10 Covenant of Cooperation.
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
-23-
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
modifications hereto, that this Agreement is in full force and
effect as modified and stating the date and nature of such
modifications; (ii) there are no known current uncured defaults
under this Agreement, or specifying the dates and nature of any
such default; and (iii) any other reasonable information requested.
The failure to deliver such a statement within such time shall
constitute a conclusive presumption against the party which fails
to deliver such statement that this Agreement is in full force and
effect without modification, except as may be represented by the
requesting party, and that there are no uncured defaults in the
performance of the requesting party, except as may be represented
by the requesting party.
16.18 Severabilitv. If any material provision of this
Agreement is held invalid, this Agreement will be automatically
terminated with neither party bearing any liability hereunder.
Notwithstanding the foregoing, within 15 days after such provision is
-24-
held invalid if the party holding rights under the invalidated
provision affirms the balance of this Agreement in writing, this
Agreement shall not be terminated. This provision will not affect
the right of the parties to modify or suspend this Agreement by
mutual consent pursuant to Paragraph 12.4.
16.19 Institution of Leqal Proceedinq. In addition to any
other rights or remedies, any party may institute legal action to
cure, correct, or remedy any default, to enforce any covenants or
agreements herein, or to enjoin any threatened or attempted violation
thereof; to recover damages for any default as allowed by this
Agreement or to obtain any remedies consistent with the purpose of
this Agreement. Such legal actions must be instituted in the
Superior Court of the County of San Diego, State of California.
16.20 Attornevs' Fees and Costs. If any party commences
litigation or other proceedings (including, without limitation,
arbitration) for the interpretation, reformation, enforcement, or
rescission of this Agreement, the prevailing party, as determined by
the court, will be entitled to its reasonable attorneys' fees and
costs.
16.21 Hold Harmless. Developer agrees to and shall hold
City, its officers, agents, employees and representatives harmless
from liability for damage or claims for damage for personal injury,
including death, and claims for property damage which may arise from
the direct or indirect operations of Developer or those of its
contractors, subcontractors, agents, employees or other persons
acting on Developer's behalf which relate to the Project. Developer
agrees to and shall defend City and its officers, agents, employees
and representatives from actions for damage caused or alleged to have
been caused by reason of Developer's activities in connection with
the Project. Developer agrees to indemnify, hold harmless, pay all
costs and provide a defense for City in any legal action filed in a
court of competent jurisdiction by a third party challenging the
validity of this Agreement. The provisions of this section 16.21
shall not apply to the extent such damage, liability or claim is
caused by the intentional or negligent act or omission of City, its
officers, agents, employees or representatives.
17. AUTHORITY.
The City has
representation
ment.
entered into this Agreement based upon Baldwin's
that it has the authority to enter into this Agree-
-25-
SIGNATURE PAGE TO PRE-ANNEXATION DEVELOPMENT AGREEMENT.
Dated this ____ day of
, 1996.
"CITY"
CITY OF CHULA VISTA
By:
SHIRLEY HORTON, MAYOR
"OWNER"
BALDWIN COMPANY
By:
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:
-26-
EXHIBIT A
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THE BALDWIN COMPANY
01Y OF
CHUlA VISTA
PLANNING DEPARTMENT
7/10/96
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EXHIBIT MC' I
PRE-ANNEXATION DEVELOPMENT AGREEMENT
Otay Valley Parcel 643-070-01 Baldwin Builders 219.68
Otav Vallev Parcel 643-070-03 Baldwin Builders 611.43
Otav Valley Parcel 644-080-06 Baldwin Builders 160.11
Otav Vallev Parcel 644-080-07 Baldwin Builders 212.97
TOTAL 1.204.19