HomeMy WebLinkAbout2006/10/10 Item 2
COUNCIL AGENDA STATEMENT
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Item ~
Meeting Date 10/10/06
Resolution approving a Grant of Easements and Maintenance
Agre=ent between General Growth Properties (GGP) - Otay Ranch, L.P., a
Delaware limited partnership, and the Qity of Chula Vista, for the Otay Ranch
Town Center shopping center project, andituthorizing the Mayor to execute
said Agreement.
SUBMITTED BY: Acting Director of En7ngW
REVIEWED BY: Interim City Manager J'
ITEM TITLE:
(4/Sths Vote: Yes_NolO
The Final Map (N umber 15037) for The Town Center shopping center project ("The Town Center"),
along with a Subdivision Improvement Agreement and Supplemental Subdivision Improvement
Agreement, was approved by City Council on May 24, 2005 (Resolution 2005-165). The project is
generally located at the northwest comer ofEastlake Parkway and Birch Road (Attachment 1), and
will consist of major department stores and smaller commercial vendors sharing the site. The Grant
of Easements and Maintenance agreement, required by the Supplemental Subdivision Improv=ent
Agreement (SSIA), is now before Council for consideration and approval. This agreement sets forth
specific obligations and responsibilities for the maintenance of certain landscaping improvements
and facilities adjacent to the project and within the City right of way.
RECOMMENDATION: That the City Council adopt the resolution approving a Grant of
Easements and Maintenance Agreement between General Growth Properties (GGP) - Otay Ranch,
L.P., a Delaware limited partnership, and the City ofChula Vista, for the OtayRanch Town Center
shopping center project, and authorizing the Mayor to execute said Agreement.
BOARDS Al'lD COMMISSIONS: N/A
DISCUSSION:
The project is located west of East lake Parkway, south of Olympic Parkway, north of Birch Road and
east ofSR-125, and consists of six numbered lots and one lettered lot, totaling a gross area of91.34
acres. The Grant of Easements and Maintenance Agreement establishes specific obligations and
responsibilities for GGP - Otay Ranch, L.P., the owner and developer of the project, regarding the
permanent maintenance oflandscaping and all associated irrigation systems within the public right of
way adjacent to the project along Eastlake Parkway and Birch Road as further described in Exhibits
"B" and "C" of Attachment 2. In addition, the agreement establishes specific obligations and
responsibilities for GGP - Otay Ranch, L.P., regarding the temporary maintenance of landscaping
and all associated irrigation systems within the public right of way along Town Center Drive and the
southern side of Birch Road as further described in Exhibits "B" and "C" of Attachment 2. These
temporary obligations ofGGP - Otay Ranch L.P. would expire as adjacent sites develop and are
required by the City to maintain those portions of parkway and landscaped medians along their
respective frontage.
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Page 2, Item ;;:c
Meeting Date 10/10/06
ENVIRONMENTAL REVIEW:
The Environmental Review Coordinator has reviewed the proposed project for compliance with the
California Environmental Quality Act (CEQA) and has determined that the proposed project was
adequately covered in previously adopted Environmental Impact Report EIR-02-04 and associated
addendum. Thus, no further environmental review or documentation is necessary.
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DECISION MAKER CONFLICTS: Staffhas reviewed the property holdings of the City Council
and has found no property holdings within 500 feet of the boundaries of the property which is the
subject of this action.
FISCAL IMP ACT: None to the City. All of the maintenance, and any costs associated with it, will
be the responsibility of GGP - Otay Ranch, L.P. All staff costs associated with the proposed
agreements will be reimbursed from the developer's deposits.
Attachments:
1: Vicinity Map of The Town Center
Also Attached: Grant of Easement and Maintenance Agreement
J :\Engineer\AGENDA \CAS2006\! 0-1 0-06\A 113 JfantEasement.doc
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RESOLUTION NO. 2006-
RESOLUTION APPROVING A GRANT OF
EASEMENTS AND MAINTENANCE AGREEMENT
BETWEEN GENERAL GROWTH PROPERTIES (GGP) -
OTAY RANCH, L.P., A DELAWARE LIMITED
PARTNERSHIP, AND THE CITY OF CHtJLA VISTA, FOR
THE OTAY RANCH TOWN CENTER SHOl'PING CENTER
PROJECT, AND AUTHORIZING THE MAYOR TO EXECUTE
SAID AGREEMENT
WHEREAS, GGP - Otay Ranch, L.P, ("Owner") has received approval of a parcel map
for The Town Center shopping center, Tentative Parcel Map No. 05-02, totaling 91.34 acres; and
WHEREAS, the Owner has entered into a Supplemental Subdivision Improvement
Agreement in which it has agreed to maintain certain areas of the public right-of-way; and
WHEREAS, the Grant of Easements and Maintenance Agreement sets forth the
obligations of the Owner and subsequent Transferees in maintaining landscaping within the
public right-of-way;
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula
Vista does hereby approve the Grant of Easements and Maintenance Agreement between GGP -
Otay Ranch, L.P., and the City of Chula Vista for the maintenance of public right-of-way along
the frontage of the Town Center shopping center, a copy of which shall be kept on fUe in the
office of the City Clerk.
BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby
authorized and directed to execute said agreements for and on behalf of the City of Chula Vista.
Presented by
Approved as to form by
Leah Browder
Acting Director of Engineering
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H:\ENGINEERIRESOSlResos2006\1 0-1 0-06IReso Grant Easmnt.doc
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THE ATTACHED AGREENfENT HAS BEEN REVIEWED
AND APPROVED AS TO FORM BY THE CITY
ATTORNEY'S OFFICE AND WILL BE
FORMALLY SIGNED UPON APPROVAL BY
THE CITY COUNCIL
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Dated: lof/O b
Grant of Easements and Maintenance Agreement
Chula Vista Tract No. 05-02 (Dedicated Easements)
Between the City of Chula Vista and GGP - Otay Ranch, L.P.
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Recording Requested by and
Please Return to:
City Clerk
City of Chula Vista
276 Fourth Avenue
Chula Vista, California 91910
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This Instrument Benefits City Only.
No Fee Required. 5
This Space for Recorder's Use Only
C.V. File No.: OR-254F
GRANT OF EASEMENTS Al'ill MAINTENANCE
AGREEMENT
CHULA VISTA TRACT NO. 05-02
(DEDICATED EASEMENTS)
This GRANT OF EASEMENTS AND MAINTENA.__NCE AGREElVlENT
("Agreement") is made as of this day of , 2006, by and between
the CITY OF CHULA VISTA, a municipal corporation ("City"), and GGP - Otay Ranch, L.P., a
Delaware limited partnership ("Developer").
RECITALS
A. This Agreement concerns and affects certain improvements within and adjacent to
the real property located in Chula Vista, California, more particularly described in Exhibit "A"
attached hereto and incorporated herein ("Property"). The Property is to be developed into a
planned open air regional shopping mall to be known as Otay Ranch Town Center (the
"Proj ect").
B. The Property is covered by Final Map No. 15037 (the "Final Map") approved by
City Council Resolution No. 2005-165 ("City Resolution").
C. Developer is the owner of record of the Project.
D. In order for Developer to obtain the Final Map and for the City to have assurance
that the maintenance of certain public areas within and adjacent to the Project would be provided
for, the City and Developer or Developer's predecessor-in-interest entered into a Supplemental
Subdivision Improvement Agreement pursuant to the City Resolution, in which Developer has
agreed that maintenance of such areas shall be accomplished by an entity acceptable to the City.
Exhibit "B" attached hereto describes those particular areas which were dedicated to the public
on the Final Map or by separate instrument, but which include landscaping and drainage
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improvements to be maintained by tbe Developer. The public areas to be maintained by the
Developer are collectively referred to as tbe "Developer Maintained Public Areas").
E. The City desires to grant to Developer easements for landscape maintenance
purposes upon, over and across tbe Developer Maintained Public Areas as shown on Exhibit
"B" in order to facilitate the obligations of Developer as set' fo~ in Supplemental Subdivision
Improvement Agreement, adopted pursuant to the City Resolution.2005-165.
NOW, THEREFORE, in consideration of tbe mutual covenants herein contained, tbe
parties agree as set fortb below.
1. Grant of Easements. The City hereby grants to Developer and its agents,
successors and assigns, the following easements over tbe Developer Maintained Public Areas:
Non-exclusive easements and rights-of-way over and across tbose public rights-of-way described
on Exhibit "B" for purpose of constructing, maintaining, repairing and replacing tbe following:
tbe landscaping witbin portions of public rights-of way and public access easements as shown
and described on Exhibit "B" attached hereto. These grants are made without any warranties of
any kind, express or implied, otber tban tbe warranty stated in Paragraph 12.6 below.
2. Maintenance Responsibilities. Developer hereby covenants and agrees, at its
sole cost and expense, to maintain, repair and replace, or cause to be maintained, repaired or
replaced, tbose improvements witbin tbe Developer Maintained Public Areas which are
described on Exhibit "B" attached hereto, at a level of maintenance acceptable to tbe Director
of Public Works Operations, in his/her reasonable discretion, which level of maintenance shall
be equivalent to tbe level of otber City or Community Facilities District maintained right-of-way
facilities. For purposes oftbis Agreement, the term "Maintenance" or "Maintain" shall mean tbe
maintenance, repair, tbe provision of irrigation water, and replacement obligations described
herein and on Exhibit" C" hereto and shall also include repair and replacement at no cost to tbe
City of any City owned property tbat is damaged during performance of the maintenance
responsibilities pursuant to this Agreement. Exhibit "C" also refers to tbe maintenance
responsibilities of City.
3. Insurance.
3.1 Developer Insurance. Developer procures and formally resolves to
maintain at its sole cost and expense, commencing no later tban the date tbat botb the City's
landscape architect of record and City landscape inspection staff agree in writing that all
installation work has been completed and tbat tbe maintenance/establishment operations have
been completed as specified in tbe Project's construction documents, a policy of public liability
insurance that would include, but is not limited to tbe following:
(a) General Liability Insurance. The Developer shall obtain a
comprehensive general liability and property damage insurance policy
insuring tbe Developer against liability incident to ownership or use of tbe
Property (including all private open space lots and otber Developer
Maintained Public Areas). The limits of such insurance shall not be less
tban $3 Million covering all claims for deatb, personal injury and property
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damage ansmg out of a single occurrence. The insurer issuing such
insurance shall have rating by A.M. Best "A-, Class VII" or better with no
modified occurrences and as admitted by Best's Insurance Guide. Such
insurance shall include the following additional provisions provided they
are available on a commercially reasorjable basis:
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(i.) The City of Chula Vista shall b~'~amed as an additional insured
party to such insurance pursuant to the City's requirements;
(ii.) The policy shall not contain a cross-suit exclusion clause which
would abrogate coverage should litigation ensue between insureds
and;
(iii.) The policy shall contain the following severability clause (or
language which is substantially the same): "The coverage shall
apply separately to each insured except with respect to the limits of
liability" .
The Developer shall provide the City with a Certificate of Insurance upon procurement of
the policy as set forth above.
4. Assi!!nment bv Develoller and Release of Develoller.
4.1 Assi!!nment. Upon request of the Developer, any or all maintenance
obligations set forth herein may be assigned to a Transferee if the City Manager in his/her sole
but good faith discretion determines that such an assignment will not adversely affect the City's
interests. Upon Developer's transfer with City's written permission of certain Maintenance
obligations to a Transferee, it is intended by the parties that the Transferee shall perform the
Maintenance obligations either itself or by contractors. Such transfer will release the Developer
from its obligations only if all of the following occur:
(I) Transferee Accepts Obli!!ation. The Transferee has
unconditionally accepted and assumed all of the Developer's obligations under this Agreement in
writing, such assignment provides that the burden of this Agreement remains a covenant running
with the land, and the Transferee expressly assumes the obligations of the Developer under this
Agreement.
(ii) Transferee Insurance. The Transferee procures and formally
resolves to Maintain at its sole cost and expense, a policy of public liability insurance which
meets the requirements set forth in Paragraph 3.1 above. The Transferee shall provide the City
with a Certificate of Insurance upon acceptance of the transfer of the Maintenance obligations
herein.
4.2 Release. When all conditions precedent in Paragraph 4.1 are fulfilled,
the Developer shall be released from its obligations under this Agreement, including its
insurance and any security requirements. At least sixty (60) days prior to such transfer,
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Developer shall give notice to the City of Developer's intent to transfer its Maintenance
obligations herein and provide the City with the appropriate documents listed in Paragraph 4.1.
5. Indemnity. The Developer shall defend, indemnify, and hold harmless the City,
its officers, agents and employees, from any and all actions, ~uits, claims, damages to persons or
property, costs including attorney's fees, penalties, obligation~, errors, omissions, demands,
liability, or loss of any sort (herein "claims or liabilities"), that' may be asserted or claimed by
any person, firm, or entity because of or arising out of or in connection with Developer's failure
to properly construct, or perform the maintenance and/or repair of the Developer Maintained
Public Areas as herein required. The Developer shall not have any liability under this section by
reason of the Transferee's failure to maintain.
6. Indemnity If Transferee. The document whereby the Developer transfers a
Maintenance obligation to a Transferee shall be signed by both the Developer and the Transferee
and shall set forth an express assumption of Maintenance and other obligations hereunder and
shall include the following indemnification provision:
6.1 Indemnitv. The Transferee shall defend, indemnify, and hold harmless
the City, its officers, agents and employees, from any and all actions, suits,
claims, damages to persons or property, costs including attorney's fees, penalties,
obligations, errors, omissions, demands, liability, or loss of any sort (herein
"claims or liabilities"), which result from the Transferee's failure to comply with
the requirements of the obligations transferred hereby to Transferee. Transferee
shall not have any liability under this Indemnity by reason of another party's
failure to maintain. It is specifically intended that the City shall have the right to
enforce this Indemnity. This Indemnity may not be amended without the written
consent of the City Director of Planning and Building or the City Attomey.
7. Al!reemeut Applicable to Subsequeut Owners.
7.1 Al!reemeut Bindinl! Upou Anv Successive Parties. This Agreement
shall be binding upon the Developer and any Transferees upon transfer of the maintenance
obligations. This Agreement shall inure to the benefit of the successors, assigns and interests of
the parties as to any or all of the Property.
7.2 Al!reemeut Runs With the Land. The burden of the covenants contained
in this Agreement is for the benefit of the Property and the City, its successors and assigns, and
any successor-in-interest thereto. The City is deemed the beneficiary of such covenants for and
in its own right and for the purposes of protecting the interest of the community and other
parties, public or private, in whose favor and for whose benefit such covenants running with the
land have been provided, without regard to whether the City has been, remained or are owners of
any particular land or interest therein. If such covenants are breached, the City shall have the
right to exercise all rights and remedies and to maintain any actions or suits at law or in equity or
other proper proceedings to enforce the curing of such breach to which it or any other
beneficiaries of this Agreement and the covenants may be entitled.
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8. Governin!! Law. This Agreement shall be governed and construed in accordance
with the laws of the State of California.
9. Effective Date. The terms and conditions of this Agreement shall be effective as
of the date this Agreement is recorded in the Official Records of the San Diego Countv
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Recorder's Office.
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10. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be original and all of which shall constitute one and the same document.
11. Recordin!!. The parties shall cause this Agreement to be recorded in the Official
Records of the San Diego County Recorder's Office not later than 30 days from the date of the
Council approval of this Agreement.
12. Miscellaneous Provisions.
12.1 Notices. Unless otherwise provided in this Agreement or by law, any and
all notices required or permitted by this Agreement or by law to be served on or delivered to
either party shall be in writing and shall be deemed duly served, delivered and received when
personally delivered to the party to whom it is directed or, in lieu thereof, when three (3)
business days have elapsed following deposit in the United States mail, certified or registered
mail, return receipt requested, first-class postage prepaid, addressed to the address indicated in
this Agreement or within one (I) business day after deposit within a nationally recognized
overnight courier. A party may change such address for the purpose of this Paragraph by giving
written notice of such change to the other party.
If to City:
CITY OF CHULA VISTA
Department of Engineering
276 Fourth Avenue
Chula Vista, CA 91910
Attn: Deputy Director of Engineering
If to the DEVELOPER:
GGP - Otay Ranch, L.P.
110 North Wacker drive
Chicago, lllinois 60606
Attn: General Counsel
Telephone: (312) 960-5000
Facsimile No.: (312) 960-5475
12.2 Captions. Captions in this Agreement are inserted for convenience of
reference and do not define, describe or limit the scope or intent of this Agreement or any of its
terms.
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12.3 Entire Ae:reement. This Agreement, together with any other written
document referred to herein, embody the entire agreement and understanding between the parties
regarding the subject matter hereof, and any and all prior or contemporaneous oral or written
representations, agreements, understandings and/or statements shall be of no force and effect.
This Agreement is not intended to supersede or amend any o,ther agreement between the parties
unless expressly noted. .. .,
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12.4 Recitals; Exhibits. Any recitals set forth above and any attached exhibits
are incorporated by reference into this Agreement.
12.5 Compliance With Laws. In the performance of its obligations under this
Agreement, the parties, its agents and employees, shall comply with any and all applicable
federal, state and local rules, regulations, ordinances, policies, permits and approvals.
12.6 Authoritv of Sie:natories. Each signatory and party hereto hereby
warrants and represents to the other party that it has legal authority and capacity and direction
from its principal to enter into this Agreement, and that all resolutions and/or other actions have
been taken so as to enable said signatory to enter into this Agreement.
12.7 Modification. This Agreement may not be modified, terminated or
rescinded, in whole or in part, except by written instrument duly executed and acknowledged by
the parties hereto, their successors or assigns, and duly recorded in the Official Records of the
San Diego County Recorder's Office.
12.8 Severability. If any term, covenant or condition of this Agreement or the
application thereof to any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Agreement, or the application of such term, covenant or
condition to person or circumstance, shall not be affected thereby and each term, covenant or
condition shall be valid and be enforced to the fullest extent permitted by law.
12.9 Preparation of Ae:reement. No inference, assumption or presumption
shall be drawn from the fact that a party or its attorney prepared and/or drafted this Agreement.
It shall be conclusively presumed that both parties participated equally in the preparation and/or
drafting of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
the day and year first set forth above.
(next page is Signature Page)
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Signature Page uP - Omy?Avo-l c: ?
to Agre=ent betl:veen City of Chula Vista and crc Ldul;bL, L.P,
For Grant of Easements and Maintenance Agreement (Dedicated Easements)
GGr- 01'R-(~~,?
IN WITNESS WHEREOF, City and ere r:~lL.dw, .i..r:, have executed this Agreement
thereby indicating that they have read and understood same, ancfindicate their full and complete
consent to its terms:
City of Chula Vista
By:
Stephen C. Padilla, Mayor
Attest:
Susan Bigelow, City Clerk
Approved as to form:
Ann Moore, City Attorney
Dated:
GGP - Otay Ranch, L.P " a Delaware limited
partnership
By: GGP - Otay Ranch, L.L.C" a Delaware
limited liability company, its General Partner
By: GGP / Homart II L.L.C., a Delaware
limited liability company, its sole member
By:A~
1/ Authorized Officer
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STATE OF ILLINOIS
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COUNTY OF .COOK
On Lv. k L- C 6'('~ , a Notary Public,
person lyappeared L..:t ..:. , personally known to me (or proved
to me on the basis of satisfactory evidence) to be the person~s) whose name(s) is/are subscribed
to the within instrument and acknowledged to me that he/8tJ.e/they executed the same in
hislber/their authorized capacity(ies), and that by hislber/their signature(s) on the instrument the
person(s), or entity upon behalf of which the person(s) acted, executed the instrument.
WI'TN"E S my hand and official seal.
"OFFICIAL SEAL"
U:SLEE C TORNABENI
i''; Gtary Public, Slate of Illinois
My Commission Expires 11/4/2009
Place Notary Seal Above
Signature of Notary Public
STATE OF CALIFORNIA
)
) SS.
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COUNTY OF SAN DIEGO
On , 2005, before me, , a Notary Public,
personally appeared , personally known to me (or proved
to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed
to the within instrument and acknowledged to me that he/she/they executed the same in
hislber/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature of Notary Public
Place Notary Seal Above
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Exhibits
Exhibit A............................................................................................ Legal Description of Property
Exhibit B and Exhibit B-1........................................................iDeveloper Maintained Public Areas
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Exhibit C .................................................................... Description of Maintenance Responsibilities
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Exhibit "A"
Legal Description of Developer's Property
Otay Ranch Town Center,
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LOTS 1 THROUGH 6 OF CHULA VISTA TRACT NO. 05-02, OT A Y RANCH FREEWAY
COMMERCIAL SECTIONAL PLANNING AREA, ACCORDING TO MAP THEREOF NO.
15037, FILED IN THE OFFICE OF THE COUNTY RECORDER OF S^"~ DIEGO COUNTY
ON JUNE 30, 2005
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OTAY RANCH TOWN CENTER
GENERAL GROWTH PROPERTIES
MAINTENANCE RESPONSIBILITY MAP
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Exhibit "C"
Description of Maintenance Responsibilities
Otay Ranch Town Center
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. City
AREAS DEVELOPER
MAINTAINS Maintains
-Landscaped parkways along All landscaping and irrigation Public facilities not being
the westerly side of East lake improvements (including maintained by Developer
Parkway, and full landscaped landscape, provision of such as: concrete sidewalks,
median improvements on irrigation water, and irrigated curbs, street lights, asphalt
Eastlake Parkway between improvements) to be and appurtenant equipment,
Kestrel Falls and Birch Road. maintained and replaced at a traffic signals and directional
level equal to or better than the signs and appurtenant
- Northerly and southerly level of maintenance and equipment and line painting
landscaped parkways, full replacement acceptable to the and street drainage.
landscaped medians, along Director of Public Works
Birch Road until such time Operations, at his/her good
that the City approves a faith discretion, equivalent to
different fmancing mechanism other City or Community
for maintaining said southerly Facilities District maintained
parkways and fair share of right-of-way facilities.
median improvements,
- Landscape improvements
located within the proposed
BRT right-of-way until such
time that this right-of-way is
ultimately conveyed to
SANDAG
- Easterly and westerly
landscaped parkways and full
landscaped median along
Town Center Drive until such
time that the City approves a
different financing mechanism
for maintaining said
improvements.
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