HomeMy WebLinkAboutRDA Packet 2005/07/26
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ellY OF
TUESDAY. JULY 26,2005 CHUlA VISTA
6:00 P.M.
(immediately following the City Council meeting)
COUNCIL CHAMBERS
PUBLIC SERVICES BUILDING
MEETING OF THE REDEVELOPMENT AGENCY
OF THE CITY OF CHULA VISTA
CALL TO ORDER
ROLL CALL
Agency Members Castaneda, Davis, McCann, Rindone; Chair Padilla
CONSENT CALENDAR
The staff recommendations regarding the following item(s) listed under the Consent Calendar will be enacted
by the Agency by one motion without discussion unless an Agency member, a member of the public or City
staff requests that the item be pulled for discussion. If you wish to speak on one of these items, please fill out
a "Request to Speak Form" available in the lobby and submit it to the City Clerk prior to the meeting. Items
pulled from the Consent Calendar will be discussed after Public Hearing items. Items pulled by the public will
be the first items of business.
1. APPROVAL OF MINUTES - June 28, 2005 (2)
ORAL COMMUNICATIONS
This is an opportunity for the general public to address the Redevelopment Agency on any subject matter
within the Agency's jurisdiction that is not an item on this agenda. (State law, however, generally prohibits
the Redevelopment Agency from taking action on any issues not included on the posted agenda.) If you wish
to address the Agency on such a subject, please complete the "Request to Speak Under Oral Communications
Form" available in the lobby and submit it to the Secretary to the Redevelopment Agency or City Clerk prior to
the meeting. Those who wish to speak, please give your name and address for record purposes and follow up
action.
ACTION ITEMS
The items listed in this section of the agenda are expected to elicit substantial discussions and deliberations by
the Agency, staff, or members of the general public. The items will be considered individually by the Agency
and staff recommendation may in certain cases be presented in the alternative. Those who wish to speak,
please fill out a Request to Speak form available in the lobby and submit it to the City Clerk prior to the
meeting.
2. CONSIDERATION OF EXCLUSIVE NEGOTIATING AGREEMENTS FOR FIVE
PROPERTIES WITH VARIOUS DEVELOPERS LOCATED WITHIN THE TOWN
CENTRE I AND MERGED REDEVELOPMENT PROJECT AREAS OF THE CITY
OF CHULA VISTA
Establishment of a refined Exclusive Negotiating Agreement process with
qualified developers for five properties located within the Town Centre I and
Merged redevelopment project areas of the City of Chula Vista. [Community
Development Director]
STAFF RECOMMENDATION:
Agency adopt the following resolutions:
a. RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF
CHULA VISTA APPROVING AN EXCLUSIVE NEGOTIATING
AGREEMENT BETWEEN THE REDEVELOPMENT AGENCY AND
DOUGLAS WILSON COMPANIES REGARDING THE REDEVELOPMENT
OF THE LANDIS AVENUE NORTH SITE
b. RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF
CHULA VISTA APPROVING AN EXCLUSIVE NEGOTIATING
AGREEMENT BETWEEN THE REDEVELOPMENT AGENCY AND
CITYMARK DEVELOPMENT LLC REGARDING THE REDEVELOPMENT
OF THE LANDIS AVENUE SOUTH SITE
c. RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF
CHULA VISTA APPROVING AN EXCLUSIVE NEGOTIATING
AGREEMENT BETWEEN THE REDEVELOPMENT AGENCY AND
CITYMARK DEVELOPMENT LLC REGARDING THE REDEVELOPMENT
OF THE THIRD AVENUE AND E STREET NORTHEAST SITE
d. RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF
CHULA VISTA APPROVING AN EXCLUSIVE NEGOTIATING
AGREEMENT BETWEEN THE REDEVELOPMENT AGENCY AND A VION
DEVELOPMENT LLC REGARDING THE REDEVELOPMENT OF THE
THIRD AVENUE AND E STREET SOUTHEAST SITE
e. RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF
CHULA VISTA APPROVING AN EXCLUSIVE NEGOTIATING
AGREEMENT BETWEEN THE REDEVELOPMENT AGENCY AND
INTERGULF-MARK (PARK) LLC REGARDING THE REDEVELOPMENT
OF THE THIRD AVENUE AND G STREET NORTHWEST SITE
OTHER BUSINESS
3. DIRECTOR'S REPORT
4. CHAIR REPORT
5. AGENCY COMMENTS
ADJOURNMENT
The Redevelopment Agency will adjourn to an adjourned meeting on August 9,
2005, at 4:00 p.m., in the Council Chambers.
AMERICANS WITH DISABILITIES ACT
The City of Chula Vista, in complying with the Americans with Disabilities Act (ADA), request individuals who
require special accommodates to access, attend, and/or participate in a City meeting, activity, or service
request such accommodation at least 48 hours in advance for meetings and five days for scheduled services
and activities. Please contact the Secretary to the Redevelopment Agency for specific information at (619)
691-5047 or Telecommunications Devices for the Deaf (TOO) at (619) 585-5647. California Relay Service is
also available for the hearing impaired.
RDA/City Council, July 26, 2005
Page 2
MINUTES OF ADJOURNED REGULAR MEETINGS
OF THE CITY COUNCIL
AND REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA
June 28, 2005
6:00 p.m.
Adjourned Regular Meetings of the City Council and Redevelopment Agency were called to
order at 6: 11 p.m. in the Council Chambers, located in the Public Services Building, 276 Fourth
Avenue, Chula Vista, California
ROLL CALL:
PRESENT: CounciVAgency Members Castaneda, Davis, McCann, Rindone
and Mayor/Chair Padilla
ABSENT: None
ALSO PRESENT: City Manager/Executive Director Rowlands, City Attorney/
Agency Counsel Moore, City Clerk Bigelow
CONSENT CALENDAR
1. APPROVAL OF MINUTES - May 24,2005; and June 7, 2005
Staff recommendation: Council/Agency approve the minutes.
2, REDEVELOPMENT AGENCY RESOLUTION NO. 1912, RESOLUTION OF THE
REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA AMENDING
RESOLUTION NO.1 WHICH ADOPTED CERTAIN RULES AND REGULATIONS
FOR SAID REDEVELOPMENT AGENCY
Staff recommendation: Agency adopt the resolution as presented in the alternative
documents packet at the May 24, 2005 meeting.
ACTION:
Council/Agency Member Rindone moved to approve staff's recommendations
and offered the Consent Calendar, headings read, texts waived. Councilmember
Castaneda seconded the motion, and it carried 5-0,
ORAL COMMUNICATIONS
There were none.
T
ACTION ITEMS
3. PRESENTATION BY GAYLORD ENTERTAINMENT REGARDING ITS INTEREST
IN DEVELOPMENT OF A MAJOR HOTEL AND CONFERENCE/
ENTERTAINMENT CENTER ON THE CHULA VISTA BAYFRONT
Gaylord Entertainment (Gaylord) is a publicly traded company that has developed and
operates award-winning large-scale convention center resort hotels in several locations
across the United States. The company has expressed interest in developing a West
Coast flagship hotel/conference center on the Chula Vista bayfront. (Director of
Community Development)
Community Development Director Madigan introduced Port Planning Director Ralph Hicks,
Port Commission Chair Bill Hall, and Community Development Project Manager Lisa Lukes, all
of whom are or will be involved with the subject project if it moves forward. She then provided
an overview of discussions with Gaylord Entertainment and the company's presentations to the
Port District and Citizen's Advisory Committee,
Council! Agency Members viewed and listened to a presentation by Gaylord Entertainment
Senior Vice President of Development Bennett Westbrook and Executive Vice President & Chief
Operating Officer Jay Sevigny on information about the company, other Gaylord projects, and
the company's interest in and concept for developing a unique property on the Chula Vista
waterfront
Councilmember Castaneda expressed concern with the apparent "sealed compound" concept,
which he believed to be similar to that found in Atlantic City. Mr. Sevigny responded that the
intent was not in any way to create a sealed compound. He urged the Council to contact leaders
of the Grapevine community, who have found that their Gaylord project overflows into the
downtown area and generates much more revenue for that city than ever expected.
Counci1member Rindone expressed the need for a facility that provides an attraction/destination
and access via entertainment venues for the local community as well as conventioneers,
suggesting perhaps an alternative of water features for public access,
Mike Meeks spoke in support of the Gaylord concept and commended the Council/Agency
Members on their work to improve the City. He asked that they ensure that Chula Vista remains
one city, rather than become two, with one east ofI-805 and the other west ofI-805.
Richard Campbell, representing Pacifica Companies, spoke in support of the Gaylord concept
and stated that his company did not consider them to be competition as they support a special
"niche."
Tina Medina, representing the Chula Vista Convention & Visitor's Bureau, spoke in support of
the Gaylord concept, noting that the project would bring and keep business in the City.
Page 2 CouncillRDA Minutes
06/28/05
ACTION ITEMS (Continued)
Jack Blakely, representing the Citizen's Advisory Committee, spoke in support of the Gaylord
concept and noted that another Gaylord facility provides its guests with a free shuttle from the
hotel to downtown,
Paul Nieto, speaking as a Chula Vista resident, a member of the Greater San Diego Economic
Development Committee Board of Directors, and the South County representative to the Airport
Authority, spoke in support of the Gaylord concept and the boost it would provide for tourism.
Lisa Cohen, representing the Chula Vista Chamber of Commerce, stated the Chamber Board of
Directors fully supports the Gaylord concept.
Chris Lewis, representing the Chula Vista Chamber of Commerce and the Citizen's Advisory
Committee, spoke in support of the Gaylord concept and expressed excitement about the small
business opportunities that will provide a win-win situation for the entire community.
Scott Vinson, Vice-President of the Chula Vista Chamber of Commerce, spoke in support of the
Gaylord concept.
Brigette Browning, representing Unite Here, Local 30, the San Diego Hotel/Restaurant Union,
supported the Gaylord concept providing that it brings quality jobs and meets local hiring
requirements.
Pamela Sherman asked about Transient Occupancy Tax and also expressed disappointment with
the Eastlake development and lack of environmental concerns. She suggested that the westside
growth should be better controlled, developments should reflect our Spanish! American heritage,
money made should stay within the local community by hiring local people and businesses, and
the public should be given access to the bayfront.
Councilmember McCann stated that Gaylord is only one component of the overall plan, the goal
of which is to generate money for schools, parks, roads, fire, police and quality jobs. Facilities
are needed for proms, as well as for business meetings and banquets. He also commented that
local citizens need to feel included in the process.
Deputy Mayor Davis expressed the need for a "WOW" on the baYfront
Mayor Padilla encouraged the Port to continue discussions with Gaylord, and Gaylord to
continue engaging the community. He reported that on July 8, he would travel to Dallas, Texas
to meet with Gaylord officials and view their project.
The proposed project was presented to the Council for informational purposes only, and no
formal Council action was taken.
Page 3 CounciVRDA Minutes
06/28/05
ACTION ITEMS (Continued)
4, CONSIDERATION OF A SELECTION PROCESS FOR THE APPOINTMENT OF
INDEPENDENT DIRECTORS TO THE CHULA VISTA REDEVELOPMENT
CORPORATION (CVRC)
On May 24,2005, the Council/Agency jointly approved and adopted legal and operating
documents for the Chula Vista Redevelopment Corporation (CVRC). In addition, the
Council directed staff to develop and make recommendations on a selection process for
the appointment of the independent directors of the CVRC Board. (Director of
Community Development)
STAFF RECOMMENDATION: The Council/Agency: I) choose a selection process
from one of the following two alternatives and adopt the corresponding resolution; and 2)
direct staff to proceed with preparation of application materials for a 45-day noticing
period.
Alternative 1 -The screening committee consists of two council members who will
forward qualified candidates in each category to the full Council for interviews, selection,
and appointment.
- or-
Alternative 2 - Each council member screens all applications and forwards their
recommended applicants to the full Council for interviews, selection, and appointment.
Community Development Assistant Director Smith provided a brief overview,
Council/Agency Member Rindone suggested that the noticing be reduced to 30 days and spoke
in support of Alternative 2.
Council/Agency Member Davis also supported a 30-day noticing period and Alternative 2.
ACTION:
Council/ Agency Member Rindone moved to approve a 30-day noticing period,
which is to be printed on the application materials, and offered the joint resolution
approving Alternative 2, heading read text waived:
COUNCIL RESOLUTION NO. 2005-211 AND REDEVELOPMENT
AGENCY RESOLUTION NO. 1913 OF THE CITY OF CHULA VISTA
APPROVING AND ADOPTING AN INITIAL SELECTION PROCESS
FOR INDEPENDENT DIRECTORS ON THE CHULA VISTA
REDEVELOPMENT CORPORATION
Councilmember McCann seconded the motion, and it carried 5-0.
Council/Agency Member Rindone asked that the positions be widely publicized in region
newspapers and also published on the City's website. Community Development Director
Madigan stated staff would work with staff from the Office of Communications to get the word
out and also issue notices to various professional organizations.
Page 4 Council/RDA Minutes
06/28/05
OTHER BUSINESS
5, CITY MANAGERlEXECUTIVE DIRECTOR'S REPORTS
There were none.
6. MAYOR/CHAIR'S REPORTS
There were none.
7. COUNCIL/AGENCY COMMENTS
There were none.
CLOSED SESSION
8. PUBLIC EMPLOYEE APPOINTMENT - Pursuant to Government Code Section 54957
Title: Executive Director
Mayor Padilla noted that Item 8 was removed from the agenda. It was not discussed.
9. CONFERENCE WITH LEGAL COUNSEL REGARDING INITIATION OF
LITIGATION PURSUANT TO GOVERNMENT CODE SECTION 54956.9(C)
One case
No reportable action was taken on this item.
ADJOURNMENT
At 9:30 p.m., Mayor/Chair Padilla adjourned the Adjourned Regular Meeting of the
Redevelopment Agency to an Adjourned Regular Meeting on July 12, 2005 at 6:00 p.m. in the
Council Chambers,
~~'({~
Susan Bigelow, MMC, City Clerk
Page 5 CouncillRDA Minutes
06/28/05
MINUTES OF ADJOURNED REGULAR MEETINGS OF THE CITY COUNCIL
AND REDEVELOPMENT AGENCY AND A SPECIAL MEETING OF THE HOUSING
AUTHORITY OF THE CITY OF CHULA VISTA
June 28, 2005
6:00 p.m.
Adjourned Regular Meetings of the City Council and Redevelopment Agency and a Special
Meeting of the Housing Authority were called to order at 7:50 p.m. in the Council Chambers,
located in the Public Services Building, 276 Fourth Avenue, Chu1a Vista, California
ROLL CALL:
PRESENT: Council/Agency/Authority Members Castaneda, Davis, McCann,
Rindone and Mayor/Chair Padilla
ABSENT: None
ALSO PRESENT: City Manager/Executive Director Rowlands, City Attorney/
Agency/Authority Counsel Moore and City Clerk Bigelow
ORAL COMMUNICATIONS
There were none.
PUBLIC HEARING OF THE CITY COUNCIL, REDEVELOPMENT AGENCY AND
HOUSING AUTHORITY
1. CONSIDERATION AND ADOPTION OF THE OPERATING AND CAPITAL
IMPROVEMENT BUDGETS FOR THE CITY AND THE OPERATING BUDGETS
FOR THE REDEVELOPMENT AGENCY AND THE HOUSING AUTHORITY FOR
FISCAL YEARS 2006 AND 2007
Notice of the hearing was given in accordance with legal requirements, and the hearing was held
on the date and at the time specified in the notice.
Mayor/Chair Padilla opened the public hearing,
CounciV Agency/Authority Member Rindone stated that he would abstain from discussion and
voting on Items 1A and 1D due to the proximity of his property to the subject project and area.
CounciV Agency/ Authority Member McCann stated that he would abstain from discussion and
voting on Items 1B and lD due to the proximity of his property to the subject project and area,
Budget & Analysis Director Van Eenoo summarized the final budget and highlighted changes
from the budget as initially proposed.
CounciV Agency/ Authority Member Castaneda expressed concern regarding the Port taking over
the maintenance of the Port parks located within the City and expressed the need to ensure that
the parks would continue to have the high quality maintenance level previously provided by the
City. Public Works Operations Director Byers expressed concern as well, stating that the Port
had requested that the City reduce staff and maintenance in the parks, He, in turn, had impressed
upon Port staff the importance of the maintenance activities in the parks. City
ManagerlExecutive Director Rowlands stated that he had contacted Port Commission Chairman
Hall, who personally relayed to Port staff the City's request to sustain the high level of
maintenance.
T
PUBLIC HEARING (Continued)
Council/Agency/Authority Member Rindone requested that staffing for the grants division be
reviewed prior to the holiday season rather than midway through the fiscal year. He also
requested an explanation of the historic home preservation program fees as referenced in
Councilmember Castaneda's budget memo to the Council. Budget & Analysis Director Van
Eenoo stated that the fees include $500-for historic designation, $150 for a sign, and $240 for the
Mills Act application, which provides tax benefits to the homeowner. These fees were adopted
by resolution of the Council in November 2004. There were no fees prior to that date. He also
mentioned that approximately six applications are processed annually, and the fees cover 30% of
staff costs.
City Manager/Executive Director Rowlands stated that staff views participation in the program
as an asset to the City. There would be a nominal cost to waive the fees, which would send a
positive message to people in the community regarding the program. This could be done with
Council direction.
Deputy Mayor/Agency/ Authority Member Davis noted that most fees cover staff costs, while in
this case they only cover 30%; plus the homeowner receives a tax savings through the Mills Act.
She stated her preference to retain the fees at this time and re-examine them later upon receipt of
additional information.
Council/Agency/Authority Member Castaneda provided an overview of his understanding of the
historic home program and the Mills Act; and proposed waiving the fees on a one-year trial basis
to garner more support for the program. He also asked about extended hours for recreation
programs, and Recreation Director Martin responded that the Lorna Verde Recreation Center
would now be open on Sunday afternoons.
Council/Agency/Authority Member Castaneda discussed additional items contained in his
budget memo, including (1) establishing neighborhood councils to involve neighborhoods and
understand their priorities as the Council moves forward with redevelopment; and (2) additional
funding to deal with mobilehome issues. He commented that he supported the City Manager's
recommendation to increase City support of the South County Economic Development Council
(EDe) by $15,000.
Deputy Mayor/Agency/Authority Member Davis stated that she had just received
Council/Agency/Authority Member Castaneda's memo, which did not include dollar amounts,
and she suggested that a more detailed plan be brought back on the items prior to their
incorporation into the budget. She expressed her concern that neighborhood councils could
potentially divide the City; and she also believed that mobilehome issues should be handled on a
case-by-case basis, with staff bringing forward any concerns for Council consideration.
Council! Agency/ Authority Member Castaneda responded that he had not included dollar
amounts, as these were just ideas for the Council to consider in terms of direction to refine the
budget.
Page 2 CouncillRDAlHA Minutes
06/28/05
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PUBLIC HEARING (Continued)
Mayor/Chair Padilla recommended that the Council direct staff to report back on the proposed
neighborhood councils and the mobilehome issues, including professional staffing for the
commission, for discussion during the mid-year budget review.
Council/Agency/Authority Member McCann stated he too would like to explore the idea of
neighborhood councils and how they would be handled as planning or input groups. He
requested a report on what other cities are doing with respect to such groups, including staffing
expenses. He also requested a report from staff on enforcement mechanisms with regard to
mobilehome issues and expressed appreciation for the additional funding recommended for the
South County EDC.
In response to an inquiry made by Council/Agency/Authority Member Rindone,
Council/Agency/Authority Member McCann, as representative to the South County EDC, stated
that the additional funding would support reorganized operations that are more focused than in
past years, such as working with the Community Development loan program to help businesses
expand or relocate to the City. He emphasized that the group is solely focused on the South Bay.
Council/Agency/Authority Member Rindone stated he would support the additional funding for
EDC this year only; and he requested a report/analysis on the group's increased productivity
prior to agreeing to future funding. He also said he supported Counci1member Castaneda and
Mayor Padilla in their concerns regarding the mobilehome issues, stating that if sufficient
support is not being provided, action needs to be taken sooner rather than later, and staff needs to
provide an analysis to the Council.
City Manager/Executive Director Rowlands clarified an item concerning the conversion of
hourly staff to four full-time, benefited Council Aide positions in the Mayor and Council's
budget.
City Attorney/Agency/Authority Counsel Moore noted that Item 1E was revised only to correct
clerical errors.
There being no members of the public who wished to speak, Mayor/Chair Padilla closed the
public hearing.
ACTION:
Council/Agency/Authority Member Davis offered Items 1A through 1F, including
revisions to 1 E, headings read, texts waived:
A, RESOLUTION NO. 2005-224, RESOLUTION OF THE CITY
COUNCIL OF THE CITY OF CHULA VISTA ADOPTING THE
CAPITAL IMPROVEMENT BUDGET FOR PROJECT STL309 FOR
FISCAL YEARS 2006 AND 2007 AND APPROPRIATING FUNDS
FOR THE FISCAL YEAR ENDING JUNE 30, 2006
B. RESOLUTION NO. 2005-225, RESOLUTION OF THE CITY
COUNCIL OF THE CITY OF CHULA VISTA ADOPTING THE
CAPITAL IMPROVEMENT BUDGET FOR PROJECTS OP207 AND
STL299 FOR FISCAL YEAR 2006 AND APPROPRIATING FUNDS
THEREFOR
Page 3 CouncillRDAlHA Minutes
06/28/05
T
PUBLIC HEARING (Continued)
C. RESOLUTION NO. 2005-226, RESOLUTION OF THE CITY
COUNCIL OF THE CITY OF CHULA VISTA ADOPTING THE
OPERATING AND CAPITAL IMPROVEMENT BUDGETS FOR THE
CITY OF CHULA VISTA EXCLUDING CAPITAL PROJECTS
STL309, OP207, AND STL299 FOR FISCAL YEARS 2006 AND 2007
AND APPROPRIATING FUNDS FOR THE FISCAL YEAR ENDING
JUNE 30, 2006
D. RESOLUTION NO. 1914, RESOLUTION OF THE REDEVELOPMENT
AGENCY OF THE CITY OF CHULA VISTA ADOPTING THE
OPERATING AND CAPITAL IMPROVEMENT BUDGETS FOR THE
SOUTHWEST/TOWNE CENTER IIIOTAY VALLEY PROJECT AREA
FOR FISCAL YEARS 2006 AND 2007 AND APPROPRIATING
FUNDS FOR THE FISCAL YEAR ENDING JUNE 30, 2006
E. REDEVELOPMENT AGENCY RESOLUTION NO. 1915 AND
HOUSING AUTHORITY RESOLUTION NO. 2005-27 OF THE CITY
OF CHULA VISTA ADOPTING THE OPERATING AND CAPITAL
~ROVEMENTBUDGETSFORTHEREDEVELOPMENTAGENCY
AND HOUSING AUTHORITY EXCLUDING SOUTHWEST/TOWNE
CENTER IIIOT A Y V ALLEY PROJECT AREA FOR FISCAL YEARS
2006 AND 2007 AND APPROPRIATING FUNDS FOR THE FISCAL
YEAR ENDING JUNE 30, 2006
F. ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA
VISTA AMENDING CHULA VISTA MUNICIPAL CODE SECTION
2,05.010 RELATING TO THE ESTABLISHMENT OF UNCLASSIFIED
POSITIONS TO ADD THE POSITION OF SENIOR COUNCIL
ASSISTANT (FIRST READING- 4/5th VOTE REQUIRED)
The motion carried 5-0, except as noted: Item 1A carried 4-0-1 with
Council/Agency/Authority Member Rindone abstaining; Item 1B carried 4-0-1 with
Council/Agency/Authority Member McCann abstaining; and Item 1D carried 3-0-2 with
Council/ Agency/ Authority Members McCann and Rindone abstaining.
OTHER BUSINESS
2. CITY MANAGERlEXECUTIVE DIRECTOR'S REPORTS
There were none.
3. MAYOR/CHAIR'S REPORTS
Mayor/Chair Padilla introduced and welcomed new Council Constituent Services Manager,
Zaneta Encarnacion, also known as "Z".
Page 4 CounciVRDAlHA Minutes
06/28/05
OTHER BUSINESS (Continued)
4. COUNCIL/AGENCY/AUTHORITY'S COMMENTS
Council/Agency/Authority Member Rindone complimented the City Clerk, who in turn
complimented her staff and Community Development Department staff, on the agenda packet
format.
Council/ Agency/Authority Member McCann wished all a happy Fourth of July.
ADJOURNMENT
At 8:44 p.m., Mayor/Chair Padilla adjourned the Special Meeting of the Housing Authority until
further notice,
~~~?f~
Susan Bigelow, MMC, City Clerk
Page 5 Council/RDA/HA Minutes
06/28/05
REDEVELOPMENT AGENCY
AGENDA STATEMENT
ITEM NO.:
MEETING DATE:
Oh'T9?05
.-
7;u, -0:"
ITEM TITLE:
APPROVAL OF EXCLUSIVE NEGOTIATING AGREEMENTS FOR FIVE
PROPERTIES WITH VARIOUS DEVELOPERS LOCATED WITHIN THE TOWN
CENTRE I AND MERGED REDEVELOPMENT PROJECT AREAS OF THE CITY
OF CHULA VISTA THROUGH THE FOLLOWING RESOLUTIONS:
A. RESOLUTION APPROVING AN EXCLUSIVE NEGOTIATING
AGREEMENT BElWEEN THE REDEVELOPMENT AGENCY AND
DOUGLAS WILSON COMPANIES REGARDING THE
REDEVELOPMENT OF THE LANDIS AVENUE NORTH SITE
B. RESOlUTION APPROVING AN EXCLUSIVE NEGOTIATING
AGREEMENT BElWEEN THE REDEVELOPMENT AGENCY AND
CITYMARK DEVELOPMENT LLC REGARDING THE REDEVELOPMENT
OF THE LANDIS AVENUE SOUTH SITE
C. RESOLUTION APPROVING AN EXCLUSIVE NEGOTIATING
AGREEMENT BETWEEN THE REDEVELOPMENT AGENCY AND
CITYMARK DEVELOPMENT LLC REGARDING THE REDEVELOPMENT
OF THE THIRD AVENUE & E STREET NORTHEAST SITE
D. RESOlUTION APPROVING AN EXCLUSIVE NEGOTIATING
AGREEMENT BElWEEN THE REDEVELOPMENT AGENCY AND
AVION DEVELOPMENT LLC REGARDING THE REDEVELOPMENT OF
THE THIRD AVENUE & E STREET SOUTHEAST SITE
E. RESOLUTION APPROVING AN EXCLUSIVE
AGREEMENT BETWEEN THE REDEVELOPMENT
INTERGULF-MAR (PARK) LLC OF THE THIRD
NORTHWEST SITE ~
COMMUNITY DEVELOPMENT DIRECTOR(-' It ./
EXECUTIVE DIRECTOR,/V "
NEGOTIATING
AGENCY AND
AVENUE & G
SUBMITTED BY:
REVIEWED BY:
4/5THS VOTE: YES D NO 0
BACKGROUND
The success of Chulo Visto's redevelopment activities is highly dependent upon the City's efforts
to time projects to take advantage of market opportunities and to respond quickly to the needs of
investors when markets are strong. To accomplish the redevelopment goals outlined by the
Council and to position the Agency to attract quality development to Chula Vista, the Community
2-1
PAGE 2, ITEM NO.:
MEETING DATE: 7/19/95
(- 2b -0:;-
Development Department has made significant organizational, structural, and procedural
changes in the ways the organization works with private investors and developers. These changes
include the approval of the Chula Vista Redevelopment Corporation which will bring focused
attention to redevelopment and a refined Exclusive Negotiating Agreement (ENA) process that
places emphasis on choosing highly qualified developers rather than reacting to developer
projects.
As directed by the Mayor ond City Council, staff is focused on Westside revitalization and the
opportunities that exist in this area. In keeping with that direction, this staff report brings forward
five (5) prospective development sites located within the Urban Core with five (5) separate ENAs
with qualified developers. Entering into these ENAs at this time will ollow the Agency to formalize
relationships with developers and establish timeframes and obligations for the development
process and for creation of development proposals unique to each site. The ENAs will also
establish requirements for workshops ond dialogue with members of the public. The
recommended developers and proposol sites are listed below.
1.
2.
3.
4.
5.
Douglos Wilson Companies
CityMark Development LLC
CityMark Development LLC
Avion Development LLC
lntergulf-Mar (Park) LLC
Landis Avenue North
Landis Avenue South
Third Avenue & E Street Northeast
Third Avenue & E Street Southeast
Third Avenue & G Northwest
The following staff report provides information about the recent establishment of 0 qualification
process for developers, a description of the Exclusive Negotiating Agreements, introductions to
the proposed development teams, and a brief overview of some of the issues propelling the
timing of the ENAs.
RECOMMENDATIONS
Staff recommends that the Redevelopment Agency adopt resolutions approving and authorizing
the Chair to execute Exclusive Negotiating Agreements with qualified developers for five
properties located within the Town Centre I and Merged redevelopment project areas of the City
of Chula Vista.
BOARDS/COMMISSIONS RECOMMENDATIONS
Not Applicable.
DISCUSSION
The City Council has directed staff to focus its redevelopment efforts in the Urban Core. In
response, staff has focused its energies on properties located in the Town Centre I and Merged
Redevelopment Project Areas, which encompass the downtown Urban Core of the City. Chula
Vista's redevelopment project areas and the downtown Urban Core are prime for new
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development, reconstruction, and rehabilitation opportunities. Under current economic and
market conditions, the opportunities for redevelopment in Chula Vista are immense. If, however,
the Agency fails to take advantage of the current market conditions by not acting expeditiously,
those opportunities could quickly disappear. The Council's/Agency's leadership to proactively
plan for redevelopment opportunities is crucial to revitalizing the west.
PAGE 3, ITEM NO.:
MEETING DATE:
It is important to emphasize that three (3) of the five (5) proposed development sites include
properties owned by the Agency (see Attachment A). Since site control is a significant factor in the
timely development of proposed projects, making use of existing underutilized sites that are
Agency-owned ensures more influence over the development timeline. The timely utilization and
leveraging of these sites is a priority because the life of the Town Centre I (TC I) Redevelopment
Project Area is limited. The TC I project area will sunset in 2017. Without significant activity in
TC I, the City could potentially lose access to millions of dollars for public improvements and civic
amenities. With the termination of TC I in 2017, staff estimates that the Agency will have
approximately eight to ten years for these projects to generate income. Staff is recommending
moving forward with these ENAs, because of the favorable real estate and economic market
conditions and because of the limited time left to effectuate development in TC I. The timeframe
for each ENA is 300 days, which encompasses the negotiation period allowing predevelopment
work (e.g., market studies, public participation, and discussion of land uses) .
Developer Qualification and Criteria
The Community Development Department has significantly changed the manner in which
redevelopment activity is generated and analyzed. Past practices embraced a philosophy of
reactive redevelopment - that is waiting for a proposal to be shopped by any and all developers
to City staff. The current practice in Community Development assumes 0 constructive and
proactive approach based on strategic planning efforts and a developer qualification process that
allows staff to compare the relative strengths of many developers and establish qualified lists of
highly capable companies.
As Council is aware, there are many types of developers - each with their own expertise,
experience, and financial capacity. The Agency is interested in finding quality developers who
want to understand Chula Vista's interests, history, and future and who have experience building
and designing in an urban market with different niches and needs. Consequently, the RFP/Q
process did not seek development projects; rather it sought to match highly regarded developers
who specialize in specific types of projects to existing sites. The reason for this fundamental
change is that by reviewing and selecting developers who are committed to working cooperatively
with the Agency and the community, the end result'will be a development that better meets the
goals of the community, City and Agency. Additionally, it provides an opportunity to implement
the three Principles of Public Participation as adopted by the Agency/Council and to more ably
provide an open and transparent process for public review.
Qualification Process
The developer selection and qualification process consisted of a broadly advertised Request for
Qualifications or an unsolicited Statement of Interest. The Request for Qualifications process
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involved a rigorous scoring and ranking process by internal redevelopment professionals, and
formal interview by a well-noted architect and local developer (both members of the Urban Core
Steering Committee), an outside redevelopment consultant, and the City's Redevelopment
Manager. Prospective developers were required to demonstrate they had the experience and
resources needed to design and develop projects that were appropriote for the sites. Previous
direct involvement with projects of exceptional design, financial capacity and access to financing
was also considered critical in evaluating developer qualifications and experience. The criteria
considered by the selection committee were:
PAGE 4, ITEM NO.:
MEETING DATE:
[:I Corporate Profile
[:I Development experience with references
[:I Types of projects completed or underwoy
[:I Financial capacity
[:I Development team and bios
[:I Ability ond willingness to partner with the City
The recommendations for the ENAs are based upon developer qualifications for each of the
respective development sites.
Agency-Owned Sites
Two of the sites (Landis Avenue North and Landis Avenue South) involve Agency-owned
properties for which an RFQ was issued and circulated. Based on that criteria and the team's
input, staff qualified and selected CityMark Development LLC for the Landis Avenue South site
and Douglas Wilson Companies for Landis Avenue North. The Agency also owns a vacant lot
located on the southeast corner of Third Avenue and E Street. Avion Development LLC
independently submitted a Statement of Interest for this site. Upon receipt of the developer's
interest, staff requested, reviewed, and evaluated the developer's qualifications in the same
manner as the Landis sites. Based on the developer's qualifications and the unique
characteristics of the property, staff qualified and selected Avion Development LLC for the site.
Developer-Owned Sites
lntergulf-Mar (Park) LLC has submitted a Statement of Interest to develop properties located on
the northwest corner of Third Avenue and G Street. The site is the current location of the Social
Security building and is owned by the developer. Although the developer owns the site, any
development project in the TC I project area requireS' an Owner Participation Agreement with the
Agency. As such, upon receipt of the develope'r's interest, staff requested, reviewed, and
evaluated the developer's qualifications in the same manner as an Agency-owned site. Based on
the development team's qualifications and the unique characteristics of the property, staff has
qualified Intergulf-Mar (Park) LLC for the site.
Privately-Owned Sites
When the Agency receives a Statement of Interest or proposal to develop a site that is neither
owned by the Agency or developer, the Agency is required under state law and locally adopted
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PAGE 5, IIEM NO.:
MEETING DAlE: Y'9:n.JL
'-A_oS
policies to notify the property owner of the developer's interest and/or proposal and extend rights
to the owner to participate in the project through submittal by the owner of a Statement of Interest
and, if applicable, an olternative proposal. In these instances, developers may also be open to
joint proposals with owner(s) and/or arrangements with business owners or tenants to
reincorporate commercial uses into the site.
CityMark Development LLC submitted a Statement of Interest to the Agency to develop a
privotely-owned site located on the northeast corner of Third Avenue and E Street. The property
is currently held in trust and is under lease agreement with Bank of America. In accordance with
state law and the Agency's locally adopted policies, the property owner was properly notified and
extended owner participation rights. The property owners did not respond to the Agency's Owner
Participation letter, which allows stoff to request, review, and evaluate the develaper's
qualifications in the some manner as the other sites in this report. Based on CityMark
Development LLC's qualificotions ond the unique characteristics of the property, staff has
qualified CityMark Development LLC for the site. A summary of the developer's quolifications is
provided on page 7 of this report and in appendix C.
Exclusive Neaotiatina Aoreements
Purpose
An Exclusive Negotiating Agreement ("ENA") is a roadmap for the evolution of a redevelopment
project. ENAs establish a predictable and agreed upon process and timeline, and set parameters
for developers and the Agency to cooperatively design and process redevelopment projects that
meet the goals and objectives of both parties. For the Agency, the ENA process strategically
evolves a proposal from initial concept to a defined project that is consistent with relevant and
applicable plans and policies (e.g., zoning code, redevelopment plans), aligned with community
character, and designed to meet the City's strategic and economic goals for public amenities and
community revitalization.
The purposes of the ENA are summed up into following four main objectives:
o Formalize a cooperative relationship with the Developer;
o Define the roles and responsibilities of both the Developer and Agency;
o Determine the process for development, including a timeline for:
o Predevelopment activities such as design, financials, market study, etc.
o Public input and participation; and .
o Provide the necessory fromework for timeframe and actions necessary to enter into a
Disposition and Development Agreement (DDA) or Owner Participation Agreement (OPA).
In addition to the objectives listed above, ENAs provide a transparent and cooperative process for
the public, Agency, Developer, and staff to work within. The ENA is one of the most important
tools available to a Redevelopment Agency, because when structured properly, it provides clarity
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of purpose and process that is accessible ta all parties, including the public. The ENA process
therefore also provides an early, logical, and effective vehicle for public input and participation.
Public Input & Participation
In conjunction with the Agency/Council's May 24, 2005 approval of the CYRC, the
Agency/Council adopted as formal policy statements three guiding principles for public
participation:
D Public input and participation should occur early and often.
D Public input and participation should be open, inclusive, and accessible.
D Public input and participation should be educational and informative.
To facilitate the early integration of public dialogue consistent with the Council/Agency's adopted
policies, the ENA timeline will require two important public meetings as opportunities for public
input ond porticipation.
Structure
The ENAs recommended by staff in this report have been crofted by the City Attorney's office, in
partnership with redevelopment staff, and have individually been reviewed by the prospective
developers that have been qualified and selected for the proposed development sites. The
language within the ENA reflects the changes established within the redevelopment process that
now requires the qualifying of developers. As crafted, the ENA generally describes the proposed
development site, defines the negotiation period, and establishes a deposit amount.
Another important component of the ENA is the timeline, which is an attachment to the ENA.
Two main objectives that the timeline facilitates are:
1. The delineation of the required predevelopment tasks, such as completion of the
market study, site plans and elevations, financing and development analysis, etc.
2. The establishment of opportunities and vehicles for public input ond participation eorly
within the pre-design phases of the project.
Finally, the ENA provides abilities to terminate if the Developer or Agency determines that the
project is not feosible or in the public interest.
Qualified Developers and Proposal Sites
The following are brief overviews of each of the Developers and their proposed development sites
that are being considered for ENAs. For complete Developer biographies and more information
regarding the proposed development sites, please refer to the Attachments as attached.
.
Douglas Wilson Companies is an experienced developer of mixed-use
urban infill projects in the San Diego area, including Parkloft, The
Mark, and Symphony Towers. The site, known as Landis Avenue
Douglas Wilson Companies
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MEETING DATE:
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North, is an approximate 29,319 square foot rectangular parcel located on the northeast corner
of Davidson Street and Landis Avenue. The site is publicly owned by the Redevelopment Agency,
and its current use is a metered parking lot. See Attachment B.
CityMark Development LLC ("CityMark) is an urban residential and
mixed-use development company based in San Diego and founded in
2000. CityMark primarily develops low-rise and mid-rise residential
projects, including condominiums and mixed-use developments
incorporating retail and office space. CityMark is interested in developing the Landis Avenue
South site, which encompasses approximately 46,352 square feet in area. The site is currently
owned by the Redevelopment Agency, and its current use is a metered parking lot. See
Attachment C.
~~~~ __k _
: CITYHADK '
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--- -~- ---
CityMark is also proposing development of the Third Avenue & E Street Northeast site, which is
located at 295 E Street and totals approximately 52,906 square feet in area. This site is privately
owned and is currently used as a bank. See Attachment D.
AUSTIN
V E U M
ROBBINS
PARTNERS
Avion Development LLC ("Avion") is an experienced developer of mixed-use
urban infill projects in the San Diego area, including One Library Circle,
Santa Fe 6, 17th & G, Smart Corner (Park Blvd. & Broadway), and 15th &
Market. Avion is interested in developing the site known as Third Avenue
and E Street Southeast. The subject property is located at 201 Third Avenue
and totals approximately 11,454 square feet in area. This site is publicly
owned by the Redevelopment Agency and is currently vacant. See
Attachment E.
fY)f!:
, t V f I [) ~ M l' N r
intergul'f
IE'ELO'IIEIT ..aup
Intergulf-Mar (Park) LLC ("Intergulf-Mar Park") are experienced
developers of mixed-use urban infill projects, including Treo @ Kettner,
Alicante, La Vita, Palazzo, as well as numerous others. Intergulf and
Mar Group are interested in the site known as Third Avenue and G
Street Northwest, which total 41,097 square feet in area. This site is
owned by the Developers and is the site of the former Social Security
Building. See Attachment ,F.
Each of the Developers is well-qualified and has demonstrated their desire and commitment to
partner with the City and Redevelopment Agency, to develop a project that will revitalize the area,
and to work cooperatively with the public in the design of the project.
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MEETING DATE:
NEXr STEPS
Upon approval of the ENAs, staff will immediately begin working with the development teams to
commence the predevelopment tasks, including the initial task of planning and advertising the
pre-design public workshop. The steps of the timeline are illustrated below:
1'1'1'83
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If discussions, negotiations, and tasks under the ENA process are successful, the Agency and
developer moy consider entering into a Disposition and Development Agreement (DDA) or
Owner Participation Agreement (OPA) for construction of the approved development project.
Under a successful DDA or OPA process, the overall timeframe for construction and completion
of a development project is between 18 to 36 months from execution of the agreement.
In recent months, the economy and market have already begun to shift, which has been reflected
in rising interest rates, increased construction costs and the slowing in the absorption of new
units. Due to the financial complexity of urban infill projects, a change in any of these variables
has an especially dramatic impact on redevelopment and this City's revitalization activities on the
Westside. As these factors continue to shift, the opportunities for timely redevelopment may
diminish. It is therefore important that the City/Agency expeditiously capture and take advontage
of the current economic and market conditions through the timely implementation of strategic
redevelopment tools under the Exclusive Negotiating Agreement.
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FISCAL IMPACT
Each Exclusive Negotioting Agreement requires the Developer to deposit $25,000 with the
Agency for project onolysis, including but not limited to paying for third party consultants, City
staff time and other reosonoble costs incurred by the Agency in conducting such analysis in
connection with this Agreement.
ATTACHMENTS
A. Map of Proposal Sites
B. Douglas Wilson Profile for Landis Avenue North
C. CityMork LLC Profile for Londis Avenue South
D. CityMark LLC Profile for Third Avenue & E Street Northeost
E. Avion Development LLC Profile for Third Avenue and E Street Southeost
F. Intergulf -Mar (Park) LLC Profile for Third Avenue and G Street Northwest
.'
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,
.
0.1 0.15
Added Area Redev. Project Area
Town Centre I Redev. Project Area
ATTACHMENT A
1. 3rd & E Northeast Corner / CityMork Development
2, 3rd & E Southeast Corner / Doug Austin
3. Landis North / Douglas Wilson
4, Landis South / CityMork Development
5, 3rd & Pork Southwest /Intergult
ATTACHMENT B
4\
Douglas Wil,on Companies
Existinq Uses & Ownership
The property is located on the east side of Landis
Avenue, approximately '12 a block west of the
historic downtown core, Owned by the
Agency/City, both sites are level and without structures, and are currently used as metered
public parking lots, Landis Avenue is a secondary street between E Street and F Street that
is characterized by a mixture of older and unique residences, most of which have been
converted to professional office and multifamily residential uses.
LANDIS AVENUE NORTH
Site Description
The site is a rectangular parcel located on the
northeast corner of Davidson Street and Landis
Avenue. Immediately north of the subject site is a
medical office building at 251 Landis Avenue. An
alley to the east separates the site from the
starefronts that face Third Avenue. A two-story
office building at 311-319 F Street is located to
the south, and commercial and residential uses
are located to the west.
Douglas Wilson Companies IS interested in
developing a project on the Landis North site
within the Agency's Town Centre I Redevelopment
Proiect Area, The subject property consists of one
parcel located along the eastern side of Landis
Avenue, between Davidson and E Streets
(Assessor's Parcel Number 568-04-411) and
totals approximately 29,319 square feet in area,
GPU & UCSP
The pending General Plan Update and Urban Core Specific Plan currently propose
mixed-use land use designations within the subdistrict that includes this site.
Developer Qualification & RFQ Process
In September 2004, Community Development Department publicly issued and circulated
a Request for Proposals and Qualifications for the City/Agency's two publicly owned
parking lots along Landis Avenue, just north and south of Davidson Street. Proposals and
statements of qualifications were received from multiple well-qualified developers
possessing intimate knowledge and experience in urban residential and mixed-use
developments, including Douglas Wilson Companies, To assist in the selection process,
2-11
ATTACHMENT B
Redevelopment staff formed a small selection committee, consisting of staff and outside
volunteer experts, to hold interviews with prospective developers. In addition to developer
history, experience, and financial capabilities, a key criteria and focus of the selection
committee was the level of commitment of the development teams to creating positive
partnerships and working relationships with City/Agency staff, the local community, and
other development teams working with the City/Agency.
Based upon Redevelopment staff's review of the developer's profile, history, and
qualifications for this site, staff is recommending that the Agency enter into an ENA with
Douglas Wilson Companies for the northern corner of Landis and Davidson Streets.
Developer Profile. History, and Qualifications
Douglas Wilson Companies is an experienced developer of mixed-use urban infill
proiects in the San Diego area, based in San Diego and founded in 1989, Douglas
Wilson Companies primarily develops low-rise and mid-rise residential projects, including
condominiums and mixed-use developments incorporoting retail and office space.
Douglas Wilson's portfolio and business plan include lofts, town homes, flats, and
live/work residences.
Notable completed Douglas Wilson projects in the San Diego region include:
IJ Parkloft, 120 one- and two-story residentiollofts, ranging from 930 to over 3,000
sf, in the East Village ofthe City of San Diego.
IJ Symphony Towers. This mixed-use development in downtown San Diego consists
of a 34-story office tower, a 2,255 seat theatre for the San Diego Symphony, a
264-room hotel and a five-level parking structure.
Notable current CityMark projects in the San Diego region include:
IJ The Mark. Thirty-two story, 244-residential condominium project in the East
Village of the City of San Diego consisting of 233 condominium units, 11 two-
story town homes, and 8,000 sf of retail ground floor space.
Aaency-Developer Partnership
In addition to their experience ond depth os on urban residential developer in San Diego
County, Douglas Wilson Companies is composed of a small and very close development
team that has emphasized their desire and commitment to creating close partnerships
with staff, the Agency/City, and the community to create product types and designs that
complement the character and charm of Chula Vista's downtown village.
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[ITYHAIR
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LANDIS AVENUE SOUTH
Site Description
Located in the heart of Chula Vista's downtown
village, the Landis South site is situated in an ideal
location for the creation of residential densities to
support and reinvigorate the Third Avenue business
district, Development at this location will also
present important opportunities to create enhanced
linkages and pedestrian access to and from local
residences, Third Avenue businesses, neighboring
parks, ond local community centers.
CityMark Development LCC, is interested in
developing a project on the Landis South site within
the Agency's Town Centre I Redevelopment Project
Area. The subject property consists of nine parcels
located along the eastern side of Landis Avenue,
between Davidson and F Streets (Assessor's Parcel
Numbers 568-152-2300 through 568-152-2700,
568-152-2900, and 568-152-0100 through 568-
152-0300) and totals approximately 46,352 square
feet in area,
ATTACHMENT C
Existina Uses & Ownership
The site is owned by the City/Agency and is currently
used as a metered parking lot. Landis Avenue is a secondory street between E and F
Streets that is characterized by a mixture of older and unique residences, many of which
have been converted to professional office and multifamily residential uses. The current
general plan land use designations for the site ore Residential High (RH / 18 to 27 +
Dwelling Units per Gross Acre) on seven parcels and Retail Commercial (CR) on the
remaining two parcels. Current zoning designations for the site are Administrative and
Professional Zone (C-O) for eight of the parcels and Central Business Zone (C-B) for the
remaining parcel. Surrounding land uses include several medical office buildings and
other miscellaneous commercial retail, service, and office uses,
GPU & UCSP
The pending General Plan Update and Urban Core Specific Plan currently propose
mixed-use designations within the subdistrict that includes the Landis Avenue area,
Developer Qualification & Owner Participation Process
In September 2004, Community Development Department publicly issued and circulated
a Request for Proposals and Qualifications for the City/Agency's two publicly owned
2'""13
ATTACHMENT C
parking lots along Landis Avenue, iust north and south of Davidson Street, Proposals and
statements of qualifications were received from multiple well-qualified developers
possessing intimate knowledge and experience in urban residential and mixed-use
developments, including CityMark Development, LLC. To assist in the selection process,
Redevelopment staff formed a small selection committee, consisting of staff and outside
volunteer experts, to hold interviews with prospective developers. In addition to developer
history, experience, and financial capabilities, a key criteria and focus of the selection
committee was the level of commitment of the development teams to creating positive
partnerships and working relationships with City/Agency staff, the local community, and
other development teams working with the City/Agency,
Based upon Redevelopment staff's review of the developer's profile, history, and
qualifications for this site, ond input received from the selection committee, staff is
recommending that the Agency enter into an ENA with CityMark Development, LLC for
the Landis South site.
Developer Profile, History, and Qualifications
CityMark Development is an urban residentiol and mixed-use development company
b,ased in San Diego and founded in 2000. CityMark primarily develops low-rise and
mid-rise residential projects, including condominiums and mixed-use developments
incorporating retail and office space. CityMark's portfolio and business plan include lofts,
town homes, flats, and live/work residences ranging in pricing from the $200,000's to
$800,000's.
Notoble completed CityMark proiects in the San Diego region include:
D CitvMark at Cortez Hill. 16 two- and three-bedroom townhouse units in the
Cortez Hill District of the City of San Diego near the newly renovated EI Cortez
Hotel.
D Doma. 121-unit mixed-use development in Little Italy consisting of 66 eight-story
lofts, 40 four-story townhouses, and 15 four-story flats with almost 60 distinct floor
pions.
D Paseo. 18 townhouses ond live/work residences in the historic downtown district
of the City of La Mesa.
Notable current CityMark projects in the San Diego region include:
D M2i. Seven-story, 230-unit condominium project in the Ballpark District of the City
of San Diego consisting of townhouses, flats, and live/work units.
D Farenheit. Seven-story, 77-unit loft project in the Ballpark District of the City of
San Diego that will incorporate ground floor "shopkeeper" units.
D Eoyptian. Seven-story, 80-unit mixed-use project in the Hillcrest area of the City of
San Diego.
CityMark's Cortez Hill and doma projects were the recipients of multiple awards at the
2002 and 2003 San Diego Building Industry Association's Sales, Advertising, and
Merchandising Awards, including Best Attached Housing Proiect Award.
2-14
ATTACHMENT C
Aaencv-Developer Partnership
In addition to their experience and depth as an urban residential developer in San Diego
County, CityMark is composed of a small and very close development team that has
emphasized their desire and commitment to creating close partnerships with staff, the
Agency/City, and the community to create product types and designs thot complement the
character and charm of Chula Vista's downtown village. CityMork's commitment to local
partnerships was a key factor in their selection during the RFP/Q interview process.
.
2-15
[!rYHADK
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THIR~VENUE & E STREET NORTHEAST
General Location Description
The intersection of Third Avenue and E Street is a
key gateway entrance inta Chula Vista's
downtown Third Avenue business district and "the
Village" vision area of the Urban Core Specific
Plan, E Street is a major east-west transportation
corridor of the City between the 1-5 and 1-805
Freeways. Development of this intersection would
provide critical new opportunities to facilitate
redevelopment of the Urban Core, attract and
encourage private investment along Third Avenue,
and enhance the western entrance to the Third
Avenue business district from a physical, aesthetic,
and economic standpoint.
CityMark Development LCC is interested in
developing a project on the northeast corner of
Third Avenue and E S1reet within the Agency's
Merged Redevelopment Project Area. The subject
properly is located at 295 E Street (Assessor's
Parcel Number 566-240-3000) and totals
approximately 52,906 square feet in area.
ATTACHMENT D
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Existina Uses & Ownership
The site is currently used as a leased Bank of America facility and parking lot. Title of the
property is currently held in trust. The current general plan land use and zoning
designations for the site are Retail Commercial (CR) and Central Commercial Zone (C-C),
respeetively, Surrounding land uses include miscellaneous commercial retail, service, and
offiCEr-uses of the downtown village,
GPU &- UCSP
The pending General Plan Update and Urban Core Specific Plan currently propose
mixecf-use designations within the subdistrict that includes the intersection of Third Avenue
and E Street,
Devel~er Qualification & Owner Participation Process
On July 12, 2004, Community Development received a "Statement of Interest" from
CityMark Development LLC about opportunities for redevelopment projects in Chula
Vista, CityMark identified three sites of primary interest to them based on their product
type cmd qualifications, including the subject properly on the northeast corner of Third
Avenue and E Street. Based upon redevelopment staff's review of the developer's profile,
2-16
ATTACHMENT D
history, and qualifications for this site, staff is recommending that the Agency enter into an
ENA with CityMark Development LLC for the northeast corner of Third Avenue and E
Street.
Developer Profile, History, and Qualifications
CityMark Development is on urban residential and mixed-use development company
based in San Diego and founded in 2000. CityMark primarily develops low-rise and
mid-rise residential projects, including condominiums and mixed-use developments
incorporating retail and office space. CityMark's portfolio and business plan include lofts,
town homes, flats, and live/work residences ranging in pricing from the $200,000's to
$800,000's.
Notable completed CityMark projects in the San Diego region include:
a CilvMark at Cortez Hill. 16 fwo- and three-bedroom townhouse units in the
Cortez Hill District of the City of San Diego near the newly renovated EI Cortez
Hotel.
a Doma. 121-unit mixed-use development in Little Italy consisting of 66 eight-story
lofts, 40 four-story townhouses, and 15 four-story flats with almost 60 distinct floor
plans.
a Paseo, 18 townhouses and live/work residences in the historic downtown district
of the City of La Mesa.
Notable current CityMark projects in the San Diego region include:
a M2i, Seven-story, 230-unit condominium project in the Ballpork District of the City
of San Diego consisting of townhouses, flats, and live/work units.
a Farenheit. Seven-story, 77-unit loft project in the Ballpark District of the City of
San Diego that will incorporote ground floor "shopkeeper" units.
a Eavptian. Seven-story, 80-unit mixed-use project in the Hillcrest area of the City of
San Diego.
CityMark's Cortez Hill ond Doma projects were the recipients of multiple awards ot the
2002 and 2003 San Diego Building Industry Association's Sales, Advertising, and
Merchandising Awards, including Best Attached Housing Project Award.
Aaencv-Developer Partnership
In addition to their experience and depth as an urban residential developer in San Diego
County, CityMark is composed of a small and very close development team that has
emphasized their desire and commitment to creating close partnerships with staff, the
Agency/City, and the community to create product types and designs that complement the
character and charm of Chula Vista's downtown village.
2-17
AUSTIN
V E U M
ROBBINS
PARTNERS
THIRD AVENUE & E STREET SOUTHEAST -
General Location Description
The intersection of Third Avenue and E Street is a
key gateway entrance into Chula Vista's
downtown Third Avenue business district and "the
Village" vision area of the Urban Core Specific
Plan. E Street is a maior east-west transportation
corridor of the City between the 1-5 and 1-805
Freeways. Development of this intersection would
provide critical new opportunities to facilitate
redevelopment of the Urban Core, attract and
encourage private investment along Third Avenue,
and enhance the western entrance to the Third
Avenue business district from a physical, aesthetic,
ancJceconomic standpoint.
Avion Development LCC (Avion), is interested in
developing a project on the southeast corner of
Third Avenue and E Street. The subject property is
located at 201 Third Avenue (APN 568-071-01)
and totals approximately 11,454 square feet in
area.
ATTACHMENT E
Existina Uses & Ownership
The site is currently vacant, and was formerly a
gasoline service station, The City of Chula Vista Redevelopment Agency currently holds
title of the property. The General Plan land use designation for the site is Retail
Commercial, and the zone designation is Central Business Zone (C-B), respectively.
Surrounding land uses include miscellaneous commercial retail, service, and office uses.
GPLr& UCSP
The pending General Plan Update and Urban Core Specific Plan currently propose
mixed-use land use designations within the subdistrict that includes the intersection of
Third Avenue and E Street.
Developer Profile & Qualifications
The Agency received an unsolicited proposal from Avion Development LLC for the
redevelopment of the Property. The Agency conducted an Initial Project Analysis (IPA) of
2-18
ATTACHMENT E
the development proposal and determined that Avion was qualified to plan, design, and
develop the Property, Avion is an experienced developer of mixed-use urban infill
projects in the San Diego area, including One Library Circle, Santa Fe 6, 17th & G, Smart
Corner (Park Blvd. & Broadway), and 15th & Market. Avion is qualified to develop the
subject property ot a scole and intensity as conceptualized in the project proposal.
Aqency-Developer Partnership
In addition to their experience and depth as an urban residential developer in San Diego
County, CityMark is composed of a small and very close development team that has
emphasized their desire and commitment to creating close partnerships with staff, the
Agency/City, and the community to create product types and designs that complement the
character and charm of Chula Vista's downtown village.
"
2-19
~f1-r
inter
I- v ., ',' [ _,~ r
DEVELOPMEMT '.OUP
THIRD AVENUE AND G STREET NORTHWEST-
'""
General Location Description
Third Avenue and G Street IS a key intersection
located in the heart of Chula Vista's downtown
business district and "the Village" vision area of the
Urban Core Specific Plan. Third Avenue is a major
transportation corridor and commercial district,
Development at this intersection would facilitate
redevelopment of the Urban Core, attract and
. encourage private investment along Third Avenue,
and enhance the Third Avenue business district from
a physical, aesthetic, and economic stondpoint.
Inte<gulf-Mar (Park) LLC are interested in developing
a -rW6ject on the west side of Third Avenue between
G SF€et and Park Way. The subiect property
includes 380 Third Avenue (APN 568-300-46) and
314- Park Woy (APN 568-300.15, which total
41,097 square feet in area,
ATTACHMENT F
Exisl1nq Uses & Ownership
The-'-site is currently developed with an office
. building, which houses the offices of the Social
SeGU!','lty Administration, and retail space; .which
incL.:ioes a Dominoes Pizza. Intergulf-Mar (Park)
LLCcurrently hold title of the property, The General Plan land use designation for the site
is Ra.tail Commercial, and the zone designation is Central Business Zone (C-B),
respectively, Surrounding land uses include miscellaneous commercial retail, service, and
office uses of the downtown village, multi-family residential to the west, and Memorial
ParkJo the north.
GPU & UCSP
The pending General Plan Update and Urba.n Core Specific Plan currently propose
mixeel.-use land use designations within the subdistrict that includes the intersection of
Third Avenue and G Street.
Developer Profile & Qualifications
The Agency received an unsolicited proposal from lntergulf-Mar (Park) LLC for the
redevelopment of the Property and adjacent public right-of-way (alley). The Agency
conducted an initial analysis of the development proposal and determined that the
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ATTACHMENT F
developer was qualified to plan, design, and develop the Properly and that the proposed
project wos consistent with the current droft policies of the GPU and UCSP. Intergulf-Mor
(Park) LLC is qualified to develop the subject properly at a scale and intensity as
conceptualized in the project proposal.
Developer Profile, History, ond Qualifications
Intergulf Development Group has become one of North America's leading development
companies, building on decades of successful operations in Canada and California, ond
now expanding to other states. Intergulf develops low-rise, mid-rise, and high-rise
residential projects, including condominiums and mixed-use developments incorporating
retoil and office space.
Notable completed Intergulf projects in the San Diego region include:
o LAVITA (San Dieco)
304 condominium high-rise development
Construction Period: 2002-2004
o TREO AT KmNER (San Dieco)
330 condominium high-rise development
Construction Period: 2000-2002
Notable current Intergulf projects in the San Diego region include:
o ALlCANTE (San Dieco)
95 condominium high-rise development
Construction Period: 2004-2006
o BREZZAAT NORTH EMBARCADERO (San Dieao)
174 condominium high-rise development
Construction Period: 2005-2007
o PALAZZO (La Jolla)
30 luxury townhomes and condominiums of 1500 to 2800 s,f,
o CITYSCAPE (San Dieaol
500 condominium high-rise development
Construction Period: 2005-2008
Aaency-Developer Partnership
In addition to their experience and depth as an urban residential developer in San Diego
County, Intergulf-Mar (Park) LLC are composed of a diverse and experienced
development team that have emphasized their desire and commitment to creoting close
partnerships with staff, the Agency/City, and the community to create product types and
designs that complement the character and charm of Chula Vista's downtown village.
2-21
RESOLUTION NO.
RESOLUTION APPROVING AN EXCLUSIVE NEGOTIATING AGREEMENT
BETWEEN THE REDEVELOPMENT AGENCY AND DOUGLAS WILSON
COMPANIES REGARDING THE REDEVELOPMENT OF THE LANDIS
AVENUE NORTH SITE
WHEREAS, it is the role and responsibility of the Redevelopment Agency of the City of
Chula Vista ("Agency") to promote economic vitality, create market confidence, encourage
environmental health and remediation, create public benefits and amenities, and facilitate
the development, reconstruction, and rehabilitation of residential, commercial, industrial, and
retail uses; and
WHEREAS, an Exclusive Negotiating Agreement ("ENA") is an important redevelopment
tool to the Agency to establish a legal and contractual framework for negotiations and
provide a defined timeline for completion of predevelopment activities with a developer
about a potential redevelopment project; and
WHEREAS, Douglas Wilson Company ("Developer") is interested in developing a project
at the northeast corner of Landis Avenue and Davidson Street ("Property"), located in the
Agency's Town Centre I Redevelopment Project Area; and
WHEREAS, the Redevelopment Agency has ownership of Property and issued a Request
for Qualifications to develop Property and;
WHEREAS, staff has determined that Developer is qualified to design and develop a
high quality project at the proposed development site that is consistent with the goals of the
Agency's adopted Redevelopment Plan for the Town Centre I Redevelopment Project Area;
and
WHEREAS, Developer has acknowledged that the City is processing a General Plan
Update and an Urban Core Specific Plan and that the processing and/or adoption of these
plans is not a consideration in their proceeding with their development at this time; and
WHEREAS, it is in the interest of the Agency and Developer for the Agency to execute
and enter into an ENA with Developer for the proposed development site based on
Developer's qualifications; and "
WHEREAS, the ENA also retains Agency sole discretion for future actions necessary to
process any project and does not commit the Agency to the approval of or financial
participation in the project; and
WHEREAS, approval of the ENA is exempt from the California Environmental Quality Act
("CEQA") pursuant to Section 15061 (b) (3) of the State CEQA Guidelines; and
2-22
.
,
Page 2
RDA Resolution No,
NOW THEREFORE BE IT RESOLVED that the Redevelopment Agency of the City of Chula
Vista does hereby approve the Exclusive Negotiating Agreement with Douglas Wilson
Company for potential development of a real estate project located at Landis Avenue North
and authorizes the Chair to execute said Agreement,
PRESENTED BY
APPROVED AS TO FORM BY
Laurie Madigan
Director of Community Development
2-23
EXCLUSIVE NEGOTIATING AGREEMENT
This Exclusive Negotiating Agreement ("Agreement"), dated as of this 26th day of
July, 2005 ("Effective Date"), is made by and between the City of Chula Vista Redevelopment
Agency, a public body, corporate and politic ("Agency") and Douglas Wilson Companies, a
California corporation ("Developer"), with reference to the following facts:
RECITALS
In furtherance of the objectives of the Califomia Community Redevelopment Law,
the Agency has undertaken a program for the redevelopment of certain areas within the City
of Chula Vista ("City"), and in connection therewith is undertaking and carrying out activities
for redevelopment in the Town Center I Redevelopment Project Area ("Project Area")
pursuant to and in furtherance of the redevelopment plan for the Project Area
("Redevelopment Plan"),
The subject matter of this Agreement concems that certain real property located
within the Project Area as depicted on Exhibit "A" hereto ("Property"). The Property is
located on the northeast of landis Avenue and the north side of Davidson Street, known as
the landis Avenue Northeast site (APN Landis Avenue Northeast site). The site totals
approximately 29,319 square feet in area.
The Developer is proposing to develop a mixed use residential and commercial
development ("Project") and desires to negotiate a Disposition and Development Agreement
("DDA") with the Agency,
After a competitive selection process, the Agency selected the Developer as
the entity with which to negotiate terms for an agreement for development of the
Property. Therefore, the Agency desires to enter into this Agreement with the Developer
with the objective of determining the feasibility of the proposed project and consideration of
entering into a mutually acceptabie DDA for the development of the Property consistent with
the terms and conditions of this Agreement at the earliest practical date,
The Developer anticipates that, following execution of this Agreement and
through the period of negotiation and preparation of a DDA with respect to the Project, it
will devote substantial time and effort in preparing plans, preparing project proformas,
contacting financial institutions, engaging appropriate consultants, and meeting with the City
and various other necessary third parties in connection with the proposed Project, and in
negotiating and preparing a DDA consistent with th~ basic terms and mutual understandings
established in this Agreement. "
The Agency and the Developer ("Parties") desire to enter into this Agreement in
order to set forth the rights and duties of the Parties during the term of the Exclusive
Negotiating Period subject to the Owner Participation rules and regulations established for
the Project Area.
Now, therefore, the Parties mutually agree as follows:
1, Good Faith Negotiations
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A. Agency and Developer agree (for the period stated below) to negotiate in
good faith pursuant to the terms of this Agreement a DDA or other form of agreement or
agreements to be entered into between the Agency and Developer concerning the
purchase and development of the Property. Agency agrees not to negotiate with any
other person or entity regarding development of the Property without the prior written
consent of Developer. Nothing in this Agreement shall be deemed a covenant, promise
or commitment by Agency, the City of Chula Vista, or any agency of the City, with
respect to the acquisition of property or the approval of development or the proposed
General Plan Update or Urban Core Specific Plan, Agency's acceptance of this
Agreement is merely an agreement to enter into a period of exclusive negotiations
according to the terms hereof, reserving final discretion and approval by Agency as to
any actions required of it
B, Notwithstanding the foregoing, if the Property incorporates parcels not under
Agency or Developer control, Developer acknowledges that Agency may receive from
time to time, unsolicited alternative proposals for the development of the Property,
Agency shall notify Developer within ten days after receiving an unsolicited development
proposal for all or any portion of the Property, Agency and Developer shall confer in
good faith to assess and benefits of the unsolicited proposal.
2, Negotiation Period
A Agency and Developer agree to negotiate for an initial 300 days which
shall commence on the Effective Date unless earlier terminated in accordance with the
provisions hereof ("Initial Negotiation Period"),
B, If, upon the expiration of such Initial Negotiation Period, the Parties have
not each approved and executed a DDA, then the Executive Director, in his sole
discretion, on behalf of the Agency, is authorized to, in writing, extend the term of this
Agreement for up to an additional 90 days ("Extended Negotiation Period") provided that
at the end of the Initial Negotiation Period, the Agency has not exercised its right to
terminate as herein provided, the Developer is in full compliance with all terms and
conditions hereof, the Developer concurs with such extension of the negotiation period,
and the Executive Director has determined that there is a reasonable likelihood that the
Developer will agree to terms and conditions for the development of the Project on the
Property required for the development of the Project that Agency staff will be able to
recommend to Agency prior to the expiration of the Extended Negotiation Period,
C, If, after expiration of the Initial Negotiation Period, or after the Extended
Negotiation Period if this Agreement is extended, the Parties have not each approved
and executed a DDA, then this Agreement shalt automatically terminate and Developer
shall have no further rights regarding the subject matter of this Agreement or the
Property, and Agency shall be free to negotiate with any other persons or entities with
regard to the Property,
3. Obligations of Developer
A Schedule
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Agency and Developer agree and acknowledge that all submittals
required by this Agreement shall be submitted pursuant to the timeline attached hereto
as Exhibit "8." Exhibit "8" shall inciude, but is not limited to, submittals of Project plans,
pro forma, marketing and feasibility studies, and evidence of financing that are required
by the Agency; and commencement of good faith negotiations with Agency designated
prospective owner participants in the Project
8, Development and Design Plans
During the negotiation period, Developer shall submit development and
design plans for the Project Developer shall also furnish such information to Agency
regarding the proposed project as may be required by Agency to perform an
environmental review pursuant to the California Environmental Quality Act (CEQA). All
fees and expenses for engineers, architects, financial consultants, legal, planning or
other consultants retained by Developer to perform Developer's obligations set forth in
this Agreement shall be the sole responsibility of Developer.
C, Reports, Studies and Public Participation
Developer shall make quarterly written reports to the Agency on the Developer's
progress toward meeting its obligations under this Agreement, and if requested by the
Agency, Developer shall make periodic oral progress reports on all matters and all
studies being made related to the acquisition and development of the Project and other
matters under negotiation to the extent that they do not include confidential matters. As
Agency deems reasonably necessary or appropriate, presentations may be requested at
public forums to solicit input from citizens, businesses, stakeholders and relevant
interest groups,
D, Financing
Developer shall, consistent with Exhibit "8," develop a program of financing that
provides the Agency with reasonably satisfactory evidence that financing will be
available for acquisition and development of the Property,
E. Deposit
Within ten (10) days after the Effective Date, Developer shall deposit with Agency
Twenty-Five Thousand Dollars ($25,000) in immediately available funds ("ENA
Deposit"), Agency shall have the right to utilize the deposit to conduct the Project
analysis including but not limited to pay third party consultants, City staff time (at
applicable full cost recovery rates), and other reasonable costs incurred by the Agency
in conducting such analysis, Agency shall fequest additional deposits if the ENA
Deposit is exhausted and Agency determines further analysis is required. Agency may
cease negotiations and all activities of third party consultants until such time as ENA
Deposit is replenished as reasonably requested by Agency. Any deposit balance
remaining upon the termination of the Agreement shall be returned to Developer or shall
be applied to any deposit required by a subsequent DDA.
4. Agency Obligations and Due Diligence
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A During the Negotiation Period, the Agency shall conduct a due diligence
investigation of the Developer's ability to purchase, own and/or operate the Project in a
responsible manner, If the Agency Executive Director determines in his sole discretion
that Developer does not have the ability to successfully purchase, own, and/or manage
the Project in a responsible manner, the Agency Executive Director may terminate this
Agreement by delivering written notice thereof to Deveioper. Agency's due diligence
efforts may include, without limitation, the following:
1, assessment of the proposed financing and the capacity of
Developer to qualify for financing for the Project; and
2, assessment of the capacity of Developer and their principal staff
to effectiveiy own and/or manage the Project, including the ability
to carry out any ongoing management oversight responsibilities
8,
Agency agrees to cooperate with Developer in
providing equity partner(s) and/or iender(s) of
Developer with appropriate and necessary
information for the Developer to fulfill its obligations
hereunder, which information is not otherwise
privileged.
C, The Agency shall also cooperate with Developer's professional
consultants and associates in providing them with any information and assistance, so far
as such information is not otherwise privileged, reasonably within the capacity of the
Agency in connection with the preparation of the Developer's submissions to the
Agency,
5, DDA
The Parties hereby acknowledge and agree that, during the Negotiation Period of
this Agreement the Parties shall use their respective good faith efforts to negotiate and
enter into a DDA which shall include (but not be limited to) the following: (i) the design of
the Project by the Developer, which design shall be subject to the approval by the
Agency and/or City, (ii) the construction of the Project by the Developer in accordance
with final plans and specifications to be provided by the Developer and approved by the
Agency and/or City, pursuant to a detailed schedule of performance by the Developer,
(iii) the operation and management of the Project by the Developer in a good and
professional manner and subject to the covenants required by law, (iv) the maintenance
of landscaping, buildings, and improvements in good condition and satisfactory state of
repair so as to be attractive to the community, (v) the operation of the Project by the
Developer in compliance with all equal opportunity standards established by federal,
state and local law, (vi) provision by each contractor and/or subcontractor (as the case
may require and as appropriate) performing' work on the Project of the requisite
performance bond and labor and materials payment bond to assure completion of the
Project free of mechanics' liens, (vii) the Project shall be of the a quality consistent with
plans and renderings provided by Developer and approved by the Agency, (viii) the
terms and conditions upon which Developer shall acquire the parcel(s), and (ix) the
terms and conditions upon which either party may terminate the DDA (e.g" the discovery
of environmental issues/hazardous substances on the Site, unexpected development or
construction costs, inability to acquire parcels),
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6. ADDITIONAL TERMS AND OBLIGATIONS
A. No Competing Development.
Developer shall not commence the construction of any parcels comprising the
Property owned or controlled by the Developer until this Agreement has been properly
terminated according to its terms or the Agency/City has approved the Project
B, Real Estate Commissions.
Neither Agency nor Developer shall be liable for any real estate commission or
brokerage fees which may arise here from. Agency and Developer represent that they
have engaged no broker, agent or finder separately in connection with this transaction
and each party agrees to indemnify, hold harmless and defend the other against claims
for commissions or fees made through such party.
C, Each Party to Bear its Own Cost.
Each party shall bear its own costs incurred in connection with the negotiation of
a DDA, and the implementation of this Agreement, except as otherwise expressly
provided herein or expressly agreed in writing.
D, Confidentiality,
Agency and Developer recognize that disclosures made by Developer pursuant
to this Agreement may contain sensitive information and that the disclosure of such
information to third parties could impose commercially unreasonable and/or
uncompetitive burdens on Developer and, may correspondingly, diminish the value or
fiscal benefit that may accrue to the Agency upon the redevelopment of the Property by
the Developer, if a future DDA is entered into by the Parties, Developer acknowledges
and agrees that Agency is a public entity with a responsibility and, in many cases, legal
obligation to conduct its business in a manner open and available to the public,
Accordingly, any information provided by Developer to Agency with respect to the
Property, the Project or Developer may be disclosed to the public either purposely,
inadvertently, or as a result of a public demand or order. With respect to any information
provided that Developer reasonably deems and identifies in writing as proprietary and
confidential in nature, Agency agrees to exercise its best efforts to keep such information
confidential. In addition, if Agency determines that it is required under applicable law to
disclose any information identified by Developer as proprietary and confidential in
nature, Agency shall notify Developer at least three business days before disclosure of
such information which will provide Developer the opportunity to seek a protective order
preventing such disclosure. "
E, Assignment
1, Agency would not have entered into this Agreement but for Developer's
unique qualifications and experience, Therefore, Developer's rights and obligations
under this Agreement may not be assigned without the prior written approval of Agency
in its sole discretion. Notwithstanding the foregoing, subject to the prior written approval
of the Executive Director, Developer may assign its rights hereunder to a new entity
comprised of the Developer for purposes of developing the Project. Such new entity
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may include additional parties provided that the Developer retains responsibility for
fulfilling its obligations hereunder and Developer retains management control and
authority over the entity and the Project.
2. Upon the occurrence of any change, whether voluntary or involuntary, in
membership, ownership, management or control of the Developer (other than such
changes occasioned by the death or incapacity of any individual) that has not been
approved by the Agency, prior to the time of such change, the Agency may terminate
this Agreement, without liability, by sending written notice of termination to Developer.
3, Developer acknowledges that the City Council and Redevelopment
Agency are in the process of forming the Chula Vista Redevelopment Corporation
("CVRC"). All resolution and ordinances necessary to form the CVRC have been
adopted and the CVRC is currently seeking incorporation status from the State. Upon
the completion of that process and the formation of the CVRC, all rights, duties, and
obligations of the Agency under or pursuant to this Agreement shall be automatically
assigned to the CVRC,
F, Nondiscrimination
Developer shall not discriminate against nor segregate any person, or group of
persons on account of race, color, creed, religion, sex, marital status, disability, national
origin or ancestry in undertaking its obligations under this Agreement.
G. Owner Participation Requirements
This Agreement and the obligations of the Parties set forth herein are subject to
the applicable Owner Participation rules and regulations established for the Project Area
and California Community Redevelopment Law,
7. RETENTION OF DISCRETION
A. By its execution of this Agreement, Agency is not committing itself or
agreeing to undertake any activity requiring the subsequent exercise of discretion by
Agency or City, or any department thereof including, but not limited to, the approval and
execution of a DDA; the proposal, amendment, or approval of any land use regulation
governing the Property; the provision of financial assistance for the development of any
public or private interest in real property; the authorization or obligation to use the
Agency's eminent domain authority; or, any other such activity,
B, Consideration of Entitlements i1nd Policy Documents, Developer
understands and agrees that the Agency and. City, in their respective legislative roles,
reserve the right to exercise their discretion as io all matters which the Agency and City
are by law entitled or required to exercise such discretion, including but not limited to,
Entitlements for the development of the Property and adoption of any amendments to
policy documents (including the General Plan and Redevelopment Plans). In addition,
Developer understands and agrees that the Entitlements and any other documents shall
be subject to and brought to the Agency or City, as appropriate, for consideration in
accordance with applicable legal requirements, including laws related to notice, public
hearings, due process and the California Environmental Quality Act.
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C. Developer acknowledges that any plans processed for the Property will
be based upon the current General Plan and Zoning Code of the City, Additionally,
Developer acknowledges that the City is processing a General Plan Update ("GPU") and
Urban Core Specific Plan ("UCSP"), which include the Property, Developer further
acknowledges and agrees that the City may consider a number of development
alternatives for the Property for consideration by the City Council as part of City's GPU
and UCSP process, Developer agrees and acknowledges that the processing and/or
adoption of these plans by the City is not a consideration in its proceeding with this
agreement or the proposed development project and Developer may need to request
amendments to the existing General Plan or, if approved, the GPU or UCSP. The GPU
and UCSP are legislative actions and this agreement does not limit or in any way
interfere with the City Council's ability to exercise its discretionary authority as it relates
to these or any other legislative actions. The exercise of the City's legislative discretion
shall not form the basis of breach of this Agreement, express or implied, or any other
claims against the City.
D, Consideration by the Agency of the final Project as contained in the DDA.
This Agreement does not constitute a disposition of property or exercise of control over
property by Agency and does not require a public hearing. Agency execution of this
Agreement is merely an agreement to enter into a period of exclusive negotiations
according to the terms hereof, reserving final discretion and approval by Agency as to
any proposed DDA and all proceedings and decisions in connection therewith, The
parties understand that Agency has the complete and unfettered discretion to reject a
DDA without explanation or cause, The risk of loss of all processing, design and
developmental costs incurred by the Developer prior to DDA approval shall be absorbed
entirely by Developer except unless expressly assumed, by the terms of this Agreement
by the Agency, As to any matter which the Agency may be required to exercise its
unfettered discretion in advancing the Project to completion, nothing herein shall obligate
the Agency to exercise its discretion in any particular manner, and any exercise of
discretion reserved hereunder or required by law, shall not be deemed to constitute a
breach of Agency duties under this agreement.
8. TERMINATION RIGHTS
Notwithstanding the Initial or Extended Negotiating Periods hereinabove set
forth, either party may terminate this Agreement if the other party has materially
defaulted in its obligations herein set forth, and the terminating party has provided
defaulting party with written notification of such determination, and the defaulting party
has refused to cure same. The written notification shall set forth the nature of the
actions required to cure such default if curable, Defaulting party shall have 15 days from
the date of the written notification to cure such default. If such default is not cured within
the 15 days, the termination shall be deemed effective, Any failure or delay by a party in
asserting any of its rights or remedies as to any default shall not operate as a waiver of
any default or of any rights or remedies associated with a default. Each party shall also
have the right to terminate this Agreement in the event that Agency or Developer
determines that (a) the Project is infeasible or not in the public interest; or (b) the parties
reach an impasse in their negotiation of the DDA which cannot be resolved after good
faith efforts.
g, GENERAL PROVISIONS
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A Address for Notice.
Developer's Address for Notice:
David Kieffer
Douglas Wilson Companies
450 B Street, Suite 1900
San Diego, CA 92101
Telephone: 619-641-1141
Fax: 619-641-1150
Agency's Address for Notice:
Redevelopment Agency of the City of Chula Vista
Community Development Department
276 Fourth Avenue
Chula Vista, CA 91910
Attn: Director of Community Development
Telephone: (619) 691-5047
Fax: (619) 476-5310
Copy to: City Attorney
B, Authority,
Each party represents that it has full right, power and authority to execute this
Agreement and to perform its obligations hereunder, without the need for any further
action under its governing instruments, and the parties executing this Agreement on the
behalf of such party are duly authorized agents with authority to do so,
C, Counterparts,
This Agreement may be executed In multiple copies, each of which shall be
deemed an original, but all of which shall constitute one Agreement after each party has
signed such a counterpart.
D, Entire Agreement
This Agreement together with all exhibits attached hereto and other agreements
expressly referred to herein, constitutes the entire Agreement between the parties with
respect to the subject matter contained he~ein, All prior or contemporaneous
agreements, understandings, representation9, ,: warranties and statements, oral or
written, are superseded, .'
E, Further Assurances.
The parties agree to perform such further acts and to execute and deliver such
additional documents and instruments as may be reasonably required in order to carry
out the provisions of this Agreement and the intentions of the parties.
F. No Third Party Beneficiaries.
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There are no other parties to this Agreement, express or implied, direct or
indirect. Agency and Developer acknowledge that it is not their intent to create any third
party beneficiaries to this Agreement.
G, Exclusive Remedies.
1, In the event of default by either party to this Agreement, the parties shall
have the remedies of specific performance, mandamus, injunction 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 breach of this Agreement where such an award is
limited to reasonable costs of litigation incurred by the Parties,
2. Each party acknowledges that it is aware of the meaning and legal effect
of California Civil Code Section 1542, which provides:
A general release does not extend to claims which the creditor does not know or
suspect to exist in his favor at the time of executing the release, which if known by him
would have materially affected his settlement with debtor.
California Civil Code Section 1542 notwithstanding, it is the intention of the
Parties to be bound by the limitation on damages and remedies set forth in this Section
7G, and the Parties hereby release any and all claims against each other for monetary
damages or other legal or equitable relief related to any breach of this Agreement,
whether or not any such released claims were known to either of the Parties as of the
date of this Agreement. The Parties each waive the benefits of California Civil Code
Section 1542 and all other statutes and judicial decisions of similar effect with regard to
the limitations on damages and remedies and waivers of any such damage and
remedies contained in this Section 7G,
H. Indemnity.
Developer shall indemnify, protect, defend and hold harmless Agency, its elected
officials, employees and agents from and against any and all challenges to this
Agreement, or any and all losses, liabilities, damages, claims or costs (including
attorneys' fees) arising from Developer's negligent acts, errors, or omissions with respect
its obligations hereunder or the Property, excluding any such losses arising from the sole
negligence or sole willful misconduct of Agency or the conduct of third parties outside
the control of the Developer. This indemnity obligation shall survive the termination of
this Agreement. Notwithstanding the foregoing,.in the event of a third party challenge to
the validity of this Agreement, Developer shall have the option to terminate this
Agreement in lieu of its indemnity obligation, .
L Time is of the Essence,
Time is of the essence for each of Developer's obligations under this Agreement.
[NEXT PAGE IS SIGNATURE PAGE]
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Signature Page
To
Exclusive Negotiating Agreement
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the
date set forth above, thereby indicating the consent of their principals,
REDEVELOPMENT AGENCY OF THE
CITY OF CHULA VISTA
DOUGLAS WILSON COMPANIES,
A California Cor oration
By:
By:
Steve Padilla
Chair
Date:
Date: ~kl ,/
/
i5"
/
2coS-
APPROVED AS TO FORM:
By:
Ann Moore
Agency Attorney
Date:
ATTEST:
Susan Bigelow
City Clerk
"
.'
2-33
0 0.025-0.05
-
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0,1
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0,2
Miles
Added Area Redev, Project Area
o
Landis North
Douglas Wilson Companies
Town Centre I Redev, Project Area
2-34
Market Study
Site Plans and Elevations
Initial Pro Forma
EXHIBIT "B"
Exclusive Negotiating Agreement Timeline
Agency shall cause a reputable title company to issue a Preliminary Title Report on the
subject Property to the Developer.
Pre-design workshop to gather input from the public and stakeholders on the design
parameters and framework for the subject Property,
Forecast of regional and local real estate market conditions and anticipated performance of
anticipated product types,
Based on pre-design review with staff and public input received at Public Workshop #1,
submit preliminary site plans and elevations,
Concurrent with site plans and elevations, submit initial pro forma evaluations for the
proposed development.
Project Development
Schedule
Site Adequacy
Revised Site Plans and
Elevations
Revised Pro Forma
Projected timeline and schedule for the construction of the proposed development.
Developer shall provide written determination of whether the subject Property is physically
suitable for development taking into account regulatory and environmental conditions that
are deemed reievant.
Revisions based on staff review and comments, and consistency with applicable General
Plan land use policies, specific plans, design guidelines, and development standards,
Revisions based on revised site plans and elevations,
AAPAC or TCPAC /
Public Workshop #2
Final Site Plans and
Elevations
Final Pro Forma
Development Partners
and Structure
Funding Partners and
Structure
If Project is located in the Added Area or Town Centre I Project Areas, public workshop
with Project Area Committee to present proposed development proposals,
Final site plans and elevations,
Revisions based on revised site plans and elevations,
Identification of investment partners,
Identification of lenders and proof af ability to obtain financing,
.'
Redevelopment Agency /
City Council Presentation
Presentation of development proposal and DDNOPA to Agency and/or Council for final
review and consideration.
2-35
RESOLUTION NO.
RESOLUTION APPROVING AN EXCLUSIVE NEGOTIATING AGREEMENT
BETWEEN THE REDEVELOPMENT AGENCY AND CITYMARK
DEVELOPMENT LLC REGARDING THE REDEVELOPMENT OF THE
LANDIS AVENUE SOUTH SITE
WHEREAS, it is the role and responsibility of the Redevelopment Agency of the City of
Chula Vista ("Agency") to promote economic vitality, create market confidence, encourage
environmental health and remediation, create public benefits and amenities, and facilitate
the development, reconstruction, and rehabilitation of residential, commercial, industrial, and
retail uses; and
WHEREAS, an Exclusive Negotiating Agreement ("ENA") is an important redevelopment
tool to the Agency to establish a legal and contractual framework for negotiations and
provide a defined timeline for completion of predevelopment activities with a developer
about a potential redevelopment project; and
WHEREAS, CityMark Development LLC ("Developer") is interested in developing a
project to the southeast of Landis Avenue and Davidson Street ("Property"), located in the
Agency's Town Centre I Redevelopment Project Area; and
WHEREAS. the Redevelopment Agency has ownership of Property and issued a Request
for Qualifications to develop Property in accordance with all applicable plans and policies of
the City of Chula Vista and the Redevelopment Agency; and;
WHEREAS. staff has determined that Developer is qualified to design and develop a
high quality project at the proposed development site that is consistent with the goals of the
Agency's adopted Redevelopment Plan for the Town Centre I Redevelopment Project Area;
and
WHEREAS, Developer has acknowledged that the City is processing a General Plan
Update and an Urban Core Specific Plan and that the processing and/or adoption of these
plans is not a consideration in their proceeding with their development at this time; and
WHEREAS, it is in the interest of the Agency and the Developer for the Agency to
execute and enter into an ENA with Developer for the proposed development site based on
Developer's qualifications; and .'
WHEREAS, the ENA also retains Agency sole discretion for future actions necessary to
process any project and does not commit the Agency to the approval of or financial
participation in the project; and
WHEREAS. approval of the ENA is exempt from the California Environmental Quality Act
("CEQA") pursuant to Section 15061 (b)(3) of the State CEQA Guidelines; and
2-36
Page 2
RDA Resolution No.
NOW THEREFORE BE IT RESOLVED that the Redevelopment Agency of the City of Chula
Vista does hereby approve the Exclusive Negotiating Agreement with CityMark Development
LLC for potential development of a real estate project located at Landis Avenue South and
authorizes the Chair to execute said Agreement.
PRESENTED BY
Laurie Madigan
Director of Community Development
2-37
APPROVED AS TO FORM BY
~U2 I/zde
An Moore ~
Agency Attorney
EXCLUSIVE NEGOTIATING AGREEMENT
This Exclusive Negotiating Agreement ("Agreement"), dated as of this 26th day
of July, 2005 ("Effectlve Date"), is made by and between the City of Chula Vista Redevelopment
Agency, a public body, corporate and politic ("Agency") and CityMark Development, LLC, a
California limited liability company ("Developer"), with reference to the following facts:
RECITALS
In furtherance of the objectives of the California Community Redevelopment Law, the
Agency has undertaken a program for the redevelopment of certain areas within the City of
Chula Vista ("City"), and in connection therewith is undertaking and carrying out activities for
redevelopment in the Town Center I Redevelopment Project Area ("Project Area") pursuant to
and in furtherance of the redevelopment plan for the Project Area ("Redevelopment Plan"),
The subject matter of this Agreement concerns that certain real property located
within the Project Area as depicted on Exhibit "A" hereto ("Property"), The Property consists of
nine parcels encompassing approximately 46,352 square feet of territory located along the
eastern side of Landis Avenue, between Davidson Street and F Street in the City of Chula Vista
(Assessor Parcel Numbers 568-152-2300, 568-152-2400, 568-152-2500, 568-152-2600, 568-
152-2700, 568-152-2900, 568-152-0100, 568-152-0200, 568-152-0300).
The Developer is proposing to develop an urban mixed-use residential deveiopment
("Project") and desires to negotiate a Disposition and Development Agreement ("DDA") with the
Agency,
After a competitive selection process, the Agency selected the Developer as the
entity with which to negotiate terms for an agreement for development of the Property.
Therefore, the Agency desires to enter into this Agreement with the Developer with the objective
of determining the feasibility of the proposed project and consideration of entering into a
mutually acceptable DDA for the development of the Property consistent with the terms and
conditions of this Agreement at the earliest practical date,
The Developer anticipates that, following execution of this Agreement and through
the period of negotiation and preparation of a DDA with respect to the Project, it will devote
substantial time and effort in preparing plans, preparing project proformas, contacting financial
institutions, engaging appropriate consultants, and meeting with the City and various other
necessary third parties in connection with the proposed Project, and in negotiating and
preparing a DDA consistent with the basic terms and, mutual understandings established in this
Agreement. ':,:
The Agency and the Developer ("Parties") desire to enter into this Agreement in order to
set forth the rights and duties of the Parties during the term of the Exclusive Negotiating Period
subject to the Owner Participation rules and regulations established for the Project Area,
Now, therefore, the Parties mutually agree as follows:
2LS8
1, Good Faith Negotiations
A. Agency and Developer agree (for the period stated below) to negotiate in good
faith pursuant to the terms of this Agreement, a DDA or other form of agreement or agreements
to be entered into between the Agency and Developer concerning the purchase and
development of the Property by Developer. Agency agrees not to negotiate with any other
person or entity regarding development of the Property without the consent of Developer,
Nothing in this Agreement shall be deemed a covenant, promise or commitment by Agency, the
City of Chula Vista, or any agency of the City, with respect to the acquisition of property or the
approval of development or the proposed General PlanUpdate or Urban Core Specific Plan,
Agency's acceptance of this Agreement is merely an agreement to enter into a period of
exclusive negotiations according to the terms hereof, reserving final discretion and approval by
Agency as to any actions required of it
8, Notwithstanding the foregoing, if the Property incorporates parcels not under
Agency or Developer control, Developer acknowledges that Agency may receive from time to
time, unsolicited alternative proposals for the development of the Property, Agency shall notify
Developer within ten days after receiving an unsolicited development proposal for all or any
portion of the Property, Agency and Developer shall confer in good faith to assess the benefits
of the unsolicited proposal.
2, Negotiation Period
A. Agency and Developer agree to negotiate for an initial period of three hundred
(300) days which shall commence on the Effective Date unless earlier terminated in accordance
with the provisions hereof ("Initial Negotiation Period").
8, If, upon the expiration of such Initial Negotiation Period, the Parties have not
each approved and executed a DDA, then the Executive Director, in his or her sole discretion,
on behalf of the Agency, is authorized to extend, in writing, the term of this Agreement for up to
an additional ninety (90) days ("Extended Negotiation Period") provided that at the end of the
Initial Negotiation Period, neither the Agency nor the Developer has exercised its right to
terminate as provided herein and the Developer is in full compliance with all terms and
conditions hereof, the Developer concurs with such extension of the negotion period, and the
Executive Director has determined that there is a reasonable likelihood that the Developer will
agree to terms and conditions for the development of the Project on the Property that Agency
staff will be able to recommend approval of the DDA to the Agency prior to the expiration of the
Extended Negotiation Period,
C, If, after expiration of the Initial Negotiation Period, or after the Extended
Negotiation Period if this Agreement is extended, the Parties have not each approved and
executed a DDA, then this Agreement shall automatically terminate and Developer shall have
no further rights regarding the subject matter of this Agreement or the Property, and Agency
shall be free to negotiate with any other persons or entities with regard to the Property,
3, Obligations of Developer
A. Schedule
Agency and Developer agree and acknowledge that all submittals required by
this Agreement shall be submitted pursuant to the timeline attached hereto as Exhibit "8,"
22..'39
Exhibit "8" shall include, but is not limited to, submittals of Project plans, pro forma, marketing
and feasibility studies, and evidence of financing that are required by the Agency.
B, Development and Design Plans
During the negotiation period, Developer shall submit development and design
plans for the Project Developer shall also furnish such information to Agency regarding the
proposed project as may be required by Agency to perform an environmental review pursuant to
the California Environmental Quality Act ("CEQA"). All fees and expenses for engineers,
architects, financial consultants, legal, planning or other consultants retained by Developer to
perform Developer's obligations set forth in this Agreement shall be the sole responsibility of
Developer.
C. Reports, Studies and Public Participation
Developer shall make written reports to the Agency on the Developer's progress toward
meeting its obligations under this Agreement as requested by the Agency, and if requested by
the Agency, Developer shall make periodic oral progress reports on all matters and all studies
being made related to the acquisition of the Property and development of the Project and other
matters under negotiation to the extent that they do not include confidential matters, As Agency
deems reasonably necessary or appropriate, presentations may be requested at public forums
to solicit input from citizens, businesses, stakeholders and relevant interest groups,
D, Financing
Developer shall, consistent with Exhibit "B," develop a program of financing that provides
the Agency with reasonably satisfactory evidence that financing will be available for acquisition
and development of the Property,
E. Deposit
Within ten (10) days after the Effective Date, Developer shall deposit with Agency
Twenty-Five Thousand Dollars ($25,000) in immediately available funds ("ENA Deposit").
Agency shall have the right to utilize the deposit to conduct the Project analysis including but not
limited to pay third party consultants, City staff time (at applicable full cost recovery rates), and
other reasonable costs incurred by the Agency in conducting such analysis, Agency shall
request additional deposits if the ENA Deposit is exhausted and Agency determines further
analysis is required. Agency may cease negotiations and all activities of third party consultants
until such time as ENA Deposit is replenished as reasonably requested by Agency, Any deposit
balance remaining upon the termination of the Agreement shall be returned to Developer or
shall be applied to any deposit required by a subseq,\,ient DDA
4, Agency Obligations and Due Diligence
A During the Negotiation Period, the Agency shall conduct a due diligence
investigation of the Developer's ability to purchase, own and/or operate the Project in a
responsible manner, If the Executive Director determines in his or her sole discretion that
Developer does not have the ability to successfully purchase, own, and/or manage the Project
in a responsible manner, the Executive Director may terminate this Agreement by delivering
written notice thereof to Developer. Agency's due diligence efforts may include, without
limitation, the following:
23..-40
,
1. assessment of the proposed financing and the capacity of Developer to
qualify for financing for the Project; and
2. assessment of the capacity of Developer and its principal staff to
effectively own and/or manage the Project, including the ability to carry out any ongoing
management oversight responsibilities,
B, Agency agrees to cooperate with Developer in providing equity partner(s) and/or
lender(s) of Developer with appropriate and necessary information for the Developer to fulfill its
obligations hereunder, which information is not otherwise privileged,
C, The Agency shall also cooperate with Developer's professional consultants and
associates in providing them with any information and assistance, so far as such information is
not otherwise privileged, reasonably within the capacity, possession or control of the Agency in
connection with the preparation of the Developer's submissions to the Agency,
5. DDA
The Parties hereby acknowledge and agree that, during the Initial Negotiation Period
and, if applicable, the Extended Negotiation Period, the Parties shall use their respective good
faith efforts to negotiate and enter into a DDA which shall include (but not be limited to) the
following: (i) the design of the Project by the Developer, which design shall be subject to the
approval by the Agency and/or City, (ii) the construction of the Project by the Developer in
accordance with final plans and specifications to be provided by the Developer and approved by
the Agency and/or City, pursuant to a detailed schedule of performance by the Developer, (iii)
the operation and management of the Project by the Developer in a good and professional
manner and subject to the covenants required by law, (iv) the maintenance of landscaping,
buildings, and improvements in good condition and satisfactory state of repair so as to be
attractive to the community, (v) the operation of the Project by the Developer in compliance with
all equal opportunity standards established by federal, state and local law, (vi) provision by each
contractor and/or subcontractor (as the case may require and as appropriate) performing work
on the Project of the requisite performance bond and labor and materials payment bond to
assure completion of the Project freeof mechanics' liens, (vii) the Project shall be of the a quality
consistent with plans and renderings provided by Developer and approved by the Agency, (vii)
the terms and conditions upon which Deveioper shall acquire the Property and (viii) the terms
and conditions upon which either party may terminate the DDA (e.g" the discovery of
environmental issues/hazardous substances on the Site, unexpected development or
construction costs, inability to acquire the Property),
6, ADDITIONAL TERMS AND OBLIGATIONS
A
Real Estate Commissions,
.'
Neither Agency nor Developer shall be liable for any real estate commission or
brokerage fees which may arise herefrom except for a commission payable by Developer to Voit
Commercial Brokerage pursuant to a separate written agreement. Agency and Developer
represent that they have not engaged any other broker, agent or finder in connection with this
transaction and each party agrees to indemnify hold the other party free and harmless from and
defend the other against claims for commissions or fees made through such party and against
any damage or expense the other party may incur by reason of the untruth as to the warranting
party of the foregoing warranty, including expenses for attorney's fees and court costs,
zL-41
"
B, Each Party to Bear its Own Cost.
Each party shall bear its own costs incurred in connection with the negotiation of a DDA,
and the implementation of this Agreement, except as otherwise expressly provided herein or
expressly agreed in writing,
C, Confidentiality,
Agency and Developer recognize that disclosures made by Developer pursuant to this
Agreement may contain sensitive information and that the disclosure of such information to third
parties could impose commercially unreasonable and/or uncompetitive burdens on Developer
and, may correspondingly, diminish the value or fiscal benefit that may accrue to the Agency
upon the redevelopment of the Property by the Developer, if a future DDA is entered into by the
Parties, Developer acknowledges and agrees that Agency is a public entity with a responsibility
and, in many cases, legal obligation to conduct its business in a manner open and available to
the public. Accordingly, any information provided by Developer to Agency with respect to the
Property, the Project or Developer may be disclosed to the public either purposely,
inadvertently, or as a result of a public demand or order. With respect to any information
provided that Developer reasonably deems and identifies in writing as proprietary and
confidential in nature, Agency agrees to exercise its best efforts to keep such information
confidential. In addition, if Agency determines that it is required under applicable law to disclose
any information identified by Developer as proprietary and confidential in nature, Agency shall
notify Developer as least three business days before disclosure of such information which will
provide Developer the opportunity to seek a protective order preventing such disclosure,
D, Assignment
1, Agency would not have entered into this Agreement but for Developer's unique
qualifications and experience, Therefore, Developer's rights and obligations under this
Agreement may not be assigned without the prior written approval of Agency in its sole
discretion, Notwithstanding the foregoing, subject to the prior written approval of the Executive
Director, Developer may assign its rights hereunder to a new entity formed by the Developer for
purposes of developing the Project Such new entity may include additional parties provided
that the Developer retains responsibility for fulfilling its obligations hereunder and Developer
retains management control and authority over the entity and the Project
2, Upon the assignment sale or transfer, whether voluntary or involuntary, of more
than fifty percent (50%) of the membership, ownership, management or control of the Developer
(other than such changes occasioned by the death or incapacity of any individual) that has not
been approved by the Agency, prior to the time of s,uch change, the Agency may terminate this
Agreement, without liability, by sending written notice 'of termination to Developer.
3, Developer acknowledges that the City Council and Redevelopment Agency are
in the process of forming the Chula Vista Redevelopment Corporation ("CVRC"), All resolution
and ordinances necessary to form the CVRC have been adopted and the CVRC is currently
seeking incorporation status from the State, Upon the completion of that process and the
formation of the CVRC, all rights, duties, and obligations of the Agency under or pursuant to this
Agreement shall be automatically assigned to the CVRC,
25..-42
E, Nondiscrimination
Developer shall not discriminate against nor segregate any person, or group of persons
on account of race, color, creed, religion, sex, marital status, disability, national origin or
ancestry In undertaking its obligations under this Agreement
7. RETENTION OF DISCRETION
A. By its execution of this Agreement, Agency is not committing itself or agreeing to
undertake any activity requiring the subsequent exercise of discretion by Agency or City, or any
department thereof including, but not limited to, the approval and execution of a DDA; the
proposal, amendment, or approval of any land use regulation goveming the Property; the
provision of financial assistance for the development of any public or private interest in real
property; the authorization or obligation to use the Agency's eminent domain authority; or, any
other such activity,
B, Developer understands and agrees that the Agency and City, in their respective
legislative roles, reserve the right to exercise their discretion as to all matters which the Agency
and City are by law entitled or required to exercise such discretion, including but not limited to,
Entitlements for the development of the Property and adoption of any amendments to policy
documents (including the General Plan and Redevelopment Plans), In addition, Developer
understands and agrees that the Entitlements and any other documents shall be subject to and
brought to the Agency or City, as appropriate, for consideration in accordance with applicable
legal requirements, inciuding laws related to notice, public hearings, due process and the
California Environmental Quality Act
C, Developer acknowledges that any plans processed for the Property will be based
upon the current General Plan and Zoning Code of the City. Additionally, Developer
acknowledges that the City is processing a General Plan Update ("GPU") and Urban Core
Specific Plan ("UCSP"), which include the Property. Developer further acknowledges and
agrees that the City may consider a number of development alternatives for the Property for
consideration by the City Council as part of City's GPU and UCSP process, Developer agrees
and acknowledges that the processing and/or adoption of these plans by the City is not a
consideration in its proceeding with this agreement or the proposed development project and
Developer may need to request amendments to the existing General Plan or, if approved, the
GPU or UCSP. The GPU and UCSP are legislative actions and this agreement does not limit or
in any way interfere with the City Council's ability to exercise their discretionary authority as it
relates to these or any other legislative actions, The exercise of the City's legislative discretion
shall not form the basis of breach of this Agreement, express or implied, or any other claims
against the City.
.'
D. This Agreement does not constitute a disposition of property or exercise of
control over property by Agency and does not require a public hearing, Agency execution of
this Agreement is merely an agreement to enter into a period of exclusive negotiations
according to the terms hereof, reserving final discretion and approval by Agency as to any
proposed DDA and all proceedings and decisions in connection therewith, The parties
understand that Agency has the complete and unfettered discretion to reject a DDA without
explanation or cause, The risk of loss of all processing, design and developmental costs
incurred by the Developer prior to DDA approval shall be absorbed entirely by Developer except
unless expressly assumed, by the terms of this Agreement by the Agency, As to any matter
which the Agency may be required to exercise its unfettered discretion in advancing the Project
1i--43
to completion, nothing herein shall obligate the Agency to exercise its discretion in any particuiar
manner, and any exercise of discretion reserved hereunder or required by law, shall not be
deemed to constitute a breach of Agency duties under this agreement
8, TERMiNATION RIGHTS
Notwithstanding the Initial or Extended Negotiating Periods hereinabove set forth, either
party may terminate this Agreement if the other party has materially defaulted in its obligations
herein set forth, and the terminating party has provided defaulting party with written notification
of such determination, and the defaulting party has refused to cure same. The written
notification shall set forth the nature of the actions required to cure such default if curabie.
Defaulting party shall have 15 days from the date of the written notification to cure such default
If such default is not cured within the 15 days, the termination shall be deemed effective, Any
failure or delay by a party in asserting any of its rights or remedies as to any default shall not
operate as a waiver of any default or of any rights or remedies associated with a default Each
party shall also have the right to terminate this Agreement in the event that Agency or
Deveioper determines that (a) the Project is infeasible or not in the public interest; or (b) the
parties reach an impasse in their negotiation of the DDA which cannot be resolved after good
faith efforts.
9, GENERAL PROVISIONS
A. Address for Notice,
Deveioper's Address for Notice:
CityMark Development, LLC
701 B Street, Suite 1100
San Diego, California 92101
Attention: Mr. Richard V. Gustafson
Telephone: (619) 231-1161
Fax: (619) 235-4691
And
Hecht Solberg Robinson Goldberg & Bagiey LLP
600 W, Broadway, Eighth Floor
San Diego, California 92101
Attention: Ms. Tricia L, Greenlee
Telephone: (619) 239-3444
Fax: (619) 232-6828
"
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Agency's Address for Notice:
Redevelopment Agency of the City of Chula Vista
Community Development Department
276 Fourth Avenue
Chula Vista, CA 91910
Attn: Director of Community Development
Telephone: (619) 691-5047
21."44
Fax:
Copy to:
(619) 476-5310
City Attorney
B. Authority,
Each party represents that it has full right, power and authority to execute this
Agreement and to perform its obligations hereunder, without the need for any further action
under its governing instruments, and the parties executing this Agreement on the behalf of such
party are duly authorized agents with authority to do so.
C. Counterparts,
This Agreement may be executed in multiple copies, each of which shall be deemed an
original, but ali of which shall constitute one Agreement after each party has signed such a
counterpart.
D, Entire Agreement.
This Agreement together with all exhibits attached hereto and other agreements
expressly referred to herein, constitutes the entire Agreement between the parties with respect
to the subject matter contained herein. All prior or contemporaneous agreements,
understandings, representations, warranties and statements, oral or written, are superseded,
E, Further Assurances.
The parties agree to perform such further acts and to execute and deliver such
additional documents and instruments as may be reasonably required in order to carry out the
provisions of this Agreement and the intentions of the parties.
F. No Third Party Beneficiaries.
There are no other parties to this Agreement, express or implied, direct or indirect.
Agency and Developer acknowledge that it is not their intent to create any third party
beneficiaries to this Agreement.
G, Exclusive Remedies,
1. In the event of default by either party to this Agreement, the Parties shall have
the remedies of specific performance, mandamus, injunction 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' fellS shall not constitute damages based upon
breach of this Agreement where such an award is 'limited to the reasonable costs of litigation
incurred by the Parties,
2. Each party acknowledges that it is aware of the meaning and legal effect of
California Civil Code Section 1542, which provides:
A general release does not extend to claims which the creditor does not know or suspect
to exist in his favor at the time of executing the release, which if known by him would have
materially affected his settlement with debtor.
~5
California Civil Code Section 1542 notwithstanding, it is the intention of the Parties to be
bound by the limitation on damages and remedies set forth in this Section 7G, and the Parties
hereby release any and all claims against each other for monetary damages or other legal or
equitable relief related to any breach of this Agreement, whether or not any such released
claims were known to either of the Parties as of the date of this Agreement. The Parties each
waive the benefits of California Civil Code Section 1542 and all other statutes and judicial
decisions of similar effect with regard to the limitations on damages and remedies and waivers
of any such damage and remedies contained in this Section 7G,
H, Indemnity.
Developer shall indemnify, protect, defend and hold harmless Agency, its elected
officials, employees and agents from and against any and all challenges to this Agreement, or
any and all losses, liabilities, damages, claims or costs (including attorneys' fees) arising from
Developer's negligent acts, errors, or omissions with respect its obligations hereunder or the
Property, eXCluding any such losses arising from the sole negligence or sole willful misconduct
of Agency or the conduct of third parties outside the control of the Developer. This indemnity
obligation shall survive the termination of this Agreement Notwithstanding the foregoing, in the
event of a third party challenge to the validity of this Agreement, Developer shall have the option
to terminate this Agreement in lieu of its indemnity obligation.
L Time is of the Essence,
Time is of the essence for each of Developer's obligations under this Agreement
[NEXT PAGE IS SIGNATURE PAGE]
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2'2..-4 6
Signature Page
To
Exclusive Negotiating Agreement
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the
date set forth above, thereby indicating the consent of their principals,
REDEVELOPMENT AGENCY OF THE
THE CITY OF CHULA VISTA
CITYMARK DEVELOPMENT LLC
California Limited Liability Company
By:
Steve Padilla
Chair
By:
Xf?;
RiCha~~ ------
President
Date:
Date:
APPROVED AS TO FORM:
By:
Ann Moore
Agency Attorney
Date:
ATTEST:
"
0'
By:
Susan Bigelow
City Clerk
-tll.47
.
o 0.025 0.05
0,1
0.15
0,2
Miles
- -
~
Added Area Redev, Project Area 0
Landis South
City Mark Development
Town Centre I Redev, Project Area
2 48
EXHIBIT "B"
Exclusive Negotiating Agreement Timeline
Market Study
Site Plans and Elevations
Initial Pro Forma
Forecast of regional and local real estate market conditions and anticipated performance of
anticipated product types,
Based on pre-design review with staff and public input received at Public Workshop #1,
submit preliminary site plans and elevations,
Concurrent with site plans and elevations, submit initial pro forma evaluations for the
proposed development
Project Development
Schedule
Site Adequacy
Revised Site Plans and
Elevations
Revised Pro Forma
Projected timeline and schedule for the construction of the proposed development
Developer shall provide written determination of whether the subject Property is physically
suitable for development taking into account regulatory and environmental conditions that
are deemed relevant
Revisions based on staff review and comments, and consistency with applicable General
Plan land use policies, specific pians, design guidelines, and development standards,
Revisions based on revised site plans and elevations,
""'1',..
Iw:':" .
Finai Site Plans and
Elevations
Final Pro Forma
Development Partners
and Structure
Funding Partners and
Structure
Final site plans and elevations"
Revisions based on revised site plans and elevations,
Identification of investment partners,
Identification of lenders and proof o~}bility to obtain financing,
Redevelopment Agency /
City Council Presentation
Presentation of development proposal and DDAlOPA to Agency and/or Council for final
review and consideration,
2-49
RESOLUTION NO.
RESOLUTION APPROVING AN EXCLUSIVE NEGOTIATING AGREEMENT
BETWEEN THE REDEVELOPMENT AGENCY AND CITYMARK
DEVELOPMENT LLC REGARDING THE REDEVELOPMENT OF THE THIRD
AVENUE AND E STREET NORTHEAST SITE
WHEREAS, it is the role and responsibility of the Redevelopment Agency of the City of
Chula Vista ("Agency") to promote economic vitality, create market confidence, encourage
environmental health and remediation, create public benefits and amenities, and facilitate
the development, reconstruction, and rehabilitation of residential, commercial, industrial, and
retail uses; and
WHEREAS. an Exclusive Negotiating Agreement ("ENA") is an important redevelopment
tool to the Agency to establish a legal and contractual framework for negotiations and
provide a defined timeline for completion of predevelopment activities with a developer
about a potential redevelopment project; and
WHEREAS, CityMark Development LLC ("Developer") is interested in developing a
project at the northeast corner of Third Avenue and E Street ("Property"), located in the
Agency's Merged Redevelopment Project Area: and
WHEREAS, the Developer has submitted an unsolicited proposal for development of the
site;
WHEREAS, staff has determined that Developer is qualified to design and develop a
high quality project at the proposed development site that is consistent with the goals of the
Agency's adopted Redevelopment Plan for the Merged Redevelopment Project Area; and
WHEREAS, Developer has acknowledged that the City is processing a General Plan
Update and an Urban Core Specific Plan and that the processing and/or adoption of these
plans is not a consideration in their proceeding with their development at this time; and
WHEREAS. it is in the interest of the Agency and the Developer for the Agency to
execute and enter into an ENA with Developer for the proposed development site based on
Developer's qualifications; and
WHEREAS. the ENA also retains Agency','sole discretion for future actions necessary to
process any project and does not commit the Agency to the approval of or financial
participation in the project; and
WHEREAS, approval of the ENA is exempt from the California Environmental Quality Act
("CEQA") pursuant to Section 15061 (b) (3) of the State CEQA Guidelines; and
NOW THEREFORE BE IT RESOLVED lhat the Redevelopment Agency of the City of Chula
Vista does hereby approve the Exclusive Negotiating Agreement with CityMark Development
2-50
Page 2
RDA Resolution No.
LLC for potential development of a real estate project located at the northeast corner of Third
Avenue and E Street and authorizes the Chair to execute said Agreernent,
PRESENTED BY
APPROVED AS TO FORM BY
Laurie Madigan
Director of Cornrnunity Developrnent
~~4PA~
Agency Attorney
.
2-51
EXCLUSIVE NEGOTIATING AGREEMENT
This Exclusive Negotiating Agreement ("Agreement"), dated as of this 26th day
of July, 2005 ("Effective Date"), is made by and between the City of Chula Vista Redevelopment
Agency, a public body, corporate and politic ("Agency") and CityMark Development, LLC, a
California limited liability company ("Developer"), with reference to the following facts:
RECITALS
In furtherance of the objectives of the California Community Redeveiopment Law, the
Agency has undertaken a program for the redevelopment of certain areas within the City of
Chula Vista ("City"), and in connection therewith is undertaking and carrying out activities for
redevelopment In the Merged Redevelopment Project Area ("Project Area") pursuant to and in
furtherance of the redevelopment plan for the Project Area ("Redevelopment Plan"),
The subject matter of this Agreement concerns that certain real property iocated
within the Project Area as depicted on Exhibit "A" hereto ("Property"), The Property
encompasses approximately 52,906 square feet of territory iocated at 295 E Street, Chula Vista,
California, on the northeast corner of the intersection of Third Avenue and E Street (Assessor
Parcel Number 566-240-3000),
The Developer is proposing to develop an urban mixed-use residential development
("Project") and desires to negotiate a Disposition and Development Agreement ("DDA") with the
Agency,
Agency has received an unsolicited proposal for the redevelopment of the Property
from Deveioper, who is a qualified and interested developer, Therefore, the Agency desires to
enter into this Agreement with the Developer with the objective of determining the feasibility of
the proposed project and consideration of entering into a mutually acceptable DDA for the
development of the Property consistent with the terms and conditions of this Agreement at the
earliest practical date,
The Developer anticipates that, following execution of this Agreement and through
the period of negotiation and preparation of a DDA with respect to the Project, it will devote
substantial time and effort in preparing plans, preparing project proformas, contacting financial
institutions, engaging appropriate consultants, and meeting with the City and various other
necessary third parties in connection with the proposed Project, and in negotiating and
preparing a DDA consistent with the basic terms and mutual understandings established in this
Agreement
. .
.'
The Agency and the Developer ("Parties") desire to enter Into this Agreement in order to
set forth the rights and duties of the Parties during the term of the Exclusive Negotiating Period
subject to the Owner Participation rules and regulations established for the Project Area.
Now, therefore, the Parties mutually agree as follows:
2152
1, Good Faith Negotiations
A Agency and Developer agree (for the period stated below) to negotiate in good
faith pursuant to the terms of this Agreement, a DDA or other form of agreement or agreements
to be entered into between the Agency and Developer concerning the purchase and
development of the Property by Developer, Agency agrees not to negotiate with any other
person or entity regarding development of the Property without the consent of Developer.
Nothing in this Agreement shall be deemed a covenant, promise or commitment by Agency, the
City of Chula Vista, or any agency of the City, with respect to the acquisition of property or the
approval of development or the proposed General Plan Update or Urban Core Specific Plan,
Agency's acceptance of this Agreement is merely an agreement to enter into a periOd of
exclusive negotiations according to the terms hereof, reserving final discretion and approval by
Agency as to any actions required of it.
B. Notwithstanding the foregoing, if the Property incorporates parcels not under
Agency or Developer control, Developer acknowledges that Agency may receive from time to
time, unsolicited alternative proposals for the development of the Property. Agency shall notify
Developer within ten days after receiving an unsolicited development proposal for all or any
portion of the Property. Agency and Developer shall confer in good faith to assess the benefits
of the unsolicited proposal.
2, Negotiation Period
A Agency and Developer agree to negotiate for an initial periOd of three hundred
(300) days which shall commence on the Effective Date unless earlier terminated in accordance
with the provisions hereof ("Initial Negotiation Period"),
B. If, upon the expiration of such Initial Negotiation Period, the Parties have not
each approved and executed a DDA, then the Executive Director, in his or her sole discretion,
on behalf of the Agency, is authorized to in writing extend the term of this Agreement for up to
an additional ninety (90) days ("Extended Negotiation Period") provided that at the end of the
Initial Negotiation Period, neither the Agency nor the Developer has exercised its right to
terminate as provided herein and the Developer is in full compliance with all terms and
conditions hereof, the Developer concurs with such extension of the negotion period, and the
Executive Director has determined that there is a reasonable likelihood that the Developer will
agree to terms and conditions for the development of the Project on the Property that Agency
staff will be able to recommend approval of the DDA to the Agency prior to the expiration of the
Extended Negotiation Period,
C, If, after expiration of the Initial Negotiation Period, or after the Extended
Negotiation Period if this Agreement is extended,,Jhe Parties have not each approved and
executed a DDA, then this Agreement shall automatically terminate and Developer shall have
no further rights regarding the subject matter of this Agreement or the Property, and Agency
shall be free to negotiate with any other persons or entities with regard to the Property,
3, Obligations of Developer
A Schedule
Agency and Developer agree and acknowledge that all submittals required by
this Agreement shall be submitted pursuant to the timeline attached hereto as Exhibit "B,"
22.'53
Exhibit "6" shall include, but is not limited to, submittals of Project plans, pro forma, marketing
and feasibility studies, and evidence of financing that are required by the Agency,
B, Development and Design Plans
During the negotiation period, Deveioper shall submit development and design
plans for the Project. Developer shall also furnish such information to Agency regarding the
proposed project as may be required by Agency to perform an environmental review pursuant to
the California Environmental Quality Act ("CEQA"). All fees and expenses for engineers,
architects, financial consultants, legal, planning or other consultants retained by Developer to
perforrn Developer's obligations set forth in this Agreement shall be the sole responsibility of
Developer.
C, Reports, Studies and Public Participation
Developer shall make written reports to the Agency on the Developer's progress toward
meeting its obligations under this Agreement as requested by the Agency, and if requested by
the Agency, Developer shall make periodic oral progress reports on all matters and all studies
being made related to the acquisition of the Property and development of the Project and other
matters under negotiation to the extent that they do not include confidential matters, As Agency
deems reasonably necessary or appropriate, presentations may be requested at public forums
to solicit input from citizens, businesses, stakeholders and relevant interest groups,
0, Financing
Developer shall, consistent with Exhibit "6," develop a program of financing that provides
the Agency with reasonably satisfactory evidence that financing will be available for acquisition
and development of the Property,
E, Deposit
Within ten (10) days after the Effective Date, Developer shall deposit with Agency
Twenty-Five Thousand Dollars ($25,000) in immediately available funds ("ENA Deposit"),
Agency shall have the right to utilize the deposit to conduct the Project analysis including but not
limited to pay third party consultants, City staff time (at applicable full cost recovery rates), and
other reasonable costs incurred by the Agency in conducting such analysis, Agency shall
request additional deposits if the ENA Deposit Is exhausted and Agency determines further
analysis is required, Agency may cease negotiations and all activities of third party consultants
until such time as ENA Deposit is replenished as reasonably requested by Agency, Any deposit
balance remaining upon the termination of the Agreement shall be returned to Developer or
shall be applied to any deposit required by a subseq\.lent DDA.
.
4, Agency Obligations and Due Diligence
A. During the Negotiation Period, the Agency shall conduct a due diligence
investigation of the Developer's ability to purchase, own and/or operate the Project in a
responsible manner. If the Executive Director determines in his or her sole discretion that
Developer does not have the ability to successfully purchase, own, and/or manage the Project
in a responsible manner, the Executive Director may terminate this Agreement by delivering
written notice thereof to Developer. Agency's due diligence efforts may include, without
limitation, the following:
-23-=54
1, assessment of the proposed financing and the capacity of Developer to
qualify for financing for the Project; and
2. assessment of the capacity of Developer and its principal staff to
effectively own and/or manage the Project, including the ability to carry out any ongoing
management oversight responsibilities,
B. Agency agrees to cooperate with Developer in providing equity partner(s) and/or
lender(s) of Developer with appropriate and necessary information for the Deveioper to fulfill its
obligations hereunder, which information is not otherwise privileged,
C, The Agency shall also cooperate with Developer's professional consultants and
associates in providing them with any information and assistance, so far as such information is
not otherwise privileged, reasonably within the capacity, possession or control of the Agency in
connection with the preparation of the Developer's submissions to the Agency.
5, DDA
The Parties hereby acknowledge and agree that, during the Initial Negotiation Period
and, if applicable, the Extended Negotiation Period, the Parties shall use their respective good
faith efforts to negotiate and enter into a DDA which shall include (but not be limited to) the
following: (i) the design of the Project by the Developer, which design shall be subject to the
approval by the Agency and/or City, (ii) the construction of the Project by the Developer in
accordance with final plans and specifications to be provided by the Developer and approved by
the Agency and/or City, pursuant to a detailed schedule of performance by the Developer, (iii)
the operation and management of the Project by the Developer in a good and professional
manner and subject to the covenants required by law, (iv) the maintenance of landscaping,
buildings, and improvements in good condition and satisfactory state of repair so as to be
attractive to the community, (v) the operation of the Project by the Developer in compliance with
all equal opportunity standards established by federal, state and local law, (vi) provision by each
contractor and/or subcontractor (as the case may require and as appropriate) performing work
on the Project of the requisite performance bond and iabor and materials payment bond to
assure completion of the Project freeof mechanics' liens, (vii) the Project shall be of the a quality
consistent with plans and renderings provided by Developer and approved by the Agency, (vii)
the terms and conditions upon which Developer shall acquire the Property and (viii) the terms
and conditions upon which either party may terminate the DDA (e.g., the discovery of
environmental issues/hazardous substances on the Site, unexpected development or
construction costs, inability to acquire the Property),
6, ADDITIONAL TERMS AND OBLIGATIONS
A.
Real Estate Commissions,
.'
"
Neither Agency nor Developer shall be liable for any real estate commiSSion or
brokerage fees which may arise herefrom except for a commission payable by Developer to Voit
Commercial Brokerage pursuant to a separate written agreement Agency and Developer
represent that they have not engaged any other broker, agent or finder in connection with this
transaction and each party agrees to indemnify hold the other party free and harmless from and
defend the other against claims for commissions or fees made through such party and against
any damage or expense the other party may incur by reason of the untruth as to the warranting
party of the foregoing warranty, including expenses for attorney's fees and court costs,
2"--5 5
B, Each Party to Bear its Own Cost
Each party shall bear its own costs incurred in connection with the negotiation of a DDA,
and the implementation of this Agreement, except as otherwise expressly provided herein or
expressly agreed in writing,
C, Confidentiality.
Agency and Developer recognize that disclosures made by Developer pursuant to this
Agreement may contain sensitive information and that the disclosure of such information to third
parties could impose commercially unreasonable and/or uncompetitive burdens on Developer
and, may correspondingly, diminish the vaiue or fiscal benefit that may accrue to the Agency
upon the redevelopment of the Property by the Developer, if a future DDA is entered into by the
Parties, Developer acknowledges and agrees that Agency is a public entity with a responsibility
and, in many cases, legal obligation to conduct its business in a manner open and available to
the public. Accordingly, any information provided by Developer to Agency with respect to the
Property, the Project or Developer may be disclosed to the public either purposely,
inadvertently, or as a result of a public demand or order. With respect to any information
provided that Developer reasonably deems and identifies in writing as proprietary and
confidential in nature, Agency agrees to exercise its best efforts to keep such information
confidential. In addition, if Agency determines that it is required under applicable law to disclose
any information identified by Developer as proprietary and confidential in nature, Agency shall
notify Developer as least three business days before disclosure of such information which will
provide Developer the opportunity to seek a protective order preventing such disclosure,
D, Assignment
1. Agency would not have entered into this Agreement but for Developer's unique
qualifications and experience, Therefore, Developer's rights and obligations under this
Agreement may not be assigned without the prior written approval of Agency in its sole
discretion, Notwithstanding the foregoing, subject to the prior written approval of the Executive
Director, Developer may assign its rights hereunder to a new entity formed by the Developer for
purposes of developing the Project Such new entity may include additional parties provided
that the Developer retains responsibility for fulfilling its obligations hereunder and Developer
retains management control and authority over the entity and the Project
2, Upon the assignment sale or transfer, whether voluntary or involuntary, of more
than fifty percent (50%) of the membership, ownership, management or controi of the Deveioper
(other than such changes occasioned by the death or incapacity of any individual) that has not
been approved by the Agency, prior to the time of s.uch change, the Agency may terminate this
Agreement, without liability, by sending written notice of termination to Developer.
3, Developer acknowledges that the City Council and Redevelopment Agency are
in the process of forming the Chula Vista Redevelopment Corporation ("CVRC"), All resolution
and ordinances necessary to form the CVRC have been adopted and the CVRC is currently
seeking incorporation status from the State. Upon the completion of that process and the
formation of the CVRC, all rights, duties, and obligations of the Agency under or pursuant to this
Agreement shall be automatically assigned to the CVRC,
2s..-56
.
E, Nondiscrimination
Developer shall not discriminate against nor segregate any person, or group of persons
on account of race, color, creed, religion, sex, marital status, disability, national origin or
ancestry in undertaking its obligations under this Agreement.
F. Owner Participation Requirements
This Agreement and the obligations of the Parties set forth herein are subject to the
applicable Owner Participation rules and regulations established for the Project Area and
California Community Redevelopment Law, The Agency has used its best efforts to comply with
all such Owner Participation rules and regulations with respect to the Property,
7. RETENTION OF DISCRETION
A. By its execution of this Agreement, Agency is not committing itself or agreeing to
undertake any activity requiring the subsequent exercise of discretion by Agency or City, or any
department thereof including, but not limited to, the approval and execution of a DDA; the
proposai, amendment, or approval of any land use regulation governing the Property; the
provision of financial assistance for the deveiopment of any public or private interest in real
property; the authorization or obligation to use the Agency's eminent domain authority; or, any
other such activity,
B, Developer understands and agrees that the Agency and City, in their respective
legislative roles, reserve the right to exercise their discretion as to all matters which the Agency
and City are by law entitled or required to exercise such discretion, including but not limited to,
Entitlements for the development of the Property and adoption of any amendments to policy
documents (including the General Plan and Redevelopment Plans). In addition, Developer
understands and agrees that the Entitlements and any other documents shall be subject to and
brought to the Agency or City, as appropriate, for consideration in accordance with appiicable
legal requirements, including laws related to notice, public hearings, due process and the
California Environmental Quality Act.
C. Developer acknowledges that any plans processed for the Property will be based
upon the current General Plan and Zoning Code of the City, Additionally, Developer
acknowledges that the City is processing a General Plan Update ("GPU") and Urban Core
Specific Plan ("UCSP"), which include the Property. Developer further acknowledges and
agrees that the City may consider a number of development alternatives for the Property for
consideration by the City Council as part of City's GPU and UCSP process. Developer agrees
and acknowledges that the processing and/or adoption of these plans by the City is not a
consideration in its proceeding with this Agreement ot- the proposed development project and
Developer may need to request amendments to the existing General Plan or, if approved, the
GPU or UCSP. The GPU and UCSP are legislative actions and this agreement does not limit or
in any way interfere with the City Council's ability to exercise their discretionary authority as it
relates to these or any other legislative actions, The exercise of the City's legislative discretion
shall not form the basis of breach of this Agreement, express or implied, or any other claims
against the City,
D, This Agreement does not constitute a disposition of property or exercise of
control over property by Agency and does not require a public hearing. Agency execution of
this Agreement is merely an agreement to enter into a period of exclusive negotiations
~1i7
according to the terms hereof, reserving final discretion and approval by Agency as to any
proposed DDA and ail proceedings and decisions in connection therewith. The parties
understand that Agency has the complete and unfettered discretion to reject a DDA without
explanation or cause. The risk of loss of ail processing, design and deveiopmental costs
incurred by the Developer prior to DDA approval shall be absorbed entirely by Developer except
unless expressly assumed, by the terms of this Agreement by the Agency, As to any matter
which the Agency may be required to exercise its unfettered discretion in advancing the Project
to completion, nothing herein shail obligate the Agency to exercise its discretion in any particular
manner, and any exercise of discretion reserved hereunder or required by law, shail not be
deemed to constitute a breach of Agency duties under this agreement
8. TERMINATION RIGHTS
Notwithstanding the Initial or Extended Negotiating Periods hereinabove set forth, either
party may terminate this Agreement if the other party has materiaily defaulted in its obligations
herein set forth, and the terminating party has provided defaulting party with written notification
of such determination, and the defaulting party has refused to cure same, The written
notification shail set forth the nature of the actions required to cure such default if curable,
Defaulting party shail have 15 days from the date of the written notification to cure such default
If such default is not cured within the 15 days, the termination shail be deemed effective, Any
failure or delay by a party in asserting any of its rights or remedies as to any default shail not
operate as a waiver of any default or of any rights or remedies associated with a default Each
party shail also have the right to terminate this Agreement in the event that Agency or
Developer determines that (a) the Project is infeasible or not in the public interest; or (b) the
parties reach an impasse in their negotiation of the DDA which cannot be resolved after good
faith efforts,
9. GENERAL PROVISIONS
A Address for Notice,
Developer's Address for Notice:
CityMark Development, LLC
701 B Street, Suite 1100
San Diego, California 92101
Attention: Mr. Richard V. Gustafson
Telephone: (619) 231-1161
Fax: (619) 235-4691
And
.'
Hecht Solberg Robinson Goldberg & Bagley LLP
600 W, Broadway, Eighth Floor
San Diego, California 92101
Attention: Ms. Tricia L. Greenlee
Telephone: (619) 239-3444
Fax: (619) 232-6828
21:58
Agency's Address for Notice:
Redevelopment Agency of the City of Chula Vista
Community Development Department
276 Fourth Avenue
Chula Vista, CA 91910
Attn: Director of Community Development
Telephone: (619) 691-5047
Fax: (619) 476-5310
Copy to: City Attorney
B, Authority,
Each party represents that it has full right, power and authority to execute this
Agreement and to perform its obligations hereunder, without the need for any further action
under its governing instruments, and the parties executing this Agreement on the behalf of such
party are duly authorized agents with authority to do so,
C, Counterparts,
This Agreement may be executed in multiple copies, each of which shall be deemed an
original, but all of which shall constitute one Agreement after each party has signed such a
counterpart,
D. Entire Agreement.
This Agreement together with all exhibits attached hereto and other agreements
expressly referred to herein, constitutes the entire Agreement between the parties with respect
to the subject matter contained herein, All prior or contemporaneous agreements,
understandings, representations, warranties and statements, oral or written, are superseded.
E, Further Assurances,
The parties agree to perform such further acts and to execute and deliver such
additional documents and instruments as may be reasonably required in order to carry out the
provisions of this Agreement and the intentions of the parties,
F, No Third Party Beneficiaries.
There are no other parties to this Agreement, express or implied, direct or indirect.
Agency and Developer acknowledge that it Is Q9t their intent to create any third party
beneficiaries to this Agreement. .
G, Exclusive Remedies,
1, In the event of default by either party to this Agreement, the Parties shall have
the remedies of specific performance, mandamus, injunction 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
breach of this Agreement where such an award is limited to the reasonable costs of litigation
incurred by the Parties,
28.."59
2, Each party acknowledges that it is aware of the meaning and legal effect of
California Civil Code Section 1542, which provides:
A general release does not extend to claims which the creditor does not know or suspect
to exist in his favor at the time of executing the release, which if known by him would have
materially affected his settlement with debtor.
California Civil Code Section 1542 notwithstanding, it is the intention of the Parties to be
bound by the limitation on damages and remedies set forth in this Section 7G, and the Parties
hereby release any and all claims against each other for monetary damages or other legal or
equitable relief related to any breach of this Agreement, whether or not any such released
claims were known to either of the Parties as of the date of this Agreement. The Parties each
waive the benefits of California Civil Code Section 1542 and all other statutes and judicial
decisions of similar effect with regard to the limitations on damages and remedies and waivers
of any such damage and remedies contained in this Section 7G.
H. Indemnity,
Developer shall indemnify, protect, defend and hold harmless Agency, its elected
officials, employees and agents from and against any and all challenges to this Agreement, or
any and all losses, liabilities, damages, claims or costs (including attorneys' fees) arising from
Developer's negligent acts, errors, or omissions with respect its obligations hereunder or the
Property, excluding any such losses arising from the sole negligence or sole willful misconduct
of Agency or the conduct of third parties outside the control of the Developer. This indemnity
obligation shall survive the termination of this Agreement. Notwithstanding the foregoing, in the
event of a third party challenge to the validity of this Agreement, Developer shall have the option
to terminate this Agreement in lieu of its indemnity obligation.
L Time is of the Essence.
Time is of the essence for each of Developer's obligations under this Agreement.
[NEXT PAGE IS SIGNATURE PAGE]
22.1) 0
Signature Page
To
Exclusive Negotiating Agreement
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the
date set forth above, thereby indicating the consent of their principals,
REDEVELOPMENT AGENCY OF THE
THE CITY OF CHULA VISTA
CITYMARK DEVELOPMENT LLC
California Limited Liability Company
Steve Padilla
Chair
By:
~
>q~~
Richard V, Gusta n
President
------
By:
Date:
Date:
APPROVED AS TO FORM:
By:
Ann Moore
Agency Attorney
Date:
.'
ATTEST:
By:
Susan Bigelow
City Clerk
-iJl.61
0 0.025--0.05
-
~ -
.~
0,1
0.15
0.2
Miles
Added Area Redev, Project Area
o
3rd A venue & E Street. Northeast Corner
City Mark Developrnent
Town Centre I Redev, Project Area
2-62
EXHISIT "S"
Exclusive Negotiating Agreement Timeline
Market Study
Site Plans and Elevations
Initial Pro Forma
Forecast of regional and local real estate market conditions and anticipated performance of
anticipated product types,
Based on pre-design review with staff and public input received at Public Workshop #1,
submit preliminary site plans and elevations,
Concurrent with site plans and elevations, submit initial pro forma evaluations for the
proposed development
Project Development
Schedule
Site Adequacy
Revised Site Plans and
Elevations
Revised Pro Forma
Projected timeline and schedule for the construction of the proposed development
Developer shall provide written determination of whether the subject Property is physically
suitable for development taking into account regulatory and environmental conditions that
are deemed relevant
Revisions based on staff review and comments, and consistency with applicable General
Plan land use policies, specific plans, design guidelines, and development standards,
Revisions based on revised site plans and elevations,
Finai Site Plans and
Elevations
Final Pro Forma
Development Partners
and Structure
Funding Partners and
Structure
Final site plans and elevations,
Revisions based on revised site plans and elevations,
Identification of investment partners,
Identification of lenders and proof o~ability to obtain financing,
..
Redevelopment Agency /
City Council Presentation
Presentation of development proposal and DDNOPA to Agency and/or Council for final
review and consideration,
2-63
RESOLUTION NO,
RESOLUTION APPROVING AN EXCLUSIVE NEGOTIATING AGREEMENT
BETWEEN THE REDEVELOPMENT AGENCY AND AVION DEVELOPMENT
LLC REGARDING THE REDEVELOPMENT OF THE THIRD AVENUE AND E
STREET SOUTHEAST SITE
WHEREAS, it is the role and responsibility of the Redevelopment Agency of the City of
Chula Vista ("Agency") to promote economic vitality, create market confidence, encourage
environmental health and remediation, create public benefits and amenities, and facilitate
the development. reconstruction. and rehabilitation of residential, commercial, industrial, and
retail uses; and
WHEREAS, an Exclusive Negotiating Agreement ("ENA") is an important redevelopment
tool to the Agency to establish a legal and contractual framework for negotiations and
provide a defined timeline for completion of predevelopment activities with a developer
about a potential redevelopment project; and
WHEREAS, Avion Development LLC ("Developer") is interested in developing a project
at the southeast corner of Third Avenue and E Street ("Property"), located in the Agency's
Town Centre I Redevelopment Project Area; and
WHEREAS, the Developer has submitted an unsolicited proposal for development of the
site;
WHEREAS, staff has determined that Developer is qualified to design and develop a
high quality project at the proposed development site that is consistent with the goals of the
Agency's adopted Redevelopment Plan for the Town Centre I Redevelopment Project Area;
and
WHEREAS, Developer has acknowledged that the City is processing a General Plan
Update and an Urban Core Specific Plan and that the processing and/or adoption of these
plans is not a consideration in their proceeding with their development at this time; and
WHEREAS, it is in the interest of the Agency and the Developer for the Agency to
execute and enter into an ENA with Developer for the proposed development site based on
Developer's qualifications; and
WHEREAS, the ENA also retains Agency',.sole discretion for future actions necessary to
process any project and does not commit the Agency to the approval of or financial
participation in the project; and
WHEREAS, approval of the ENA is exempt from the California Environmental Quality Act
("CEQA") pursuant to Section 15061 (b) (3) of the state CEQA Guidelines; and
NOW THEREFORE BE IT RESOLVED that the Redevelopment Agency of the City of Chula
Vista does hereby approve the Exclusive Negotiating Agreement with Avion Development LLC
2-64
Page 2
RDA Resolution No.
for potential development of a real estate project located at the southeast corner of Third
Avenue and E street and authorizes the Chair to execute said Agreement,
PRESENTED BY
APPROVED AS TO FORM BY
Laurie Madigan
Director of Community Development
~#df
An oore
Agency Attorney
"
2-65
EXCLUSIVE NEGOTIATING AGREEMENT
This Exclusive Negotiating Agreement ("Agreement"), dated as of this 26th
day of July 2005 ("Effective Date"), is made by and between the City of Chu1a Vista
Redevelopment Agency, a public body, corporate and politic ("Agency") and Avion
Developrnent, LLC, a California limited liability company ("Developer"), with reference to the
following facts:
RECITALS
A. In furtherance of the objectives of the California Community Redevelopment Law,
the Agency has undertaken a program for the redevelopment of certain areas within the City of
Chu1a Vista ("City"), and in connection therewith is undertaking and carrying out activities for
redevelopment in the Town Centre I Redevelopment Project Area ("Project Area") pursuant to
and in furtherance of the redevelopment plan for the Project Area ("Redevelopment Plan").
B. The subject matter of this Agreement concerns that certain real property located
within the Project Area as depicted on Exhibit "A" hereto ("Property"). The Property is located
on the east side of Third Avenue and the south side of E Street, and is also known as 201 Third
Avenue (APN 5680710100).
C. The Developer is proposing to develop a mixed-use residential building, to be
further defined in future schematic plans to be approved by the parties, ("Project") and desires to
negotiate a Disposition and Development Agreement ("DDA") with the Agency.
D, Agency has received an unsolicited proposal for the redevelopment of the Property
from a qualified and interested developer, Therefore, the Agency desires to enter into this
Agreement with the Developer with the objective of detennining the feasibility of the proposed
project and consideration of entering into a mutually acceptable DDA for the development of the
Property consistent with the terms and conditions of this Agreement at the earliest practical date,
E. The Developer anticipates that, following execution of this Agreement and through
the period of negotiation and preparation of a DDA with respect to the Project, it will devote
substantial time and effort in preparing plans, preparing project proformas, contacting financial
institutions, engaging appropriate consultants, and meeting with the City and various other
necessary third parties in connection with the propo.sed Project, and in negotiating and preparing
a DDA consistent with the basic terms and mutual understandings established in this Agreement.
.'
F. The Agency and the Developer ("Parties") desire to enter into this Agreement in
order to set forth the rights and duties of the Parties during the term of the Exclusive Negotiating
Period subject to the Owner Participation rules and regulations established for the Project Area.
G. The recitals stated herein are an integral part of the Agreernent and shall be used in interpreting the Agreement if the need arises.
310241.1
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Now, therefore, the Parties mutually agree as follows:
1. Good Faith Negotiations
A. Agency and Developer agree (for the period stated below) to negotiate in good faith
pursuant to the terms of this Agreement a DDA or other form of agreement or agreements to be
entered into between the Agency and Developer concerning the purchase and development of the
Property. Agency agrees not to negotiate with any other person or entity regarding development
of the Property without the consent of Developer. Nothing in this Agreement shall be deemed a
covenant, promise or commitment by Agency, the City of Chula Vista, or any agency of the City,
with respect to the acquisition of property or the approval of development or the proposed
General Plan Update or Urban Core Specific Plan. Agency's acceptance of this Agreement is
merely an agreement to enter into a period of exclusive negotiations according to the terms
hereof, reserving final discretion and approval by Agency as to any actions required of it
B. Notwithstanding the foregoing, if the Property incorporates parcels not under Agency
or Developer control, Developer acknowledges that Agency may receive from time to time,
unsolicited alternative proposals for the development of the Property. Agency shall notify
Developer within ten days after receiving an unsolicited development proposal for all or any
portion of the Property. Agency and Developer shall confer in good faith to assess and benefits
of the unsolicited proposal.
2. Negotiation Period
A. Agency and Developer agree to negotiate for an initial 300 days, which shall
commence on the Effective Date unless earlier terminated in accordance with the provisions
hereof ("Initial Negotiation Period").
B. If, upon the expiration of such Initial Negotiation Period, the Parties have not each
approved and executed a DDA, then the Executive Director, in his sole discretion, on behalf of
the Agency, is authorized to, in writing, extend the term of this Agreement for up to an additional
90 days ("Extended Negotiation Period") provided that at the end of the Initial Negotiation
Period, the Agency has not exercised its right to terminate as herein provided, the Developer is in
full compliance with all terms and conditions hereof, the Developer concurs with such extension
of the negotiation period, and the Executive Director has determined that there is a reasonable
likelihood that the Developer will agree to terms and conditions for the development of the
Project on the Property required for the deve10pmen~ of the Project that Agency staff will be able
to recommend to Agency prior to the expiration of ~e Extended Negotiation Period.
C. If, after expiration of the Initial Negotiation Period, or after the Extended Negotiation
Period if this Agreement is extended, the Parties have not each approved and executed a DDA,
then this Agreement shall automatically terminate and Developer shall have no further rights
regarding the subject matter of this Agreement or the Property, and Agency shall be free to
negotiate with any other persons or entities with regard to the Property,
310241.1
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3. Obligations of Developer
A. Schedule
Agency and Developer agree and acknowledge that all submittals required by this
Agreement shall be submitted pursuant to the timeline attached hereto as Exhibit "B." Exhibit
"B" shall include, but is not limited to, submittals of Project plans, pro forma, marketing and
feasibility studies, and evidence of financing that are required by the Agency; and commence
good faith negotiations with Agency designated prospective owner participants in the Project.
B. Development and Design Plans
During the negotiation period, Developer shall submit development and design plans,
drawings, schedules, and concepts for the Project. Developer shall also furnish such information
to Agency regarding the proposed project as may be required by Agency to perform an
environmental review pursuant to the California Environmental Quality Act (CEQA). All fees
and expenses for engineers, architects, financial consultants, legal, planning or other consultants
retained by Developer to perform Developer's obligations set forth in this Agreement shall be the
sole responsibility of Developer. The documents and plans submitted pursuant to this
Agreement are the exclusive and proprietary property of Developer.
C. Reports, Studies and Public Participation
Developer shall make monthly written reports to the Agency on the Developer's progress
toward meeting its obligations under this Agreement, and if requested by the Agency, Developer
shall make periodic oral progress reports on all matters and all studies being made related to the
acquisition and development of the Project and other matters under negotiation to the extent that
they do not include confidential matters, As Agency deems reasonably necessary or appropriate,
presentations may be requested at public forums to solicit input from citizens, businesses,
stakeholders and relevant interest groups.
D. Financing
Developer shall, consistent with Exhibit "B," develop a program of financing that
provides the Agency with reasonably satisfactory evidence that financing will be available for
acquisition and development of the Property.
E. Deposit
Within ten (10) days after the Effective Date, Developer shall deposit with Agency
Twenty-Five Thousand dollars ($25,000.00) in immediately available funds ("ENA Deposit").
Agency shall have the right to utilize the deposit to conduct the Project analysis including but not
limited to pay third party consultants, City staff time (at applicable full cost recovery rates), and
other reasonable costs incurred by the Agency in conducting such analysis. Agency shall request
additional deposits if the ENA Deposit is exhausted and Agency determines further analysis is
required. Agency may cease negotiations and all activities of third party consultants until such
310241.1
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time as ENA Deposit is replenished as reasonably requested by Agency. Any deposit balance
remaining upon the tennination of the Agreement shall be returned to Developer or shall be
applied to any deposit required by a subsequent DDA.
4. Agency Obligations and Due Diligence
A. During the Negotiation Period, the Agency shall conduct a due diligence
investigation of the Developer's ability to purchase, own and/or operate the Project in a
responsible manner. If the Agency Executive Director detennines in his sole discretion that
Developer does not have the ability to successfully purchase, own, and/or manage the Project in
a responsible manner, the Agency Executive Director may tenninate this Agreement by
delivering written notice thereof to Developer. Written notice provided by the Agency shall
identify the reason for tennination. Agency's due diligence efforts may include, without
limitation, the following:
1. assessment of the proposed financing and the capacity of Developer to
qualify for financing for the Project; and
2. assessment of the capacity of Developer and their principal staff to
effectively own and/or manage the Project, including the ability to carry out any ongoing
management oversight responsibilities
B. Agency agrees to cooperate with Developer in providing equity partner(s) and/or
1ender(s) of Developer with appropriate and necessary information for the Developer to fulfill its
obligations hereunder, which information is not otherwise privileged.
C. The Agency shall also cooperate with Developer's professional consultants and
associates in providing them with any information and assistance, so far as such information is
not otherwise privileged, reasonably within the capacity of the Agency in connection with the
preparation of the Developer's submissions to the Agency.
5. DDA
The Parties hereby acknowledge and agree that, during the Negotiation Period of this
Agreement the Parties shall use their respective good faith efforts to negotiate and enter into a
DDA which shall include (but not be limited to) the following: (i) the design of the Project by the
Developer, which design shall be subject to the approval by the Agency and/or City, (ii) the
construction of the Project by the Developer in accordance with final plans and specifications to
be provided by the Developer and approved by the Agency and/or City, pursuant to a detailed
schedule of performance by the Developer, (iii) the operation and management of the Project by
the Developer in a good and professional manner and subject to the covenants required by law,
(iv) the maintenance of landscaping, buildings, and improvements in good condition and
satisfactory state of repair so as to be attractive to the community, (v) the operation of the Project
by the Developer in compliance with all equal opportunity standards established by federal, state
and local law, (vi) provision by each contractor and/or subcontractor (as the case may require
and as appropriate) perfonning work on the Project of the requisite performance bond and labor
and materials payment bond to assure completion of the Project free of mechanics' liens, (vii) the
Project shall be of the a quality consistent with plans and renderings provided by Developer and
310241.1
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.
approved by the Agency, (viii) the terms and conditions upon which Developer shall acquire the
parce1(s), and (ix) the terms and conditions upon which either party may terminate the DDA
(e.g., the discovery of environmental issueslhazardous substances on the Site, unexpected
development or construction costs, inability to acquire parcels).
6. ADDITIONAL TERMS AND OBLIGATIONS
A. No Competing Development.
Developer shall not commence the construction of any parcels comprising the Property
owned or controlled by the Developer until this Agreement has been properly terminated
according to its terms or the Agency/City has approved the Project.
B. Real Estate Commissions.
Neither Agency nor Developer shall be liable for any real estate commission or brokerage
fees which may arise here from. Agency and D~ve10per represent that they have engaged no
broker, agent or finder separately in connection with this transaction and each party agrees to
indemnify, hold harmless and defend the other against claims for commissions or fees made
through such party.
C. Each Party to Bear its Own Cost.
Each party shall bear its own costs incurred in connection with the negotiation of a DDA,
and the implementation of this Agreement, except as otherwise expressly provided herein or
expressly agreed in writing.
D, Confidentiality.
Agency and Developer recognize that disclosures made by Developer pursuant to this
Agreement may contain sensitive information and that the disclosure of such information to third
parties could impose commercially unreasonable and/or uncompetitive burdens on Developer
and, may correspondingly, diminish the value or fiscal benefit that may accrue to the Agency
upon the redevelopment of the Property by the Developer, if a future DDA is entered into by the
Parties. Developer acknowledges and agrees that Agency is a public entity with a responsibility
and, in many cases, legal obligation to conduct its business in a manner open and available to the
public. Accordingly, any information provided by Developer to Agency with respect to the
Property, the Project or Developer may be disclosed<to the public either purposely, inadvertently,
or as a result of a public demand or order. WIth respect to any information provided that
Developer reasonably deems and identifies in writing as proprietary and confidential in nature,
Agency agrees to exercise its best efforts to keep such information confidential. In addition, if
Agency determines that it is required under applicable law to disclose any information identified
by Developer as proprietary and confidential in nature, Agency shall notify Developer at least
three business days before disclosure of such information which will provide Developer the
opportunity to seek a protective order preventing such disclosure,
310241.1
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E. Assignment
1. Agency would not have entered into this Agreement but for Developer's unique
qualifications and experience, Therefore, Developer's rights and obligations under this
Agreement may not be assigned without the prior written approval of Agency in its sole
discretion. Notwithstanding the foregoing, subject to the prior written approval of the Executive
Director, Developer may assign its rights hereunder to a new entity comprised of the Developer
for purposes of developing the Project. Such new entity may include additional parties provided
that the Developer retains responsibility for fulfilling its obligations hereunder and Developer
retains management control and authority over the entity and the Project.
2. Upon the occurrence of any change, whether voluntary or involuntary, in
membership, ownership, management or control of the Developer (other than such changes
occasioned by the death or incapacity of any individual) that has not been approved by the
Agency, prior to the time of such change, the Agency may terminate this Agreement, without
liability, by sending written notice of termination to Developer.
3. Developer acknowledges that the City Council and Redevelopment Agency are in
the process of forming the Chula Vista Redevelopment Corporation ("CVRC"). All resolution
and ordinances necessary to form the CVRC have been adopted and the CVRC is currently
seeking incorporation status from the State. Upon the completion of that process and the
formation of the CVRC, all rights, duties, and obligations of the Agency under or pursuant to this
Agreement shall be automatically assigned to the CVRC.
F. Nondiscrimination
Developer shall not discriminate against nor segregate any person, or group of persons on
account of race, color, creed, religion, sex, marital status, disability, national origin or ancestry in
undertaking its obligations under this Agreement.
G, Owner Participation Requirements
This Agreement and the obligations of the Parties set forth herein are subject to the
applicable Owner Participation rules and regulations established for the Project Area and
California Community Redevelopment Law.
7. RETENTION OF DISCRETION
.
A. By its execution of this Agreement, i\gency is not committing itself or agreeing to
undertake any activity requiring the subsequent exercise of discretion by Agency or City, or any
department thereof including, but not limited to, the approval and execution of a DDA; the
proposal, amendment, or approval of any land use regulation governing the Property; the
provision of financial assistance for the development of any public or private interest in real
property; the authorization or obligation to use the Agency's eminent domain authority; or, any
other such activity,
310241.1
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B. Consideration of Entitlements and Policy Documents. Developer understands
and agrees that the Agency and City, in their respective legislative roles, reserve the right to
exercise their discretion as to all matters which the Agency and City are by law entitled or
required to exercise such discretion, including but not limited to, Entitlements for the
development of the Property and adoption of any amendments to policy documents (including
the General Plan and Redevelopment Plans). In addition, Developer understands and agrees that
the Entitlements and any other documents shall be subject to and brought to the Agency or City,
as appropriate, for consideration in accordance with applicable legal requirements, including
laws related to notice, public hearings, due process and the California Environmental Quality
Act.
C. Developer acknowledges that any plans processed for the Property will be based
upon the current General Plan and Zoning Code of the City. Additionally, Developer
acknowledges that the City is processing a General Plan Update ("GPU") and Urban Core
Specific Plan ("UCSP"), which include the Property. Developer further acknowledges and agrees
that the City may consider a number of development alternatives for the Property for
consideration by the City Council as part of City's GPU and UCSP process. Developer agrees
and acknowledges that the processing and/or adoption of these plans by the City is not a
consideration in its proceeding with this agreement or the proposed development project and
Developer may need to request amendments to the existing General Plan or, if approved, the
GPU or UCSP. The GPU and UCSP are legislative actions and this agreement does not limit or
in any way interfere with the City Council's ability to exercise its discretionary authority as it
relates to these or any other legislative actions. The exercise of the City's legislative discretion
shall not form the basis of breach of this Agreement, express or implied, or any other claims
against the City.
D. Consideration by the Agency of the final Project as contained in the DDA. This
Agreement does not constitute a disposition of property or exercise of control over property by
Agency and does not require a public hearing. Agency execution of this Agreement is merely an
agreement to enter into a period of exclusive negotiations according to the terms hereof,
reserving final discretion and approval by Agency as to any proposed DDA and all proceedings
and decisions in connection therewith. The parties understand that Agency has the complete and
unfettered discretion to reject a DDA without explanation or cause. The risk of loss of all
processing, design and developmental costs incurred by the Developer prior to DDA approval
shall be absorbed entirely by Developer except unless expressly assumed, by the terms of this
Agreement by the Agency. As to any matter, which the Agency may be required to exercise its
unfettered discretion in advancing the Project to completion, nothing herein shall obligate the
Agency to exercise its discretion in any particular manner, and any exercise of discretion
reserved hereunder or required by law, shall not be deemed to constitute a breach of Agency
duties under this agreement.
8. TERMINATIONRIGHfS
Notwithstanding the Initial or Extended Negotiating Periods hereinabove set forth, either
party may terminate this Agreement if the other party has materially defaulted in its obligations
herein set forth, and the terminating party has provided defaulting party with written notification
310241.1
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of such determination, and the defaulting party has refused to cure same, The written
notification shall set forth the nature of the actions required to cure such default if curable.
Defaulting party shall have 15 days from the date of the written notification to cure such default.
If such default is not cured within the 15 days, the termination shall be deemed effective. Any
failure or delay by a party in asserting any of its rights or remedies as to any default shall not
operate as a waiver of any default or of any rights or remedies associated with a default. Each
party shall also have the right to terminate this Agreement in the event that Agency or Developer
determines that (a) the Project is infeasible or not in the public interest; or (b) the parties reach an
impasse in their negotiation of the DDA which cannot be resolved after good faith efforts.
9. GENERAL PROVISIONS
A. Address for Notice.
Developer's Address for Notice:
A vion Development, LLC
600 West Broadway, Suite 200
San Diego, CA 92101
Attn: Doug Austin
Telephone: (619) 243-2476
Facsimile: (619) 243-2212
With a Copy to:
Kolodny & Pressman, APC
11975 E1 Camino Real, Suite 201
San Diego, CA 92130
Attention: Wesley W. Lee, Esq.
Telephone: (858) 453-0309
Facsimile: (858) 453-9347
Agency's Address for Notice:
Redevelopment Agency of the City of Chu1a Vista
Community Development Departmen.t
276 Fourth Avenue .
Chula Vista, CA 91910 .'
Attn: Director of Community Development
Telephone: (619) 691-5047
Fax: (619) 476-5310
Copy to: City Attorney
310241.1
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B. Authority.
Each party represents that it has full right, power and authority to execute this Agreement
and to perform its obligations hereunder, without the need for any further action under its
governing instruments, and the parties executing this Agreement on the behalf of such party are
duly authorized agents with authority to do so.
C. Counterparts.
This Agreement may be executed in multiple copies, each of which shall be deemed an
original, but all of which shall constitute one Agreement after each party has signed such a
counterpart.
D. Entire Agreement.
This Agreement together with all exhibits attached hereto and other agreements expressly
referred to herein, constitutes the entire Agreement between the parties with respect to the
subject matter contained herein, All prior or contemporaneous agreements, understandings,
representations, warranties and statements, oral or written, are superseded.
E. Further Assurances,
The parties agree to perform such further acts and to execute and deliver such additional
documents and instruments as may be reasonably required in order to carry out the provisions of
this Agreement and the intentions of the parties.
F. No Third Party Beneficiaries.
There are no other parties to this Agreement, express or implied, direct or indirect.
Agency and Developer acknowledge that it is not their intent to create any third party
beneficiaries to this Agreement.
G. Exclusive Remedies.
1. In the event of default by either party to this Agreement, the parties shall have the
remedies of specific performance, mandamus, injunction 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 breach of
this Agreement where such an award is limited to"reasonab1e costs of litigation incurred by the
Parties,
2. Each party acknowledges that it is aware of the meaning and legal effect of
California Civil Code Section 1542, which provides:
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A general release does not extend to claims which the creditor does not know or suspect
to exist in his favor at the time of executing the release, which if known by him would have
materially affected his settlement with debtor.
California Civil Code Section 1542 notwithstanding, it is the intention of the Parties to be
bound by the limitation on damages and remedies set forth in this Section 70, and the Parties
hereby release any and all claims against each other for monetary damages or other legal or
equitable relief related to any breach of this Agreement, whether or not any such released claims
were known to either of the Parties as of the date of this Agreement. The Parties each waive the
benefits of California Civil Code Section 1542 and all other statutes and judicial decisions of
similar effect with regard to the limitations on damages and remedies and waivers of any such
damage and remedies contained in this Section 7G.
H. Indemnity.
Developer shall indemnify, protect, defend and hold harmless elected officials,
employees and agents from and against any and all challenges to this Agreement, or any and all
losses, liabilities, damages, claims or costs (including attorneys' fees) arising from Developer's
negligent acts, errors, or omissions with respect to its obligations hereunder or the Property,
excluding any such losses arising from the sole negligence or sole willful misconduct of Agency
or the conduct of third parties outside the control of the Developer. This indemnity obligation
shall survive the termination of this Agreement. Notwithstanding the foregoing, in the event of a
third party challenge to the validity of this Agreement, Developer shall have the option to
terminate this Agreement in lieu of its indemnity obligation.
1. Time is of the Essence.
Time is of the essence for each of Developer's obligations under this Agreement.
[NEXT PAGE IS SIGNATURE PAGE]
310241.1
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Signature Page
To
Exclusive Negotiating Agreement
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the date set forth
above, thereby indicating the consent of their principals.
REDEVELOPMENT AGENCY OF THE
CITY OF CHULA VISTA
A VION DEVELOPMENT LLC
A California Limited Liabili y Co
LOG (.\, Au4f1
~( All few
By:
By:
Steve Padilla
Chair
Date:
Date:
'1-I'1-CS
APPROVED AS TO FORM:
By:
Ann Moore
Agency Attorney
Date:
ATTEST:
By:
Susan Bigelow
City Clerk
.'
310241.1
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o 0.r}25 0.05
0,1
0.15
0,2
Miles
-
f-
Added Area Redev, Project Area
o
3rd A venue & E Street - Southeast Corner
Avion Development
Town Centre I Redev, Project Area
2-77
EXHIBIT "B"
Exclusive Negotiating Agreement Timeline
Public Workshop #1
Market Study
Site Plans and
Elevations
Initial Pro Forma
Project Development
Schedule
Site Adequacy
Revised Site Plans and
Elevations
Revised Pro Forma
MPAC or TCPAC /
Public Workshop #2
Final Site Plans and
Elevations
Final Pro Forma
Development Partners
and Structure
Funding Partners and
Structure
CVRC Presentation
Redevelopment Agency /
City Council Presentation
Agency shall cause a reputable title company to issue a Preliminary Title
Report on the subject Property to the Developer.
Pre-design workshop to gather input from the public and stakeholders on the
design parameters and framework for the subject Property,
Forecast of regional and local real estate market conditions and anticipated
performance of anticipated product types,
Based on pre-design review with staff and public input received at Public
Workshop #1, submit preliminary site plans and elevations,
Concurrent with site plans and elevations, submit initiai pro forma evaluations
for the proposed development
Projected timeline and schedule for the construction of the proposed
development
Developer shall provide written determination of whether the subject Property
is physically suitable for development taking into account regulatory and
environmental conditions that are deemed relevant
Revisions based on staff review and comments, and consistency with
applicable General Plan land use policies, specific plans, design guidelines,
and development standards,
Revisions based on revised site plans and elevations,
If Project is located in the Added Area or Town Centre I Project Areas, public
workshop with Project Area Committee to present proposed development
proposals,
Withi.n225 Days of ENAExecutiO.n
Final site plans and elevations,
Revisions based on revised site plans and elevations,
Identification of investment partners,
Identification of lenders and proof of ability to obtain financing,
Withih255 Day$ofENAExecutibn
Presentation of development proposal (e,g" site plans, elevations, market
study, pro forma, CEQA, DDA summary report, etc,) and DDNOPA to CVRC
for review and consideration, CVRC adopts advisory recommendations for
Agency and/or Council consideration,
Presentation of development proposal and DDNOPA to Agency and/or
Council for final review and consideration,
2-78
RESOLUTION NO,
RESOLUTION APPROVING AN EXCLUSIVE NEGOTIATING AGREEMENT
BETWEEN THE REDEVELOPMENT AGENCY AND INTERGULF-MAR
(PARK) LLC REGARDING THE REDEVELOPMENT OF THE THIRD AVENUE
AND G STREET NORTHWEST SITE
WHEREAS, it is the role and responsibility of the Redevelopment Agency of the City of
Chula Vista ["Agency") to promote economic vitality, create market confidence, encourage
environmental health and remediation, create public benefits and amenities, and facilitate
the development, reconstruction, and rehabilitation of residential. commercial. industrial. and
retail uses; and
WHEREAS, an Exclusive Negotiating Agreement ["ENA") is an important redevelopment
tool to the Agency to establish a legal and contractual framework for negotiations and
provide a defined timeline for completion of predevelopment activities with a developer
about a potential redevelopment project; and
WHEREAS, Intergulf-Mar [Park) LLC ("Developer") is interested in developing a project at
the northwest comer of Third Avenue and G Street ["Property"). located in the Agency's Town
Centre I Redevelopment Project Area; and
WHEREAS, the Developer has submitted an unsolicited proposal for development of the
site;
WHEREAS, staff has determined that Developer is qualified to design and develop a
high quality project at the proposed development site that is consistent with the goals of the
Agency's adopted Redevelopment Plan for the Town Centre I Project Area; and
WHEREAS, Developer has acknowledged that the City is processing a General Plan
Update and an Urban Core Specific Plan and that the processing and/or adoption of these
plans is not a consideration in their proceeding with their development at this time; and
WHEREAS, it is in the interest of the Developer and Agency to execute and enter into an
ENA with Developer for the proposed development site based on Developer's qualifications;
and
WHEREAS. the ENA also retains Agency sole discretion for future actions necessary to
process any project and does not commit .Jhe Agency to the approval of or financial
participation in the project; and
WHEREAS, approval of the ENA is exempt from the Califomia Environmental Quality Act
("CEQA") pursuant to Section 15061 [b)(3) of the State CEQA Guidelines; and
NOW THEREFORE BE IT RESOLVED that the Redevelopment Agency of the City of Chula
Vista does hereby approve the Exclusive Negotiating Agreement with Intergulf-Mar (Park) LLC
for potential development of a real estate project located at the northwest comer of Third
Avenue and G Street and authorizes the Chair to execute said Agreement.
2-79
Page 2
RDA Resolution No.
PRESENTED BY
Laurie Madigan
Director of Community Development
2-80
APPROVED AS TO FORM BY
~~e.t~~, ~
Ag Y Attorney
"
EXCLUSIVE NEGOTIATING AGREEMENT
This Exclusive Negotiating Agreement ("Agreement"), dated as of this 26thday of
July 2005 ("Effective Date"), is made by and between the City of Chu1a Vista Redevelopment
Agency, a public body, corporate and politic ("Agency") and Intergulf-Mar (park) LLC, a
California limited liability company ("Developer"), with reference to the following facts:
RECITALS
In furtherance of the objectives of the California Community Redevelopment Law,
the Agency has undertaken a program for the redevelopment of certain areas within the City
of Chula Vista ("City"), and in connection therewith is undertaking and carrying out activities
for redevelopment in the Town Centre I Redevelopment Project Area (''Project Area")
pursuant to and in furtherance of the redevelopment plan for the Project Area
("Redevelopment Plan").
The subject matter of this Agreement concerns that certain real property owned
by Developer located within the Project Area as depicted on Exhibit "j(' hereto (''Property''),
The Property is located on the west side of Third Avenue, the north side ofG Street and the
south side of Park Way, which is commonly known as 380 Third Avenue (APN
5683004600),314 Park Way (APN 5683001500), and adjacent rights-of-way,
The Developer is proposing to develop a mixed-use residential building
("Project") and is required pursuant to the Redevelopment Plan to enter into an Owner
Participation Agreement ("OPA") with the Agency, The Developer is proposing to
develop a mixed-use residential building with one and two bedroom residential units with
retail space and underground parking,
Agency has received an unsolicited proposal for the redevelopment of the
Property from a qualified and interested developer. Therefore, the Agency desires to
enter into this Agreement with the Developer with the objective of determining the
feasibility of the proposed project and consideration of entering into a mutually
acceptable OP A for the development of the Property consistent with the terms and
conditions of this Agreement at the earliest practical date,
The Developer anticipates that, following execution of this Agreement and
through the period of negotiation and preparation of a OP A with respect to the Project, it
will devote substantial time and effort in preparing plans, preparing project profonnas,
contacting financial institutions, engaging appropriate consultants, and meeting with the
City and various other necessary third parties in connection with the proposed Project,
and in negotiating and preparing an OP A consistent with the basic terms and mutual
understandings established in this Agreement.
The Agency and the Developer ("Parties") desire to enter into this Agreement
in order to set forth the rights and duties of the Parties during the tenn of the Exclusive
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.
Negotiating Period subject to the Owner Participation rules and regulations established
for the Project Area,
Now, therefore, the Parties mutually agree as follows:
1, Good Faith Negotiations
Agency and Developer agree (for the period stated below) to negotiate in good
faith pursuant to the tenns of this Agreement an OP A or other form of agreement or
agreements to be entered into between the Agency and Developer concerning the
development of the Property. Agency agrees not to negotiate with any other person or
entity regarding the purchase and/or development of the Property without the consent of
Developer. Nothing in this Agreement shall be deemed a covenant, promise or
commitment by Agency, the City of Chula Vista, or any agency of the City, with respect
to the approval of development of the Property or the proposed General Plan Update or
Urban Core Specific Plan. Agency's acceptance of this Agreement is merely an
agreement to enter into a period of exclusive negotiations according to the terms hereof,
reserving final discretion and approval by Agency as to any actions required of it.
2, Negotiation Period
A Agency and Developer agree to negotiate for an initial 300 calendar days,
which shall commence on the Effective Date unless this Agreement is earlier terminated
in accordance with the provisions hereof ("Initial Negotiation Period").
B, If, upon the expiration of such Initial Negotiation Period, the Parties have
not each approved and executed an OP A, then the Executive Director, in his sole
discretion, on behalf of the Agency, is authorized to extend, in writing, the term of this
Agreement for up to an additional 90 days ("Extended Negotiation Period") provided that
at the end of the Initial Negotiation Period, the Agency has not exercised its right to
terminate as herein provided, the Developer is in full compliance with all terms and
conditions hereof, the Developer concurs in writing with such extension of the
negotiation period, and the Executive Director has determined that (i) there is a
reasonable likelihood that the Parties will agree on the terms and conditions for the
development of the Project on the Property and (ii) the Agency staff will be able to
recommend to Agency approval of the OP A prior to the expiration of the Extended
Negotiation Period,
,"
c. If, after expiration of the Initial'Negotiation Period, or after the Extended
Negotiation Period if this Agreement is extended, the Parties have not each approved and
executed an OP A, then this Agreement shall automatically terminate and Developer shall
have no further rights regarding the subject matter of this Agreement as it relates to the
Property, and Agency shall be free to negotiate with any other persons or entities with
regard to the Property,
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3, Obligations of Developer
A Schedule
Agency and Developer agree and acknowledge that all submittals required by this
Agreement shall be submitted pursuant to the timeline attached hereto as Exhibit "B"
("Schedule of Performance"), The Schedule of Performance shall include, but is not
limited to, submittals of Project plans, pro forma, marketing and feasibility studies, and
evidence of financing as may be required by the Agency,
B. Development and Design Plans
During the negotiation period, Developer shall submit development and design
plans for the Project substantially similar to the Developer's proposed project
incorporated herein and made a part hereof by this reference (Exhibit C), Developer shall
also furnish such information to Agency regarding the proposed Project as may be
required by Agency to perform an environmental review pursuant to the California
Environmental Quality Act ("CEQA"). All fees and expenses for engineers, architects,
financial consultants, legal, planning or other consultants retained by Developer to
perform Developer's obligations set forth in this Agreement shall be the sole
responsibility of Developer.
C. Reports, Studies and Public Participation
Developer shall make monthly written reports to the Agency on the Developer's
progress toward meeting its obligations under this Agreement, and if requested by the
Agency, Developer shall make periodic oral progress reports on all matters and all studies
being made related to the acquisition and development of the Project and other matters
under negotiation to the extent that they do not include confidential matters. As Agency
deems reasonably necessary or appropriate, Agency may request that Developer make
presentations at public forums to solicit input from citizens, businesses, stakeholders and
relevant interest groups,
D, Financing
Developer shall, within the time set forth on the Schedule of Performance,
develop a program of financing that provides !he Agency with reasonably satisfactory
evidence that financing will be available for the-development of the Property,
.'
E. Deposit
Within ten (10) days after the Effective Date, Developer shall deposit with
Agency $25,000.00 (Twenty -Five Thousand Dollars) in immediately available funds
("ENA Deposit"), The ENA Deposit shall be used exclusively by the Agency to conduct
the Project analysis including but not limited to pay third party consultants, City staff
time (at applicable full cost recovery rates), and other reasonable costs incurred by the
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Agency in conducting such analysis in connection with this Agreement, Agency shall
request additional deposits if the ENA Deposit is exhausted and Agency determines
further analysis is required. Agency may cease negotiations and all activities of third
party consultants until such time as ENA Deposit is replenished as reasonably requested
by Agency, Any ENA Deposit balance remaining upon the termination of the Agreement
shall be returned to Developer or shall be applied to any deposit required by a subsequent
OP A Upon request by the Developer, Agency shall provided a written accounting of all
charges made against the ENA Deposit.
4, Agency Obligations and Due Diligence
A During the Negotiation Period, the Agency shall conduct a due diligence
investigation of the Developer's ability to own and/or operate the Project in a responsible
manner. If the Agency Executive Director determines in his sole discretion that
Developer does not have the ability to successfully purchase, own, and/or manage the
Project in a responsible manner, the Agency Executive Director may terminate this
Agreement by delivering written notice thereof to Developer, Agency's due diligence
efforts may include, without limitation, the following:
1. assessment of the proposed financing and the capacity of
Developer to qualify for financing for the Project; and
2. assessment of the capacity of Developer and their principal staff to
effectively own and/or manage the Project, including the ability to carry out any ongoing
management oversight responsibilities
B. Agency agrees to cooperate with Developer in providing equity partner(s)
and/or lender(s) of Developer with appropriate and necessary information for the
Developer to fulfill its obligations hereunder, which information is not otherwise
privileged,
C. The Agency shall also cooperate with Developer's professional
consultants and associates in providing them with any information and assistance, so far
as such information is not otherwise privileged, reasonably within the capacity of the
Agency in connection with the preparation of the Developer's submissions to the
Agency,
D. Agency shall also cooperate with Developer in working with the City to
vacate that portion ofreal property adjacent to the Property which is included within the
proposed Project and is necessary for the deveiopment of the Project ("City Property"),
The City Property is more particularly described on Exhibit "D" attached hereto and
incorporated herein by this reference. Such cooperation by Agency shall not in any way
pre-commit the Agency or the City to any decision or course of action relative to the
proposed development or vacation.
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5. OPA
The Parties hereby acknowledge and agree that, during the Negotiation Period of
this Agreement the Parties shall use their respective good faith efforts to negotiate and
enter into an OP A which shall include (but not be limited to) the following: (i) the design
of the Project by the Developer, which design shall be subject to the approval by the
Agency and/or City, (ii) the construction of the Project by the Developer in accordance
with final plans and specifications to be provided by the Developer and approved by the
Agency and/or City, pursuant to a detailed schedule of performance by the Developer,
(iii) the operation and management of the Project by the Developer in a good and
professional manner and subject to the covenants required by law, (iv) the maintenance of
landscaping, buildings, and improvements in good condition and satisfactory state of
repair so as to be attractive to the community, (v) the operation of the Project by the
Developer in compliance with all equal opportunity standards established by federal, state
and local law, (vi) provision by each contractor and/or subcontractor (as the case may
require and as appropriate) performing work on the Project of the requisite performance
bond and labor and materials payment bond to assure completion of the Project free of
mechanics' liens, (vii) the Project shall be of the a quality consistent with plans and
renderings provided by Developer and approved by the Agency, (viii) the terms and
conditions upon which either party may terminate the OPA (e.g., the discovery of
environmental issueslhazardous substances on the Site, unexpected development or
construction costs, or the feasibility of the Project).
6. Additional Terms and Obligations
A. No Development.
Developer shall not commence the construction of any parcels comprising the
Property owned or controlled by the Developer until this Agreement has been properly
terminated according to its terms or the Agency/City has approved the Project.
B. Real Estate Commissions.
Neither Agency nor Developer shall be liable for any real estate commission or
brokerage fees which may arise here from. Agency and Developer represent that they
have engaged no broker, agent or finder separately in connection with this transaction and
each party agrees to indemnify, hold harmless and defend the other against claims for
commissions or fees made through such party.,_.,.
..
C. Each Party to Bear its Own Cost.
Each party shall bear its own costs incurred in connection with the negotiation of
an OPA, and the implementation of this Agreement, except as otherwise expressly
provided herein or expressly agreed in writing.
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D. Confidentiality.
Agency and Developer recognize that disclosures made by Developer pursuant to
this Agreement may contain sensitive information and that the disclosure of such
information to third parties could impose commercially unreasonable and/or
uncompetitive burdens on Developer and, may correspondingly, diminish the value or
fiscal benefit that may accrue to the Agency upon the redevelopment of the Property by
the Developer, if a future OPA is entered into by the Parties. Developer acknowledges
and agrees that Agency is a public entity with a responsibility and, in many cases, legal
obligation to conduct its business in a manner open and available to the public.
Accordingly, any information provided by Developer to Agency with respect to the
Property, the Project or Developer may be disclosed to the public either purposely,
inadvertently, or as a result ofa public demand or order. With respect to any information
provided that Developer reasonably deems and identifies in writing as proprietary and
confidential in nature, Agency agrees to exercise its best efforts to keep such information
confidential. In addition, if Agency determines that is required under applicable law to
disclose any information identified by Developer as proprietary and confidential in
nature, Agency shall notify Developer as least three business days before disclosure of
such information which will provide Developer the opportunity to seek a protective order
preventing such disclosure.
E. Assignment
1. Agency would not have entered into this Agreement but for Developer's
unique qualifications and experience. Therefore, Developer's rights and obligations
under this Agreement may not be assigned without the prior written approval of Agency
in its sole discretion. Notwithstanding the foregoing, subject to the prior written approval
of the Executive Director, Developer may assign its rights hereunder to a new entity
comprised of the Developer for purposes of developing the Project. Such new entity may
include additional parties provided that the Developer retains responsibility for fulfilling
its obligations hereunder and Developer retains management control and authority over
the entity and the Project.
2. Upon the occurrence of any change, whether voluntary or involuntary, in
membership, ownership, management or control of the Developer (other than such
changes occasioned by the death or incapacity of any individual) that has not been
approved by the Agency, prior to the time of such change, the Agency may terminate this
Agreement, without liability, by sending writtep'.notice of termination to Developer.
"
3. Developer acknowledges that the City Council and Redevelopment
Agency are in the process of forming the Chula Vista Redevelopment Corporation
("CVRC"). All resolution and ordinances necessary to form the CVRC have been
adopted and the CVRC is currently seeking incorporation status from the State. Upon the
completion of that process and the formation of the CVRC, all rights, duties, and
obligations of the Agency under or pursuant to this Agreement shall be automatically
assigned to the CVRC.
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F. Nondiscrimination
Developer shall not discriminate against nor segregate any person, or group of
persons on account of race, color, creed, religion, sex, marital status, disability, national
origin or ancestry in undertaking its obligations under this Agreement.
G. Owner Participation Requirements
This Agreement and the obligations of the Parties set forth herein are subject to
the Owner Participation rules and regulations established for the Project Area and
California Community Redevelopment Law.
7. Retention of Discretion
A. By its execution of this Agreement, Agency is not committing itself or
agreeing to undertake any activity requiring the subsequent exercise of discretion by
Agency or City, or any department thereof including, but not limited to, the approval and
execution of an OP A; the proposal, amendment, or approval of any land use regulation
governing the Property; the provision of financial assistance for the development of any
public or private interest in real property; the authorization or obligation to use the
Agency's eminent domain authority; or, any other such activity.
B. Consideration of Entitlements and Policy Documents.
Developer understands and agrees that the Agency and City, in their respective
legislative roles, reserve the right to exercise their discretion as to all matters which the
Agency and City are by law entitled or required to exercise such discretion, including but
not limited to, entitlements for the development of the Property and adoption of any
amendments to policy documents (including the General Plan and Redevelopment Plans).
In addition, Developer understands and agrees that the entitlements and any other
documents shall be subject to and brought to the Agency or City, as appropriate, for
consideration in accordance with applicable legal requirements, including laws related to
notice, public hearings, due process and the CEQA.
C. Developer acknowledges that any plans processed for the Property will be
based upon the current General Plan and Zoning Code of the City. Additionally,
Developer acknowledges that the City is processing a General Plan Update ("GPU") and
Urban Core Specific Plan ("UCSP"), which"include the Property. Developer further
acknowledges and agrees that the City may consider a number of development
alternatives for the Property for consideration by the City Council as part of City's GPU
and UCSPprocess. Developer agrees and acknowledges that the processing and/or
adoption of these plans by the City is not a consideration in its proceeding with this
agreement or the proposed development project and Developer may need to request
amendments to the existing General Plan or, if approved, the GPU or UCSP. The GPU
and UCSP are legislative actions and this agreement does not limit or in any way
interfere with the City Council's ability to exercise their discretionary authority as it
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relates to these or any other legislative actions. The exercise of the City's legislative
discretion shall not form the basis of breach of this Agreement, express or implied, or any
other claims against the City.
D. Consideration by the Agency of the Final Project as contained in the OPA.
This Agreement does not constitute a disposition of property or exercise of
control over property by Agency and does not require a public hearing. Agency
execution of this Agreement is merely an agreement to enter into a period of exclusive
negotiations according to the terms hereof: reserving final discretion and approval by
Agency as to any proposed OP A and all proceedings and decisions in connection
therewith. The parties understand that Agency has the complete and unfettered discretion
to reject an OP A without explanation or cause. The risk of loss of all processing, design
and developmental costs incurred by the Developer prior to OP A approval shall be
absorbed entirely by Developer except unless expressly assumed, by the terms of this
Agreement by the Agency. As to any matter, which the Agency may be required to
exercise its unfettered discretion in advancing the Project to completion, nothing herein
shall obligate the Agency to exercise its discretion in any particular manner, and any
exercise of discretion reserved hereunder or required by law, shall not be deemed to
constitute a breach of Agency duties under this agreement.
8. Termination Rights
Notwithstanding the Initial or Extended Negotiating Periods hereinabove set
forth, either party may terminate this Agreement if the other party has materially
defaulted in its obligations herein set forth, and the terminating party has provided
defaulting party with written notification of such determination, and the defaulting party
has refused to cure same. The written notification shall set forth the nature of the actions
required to cure such default if curable. Defaulting party shall have fifteen (15) days
from the date of the written notification to cure such default. If such default is not cured
within the fifteen (15) days, the termination shall be deemed effective. Any failure or
delay by a party in asserting any of its rights or remedies as to any default shall not
operate as a waiver of any default or of any rights or remedies associated with a default.
Each party shall also have the right to terminate this Agreement in the event that (a)
Developer determines, in its sole discretion the Project is infeasible; (b) the Agency
determines the project is not in the public interest; or (c) the Parties reach an impasse in
their negotiation of the OPA which cannot be resolved after good faith efforts.
"
"
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9. General Provisions
A. Address for Notice.
Developer's Address for Notice:
Intergulf-Mar (park) LLC
401 West "A" Street, Suite 120
San Diego, California 92109
Attention: Joe Werner
Telephone No.: (619) 234-8736
Facsimile No.: (619) 234-8735
With a copy to:
Luce, Forward, Hamilton & Scripps, LLP
600 West Broadway, Suite 2600
San Diego, CA 92101
Atten: Brian Fish, Esq.
Telephone No.: (619) 699-2424
Facsimile No.: (619) 645-5395
Agency's Address for Notice:
Redevelopment Agency of the City ofChula Vista
Community Development Department
276 Fourth Avenue
Chula Vista, CA 91910
Attn: Director of Community Development
Telephone: (619) 691-5047
Fax: (619) 476-5310
Copy to: City Attorney
B. Authority.
Each party represents that it has full right, power and authority to execute this
Agreement and to perform its obligations herej.lnder, without the need for any further
action under its governing instruments, and the:parties executing this Agreement on the
behalf of such party are duly authorized agents With authority to do so.
C. Counterparts.
This Agreement may be executed in multiple copies, each of which shall be
deemed an original, but all of which shall constitute one Agreement after each party has
signed such a counterpart.
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D. Entire Agreement.
This Agreement together with all exhibits attached hereto and other agreements
expressly referred to herein, constitutes the entire Agreement between the parties with
respect to the subject matter contained herein. Ail prior or contemporaneous agreements,
understandings, representations, warranties and statements, oral or written, are
superseded.
E. Further Assurances.
The parties agree to perform such further acts and to execute and deliver such
additional documents and instruments as may be reasonably required in order to carry out
the provisions of this Agreement and the intentions of the parties.
F. No Third Party Beneficiaries.
There are no other parties to this Agreement, express or implied, direct or indirect.
Agency and Developer acknowledge that it is not their intent to create any third party
beneficiaries to this Agreement.
G. Exclusive Remedies.
1. In the event of default by either party to this Agreement, the parties shall
have the remedies of specific performance, mandamus, injunction 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 breach of this Agreement where such an award is limited
to (i) the costs of litigation incurred by 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.
2. Each party acknowledges that it is aware of the meaning and legal effect
of California Civil Code Section 1542, which provides:
A general release does not extend to claims which the creditor does not know or
suspect to exist in his favor at the time of executing the release, which if known by him
would have materially affected his settlement wjth debtor.
California Civil Code Section 1542 notwithstanding, it is the intention of the
Parties to be bound by the limitation on damages and remedies set forth in this Section
7G, and the Parties hereby release any and all claims against each other for monetary
damages or other legal or equitable relief related to any breach of this Agreement,
whether or not any such released claims were known to either of the Parties as of the date
of this Agreement. The Parties each waive the benefits of California Civil Code Section
1542 and all other statutes and judicial decisions of similar effect with regard to the
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2-90
limitations on damages and remedies and waivers of any such damage and remedies
contained in this Section 7G.
H. Indemnity.
Developer shall indemnify, protect, defend and hold harmless Agency, its elected
officials, employees and agents from and against any and all challenges to this
Agreement, or any and all losses, liabilities, damages, claims or costs (including
attorneys' fees) arising from Developer's negligent acts, errors, or omissions with respect
its obligations hereunder or the Property, excluding any such losses arising from the sole
negligence or sole willful misconduct of Agency or the conduct of third parties outside
the control of the Developer. This indemnity obligation shall survive the termination of
this Agreement. Notwithstanding the foregoing, in the event of a third party challenge to
the validity of this Agreement, Developer shall have the option to terminate this
Agreement in lieu of its indemnity obligation.
I. Time is of the Essence.
Time is of the essence for each of Developer's obligations under this Agreement.
J. Recitals
The recitals set forth above are incorporated herein by this reference.
[NEXT PAGE IS SIGNATURE PAGE]
..
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Signature Page
To
Exclusive Negotiating Agreement
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the date
set forth above, thereby indicating the consent of their principals.
By:
By:
REDEVELOPMENT AGENCY OF THE
CITY OF CHULA VISTA
Date:
INSER AME 5l:l~J.Wa.'ER
INSER TITHMro~E~I~FFICER
Date: 4~(0)S-
Steve Padilla
Chair
APPROVED AS TO FORM:
By:
Ann Moore
Agency Attorney
Date:
ATTEST:
By:
Susan Bigelow
City Clerk
"
..
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,
0.025 0.05
0.1
0.15
0.2
Miles
III Added Area Redev. Project Area
o
3rd A venue & G Street - Northwest Corner
Intergult-Mar (Park) LLC
Town Centre I Redev. Project Area
2-93
EXHIBIT "B"
Exclusive Negotiating Agreement Timeline
Public Werkshop #1
Market Study
Site Plans and
Elevations
Initial Pre Ferma
Preject Develepment
Sched u Ie
Site Adeq uacy
Revised Site Plans and
Elevations
Revised Pro Forma
AAPAC or TCPAC /
Public Werkshop #2
Final Site Pians and
Elevatiens
Final Pro Ferma
Development Partners
and Structure
Funding Partners and
Structure
CVRC Presentatien
Pre-design werkshep to gather input frem the public and stakehelders on the
design parameters and framework fer the subject Property.
Ferecast .of regienal and lecal real estate market conditiens and anticipated
perfermance of anticipated product types.
Based en pre-design review with staff and public input received at Public
Workshop #1, submit preliminary site plans and elevatiens.
Cencurrent with site plans and elevations, submit initial pro ferma evaluatiens
for the proposed development.
Projected timeline and schedule fer the censtructien .of the propesed
development.
Develeper shall provide written determinatien .of whether the subject Property
is physically suitable fer develepment taking inte account regulatery and
envirenmental conditiens that are deemed relevant.
Revisiens based en staff review and cemments, and censlstency with
applicable General Plan land use pelicies, specific plans, design guidelines,
and develepment standards.
Revislens based en revised site plans and elevatiens.
If Preject is lecated in the Added Area or Tewn Centre I Preject Areas, public
werkshep with Project Area Committee te present propesed develepment
proposals.
Within 22S.Days Of EN A.. Execution
Final site plans and elevations.
Revisiens based en revised site plans and elevations.
Identification of investment partners.
Identification .of lenders and proof of ability to .obtain financing.
Within2SS .DaysofENAExecution
Presentatien of develepment preposal (e.g., site plans, elevatiens, market
study, pro ferma, CEQA, DDA summary repert, etc.) and DDAJOPA to CVRC
for review and censideratien. CVRC adopts advisery recemmendations for
Agency and/or Council consideration.
Redevelopment Agency /
City Council Presentation
Presentation of development preposal and DDAJOPA to Agency and/or
Council for final review and consideration.
2-94
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