HomeMy WebLinkAboutPlanning Comm Rpts./1996/06/25 (3)
JOINT MEETING OF CITY COUNCIL/PLANNING COMMISSION
Item No.
Meeting Date 6/25/96
ITEM TITLE:
Ordinances - Adopting otay Ranch Pre-
Annexation Development Agreements Between:
A) otay Ranch, L.P., a California limited
partnership, Tiger Development Two, a California
limited partnership, by Tigerheart Inc., a
California corporation; its general partner,
Village Development, a California general
partnership, and the City of Chula vista;
B) SNMB, Ltd., Jewels of Charity, and steven and
Mary Birch Foundation, and the city of Chula Vista;
C) united Enterprises, Ltd., a California limited
partnership, and the City of Chula Vista; and
SUBMITTED BY:
D) Gregory T. Smith, and Georgiana R.
the City of Chula vista.
Deputy city Mana~e mpl &1{ W,rO--'
planning Directo (.~~"~
Public Works Dire t ~v I
Otay Ranch projec Manager~~~.
City Manage~ 4/5 Vote: Yes_
smi th and
REVIEWED BY:
No-L
The purpose of this item is to present four different development
agreements between the city of Chula vista and Village Development;
the Foundation; United Enterprises and Greg smith. These property
owners own the fee title to the majority of the lands on the
Western Parcel of the Otay Ranch, ranch house and the "inverted L"
parcel of land. The Development Agreements, amongst other things,
are necessary to achieve the Developers' support for annexation of
the Otay Ranch Western Parcel as a unit and to meet certain
obligations of the Landfill Agreement between the county and the
City. Specifically, the Landfill Agreement requires that "Nuisance
Easements" be granted by the Property Owners to the County on lands
within an approximately 1,000 foot buffer area surrounding the otay
Landfill. Granting of the Easements is a pre-condition of any
annexation of otay Ranch Properties.
RECOMMENDATION:
Place the Ordinances on First Reading.
BOARDS/COMMISSIONS
RECOMMENDATION:
The Planning commission will be reviewing and
taking action on the Agreements at a joint
meeting between the City Council and the
Planning commission on June 25, 1996.
Meeting Date 6/25/96
Page 8
In that case, the city will be willing to consider a
traffic capacity development agreement, giving priority
status to some amount of project development. The
additional circulation capacity could be on either East
Palomar street or Orange Avenue. The Developer agrees to
proceed, if necessary, with orange Avenue first since it
provides potentially greater traffic capacity. In
addition, if SR-125 is constructed prior to construction
of east-west access, then the timing of construction
required for Palomar or orange will be re-reviewed.
A second element specific to the Village Development
Agreement is the application of the Natural communities
Conservation Act (NCCP) and the Multiple Species
Conservation Program (MSCP). The Developer has
negotiated agreements with the resource agencies to make
certain trade-offs of sensitive habitat land preservation
in some areas for more flexible development possibilities
in some other areas. This Agreement recognizes that
circumstance, and the City agrees to reasonably consider
and process such amendments and consider them as part of
Existing Project Approvals and not requiring an amendment
to their Agreement.
A third factor, somewhat similar to what was mentioned
for the Foundation Agreement, would be to process and
reasonably consider an application for a land use change
necessitated by virtue of land use changes that will be
mandated in the Otay Landfill buffer area. Land uses in
the 1,000 foot buffer area of Village 3 (east of the
landfill) are currently designated "Residential" and will
need to be changed to an acceptable "non-Residential"
designation. Village Properties would like to have an
amendment to the GDP considered to relocate those
residential uses elsewhere on the project.
Major policv Issues
The major policy issues, in staff's view, are only three at this
point. The issues are the agreement terms, application of growth
management changes and the length of time tentative maps remain in
effect.
1. Agreement Term - as stated earlier, the Developer wants a
40-year term and the City staff is of the opinion that a
20-year term is more than generous. While acknowledging that
the project buildout could be 40 years or more, that doesn't
mean the Development Agreement can or should run that long.
Many things will change over even a 10 or 20-year period that
it is not prudent to vest entitlements for 40 years. The
Developer could seek an amendment or another Development
Meeting Date 6/25/96
Page 3
. provision of property for the Chula vista Greenbelt
open space areas and MSCP compliance.
. assurance of adequate public facilities when
needed, and in some cases development of excess
capacity or facilities sooner than required.
. compliance with the City's Growth Management
Program.
b. Benefits to the Developer
. vests permitted land uses, density, intensity of
use per the approved General Development Plan and
timing and phasing of development per Future
Discretionary Approvals (i.e., SPA Plan and Public
Facility Finance Plan) and in compliance with the
City's Growth Management Ordinance.
. grants the owner certainty to proceed with the
development of the property in general accordance
wi th today' s ordinances, rules, regulations and
standards or as they may be changed in the future
citywide or east of 1-805.
. allows for fee credits and/or reimbursement
mechanisms for extraordinary facility improvements
or pioneering thereof and specifies that DIF fees
will be used to facilitate regional backbone
facilities.
. allows the Developer to receive timely processing
on an equal basis with other Developers of Future
Discretionary Approvals and allows those approvals
to be covered by these Agreements.
2. Description of the Agreement Terms
The Agreement contains the following major points:
(1) The owners support the annexation, and the plan is to
complete annexation of the otay Parcel by January 1, 1997
(an outside time frame - annexation is actually scheduled
July 1, 1996).
(2) The term of the Agreement, as recommended by staff, is 20
years (the Developers want 40 years).
(3) Application of new or amended Rules, Regulations,
Ordinances, Resolutions, Standards and Policies.
Meeting Date 6/25/96
Page 6
(18) The Developer agrees to pay DIF fees. The city agrees to
establish and use the DIF fees in an appropriate fashion.
The DIF can be modified if it incorporates reasonable
cost estimates to provide facilities based on specified
methodology and justification. The city can withhold
permits until the DIF is paid. The Developer can get DIF
credits when facilities are completed. The City will
undertake reasonable efforts to collect and impose the
DIF on others and spread the costs on an equitable basis.
The Property Owner will pay its fair share of the DIF for
otay River Road crossings and the City will pursue other
parties, such as the county and city of San Diego, to pay
their fair share as well.
(19) The City will cooperate in the provision of utilities to
the Project.
(20) The City agrees that if they negotiate some long-term
participation or financial advantages with CTV on the SR
125 road that the city may share those advantages with
subsequent property owners/residents of the area.
(21)
The Agreement contains provisions for
default, encumbrances and releases
modification or suspension, assignment
delay and amendments.
annual review,
on property,
and delegation,
(22) A provision has been included that in the event of a
dispute between the parties that a mediation process be
followed. If any party commences litigation, the
prevailing party as determined by the court, will be
entitled to attorney's fees.
(23) The parties recognize that the Developer and the City are
negotiating agreements with the U.S. Fish and wildlife
and California Fish and Game to implement the "NCCP" and
the "MSCP" multi-species habitat programs. Modifications
to the Existing Project Approvals will be required to be
processed by the city, paid for by the Developer, and
would not constitute an amendment to the Agreement.
3. Aareement Terms Relatina to Specific Parties
Because each agreement is with a separate Property Owner,
there are specific terms unique to each party by way of
benefits and acknowledgements. .
a. united Enterprises
The United Enterprises Agreement speaks specifically to
the Rock Quarry operations, which have been in existence
Meeting Date 6/25/96
Page 5
another 3 years for a total of 6 years. A compromise
proposed by the Developers is to have a tentative map
vest for 10 years for projects up to 3,000 dwelling units
and to allow tentative maps larger than 3,000 units to
vest additional time at the rate of one additional year
for each additional 300 units. This is a policy issue to
be discussed later in this report.
(10) Recognizes that the Developer can do certain work such as
grading at the pre-final map stage subject to City
approval and posting of required performance bonds.
Acknowledges the ability to record Superblock Final Maps
("A" Maps) for financing purposes as well as the standard
Final Maps ("B" Maps). Allows for maps to be recorded in
the name of builders or third parties and certain
transfer of obligations to occur with city approval.
(11) The Developer is obligated to dedicate or reserve land
and fund/construct public facilities as required by the
General Development Plan and subsequent approvals
(12) The SR #125 R.O.W. is to be dedicated to the city.
(13) Landfill nuisance easements are to be granted to the
county.
(14) The Developer is to comply with the provisions of any
Preserve Conveyance Plan and convey property as set forth
therein.
(15) The Developer is to comply with the otay Ranch Reserve
Fund Program as adopted as part of the Existing Project
Approvals.
(16) The city has the right to withhold the issuance of
building permits if a threshold has been violated and
until the deficiency has been cured per the Growth
Management Ordinance. Permits may also be withheld where
public facilities required for thresholds have not been
committed. Unless the Developer is responsible for the
threshold violation, the Agreement is tolled while permit
issuance has been stopped.
(17) If the Developer constructs a facility which is the
obligation of another Developer or builds a facility of
increased supplemental size, the City will consider a
reimbursement district. Similarly, the Developer will
dedicate land for others to pioneer projects on the
Property.
Meeting Date 6/25/96
Page 4
As stated above, the Developer would like to lock in and
have certainty as to what rules will apply to his project
while the City wants to retain as much flexibility as
possible. The Agreement permits changes in rules,
policies, etc. as long as they are applied citywide or
east of I-80S and do not unreasonably prevent or delay
the development of the Property to the approved uses,
densities or intensity of use. Changes necessitated by
changes in state or Federal law are also covered.
(4)
Modifications to
contemplated and do
Agreement. Future
contemplated and do
Agreement.
(5) The dedication and reservation of land is to be
consistent with the Existing Project Approvals.
Existing Project Approvals are
not constitute an amendment to the
Discretionary Approvals are also
not constitute an amendment to the
(6) The timing for project construction is to only be
regulated by the Growth Management Ordinance and
threshold standards which include the adequate provision
of all public facilities needed to serve the Project as
well as project phases through subsequent SPA and Public
Facility Finance Plan Approvals. The Project is subject
to amendments to the Growth Management Ordinance subject
to certain conditions. Changes to the Growth Management
Ordinance and Threshold Standards are to be consistent
with the purpose and intent of the existing Growth
Management Ordinance and generally applicable citywide or
east of I-80S or applicable to a benefit, fee district as
described in earlier sections. The Developer would like
added the phrase "and such changes would not prevent or
unreasonably delay the development of the Property
consistent with the Existing Project Approvals." This is
a policy issue discussed later in this report.
(7) Application of new/increased Fees and Special Taxes are
contemplated and allowed so long as they are applicable
citywide or east of I-805 or relate to some special fee
or benefit assessment district formed in accordance with
the Government Code.
(8) The City will accept and diligently process development
applications with the Developer paying for the staff and
consultant costs therewith.
(9) Length of validity of Tentative Maps. The Developer
would like to have the tentative map vested for the term
of the Agreement (20 or 40 years) while a tentative map
is ordinarily good for 3 years and can be extended
Meeting Date 6/25/96
Page 7
for about the last 40 years. upon annexation, the Quarry
operations will become a legal non-conforming use in the
Ci ty. This is due to the fact that the use was
authorized by the County prior to an ordinance which
would otherwise require a use permit. A Reclamation Plan
is on file with the County and the state Division of
Mines and Geology. The main provision relating to the
Quarry states that the owner will be allowed the
continued use of the property for rock quarry use, that
applications for related uses will be processed by the
city for uses including such things as an asphalt and
concrete batch plant and sand and gravel operations, and
that planning for the ultimate non-quarry use of the
property shall be allowed as well.
b. The Foundation
The Foundation would like the City to consider certain
land use changes and infrastructure commitments regarding
their property. Those considerations are obviously
subject to future discretionary applications including
environmental review and public hearing and cannot be
pre-judged. Therefore, the terms of the Agreement are
along the lines of language stating that the City shall
process said applications and give them reasonable
consideration. The requests for land use changes the
applicant would like to make include the following:
transfer of residential units from village 3 to Villages
2, 4 and 8; a change of the Village 3 land use from
industrial to industrial, commercial, recreational,
visitor serving and some residential, and a request to
expand the development areas of Villages 2, 3, 4, and 8
if environmental constraints can be satisfactorily
addressed. With regard to infrastructure, the Agreement
says the City will cooperate and work with CALTRANS to
facilitate improvements to the I-80S and otay Valley Road
interchange when needed, as well as hold appropriate
hearings to revise the DIF. In addition, we will
initiate contact and pursue discussions concerning the
number, scheduling and financing of otay River road and
bridge crossing with the city and County of San Diego.
c. Villaae Development
A circumstance specific to village Development is the
construction of additional east-west access. The
Agreement acknowledges that east-west access through the
property connecting to I-805 may be needed at a time when
inadequate DIF monies are available and other developers
are not able to contribute either. In effect, village
Development could be pioneering the facility at its cost.
Meeting Date 6/25/96
Page 2
BACKGROUND
A Sphere of Influence application and annexation application for
consideration and action are pending before the Local Agency
Formation Commission July 1, 1996 to annex the Western Parcel of
otay Ranch plus the Ranch House and the inverted ilL" property. In
consideration of supporting the entire annexation described above
at one time, LAFCO has stressed that it is important to have the
majority of the property owners' support. These Agreements offer
that support.
In addition to the LAFCO process and negotiations with property
owners, the city has also been working cooperatively with the
County of San Diego. On May 15, 1996, a property Tax Sharing
Agreement and an Agreement Regarding Jurisdiction Over and
Operation of the Otay Landfill were entered into between the city
and County. In mid to late Apr~l, draft development agreements
were submitted by Village Development and the Foundation, and in
early June by United Enterprises. The city put together a
review/negotiating team consisting of the Planning Director, Public
Works Director, otay Ranch Project Manager, Deputy City Manager and
the Acting ci ty Attorney, as well as Peggy McCarberg, staff
contract attorney. Each of the applicants was represented by legal
counsel as well.
CEQA review is not required for the development agreement since an
in-depth review occurred when the environmental review was approved
for the Otay Ranch General Development Plan and adopted by the city
on October 28, 1993. (Lonq Beach Sav. and Loan v. Lon9 Beach
Federal, 232 Cal. Rptr. 772, 781-2 (1986).
DISCUSSION
The following discussion focuses on the benefits of the Agreement
to the parties, a description of the terms of the Agreement which
are constant for all the parties, a description of certain
specifics to each party, and an outline of major policy issues.
1. Benefits to the Parties
a. Benefits to the city
. Developer support for annexation of the otay Parcel
to Chula Vista.
. assurance that the Developer will dedicate needed
R.O.W. for SR #125.
. granting of landfill nuisance easements to the
County for the Otay Landfill buffer area.
Meeting Date 6/25/96
Page 9
Agreement at that time. The City's existing agreements with
EastLake and Rancho del Rey have 7 or 10-year terms,
respectively. The recently approved Landfill Agreement with
the County has a term the length of operation of the landfill
or 50 years, whichever is earlier. We feel that is a
specialized agreement recognizing the uniqueness of a landfill
and ongoing monitoring even beyond closure and should not
establish a precedent for this type of agreement.
2. Growth Management Ordinance/Threshold standard Changes - The
Developers agree that they are subject to the provisions of
the Growth Management Ordinance including the Threshold
Standards and all of the public facility requirements
associated therewith, including existing and future approved
Public Facility Finance Plans (PFFP's). They also agree that
they are subject to construct facilities to address project
required thresholds and the City retains the right to withhold
building permits should the relevant threshold be exceeded
until a deficiency is cured.
The issue then becomes whether or not they are subject to
changes in the Growth Management Ordinance and under what
conditions. The Developer wants to be protected from
"arbitrary" changes, which Developer states would be
impossible to meet and which in effect would stop all
development and negate the purpose of the Development
Agreement. An example would be changing the traffic threshold
from level of service "C" to level of service "A" or changing
the fire threshold from responding to calls in 7 minutes 85%
of the time to 2 minutes 100% of the time. The City, on the
other hand, has to be able to reasonably refine, adjust and
change, or add, to the thresholds as times, standards and
circumstances change. The compromise suggestion was to allow
for change if implemented citywide or east of 1-805 and if the
changes met the purpose and intent section of the existing
ordinance. In other words, the driving motive of the
standards are to insure that adequate public facilities are
provided when needed and not as a means to impose housing caps
or stop development. The above conditions are acceptable to
staff and help to circumscribe the types of changes that will
be acceptable.
The Developers request that an additional phase be added
whereby the City may make changes to the Growth Management
Ordinance "which would not prevent or unreasonably delay the
development of the Property consistent with the Existing
Project Approvals." This seems unacceptably broad, in
particular the reference to "unreasonably delay" since the
Growth Management Ordinance by its very nature sets
performance standards and infrastructure provisions and
phasing. Should a change in the ordinance result in a change
Meeting Date 6/25/96
Page 10
in infrastructure phasing, then the timing of the Project
could very well be affected. The ability to change thresholds
has been an integral part of all of the City's development
agreements to date.
3. Lenath of Validity of Tentative Subdivision Maps As mentioned
earlier, a tentative map normally has a 3-year life with a 3-
year extension. The terms of this Agreement call for a 10-
year life of a map not to exceed 3,000 units and for a map
with more than 3,000 units an additional year for each 300
units. Then a map with say 4,500 units would have a length of
15 years. The policy issue is how long a period of time the
city wants a tentative map to exist before a new map has to be
filed. From a planning perspective, the longer the period the
map exists, the greater likelihood that circumstances of
development surrounding the mapped area will have changed or
the map and its conditions will have been dated. The options
would be to stick with the time frames in the current
Subdivision Map Act (i.e. 3 years with a 3-year extension),
shorten the 10-year base period, or state that smaller maps,
say less than 500 units, should not receive any special
consideration as to length. Another option would be to allow
for the Council to approve any extensions from 6 to 20 years
in length after the normal map extension period had run out.
All of the remaining Agreement terms and language are supported by
the Developers and staff as appropriate considerations for the
benefits occurring to both parties.
Fiscal Impact
It isn't possible to quantify the value of the Agreement to the
City or the other parties. Through annexation and the related
property tax, sales tax, etc., the city will realize significant
benefits. Likewise, the Developers benefit from the vesting and
certainty provided by the Agreement to be able to get loans and
sell and develop the Property in accordance with current and future
approvals.
M:\HOME\ADMIN\DEVAGl13
ORDINANCE NO.
.<1, 79
AN ORDINANCE OF THE CITY OF CHULA VISTA
ADOPTING THE PRE-ANNEXATION DEVELOPMENT
AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND
OTAY RANCH, L.P., A CALIFORNIA PARTNERSHIP,
TIGER DEVELOPMENT TWO, A CALIFORNIA LIMITED
PARTNERSHIP BY TIGERHEART INC., A CALIFORNIA
CORPORATION, ITS GENERAL PARTNER, VILLAGE
DEVELOPMENT, A CALIFORNIA GENERAL PARTNERSHIP
WHEREAS, a City of Chula vista application is pending
before the County of San Diego and LAFCO to have the Otay Valley
Parcel included within city's sphere of influence; and
WHEREAS, the development of the Otay Valley Parcel will
require substantial public improvements phased over a period of
time; and
WHEREAS, California Government Code S65867. 5 et seq.
provides authority for cities to enter into development agreements;
and
WHEREAS, CEQA review is not required for the development
agreement since an in-depth review occurred when the environmental
review was approved for the otay Ranch General Development Plan and
adopted by the city on october 28, 1993. (Lona Beach Sav. & Loan
v. Lona Beach Redevel., 232 Cal.Rptr. 772, 881-2 [1986]); and
WHEREAS, the Planning commission and City Council held a
joint public hearing on June 25, 1996 to consider the Pre-
Annexation Development Agreement; and
WHEREAS, the Planning commission and City Council have
reviewed the Pre-Annexation Development Agreement and recommend its
approval.
NOW, THEREFORE, the City Council of the City of Chula
vista ordains as follows:
SECTION I:
Pre-Annexation Development Agreement for
a portion of the Otay Valley Parcel.
In accordance with section 65867.5 of the Government
Code, the City Council of the City of Chula vista has
approved that certain document entitled "Pre-Annexation
Development Agreement" for a portion of the otay Valley
Parcel with Otay Ranch, L.P., a California limited
partnership, Tiger Development Two, a California limited
partnership, by Tigerheart Inc., a California
corporation, its general partner, Village Development, a
;2,,-9 --I
California general partnership, on file in the office of
the City Clerk as Document No.
SECTION II: The Mayor of the city of Chula vista is
hereby authorized and directed to execute said Agreement for and on
behalf of the City of Chula vista.
SECTION III: This ordinance shall take effect and be in
full force on the thirtieth day from and after its passage.
Presented by
Approved as to form by
George Krempl, Deputy City
Manager
c~ '1- ~g
Ann Y. Moore, Interim
City Attorney
C:\or\preannex.ov
e2A.... .z
ORDINANCE NO. ..; t ~ t1
AN ORDINANCE OF THE CITY OF CHULA VISTA
ADOPTING THE PRE-ANNEXATION DEVELOPMENT
AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND
SNMB, LTD., JEWELS OF CHARITY, AND STEVEN AND
MARY BIRCH FOUNDATION
WHEREAS, a city of Chula vista application is pending
before the County of San Diego and LAFCO to have the otay Valley
Parcel included within City's sphere of influence; and
WHEREAS, the development of the otay Valley Parcel will
require substantial public improvements phased over a period of
time; and
WHEREAS, California Government Code S65867. 5 et seq.
provides authority for cities to enter into development agreements;
and
WHEREAS, CEQA review is not required for the development
agreement since an in-depth review occurred when the environmental
review was approved for the Otay Ranch General Development Plan and
adopted by the City on October 28, 1993. (Lonq Beach Sav. & Loan
v. Lona Beach Redevel., 232 Cal.Rptr. 772, 881-2 [1986]); and
WHEREAS, the
joint public hearing
Annexation Development
Planning Commission
on June 25, 1996
Agreement; and
and City Council held a
to consider the Pre-
WHEREAS, the Planning commission and city Council have
reviewed the Pre-Annexation Development Agreement and recommend its
approval.
NOW, THEREFORE, the City Council of the City of Chula
vista ordains as follows:
SECTION I:
Pre-Annexation Development Agreement for
a portion of the otay Valley Parcel.
In accordance with section 65867.5 of the Government
Code, the City council of the city of Chula vista has
approved that certain document entitled "Pre-Annexation
Development Agreement" for a portion of the otay valley
Parcel with SNMB, Ltd., Jewels of Charity, and Steven and
Mary Birch Foundation on file in the office of the City
Clerk as Document No.
SECTION II: The Mayor of the city of Chula vista is
hereby authorized and directed to execute said Agreement for and on
behalf of the City of Chula vista.
eY3-j
SECTION III: This ordinance shall take effect and be in
full force on the thirtieth day from and after its passage.
Presented by
Approved as to form by
George Krempl, Deputy city
Manager
Ov- ~ ~~
Ann Y. Moore, Interim
city Attorney
c:\or\preannex.ov
e2B-o<.
ORDINANCE NO.
,z &, 8/
AN ORDINANCE OF THE CITY OF CHULA VISTA
ADOPTING THE PRE-ANNEXATION DEVELOPMENT
AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND
UNITED ENTERPRISES, LTD., A CALIFORNIA LIMITED
PARTNERSHIP
WHEREAS, a City of Chula vista application is pending
before the County of San Diego and LAFCO to have the Otay Valley
Parcel included within city's sphere of influence; and
WHEREAS, the development of the otay Valley Parcel will
require substantial public improvements phased over a period of
time; and
WHEREAS, California Government Code S65867.5 et seq.
provides authority for cities to enter into development agreements;
and
WHEREAS, CEQA review is not required for the development
agreement since an in-depth review occurred when the environmental
review was approved for the otay Ranch General Development Plan and
adopted by the city on October 28, 1993. (Lona Beach Sav. & Loan
v. Lono Beach Redevel., 232 Cal.Rptr. 772, 881-2 [1986)); and
WHEREAS, the
joint public hearing
Annexation Development
Planning commission
on June 25, 1996
Agreement; and
and City Council held a
to consider the Pre-
WHEREAS, the Planning commission and city Council have
reviewed the Pre-Annexation Development Agreement and recommend its
approval.
NOW, THEREFORE, the city Council of the City of Chula
vista ordains as follows:
SECTION I:
Pre-Annexation Development Agreement for
a portion of the Otay Valley Parcel.
In accordance with section 65867.5 of the Government
Code, the City council of the city of Chula Vista has
approved that certain document entitled "Pre-Annexation
Development Agreement" for a portion of the otay Valley
Parcel with United Enterprises, Ltd., a California
limited partnership on file in the office of the City
Clerk as Document No.
SECTION II: The Mayor of the City of Chula vista is
hereby authorized and directed to execute said Agreement for and on
behalf of the city of Chula vista.
SECTION III: This ordinance shall take effect and be in
full force on the thirtieth day from and after its passage.
;{c-;
---~_.~
Presented by
George Krempl, Deputy city
Manager
c: \or\preannex. 0'/
c1C ~;;..
Approved as to form by
(J-.- y ~~"
Ann Y. Moore, Interim
city Attorney
ORDINANCE NO. e:l~8""?"
AN ORDINANCE OF THE CITY OF CHULA VISTA
ADOPTING THE PRE-ANNEXATION DEVELOPMENT
AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND
GREGORY T. SMITH AND GEORGIANA R. SMITH
WHEREAS, a city of Chula vista application is pending
before the County of San Diego and LAFCO to have the Otay Valley
Parcel included within City's sphere of influence; and
WHEREAS, the development of the Otay Valley Parcel will
require substantial public improvements phased over a period of
time; and
WHEREAS, California Government Code S65867.5 et seq.
provides authority for cities to enter into development agreements;
and
WHEREAS, CEQA review is not required for the development
agreement since an in-depth review occurred when the environmental
review was approved for the Otay Ranch General Development Plan and
adopted by the City on October 28, 1993. (Lonq Beach Sav. & Loan
v. Lonq Beach Redevel., 232 Cal.Rptr. 772, 881-2 [1986]); and
WHEREAS, the Planning commission
joint public hearing on June 25, 1996
Annexation Development Agreement; and
and city Council held a
to consider the Pre-
WHEREAS, the Planning commission and City Council have
reviewed the Pre-Annexation Development Agreement and recommend its
approval.
NOW, THEREFORE, the City Council of the City of Chula
vista ordains as follows:
SECTION I:
Pre-Annexation Development Agreement for
a portion of the otay Valley Parcel.
In accordance with Section 65867.5 of the Government
Code, the City Council of the City of Chula vista has
approved that certain document entitled "Pre-Annexation
Development Agreement" for a portion of the Otay Valley
Parcel with Gregory T. smith and Georgiana R. smith on
file in the office of the City Clerk as Document No.
SECTION II: The Mayor of the city of Chula Vista is
hereby authorized and directed to execute said Agreement for and on
behalf of the city of Chula vista.
SECTION III: This ordinance shall take effect and be in
full force on the thirtieth day from and after its passage.
oZj/ - /
Presented by
George Krempl, Deputy City
Manager
C:\or\preannex.ov
Approved as to form by
u_.~, ~o
Ann Y. M ore, Interim
City Attorney
cJ.j;) -.:2
PRE-ANNEXATION DEVELOPMENT AGREEMENT
THIS PRE-ANNEXATION DEVELOPMENT AGREEMENT ("Agreement") is
made effective on the date hereinafter set forth below by and among
THE OTAY RANCH, L.P., a California limited partnership, TIGER
DEVELOPMENT TWO, a California limited partnership, by TIGERHEART,
INC., a California corporation, its general partner, VILLAGE
DEVELOPMENT, a California general partnership ("Developer") and THE
CITY OF CHULA VISTA, a municipal corporation, who agree as follows:
1. RECITALS.
following facts:
This Agreement is made with respect to the
1.1 Owner. The owners of the properties subject to this
Agreement (hereinafter cOllectively referred to as "Owner" or as
"Developer") are as follows:
1.1.1 otay Ranch, L.P. is the owner of approxi-
mately 2,703 acres of undeveloped real property in the
unincorporated area of the County of San Diego ("county"),
described in Exhibit "A", attached hereto and incorporated
herein by this reference.
1.1.2 Tiger Development Two is the owner of
approximately 899 acres of undeveloped real property in the
unincorporated area of the County, described in Exhibit "B",
attached hereto and incorporated herein by this reference.
1.1.3 Village Development is the owner of
approximately 32 acres of undeveloped real property in the
unincorporated area of the County, described in Exhibit "C",
attached hereto and incorporated herein by this reference.
1.2 citv. The city of Chula vista is a municipal
corporation and an incorporated city within the County.
1.3 Code Authorization and Acknowledaments.
1. 3.1 City
Government Code sections
development agreements
certainty for both city
development process.
is authorized pursuant to California
65864 through 65869.5 to enter into
for the purpose of establishing
and owners of real property in the
1.3.2 Government Code section 65865 expressly
authorizes a city to enter into a development agreement with
any person having a legal or equitable interest in real
property in unincorporated territory within that city's sphere
of influence for the development of property. as provided in
the Development Agreement Law; provided that the agreement
shall not become operative unless annexation proceedings
annexing the property to the city are completed within the
time specified by the agreement.
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1.3.3 City enters into this Agreement pursuant
to the provisions of the California Government Code, its hpme-
rule powers, and applicable City ordinances, rules, regula-
tions and policies.
1.3.4 ci ty and Owner acknowledge:
Owner acknowledge this Agreement will provide:
ci ty and
1.3.4.1 Certainly in the planning process so
that the property can be developed efficiently. This
will avoid unnecessary waste of resources and increases
in housing and other development costs. The Agreement
will allow comprehensive planning of a large property so
as to make maximum efficient utilization of resources at
the least economic cost to the public;
1.3.4.2 To provide and assure to the City the
participation of Developer in the accelerated, coordinat-
ed and more economic construction, funding and dedication
to the public of certain needed public facilities and
benefits, and to provide for anticipated levels of
service to residents and populations of the property, the
City, and adjacent areas;
1.3.4.3 to provide and assure that the City
receive sales tax revenues, increase in the property tax
base, residential housing and other development, sewer,
water and street facilities;
1.3.4.4 to provide and assure that the City
receives public facilities in excess of project generated
impacts and such facilities shall be of supplemental
size, number capacity or length, which shall be provide
earlier than could be provided either by funds from the
City or than would strictly be necessary to mitigate
project related impacts at any development phase;
1.3.4.5 To provide Developer assurances
regarding the entitlements and regulations that will be
applicable to the development of the property consistent
with the Chula vista General Plan and the otay Ranch
General Development Plan/Subregional Plan;
1.3.4.6 To provide the City the opportunity
to secure immediate annexation of the lands depicted in
Attachment "D" and secure a related tax revenue sharing
agreement with the County of San Diego to assure that
development of the properties will generate sufficient
tax revenues to offset the costs of providing services to
the properties;
1.3.4.7 To enable the City to secure title to
the land with the boundaries of the property necessary to
complete the Chula vista greenbelt system as defined in
the Chula vista General Plan;
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1. 3 . 4 . 8 To enable the City to advance its
stated goal to identify and secure a site for a potential
four year university;
1. 3.4.9 To assure the City that the Developer
will dedicate right-of-way for SR-125, a route which when
constructed will substantially alleviate congestion on 1-
805 and I-5, and also will facilitate the economic
development of Chula Vista; and
1.3.4.10 To enable the City to prepare and
adopt a Habitat Conservation Plan consistent with the
requirements of the Natural Communities Conservation Act,
including the phased conveyance of open space land to the
Otay Ranch Preserve.
1.4 The Annexation. The city has applied to the Local
Agency Formation commission ("LAFCO") for annexation of Sphere of
Influence Planning Area 1 "The Otay Parcel", Planning Area 2
"Inverted L" and the Mary Patrick Estate Parcel (see Attachment
"D") .
1.5 Sphere of Influence. A City application is pending
before LAFCO to have the Otay Valley Parcel included within City's
sphere of influence. On February 5, 1996 the Local Agency
Formation commission approved the inclusion of approximately 7,600
acres into the City Sphere of Influence (Sphere of Influence
Planning Area 2 and the northern two thirds of Planning Area 1),
and designated the Otay River Valley an Village 3 as special study
areas.
1.6 Plannina Documents. On October 28, 1993, City and
County adopted the Otay Ranch General Development Plan/Subregional
Plan ("the GDP") which includes the Otay Ranch Village Phasing
Plan, Facility Implementation Plan, Resource Management Plan and
Service Revenue Plan, for approximately 23,000 acres of the Otay
Ranch, including the otay Valley Parcel and the SNMB, Jewels and
Foundation Properties. The City amended the GDP on June 4, 1996.
1.6.1 SPA One Plan. On June 4, 1996, the Chula
vista City Council approved the Otay Ranch Sectional Planning
Area (SPA) One Plan including the Planned Community District
Regulations, Overall Design Plan, Village Design Plan, Public
Facilities Plan, Parks, Recreation, open Space and Trails
Plan, Regional Facilities Report, Phase 2 Resource Management
Plan, Non-renewable Energy Conservation Plan, Ranch-wide
Affordable Housing Plan, SPA One Affordable Housing Plan, and
Geotechnical Report.
1.7 Owner Consent. city desires to have the cooperation
and consent of Owner to include the Property in the Annexation in
order to better plan, finance, construct and maintain the infra-
structure for the Otay Valley Parcel; and the Otay Ranch L.P., a
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California limited partnership, Tiger Development Two, a California
limited partnership, by Tigerheart, Inc., a California corporation,
its general partner, and Village Development, a California general
partnership desire to give their cooperation and consent, provided
that they obtain certain assurances, as set forth in this
Agreement.
, 1996, the
approving this
, 1996.
1.8 citv Ordinance. On
City Council adopted Ordinance No.
Agreement. The ordinance becomes effective on
2. Definitions.
otherwise requires:
In this Agreement, unless the context
2.1 "Annexation" means the proposed annexation of that
portion of the Otay Ranch into the City as depicted on Exhibit "D".
2.2 "city" means the City of Chula Vista, in the County
of San Diego, state of California.
2.3 "County" means the County of San Diego, state of
California.
2.4 "Development Plan" means the GDP.
2.5 "GDP" means the General Development Plan/Subregional
Plan for the Otay Ranch, described in Paragraph 1.6, above.
2.6 "Owner" or "Developer" means the person, persons, or
entity having a legal and equitable interest in the Property, or
parts thereof, and includes Owner's successors-in-interest.
2.7 "Project" means the physical development of the
private and public improvements on the Property as provided for in
the Existing Project Approvals and as may be authorized by the City
in Future Discretionary Approvals.
2.8 "Property" means the real property described in
Paragraphs 1.1.1, 1.1.2, and 1.1.3.
2.9 The "Term" of this Agreement means the period
defined in Paragraph 3, below.
2.10 "Builder" means developer to whom Developer has sold
or conveyed property within the property for purposes of its
improvement for residential, commercial, industrial or other use.
2.11 "CEQA" means the California Environmental Quality
Act, California Public Resources Code section 21000, et seq.
2.12 "City Council" means the city of Chula Vista City
Council.
2.13 "Commit" or "Committed" means all of the following
requirements have been met with respect to any public facility:
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2.13.1 For a public facility within the City's
jurisdictional boundaries and a responsibility of the develop-
er.
2.13.1.1 All discretionary permits required of
the Developer have been obtained for construction of the
public facility;
2.13.1.2 Plans for the construction of the
public facility have all the necessary governmental
approvals; and
2.13.1.3 Adequate funds (i.e., letters of
credit, cash deposits, performance bonds or land secured
public financing, including facility benefit assessments,
Mello-Roos assessment districts of similar assessment
mechanism) are available such that the City can construct
the public facility if construction has not commenced
within thirty (30) days of issuance of a notice to
proceed by the Director of Public Works, or construction
is not progressing towards completion in a reasonable
manner as reasonably deemed by the Director of Public
Works.
2.13.2 For a public facility within the city's
jurisdictional boundaries, but to be provided by other than
Developer.
2.13.2.1 Developer's proportionate share of
the cost of such public facility as defined in the
existing Project Approvals and Future Discretionary
Approvals has been provided or assured by Developer
through the payment or impositions of development impact
fee or other similar exaction mechanism.
2.13.3 For public facility not within City's
jurisdictional boundaries:
the cost
existing
Approvals
Developer
of Public
2.13.3.1 Developer's proportionate share of
of such public facility as defined in the
Project Approvals and Future Discretionary
has been provided for or otherwise assured by
to the reasonable satisfaction of the Director
Works.
2.14 "Development Impact Fee (DIF)" means fees imposed
upon new development pursuant to the City of Chula Vista
Development Impact Fee Program, for example, including but not
limited to the Transportation Development Impact Fee Program, the
Interim SR-125 Development Impact Fee Program, the Salt Creek Sewer
DIF and the Public Facilities DIF.
2.15 "Existing Project Approvals" means all discretionary
approvals affecting the Project which have been approved or
established in conjunction with, or preceding, the effective date
-5-
consistinq
Plan, the
Resolution
Management
consistent
of, but not limited to the GDP, the Chula vista General
Otay Ranch Reserve Fund Program adopted pursuant to
188.8, the SPA One Plan and the Phase II Resource
Plan (RMP), as may be amended from time to time
with this agreement.
2.16 "Final Map(s)" means any final subdivision map for
all or any portion of the Property other than the Superblock Final
Map ("A" Maps).
2.17 "Future Discretionary Approvals" means all permits
and approvals by the City granted after the effective date and
excludinq existing Project Approvals, including, but not limited
to: (i) qrading permits; (H) site plan reviews; (iH) design
guidelines and reviews; (i v) precise plan reviews; (v) subdivisions
of the Property or re-subdivisions of the Property previously
subdivided pursuant to the Subdivision Map Act; (vi) conditional
use permits; (vii) variances; (viii) encroachment permits;
(ix) sectional Planning Area plans; (x) Preserve Conveyance Plan
and (xi) all other reviews, permits, and approvals of any type
which may be required from time to time to authorize public or
private on- or off-site facilities which are a part of the Project.
2.18 "Planning Commission" means the Planning commission
of the City of Chula vista.
2.19 "Preserve conveyance Plan" means a plan that sets
forth policies and identifies land to be transferred and/or fees to
be paid to insure the orderly conveyance of the Otay Ranch land to
the Preserve Owner Manager. The purpose of the plan is to fulfill
the obligations to convey resource sensitive land, per the criteria
contained in the phase I and II Resource Management Plans and to
mitigate environmental impacts of the Otay Ranch Project.
2.20 "Public Facility"
public facilities described
Implementation Plan.
2.20.1 "SPA One Plan" means The Otay Ranch
sectional Planning Area (SPA) One Plan approved by the City of
Chula Vista on June 4, 1996, including the Planned Community
District Regulations, Overall Design Plan, Village Design
Plan, Public Facilities Finance Plan, Parks, Recreation, Open
Space and Trails Plan, Regional Facilities Report, Phase 2
Resource Management Plan, Non-renewable Energy Conservation
Plan, Ranch-wide Affordable Housing Plan, SPA One Affordable
Housing Plan, and Geotechnical Report.
or "Public Facilities" means those
in the Otay Ranch Facility
2.21 "Subdivision Map Act" means the California
Subdivision Map Act, Government Code section 66410, et seq., and
its amendments as may from time to time be adopted.
2.22 "Substantial Compliance" means that the party
charged with the performance of a covenant herein has sufficiently
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followed the terms of this Agreement so as to carry out the intent
of the parties in entering into this Agreement.
2.23 "Threshold" means the facility thresholds set forth
in the city's Municipal Code section 19.19.040.
3. Term. This Agreement shall become effective as a
development agreement upon the effective date of the Annexation
("the Effective Date"); provided, however, that if the Annexation
does not occur on or before January 1, 1997, this Agreement shall
be null and void. Any of the foregoing to the contrary notwith-
standing, from the effective date of the ordinance approving this
Agreement, set forth in Paragraph 1.8, and unless or until this
Agreement becomes null and void, Owner shall be bound by the terms
of paragraph 4. The Term of this Agreement for purposes other than
Paragraph 4 shall begin upon the Effective Date, and shall continue
for a period of twenty (20) years ("the Term")'.
The term shall also be extended for any period of time during which
issuance of building permits to Developer is suspended for any
reason other than the default of Developer, and for a period of
time equal to the period of time during which any action by the
city or court action limits the processing of future discretionary
approvals, issuance of building permits or any other development of
the property consistent with this Agreement. .
4. Owner Consent to Annexation. Owner hereby consents to
and shall cooperate with the applications of City to declare that
the Otay Valley Parcel is within city's sphere of influence and to
annex the otay Valley Parcel to the City; provided, however, that
Owner may withdraw such consent and withhold further cooperation if
the city, prior to the Effective Date, adopts rules, regulations,
ordinances, policies, conditions, environmental regulations,
phasing controls, exactions, entitlements, assessments or fees
applicable to and governing development of the Property which are
inconsistent with, or render impractical development of the
Property according to, the Development Plan or the additional
commitments of city set forth in Paragraphs 5.1.1 through 5.1.6,
below.
5. Vested Riahts. Notwithstanding any future action or
inaction of the City during the term of this Agreement, whether
such action is by ordinance, resolution or policy of the City,
Owner and Developer shall have a vested right, except as may be
otherwise provided in this section 5, to construct the Project in
accordance with:
5.1 Existing Project Approvals.
'Developer wants 40 year term
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5.22 Development of Propertv. The development of
the Property will be governed by this Agreement and Existing
Project Approvals and such development shall comply and be governed
by all rules, regulations, policies, resolutions, ordinances, and
standards in effect as of the Effective Date subject to the
provisions of Section 5.3 below. The City shall retain its
discretionary authority as to Future Discretionary Approvals,
provided however, such Future Discretionary Approvals shall be
regulated by the Existing Project Approvals, this Agreement, and
city rules, regulations, standards, ordinances, resolutions and
policies in effect on the Effective Date of this Agreement and
subj ect to section 5. 3 . .
Notwithstanding the foregoing, the city may make such changes to
the City's Growth Management Ordinance applicable to the Project as
are reasonable and consistent with the purpose and intent of the
existing Growth Management Ordinance and which are generally
applicable to all private projects citywide or east of I-805 or
within a specific benefit, fee or reimbursement district created
pursuant to the California Government Code. afla \/RieR ,/aula flat
pre:vefit. eY ufirea6enael~t Belay thE. elc.:elepmcPlt. af the Preperty
eefisicteRt -.:i th the EJ.!i5t.i}\~ rrej cet ..70..l3prevalc.
5.2.1 New or Amended Rules. Reaulations.
Policies. standards. Ordinances and Resolutions. The City may
apply to the Project, including Future Discretionary Approv-
als, new or amended rules, laws, regulations, policies,
ordinances, resolutions and standards generally applicable to
all private projects east of I-80S or within a specific
benefit fee or reimbursement district created pursuant to the
California Government Code. The application of such new
rules, or amended laws, regulations, resolutions, policies,
ordinances and standards will not unreasonably prevent or
delay development of the Property to the uses, densities or
intensities of development specified herein or as authorized
by the Existing Project Approvals. The City may also apply
changes in city laws, .regulations, ordinances, standards or
policies specifically mandated by changes in state or federal
law in compliance with section 13.3 herein.
5.2.2 Developer may elect with city's consent,
to have applied to the project any rules, regulations,
policies, ordinances or standards enacted after the date of
this Agreement. Such an election has to be made in a manner
consistent with section 5.2 of this Agreement.
NOTE: POLICY ISSUE
5.2.3 Agreement that the city and Developer may
mutually seek and agree to modifications to the Existing
project Approvals. Such modifications are contemplate as
within the scope of this Agreement, and shall, upon written
2policy issue
-8-
acceptance by all parties, constitute for all purposes an
Existing project Approval. The parties agree that any such
modifications may not constitute an amendment to this
Agreement nor require an amendment to the Agreement.
5.2.3 Modifications to Existina proiect
Approvals. It is contemplated by the parties to this
Agreement that the city and Developer may mutually seek and
agree to modifications to the Existing Project Approvals.
Such modifications are contemplated as within the scope of
this Agreement, and shall, upon written acceptance by all
parties, constitute for all purposes an Existing Project
Approval. The parties agree that any such modifications may
not constitute an amendment to this Agreement nor require an
amendment to the Agreement.
5.2.4 Future Discretionarv ApDrovals. It is
contemplated by the parties to this Agreement that the City
and Developer may agree to Future Discretionary Approvals. The
parties agree that any such Future Approvals may not consti-
tute an amendment to this Agreement nor require an amendment
to the Agreement.
5.3 Dedication and Reservation of Land for Public
Purposes. Except as expressly required by this Agreement or the
Existing Project Approvals and Future Discretionary Approvals
(excepting dedications required within the boundaries of any parcel
created by the subsequent subdivision of the Property as required
by the Subdivision Map Act), no dedication or reservation of real
property within or outside the Property shall be required by City
or Developer in conjunction with the Project. Any dedications and
reservations of land imposed shall be in accordance with section
7.2 and Section 7.8 herein.
5.4 Time for Construction and Completion of Pro;ect.
Because the California Supreme Court held in Pardee construction
Company v. citv of Camarillo (1984) 27 Cal.3d 465, that the failure
of the parties to provide for the timing of development resulted in
a later-adopted initiative restricting the timing of development to
prevail over such parties' Agreement, it is the intention of the
parties to this Agreement to cure that deficiency by specifically
acknowledging that timing and phasing of development is completely
and exclusively governed by the Existing Project Approvals,
including the Chula vista Growth Management Ordinance. The purpose
of the Chula vista Growth Management Ordinance is to "control the
timing and location of development by tying the pace of development
to the provision of public facilities and improvements to conform
to the City's threshold standards." (Municipal Code Section
19.09.010A.7) The findings in support of the Growth Management
Ordinance conclude that the ordinance "does not affect the number
of houses which may be built." (Municipal Code Section
19.09.010B.3) Therefore, the parties acknowledge that the Chula
vista Growth Management Ordinance completely occupies the topic of
development timing and phasing and expressly precludes the adoption
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of housing caps, urban reserves or any other means by which the
rate of development may be controlled or regulated. The City
agrees that the Developer shall be entitled to, apply for and
receive all permits necessary for the development of property,
consistent with the Growth Management Ordinance, Existing Project
Approvals, Future Discretionary Approvals and this Agreement.
5.5 Benefit of vestina. Nothing in this Agreement will
be construed as limiting or impairing Developer's vested right, if
any, to proceed with the development and use of the Property
pursuant to the Federal and state Constitutions, and pursuant to
statutory and decisional law.
5.6 vestinq of Entitlements. All rights conferred by
this Agreement vest with the Effective Date hereof. The approval
of Future Discretionary approvals shall not be deemed to limit
Developer's rights authorized by this Agreement, and once such
approvals are obtained they shall be vested to the same extent as
the Existing Project Approvals.
6. DEVELOPMENT PROGRAM.
6.1 Processina of Future Discretionarv Approvals. City
will accept and diligently process development applications and
requests for Future Discretionary Approvals, or other entitlements
with respect to the development and use of the Property, provided
said applications and requests are in accordance with this
Agreement. City costs for processing work related to the Project,
including hiring of additional City personnel and/or the retaining
of professional consultants, will be reimbursed to City by
Developer.
6.2 Lenath of Validitv of Tentative Subdivision Maps3.
Government Code section 66452.6 provides that tentative subdivision
map(s) may remain valid for a length up to the term of this
Agreement. The city agrees that tentative subdivision map(s) not to
exceed three thousand (3,000) dwelling units, shall remain valid
for a term of ten (10) years. Tentative subdivision map(s) greater
than three thousand (3,000) dwelling units shall remain valid for
a term of ten (10) years plus one additional year for every three
hundred (300) dwelling units in excess of three thousand (3,000)
dwelling units.
6.3 Pre-Final Map Development. If Developer desires to
do certain work on the Property after approval of a tentative map
(for example, grading) prior to the recordation of a final map, it
may do so by obtaining a grading and/or other required approvals
from the City which are authorized by the City prior to recordation
of a final map. Such permit shall be issued to Developer, or its
contractor, upon Developer's application, approval, and provided
3policy issue
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Developer posts a bond or other reasonably adequate security
required by City in an amount to assure the rehabilitation of the
land if the applicable final map does not record.
6.4 Final Maps.
6.4.1 "A" Maps and "B" Maps. If Developer so
elects, the city shall accept and process a master subdivision
or parcel map ("A" Map) showing "Super Block" lots and
backbone street dedications. "Super Block" lots shall be
consistent with the GDP and subsequent Sectional Plan Area
plans, and shall not subdivide land into individual single-
family lots. All "Super Blocks" created shall have access to
dedicated public streets. The City shall not require improve-
ment plans in order to record a final map for any "A" Map
lots, but the City shall require bonding for the completion of
backbone facilities prior to recording in an amount to be
determined by the City. Following the approval by City of any
final map for an "A" Map lot and its recordation, Developer
may convey the "super Block" lot. The buyer of a "Super
Block" lot shall then process final improvement plans and
grading plans and a final map ("B" Map) for each "Super Block"
lot which the city shall process. The "B" Maps shall be in
substantial conformance with the related approved "A" Map. In
the instance of the multi-family dwelling unit areas, a
separate tentative subdivision map may be submitted to the
City and the "B" Map(s) for these areas may be submitted to
the city after the city Planning commission approves said
tentative subdivision map.
6.4.2 Recordation of Final Subdivision Map in
Name of Builder or Third Partv. Developer may, if it so
elects, convey to a Builder or third party any "super block"
lot(s) shown on the recorded Superblock Final Map. In such
case, the Builder or third party will (i) process any neces-
sary final improvement and grading plans and a final map for
each such "super block" lot, which map City shall accept and
process as subsequent phases in a multi-phase project, (ii)
enter into a subdivision improvement agreement with City with
respect to the subdivision improvements which are required for
such super block lot, and (iii) provide security and insurance
satisfactory to City for the completion of the subdivision
improvements.
6.4.3 Recordation of Final Subdivision Map in
Developer's Name; Transfer of Obligations Under Subdivision
Improvement Agreement (s) . If Developer so elects, it may
defer the conveyance of any super block lot to a Builder or
third party until after the final map of such super block lot
has been recorded. If Developer elects to proceed in this
manner, it will enter into City's standard subdivision
improvement agreement(s) with city for the improvements
required as a condition to the recordation of such map(s).
Upon sale to a Builder or third party, if such Builder or
third party assumes Developer's obligations under the improve-
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ment agreement and provides its own security and insurance for
the completion of the subdivision improvements as approved by
the City, Developer shall be released from liability under the
subdivision improvement agreement(s) and Developer's security
shall be released.
6.4.4 Transfer of Riahts and Obliaations of
Development. Whenever Developer conveys a portion of the
Property, the rights and obligations of this Agreement shall
transfer in accordance with section herein.
7. DEVELOPER'S OBLIGATIONS.
7.1 Condition to Developer's Obliaations to Dedicate. Fund or
Construct Public Facilities. Developer agrees to develop or
provide the public improvements, facilities, dedications, or
reservations of land and satisfy other exactions conditioning the
development of the Property which are set forth hereinbelow. The
obligations of the Developer pursuant to this Agreement are
conditioned upon: (i) the City not being in default of its obliga-
tions under this agreement; and (ii) the City not preventing or
unreasonably delaying the development of the property; and (iii)
the Agreement having not been suspended or modified in response to
changes in state or federal law; and (iv) the City's obligations
having not been suspended pursuant to section 13.2.
7.2 Dedications and Reservations of Land for Public Purposes.
The policies by which property will be required to be reserved,
dedicated or improved for public purposes are identified in the
Existing Project Approvals. A more precise delineation of the
property to be preserved, dedicated or improved for public purposes
shall occur as part of Future Discretionary Approvals, consistent
with the Existing Project Approvals.
7.2.1 Dedication of Land for SR 125. Developer agrees to
dedicate land for right-of-way purposes and property owned by
the Developer that is reasonably necessary for the SR-125
configuration that is generally depicted in the SR-125 draft
Environmental Impact Report/Statement and as revised in the
Final Environmental Impact Report/statement to respond to
engineering, design, environmental and similar constraints.
The dedications shall be to the City or by an alternate method
acceptable to the City at such time as requested by the City.
city agrees that in the event City shall negotiate with
California Transportation Ventures (CTV) or other toll road
builder any participation or advantages to City that City
shall share such rights with subsequent owner/resident of the
property.
7.2.2 Landfill Nuisance Easements. Developer shall grant
to the County by July 1, 1996 "Landfill Nuisance Easements"
substantially in the form attached "as Exhibit The
Easement shall cover all land which is wi thin ~e Otay
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Landfill Buffer Area of Villages 2, 3 and Planning Area 18B of
the otay Ranch GDPP as shown on Exhibit ___ hereto.
7.2.3 Preserve Convevance Plan. The Developer shall
comply with any existing or yet to be adopted Preserve
Conveyance Plan and convey property as set forth in such Plan.
7.3 Growth Manaaement Ordinance. Developer shall commit the
public facilities and City shall issue building permits as provided
in this Section. The City shall have the right to withhold the
issuance of building permits any time after the City reasonably
determines a Threshold has been exceeded, unless and until the
Developer has mitigated the deficiency in accordance with the
city's Growth Management Ordinance.
Developer agrees that building permits may be withheld where the
public facilities described in the Existing Project Approvals/-
Future Discretionary Approvals required for a particular .Threshold
have not been committed.
In the event a Threshold is not met and future building permit
issuance may be withheld, the notice provisions and procedures
contained in section 19.09 .100C of the Municipal Code will be
followed. In the event the issuance of building permits is
suspended pursuant to the provisions herein, such suspension shall
not constitute a breach of the terms of this Agreement by Develop-
er. Furthermore, any such suspension which is not caused by the
actions or omissions of the Developer, shall toll the term of this
Agreement as provided for in Section 16.12 of this Agreement, and
suspend the Developer's obligations pursuant to this Agreement.
7.3.1 ReQuired Condemnation. The city and Developer
recognize that certain of the public facilities identified in
the Existing Project Approvals/Future Discretionary Approvals
and required to comply with a threshold are located on
properties which neither the Developer nor the City has, or
will have, title to or control of. The city shall identify
such property or properties and at the time of filing of the
final map commence timely negotiations or, where the property
is within the City's jurisdiction, commence timely proceedings
pursuant to Title 7 (commencing with S 1230.010) of Part 3 of
the Code of civil Procedure to acquire an interest in the
property or properties. Developer's share of the cost
involved in any such acquisition shall be based on its
proportionate share of the public facility as defined in the
Existing project Approvals/Future Discretionary Approvals.
Nothing in this Agreement shall be deemed to preclude the city
from requiring the Developer to pay the cost of acquiring such
off-site land. For that portion of the cost beyond the
Developer's fair share responsibility, the city shall take all
reasonable steps to establish a procedure whereby the develop-
er is reimbursed for such costs beyond its fair share.
7.3.2 Information ReQardinQ Thresholds. Upon
Developer's written requests of the City Manager, the City
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will provide Developer with information regarding the current
status of a Threshold. Developer shall be responsible for any
staff costs incurred in providing said written response.
7.4 Improvements Reauired bv a Subdivision Map. Asmay
be required pursuant to the terms of a subdivision map, it shall be
the responsibility of Developer to construct the improvements
required by a subdivision map. Where Developer is required to
construct a public improvement which has been identified as the
responsibility of another party or to provide public improvements
of supplemental size, capacity, number or length benefiting
property not within the subdivision, City shall process a reim-
bursement agreement to the Developer in accordance with Article 6
of Chapter 4 of the Subdivision Map Act, commencing with Government
Code section 66485, and section 7.5, below.
7.5 Facilities Which Are the Obliaations of Another
Partv. or Are of Excessive Size. Capacitv. Lenath or Number.
Developer may offer to advance monies and/or construct public
improvements which are the responsibility of another land owner, or
outside the City's jurisdictional boundaries, or which are of
supplemental size, capacity, number or length for the benefit of
land not within the Property. City, where requesting such funding
or construction of oversized public improvements, shall consider
after a public hearing, contemporaneous with the imposition of the
obligation, the formation of a reimbursement district, assessment
district, facility benefit assessment, or reimbursement agreement
or other reimbursement mechanism.
7.6 pioneerina of Facilities. To the extent Developer
itself constructs (1. e., "Pioneers") any public facilities or
public improvements which are covered by a DIF Program, Developer
shall be given a credit against DIFs otherwise payable, subject to
the City's Director of Public Works reasonable determination that
such costs are allowable under the applicable DIF Program. It is
specifically intended that Developer be given DIF credit for the
DIF Program improvements it makes. The fact that such improvements
may be financed by an assessment district or other financing
mechanism, shall not prevent DIF credit from being given to the
extent that such costs are allowed under the applicable DIF Program
7.7 Insurance.
insured for all insurance
Project as pertains to the
the Project.
Developer shall name city as additional
policies obtained by Developer for the
Developer's activities and operation on
7.8 Other Land Owners. Developer hereby agrees to
dedicate adequate rights-of-way within the boundaries of the
Property for other land owners to "Pioneer" public facilities on
the Property; provided, however, as follows: (i) dedications shall
be restricted to those reasonably necessary for the construction of
facilities identified in the City's adopted public facility plans;
(ii) this provision shall not be binding on the successors-in-
interest or assignees of Developer following recordation of the
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final "super Block" or "A" Map; and (iii) the city shall use its
reasonable best efforts to obtain agreements similar to this
subsection from other developers and to obtain equitable reimburse-
ment for Developer for any excess dedications.
7.9 Construction of East-West Access. Pursuant to
city's requirements, Developer is required to pay Transportation
Development Fees (TDIF) for a variety of purposes including
construction of east-west arterial access through the Property
connectinq to I-80S. Alternatively, the Developer may be required
to actually construct all or portions of such access if, at the
time of need, the TDIF fund does not contain sufficient revenues to
finance the construction of the needed facilities. Such east-west
arterial access from SPA One to I-80S could occur on either East
orange Avenue or on East Palomar street. It is not now possible to
determine with certainty when it will be necessary to actually
construct the arterials in order to comply with the threshold
requirements because the rate and location of future development is
unknown. The total cost and length of the arterial, which might be
constructed by the Developer, are unknown at this time because it
cannot be determined if and when development west of the property
(Sunbow) will construct the Western portion of the arterials. Such
uncertainty makes it difficult to plan and finance the orderly
development of the property and needed on-site and off-site
facilities. To provide greater certainty as to the timing and
construction of east-west arterial access, the City agrees to
reasonably consider in good faith a traffic capacity agreement with
Developer which would reserve traffic capacity for all or part of
SPA One in exchange for Developer's agreement to pioneer all or
part of planned east-west access to SPA One.
8. DEVELOPMENT IMPACT FEES.
8.1 Existina Development Impact Fee Proqram Pavments.
Developer shall pay to the city a DIF, or construct improvements in
lieu of payment, for improvements which are conditions of a
tentative subdivision map upon the issuance of building permits(s),
or at a later time as specified by city ordinance, the Subdivision
Map Act, or Public Facility Financing Plan (PFFP). The DIF will be
in the amount in effect at the time payment is made and may only be
increased pursuant to Section 8.6 herein.
8.2 Other Undeveloped Properties. The city will use its
reasonable best efforts to impose and collect, or cause the
imposition and collection of, the same DIF program on all the
undeveloped real properties which benefit from the provision of the
public facility through the DIF program, or provided as a condition
of Project Approvals.
8.3 Use of Development Impact Fee Proaram. The DIF
amounts paid to the city by Developer and others with respect to
the Area of Benefit shall be placed by the City in a capital
facility fund account established pursuant to California Government
Code sections 66000-66009. The City shall expend such funds only
for the Projects described in the adopted fee program as may be
-15-
modified from time to time. The city will use its reasonable best
efforts to cause such Projects to be completed as soon as practica-
ble; however, the City shall not be obligated to use its general
funds for such Projects.
8.4 withholdina of Permits. Developer agrees that City
shall have the right to withhold issuance of the building permit
for any structure or improvement on the Property unless and until
the DIF is paid for such structure or improvement.
8.5 Development Impact Fee Credit. upon the completion
of any public facility, the City shall immediately credit Developer
with the appropriate amount of cash credits (IEDUs") as determined
by Developer and city. However, if the improvements are paid for
through an Assessment District, the City shall credit the Developer
with the appropriate number of Equivalent Dwelling Unit Credits
(EDU's). Developer shall be entitled to apply any and all credits
accrued pursuant to this subsection toward the required payment of
future DIF for any phase, stage or increment of development of the
Project.
8.6 Modification of Development Impact Fees. The
parties recognize that from time to time during the duration of the
Agreement it will be necessary for the City to update and modify
its DIF fees. Such reasonable modifications are contemplated by
the city and the Developer and shall not constitute a modification
to the Agreement so long as: (i) the modification incorporates the
reasonable costs of providing facilities identified in the Existing
Project Approvals; (ii) are based upon methodologies in substantial
compliance with the methodology contained in the existing DIF
programs; or other methodology approved by the City Council
following a public hearing; (iii) complies with the provisions of
Government Code sections 66000-66009.
8.7 Standards for Financina Obliaations of Owner. In
connection with the development of the Property. the following
standards regarding the financing of public improvements shall
apply:
8.7.1 Owner shall participate in the DIF Program
for the otay Valley Parcel with other owners in proportion to
the total dwelling units or equivalent dwelling units allowed
on the Property as compared with the total of such units
allowed on properties in that particular DIF or by some other
equitable methodology decided by the City Council.
8.7.2 The City shall diligently pursue the
requirements that the Eastern Territories' DIF requires
offsite third parties and adjacent jurisdictions to bear their
fair share of all Otay River Valley crossings.
9. CITY OBLIGATIONS.
9.1 Urban Infrastructure. To the extent it is within
the authority of the City to provide, city shall accommodate urban
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infrastructure to the project, consistent with Existing Project
Approvals. Where it is necessary to utilize City property to
provide urban infrastructure consistent with the Existing Project.
Approvals, the city agrees to make such land available for such
uses, provided that the City if it so chooses is compensated at
fair market value for the property. To the extent that the
provision of urban infrastructure is within the authority of
another public or quasi-public agency or utility, the City agrees
to fully cooperate with such agency or agencies to accommodate the
urban infrastructure, consistent with Existing Project Approvals.
Urban infrastructure shall include, but not be limited to gas,
electricity, telephone, cable and facilities identified in the Otay
Ranch Facility Implementation Plan.
9.2 Sewer Capacitv. The City agrees to provide adequate
sewer capacity for the project, upon the payment of ordinary and
necessary sewer connection, capacity and/or service fees.
9.3 Nuisance Easement. The City shall reasonably
consider with proper environment~l review a request to amend the
otay Ranch GDP to relocate, within the property, the land uses
affected by the execution of a "nuisance easement" pursuant to the
Otay Ranch Landfill Agreement, (dated May 15, 1996). This GDP
amendment shall be processed prior to or concurrent with the GDP
amendment covering the landfill buffer area required by the
Landfill Agreement. The amendment shall be deemed vested to the
same extent as Existing Project Approvals and shall not require or
consti tute an amendment to this Agreement. The Developer agrees to
pay the reasonable City cost for processing the amendments.
10. ANNUAL REVIEW.
10.1 Citv and Owner Responsibilities. City will, at
least every twelve (12) months during the Term of this Agreement,
pursuant to California Government Code 565865.1, review the extent
of good faith substantial compliance by Owner with the terms of
this Agreement. Pursuant to California Government Code section
65865.1, as amended, Owner shall have the duty to demonstrate by
substantial evidence its good faith compliance with the terms of
this Agreement at the periodic review. Either City or Owner may
address any requirement of the Agreement during the review.
10.2 Evidence. The parties recognize that this Agreement
and the documents incorporated herein could be deemed to contain
hundreds of requirements and that evidence of each and every
requirement would be a wasteful exercise of the parties' resources.
Accordingly, Developer shall be deemed to have satisfied its good
faith compliance when it presents evidence of substantial com-
pliance with the major provisions of this Agreement. Generalized
evidence or statements shall be accepted in the absence of any
evidence that such evidence is untrue.
10.3 Review Letter. If Owner is found to be in com-
pliance with this Agreement after the annual review, City shall,
within forty-five (45) days after Owner's written request, issue a
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review letter in recordable form to Owner ("Letter") stating that
based upon information known or made known to the Council, the city
Planning commission and/or the City Planning Director, this
Agreement remains in effect and Owner is not in default. Owner may
record the Letter in the Official Records of the County of San
Diego.
10.4 Failure of Periodic Review. City's failure to
review at least annually Owner's compliance with the terms and
conditions of this Agreement shall not constitute, or be asserted
by City or Owner as, a breach of the Agreement.
11. DEFAULT.
11.1 Events of Default. A default under this Agreement
shall be deemed to have occurred upon the happening of one or more
of the following events or conditions:
made
been
11.1.1
or furnished
false in any
A warranty, representation or statement
by Owner to City is false or proves to have
material respect when it was made.
11.1.2 A finding and determination by City made
following a periodic review under the procedure provided for
in California Government Code section 65865.1 that upon the
basis of substantial evidence Owner has not complied in good
faith with one or more of the terms or conditions of this
Agreement.
consider
submitted
11.1.3 City does not accept,
requested development permits
in accordance with the provisions
timely review, or
or entitlements
of this Agreement.
11.1. 4 Any other act or omission by City or Owner
which materially interferes with the terms of this Agreement.
11.2 Procedure Upon Default.
11.2.1 Upon the occurrence of default by the
other party, City or Owner may terminate this Agreement after
providing the other party thirty (30) days written notice
specifying the nature of the alleged default and, when
appropriate, the manner in which said default may be satis-
factorily cured. After proper notice and expiration of said
thirty (30) day cure period without cure, this Agreement may
be terminated. In the event that city's or Owner's default is
not subject to cure within the thirty (30) day period, City or
Owner shall be deemed not to remain in default in the event
that City or Owner commences to cure within such thirty (30)
day period and diligently prosecutes such cure to completion.
Failure or delay in giving notice of any default shall not
constitute a waiver of any default, nor shall it change the
time of default. Notwithstanding any other provision of this
Agreement, city reserves the right to formulate and propose to
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Owner options for curing any defaults under this Agreement for
which a cure is not specified in this Agreement.
11. 2.2 City does not waive any claim of defect in
performance by Owner if, on periodic review, City does not
propose to modify or terminate this Agreement.
11.2.3 Subject to Paragraph 16.12 of this
Agreement, the failure of a third person shall not excuse a
party's nonperformance under this agreement.
11.2.4 All other remedies at law or in equity
which are consistent with the provisions of this Agreement are
available to City and Owner to pursue in the event there is a
breach. .
12. ENCUMBRANCES AND RELEASES ON PROPERTY.
12.1 Discretion to Encumber. This Agreement shall not
prevent or limit Owner in any manner at Owner's sole discretion,
from encumbering the Property, or any portion of the Property, or
any improvement on the Property, by any mortgage, deed of trust, or
other security device securing financing with respect to the
Property or its improvement.
12.2 Mortqaqee Riahts and Obliaations. The mortgagee of
a mortgage or beneficiary of a deed of trust encumbering the
Property, or any part thereof, and their successors and assigns
shall, upon written request to City, be entitled to receive from
City written notification of any default by Owner of the
performance of Owner's obligations under the Agreement which has
not been cured within thirty (30) days following the date of
default.
12.3 Releases. City agrees that upon written request of
Owner and payment of all fees and performance of the require-
ments and conditions required of Owner by this Agreement with
respect to the Property, or any portion thereof, City may
execute and deliver to Owner appropriate release(s) of further
obligations imposed by this Agreement in form and substance
acceptable to the San Diego County Recorder and title
insurance company, if any, or as may otherwise be necessary to
effect the release. City Manager shall not unreasonably
withhold approval of such release(s).
12.4 Obliaation to Modifv. city aCknowledges that the
lenders providing financing for the Project may require certain
modifications to this Agreement and City agrees, upon request from
time to time, to meet with Owner and/or representatives of such
lenders to negotiate in good faith any such requirement for
modification. City will not unreasonably withhold its consent to
any such requested modification.
13. MODIFICATION OR SUSPENSION.
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13.1 Modification to Aqreement bv Mutual Consent. This
Agreement may be modified, from time to time, by the mutual consent
of the parties only in the same manner as its adoption by an
ordinance as set forth in california Government Code sections
65867, 65867.5 and 65868. The term, "this Agreement" as used in
this Agreement, will include any such modification properly
approved and executed.
13.2 Unforeseen Health or Safetv Circumstances. If, as
a result of facts, events, or circumstances presently unknown,
unforeseeable, and which could not have been known to the parties
prior to the commencement of this Agreement, City finds that
failure to suspend this Agreement would place the residents of City
in a severe and immediate emergency to their health or safety.
13.2.1 Notification of Unforeseen Circumstances.
Notify Developer of (i) City's determination; and (ii) the
reasons for City's determination, and all facts upon which
such reasons are based;
13.2.2 Notice of Hearina. Notify Developer in
writing at least fourteen (14) days prior to the date, of the
date, time and place of the hearing and forward to Developer
a minimum of ten (10) days prior to the hearings described in
section 13.2.3, all documents related to such determination
and reasons therefor; and
13.2.3 Hearina. Hold a hearing on the deter-
mination, at which hearing Developer will have the right to
address the city Council. At the conclusion of said hearing,
City may take action to suspend this Agreement as provided
herein. The City may suspend this Agreement if, at the
conclusion of said hearing, based upon the evidence presented
by the parties, the City finds failure to suspend would place
the residents of the City in a severe and immediate emergency
to their health or safety.
13.3 Chanae in state or Federal Law or Reaulations. If
any state or federal law or regulation enacted during the Term of
this Agreement, or the action or inaction of any other affected
governmental jurisdiction, precludes compliance with one or more
provisions of this Agreement, or requires changes in plans, maps,
or permits approved by city, the parties will act pursuant to
sections 13.3.1 and 13.3.2, below.
13.3.1 Notice: Meetina. The party first becoming
aware of such enactment or action or inaction will provide the
other party(ies) with written notice of such state or federal
law or regulation and provide a copy of such law or regulation
and a statement regarding its conflict with the provisions of
this Agreement. The parties will promptly meet and confer in
a good faith and reasonable attempt to modify or suspend this
Agreement to comply with such federal or state law or regula-
tion.
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13.3.2 Hearinq. If an agreed upon modification
or suspension would not require an amendment to this Agree-
ment, no hearing shall be held. Otherwise, the matter of such
federal or state law or regulation will be scheduled for
hearing before the City. Fifteen (15) days' written notice of
such hearing shall be provided to Developer, and the City, at
such hearing, will determine and issue findings on the
modification or suspension which is required by such federal
or state law or regulation. Developer, at the hearing, shall
have the right to offer testimony and other evidence. If the
parties fail to agree after said hearing, the matter may be
submitted to mediation pursuant to subsection 13.3.3, below.
Any modification or suspension shall be taken by the affirma-
tive vote of not less than a majority of the authorized voting
members of the City. Any suspension or modification may be
subject to judicial review in conformance with subsection
16.19 of this Agreement.
13.3.3 Mediation of Disputes. In the event the
dispute between the parties with respect to the provisions of
this paragraph has not been resolved to the satisfaction of
both parties following the City hearing required by subsection
13.3.2, the matter shall be submitted to mediation prior to
the filing of any legal action by any party. The mediation
will be conducted by the San Diego Mediation Center; if San
Diego Mediation Center is unable to conduct the mediation, the
parties shall. submit the dispute for mediation to the Judicial
Arbitration and Mediation Service or similar organization and
make a good faith effort to resolve the dispute. The cost of
any such mediation shall be divided equally between the
Developer and City.
13.4 Natural Communities Conservation Act INCCPI. The
parties recognize that Developer and the City are individually
negotiating agreements with the united states Fish and wildlife
Service ("USF&W") and the California Department of Fish and Game
pursuant to the ongoing regional effort to implement the Natural
Communities Conservation Act ("NCCP"), locally proposed to be
implemented through the MUlti-species Conservation Program
("MSCP"). The parties further recognize that implementation of the
agreements may necessitate modification to the Existing Project
Approvals. The city agrees to utilize its best efforts to
implement these agreements, once executed, through the timely
processing of modifications to the Existing Project Approvals
subject to the provisions of conditions below. The Developer
agrees to pay the reasonable city cost for processing work related
to the modifications. Once such modifications are obtained they
shall be vested to the same extent as Existing Project Approvals.
Such modifications shall be substantially similar to the provisions
contained in Exhibit "F", the May 17, 1996 Administrative draft of
the city of Chula Vista SubArea Plan for the Multi-species
Conservation Program, except for the proposed deletion of the
Maritime Succulent Scrub restoration requirement [Section 3(b) of
the SubArea Plan (page 27)].
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The parties acknowledge that the MSCP Agreement summa-
rized above is the key component to a comprehensive program which
will enable Chula vista to participate in the preparation and
enactment of a MSCP subregional Habitat conservation Program. The
success of the MSCP and related RMP Preserve require the implemen-
tation of each component of each of these plans. The parties
further recognize that the MSCP Agreement was prepared when Village
Development, otay Ranch, L.P., Tiger Development Two and Baldwin
Builders were represented by a common entity authorized to
negotiate plans to achieve public policy goals and market utility
for the properties, collectively and each property individually.
In particular, the MSCP agreement burdens properties owned by otay
Ranch, L.P. through the reduction of entitlements within Village
14, village 13 and reduced densities in Villages 1, 5, 6 and 8.
Conversely, Baldwin Builder property is enhanced by the addition of
approximately 93 acres of residential land within Villages 10 and
11. Implementation of the MSCP program and/or the Otay Ranch GDP
depend upon implementation of the RMP Preserve. Development of SPA
One by Village Development, Otay Ranch, L.P., and Tiger Development
Two requires the conveyance of open space to the RMP Preserve owned
by Baldwin Builders.
14. DISTRICTS. PUBLIC FINANCING MECHANISMS.
This Agreement and the Existing Project Approvals recognize
that assessment districts, community facility districts, or other
public financing mechanisms, may be necessary to finance the cost
of public improvements borne by this Project. If Developer,
pursuant to the Existing Project Approvals/Future Discretionary
Approvals, is required to install improvements through the use of
assessment districts, community facility districts, or other public
financing mechanisms, the City shall initiate and conclude
appropriate proceedings for the formation of such financing
district or funding mechanism, under applicable laws or ordinances.
Developer may request that the City utilize any other financing
methods which may become available under city laws or ordinances.
All costs associated with the consideration and formation of such
financing districts or funding mechanisms shall be paid by
Developer subject to reimbursement, as may be legally authorized
out of the proceeds of any financing district or funding mechanism.
15. ASSIGNMENT AND DELEGATION.
15.1 Assianment. Owner shall have the right to transfer
or assign its interest in the Property, in whole or in part,
to any persons, partnership, joint venture, firm, or corpora-
tion at any time during the Term of this Agreement without the
consent of city. Owner also shall have the right to assign or
transfer all or any portion of its interest or rights under
this Agreement to third parties acquiring an interest or
estate in the Property at any time during the Term of this
Agreement without the consent of city.
15.2 Deleaation. In addition, Owner shall have the
right to delegate or transfer its obligations under this
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Agreement to third parties acqu~r~ng an interest or estate in
the Property after receiving the prior written consent of the
City Manager, which consent shall not be unreasonably with-
held, delayed, or conditioned. Once the city Manager has
consented to a transfer, delivery to and acceptance by the
City Manager of an unqualified written assumption of Owner's
obligations under this Agreement by such transferee shall
relieve Owner of the obligations under this Agreement to the
extent the obligations have been expressly assumed by the
transferee. Such transferee shall not be entitled to amend
this Agreement without the written consent of the entity that,
as of the Effective Date, is Owner, which consent shall not be
unreasonably withheld, delayed, or conditioned. The entity
that is Owner as of the Effective Date, however, shall be
entitled to amend this Agreement without the written consent
of such transferee.
16. MISCELLANEOUS PROVISIONS.
16.1 Bindina Effect of Aareement. Except to the extent
otherwise provided in this Agreem~nt, the burdens of this Agreement
bind, and the benefits of this Agreement inure, to City's and
Owner's successors-in-interest and shall run with the land.
16.2 Relationship of city and Owner. The contractual
relationship between city and Owner arising out of this Agreement
is one of independent contractor and not agency. This Agreement
does not create any third-party beneficiary rights.
16.3 Notices. All notices, demands, and correspondence
required or permitted by this Agreement shall be in writing and
delivered in person, or mailed by first-class or certified mail,
postage prepaid, addressed as follows:
If to city, to:
If to Owner, to:
City of Chula Vista
276 Fourth Avenue
Chula vista, CA 91910
Attention: city Manager
Jim Baldwin
otay Ranch, L.P.
Newport Center Dr., suite 700
Newport Beach, CA 92660
Kim John Kilkenny
Otay Ranch, L.P.
11975 El Camino Real, suite 104
San Diego, CA 92130
Attention: Donald R. Worley, Esq.
city or Owner may change its address by giving notice in writing to
the other. Thereafter, notices, demands, and correspondence shall
be addressed and transmitted to the new address. Notice shall be
deemed given upon personal delivery, or, if mailed, two (2)
business days following deposit in the united States mail.
with a Copy to:
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16.4 Rules of Construction. In this Agreement, the use
of the singular includes the plural; the masculine gender includes
the feminine; "shall" is mandatory; "may" is permissive.
16.5 Entire Aareement. Waivers. and Recorded statement.
This Agreement constitutes the entire understanding and agreement
of City and Owner with respect to the matters set forth in this
Agreement. This Agreement supersedes all negotiations or previous
agreements between City and Owner respecting this Agreement. All
waivers of the provisions of this Agreement must be in writing and
signed by the appropriate authorities of City and Owner. Upon the
completion of performance of this Agreement, or its revocation or
termination, a statement evidencing completion, revocation, or
termination signed by the appropriate agents of City shall be
recorded in the Official Records of San Diego County, California.
16.6 Pro;ect as a Private Undertakina. It is
specifically understood by city and Owner that (i) the Project is
a private development; (ii) City has no interest in or
responsibilities for or duty to third parties concerning any
improvements to the Property until City accepts the improvements
pursuant to the provisions of the Agreement or in connection with
subdivision map approvals; and (iii) Owner shall have the full
power and exclusive control of the Property subject to the
obligations of Owner set forth in this Agreement.
16.7 Incorporation of Recitals. The recitals set forth
in Paragraph 1 of this Agreement are part of this Agreement.
16.8 captions. The captions of this Agreement are for
convenience and reference only and shall not define, explain,
modify, construe, limit, amplify, or aid in the interpretation,
construction, or meaning of any of the provisions of this
Agreement.
16.9 Consent. Where the consent or approval of City or
Owner is required or necessary under this Agreement, the consent or
approval shall not be unreasonably withheld, delayed, or con-
ditioned.
16.10 Covenant of Cooperation.
cooperate and deal with each other in good
other in the performance of the provisions
Ci ty and Owner shall
faith, and assist each
of this Agreement.
16.11 Recordina. The City Clerk shall cause a copy of
this Agreement to be recorded with the Office of the County
Recorder of San Diego county, California, within ten (10) days
following the Effective Date.
16.12 Delav. Extension of Time for Performance. In
addition to any specific provision of this Agreement, performance
by either City or Owner of its obligations hereunder shall be
excused, and the Term of this Agreement and the Development Plan
extended, during any period of delay caused at any time by reason
of any event beyond the control of City or Owner which prevents or
-24-
delays and impacts City's or Owner's ability to perform obligations
under this Agreement, including, but not limited to, acts of God,
enactment of new conflicting federal or state laws or regulations
(example: listing of a species as threatened or endangered),
judicial actions such as the issuance of restraining orders and
injunctions, riots, strikes, or damage to work in process by reason
of fire, floods, earthquake, or other such casualties. If city or
Owner seeks excuse from performance, it shall provide written
notice of such delay to the other within thirty (30) days of the
commencement of such delay. If the delay or default is beyond the
control of City or Owner, and is excused, an extension of time for
such cause will be granted in writing for the period of the
enforced delay, or longer as may be mutually agreed upon.
16.13 Covenant of Good Faith and Fair Dealinqs. Noparty
shall do anything which shall have the effect of harming or
injuring the right of the other parties to receive the benefits of
this Agreement; each party shall refrain from doing anything which
would render its performance under this Agreement impossible; and
each party shall do everything which this Agreement contemplates
that such party shall do in order to accomplish the objectives and
purposes of this Agreement.
16.14 Operatina Memorandum. The parties acknowledge that
the provisions of this Agreement require a close degree of
cooperation between City and Developer, and that the refinements
and further development of the Project may demonstrate that minor
changes are appropriate with respect to the details of performance
of the parties. The parties, therefore, retain a certain degree of
flexibility with respect to those items covered in general under
this Agreement. When and if the parties mutually find that minor
changes or adjustments are necessary or appropriate, they may
effectuate changes or adjustments through operating memoranda
approved by the parties. For purposes of this section 16.14, the
city Manager, or his designee, shall have the authority to approve
the operating memoranda on behalf of city. No operating memoranda
shall require notice or hearing or constitute an amendment to this
Agreement.
16.15 Time of Essence. Time is of the essence in the
performance of the provisions of this Agreement as to which time is
an element.
16.16 Amendment or Cancellation of Aqreement. This
Agreement may be amended from time to time or canceled by the
mutual consent of city and Owner only in the same manner as its
adoption, by an ordinance as set forth in California Government
Code section 65868, and shall be in a form suitable for recording
in the Official Records of San Diego County, California. The term
"Agreement" shall include any such amendment properly approved and
executed. City and Owner acknowledge that the provisions of this
Agreement require a close degree of cooperation between them, and
that minor or insubstantial changes to the Project and the
Development Plan may be required from time to time to accommodate
design changes, engineering changes, and other refinements.
-25-
Accordingly, changes to the Project and the Development Plan that
do not result in a change in use, an increase in density or
intensity of use, cause new or increased environmental impacts, or
violate any applicable health and safety regulations, may be
considered minor or insubstantial by the city Manager and made
without amending this Agreement.
16.17 Estoppel Certificate. within 30 calendar days
following a written request by any of the parties, the other
parties to this Agreement shall execute and deliver to the
requesting party a statement certifying that (i) this Agreement is
unmodified and in full force and effect, or if there have been
modifications hereto, that this Agreement is in full force and
effect as modified and stating the date and nature of such
modifications; (ii) there are no known current uncured defaults
under this Agreement, or specifying the dates and nature of any
such default; and (iii) any other reasonable information requested.
The failure to deliver such a statement within such time shall
constitute a conclusive presumption against the party which fails
to deliver such statement that this Agreement is in full force and
effect without modification, except as may be represented by the
requesting party, and that there are no uncured defaults in the
performance of the requesting party, except as may be represented
by the requesting party.
16.18 Severability. If any material provision of this
Agreement is held invalid, this Agreement will be automatically
terminated unless within 15 days after such provision is held invalid
the party holding rights under the invalidated provision affirms the
balance of this Agreement in writing. This provision will not affect
the right of the parties to modify or suspend this Agreement by
mutual consent pursuant to Paragraph 12.4.
16.19 Institution of Leqal Proceedinq. In addition to any
other rights or remedies, any party may institute legal action to
cure, correct, or remedy any default, to enforce any covenants or
agreements herein, or to enjoin any threatened or attempted violation
thereof; to recover damages for any default or to obtain any remedies
consistent with the purpose of this Agreement. Such legal actions
must be instituted in the Superior Court of the County of San Diego,
State of California.
16.20 Attornevs' Fees and Costs. If any party commences
litigation or other proceedings (including, without limitation,
arbitration) for the interpretation, reformation, enforcement, or
rescission of this Agreement, the prevailing party, as determined by
the court, will be entitled to its reasonable attorneys' fees and
costs.
16.21 Hold Harmless. Developer agrees to and shall hold
City, its officers, agents, employees and representatives harmless
from liability for damage or claims for damage for personal injury,
including death, and claims for property damage which may arise from
the direct or indirect operations of Developer or those of its
contractors, subcontractors, agents, employees or other persons
-26-
acting on Developer's behalf which relate to the Project. Developer
agrees to and shall defend city and its officers, agents, employees
and representatives from actions for damage caused or alleged to have
been caused by reason of Developer's activities in connection with
the Project. Developer agrees to indemnify, hold harmless, pay all
costs and provide a defense for City in any legal action filed in a
court of competent jurisdiction by a third party challenging the
validity of this Agreement. The provisions of this Section 16.21
shall not apply to the extent such damage, liability or claim is
caused by the intentional or negligent act or omission of city, its
officers, agents, employees or representatives.
IN WITNESS WHEREOF, this Agreement has been executed by the CITY
OF CHULA VISTA, acting by and through its City Manager, pursuant to
Ordinance No. authorizing such execution, and by Owner.
Dated this
day of
, 1996.
"CITY"
CITY OF CHULA VISTA
By:
Its:
"OWNER"
THE OTAY RANCH, L.P.
a California limited partnership,
by Sky Communities, Inc.
a California corporation,
its general partner
By:
James P. Baldwin, President
VILLAGE DEVELOPMENT
a California general partnership
By:
James P. Baldwin, President
-27-
I hereby approve
Agreement this
TIGER DEVELOPMENT TWO
a California limited partnership,
by Tigerheart, Inc.
a California corporation,
its general partner
By:
James P. Baldwin, President
legality of the
, 1996.
the form and
day of
foregoing
Ann Moore
Interim City Attorney
city of Chula Vista
By:
-28-
EXHIBIT A
OTAY RANCH, L.P.
EXHIBIT B
TIGER DEVELOPMENT TWO
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0IUlA VISTA
PLANNING DEPARTMENT
6/19/96
EXHIBIT C
VILLAGE DEVELOPMENT
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PRE-ANNEXATION DEVELOPMENT AGREEMENT
THIS PRE-ANNEXATION DEVELOPMENT AGREEMENT ("Agreement") is
made effective on the date hereinafter set forth below by and among
the CITY OF CHULA VISTA ("city") and SNMB, LTD. ("SNMB"), JEWELS OF
CHARITY ("Jewels"), and STEVEN AND MARY BIRCH FOUNDATION
("Foundation"), who agree as follows:
1. RECITALS.
followinq facts:
This Agreement is made with respect to the
1.1 OWner. The owners of the properties subject to this
Agreement (hereinafter collectively referred to as "Owner" or as
"Developer") are as follows:
1.1.1 SNMB is the owner of approximately
acres of undeveloped real property ("the SNMB Property") in
the unincorporated area of the County of San Diego ("County"),
described in Exhibit "A", attached hereto and incorporated
herein by this reference.
1.1.2 Jewels is the owner of approximately
acres of undeveloped real property ("the Jewels Property") in
the unincorporated area of the County, described in Exhibit
"B", attached hereto and incorporated herein by this
reference.
1.1.3 Foundation is the owner of approximately
acres of undeveloped real property ("the Foundation
Property") in the unincorporated area of the County, described
in Exhibit "C", attached hereto and incorporated herein by
this reference.
1.1.4 The SNMB Property, Jewels Property, and
Foundation Property (collectively, "the Property") are part of
a larger area commonly known, and referred to herein, as "the
Otay valley Parcel of otay Ranch."
1.2~. The City of Chula Vista is a municipal
corporation and an incorporated city within the county.
1.3 Code Authorization and Acknowledaments.
1.3.1 city is authorized pursuant to California
Government Code sections 65864 through 65869.5 to enter into
development agreements for the purpose of establishing
certainty for both City and owners of real property in the
development process.
1.3.2 Government Code section 65865 expressly
authorizes a city to enter into a development agreement with
any person having a legal or equitable interest in real
property in unincorporated territory within that city's sphere
of influence for the development of property as provided in
-1-
the Development Agreement Law; provided that the agreement
shall not become operative unless annexation proceedings
annexing the property to the city are completed within the
time specified by the agreement.
1.3.3 City enters into this Agreement pursuant
to the provisions of the California Government Code, its home-
rule powers, and applicable city ordinances, rules, regula-
tions and policies.
1.3.4
City and Owner acknowledge:
1.3.4.1 This Agreement assures adequate
public facilities at the time of development.
1. 3 . 4 . 2 This Agreement assures development in
accordance with city's capital improvement plans.
1.3.4.3 This Agreement constitutes a current
exercise of City's police powers to provide certainty to
Owner in the development approval process by vesting the
permitted useCs), density, intensity of use, and the
timing and phasing of development as described in the
Development Plan, which is defined in Paragraph 2.4 of
this Agreement, in exchange for Owner's entering into
this Agreement and for its commitment to support the
Annexation described below.
1.3.4.4 This Agreement will permit achieve-
ment of city growth management goals and objectives.
1.3.4.5 This Agreement will allow city to
realize significant economic, recreational, park, open
space, social, and public facilities benefits, some of
which are of regional significance.
1.3.4.6 This Agreement will provide and
assure that the City receive sales tax revenues, increase
in the property tax base, residential housing and other
development, sewer, water and street facilities.
1.3.4.7 This Agreement will provide and
assure that the city receives public facilities in excess
of project generated impacts and such facilities shall be
of supplemental size, number capacity or length, which
shall be provided earlier than could be provided either
by funds from the City or than would strictly be
necessary to mitigate project related impacts at any
development phase.
1.3.4.8 This Agreement will provide the city
the developer's support to secure annexation of the lands
depicted in Exhibit "D". .
1.3.4.9 This Agreement will enable the City
to secure title to the land within the boundaries of the
-2-
Property necessary to complete the Chula vista greenbelt
system as defined in the Chula Vista General Plan.
1.3.4.10 This Agreement will assure the city
that the Developer will dedicate rights-of-way to the
city for SR-125, a route which, when constructed, will
substantially alleviate congestion on I-80S and 1-5, and
also will facilitate the economic development of Chula
vista.
1.3.4.11 Because of the complexities of the
financing of the infrastructure, park, open space, and
other dedications, and regional and community facilities,
and the significant nature of such facilities, certainty
in the development process is an absolute necessity. The
phasing, timing, and development of public infrastructure
necessitate a significant commitment of resources,
planning, and effort by Owner for the public facilities
financing, construction, and dedication to be success-
fully completed. In return for Owner's participation and
commitment to these significant contributions of private
resources for public purposes and for Owner's consent to
the Annexation described below, City is willing to
exercise its authority to enter into this Agreement and
to make a commitment of certainty for the development
process for the property.
1.3.4.12 In consideration of Owner's agreement
to provide the significant benefits and for Owner's
consent to the Annexation described below, city hereby
grants Owner assurances that it can proceed with develop-
ment of the Property in accordance with City's
ordinances, rules, regulations, and policies existing as
of the effective date of this Agreement. Owner would not
enter into this Agreement or agree to provide the public
benefits and improvements described in this Agreement if
it were not for the commitment of city that the Property
subject to this Agreement can be developed in accordance
with City's ordinances, rules, regulations, and policies
existing as of the effective date of this Agreement.
1.4 The Annexation. The city has applied to the Local
Agency Formation Commission ("LAFCO") for annexation of Sphere of
Influence planning Area 1 "The otay Parcel", Planning Area 2
"Inverted L" and the Mary Patrick Estate Parcel (see Attachment
"D").
1.5 Sphere of Influence. A city application is pending
before LAFCO to have the Otay Valley Parcel included within city's
sphere of influence. On February 5, 1996 the Local Agency
Formation commission approved the inclusion of approximately 7,600
acres into the City Sphere of Influence (Sphere of Influence
Planning Area 2 and the northern two thirds of Planning Area 1),
and designated the Otay River Valley an village 3 as special study
areas.
-3-
1.6 Plannina Documents. On October 28, 1993, city and
County adopted the otay Ranch General Development Plan/Subregional
Plan ("the GDP") which includes the otay Ranch Village Phasing
Plan, Facility Implementation Plan, Resource Management Plan and
Service Revenue Plan, for approximately 23,000 acres of the Otay
Ranch, including the Otay Valley Parcel and the SNMB, Jewels and
Foundation Properties.
1.7 owner Consent. ci ty desires to have the cooperation
and consent of Owner to include the Property in the Annexation in
order to better plan, finance, construct and maintain the infra-
structure for the otay Valley Parcel; and SNMB, Jewels and
Foundation desire to give their cooperation and consent, provided
that they obtain certain assurances, as set forth in this
Agreement.
, 1996, the
approving this
, 1996.
1.8 citv Ordinance. On
City Council adopted Ordinance No.
Agreement. The ordinance becomes effective on
2. Definitions.
otherwise requires:
In this Agreement, unless the context
2.1 "Annexation" means the proposed annexation of that
portion of the otay Ranch into the City as depicted on Exhibit "D".
2.2 "city" means the City of Chula Vista, in the County
of San Diego, State of California.
2.3 "county" means the County of San Diego, State of
California.
2.4 "Development Plan" means the GDP.
2.5 "GDP" means the General Development Plan/ subregional
Plan for the otay Ranch, described in Paragraph 1.6, above.
2.6 "Owner" or "Developer" means the person, persons, or
entity having a legal and equitable interest in the Property, or
parts thereof, and includes Owner's successors-in-interest.
2.7 "Project" means the physical development of the
private and public improvements on the Property as provided for in
the Existing Project Approvals and as may be authorized by the City
in Future Discretionary Approvals.
2.8 "property" means the real property described in
Paragraphs 1.1.1, 1.1.2, and 1.1.3.
2.9 The "Term" of this Agreement means the period
defined in Paragraph 3, below.
2.10 "Builder" means developer to whom Developer has sold
or conveyed property within the Property for purposes of its
improvement for residential, commercial, industrial or other use.
-4-
2.11 "CEQA" means the california Environmental Quality
Act, California Public Resources Code section 21000, et seq.
2.12 "City council" means the city of Chula vista City
Council.
2.13 "Commit" or "Committed" means all of the following
requirements have been met with respect to any public facility:
2.13.1 For a public facility within the city's
jurisdictional boundaries and a responsibility of the develop-
er.
2.13.1.1 All discretionary permits required of
the Developer have been obtained for construction of the
public facility;
2.13.1.2 Plans for the construction of the
public facility have all the necessary governmental
approvals; and
2.13.1.3 Adequate funds (i.e., letters of
credit, cash deposits, performance bonds or land secured
public financing, including facility benefit assessments,
Mello-Roos assessment districts of similar assessment
mechanism) are available such that the City can construct
the public facility if construction has not commenced
within thirty (30) days of issuance of a notice to
proceed by the Director of Public Works, or construction
is not progressing towards completion in a reasonable
manner as reasonably deemed by the Director of Public
Works.
2.13.2 For a public facility within the city's
jurisdictional boundaries, but to be provided by other than
Developer.
2.13.2.1 Developer's proportionate share of
the cost of such public facility as defined in the
existing Project Approvals and Future Discretionary
Approvals has been provided or assured by Developer
through the payment or impositions of development impact
fee or other similar exaction mechanism.
2.13.3 For public facility not within city's
jurisdictional boundaries:
2.13.3.1 Developer's proportionate share of
the cost of such public facility as defined in the
existing Project Approvals and Future Discretionary
Approvals has been provided for or otherwise assured by
Developer to the reasonable satisfaction of the Director
of Public Works.
-5-
2.14 "Development Impact Fee (DIF)" means fees imposed
upon new development pursuant to the city of Chula Vista
Development Impact Fee Program, for example, including but not
limited to the Transportation Development Impact Fee Program, the
Interim SR-125 Development Impact Fee Program, the Salt Creek Sewer
DIF and the Public Facilities DIF.
2.15 "Existing :Project Approvals" means all discretionary
approvals affecting the Project which have been approved or
established in conjunction with, or preceding, the effective date
consisting of, but not limited to the GDP, the Chula vista General
Plan, the Otay Ranch Reserve Fund Program adopted pursuant to
Resolution 1888, and the Phase II Resource Management Plan (RMP),
as may be amended from time to time consistent with this agreement.
2.16 "Final Map(s)" means any final subdivision map for
all or any portion of the Property other than the Superblock Final
Map ("A" Maps).
2.17 "Future Discretionary Approvals" means all permits
and approvals by the city granted after the effective date and
excluding existing Project Approvals, including, but not limited
to: (i) grading permits; (H) site plan reviews; (Hi) design
guidelines and reviews; (iv) precise plan reviews; (v) subdivisions
of the Property or re-subdivisions of the Property previously
subdivided pursuant to the Subdivision Map Act; (vi) conditional
use permits; (vii) variances; (viii) encroachment permits;
(ix) sectional Planning Area plans; (x) Preserve Conveyance Plan
and (xi) all other reviews, permits, and approvals of any type
which may be required from time to time to authorize public or
private on- or off-site facilities which are a part of the Project.
2.18 "Planning Commission" means the Planning Commission
of the City of Chula vista.
2.19 "Preserve conveyance Plan" means a plan that sets
forth policies and identifies land to be transferred and/or fees to
be paid to insure the orderly conveyance of the otay Ranch land to
the Preserve Owner Manager. The purpose of the plan is to fulfill
the obligations to convey resource sensitive land, per the criteria
contained in the phase I and II Resource Management Plans and to
mitigate environmental impacts of the Otay Ranch Project.
2.20 "public Facility" or "Public Facilities" means those
public facilities described in the Otay Ranch Facility
Implementation Plan.
2.21 "Subdivision Map Act" means the california
Subdivision Map Act, Government Code section 66410, et seq., and
its amendments as may from time to time be adopted.
2.22 "Substantial Compliance" means that the party
charged with the performance of a covenant herein has sufficiently
followed the terms of this Agreement so as to carry out the intent
of the parties in entering into this Agreement.
-6-
2.23 "Threshold" means the facility thresholds set forth
in the City's Municipal Code Section 19.19.040.
3. ~. This Agreement shall become effective as a
development agreement upon the effective date of the Annexation
("the Effective Date"); provided, however, that if the Annexation
does not occur on or before January 1, 1997, this Agreement shall
be null and void. Any of the foregoing to the contrary notwith-
standing, from the effective date of the ordinance approving this
Agreement, set forth in paragraph 1.8, and unless or until this
Agreement becomes null and void, OWner shall be bound by the terms
of Paragraph 4. The Term of this Agreement for purposes other than
Paragraph 4 shall begin upon the Effective Date, and shall continue
for a period of twenty (20) years ("the Term")1.
The term shall also be extended for any period of time during which
issuance of building permits to Developer is suspended for any
reason other than the default of Developer, and for a period of
time equal to the period of time during which any action by the
city or court action limits the processing of future discretionary
approvals, issuance of building permits or any other development of
the property consistent with this Agreement.
4. Owner Consent to Annexation. Owner hereby consents to
and shall cooperate with the applications of City to declare that
the otay Valley Parcel is within city's sphere of influence and to
annex the Otay Valley Parcel to the city; provided, however, that
Owner may withdraw such consent and withhold further cooperation if
the city, prior to the Effective Date, adopts rules, regulations,
ordinances, policies, conditions, environmental regulations,
phasing controls, exactions, entitlements, assessments or fees
applicable to and governing development of the Property which are
inconsistent with, or render impractical development of the
Property according to, the Development Plan or the additional
commitments of city set forth in Paragraphs 5.1.1 through 5.1.6,
below.
5. Vested Riahts. Notwithstanding any future action or
inaction of the city during the term of this Agreement, whether
such action is by ordinance, resolution or policy of the City,
Owner and Developer shall have a vested right, except as may be
otherwise provided in this section 5, to construct the Project in
accordance with:
5.1 Existing Project Approvals, subject to the following
modifications:
5.1.1 ci ty shall reasonably consider and process
with proper environmental review, a request for the transfer
of residential units from Village 3 to villages 2, 4 and 8 (as
the Villages are identified in the GDP).
1Developer wants 40 year term
-7-
5.1. 2 City shall reasonably consider and process
with proper environmental review a request to change the
primary land use designation for Village 3 from Industrial to
commercial, recreational, visitor-serving, and some residen-
tial uses in addition to the Industrial use. The exact
acreages of the residential, industrial, commercial, or other
uses, shall be agreed upon and set forth in a qeneral plan
amendment.
5.1.3 If the interchange improvements atotay
Valley Road and I-80S are needed to serve the Project, the
city will hold appropriate hearings to amend its Transporta-
tion Phasing Plan (TPP) and Development Impact Fee (DIF)
Program to include said improvements to accommodate the
project phasing. The city agrees to reasonably cooperate and
work with CALTRANS to complete the interchange improvement
plans.
5.1.4 ci ty shall initiate contact and diligently
pursue discussions with the County of San Diego and the City
of San Diego to determine the number, scheduling and financing
of the otay River road and bridge crossings.
5.1.5 ci ty shall allow the owner for purposes of
processing entitlements to proceed with planning of the
Property on a first come first served basis, with other
properties in the area of the Annexation. In addition, if
necessary the City shall with proper environmental review,
consider an amendment to the Village Phasing Plan to facili-
tate the planning and development of the properties covered by
this Agreement.
5.1.6 To the extent any of the foregoing
commitments of city are embodied in changes to the Development
Plan or the rules, regulations, ordinances, policies,
conditions, environmental regulations, phasing controls,
exactions, entitlements, assessments, and fees applicable to
and governing development of the Property, whether adopted
before or after the Effective Date, such changes shall be
deemed applicable to the Property without change to this
Agreement.
5.1.7 city shall diligently process any amend-
ments, applications, maps, or other development applications.
5.1.8 City shall reasonably consider and dili-
gently process a request to expand the development areas of
Villages 2, 3, 4 and 8 in the event future environmental
studies indicate that areas once considered environmentally
constrained can be developed without significant, unmitigable
environmental impacts.
-8-
5.22 DeveloDment of ProDertv. The development of
the Property will' be governed by this Agreement and Existing
Project Approvals and such development shall comply and be governed
by all rules, regulations, policies, resolutions, ordinances, and
standards in effect as of the Effective Date subject to the
provisions of section 5.3 below. The City shall retain its
discretionary authority as to Future Discretionary Approvals,
provided however, such Future Discretionary Approvals shall be
regulated by the Existing Project Approvals, this Agreement, and
city rules, regulations, standards, ordinances, resolutions and
policies in effect on the Effective Date of this Agreement and
subject to section 5.3.
Notwithstanding the foregoing, the City may make such changes to
the City's Growth Management Ordinance applicable to the Project as
are reasonable and consistent with the purpose and intent of the
existing Growth Management Ordinance and which are generally
applicable to all private projects citywide or east of I-80S or
within a specific benefit, fee or reimbursement district created
pursuant to the California Government Code. al'lI! wl\lea we1:i.ld !'let
prevent. eY tlJ\:reas8J\asly aela)- 'Ehe Elevelepmeftt. af t.ae J?reper'ty
eeftsiat.eft~ vi ~J\ ~Re Enist.iRIJ l'rej ee't Appre..~ale. .
5.2.1 New or Amended Rules. Reaulations.
policies. standards. Ordinances and Resolutions. The City may
apply to the Project, including Future Discretionary Approv-
als, new or amended rules, laws, regulations, policies,
ordinances, resolutions and standards generally applicable to
all private projects east of I-80S or within a specific
benefit fee or reimbursement district created pursuant to the
California Government Code. The application of such new
rules, or amended laws, regulations, resolutions, policies,
ordinances and standards will not unreasonably prevent or
delay development of the Property to the uses, densities or
intensities of development specified herein or as authorized
by the Existing Project Approvals. The City may also apply
changes in city laws, regulations, ordinances, standards or
policies specifically mandated by changes in state or federal
law in compliance with section 13.3 herein.
5.2.2 Developer may elect with City's consent,
to have applied to the project any rules, regulations,
policies, ordinances or standards enacted after the date of
this Agreement. Such an election has to be made in a manner
consistent with section 5.2 of this Agreement.
NOTE: POLICY ISSUE
5.2.3
ADDrovals. It
Modifications to Existina Pro;ect
is contemplated by the parties to this
2policy issue
-9-
Agreement that the City and Developer may mutually seek and
agree to modifications to the Existing Project Approvals.
Such modifications are contemplated as within the scope of
this Agreement, and shall, upon written acceptance by all
parties, constitute for all purposes an Existing Project
Approval. The parties agree that any such modifications may
not constitute an amendment to this Agreement nor require an
amendment to the Agreement.
5.2.4 Future Discretionarv Approvals. It is
contemplated by the parties to this Agreement that the city
and Developer may agree to Future Discretionary Approvals. The
parties agree that any such Future Approvals may not consti-
tute an amendment to this Agreement nor require an amendment
to the Agreement.
5.3 Dedication and Reservation of Land for Public
Purposes. Except as expressly required by this Agreement or the
Existing Project Approvals and Future Discretionary Approvals
(excepting dedications required within the boundaries of any parcel
created by the subsequent subdivision of the Property as required
by the Subdivision Map Act), no dedication or reservation of real
property within or outside the Property shall be required by city
or Developer in conjunction with the Project. Any dedications and
reservations of land imposed shall be in accordance with Section
7.2 and section 7.8 herein.
5.4 Time for Construc.tion and Completion of Pro;ect.
Because the California Supreme Court held in Pardee Construction
Company v. citv of Camarillo (1984) 27 Cal.3d 465, that the failure
of the parties to provide for the timing of development resulted in
a later-adopted initiative restricting the timing of development to
prevail over such parties' Agreement, it is the intention of the
parties to this Agreement to cure that deficiency by specifically
acknowledging that timing and phasing of development is completely
and exclusively governed by the Existing Project Approvals,
including the Chula Vista Growth Management Ordinance. The purpose
of the Chula vista Growth Management Ordinance is to "control the
timing and location of development by tying the pace of development
to the provision of public facilities and improvements to conform
to the city's threshold standards." (Municipal Code Section
19.09.010A.7) The findings in support of the Growth Management
Ordinance conclude that the ordinance "does not affect the number
of houses which may be built." (Municipal Code Section
19.09.010B.3) Therefore, the parties acknowledge that the Chula
Vista Growth Management Ordinance completely occupies the topic of
development timing and phasing and expressly precludes the adoption
of housing caps, urban reserves or any other means by which the
rate of development may be controlled or regulated. The city
agrees that the Developer shall be entitled to, apply for and
receive all permits necessary for the development of property,
consistent with the Growth Management Ordinance, Existing Project
Approvals, Future Discretionary Approvals and this Agreement.
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5.5 Benefit of vestina. Nothing in this Agreement will
be construed as limiting or impairing Developer's vested right, if
any, to proceed with the development and use of the Property
pursuant to the Federal and state constitutions, and pursuant to
statutory and decisional law.
5.6 vestina of Entitlements. All rights conferred by
this Agreement vest with the Effective Date hereof. The approval
of Future Discretionary approvals shall not be deemed to limit
Developer's rights authorized by this Agreement, and once' such
approvals are obtained they shall be vested to the same extent as
the Existinq Project Approvals.
6. DEVELOPMENT PROGRAM.
6.1 processina of Future Discretionarv Approvals. city
will accept and diligently process development applications and
requests for Future Discretionary Approvals, or other entitlements
with respect to the development and use of the Property, provided
said applications and requests are in accordance with this
Agreement. City costs for processing work related to the Project,
including hiring of additional city personnel and/or the retaining
of professional consultants, will be reimbursed to city by
Developer.
6.2 Lenath of Validitv of Tentative Subdivision Maps3.
Government Code section 66452.6 provides that tentative subdivision
map(s) may remain valid for a length up to the term of this
Agreement. The City agrees that tentative subdivision map(s) not to
exceed three thousand (3,000) dwelling units, shall remain valid
for a term of ten (10) years. Tentative subdivision map(s) greater
than three thousand (3,000) dwelling units shall remain valid for
a term of ten (10) years plus one additional year for every three
hundred (300) dwelling units in excess of three thousand (3,000)
dwelling units.
6.3 Pre-Final Map Development. If Developer desires to
do certain work on the Property after approval of a tentative map
(for example, grading) prior to the recordation of a final map, it
may do so by obtaining a qrading and/or other required approvals
from the city which are authorized by the City prior to recordation
of a final map. Such permit shall be issued to Developer, or its
contractor, upon Developer's application, approval, and provided
Developer posts a bond or other reasonably adequate security
required by City in an amount to assure the rehabilitation of the
land if the applicable final map does not record.
6.4 Final MaDS.
6.4.1 "A" Maps and "B" Maps. If Developer so
elects, the city shall accept and process a master subdivision
or parcel map ("A" Map) showing "Super Block" lots and
3policy issue
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backbone street dedications. "Super Block" lots shall be
consistent with the GDP and subsequent sectional Plan Area
plans, and shall not subdivide land into individual single-
family lots. All "super Blocks" created shall have access to
dedicated public streets. The city shall not require improve-
ment plans in order to record a final map for any "A" Map
lots, but the city shall require bonding for the completion of
backbone facilities prior to recording in an amount to be
determined by the city. Following the approval by city of any
final map for an "A" Map lot and its recordation, Developer
may convey the "Super Block" lot. The buyer of a "Super
Block" lot shall then process final improvement plans and
grading plans and a final map ("B" Map) for each "super Block"
lot which the city shall process. The "B" Maps shall be in
substantial conformance with the related approved "A" Map. In
the instance of the multi-family dwelling unit areas, a
separate tentative subdivision map may be submitted to the
city and the "B" Map(s) for these areas may be submitted to
the city after the city Planning Commission approves said
tentative subdivision map.
6.4.2 Recordation of Final Subdivision Map in
Name of Builder or Third Partv. Developer may, if it so
elects, convey to a Builder or third party any "super block"
lot(s) shown on the recorded Superblock Final ~ap. In such
case, the Builder or third party will (i) process any neces-
sary final improvement and grading plans and a final map for
each such "super block" lot, which map city shall accept and
process as subsequent phases in a multi-phase project, (ii)
enter into a subdivision improvement agreement with city with
respect to the subdivision improvements which are required for
such super block lot, and (iii) provide security and insurance
satisfactory to City for the completion of the subdivision
improvements.
6.4.3 Recordation of Final Subdivision Map in
Developer's Name; Transfer of Obligations Under Subdivision
Improvement Agreement (s) . If Developer so elects, it may
defer the conveyance of any super block lot to a Builder or
third party until after the final map of such super block lot
has been recorded. If Developer elects to proceed in this
manner, it will enter into city's standard subdivision
improvement agreement(s) with city for the improvements
required as a condition to the recordation of such map(s).
Upon sale to a Builder or third party, if such Builder or
third party assumes Developer's obligations under the improve-
ment agreement and provides its own security and insurance for
the completion of the subdivision improvements as approved by
the City, Developer shall be released from liability under the
subdivision improvement agreement(s) and Developer's security
shall be released.
6.4.4 Transfer of Riahts and Obliaations of
Development. Whenever Developer conveys a portion of the
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Property, the rights and obligations of this Agreement shall
transfer in accordance with section herein.
7. DEVELOPER'S OBLIGATIONS.
7.1. Condition to Developer's Obliaations to Dedicate. Fund or
Construct Public Facilities. Developer agrees to develop or
provide the public improvements, facilities, dedications, or
reservations of land and satisfy other exactions conditioning the
development of the Property which are set forth hereinbelow. The
obligations of the Developer pursuant to this Agreement are
conditioned upon: (i) the City not being in default of its obliga-
tions under this agreement; and (ii) the city not preventing or
unreasonably delaying the development of the property; and (iii)
the Agreement having not been suspended or modified in response to
changes in state or federal law; and (iv) the City's obligations
havinq not been suspended pursuant to Section 13.2.
7.2 Dedications and Reservations of Land for Public Purposes.
The policies by which property will be required to be reserved,
dedicated or improved for public purposes are identified in the
Existing Project Approvals. A more precise delineation of the
property to be preserved, dedicated or improved for public purposes
shall occur as part of Future Discretionary Approvals, consistent
with the Existing Project Approvals.
7.2.1 Dedication of Land for SR 125. Developer agrees to
dedicate land for right-of-way purposes and property owned by
the Developer that is reasonably necessary for the SR-125
confiquration that is generally depicted in the SR-125 draft
Environmental Impact Report/Statement and as revised in the
Final Environmental Impact Report/statement to respond to
engineering, design, environmental and similar constraints.
The dedications shall be to the City or by an alternate method
acceptable to the City at such time as requested by the City.
City agrees that in the event City shall negotiate with
California Transportation Ventures (CTV) or other toll road
builder any participation or advantages to city that City
shall share such rights with subsequent owner/resident of the
property.
7.2.2 Landfill Nuisance Easements. Developer shall grant
to the County by July 1, 1996 "Landfill Nuisance Easements"
substantially in the form attached as Exhibit . The
Easement shall cover all land which is within the otay
Landfill Buffer Area of Villages 2, 3 and Planning Area 18B of
the otay Ranch GDPP as shown on Exhibit ___ hereto.
7.2.3 Preserve Convevance Plan. The Developer shall
comply with any existing or yet to be adopted Preserve
Conveyance Plan and convey property as set forth in such Plan.
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7.3 Growth Manaaement Ordinance. Developer shall commit the
public facilities and City shall issue building permits as provided
in this section. The City shall have the right to withhold the
issuance of building permits any time after the city reasonably
determines a Threshold has been exceeded, unless and until the
Developer has mitigated the deficiency in accordance with the
city's Growth Management Ordinance.
Developer aqrees that building permits may be withheld where the
public facilities described in the Existing Project Approvals/-
Future Discretionary Approvals required for a particular Threshold
have not been committed.
In the event a Threshold is not met and future building permit
issuance may be withheld, the notice provisions and procedures
contained in Section 19.09 .100C of the Municipal Code will be
followed. In the event the issuance of building permits is
suspended pursuant to the provisions herein, such suspension shall
not constitute a breach of the terms of this Agreement by Develop-
er. Furthermore, any such suspension which is not caused by the
actions or omissions of the Developer, shall toll the term of this
Agreement as provided for in Section 16.12 of this Agreement, and
suspend the Developer's obligations pursuant to this Agreement.
7.3.1 Reauired Condemnation. The City and Developer
recognize that certain of the public facilities identified in
the Existing Project Approvals/Future Discretionary Approvals
and required to comply with a threshold are located on
properties which neither the Developer nor the City has, or
will have, title to or control of. The city shall identify
such property or properties and at the time of filing of the
final map commence timely negotiations or, where the property
is within the City's jurisdiction, commence timely proceedings
pursuant to Title 7 (commencing with S 1230.010) of Part 3 of
the Code of Civil Procedure to acquire an interest in the
property or properties. Developer's share of the cost
involved in any such acquisition shall be based on its
proportionate share of the public facility as defined in the
Existing Project Approvals/Future Discretionary Approvals.
Nothinq in this Agreement shall be deemed to preclude the city
from requiring the Developer to pay the cost of acquiring such
off-site land. For that portion of the cost beyond the
Developer's fair share responsibility, the city shall take all
reasonable steps to establish a procedure whereby the develop-
er is reimbursed for such costs beyond its fair share.
7.3.2 Information Reaardina Thresholds. Upon
Developer's written requests of the City Manager, the City
will provide Developer with information regarding the current
status of a Threshold. Developer shall be responsible for any
staff costs incurred in providing said written response.
7.4 Improvements Reauired bv a Subdivision Map. Asmay
be required pursuant to the terms of a subdivision map, it shall be
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,
the responsibility of Developer to construct the improvements
required by a subdivision map. Where Developer is required to
construct a public improvement which has been identified as the
responsibility of another party or to provide public improvements
of supplemental size, capacity, number or length benefiting
property not within the subdivision, city shall process a reim-
bursement agreement to the Developer in accordance with Article 6
of chapter 4 of the subdivision Map Act, commencing with Government
Code section 66485, and section 7.5, below.
7.5 Facilities Which Are the Obliaations of Another
Partv. or Are of Excessive size. Capacitv. Lenath or Number.
Developer. may offer to advance monies and/or construct public
improvements which are the responsibility of another land owner, or
outside the City's jurisdictional boundaries, or which are of
supplemental size, capacity, number or length for the benefit of
land not within the Property. city, where requesting such funding
or construction of oversized public improvements, shall consider
after a public hearing, contemporaneous with the imposition of the
obligation, the formation of a reimbursement district, assessment
district, facility benefit assessment, or reimbursement agreement
or other reimbursement mechanism.
7.6 Pioneerina of Facilities. To the extent Developer
itself constructs (Le., "Pioneers") any public facilities or
public improvements which are covered by a DIF Program, Developer
shall be given a credit against DIFs otherwise payable, subject to
the City's Director of Public Works reasonable determination that
such costs are allowable under the applicable DIF Program. It is
specifically intended that Developer be given DIF credit for the
DIF Program improvements it makes. The fact that such improvements
may be financed by an assessment district or other financing
mechanism, shall not prevent DIF credit from being given to the
extent that such costs are allowed under the applicable DIF Program
7.7 Insurance.
insured for all insurance
Project as pertains to the
the Project.
Developer shall name City as additional
policies obtained by Developer for the
Developer's activities and operation on
7.8 Other Land Owners. Developer hereby agrees to
dedicate adequate rights-of-way within the boundaries of the
Property for other land owners to "Pioneer" public facilities on
the Property; provided, however, as follows: (i) dedications shall
be restricted to those reasonably necessary for the construction of
facilities identified in the city's adopted public facility plans;
(ii) this provision shall not be binding on the successors-in-
interest or assiqnees of Developer following recordation of the
final "Super Block" or "A" Map; and (iii) the City shall use its
reasonable best efforts to obtain agreements similar to this
subsection from other developers and to obtain equitable reimburse-
ment for Developer for any excess dedications.
8. DEVELOPMENT IMPACT FEES.
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8.1 Existina Development Impact Fee Proaram Pavments.
Developer shall pay to the City a DIF, or construct improvements in
lieu of payment, for improvements which are conditions of a
tentative subdivision map upon the issuance of building permits(s),
or at a later time as specified by city ordinance, the Subdivision
Map Act, or Public Facility Financing Plan (PFFP). The DIF will be
in the amount in effect at the time payment is made and may only be
increased pursuant to section 8.6 herein.
8.2 Other Undeveloped Properties. The city will use its
reasonable best efforts to impose and collect, or cause the
imposi tion and collection of, the same DIF program on all the
undeveloped real properties which benefit from the provision of the
public facility through the DIF program, or provided as a condition
of Project Approvals.
8.3 Use of Development Impact Fee Proaram. The DIF
amounts paid to the city by Developer and others with respect to
the Area of Benefit shall be placed by the city in a capital
facility fund account established pursuant to california Government
Code sections 66000-66009. The City shall expend such funds only
for the Projects described in the adopted fee program as may be
modified from time to time. The City will use its reasonable best
efforts to cause such Projects to be completed as soon as practica-
ble; however, the City shall not be obligated to use its general
funds for such Projects.
8.4 wi thholdina of Permits. Developer agrees that city
shall have the right to withhold issuance of the building permit
for any structure or improvement on the Property unless and until
the DIF is paid for such structure or improvement.
8.5 Development Impact Fee Credit. Upon the completion
of any public facility, the city shall immediately credit Developer
with the appropriate amount of cash credits ("EDUs") as determined
by Developer and City. However, if the improvements are paid for
through an Assessment District, the city shall credit the Developer
with the appropriate number of Equivalent Dwelling Unit Credits
(EDU's). Developer shall be entitled to apply any and all credits
accrued pursuant to this subsection toward the required payment of
future DIF for any phase, stage or increment of development of the
Project.
8.6 Modification of DevelODment Impact Fees. The
parties recognize that from time to time during the duration of the
Agreement it will be necessary for the city to update and modify
its DIF fees. Such reasonable modifications are contemplated by
the city and the Developer and shall not constitute a modification
to the Aqreement so long as: (i) the modification incorporates the
reasonable costs of providing facilities identified in the Existing
Project Approvals; (ii) are based upon methodologies in substantial
compliance with the methodology contained in the existing DIF
programs; or other methodology approved by the City Council
following a public hearing; (iii) complies with the provisions of
Government Code sections 66000-66009.
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8.7 Standards for Financina Obliaations of Owner. In
connection with the development of the Property, the following
standards regarding the financing of public improvements shall
apply:
8.7.1 Owner shall pay its fair share for the
interchanges described in Paragraph 5.1.3, based upon the
number of dwelling units or equivalent dwellings of develop-
ment allowed on the Property as compared to the total dwelling
units or equivalent dwelling units allowed on properties
served by such interchanges.
8.7.2 OWner shall participate in the DIF Program
for the Otay Valley Parcel with other owners in proportion to
the total dwelling units or equivalent dwelling units allowed
on the Property as compared with the total of such units
allowed on properties in that particular DIF or by some other
equitable methodology decided by the City council.
8.7.3 The City shall diligently pursue the
requirements that the Eastern Territories' DIF requires
offsite third parties and adjacent jurisdictions to bear their
fair share of all Otay River Valley crossings.
9. CITY OBLIGATIONS.
9.1 Urban Infrastructure. To the extent it is within
the authority of the city to provide, city shall accommodate urban
infrastructure to the project, consistent with Existing Project
Approvals. Where it is necessary to utilize City property to
provide urban infrastructure consistent with the Existing Project
Approvals, the city agrees to make such land available for such
uses, provided that the City if it so chooses is compensated at
fair market value for the property. To the extent that the
provision of urban infrastructure is within the authority of
another public or quasi-public agency or utility, the City agrees
to fully cooperate with such agency or agencies to accommodate the
urban infrastructure, consistent with Existing Project Approvals.
Urban infrastructure shall include, but not be limited to gas,
electricity, telephone, cable and facilities identified in the otay
Ranch Facility Implementation Plan.
9.2 Sewer CaDacitv. The City agrees to provide adequate
sewer capacity for the project, upon the payment of ordinary and
necessary sewer connection, capacity and/or service fees.
10. ANNUAL REVIEW.
10.1 city and Owner Responsibilities. City will, at
least every twelve (12) months during the Term of this Agreement,
pursuant to California Government Code 565865.1, review the extent
of qood faith substantial compliance by Owner with the terms of
this Aqreement. Pursuant to California Government Code section
65865.1, as amended, OWner shall have the .duty to demonstrate by
substantial evidence its good faith compliance with the terms of
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this Agreement at the periodic review. Either city or Owner may
address any requirement of the Agreement during the review.
10.2 Evidence. The parties recognize that this Agreement
and the documents incorporated herein could be deemed to contain
hundreds of requirements and that evidence of each and every
requirement would be a wasteful exercise of the parties' resources.
Accordingly, Developer shall be deemed to have satisfied its good
faith compliance when it presents evidence of substantial com-
pliance with the major provisions of this Agreement. Generalized
evidence or statements shall be accepted in the absence of any
evidence that such evidence is untrue.
10.3 Review Letter. If Owner is found to be in com-
pliance with this Agreement after the annual review, city shall,
within forty-five (45) days after Owner's written request, issue a
review letter in recordable form to Owner ("Letter") stating that
based upon information known or made known to the council, the City
Planning commission and/or the City Planning Director, this
Agreement remains in effect and Owner is not in default. Owner may
record the Letter in the Official Records of the County of San
Diego.
10.4 Failure of Periodic Review. city's failure to
review at least annually Owner's compliance with the terms and
conditions of this Agreement shall not constitute, or be asserted
by city or owner as, a breach of the Agreement.
11. DEFAULT.
11.1 Events of Default. A default under this Agreement
shall be deemed to have occurred upon the happening of one or more
of the following events or conditions:
11.1.1 A warranty, representation or statement
made or furnished by Owner to City is false or proves to have
been false in any material respect when it was made.
11.1.2 A finding and determination by city made
following a periodic review under the procedure provided for
in california Government Code section 65865.1 that upon the
basis of substantial evidence owner has not complied in good
faith with one or more of the terms or conditions of this
Agreement.
11.1.3 city does not accept, timely review, or
consider requested development permits or entitlements
submitted in accordance with the provisions of this Agreement.
11.1. 4 Any other act or omission by city or Owner
which materially interferes with the terms of this Agreement.
11.2 Procedure UDon Default.
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11. 2.1 Upon the occurrence of default by the
other party, city or Owner may terminate this Agreement after
providing the other party thirty (30) days written notice
specifying the nature of the alleged default and, when
appropriate, the manner in which said default may be satis-
factorily cured. After proper notice and expiration of said
thirty (30) day cure period without cure, this Agreement may
be terminated. In the event that city's or owner's default is
not subject to cure within the thirty (30) day period, City or
Owner shall be deemed not to remain in default in the event
that city or Owner commences to cure within such thirty (30)
day period and diligently prosecutes such cure to completion.
Failure or delay in giving notice of any default shall not
constitute a waiver of any default, nor shall it change the
time of default. Notwithstanding any other provision of this
Agreement, City reserves the right to formulate and propose to
Owner options for curing any defaults under this Agreement for
which a cure is not specified in this Agreement.
11. 2.2 City does not waive any claim of defect in
performance by Owner if, on periodic review, city does not
propose to modify or terminate this Agreement.
11.2.3 subject to Paragraph 16.12 of this
Agreement, the failure of a third person shall not excuse a
party's nonperformance under this agreement.
11.2.4 All other remedies at law or in equity
which are consistent with the provisions of this Agreement are
available to City and Owner to pursue in the event there is a
breach.
12. ENCUMBRANCES AND RELEASES ON PROPERTY.
12.1 Discretion to Encumber. This Agreement shall not
prevent or limit Owner in any manner at Owner's sole discretion,
from encumbering the Property, or any portion of the Property, or
any improvement on the Property, by any mortgage, deed of trust, or
other security device securing financing with respect to the
Property or its improvement.
12.2 Mortaaaee Riahts and Obliaations. The mortgagee of
a mortgage or beneficiary of a deed of trust encumbering the
Property, or any part thereof, and their successors and assigns
shall, upon written request to City, be entitled to receive from
City written notification of any default by Owner of the
performance of Owner's obligations under the Agreement which has
not been cured within thirty (30) days following the date of
default.
12.3 Releases. city. agrees that upon written request of
Owner and payment of all fees and performance of the require-
ments and conditions required of Owner by this Agreement with
respect to the Property, or any portion thereof, City may
execute and deliver to Owner appropriate release(s) of further
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obligations imposed by this Agreement in form and substance
acceptable to the San Diego County Recorder and title
insurance company, if any, or as may otherwise be necessary to
effect the release. city Manager shall not unreasonably
withhold approval of such release(s).
12.4 Obliaation to Modifv. city acknowledges that the
lenders providing financing for the Project may require certain
modifications to this Agreement and city agrees, upon request from
time to time, to meet with Owner and/or representatives of such
lenders to negotiate in good faith any such requirement for
modification. City will not unreasonably withhold its consent to
any such requested modification.
13. MODIFICATION OR SUSPENSION.
13.1 MOdification to Aareement bv Mutual Consent. This
Agreement may be modified, from time to time, by the mutual consent
of the parties only in the same manner as its adoption by an
ordinance as set forth in California Government Code sections
65867, 65867.5 and 65868. The term, "this Agreement" as used in
this Agreement, will include any such modification properly
approved and executed.
13.2 Unforeseen Health or Safetv circumstances. If, as
a result of facts, events, or circumstances presently unknown,
unforeseeable, and which could not have been known to the parties
prior to the commencement of this Agreement, city finds that
failure to suspend this Agreement would place the residents of City
in a severe and immediate emergency to their health or safety.
13.2.1 Notification of Unforeseen Circumstances.
Notify Developer of (i) city's determination; and (ii) the
reasons for City's determination, and all facts upon which
such reasons are based;
13.2.2 Notice of Hearina. Notify Developer in
writing at least fourteen (14) days prior to the date, of the
date, time and place of the hearing and forward to Developer
a minimum of ten (10) days prior to the hearings described in
section 13.2.3, all documents related to such determination
and reasons therefor; and
13.2.3 Hearina. Hold a hearing on the deter-
mination, at which hearing Developer will have the right to
address the City council. At the conclusion of said hearing,
city may take action to suspend this Agreement as provided
herein. The city may suspend this Agreement if, at the
conclusion of said hearing, based upon the evidence presented
by the parties, the city finds failure to suspend would place
the residents of the. City in a severe and immediate emergency
to their health or safety.
13.3 Chanae in State or Federal Law or Reaulations. If
any state or federal law or regulation enacted during the Term of
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this Agreement, or the action or inaction of any other affected
governmental jurisdiction, precludes compliance with one or more
provisions of this Agreement, or requires changes in plans, maps,
or permits approved by city, the parties will act pursuant to
sections 13.3.1 and 13.3.2, below.
13.3.1 Notice: Meetina. The party first becoming
aware of such enactment or action or inaction will provide the
other party(ies) with written notice of such state or federal
law or regulation and provide a copy of such law or regulation
and a statement regarding its conflict with the provisions of
this Agreement. The parties will promptly meet and confer in
a good faith and reasonable attempt to modify or suspend this
Agreement to comply with such federal or state law or regula-
tion.
13.3.2 Hearina. If an agreed upon modification
or suspension would not require an amendment to this Agree-
ment, no hearing shall be held. Otherwise, the matter of such
federal or state law or regulation will be scheduled for
hearing before the city. Fifteen (15) days' written notice of
such hearing shall be provided to Developer, and the City, at
such hearing, will determine and issue findings on the
modification or suspension which is required by such federal
or state law or regulation. Developer, at the hearing, shall
have the right to offer testimony and other evidence. If the
parties fail to agree after said hearing, the matter may be
submitted to mediation pursuant to subsection 13.3.3, below.
Any modification or suspension shall be taken by the affirma-
tive vote of not less than a majority of the authorized voting
members of the city. Any suspension or modification may be
subject to judicial review in conformance with subsection
16.19 of this Agreement.
13.3.3 Mediation of DisDutes. In the event the
dispute between the parties with respect to the provisions of
this paragraph has not been resolved to the satisfaction of
both parties following the City hearing required by subsection
13.3.2, the matter shall be submitted to mediation prior to
the filing of any legal action by any party. The mediation
will be conducted by the San Diego Mediation Center; if San
Diego Mediation Center is unable to conduct the mediation, the
parties shall submit the dispute for mediation to the Judicial
Arbitration and Mediation Service or similar organization and
make a good faith effort to resolve the dispute. The cost of
any such mediation shall be divided equally between the
Developer and city.
13.4 Natural communities Conservation Act (NCCP). The
parties recognize that Developer and the City are individually
negotiating agreements with the united states Fish and Wildlife
Service ("USF&W") and the California Department of Fish and Game
pursuant to the ongoing regional effort to implement the Natural
Communities Conservation Act ("NCCP"), locally proposed to be
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implemented through the Multi-Species Conservation Program
("MSCP"). The parties further recognize that implementation of the
agreements may necessitate modification to the Existing Project
Approvals. The parties agree to utilize their best efforts to
implement these agreements, once executed, through the timely
processing of modifications to the Existing Project Approvals as
they relate to the Property. The Developer agrees to pay the
reasonable city cost for processing work related to the modifica-
tions. Once such modifications are obtained they shall be vested
to the same extent as Existing Project Approvals.
14. DISTRICTS. PUBLIC FINANCING MECHANISMS.
This Agreement and the Existing Project Approvals recognize
that assessment districts, community facility districts, or other
public financing mechanisms, may be necessary to finance the cost
of public improvements borne by this Project. If Developer,
pursuant to the Existing Project Approvals/Future Discretionary
Approvals, is required to install improvements through the use of
assessment districts, community facility districts, or other public
financing mechanisms, the City shall initiate and conclude
appropriate proceedings for the formation of such financing
district or funding mechanism, under applicable laws or ordinances.
Developer may request that the City utilize any other financing
methods which may become available under City laws or ordinances.
All costs associated with the consideration and formation of such
financing districts or funding mechanisms shall be paid by
Developer subject to reimbursement, as may be legally authorized
out of the proceeds of any financing district or funding mechanism.
15. ASSIGNMENT AND DELEGATION.
15.1 Assianment. owner shall have the right to transfer
or assign its interest in the Property, in whole or in part,
to any persons, partnership, joint venture, firm, or corpora-
tion at any.time during the Term of this Agreement without the
consent of city. Owner also shall have the right to assign or
transfer all or any portion of its interest or rights under
this Agreement to third parties acquiring an interest or
estate in the property at any time during the Term of this
Agreement without the consent of City.
15.2 Deleaation. In addition, owner shall have the
right to delegate or transfer its obligations under this
Agreement to third parties acquiring an interest or estate in
the Property after receiving the prior written consent of the
City Manager, which consent shall not be unreasonably with-
held, delayed, or conditioned. Once the city Manager has
consented to a transfer, delivery to and acceptance by the
City Manager of an unqualified written assumption of Owner's
obligations under this Agreement by such transferee shall
relieve Owner of the obligations under this Agreement to the
extent the obligations have been expressly assumed by the
transferee. Such transferee shall not be entitled to amend
this Agreement without the written consent of the entity that,
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as of the Effective Date, is owner, which consent shall not be
unreasonably withheld, delayed, or conditioned. The entity
that is Owner as of the Effective Date, however, shall be
entitled to amend this Agreement without the written consent
of such transferee.
16. MISCELLANEOUS PROVISIONS.
16.1 Bindina Effect of Aareement. Except to the extent
otherwise provided in this Agreement, the burdens of this Agreement
bind, and the benefits of this Agreement inure, to city's and
Owner's successors-in-interest and shall run with the land.
16.2 RelationshiD of citv and Owner. The contractual
relationship between City and Owner arising out of this Agreement
is one of independent contractor and not agency. This Agreement
does not create any third-party beneficiary rights.
16.3 Notices. All notices, demands, and correspondence
required or permitted by this Agreement shall be in writing and
delivered in person, or mailed by first-class or certified mail,
postage prepaid, addressed as follows:
If to city, to:
City of Chula vista
276 Fourth Avenue
Chula vista, CA 91910
Attention: city Manager
If to Owner, to:
c/o SNMB, LTD.
5575 Lake Parkway Drive, suite 108
La Mesa, CA 91942
Attention: Patrick Patek
with a copy to:
STEPHENSON, WORLEY, GARRATT,
SCHWARTZ, HEIDEL & PRAIRIE
101 West Broadway, suite 1300
San Diego, CA 92101
Attention: Donald R. Worley, Esq.
City or Owner may change its address by giving notice in writing to
the other. Thereafter, notices, demands, and correspondence shall
be addressed and transmitted to the new address. Notice shall be
deemed given upon personal delivery, or, if mailed, two (2)
business days following deposit in the united States mail.
16.4 Rules of construction. In this Agreement, the use
of the singular includes the plural; the masculine gender includes
the feminine; "shall" is mandatory; "may" is permissive.
-23-
16.5 Entire Aareement. Waivers. and Recorded statement.
This Agreement constitutes the entire understanding and agreement
of city and Owner with respect to the matters set forth in this
Agreement. This Agreement supersedes all negotiations or previous
agreements between city and Owner respecting this Agreement. All
waivers of the provisions of this Agreement must be in writing and
signed by the appropriate authorities of City and Owner. Upon the
completion of performance of this Agreement, or its revocation or
termination, a statement evidencing completion, revocation, or
termination signed by the appropriate agents of city shall be
recorded in the Official Records of San Diego county, California.
16.6 Pro;ect as a Private Undertakina. It is
specifically understood by City and Owner that (i) the Project is
a private development; (ii) City has no interest in or
responsibilities for or duty to third parties concerning any
improvements to the Property until city accepts the improvements
pursuant to the provisions of the Agreement or in connection with
subdivision map approvals; and (iii) Owner shall have the full
power and exclusive control of the Property subject to the
obligations of Owner set forth in this Agreement.
16.7 IncorDoration of Recitals. The recitals set forth
in Paragraph 1 of this Agreement are part of this Agreement.
16.8 CaDtions. The captions of this Agreement are for
convenience and reference only and shall not define, explain,
modify, construe, limit, amplify, or aid in the interpretation,
construction, or meaning of any of the provisions of this
Agreement.
16.9 Consent. Where the consent or approval of city or
Owner is required or necessary under this Agreement, the consent or
approval shall not be unreasonably withheld, delayed, or con-
ditioned.
16.10 Covenant of CooDeration.
cooperate and deal with each other in good
other in the performance of the provisions
city and Owner shall
faith, and assist each
of this Agree~ent.
16.11 Recordina. The City Clerk shall cause a copy of
this Agreement to be recorded with the Office of the County
Recorder of San Diego County, california, within ten (10) days
following the Effective Date.
16.12 Delav. Extension of Time for Performance. In
addition to any specific provision of this Agreement, performance
by either City or Owner of its obligations hereunder shall be
excused, and the Term of this Agreement and the Development Plan
extended, during any period of delay caused at any time by reason
of any event beyond the control of city or Owner which prevents or
delays and impacts City's or Owner's ability to perform obligations
under this Agreement, including, but not limited to, acts of God,
enactment of new conflicting federal or state laws or regulations
(example: listing of a species as threatened or endangered),
-24-
judicial actions such as the issuance of restraining orders and
injunctions, riots, strikes, or damage to work in process by reason
of fire, floods, earthquake, or other such casualties. If city or
owner seeks excuse from performance, it shall provide written
notice of such delay to the other within thirty (30) days of the
commencement of such delay. If the delay or default is beyond the
control of city or Owner, and is excused, an extension of time for
such cause will be granted in writing for the period of the
enforced delay, or longer as may be mutually agreed upon.
16.13 Covenant of Good Faith and Fair Dealinas. Noparty
shall do anything which shall have the effect of harming or
injuring the right of the other parties to receive the benefits of
this Agreement; each party shal! refrain from doing anything which
would render its performance under this Agreement impossible; and
each party shall do everything which this Agreement contemplates
that such party shall do in order to accomplish the objectives and
purposes of this Agreement.
16.14 ODeratina Memorandum. The parties acknowledge that
the provisions of this Agreement require a close degree of
cooperation between city and Developer, and that the refinements
and further development of the Project may demonstrate that minor
changes are appropriate with respect to the details of performance
of the parties. The parties, therefore, retain a certain degree of
flexibility with respect to those items covered in general under
this Agreement. When and if the parties mutually find that minor
changes or adjustments are necessary or appropriate, they may
effectuate changes or adjustments through operating memoranda
approved by the parties. For purposes of this section 16.14, the
City Manager, or his designee, shall have the authority to approve
the operating memoranda on behalf of city. No operating memoranda ,
shall require notice or hearing or constitute an amendment to this
Agreement.
16.15 Time of Essence. Time is of the essence in the
performance of the provisions of this Agreement as to which time is
an element.
16.16 Amendment or Cancellation of Aareement. This
Agreement may be amended from time to time or canceled by the
mutual consent of city and Owner only in the same manner as its
adoption, by an ordinance as set forth in California Government
Code section 65868, and shall be in a form suitable for recording
in the Official Records of San Diego County, California. The term
"Agreement" shall include any such amendment properly approved and
executed. City and owner acknowledge that the provisions of this
Agreement require a close degree of cooperation between them, and
that minor or insubstantial changes to the Project and the
Development Plan may be required from time to time to accommodate
design changes, engineering changes, and other refinements.
Accordingly, changes to the Project and the Development Plan that
do not result in a change in use, an increase in density or
intensity of use, cause new or increased environmental impacts, or
violate any applicable health and safety regulations, may be
-25-
considered minor or insubstantial by the city Manager and made
without amending this Agreement.
16.17 EstoDDel Certificate. Within 30 calendar days
following a written request by any of the parties, the other
parties to this Agreement shall execute and deliver to the
requesting party a statement certifying that (i) this Agreement is
unmodified and in full force and effect, or if there have been
modifications hereto, that this Agreement is in full force and
effect as modified and stating the date and nature of. such
modifications; (ii) there are no known current uncured defaults
under this Agreement, or specifying the dates and nature of any
such default; and (iii) any other reasonable information requested.
The failure to deliver such a statement within such time shall
constitute a conclusive presumption against the party which fails
to deliver such statement that this Agreement is in full force and
effect without modification, except as may be represented by the
requesting party, and that there are no uncured defaults in the
performance of the requesting party, except as may be represented
by the requesting party.
16.18 Severabilitv. If any material provision of this
Agreement is held invalid, this Agreement will be automatically
terminated unless within 15 days after such provision is held invalid
the party holding rights under the invalidated provision affirms the
balance of this Agreement in writing. This provision will not affect
the right of the parties to modify or suspend this Agreement by
mutual consent pursuant to Paragraph 12.4.
16.19 Institution of Leaal proceedinq. In addition to any
other rights or remedies, any party may institute legal action to
cure, correct, or remedy any default, to enforce any covenants or
agreements herein, or to enjoin any threatened or attempted violation
thereof; to recover damages for any default or to obtain any remedies
consistent with the purpose of this Agreement. Such legal actions
must be instituted in the Superior Court of the County of San Diego,
State of California.
16.20 Attornevs' Fees and Costs. If any party commences
litigation or other proceedings (including, without limitation,
arbitration) for the interpretation, reformation, enforcement, or
rescission of this Agreement, the prevailing party, as determined by
the court, will be entitled to its reasonable attorneys' fees and
costs.
16.21 Hold Harmless. Developer agrees to and shall hold
city, its officers, agents, employees and representatives harmless
from liability for damage or claims for damage for personal injury,
including death, and claims for property damage which may arise from
the direct or indirect operations of Developer or those of its
contractors, subcontractors, agents, employees or other persons
acting on Developer's behalf which relate to the Project. Developer
agrees to and shall defend city and its officers, agents, employees
and representatives from actions for damage.caused or alleged to have
been caused by reason of Developer's activities in connection with
-26-
the Project. Developer agrees to indemnify, hold harmless, pay all
costs and provide a defense for city in any legal action filed in a
court of competent jurisdiction by a third party challenging the
validity of this Agreement. The provisions of this Section 16.21
shall not apply to the extent such damage, liability or claim is
caused by the intentional or negligent act or omission of City, its
officers, agents, employees or representatives.
IN WITNESS WHEREOF, this Agreement has been executed by the CITY
OF CHULA VISTA, acting by and through its City Manager, pursuant to
Ordinance No. authorizing such execution, and by Owner.
Dated this ____ day of
, 1996.
"CITY"
CITY OF CHULA VISTA
By:
Its:
"OWNER"
SNMB, LTD.
By:
CHRISTOPHER PATEK, President
JEWELS OF CHARITY
By:
PATRICK PATEK, President
STEVEN AND MARY BIRCH FOUNDATION
By:
PATRICK PATEK, President
-27-
EXHIBIT A
SNMB, LTD.
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CJIY OF
CHUlA VISTA
PLANNING DEPARTMENT
61181116
EXHIBIT B
JEWELS OF CHARITY
EXHIBIT C
STEVEN AND MARY BIRCH FOUNDATION
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PRE-ANNEXATION DEVELOPMENT AGREEMENT
THIS PRE-ANNEXATION DEVELOPMENT AGREEMENT ("Agreement") is
made effective on the date hereinafter set forth below by and among
the CITY OF CHULA VISTA ("city") and GREGORY T. SMITH AND GEORGIANA
R. SMITH ("Smiths"), who agree as follows:
1. RECITALS. This Agreement is made with respect to the
following facts:
1. 1 Owner. The owners of the properties subj ect to this
Agreement (hereinafter cOllectively referred to as "Owner" or as
"Developer") are as follows:
1.1.1 Smiths is the owner of approximately 220
acres of undeveloped real property ("the SNMB property") in
the unincorporated area of the County of San Diego ("County"),
described in Exhibit "A", attached hereto and incorporated
herein by this reference.
1. 2~. The city of Chula vista is a municipal
corporation and an incorporated city within the County.
1.3 Code Authorization and Acknowledaments.
1.3.1 City is authorized pursuant to California
Government Code sections 65864 through 65869.5 to enter into
development agreements for the purpose of establishing
certainty for both city and owners of real property in the
development process.
1.3.2 Government Code section 65865 expressly
authorizes a city to enter into a development agreement with
any person having a legal or equitable interest in real
property in unincorporated territory within that city's sphere
of influence for the development of property as provided in
the Development Agreement Law; provided that the agreement
shall not become operative unless annexation proceedings
annexing the property to the city are completed within the
time specified by the agreement.
1.3.3 City enters into this Agreement pursuant
to the provisions of the California Government Code, its home-
rule powers, and applicable City ordinances, rules, regula-
tions and policies.
1.3.4
city and Owner acknowledge:
1.3.4.1 This Agreement assures adequate
public facilities at the time of development.
1. 3 . 4 . 2 This Agreement assures development in
accordance with city's capital improvement plans.
-1-
1.3.4.3 This Agreement constitutes a current
exercise of city's police powers to provide certainty to
Owner in the development approval process by vesting the
permitted use(s), density, intensity of use, and the
timing and phasing of development as described in the
Development Plan, which is defined in Paragraph 2.4 of
this Agreement, in exchange for Owner's entering into
this Agreement and for its commitment to support the
Annexation described below.
1.3.4.4 This Agreement will permit achieve-
ment of City growth management goals and objectives.
1.3.4.5 This Agreement will allow City to
realize significant economic, recreational, park, open
space, social, and public facilities benefits, some of
which are of regional significance.
1.3.4.6 This Agreement will provide and
assure that the city receive sales tax revenues, increase
in the property tax base, residential housing and other
development, sewer, water and street facilities.
1.3.4.7 This Agreement will provide and
assure that the city receives public facilities in excess
of project generated impacts and such facilities shall be
of supplemental size, number capacity or length, which
shall be provided earlier than could be provided either
by funds from the city or than would strictly be
necessary to mitigate project related impacts at any
development phase.
1.3.4.8 This Agreement will provide the City
the developer's support to secure annexation of the lands
depicted in Exhibit "B".
1.3.4.9 This Agreement will enable the City
to secure title to the land within the boundaries of the
Property necessary to complete the Chula vista greenbelt
system as defined in the Chula vista General Plan.
1.3.4.10 This Agreement will facilitate the
economic development of Chula vista.
1.3.4.11 Because of the complexities of the
financing of the infrastructure, park, open space, and
other dedications, and regional and community facilities,
and the significant nature of such facilities, certainty
in the development process is an absolute necessity. The
phasing, timing, and development of public infrastructure
necessitate a significant commitment of resources,
planning, and effort by Owner for the public facilities
financing, construction, and dedication to be success-
fully completed. In return for Owner's participation and
commitment to these significant contributions of private
-2-
resources for public purposes and for Owner's consent to
the Annexation described below, city is willing to
exercise its authority to enter into this Agreement and
to make a commitment of certainty for the development
process for the Property.
1.3.4.12 In consideration of Owner's agreement
to provide the. significant benefits and for owner's
consent to the Annexation described below, City hereby
grants Owner assurances that it can proceed with develop-
ment of the Property in accordance with city's
ordinances, rules, regulations, and policies existing as
of the effective date of this Agreement. Owner would not
enter into this Agreement or agree to provide the public
benefits and improvements described in this Agreement if
it were not for the commitment of city that the Property
subject to this Agreement can be developed in accordance
with city's ordinances, rules, regulations, and policies
existing as of the effective date of this Agreement.
1.4 The Annexation. The City has applied to the Local
Agency Formation commission ("LAFCO") for annexation of Sphere of
Influence Planning Area 1 "The Otay Parcel", Planning Area 2
"Inverted L" and the Mary Patrick Estate Parcel (see Attachment
"D").
1. 5 SDhere of Influence. A City application is pending
before LAFCO to have the otay Valley Parcel included within city's
sphere of influence. On February 5, 1996 the Local Agency
Formation commission approved the inclusion of approximately 7,600
acres into the City Sphere of Influence (Sphere of Influence
Planning Area 2 and the northern two thirds of Planning Area 1),
and designated the otay River Valley an village 3 as special study
areas.
1.6 Plannina Documents. On october 28, 1993, city and
C~unty adopted the otay Ranch General Development plan/Subregional
Plan ("the GDP") which includes the otay Ranch Village Phasing
Plan, Facility Implementation Plan, Resource Management Plan and
Service Revenue Plan, for approximately 23,000 acres of the Otay
Ranch, including the otay Valley Parcel and the smiths' Properties.
1. 7 OWner Consent. city desires to have the cooperation
and consent of owner to include the Property in the Annexation in
order to better plan, finance, construct and maintain the infra-
structure for the otay Valley Parcel; and the Smiths' desire to
give their cooperation and consent, provided that they obtain
certain assurances, as set forth in this Agreement.
, 1996, the
approving this
, 1996.
1.8 city Ordinance. On
city council adopted Ordinance No.
Agreement. The ordinance becomes effective on
2. Definitions.
otherwise requires:
In this Agreement, unless the context
-3-
2.1 "Annexation" means the proposed annexation of that
portion of the Otay Ranch into the city as depicted on Exhibit "D".
2.2 "City" means the City of Chula vista, in the County
of San Diego, state of California.
2.3 "County" means the County of San Diego, state of
California.
2.4 "Development Plan" means the GDP.
2.5 "GDP" means the General Development Plan/ Subregional
Plan for the otay Ranch, described in Paragraph 1.6, above.
2.6 "Owner" or "Developer" means the person, persons, or
entity having a legal and equitable interest in the Property, or
parts thereof, and includes Owner's successors-in-interest.
2.7 "Project" means the physical development of the
private and public improvements on the Property as provided for in
the Existing Project Approvals and as may be authorized by the City
in Future Discretionary Approvals. .
2.8 "Property" means the real property described in
Paragraphs 1.1.1, 1.1.2, and 1.1.3.
2.9 The "Term" of this Agreement means the period
defined in Paragraph 3, below.
2.10 "Builder" means developer to whom Developer has sold
or conveyed property within the Property for purposes of its
improvement for residential, commercial, industrial or other use.
2.11 "CEQA" means the California Environmental Quality
Act, California Public Resources Code section 21000, et seq.
2.12 "City council" means the city of Chula vista City
Council.
2.13 "Commit" or "Committed" means all of the following
requirements have been met with ~espect to any public facility:
2.13.1 For a public facility within the City's
jurisdictional boundaries and a responsibility of the develop-
er.
2.13.1.1 All discretionary permits required of
the Developer have been obtained for construction of the
public facility;
2.13.1.2 Plans for the construction of the
public facility have all the necessary governmental
approvals; and
-4-
2.13.1.3 Adequate funds (i.e., letters of
credit, cash deposits, performance bonds or land secured
public financing, including facility benefit assessments,
Mello-Roos assessment districts of similar assessment
mechanism) are available such that the City can construct
the public facility if construction has not commenced
within thirty (30) days of issuance of a notice to
proceed by the Director of Public Works, or construction
is not progressing towards completion in a reasonable
manner as reasonably deemed by the Director of Public
Works.
2.13.2 For a public facility within the City's
jurisdictional boundaries, but to be provided by other than
Developer.
2.13.2.1 Developer's proportionate share of
the cost of such public facility as defined in the
existing Project Approvals and Future Discretionary
Approvals has been provided or assured by Developer
through the payment or impositions of development impact
fee or other similar exaction mechanism.
2.13.3 For public facility not wi thin City's
jurisdictional boundaries:
2.13.3.1 Developer's proportionate share of
the cost of such public facility as defined in the
existing Project Approvals and Future Discretionary
Approvals has been provided for or otherwise assured by
Developer to the reasonable satisfaction of the Director
of Public Works.
2.14 "Development Impact Fee (DIF)" means fees imposed
upon new development pursuant to the City of Chula Vista
Development Impact Fee Program, for example, including but not
limited to the Transportation Development Impact Fee Program, the
Interim SR-125 Development Impact Fee Program, the Salt Creek Sewer
DIF and the Public Facilities DIF.
2.15 "Existing Project Approvals" means all discretionary
approvals affecting the Project which have been approved or
established in conjunction with, or preceding, the effective date
consisting of, but not limited to the GDP, the Chula Vista General
Plan, the otay Ranch Reserve Fund Program adopted pursuant to
Resolution 1888, and the Phase II Resource Management Plan (RMP),
as may be amended from time to time consistent with this agreement.
2.16 "Final Map(s)" means any final subdivision map for
all or any portion of the Property other than the Superblock Final
Map ("A" Maps). .
2.17 "Future Discretionary Approvals" means all permits
and approvals by the City granted after the effective date and
excluding existing Project Approvals, including, but not limited
-5-
to: (i) grading permits; (ii) site plan reviews; (iii) design
guidelines and reviews; (iv) precise plan reviews; (v) subdivisions
of the Property or re-subdivisions of the Property previously
subdivided pursuant to the Subdivision Map Act; (vi) conditional
use permits; (vii) variances; (viii) encroachment permits;
(ix) Sectional Planning Area plans; (x) Preserve conveyance Plan
and (xi) all other reviews, permits, and approvals of any type
which may be required from time to time to authorize public or
private on- or off-site facilities which are a part of the Project.
2.18 "planning Commission" means the Planning Commission
of the city of Chula vista.
2.19 "Preserve Conveyance Plan" means a plan that sets
forth policies and identifies land to be transferred and/or fees to
be paid to insure the orderly conveyance of the Otay Ranch land to
the Preserve Owner Manager. The purpose of the plan is to fulfill
the obligations to convey resource sensitive land, per the criteria
contained in the phase I and II Resource Management Plans and to
mitigate environmental impacts of the otay Ranch Project.
2.20 "Public Facility" or "Public Facilities" means those
public facilities described in the otay Ranch Facility
Implementation Plan.
2.21 "Subdivision Map Act" means the California
Subdivision Map Act, Government Code section 66410, et seq., and
its amendments as may from time to time be adopted.
2.22 "Substantial Compliance" means that the party
charged with the performance of a covenant herein has sufficiently
followed the terms of this Agreement so as to carry out the intent
of the parties in entering into this Agreement.
2.23 "Threshold" means the facility thresholds set forth
in the city's Municipal Code Section 19.19.040.
3. ~. This Agreement shall become effective as a
development agreement upon the effective date of the Annexation
("the Effective Date"); provided, however, that if the Annexation
does not occur on or before January 1, 1997, this Agreement shall
be null and void. Any of the foregoing to the contrary notwith-
standing, from the effective date of the ordinance approving this
Agreement, set. forth in Paragraph 1.8, and unless or until this
Agreement becomes null and void, Owner shall be bound by the terms
of Paragraph 4. The Term of this Agreement for purposes other than
Paragraph 4 shall begin upon the Effective Date, and shall continue
for a period of twenty (20) years ("the Term")'.
The term shall also be extended for any period of time during which
issuance of building permits to Developer is suspended for any
reason other than the default of Developer, and for a period of
'Developer wants 40 year term
-6-
time equal to the period of time during which any action by the
City or court action limits the processing of future discretionary
approvals, issuance of building permits or any other development of
the property consistent with this Agreement.
4. Owner Consent to Annexation. Owner hereby consents to
and shall cooperate with the applications of city to declare that
the otay Valley Parcel is within city's sphere of influence and to
annex the otay Valley Parcel to the City; provided, however, that
Owner may withdraw such consent and withhold further cooperation if
the city, prior to the Effective Date, adopts rules, regulations,
ordinances, policies, conditions, environmental regulations,
phasing controls, exactions, entitlements, assessments or fees
applicable to and governing development of the Property which are
inconsistent with, or render impractical development of the
Property according to, the Development Plan or the additional
commitments of City set forth in Paragraphs 5.1.1 through 5.1.6,
below.
5. Vested Riahts. Notwithstanding any future action or
inaction of the City during the term of this Agreement, whether
such action is by ordinance, resolution or policy of the City,
Owner and Developer shall have a vested right, except as may be
otherwise provided in this Section 5, to construct the Project.
5.1 Existing Project Approvals.
5.22 DeveloDment of ProDertv. The development of
the Property will be governed by this Agreement and Existing
Project Approvals and such development shall comply and be governed
by all rules, regulations, policies, resolutions, ordinances, and
standards in effect as of the Effective Date subject to the
provisions of section 5.3 below. The City shall retain its
discretionary authority as to Future Discretionary Approvals,
provided however, such Future Discretionary Approvals shall be
regulated by the Existing Project Approvals, this Agreement, and
City rules, regulations, standards, ordinances, resolutions and
policies in effect on the Effective Date of this Agreement and
subject to section 5.3.
Notwithstanding the foregoing, the City may make such changes to
the City's Growth Management Ordinance applicable to the project as
are reasonable and consistent with the purpose and intent of the
existing Growth Management Ordinance and which are generally
applicable to all private projects citywide or east of 1-805 or
within a specific benefit, fee or reimbursement district created
pursuant to the California Government Code.aftE! wl\isl\ \lBI:I.IE! ftB~
preve"~ er 'tIPl:~eaeeftaI31y delay 'th.e .evele~meftt af '\I\e PF8l'ert.y
eeftSiet.eR~ -,ft..i~h. ~fte Enis'EiRfJ J?rejee'E ^taprevals.
2policy issue
-7-
5.2.1 New or Amended Rules. Reaulations.
Pol icies. Standards. Ordinances and Resolutions. The City may
apply to the Project, including Future Discretionary Approv-
als, new or amended rules, laws, regulations, policies,
ordinances, resolutions and standards generally applicable to
all private projects east of 1-805 or within a specific
benefit fee or reimbursement district created pursuant to the
California Government Code. The application of such new
rules, or amended laws, regulations, resolutions, policies,
ordinances and standards will not unreasonably prevent or
delay development of the Property to the uses, densities or
intensities of development specified herein or as authorized
by the Existing Project Approvals. The City may also apply
changes in city laws, regulations, ordinances, standards or
policies specifically mandated by changes in state or federal
law in compliance with Section 13.3 herein.
5.2.2 Developer may elect with city's consent,
to have applied to the project any rules, regulations,
policies, ordinances or standards enacted after the date of
this Agreement. Such an election has to be made in a manner
consistent with Section 5.2 of this Agreement.
NOTE: POLICY ISSUE
5.2.3 Modifications to Existina Pro;ect
ADDrovals. It is contemplated by the parties to this
Agreement that the city and Developer may mutually seek and
agree to modifications to the Existing Project Approvals.
Such modifications are contemplated as within the scope of
this Agreement, and shall, upon written acceptance by all
parties, constitute for all purposes an Existing Project
Approval. The parties agree that any such modifications may
not constitute an amendment to this Agreement nor require an
amendment to the Agreement.
5.2.4 Future Discretionarv ADDrovals. It is
contemplated by the parties to this Agreement that the City
and Developer may agree to Future Discretionary Approvals. The
parties agree that any such Future Approvals may not consti-
tute an amendment to this Agreement nor require an amendment
to the Agreement.
5.3 Dedication and Reservation of Land for Public
PUrDoses. Except as expressly required by this Agreement or the
Existing Project Approvals and Future Discretionary Approvals
(excepting dedications required within the boundaries of any parcel
created by the subsequent subdivision of the Property as required
by the subdivision Map Act), no dedication or reservation of real
property within or outside the Property shall be required by city
or Developer in conjunction with the Project. Any dedications and
reservations of land imposed shall be in accordance with Section
7.2 and Section 7.8 herein.
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5.4 Time for Construction and ComDletion of Pro;ect.
Because the California Supreme Court held in Pardee Construction
ComDanv v. citv of Camarillo (1984) 27 Cal.3d 465, that the failure
of the parties to provide for the timing of development resulted in
a later-adopted initiative restricting the timing of development to
prevail over such parties' Agreement, it is the intention of the
parties to this Agreement to cure that deficiency by specifically
acknowledging that timing and phasing of development is completely
and exclusively governed by the Existing Project Approvals,
including the Chula vista Growth Management Ordinance. The purpose
of the Chula vista Growth Management Ordinance is to "control the
timing and location of development by tying the pace of development
to the provision of public facilities and improvements to conform
to the City's threshold standards. " (Municipa 1 Code section
19.09.010A.7) The findings in support of the Growth Management
Ordinance conclude that the ordinance "does not affect the number
of houses which may be built." (Municipal Code Section
19.09.010B.3) Therefore, the parties acknowledge that the Chula
vista Growth Management Ordinance completely occupies the topic of
development timing and phasing and expressly precludes the adoption
of housing caps, urban reserves or any other means by which the
rate of development may be controlled or regulated. The City
agrees that the Developer shall be entitled to, apply for and
recei ve all permits necessary for the development of property,
consistent with the Growth Management Ordinance, Existing Project
Approvals, Future Discretionary Approvals and this Agreement.
5.5 Benefit of Vestina. Nothing in this Agreement will
be construed as limiting or impairing Developer's vested right, if
any, to proceed with the development and use of the Property
pursuant to the Federal and state constitutions, and pursuant to
statutory and decisional law.
5.6 vestina of Entitlements. All rights conferred by
this Agreement vest with the Effective Date hereof. The approval
of Future Discretionary approvals shall not be deemed to limit
Developer's rights authorized by this Agreement, and once such
approvals are obtained they shall be vested to the same extent as
the Existing Project Approvals.
6. DEVELOPMENT PROGRAM.
6.1 processina of Future Discretionarv ADDrovals. city
will accept and diligently process development applications and
requests for Future Discretionary Approvals, or other entitlements
with respect to the development and use of the Property, provided
said applications and requests are in accordance with this
Agreement. City costs for processing work related to the Project,
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including hiring of additional
of professional consultants,
Developer.
City personnel and/or the retaining
will be reimbursed to City by
6.2 Lenath of Validitv of Tentative Subdivision MaDs'.
Government Code section 66452.6 provides that tentative subdivision
map(s) may remain valid for a length up to the term of this
Agreement. The City agrees that tentative subdivision map(s) not to
exceed three thousand (3,000) dwelling units, shall remain valid
for a term of ten (10) years. Tentative subdivision map(s) greater
than three thousand (3,000) dwelling units shall remain valid for
a term of ten (10) years plus one additional year for every three
hundred (300) dwelling units in excess of three thousand (3,000)
dwelling units.
6.3 Pre-Final MaD DeveloDment. If Developer desires to
do certain work on the Property after approval of a tentative map
(for example, grading) prior to the recordation of a final map, it
may do so by obtaining a grading and/or other required approvals
from the City which are authorized by the City prior to recordation
of a final map. Such permit shall be issued to Developer, or its
contractor, upon Developer's application, approval, and provided
Developer posts a bond or other reasonably adequate security
required by City in an amount to assure the rehabilitation of the
land if the applicable final map does not record.
6.4 Final MaDS.
6.4.1 "A" MaDs and "B" MaDs. If Developer so
elects, the city shall accept and process a master subdivision
or parcel map ("A" Map) showing "Super Block" lots and
backbone street dedications. "Super Block" lots shall be
consistent with the GDP and subsequent sectional Plan Area
plans, and shall not subdivide land into individual single-
family lots. All "Super Blocks" created shall have access to
dedicated public streets. The city shall not require improve-
ment plans in order to record a final map for any "A" Map
lots, but the city shall require bonding for the completion of
backbone facilities prior to recording in an amount to be
determined by the City. Following the approval by City of any
final map for an "A" Map lot and its recordation, Developer
may convey the "Super Block" lot. The buyer of a "Super
Block" lot shall then process final improvement plans and
grading plans and a final map ("B" Map) for each "Super Block"
lot which the city shall process. The "B" Maps shall be in
substantial conformance with the related approved "A" Map. In
the instance of the multi-family dwelling unit areas, a
separate tentative subdivision map may be submitted to the
City and the "B" Map(s) for these areas may be submitted to
the City after the City Planning Commission approves said
tentative subdivision map.
'Policy issue
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6.4;2 Recordation of Final Subdivision MaD in
Name of Builder or Third Partv. Developer may, if it so
elects, convey to a Builder or third party any "super block"
lot(s) shown on the recorded Superblock Final Map. In such
case, the Builder or third party will (i) process any neces-
sary final improvement and grading plans and a final map for
each such "super block" lot, which map city shall accept and
process as subsequent phases in a multi-phase project, (ii)
enter into a subdivision improvement agreement with City with
respect to the subdivision improvements which are required for
such super block lot, and (iii) provide security and insurance
satisfactory to city for the completion of the subdivision
improv_ents.
6.4.3 Recordation of Final Subdivision Map in
Developer's Name; Transfer of Obligations Under SUbdivision
Improvement Agreement(s). If Developer so elects, it may
defer the conveyance of any super block lot to a Builder or
third party until after the final map of such super block lot
has been recorded. If Developer elects to proceed in this
manner, it will enter into City's standard subdivision
improvement agreement(s) with city for the improvements
required as a condition to the recordation of such map(s).
Upon sale to a Builder or third party, if such Builder or
third party assumes Developer's obligations under the improve-
ment agreement and provides its own security and insurance for
the completion of the subdivision improvements as approved by
the city, Developer shall be released from liability under the
subdivision improvement agreement(s) and Developer's security
shall be released.
6.4.4 Transfer of Riahts and Obliaations of
DeveloDment. Whenever Developer conveys a portion of the
Property, the rights and obligations of this Agreement shall
transfer in accordance with Section herein.
7. DEVELOPER'S OBLIGATIONS.
7.1 Condition to DeveloDer's Obliaations to Dedicate. Fund or
Construct Public Facilities. Developer agrees to develop or
provide the public improvements, facilities, dedications, or
reservations of land and satisfy other exactions conditioning the
development of the Property which are set forth hereinbelow. The
obligations of the Developer pursuant to this Agreement are
conditioned upon: (i) the City not being in default of its obliga-
tions under this agreement; and (ii) the City not preventing or
unreasonably delaying the development of the property; and (iii)
the Agreement having not been suspended or modified in response to
changes in state or federal law; and (iv) the City's obligations
having not been suspended pursuant to Section 13.2.
7.2 Dedications and Reservations of Land for PublicPurDoses.
The policies by which property will be required to be reserved,
dedicated or improved for public purposes are identified in the
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Existing Project Approvals. A more precise delineation of the
property to be preserved, dedicated or improved for public purposes
shall occur as part of Future Discretionary Approvals, consistent
with the Existing Project Approvals.
7.2.1 Preserve Conveyance Plan. The Developer shall
comply with any existing or yet to be adopted Preserve
conveyance Plan and convey property as set forth in such Plan.
7.3 Growth Manaaement Ordinance. Developer shall commit the
public facilities and City shall issue building permits as provided
in this section. The City shall have the right to withhold the
issuance of building permits any time after the City reasonably
determines a Threshold has been exceeded, unless and until the
Developer has mitigated the deficiency in accordance with the
City's Growth Management Ordinance.
Developer agrees that building permits may be withheld where the
public facilities described in the Existing Project Approvals/-
Future Discretionary Approvals required for a particular Threshold
have not been committed.
In the event a Threshold is not met and future building permit
issuance may be withheld, the notice provisions and procedures
contained in section 19.09 .100C of the Municipal Code will be
followed. In the event the issuance of building permits is
suspended pursuant to the provisions herein, such suspension shall
not constitute a breach of the terms of this Agreement by Develop-
er. Furthermore, any such suspension which is not caused by the
actions or omissions of the Developer, shall toll the term of this
Agreement as provided for in Section 16.12 of this Agreement, and
suspend the Developer's obligations pursuant to this Agreement.
7.3.1 Reauired Condemnation. . The City and Developer
recognize that certain of the public facilities identified in
the Existing Project Approvals/Future Discretionary Approvals
and required to comply with a threshold are located on
properties which neither the Developer nor the City has, or
will have, title to or control of. The City shall identify
such property or properties and at the time of filing of the
final map commence timely negotiations or, where the property
is within the city's jurisdiction, commence timely proceedings
pursuant to Title 7 (commencing with S 1230.010) of Part 3 of
. the Code of civil Procedure to acquire an interest in the
property or properties. Developer's share of the cost
involved in any such acquisition shall be based on its
proportionate share of the public facility as defined in the
Existing Project Approvals/Future Discretionary Approvals.
Nothing in this Agreement shall be deemed to preclude the City
from requiring the Developer to pay the cost of acquiring such
off-site land. For that portion of the cost beyond the
Developer's fair share responsibility, the City shall take all
reasonable steps to establish a procedure whereby the develop-
er is reimbursed for such costs beyond its fair share.
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7.3.2 Information Reaardina Thresholds. Upon
Developer's written requests of the City Manager, the city
will provide Developer with information regarding the current
status of a Threshold. Developer shall be responsible for any
staff costs incurred in providing said written response.
7.4 Imnrovements Reauired bv a Subdivision MaD. Asmay
be required pursuant to the terms of a sUbdivision map, it shall be
the responsibility of Developer to construct the improvements
required by a subdivision map. Where Developer is required to
construct a public improvement which has been identified as the
responsibility of another party or to provide public improvements
of supplemental size, capacity, number or length benefiting
property not within the subdivision, City shall process a reim-
bursement agreement to the Developer in accordance with Article 6
of Chapter 4 of the SUbdivision Map Act, commencing with Government
Code section 66485, and section 7.5, below.
7.5 ~ac~;~;;e~ Whi~h Are the ,Obliaations of Another
Partv. or Are f s ve Slze. CaDacltv. Lenath or Number.
Developer may offer to advance monies and/or construct public
improvements which are the responsibility of another land owner, or
outside the city's jurisdictional boundaries, or which are of
supplemental size, capacity, number or length for the benefit of
land not within the Property. city, where requesting such funding
or construction of oversized public improvements, shall consider
after a public hearing, contemporaneous with the imposition of the
obligation, the formation of a reimbursement district, assessment
district, facility benefit assessment, or reimbursement agreement
or other reimbursement mechanism.
7.6 pioneerina of Facilities. To the extent Developer
itself constructs (Le., "pioneers") any public facilities or
public improvements which are covered by a DIF Program, Developer
shall be given a credit against DIFs otherwise payable, subject to
the city's Director of Public Works reasonable determination that
such costs are allowable under the applicable DIF Program. It is
specifically intended that Developer be given DIF credit for the
DIF Program improvements it makes. The fact that such improvements
may be financed by an assessment district or other financing
mechanism, shall not prevent DIF credit from being given to the
extent that such costs are allowed under the applicable DIF Program
7.7 :Insurance. Developer shall name City as additional
insured for all insurance policies obtained by Developer for the
Project as pertains to the Developer's activities and operation on
the Project.
7.8 Other Land Owners. Developer hereby agrees to
dedicate adequate rights-of-way within the boundaries of the
Property for other land owners to "Pioneer" public facilities on
the Property; provided, however, as follows: (i) dedications shall
be restricted to those reasonably necessary for the construction of
facilities identified in the city's adopted public facility plans;
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(ii) this provision shall not be binding on the successors-in-
interest or assignees of Developer following recordation of the
final "super Block" or "A" Map; and (iii) the city shall use its
reasonable best efforts to obtain agreements similar to this
subsection from other developers and to obtain equitable reimburse-
ment for Developer for any excess dedications.
8. DEVELOPMENT IMPACT FEES.
8.1 Existina Develonment ImD8ct Fee proaram PaYments.
Developer shall pay to the City a DIF, or construct improvements in
lieu of payment, for improvements which are conditions of a
tentative subdivision map upon the issuance of building permits(s),
or at a later time as specified by city ordinance, the Subdivision
Map Act, or Public Facility Financing Plan (PFFP). The DIF will be
in the amount in effect at the time payment is made and may only be
increased pursuant to section 8.6 herein.
8.2 Other UndeveloDed ProDerties. The City will use its
reasonable best efforts to impose and collect, or cause the
imposition and collection of, the same DIF program on all the
undeveloped real properties which benefit from the provision of the
public facility through the DIF program, or provided as a condition
of project Approvals.
8.3 Use of DeveloDment ImDact Fee Proaram. The DIF
amounts paid to the City by Developer and others with respect to
the Area of Benefit shall be placed by the City in a capital
facility fund account established pursuant to California Government
Code sections 66000-66009. The city shall expend such funds only
for the projects described in the adopted fee program as may be
modified from time to time. The city will use its reasonable best
efforts to cause such Projects to be completed as soon as practica-
ble; however, the city shall not be obligated to use its general
funds for such Projects.
8.4 wi thholdina of Permits. Developer agrees that city
shall have the right to withhold issuance of the building permit
for any structure or improvement on the Property unless and until
the DIF is paid for such structure or improvement.
8.5 DeveloDment ImDact Fee credit. Upon the completion
of any public facility, the city shall immediately credit Developer
with the appropriate amount of cash credits ("EDUs") as determined
by Developer and city. However, if the improvements are paid for
through an Assessment District, the City shall credit the Developer
with the appropriate number of Equivalent Dwelling unit Credits
(EDU's). Developer shall be entitled to apply any and all credits
accrued pursuant to this subsection toward the required payment of
future DIF for any phase, stage or increment of development of the
Project.
8.6 Modification of DeveloDment ImDact Fees. The
parties recognize that from time to time during the duration of the
Agreement it will be necessary for the City to update and modify
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its DIF fees. Such reasonable modifications are contemplated by
the City and the Developer and shall not constitute a modification
to the Agreement so long as: (i) the modification incorporates the
reasonable costs of providing facilities identified in the Existing
Project Approvals; (ii) are based upon methodologies in substantial
compliance with the methodology contained in the existing DIF
programs; or other methodology approved by the City Council'
following a public hearing; (iii) complies with the provisions of
Government Code sections 66000-66009.
8.7 Standards for Financina Obliaations of Owner. In
connection with the development of the Property, the following
standards regarding the financing of public improvements shall
apply:
8.7.1 Owner shall pay its fair share for the
interchanges described in Paragraph 5. 1. 3 , based upon the
number of dwelling units or equivalent dwellings of develop-
ment allowed on the Property as compared to the total dwelling
units or equivalent dwelling units allowed on properties
served by such interchanges.
8.7.2 Owner shall participate in the DIF Program
for the otay Valley Parcel with other owners in proportion to
the total dwelling units or equivalent dwelling units allowed
on the Property as compared with the total of such units
allowed on properties in that particular DIF or by some other
equitable methodology decided by the city Council.
8.7.3 The City shall diligently pursue the
requirements that the Eastern Territories' DIF requires
offsite third parties and adjacent jurisdictions to bear their
fair share of all Otay River Valley crossings.
9. CITY OBLIGATIONS.
9.1 Urban Infrastructure. To the extent it is within
the authority of the City to provide, City shall accommodate urban
infrastructure to the project, consistent with Existing Project
Approvals. Where it is necessary to utilize City property to
provide urban infrastructure consistent with the Existing Project
Approvals, the city agrees to make such land available for such
uses, provided that the City if it so chooses is compensated at
fair market value for the property. To the extent that the
provision of urban infrastructure is within the authority of
another public or quasi-public agency or utility, the City agrees
to fully cooperate with such agency or agencies to accommodate the
urban infrastructure, consistent with Existing Project Approvals.
Urban infrastructure shall include, but not be limited to gas,
electrici ty, telephone, cable and facilities identif ied in the Otay
Ranch Facility Implementation Plan.
9.2 Sewer CaDacitv. The City agrees te provide adequate
sewer capacity for the project, upon the payment of ordinary and
necessary sewer connection, capacity and/or service fees.
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10. ANNUAL REVIEW.
10.1 citv and Owner ResDonsibilities. City will, at
least every twelve (12) months during the Term of this Agreement,
pursuant to California Government Code 565865.1, review the extent
of good faith substantial compliance by OWner with the terms of
this Agreement. Pursuant to California Government Code section
65865.1, as amended, owner shall have the duty to demonstrate by
substantial evidence its good faith compliance with the terms of
this Agreement at the periodic review. Either City or OWner may
address any requirement of the Agreement during the review.
10.2 Evidence. The parties recognize that this Agreement
and the documents incorporated herein could be deemed to contain
hundreds of requirements and that evidence of each and every
requirement would be a wasteful exercise of the parties' resources.
Accordingly, Developer shall be deemed to have satisfied its good
faith compliance when it presents evidence of substantial com-
pliance with the major provisions of this Agreement. Generalized
evidence or statements shall be accepted in the absence of any
evidence that such evidence is untrue.
10.3 Review Letter. If Owner is found to be in com-
pliance with this Agreement after the annual review, city shall,
within forty-five (45) days after OWner's written request, issue a
review letter in recordable form to Owner ("Letter") stating that
based upon information known or made known to the Council, the City
Planning commission and/or the city Planning Director, this
Agreement remains in effect and Owner is not in default. Owner may
record the Letter in the Official Records of the county of San
Diego.
10.4 Failure of Periodic Review. City's failure to
review at least annually Owner's compliance with the terms and
conditions of this Agreement shall not constitute, or be asserted
by city or Owner as, a breach of the Agreement.
11. DEFAULT.
11.1 Events of Default. A default under this Agreement
shall be deemed to have occurred upon the happening of one or more
of the following events or conditions:
11.1.1 A warranty, representation or statement
made or furnished by owner to city is false or proves to have
been false in any material respect when it was made.
11.1.2 A finding and determination by City made
following a periodic review under the procedure provided for
in California Government Code section 65865.1 that upon the
basis of substantial evidence Owner has not complied in good
faith with .one or more of the terms or. conditions of this
Agreement.
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11.~.3 City does not accept, timely review, or
consider requested development permits or entitlements
submitted in accordance with the provisions of this Agreement.
11.1. 4 Any other act or omission by City or Owner
which materially interferes with the terms of this Agreement.
11.2 Procedure UDon Default.
11. 2.1 Upon the occurrence of default by the
other party, City or Owner may terminate this Agreement after
providing the other party thirty (30) days written notice
specifying the nature of the alleged default and, when
appropriate, the manner in which said default may be satis-
factorily cured. After proper notice and expiration of said
thirty (30) day cure period without cure, this Agreement may
be terminated. In the event that city's or Owner's default is
not subject to cure within the thirty (30) day period, City or
Owner shall be deemed not to remain in default in the event
that city or Owner commences to cure within such thirty (30)
day period and diligently prosecutes such cure to completion.
Failure or delay in giving notice of any default shall not
constitute a waiver of any default, nor shall it change the
time of default. Notwithstanding any other provision of this
Agreement, City reserves the right to formulate and propose to
Owner options for curing any defaults under this Agreement for
which a cure is not specified in this Agreement.
11.2.2 city does not waive any claim of defect in
performance by Owner if, on periodic review, City does not
propose to modify or terminate this Agreement.
11.2.3 Subject to Paragraph 16.12 of this
Agreement, the failure of a third person shall not excuse a
party's nonperformance under this agreement.
11.2.4 All other remedies at law or in equity
which are consistent with the provisions of this Agreement are
available to City and Owner to pursue in the event there is a
breach.
12. ENCUMBRANCES AND RELEASES ON PROPERTY.
~2.1 Discretion to Encumber. This Agreement shall not
prevent or limit Owner in any manner at Owner's sole discretion,
from encumbering the Property, or any portion of the Property, or
any improvement on the Property, by any mortgage, deed of trust, or
other security device securing financing with respect to the
Property or its improvement.
12.2 Mortaaaee Riahts and Obliaations. The mortgagee of
a mortgage or beneficiary of a deed of trust encumbering the
Property, or any part thereof, and their successors and assigns
shall, upon written request to city, be entitled to receive from
City written notification of any default by Owner of the
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performance of Owner's obligations under the Agreement which has
not been cured within thirty (30) days following the date of
default.
12.3 Releases. City agrees that upon written request of
Owner and payment of all fees and performance of the require-
ments and conditions required of Owner by this Agreement with
respect to the Property, or any portion thereof, City may
execute and deliver to owner appropriate release(s) of further
obligations imposed by this Agreement in form and substance
acceptable to the San Diego County Recorder and title
insurance company, if any, or as may otherwise be necessary to
effect the release. city Manager shall not unreasonably
withhold approval of such release(s).
12.4 Obliaation to Modifv. city acknowledges that the
lenders providing financing for the Project may require certain
modifications to this Agreement and city agrees, upon request from
time to time, to meet with Owner and/or representatives of such
lenders to negotiate in good faith any such requirement for
modification. city will not unreasonably withhold its consent to
any such requested modification.
13. MODIFICATION OR SUSPENSION.
13.1 MOdification to Aareement bv Mutual Consent. This
Agreement 1IIay be modified, from time to time, by the mutual consent
of the parties only in the same manner as its adoption by an
ordinance as set forth in California Government Code sections
65867, 65867.5 and 65868. The term, "this Agreement" as used in
this Agreement, will include any such modification properly
approved and executed.
13.2 Unforeseen Health or Safetv Circumstances. If, as
a result of facts, events, or circumstances presently unknown,
unforeseeable, and which could not have been known to the parties
prior to the commencement of this Agreement, city finds that
failure to suspend this Agreement would place the residents of City
in a severe and immediate emergency to their health or safety, the
city shall:
13.2.1 Notification of Unforeseen Circumstances.
Notify Developer of (i) City's determination; and (ii) the
reasons for City's determination, and all facts upon which
such reasons are based;
13.2.2 Notice of Hearina. Notify Developer in
writing at least fourteen (14) days prior to the date, of the
date, time and place of the hearing and forward to Developer
a minimum of ten (10) days prior to the hearings described in
Section 13.2.3, all documents related to such determination
and reasons therefor; and
13.2.3 Hearina. Hold a hearing on the deter-
mination, at which hearing Developer will have the right to
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address the City Council. At the conclusion of said hearing,
city may take action to suspend this Agreement as provided
herein. The city may suspend this Agreement if, at the
conclusion of said hearing, based upon the evidence presented
by the parties, the City finds failure to suspend would place
the residents of the city in a severe and immediate emergency
to their health or safety.
13.3 Chanae in state or Federal Law or Reaulations. If
any state or federal law or regulation enacted during the Term of
this Agreement, or the action or inaction of any other affected
governmental jurisdiction, precludes compliance with one or more
provisions of this Agreement, or requires changes in plans, maps,
or permits approved by City, the parties will act pursuant to
sections 13.3.1 and 13.3.2, below.
13.3.1 Notice: Meetina. The party first becoming
aware of such enactment or action or inaction will provide the
other party(ies) with written notice of such state or federal
law or regulation and provide a copy of such law or regulation
and a statement regarding its conflict with the provisions of
this Agreement. The parties will promptly meet and confer in
a good faith and reasonable attempt to modify or suspend this
Agreement to comply with such federal or state law or regula-
tion.
13.3.2 Hearina. If an agreed upon modification
or suspension would not require an amendment to this Agree-
ment, no hearing shall be held. Otherwise, the matter of such
federal or state law or regulation will be scheduled for
hearing before the City. Fifteen (15) days' written notice of
such hearing shall be provided to Developer, and the city, at
such hearing, will determine and issue findings on the
modification or suspension which is required by such federal
or state law or regulation. Developer, at the hearing, shall
have the right to offer testimony and other evidence. If the
parties fail to agree after said hearing, the matter may be
submitted to mediation pursuant to subsection 13.3.3, below.
Any modification or suspension shall be taken by the affirma-
tive vote of not less .than a majority of the authorized voting
members of the city. Any suspension or modification may be
subject to judicial review in conformance with subsection
16.19 of this Agreement.
13.3.3 Mediation of DisDutes. In the event the
dispute between the parties with respect to the provisions of
this paragraph has not been resolved to the satisfaction of
both parties following the city hearing required by subsection
13.3.2, the matter shall be submitted to mediation prior to
the filing of any legal action by any party. The mediation
will be conducted by the San Diego Mediation Center; if San
Diego Mediation Center is unable to conduct the mediation, the
parties shall submit the dispute for mediation to the Judicial
Arbitration and Mediation Service or similar organization and
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make a good faith effort to resolve the dispute. The cost of
any such mediation shall be divided equally between the
Developer and city.
13.4 Natural communities Conservation Act (NCCP). The
parties recognize that Developer and the City are individually
negotiating agreements with the United states Fish and Wildlife
Service ("USF&W") and the California Department of Fish and Game
pursuant to the ongoing regional effort to implement the Natural
Communities Conservation Act ("NCCP"), locally proposed to be
implemented through the Multi-Species Conservation Program
("MSCP"). The parties further recognize that implementation of the
agreements may necessitate modification to the Existing Project
Approvals. The parties agree to utilize their best efforts to
implement these agreements, once executed, through the timely
processing of modifications to the Existing Project Approvals as
they relate to the Property. The Developer agrees to pay the
reasonable city cost for processing work related to the modifica-
tions. Once such modifications are obtained they shall be vested
to the same extent as Existing Project Approvals.
14. Districts. Public Financina Mechanisms.
This Agreement and the Existing Project Approvals recognize
that assessment districts, community facility districts, or other
public financing mechanisms, may be necessary to finance the cost
of public improvements borne by this Project. If Developer,
pursuant to the Existing Project Approvals/Future Discretionary
Approvals, is required to install improvements through the use of
assessment districts, community facility districts, or other public
financing mechanisms, the City shall initiate and conclude
appropriate proceedings for the formation of such financing
district or funding mechanism, under applicable laws or ordinances.
Developer may request that the City utilize any other financing
methods which may become available under City laws or ordinances.
All costs associated with the consideration and formation of such
financing districts or funding mechanisms shall be paid by
Developer subject to reimbursement, as may be legally authorized
out of the proceeds of any financing district or funding mechanism.
15. ~ianment and Deleaat~.
15.1 Assianment. owner shall have the right to transfer
or assign its interest in the Property, in whole or in part,
to any persons, partnership, joint venture, firm, or corpora-
tion at any time during the Term of this Agreement without the
consent of city. owner also shall have the right to assign or
transfer all or any portion of its interest or rights under
this Agreement to third parties acquiring an interest or
estate in the Property at any time during the Term of this
Agreement without the consent of city.
15.2
right to
Agreement
Deleaation. In addition, Owner shall have the
delegate or transfer its obligations under this
to third parties acquiring an interest or estate in
-20-
the Property after receiving the prior written consent of the
City Manager, which consent shall not be unreasonably with-
held, delayed, or conditioned. Once the City Manager has
consented to a transfer, delivery to and acceptance by the
city Manager of an unqualified written assumption of Owner's
obligations under this Agreement by such transferee shall
relieve Owner of the obligations under this Agreement to the
extent the obligations have been expressly assumed by the
transferee. Such transferee shall not be entitled to amend
this Agreement without the written consent of the entity that,
as of the Effective Date, is Owner, which consent shall not be
unreasonably withheld, delayed, or conditioned. The entity
that is Owner as of the Effective Date, however, shall be
entitled to amend this Agreement without the written consent
of such transferee.
16. Miscellaneous Provisions.
16.1 Bindina Effect of Aareement. Except to the extent
otherwise provided in this Agreement, the burdens of this Agreement
bind, and the benefits of this Agreement inure, to city's and
Owner's successors-in-interest and shall run with the land.
16.2 RelationshiD of citv and Owner. The contractual
relationship between city and Owner arising out of this Agreement
is one of independent contractor and not agency. This Agreement
does not create any third-party beneficiary rights.
16.3 Notices. All notices, demands, and correspondence
required or permitted by this Agreement shall be in writing and
delivered in person, or mailed by first-class or certified mail,.
postage prepaid, addressed as follows:
If to City, to:
city of Chula vista
276 Fourth Avenue
Chula Vista, CA 91910
Attention: city Manager
If to owner, to:
Gregory T. or Georgiana R. smith
P. 0 Box 27
Rancho Santa Fe, CA 92067
Attention: Gregory T. smith
with a copy to:
STEPHENSON, WORLEY, GARRATT,
SCHWARTZ, HEIDEL & PRAIRIE
101 West Broadway, suite 1300
San Diego, CA 92101
Attention: Donald R. Worley, Esq.
-21-
city or Owner may change its address by giving notice in writing to
the other. Thereafter, notices, demands, and correspondence shall
be addressed and transmitted to the new address. Notice shall be
deemed qiven upon personal delivery, or, if mailed, two (2)
business days following deposit in the United states mail.
16.4 Rules of Construction. In this Agreement, the use
of the singular includes the plural; the masculine gender includes
the feminine; "shall" is mandatory; "may" is permissive.
16.5 Entire Aareement. Waivers. and Recorded statement.
This Agreement constitutes the entire understanding and agreement
of city and owner with respect to the matters set forth in this
Agreement. This Agreement supersedes all negotiations or previous
agreements between city and Owner respecting this Agreement. All
waivers of the provisions of this Agreement must be in writing and
signed by the appropriate authorities of City and Owner. Upon the
completion of performance of this Agreement, or its revocation or
termination, a statement evidencing completion, revocation, or
termination signed by the appropriate agents of City shall be
recorded in the Official Records of San Diego County, California.
16.6 Pro;ect as a Private Undertakina. It is
specifically understood by city and Owner that (i) the Project is
a private development; (H) city has no interest in or
responsibilities for or duty to third parties concerning any
improvements to the Property until City accepts the improvements
pursuant to the provisions of the Agreement or in connection with
subdivision map approvals; and (Hi) Owner shall have the full
power and exclusive control of the Property subject to the
obligations of OWner set forth in this Agreement.
16.7 IncorDoration of Recitals. The recitals set forth
in Paragraph 1 of this Agreement are part of this Agreement.
16.8 caDtions. The captions of this Agreement are for
convenience and reference only and shall not define, explain,
modify, construe, limit, amplify, or aid in the interpretation,
construction, or meaning of any of the provisions of this
Agreement.
16.9 Consent. Where the consent or approval of City or
Owner is required or necessary under this Agreement, the consent or
approval shall not be unreasonably withheld, delayed, or con-
ditioned.
16.10 Covenant of Cooneration.
cooperate and deal with each other in good
other in the performance of the provisions
City and Owner shall
faith, and assist each
of this Agreement.
16.11 Recordina. The City Clerk shall cause a copy of
this Agreement to be recorded with the Office of the County
Recorder of San Diego County, California, within ten (10) days
following the Effective Date.
-22-
16.12 Delav. Extension of Time for Performance. In
addition to any specific provision of this Agreement, performance
by either city or Owner of its obligations hereunder shall be
excused, and the Term of this Agreement and the Development Plan
extended, during any period of delay caused at any time by reason
of any event beyond the control of city or OWner which prevents or
delays and impacts City's or Owner's ability to perform obligations
under this Agreement, including, but not limited to, acts of God,
enactment of new conflicting federal or state laws or regulations
(example: listing of a species as threatened or endangered),
judicial actions such as the issuance of restraining orders and
injunctions, riots, strikes, or damage to work in process by reason
of fire, floods, earthquake, or other such casualties. If city or
Owner seeks excuse from performance, it shall provide written
notice of such delay to the other within thirty (30) days of the
commencement of such delay. If the delay or default is beyond the
control of City or Owner, and is excused, an extension of time for
such cause will be granted in writing. for the period of the
enforced delay, or longer as may be mutually agreed upon.
16.13 Covenant of Good Faith and Fair Dealinas. No party
shall do anything which shall have the effect of harming or
injuring the right of the other parties to receive the benefits of
this Agreement; each party shall refrain from doing anything which
would render its performance under this Agreement impossible; and
each party shall do everything which this Agreement contemplates
that such party shall do in order to accomplish the objectives and
purposes of this Agreement.
16.14 ODeratina Memorandum. The parties acknowledge that
the provisions of this Agreement require a close degree of
cooperation between City and Developer, and that the refinements
and further development of the Project may demonstrate that minor
changes are appropriate with respect to the details of performance
of the parties. The parties, therefore, retain a certain degree of
flexibility with respect to those items covered in general under
this Agreement. When and if the parties mutually find that minor
changes or adjustments are necessary or appropriate, they may
effectuate changes or adjustments through operating memoranda
approved by the parties. For purposes of this section 16.14, the
City Manager, or his designee, shall have the authority to approve
the operating memoranda on behalf of City. No operating memoranda
shall require notice or hearing or constitute an amendment to this
Agreement.
16.15 Time of Essence. Time is of the essence in the
performance of the provisions of this Agreement as to which time is
an element.
16.16 Amendment or cancellation of Aareement. This
Agreement may be amended from time to time or canceled by the.
mutual consent of City and Owner only in the same manner as its
adoption, by an ordinance as set forth in California Government
Code section 65868, and shall be in a form suitable for recording
in the Official Records of San Diego county, California. The term
-23-
"Agreement" shall include any such amendment properly approved and
executed. City and Owner acknowledge that the provisions of this
Agreement require a close degree of cooperation between them, and
that minor or insubstantial changes to the Project and the
Development Plan may be required from time to time to accommodate
design changes, engineering changes, and other refinements.
Accordingly, changes to the Project and the Development Plan that
do not result in a change in use, an increase in density or
intensity of use, cause new or increased environmental impacts, or
violate any applicable health and safety regulations, may be
considered minor or insubstantial by the city Manager and made
without amending this Agreement.
16.17 EstoDDel Certificate. within 30 calendar days
following a written request. by any of the parties, the other
parties to this Agreement shall execute and deliver to the
requesting party a statement certifying that (i) this Agreement is
unmodified and in full force and effect, or if there have been
modifications hereto, that this Agreement is in full force and
effect as modified and stating the date and nature of such
modifications; (ii) there are no known current uncured defaults
under this Agreement, or specifying the dates and nature of any
such default; and (iii) any other reasonable information requested.
The failure to deliver such a statement within such time shall
constitute a conclusive presumption against the party which fails
to deliver such statement that this Agreement is in full force and
effect without modification, except as may be represented by the
requesting party, and that there are no uncured defaults in the
performance of the requesting party, except as may be represented
by the requesting party.
16.18 Severabilitv. If any material provision of this
Agreement is held invalid, this Agreement will be automatically
terminated unless within 15 days after such provision is held invalid
the party holding rights under the invalidated provision affirms the
balance of this Agreement in writing. This provision will not affect
the right of the parties to modify or suspend this Agreement by
mutual consent pursuant to Paragraph 12.4.
16.19 Institution of Leaal Proceedina. In addition to any
other rights or remedies, any party may institute legal action to
cure, correct, or remedy any default, to enforce any covenants or
agreements herein, or to enjoin any threatened or attempted violation
thereof; to recover damages for any default or to obtain any remedies
consistent with the purpose of this Agreement. Such legal actions
must be instituted in the Superior Court of the County of San Diego,
state of California. .
16.20 Attornevs' Fees and Costs. If any party commences
litigation or other proceedings (including, without limitation,
arbitration) for the interpretation, reformation, enforcement, or
rescission of this Agreement, the prevailing party, as determined by
the court, will be entitled to its reasonable attorneys' fees and
costs.
-24-
16.21 Hold Harmless. Developer agrees to and shall hold
city, its officers, agents, employees and representatives harmless
from liability for damage or claims for damage for personal injury,
including death, and claims for property damage which may arise from
the direct or indirect operations of Developer or those of its
contractors, subcontractors, agents, employees or other persons
acting on Developer's behalf which relate to the Project. Developer
agrees to and shall defend City and its officers, agents, employees
and representatives from actions for damage caused or alleged to have
been caused by reason of Developer's activities in connection with
the Project. Developer agrees to indemnify, hold harmless, pay all
costs and provide a defense for City in any legal action filed in a
court of competent jurisdiction by a third party challenging the
validity of this Agreement. The provisions of this Section 16.21
shall not apply to the extent such damage, liability or claim is
caused by the intentional or negligent act or omission of city, its
officers, agents, employees or representatives.
IN WITNESS WHEREOF, this Agreement has been executed by the CITY
OF CHULA VISTA, acting by and through its city Manager, pursuant to
Ordinance No. authorizing such execution, and by Owner.
Dated this ____ day of
, 1996.
"CITY"
CITY OF CHULA VISTA
By:
Its:
"OWNER"
GREGORY T. SMITH AND GEORGIANA R. SMITH
By:
Gregory T. Smith
By:
Georgiana R. Smith
-?,,-
"
EXHIBIT A
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Q'1Y OF
CHUIA VISTA
PLANNING DEP4RTMENT
6/18106
GREGORY T. AND GEORGIANA R. SMITH
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PRE-ANNEXATION DEVELOPMENT AGREEMENT
.
TI-llS PRE-ANNEXATION DEVELOPMENT AGREEMENT ("Agreement") is made
effective on the date hereinafter set forth below by and between UNITED ENTERPRISES,
LTD. ("Owner") and the CIIT OF CHULA VISTA ("City"), who agree as follows:
1. RECITALS. This Agreement is made with respect to the following facts:
1.1. Owner. United Enterprises is the owner of approximately 136.47 acres of real
property (the "Property") located in the unincorporated area of the County of San Diego (the
"County"), described in Exhibit "A," attached hereto and incorporated herein by this reference.
1.1.1. For approximately the last 40 years, the Property has been used for rock
quarry operations, including but not limited to the mining and crushing of rock, the
processing of rock through a cement treated base plant, and the sale and trucking of rock and
cement treated base material (together, "Rock Quarry Operations"). The use of the Property
for Rock Quarry Operations constitutes a legal, non-conforming use by virtue of the
imposition by the County, subsequent to the vesting of the use, of an ordinance which would
otherwise'require that the use be subject to a use permit.
1.1.2. In accordance with the Surface Mining and Reclamation Act, the Rock
Quarry Operations are currently being operated pursuant to a reclamation plan approved by
the County and filed with the State Division of Mines and Geology (the "Reclamation Plan").
1.2. City. The City of Chula Vista is a municipal corporation and an incorporated
city within the County.
1.3. Code Authorization and Acknowled~ments.
1.3.1. City is authorized pursuant to California Government Code Sections 65864
through 65869.5 to enter into development agreements for the purpose of establishing certainty
for both City and owners of real property in the development process.
1.3.2. Government Code Section 65865 expressly authorizes a city to enter into a
development agreement with any person having a legal or equitable interest in real property
in unincorporated territory within that city's sphere of influence for the development of
property as provided in the Development Agreement Law; provided that the agreement shall
not become operative unless annexation proceedings annexing the property to the city are
completed within the time specified by the agreement.
1.3.3. City enters into this Agreement pursuant to the provisions of the California
Government Code, its home-rule powers, and applicable City ordinances, rules, regulations and
policies.
55:69295.3:46027.002
1
1.3.4. City and Owner acknowledge:
1.3.4.1. This Agreement assures adequate public facilities at the time of
development.
1.3.4.2. This Agreement assures development in accordance with City's capital
improvement plans.
1.3.4.3. This Agreement constitutes a current exercise of City's police powers
to provide certainty to Owner in the development approval process by vesting the permitted
use(s), density, intensity of use, and the timing and phasing of development, in exchange for
Owner's entering into this Agreement and for its commitment to support the Annexation
described below.
1.3.4.4. This Agreement will permit achievement of City growth management
goals and objectives.
1.3.4.5. This Agreement will allow City to realize significant economic,
recreational, park, open space, social, and public facilities benefits, some of which are of
regional significance.
1.3.4.6. This Agreement will provide and assure that City receive sales tax
revenues, increase in the property tax base, residential housing and other development, sewer,
water and street facilities.
1.3.4.7. This Agreement will assure that City receives public facilities in excess
of project generated impacts and such facilities shall be of supplemental size, number capacity
or length, which shall be provided earlier than could be provided either by funds from the
City or than would strictly be necessary to mitigate project related impacts at any development
phase.
1.3.4.8. This Agreement will provide City Owner's support to secure
annexation of the lands depicted in Exhibit "B," attached hereto and incorporated herein by
this reference.
1.3.4.9. Because of the complexities ofthe financing of the infrastructure, park,
open space, and other dedications, and regional and community facilities, and the significant
nature of such facilities, certainty in the development process is an absolute necessity. The
phasing, timing, and development of public infrastructure necessitate a significant commitment
of resources, planning, and effort by Owner for the public facilities financing, construction,
and dedication to be successfully completed. In return for Owner's participation and
commitment to these significant contributions of private resources for public purposes and for
Owner's consent to the Annexation described below, City is willing to exercise its authority
to enter into this Agreement and to make a commitment of certainty for the development
process for the Property.
55:69295.3:46027.002
2
1.3.4.10. In consideration of Owner's agreement to provide the significant
benefits and for Owner's consent to the Annexation described below, City hereby grants
Owner assurances that it can proceed with development of the Property in accordance with
City's laws, ordinances, rules, regulations, and policies existing as of the effective date of this
Agreement (as defined in Paragraph 3 of this Agreement). Owner would not enter into this
Agreement or agree to provide the public benefits and improvements described in this
Agreement if it were not for the commitment of City that the Property subject to this
Agreement can be developed in accordance with City's laws, ordinances, rules, regulations, and
policies existing as of the effective date of this Agreement.
1.4. The Annexation. The City has applied to the Local Agency Formation
Commission ("LAFCO") for annexation of Sphere of Influence Planning Area 1 "The Otay
Parcel", Planning Area 2 "Inverted L" and the Mary Patrick Estate Parcel (see Attachment
"B").
1.5. Sphere of Influence. A City application is pending before LAFCO to have the
Otay Valley Parcel included within City's sphere of influence. On February 5,1996 the Local
Agency Formation Commission approved the inclusion of approximately 7,600 acres into the
City Sphere of Influence (Sphere of Influence Planning Area 2 and the northern two thirds of
Planning Area 1), and designated the Otay River Valley and Village 3 as special study areas.
1.6. Owner Consent. City desires to have the cooperation and consent of Owner
to include the Property in the Annexation in order to better plan, finance, construct and
maintain the infrastructure for the Otay Valley Parcel; and Owner desires to give its
cooperation and consent, provided that it obtains certain assurances, as set forth in this
Agreement.
1.7. City Ordinance. On , 1996, the City Council adopted Ordinance
No. approving this Agreement. The ordinance becomes effective on
1996.
2. DEFINITIONS. In this Agreement, unless the context otherwise requires:
2.1. "Annexation" means the proposed annexation of that portion of the Otay Ranch
into the City as depicted on Exhibit "B".
2.2. "Builder" means a third party to whom Owner has sold or conveyed property
within the Property for purposes of its improvement for residential, commercial, industrial or
other use.
2.3. "City" means the City of Chula Vista, in the County of San Diego, State of
California.
2.4. "City Council" means the City of Chula Vista City Council.
2.5. "County" means the County of San Diego, State of California.
55:69295.3:46027.002
3
2.6. "Development Impact Fee (DIF)" means fees imposed upon new development
pursuant to the City of Chula Vista Development Impact Fee Program, for example, including
but not limited to the Transportation Development Impact Fee Program, the Interim SR-125
Development Impact Fee Program, the Salt Creek Sewer DIF and the Public Facilities DIF.
2.7. "Existing Project Approvals" means (i) the common law vested right to continue
use of the Property for Rock Quarry Operations; (ii) all discretionary approvals affecting the
Property which have been approved or established by the County in conjunction with, or
preceding, the Effective Date consisting of, but not limited to, the Reclamation Plan, all as
may be amended from time to time consistent with this Agreement; (iii) all discretionary
approvals affecting the Property which have been approved or established by City in
conjunction with, or preceding, the Effective Date consisting of, but not limited to, the pre-
zoning of the Property to City's P-C Planned Community Zone, the Otay Ranch Reserve
Fund Program adopted pursuant to City Resolution No. 1888, and the Chula Vista General
Plan open space designation, all as may be amended from time to time consistent with this
Agreement; and (iv) all laws, rules, regulations, policies, ordinances or standards as of the
Effective Date which do not conflict with this Agreement.
2.8. "Final Map(s)" means any final subdivision map for all or any portion of the
Property, other than the Super Block Final Maps (A maps).
2.9. "Future Discretionary Approvals" means all permits and approvals by City granted
after the Effective Date and excluding Existing Project Approvals, including, but not limited
to: (i) grading permits; (ii) site plan reviews; (iii) design guidelines and reviews; (iv) precise plan
reviews; (v) subdivisions of the Property or re-subdivisions of the Property previously
subdivided pursuant to the Subdivision Map Act; (vi) conditional use permits; (vii) variances;
(viii) encroachment permits; (ix) Sectional Planning Area plans; (x) zone reclassifications; (xi)
general plan amendments; (xii) any preserve conveyance plan; and (xi) all other reviews,
permits, and approvals of any type which may be required from time to time to authorize
public or private on- or off-site facilities which are a part of the Project.
2.10. "Owner" means United Enterprises, Ltd., a California limited partnership, and
its successors-in-interest.
2.11. "Planning Commission" means the Planning Commission of the City of Chula
Vista.
2.12. "Preserve Conveyance Plan" means a plan that designates the specific parcel(s) of
land or the amount of fees to be paid and policies for the orderly conveyance of the Otay
Ranch land to a preserve owner manager. The purpose of the plan is to fulfill the obligation
to convey resource sensitive land and to mitigate the environmental impact of development
on sensitive species.
2.13. "Project" means the physical development of the private and public improvements
on the Property as provided for in the Existing Project Approvals and as may be authorized
by the City in Future Discretionary Approvals.
55:69295.3:46027.002
4
2.14. "Property" means the real property described in Paragraph 1.1.
2.15. "Public Facility" or "Public Facilities" means those public facilities described in
the Otay Ranch Facility Implementation Plan.
2.16. "Rock Quarry Operations" means the mmmg and crushing of rock, the
processing of rock through a cement treated base plant, and the sale and trucking of rock and
cement treated base materials.
2.17. "Subdivision Map Act" means the California Subdivision Map Act, Government
Code Section 66410, et seq., and its amendments as may from time to time be adopted.
2.18. "Substantial Compliance" means that the party charged with the performance of
a covenant herein has sufficiently followed the terms of this Agreement so as to carry out the
intent of the parties in entering into this Agreement.
2.19. The "Term" of this Agreement means the period defined in Paragraph 3, below.
2.20. "Threshold" means the facility thresholds set forth in the City's Municipal Code
Section 19.19.040.
2.21. "Ultimate Development" means the planning and development of the Property
for uses other than those related to Rock Quarry Operations.
3. TERM. This Agreement shall become effective as a development agreement upon the
effective date of the Annexation ("the Effective Date"); provided, however, that if the
Annexation does not occur on or before January 1, 1997, this Agreement shall be null and
void. Any of the foregoing to the contrary notwithstanding, from the effective date of the
ordinance approving this Agreement, set forth in Paragraph 1.7, and unless or until this
Agreement becomes null and void, Owner shall be bound by the terms of Paragraph 4. The
Term of this Agreement for purposes other than Paragraph 4 shall begin upon the Effective
Date, and shall continue for a period of twenty (20) years ("the Term"). The Term shall also
be extended for any period of time during which issuance of building permits to Owner is
suspended for any reason other than the default of Owner, and for a period of time equal to
the period of time during which any action by City or court action limits the processing of
future discretionary approvals, issuance of building permits or any other development of the
Property consistent with this Agreement.
4. OWNER CONSENT TO A~XATION. Owner. hereby consents to and shall
cooperate with the applications of City to declare that the Otay Valley Parcel is within City's
sphere of influence and to annex the Otay Valley Parcel to the City; provided, however, that
Owner may withdraw such consent and withhold further cooperation if the City, prior to the
Effective Date, adopts rules, regulations, ordinances, policies, conditions, environmental
regulations, phasing controls, exactions, entitlements, assessments or fees applicable to and
governing development of the Property which are inconsistent with, or render impractical
development of the Property according to the commitments of City set forth in Paragraphs
5.1.1 through 5.1.4, below.
55:69295.3:46027.002
5
5. VESTED RIGHTS. Notwithstanding any future action or inaction of City during the
term of this Agreement, whether such action is by ordinance, resolution or policy of City,
Owner shall have a vested right, except as may be otherwise provided in this Paragraph 5, to
use and develop the Property in accordance with:
5.1. EXISTING AND RELATED USES.
5.1.1. Owner will be allowed to continue to use the Property for Rock Quarry
Operations for the Term of this Agreement and for such longer period of time as is provided
pursuant to the Existing Project Approvals and any future permits and applications issued by
City;
5.1.2. City shall diligently process any applications for related and concurrent uses
of the Propeny (including but not limited to asphalt and concrete batch plants, sand and gravel
operations, vehicle and equipment maintenance, office/administrative functions, the
manufacturing, sales, and leasing of building and farm materials and equipment, and the
trucking of all such materials and equipment). City acknowledges that such applications could
include application(s) for general plan amendment (s) , re-zone(s), subdivision map(s), conditional
use permit(s), building permit(s), or other entitlements or permits;
5.1.3. City shall allow Owner to proceed with planning of the Property for uses
other than those related to Rock Quarry Operations (the "Ultimate Development"), and for
purposes of entitlements the Property shall be treated on an equal basis, first-come first-served,
with other properties in the area of the Annexation; and
5.1.4. To the extent any of the foregoing commitments of City, issued at Owner's
application or request, are embodied in changes to the rules, regulations, ordinances, policies,
conditions, environmental regulations, phasing controls, exactions, entitlements, assessments,
and fees applicable to and governing development of the Property, whether adopted before or
after the Effective Date, such changes but only to the extent they are necessitated by Owner's
application or request, shall be deemed applicable to the Property without change to this
Agreement.
5.2. Development of Property. The development of the Property will be governed by
this Agreement and Existing Project Approvals and such development shall comply and be
governed by all rules, regulations, policies, resolutions, ordinances, and standards in effect as
of the Effective Date subject to the provisions of Paragraph 5.3 below. The City shall retain
its discretionary authority as to Future Discretionary Approvals, provided however, such
Future Discretionary Approvals shall be regulated by the Existing Project Approvals, this
Agreement, and City rules, regulations, standards, ordinances, resolutions and policies in effect
on the Effective Date of this Agreement and subject to Paragraph 5.3.
Notwithstanding the foregoing, City may make such changes to City's Growth Management
Ordinance applicable to the Project as are reasonable and consistent with the purpose and
intent of the existing Growth Management Ordinance and which are generally applicable to
all private projects citywide or east of 1-805 or within a specific benefit, fee or reimbursement
district created pursuant to the California Government Code.
55:69295.3:46027.002
6
5.2.1. New or Amended Rules. Re~lations. Policies. Standards. Ordinances and
Resolutions. City may apply to the Project, including Future Discretionary Approvals, new
or amended rules, laws, regulations, policies, ordinances, resolutions and standards generally
applicable to all private projects east of I-80S or within a specific benefit, fee or reimbursement
district created pursuant to the California Government Code. The application of such new
rules, or amended laws, regulations, resolutions, policies, ordinances and standards will not
unreasonably prevent or delay development of the Property to the uses, densities or intensities
of development specified herein or as authorized by the Existing Project Approvals. City may
also apply changes in City laws, regulations, ordinances, standards or policies specifically
mandated by changes in state or federal law in compliance with Paragraph 13.3 herein. Owner
may elect with City's consent to have applied to the project any rules, regulations, policies,
ordinances or standards enacted after the date of this Agreement. Such an election has to be
made in a manner consistent with Paragraph 5.2.1 of this Agreement.
5.2.2. Modifications to Existin~ Proiect Approvals. It is contemplated by the
parties to this Agreement that City and Owner may mutually seek and agree to modifications
to the Existing Project Approvals. Such modifications are contemplated as within the scope
of this Agreement, and shall, upon written acceptance by all parties, constitute for all purposes
an Existing Project Approval. The parties agree that any such modifications may not
constitute an amendment to this Agreement nor require an amendment to the Agreement.
5.2.3. Future Discretionary Approvals. It is contemplated by the parties to this
Agreement that City and Owner may agree to Future Discretionary Approvals. The parties
agree that any such Future Approvals may not constitute an amendment to this Agreement
nor require an amendment to the Agreement.
5.3. Dedication and Reservation of Land for Public PUJ:poses. Except as expressly
required by this Agreement or the Existing Project Approvals and Future Discretionary
Approvals (excepting dedications required within the boundaries of any parcel created by the
subsequent subdivision of the Property as required by the Subdivision Map Act), no dedication
or reservation of real property within or outside the Property shall be required by City in
conjunction with the Project. Any dedications and reservations of land imposed shall be in
accordance with Paragraphs 7.2 and 7.8 herein.
5.4. Time for Construction and Completion of Proiect. Because the California
Supreme Court held in Pardee Construction Company v. City of Camarillo (1984) 27 CaI.3d
465, that the failure of the parties to provide for the timing of development resulted in a later-
adopted initiative restricting the timing of development to prevail over such parties' agreement,
it is the intention of the parties to this Agreement to cure that deficiency by specifically
acknowledging that timing and phasing of development is completely and exclusively governed
by the Existing Project Approvals, including the Chula Vista Growth Management Ordinance.
The purpose of the Chula Vista Growth Management Ordinance is to "control the timing and
location of development by tying the pace of development to the provision of public facilities
and improvements to conform to the City's threshold standards." (Municipal Code Section
19.09.010A.7) The findings in support of the Growth Management Ordinance conclude that
the ordinance "does not affect the number of houses which may be built." (Municipal Code
Section 19.09.010B.3) Therefore, the parties acknowledge that the Chula Vista Growth
55:69295.3:46027.002
7
Management Ordinance completely occupies the topic of development timing and phasing and
expressly precludes the adoption of housing caps, urban reserves or any other means by which
the rate of development may be controlled or regulated. The City agrees that the Owner shall
be entitled to, apply for and receive all permits necessary for the development of property,
consistent with the Growth Management Ordinance, Existing Project Approvals, Future
Discretionary Approvals and this Agreement.
5.5. Benefit of Vestin~. Nothing in this Agreement will be construed as limiting or
impairing Owner's earlier vested right, if any, to proceed with the development and use of the
Property pursuant to the Federal and State Constitutions, and pursuant to statutory and
decisional law .
5.6. Vestini: of Entitlements. All rights conferred by this Agreement vest with the
Effective Date hereof. The approval of Future Discretionary approvals shall not be deemed
to limit Owner's rights authorized by this Agreement, and once such approvals are obtained
they shall be vested to the same extent as the Existing Project Approvals. Nothing in this
Agreement shall be construed to alter the date of the vesting of Owner's rights as described
in Paragraph 1.1.1 of this Agreement.
6. DEVELOPMENT PROGRAM.
6.1. Processini: of Future Discretionary Approvals. City will accept and diligently
process development applications and requests for Future Discretionary Approvals, or other
entitlements with respect to the development and use of the Property, provided said applica-
tions and requests are in accordance with this Agreement. City costs for processing work
related to the Project, including hiring of additional City personnel and/or the retaining of
professional consultants, will be reimbursed to City by Owner.
6.2. Len~h of Validitv of Tentative Subdivision Maps. Government Code Section
66452.6 provides that tentative subdivision map(s) may remain valid for a length up to the
Term of this Agreement. City agrees that tentative subdivision map(s) not to exceed three
thousand (3,000) dwelling units shall remain valid for a term of ten (10) years. Tentative
subdivision map(s) greater than three thousand (3,000) dwelling units shall remain valid for a
term of ten (10) years plus one additional year for every three hundred (300) dwelling units
in excess of three thousand (3,000) dwe\ling units.
6.3. Pre-Final Map Development. If Owner desires to do certain work on the Property
after approval of a tentative map (for example, grading) prior to the recordation of a final map,
it may do so by obtaining a grading and/or other required approvals from City which are
authorized by City prior to recordation of a final map. Such permit shall be issued to Owner,
or its contractor, upon Owner's application, approval, and provided Owner posts a bond or
other reasonably adequate security required by City in an amount to assure the rehabilitation
of the land if the applicable final map does not record.
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8
6.4. Final Maps.
6.4.1. "A" Maps and "B" Maps. If Owner so elects, the City shall accept and
process a master subdivision or parcel map ("A" Map) showing "Super Block" lots and
backbone street dedications. "Super Block" lots shall be consistent with subsequent sectional
plan area plans, and shall not subdivide land into individual single-family lots. All "Super
Blocks" created shall have access to dedicated public streets. City shall not require improve-
ment plans in order to record a final map for any "A" Map lots, but City shall require
bonding for the completion of backbone streets prior to recording in an amount to be
determined by City. Following the approval by City of any final map for an "A" Map lot and
its recordation, Owner may convey the "Super Block" lot. The buyer of a "Super Block" lot
shall then process final improvement plans and grading plans and a final map ("B" Map) for
each "Super Block" lot which City shall process. The "B" Maps shall be in substantial
conformance with the related approved" A" Map. In the instance of the multi-family dwelling
unit areas, a separate tentative subdivision map may be submitted to City and the "B" Map(s)
for these areas may be submitted to City after the Planning Commission approves said
tentative subdivision map.
6.4.2. Recordation of Final Subdivision Map in Name of Builder or Third Party.
Owner may, if it so elects, convey to a Builder or third party any "Super Block" lot(s) shown
on the recorded Master Final Map. In such case, the Builder or third party will (i) process
final improvement and grading plans and a final map for each such "Super Block" lot, which
map City shall accept and process as subsequent phases in a multi-phase project, (ii) enter into
a subdivision improvement agreement with City with respect to the subdivision improvements
which are required for such "Super Block" lot, and (iii) provide security and insurance
satisfactory to City for the completion of the subdivision improvements.
6.4.3. Recordation of Final Subdivision Map in Owner's Name: Transfer of
Obli~ations Under Subdivision Improvement A~reement(s), If Owner so elects, it may defer
the conveyance of any "Super Block" lot to a Builder or third party until after the final map
of such "Super Block" lot has been recorded. If Owner elects to proceed in this manner, it
will enter into City's standard subdivision improvement agreement(s) with City for the
improvements required as a condition to the recordation of such map(s). Upon sale to a
Builder or third party, if such Builder or third party assumes Owner's obligations under the
improvement agreement and provides its own security and insurance for the completion of the
subdivision improvements as approved by the City, Owner shall be released from liability
under the subdivision improvement agreement(s) and Owner's security shall be released.
6.4.4. Transfer of Ri~hts and Obli~ations of Development. Whenever Owner
conveys a portion of the Property, the rights and obligations of this Agreement shall transfer
in accordance with Paragraph 15 herein.
7. OWNER'S OBLIGATIONS.
7.1. Condition to Owner's Obli~ations to Dedicate. Fund or Construct Public
Facilities. Owner agrees to develop or provide the public improvements, facilities, dedications,
or reservations of land and satisfy other exactions conditioning the development of the
55:69295.3:46027.002
9
Property which are set forth hereinbelow. The obligations of the Owner pursuant to this
Agreement are conditioned upon: (i) City not being in default of its obligations under this
agreement; and (ii) City not preventing or unreasonably delaying the development of the
property; and (iii) the Agreement having not been suspended or modified in response to
changes in state or federal law; and (iv) City's obligations having not been suspended pursuant
to Paragraph 13.2.
7.2. Dedications and Reservations of Land for Public Puq>oses. The policies by which
property will be required to be reserved, dedicated or improved for public purposes are
identified in the Existing Project Approvals. A more precise delineation of the property to
be preserved, dedicated or improved for public purposes shall occur as part of Future
Discretionary Approvals, consistent with the Existing Project Approvals.
7.3. Growth Mana~ement Ordinance. Owner shall commit the public facilities and
City shall issue building permits as provided in this Paragraph. City shall have the right to
withhold the issuance of building permits any time after City reasonably determines a
Threshold has been exceeded, unless and until Owner has mitigated the deficiency in
accordance with City's Growth Management Ordinance.
Owner agrees that building permits may be withheld where the public facilities described in
the Existing Project Approvals/Future Discretionary Approvals required for a particular
Threshold have not been committed.
In the event a Threshold is not met and future building permit issuance may be withheld, the
notice provisions and procedures contained in Section 19.09.100C of the Municipal Code will
be followed. In the event the issuance of building permits is suspended pursuant to the
provisions herein, such suspension shall not constitute a breach of the terms of this Agreement
by Owner. Furthermore, any such suspension which is not caused by the actions or omissions
of Owner, shall toll the term of this Agreement as provided for in Section 16.12 of this
Agreement, and suspend Owner's obligations pursuant to this Agreement.
7.3.1. Required Condemnation. City and Owner recognize that certain of the
public facilities identified in the Existing Project Approvals/Future Discretionary Approvals
and required to comply with a Threshold are located on properties which neither Owner nor
City has, or will have, title to or control of. City shall identify such property or properties
and at the time of filing of the final map commence timely negotiations or, where the property
is within City's jurisdiction, commence timely proceedings pursuant to Title 7 (commencing
with $ 1230.010) of Part 3 of the Code of Civil Procedure to acquire an interest in the
property or properties. Owner's share of the cost involved in any such acquisition shall be
based on its proportionate share of the public facility as defined in the Existing Project
Approvals/Future Discretionary Approvals. Nothing in this Agreement shall be deemed to
preclude City from requiring Owner to pay the cost of acquiring such off-site land. For that
portion of the cost beyond Owner's fair share responsibility, City shall take all reasonable
steps to establish a procedure whereby Owner is reimbursed for such costs beyond its fair
share.
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10
7.3.2. Information Re~ardin~ Thresholds. Upon Owner's written requests of the
City Manager, City will provide Owner with information regarding the current status of a
Threshold. Owner shall be responsible for any staff costs incurred in providing said written
response.
7.4. Improvements Required by a Subdivision Map. As may be required pursuant to
the terms of a subdivision map, it shall be the responsibility of Owner to construct the
improvements required by a subdivision map. Where Owner is required to construct a public
improvement which has been identified as the responsibility of another party or to provide
public improvements of supplemental size, capacity, number or length benefiting property not
within the subdivision, City shall process a reimbursement agreement to Owner in accordance
with Article 6 of Chapter 4 of the Subdivision Map Act, commencing with Government Code
Section 66485, and Paragraph 7.5, below.
7.5. Facilities Which Are the Obli~ations of Another Party. or Are of Excessive Size.
Capacity. Len~h or Number. Owner may offer to advance monies and/or construct public
improvements which are the responsibility of another land owner, or outside City's
jurisdictional boundaries, or which are of supplemental size, capacity, number or length for
the benefit of land not within the Property. City, where requesting such funding or
construction of oversized public improvements, shall consider after a public hearing,
contemporaneous with the imposition of the obligation, the formation of a reimbursement
district, assessment district, facility benefit assessment, or reimbursement agreement or other
reimbursement mechanism.
7.6. Pioneerinj; of Facilities. To the extent Owner itself constructs (i.e., "Pioneers")
any public facilities or public improvements which are covered by a DIF Program, Owner
shall be given a credit against DIFs otherwise payable, subject to City's Director of Public
Works reasonable determination that such costs are allowable under the applicable DIF
Program. It is specifically intended that Owner be given DIF credit for the DIF Program
improvements it makes. The fact that such improvements may be financed by an assessment
district or other financing mechanism, shall not prevent DIF credit from being given to the
extent that such costs are allowed under the applicable DIF Program
7.7. Insurance. Owner shall name City as additional insured for all insurance policies
obtained by Owner for the Project as pertains to the Owner's activities and operation on the
Project. .
7.8. Other Land Owners. Owner hereby agrees to dedicate adequate rights-of-way
within the boundaries of the Property for other land owners to "Pioneer" public facilities on
the Property; provided, however, as follows: (i) dedications shall be restricted to those
reasonably necessary for the construction of facilities identified in City's adopted public facility
plans; (ii) this provision shall not be binding on the successors-in-interest or assignees of Owner
following recordation of the final "Super Block" or "A" Map; and (iii) City shall use its
reasonable best efforts to obtain agreements similar to this Paragraph from other Owners and
to obtain equitable reimbursement for Owner for any excess dedications.
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11
8. DEVELOPMENT IMPACT FEES.
8.1. Existinl: Development Impact Fee Prol:ram Payments. Owner shall pay to City
a DIF, or construct improvements in lieu of payment, for improvements which are conditions
of a tentative subdivision map upon the issuance of building permits(s), or at a later time as
specified by City ordinance, the Subdivision Map Act, or Public Facility Financing Plan
(PFFP). The DIF will be in the amount in effect at the time payment is made and may only
be increased pursuant to Paragraph 8.6 herein.
8.2. Other Undeveloped Properties. City will use its reasonable best efforts to impose
and collect, or cause the imposition and collection of, the same DIF program on all the
undeveloped real properties which benefit from the provision of the public facility through
the DIF program, or provided as a condition of Project Approvals.
8.3. Use of Development Impact Fee Proj;ram. The DIF amounts paid to City by
Owner and others with respect to the Area of Benefit shall be placed by City in a capital
facility fund account established pursuant to California Government Code Sections 66000-
66009. City shall expend such funds only for the projects described in the adopted fee
program as may be modified from time to time. City will use its reasonable best efforts to
cause such projects to be completed as soon as practicable; however, City shall not be obligated
,to use its general funds for such projects.
8.4. Withholdin~ of Permits. Owner agrees that City shall have the right to withhold
issuance of the building permit for any structure or improvement on the Property unless and
until the DIF is paid for such structure or improvement.
8.5. Development Impact Fee Credit. Uponthecompletionofanypublicfacility,City
shall immediately credit Owner with the appropriate amount of cash credits ("EDUs") as
determined by Owner and City. However, if the improvements are paid for through an
Assessment District, City shall credit the Owner with the appropriate number of Equivalent
Dwelling Unit Credits (EDU's). Owner shall be entitled to apply any and all credits accrued
pursuant to this Paragraph toward the required payment of future DIF for any phase, stage or
increment of development of the Project.
8.6. Modification of Development Impact Fees. The parties recognize that from time
to time during the duration of this Agreement it will be necessary for City to update and
modify its DIF fees. Such reasonable modifications are contemplated by City and Owner and
shall not constitute a modification to this Agreement so long as: (i) the modification
incorporates the reasonable costs of providing facilities identified in the Existing Project
Approvals; (ii) are based upon methodologies in substantial compliance with the methodology
contained in the existing DIF programs; or other methodology approved by the City Council
following a public hearing; and (iii) comply with the provisions of Government Code Sections
66000-66009.
8.7. Standards for Financinl: Oblil:ations of Owner. In connection with the
development of the Property, the following standards regarding the financing of public
improvements shall apply:
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12
8.7.1. Owner shall participate in the DIF Program for the Otay Valley Parcel with
other owners in proportion to the total dwelling units or equivalent dwelling units allowed
on the Property as compared with the total of such units allowed on properties in that
particular DIF or by some other equitable methodology decided by the City Council.
8.7.2. City shall diligently pursue the requirements that the Eastern Territories' DIF
requires offsite third parties and adjacent jurisdictions to bear their fair share of all Otay River
Valley crossings.
9. CITY OBUGATIONS.
9.1. Urban Infrastructure. To the extent it is within the authority of City to provide,
City shall accommodate urban infrastructure to the Project, consistent with Existing Project
Approvals. Where it is necessary to utilize City property to provide urban infrastructure
consistent with the Existing Project Approvals, City agrees to make such land available for
such uses, provided that City if it so chooses is compensated at Fair Market Value for the
property. To the extent that the provision of urban infrastructure is within the authority of
another public or quasi-public agency or utility, City agrees to fully cooperate with such
agency or agencies to accommodate the urban infrastructure, consistent with Existing Project
Approvals. Urban infrastructure shall include, but not be limited to gas, electricity, telephone,
cable and facilities identified in the Otay Ranch Facility Implementation Plan.
9.2. Sewer Capacity. City agrees to provide adequate sewer capacity for the Project
upon the payment of ordinary and necessary sewer connection, capacity and/or service fees.
10. ANNUAL REVIEW.
10.1. City and Owner Responsibilities. City will, at least every twelve (12) months
during the Term of this Agreement, pursuant to California Government Code Section 65865.1,
review the extent of good faith substantial compliance by Owner with the terms of this
Agreement. Pursuant to California Government Code Section 65865.1, as amended, Owner
shall have the duty to demonstrate by substantial evidence its good faith compliance with the
terms of this Agreement at the periodic review. Either City or Owner may address any
requirement of the Agreement during the review.
10.2. Evidence. The parties recognize that this Agreement and the documents
incorporated herein could be deemed to contain hundreds of requirements and that evidence
of each and every requirement would be a wasteful exercise of the parties' resources.
Accordingly, Owner shall be deemed to have satisfied its good faith compliance when it
presents evidence of substantial compliance with the major provisions of this Agreement.
Generalized evidence or statements shall be accepted in the absence of any evidence that such
evidence is untrue.
10.3. Review Letter. If Owner is found to be in compliance with this Agreement after
the annual review, City shall, within forty-five (45) days after Owner's written request, issue
a review letter in recordable form to Owner ("Letter") stating that based upon information
known or made known to the Council, City Planning Commission and/or the City Planning
55:69295.3:46027.002
13
Director, this Agreement remains in effect and Owner is not in default. Owner may record
the Letter in the Official Records of the County.
lOA. Failure of Periodic Review. City's failure to review at least annually Owner's
compliance with the tenns and conditions of this Agreement shall not constitute, or be
asserted by City or Owner as, a breach of the Agreement.
11. DEFAULT.
11.1. Events of Default. A default under this Agreement shall be deemed to have
occurred upon the happening of one or more of the following events or conditions:
11.1.1. A warranty, representation or statement made or furnished by Owner to
City is false or proves to have been false in any material respect when it was made.
11.1.2. A finding and determination by City made following a periodic review
under the procedure provided for in California Government Code Section 65865.1 that upon
the basis of substantial evidence Owner has not complied in good faith with one or more of
the terms or conditions of this Agreement.
11.1.3. City does not accept, review, or consider requested development permits or
entitlements submitted in accordance with the provisions of this Agreement.
11.1.4. Any other act or omission by City or Owner which materially interferes
with the terms of this Agreement.
11.2. Procedure Upon Default.
11.2.1. Upon the occurrence of default by the other party, City or Owner may
terminate this Agreement after providing the other party thirty (30) days written notice
specifying the nature of the alleged default and, when appropriate, the manner in which said
default may be satisfactorily cured. After proper notice and expiration of said thirty (30) day
cure period without cure, this Agreement may be terminated. In the event that City's or
Owner's default is not subject to cure within the thirty (30) day period, City or Owner shall
be deemed not to remain in default in the event that City or Owner commences to cure
within such thirty (30) day period and diligently prosecutes such cure to completion. Failure
or delay in giving notice of any default shall not constitute a waiver of any default, nor shall
it change the time of default. Notwithstanding any other provision of this Agreement, City
reserves the right to fonnulate and propose to Owner options for curing any defaults under
this Agreement for which a cure is not specified in this Agreement.
11.2.2. City does not waive any claim of defect in perfonnance by Owner if, on
periodic review, City does not propose to modify or terminate this Agreement.
11.2.3. Subject to Paragraph 16.12 of this Agreement, the failure of a third person
shall not excuse a party's nonperformance under this agreement.
55:69295.3:46027.002
14
11.2.4. All other remedies at law or in equity which are consistent with the
provisions of this Agreement are available to City and Owner to pursue in the event there is
a breach.
12. ENCUMBRANCES AND RELEASES ON PROPERTY.
12.1. Discretion to Encumber. This Agreement shall not prevent or limit Owner in
any manner at Owner's sole discretion, from encumbering the Property, or any portion of the
Property, or any improvement on the Property, by any mortgage, deed of trust, or other
security device securing financing with respect to the Property or its improvement.
12.2. Mort~al:ee Ril:hts and Obli~ations. The mortgagee of a mortgage or beneficiary
of a deed of trust encumbering the Property, or any part thereof, and their successors and
assigns shall, upon written request to City, be entitled to receive from City written
notification of any default by Owner of the performance of Owner's obligations under the
Agreement which has not been cured within thirty (30) days following the date of default.
12.3. Releases. City agrees that upon written request of Owner and payment of all fees
and performance of the requirements and conditions required of Owner by this Agreement
with respect to the Property, or any portion thereof, City may execute and deliver to Owner
appropriate release(s) of further obligations imposed by this Agreement in form and substance
acceptable to the San Diego County Recorder and title insurance company, if any, or as may
otherwise be necessary to effect the release. City Manager shall not unreasonably withhold
approval of such release(s).
12.4. Oblil:ation to Modify. City acknowledges that the lenders providing financing
for the Project may require certain modifications to this Agreement and City agrees, upon
request from time to time, to meet with Owner and/or representatives of such lenders to
negotiate in good faith any such requirement for modification. City will not unreasonably
withhold its consent to any such requested modification.
13. MODIFICATION OR SUSPENSION.
13.1. Modification by Mutual Consent. This Agreement may be modified, from time
to time, by the mutual consent of the parties only in the same manner as its adoption by an
ordinance as set forth in California Government Code Sections 65867, 65867.5 and 65868. The
term, "this Agreement" as used in this Agreement, will include any such modification properly
approved and executed.
13.2. Unforeseen Health. Safe1;y or General Welfare Circumstances. If, as a result of
facts, events, or circumstances presently unknown, unforeseeable, and which could not have
been known to the parties prior to the commencement of this Agreement, City finds that
failure to suspend this Agreement would place the residents of City in a severe and immediate
emergency to their health, safety, or general welfare, City shall:
55:69295.3:46027.002
15
13.2.1. Notification of Unforeseen Circumstances. Notify Owner of (i) City's
determination; and (ii) the reasons for City's determination, and all facts upon which such
reasons are based;
13.2.2. Notice of Hearin~. Notify Owner in writing at least fourteen (14) days
prior to the date, of the date, time and place of the hearing and forward to Owner a minimum
of ten (10) days prior to the hearings described in Paragraph 13.2.3, all documents related to
such determination and reasons therefor; and
13.2.3. Hearin~. Hold a hearing on the determination, at which hearing Owner
will have the right to address the City Council. At the conclusion of said hearing, City may
take action to suspend this Agreement as provided herein. City may suspend this Agreement
if, at the conclusion of said hearing, based upon the evidence presented by the parties, City
finds failure to suspend would place the residents of City in a severe and immediate emergency
to their health, safety, or general welfare.
13.3. Chan~e in State or Federal Law or Re~lations. If any state or federal law or
regulation enacted during the Term of this Agreement, or the action or inaction of any other
affected governmental jurisdiction, precludes compliance with one or more provisions of this
Agreement, or requires changes in plans, maps, or permits approved by City, the parties will
act pursuant to Paragraphs 13.3.1 and 13.3.2, below.
13.3.1. Notice: Meetin~. The party first becoming aware of such enactment or
action or inaction will provide the other party(ies) with written notice of such state or federal
law or regulation and provide a copy of such law or regulation and a statement regarding its
conflict with the provisions of this Agreement. The parties will promptly meet and confer
in a good faith and reasonable attempt to modify or suspend this Agreement to comply with
such federal or state law or regulation.
13.3.2. Hearin~. If an agreed upon modification or suspension would not require
an amendment to this Agreement, no hearing shall be held. Otherwise, the matter of such
federal or state law or regulation will be scheduled for hearing before City. Fifteen (15) days'
written notice of such hearing shall be provided to Owner, and City, at such hearing, will
determine and issue findings on the modification or suspension which is required by such
federal or state law or regulation. Owner, at the hearing, shall have the right to offer
testimony and other evidence. If the parties fail to agree after said hearing, the matter may
be submitted to mediation pursuant to Paragraph 13.3.3, below. Any modification or
suspension shall be taken by the affirmative vote of not less than a majority of the authorized
voting members of City. Any suspension or modification may be subject to judicial review
in conformance with Paragraph 16.19 of this Agreement.
13.3.3 Mediation of Disputes. In the event the dispute between the parties with
respect to the provisions of this Paragraph has not been resolved to the satisfaction of both
parties following City hearing required by Paragraph 13.3.2, the matter shall be submitted to
mediation prior to the filing of any legal action by any party. The mediation will be
conducted by the San Diego Mediation Center; if San Diego Mediation Center is unable to
conduct the mediation, the parties shall submit the dispute for mediation to the Judicial
55:69295.3:46027.002
16
Arbitration and Mediation Service or similar organization and make a good faith effort to
resolve the dispute. The cost of any such mediation shall be divided equally between Owner
and City.
14. DISTRICTS. PUBLIC FINANCING MECHANISMS.
This Agreement and the Existing Project Approvals recognize that assessment districts,
community facility districts, or other public financing mechanisms, may be necessary to
finance the cost of public improvements borne by this Project. If Owner, pursuant to the
Existing Project Approvals/Future Discretionary Approvals, is required to install
improvements through the use of assessment districts, community facility districts, or other
public financing mechanisms, City shall initiate and conclude appropriate proceedings for the
formation of such financing district or funding mechanism, under applicable laws or
ordinances. Owner may request that City utilize any other financing methods which may
become available under City laws or ordinances. All costs associated with the consideration
and formation of such financing districts or funding mechanisms shall be paid by Owner
subject to reimbursement, as may be legally authorized out of the proceeds of any financing
district or funding mechanism.
15. ASSIGNMENT AND DELEGATION.
15.1 Assi~nment. Owner shall have the right to transfer or assign its interest in the
Property, in whole or in part, to any persons, partnership, joint venture, firm, or corporation
at any time during the Term of this Agreement with the consent of City. Owner also shall
have the right to assign or transfer all or any portion of its interest or rights under this
Agreement to third parties acquiring an interest or estate in the Property at any time during
the Term of this Agreement with the consent of City.
15.2 Dele~ation. In addition, Owner shall have the right to delegate or transfer its
obligations under this Agreement to third parties acquiring an interest or estate in the Property
after receiving the prior written consent of the City Manager, which consent shall not be
unreasonably withheld, delayed, or conditioned. Once the City Manager has consented to a
transfer, delivery to and acceptance by the City Manager of an unqualified written assumption
of Owner's obligations under this Agreement by such transferee shall relieve Owner of the
obligations under this Agreement to the extent the obligations have been expressly assumed
by the transferee. Such transferee shall not be entitled to amend this Agreement without the
written consent of the entity that, as of the Effective Date, is Owner, which consent shall not
be unreasonably withheld, delayed, or conditioned. The entity that is Owner as of the
Effective Date, however, shall be entitled to amend this Agreement without the written
consent of such transferee.
16. MISCELLANEOUS PROVISIONS.
16.1 Bindin& Effect of A~reement. Except to the extent otherwise provided in this
Agreement, the burdens of this Agreement bind, and the benefits of this Agreement inure, to
City's and Owner's successors-in-interest and shall run with the land.
55;69295.3;46027.002
17
16.2 Relationship of City and Owner. The contractual relationship between City
and Owner arising out of this Agreement is one of independent contractor and not agency.
This Agreement does not create any third-party beneficiary rights.
16.3 Notices. All notices, demands, and correspondence required or permitted by this
Agreement shall be in writing and delivered in person, or mailed by first-class or certified mail,
postage prepaid, addressed as follows:
If to City, to: City of Chula Vista
276 Fourth Avenue
Chula Vista, CA 91910
Attention: City Manager
If to Owner, to: United Enterprises, Ltd.
1007 Fifth Avenue, Suite 2000
San Diego, CA 92101
Attention: Mr. Patrick Patek
With a copy to: Solomon Ward Seidenwurm & Smith
401 "B" Street, Suite 1200
San Diego, CA 92101
Attention: Cynthia 1. Eldred, Esq.
City or Owner may change its address by giving notice in writing to the other. Thereafter,
notices, demands, and correspondence shall be addressed and transmitted to the new address.
Notice shall be deemed given upon personal delivery, or, if mailed, two (2) business days
following deposit in the United States mail.
16.4 Rules of Construction. In this Agreement, the use of the singular includes the
plural; the masculine gender includes the feminine; "shall" is mandatory; "may" is permissive.
16.5 Entire Al:reement. Waivers. and Recorded Statement. This Agreement
constitutes the entire understanding and agreement of City and Owner with respect to the
matters set forth in this Agreement. This Agreement supersedes all negotiations or previous
agreements between City and Owner respecting this Agreement. All waivers of the provisions
of this Agreement must be in writing and signed by the appropriate authorities of City and
Owner. Upon the completion of performance of this Agreement, or its revocation or
termination, a statement evidencing completion, revocation, or termination signed by the
appropriate agents of City shall be recorded in the Official Records of San Diego County,
California.
16.6 Proiect as a Private Undertakinl:' It is specifically understood by City and
Owner that (i) the Project is a private development; (ii) City has no interest in or
responsibilities for or duty to third parties concerning any improvements to the Property until
City accepts the improvements pursuant to the provisions of the Agreement or in connection
55:69295.3:46027.002
18
with subdivision map approvals; and (iii) Owner shall have the full power and exclusive
control of the Property subject to the obligations of Owner set forth in this Agreement.
16.7 Incoq)Qration of Recitals. The recitals set forth in Paragraph 1 of this
Agreement are part of this Agreement.
16.8 Captions. The captions of this Agreement are for convenience and reference
only and shall not define, explain, modify, construe, limit, amplify, or aid in the inter-
pretation, construction, or meaning of any of the provisions of this Agreement.
16.9 Consent. Where the consent or approval of City or Owner is required or
necessary under this Agreement, the consent or approval shall not be unreasonably withheld,
delayed, or conditioned.
16.10 Covenant of Cooperation. City and Owner shall cooperate and deal with each
other in good faith, and assist each other in the performance of the provisions of this
Agreement.
16.11 Recordin~. The City Clerk shall cause a copy of this Agreement to be recorded
with the Office of the County Recorder of San Diego County, California, within ten (10) days
following the Effective Date.
16.12 Delay. Extension of Time for Performance. In addition to any specific provision
of this Agreement, performance by either City or Owner of its obligations hereunder shall be
excused, and the Term of this Agreement and the Development Plan extended, during any
period of delay caused at any time by reason of any event beyond the control of City or
Owner which prevents or delays and impacts City's or Owner's ability to perform obligations
under this Agreement, including, but not limited to, acts of God, enactment of new conflicting
federal or state laws or regulations (example: listing of a species as threatened or endangered),
judicial actions such as the issuance of restraining orders and injunctions, riots, strikes, or
damage to work in process by reason of fire, floods, earthquake, or other such casualties. If
City or Owner seeks excuse from performance, it shall provide written notice of such delay
to the other within thirty (30) days of the commencement of such delay. If the delay or
default is beyond the control of City or Owner, and is excused, an extension of time for such
cause will be granted in writing for the period of the enforced delay, or longer as may be
mutually agreed upon.
16.13 Covenant of Good Faith and Fair Dealin~s. No party shall do anything which
shall have the effect of harming or injuring the right of the other parties to receive the benefits
of this Agreement; each party shall refrain from doing anything which would render its
performance under this Agreement impossible; and each party shall do everything which this
Agreement contemplates that such party shall do in order to accomplish the objectives and
purposes of this Agreement.
16.14 Operatin~ Memorandum. The parties acknowledge that the provisions of this
Agreement require a close degree of cooperation between City and Owner, and that the
refinements and further development of the Project may demonstrate that minor changes are
55:69295.3:46027.002
19
appropriate with respect to the details of performance of the parties. The parties, therefore,
retain a certain degree of flexibility with respect to those items covered in general under this
Agreement. When and if the parties mutually find that minor changes or adjustments are
necessary or appropriate, they may effectuate changes or adjustments through operating
memoranda approved by the parties. For purposes of this Paragraph 16.14, the City Manager,
or his designee, shall have the authority to approve the operating memoranda on behalf of
City. No operating memoranda shall require notice or hearing or constitute an amendment
to this Agreement.
16.15 Time of Essence. Time is of the essence in the performance of the provisions
of this Agreement as to which time is an element.
16.16 Amendment or Cancellation of Ai:reement. This Agreement may be amended
from time to time or canceled by the mutual consent of City and Owner only in the same
manner as its adoption, by an ordinance as set forth in California Government Code Section
65868, and shall be in a form suitable for recording in the Official Records of San Diego
County, California. The term "Agreement" shall include any such amendment properly
approved and executed. City and Owner acknowledge that the provisions of this Agreement
require a close degree of cooperation between them, and that minor or insubstantial changes
to the Project and the Development Plan may be required from time to time to accommodate
design changes, engineering changes, and other refinements. Accordingly, changes to the
Project and the Development Plan that do not result in a change in use, an increase in density
or intensity of use, cause new or increased environmental impacts, or violate any applicable
health and safety regulations, may be considered minor or insubstantial by the City Manager
and made without amending this Agreement.
16.17 Estoppel Certificate. Within 30 calendar days following a written request by
any of the parties, the other parties to this Agreement shall execute and deliver to the
requesting party a statement certifying that (i) this Agreement is unmodified and in full force
and effect, or if there have been modifications hereto, that this Agreement is in full force and
effect as modified and stating the date and nature of such modifications; (ii) there are no
known current uncured defaults under this Agreement, or specifying the dates and nature of
any such default; and (iii) any other reasonable information requested. The failure to deliver
such a statement within such time shall constitute a conclusive presumption against the party
which fails to deliver such statement that this Agreement is in full force and effect without
modification, except as may be represented by the requesting party, and that there are no
uncured defaults in the performance of the requesting party, except as may be represented by
the requesting party.
16.18 Severabilitv. If any material provision of this Agreement is held invalid, this
Agreement will be automatically terminated unless within 15 days after such provision is held
invalid the party holding rights under the invalidated provision affirms the balance of this
Agreement in writing. This provision will not affect the right of the parties to modify or
suspend this Agreement by mutual consent pursuant to Paragraph 12.4.
16.19 Institution of Lei:al Proceedini:. In addition to any other rights or remedies, any
party may institute legal action to cure, correct, or remedy any default, to enforce any
55:69295.3:46027.002
20
covenants or agreements herein, or to enjoin any threatened or attempted violation thereof;
to recover damages for any default or to obtain any remedies consistent with the purpose of
this Agreement. Such legal actions must be instituted in the Superior Court of the County
of San Diego, State of California.
16.20 Attornevs' Fees and Costs. If any party commences litigation or other
proceedings (including, without limitation, arbitration) for the interpretation, reformation,
enforcement, or rescission of this Agreement, the prevailing party, as determined by the court,
will be entitled to its reasonable attorneys' fees and costs.
16.21 Hold Harmless. Owner agrees to and shall hold City, its officers, agents,
employees and representatives harmless from liability for damage or claims for damage for
personal injury, including death, and claims for property damage which may arise from the
direct or indirect operations of Owner or those of its contractors, subcontractors, agents,
employees or other persons acting on Owner's behalf which relate to the Project. Owner
agrees to and shall defend City and its officers, agents, employees and representatives from
actions for damage caused or alleged to have been caused by reason of Owner's activities in
connection with the Project. Owner agrees to indemnify, hold harmless, pay all costs and
provide a defense for City in any legal action filed in a court of competent jurisdiction by a
third party challenging the validity of this Agreement. The provisions of this Paragraph 16.21
shall not apply to the extent such damage, liability or claim is caused by the intentional or
negligent act or omission of City, its officers, agents, employees or representatives.
IN WITNESS WHEREOF, this Agreement has been executed by the CITY OF CHULA
VISTA, acting by and through its City Manager, pursuant to Ordinance No.
authorizing such execution, and by Owner.
Dated this _ day of
, 1996.
"OWNER"
"CITY"
UNITED ENTERPRISES, LTD.
CITY OF CHULA VISTA
By:
By:
Its:
Its:
I hereby approve the form and legality of the foregoing Agreement this _ day of
, 1996.
ANN Y. MOORE as Interim City Attorney
City of Chula Vista .
By:
55:69295.3:46027.002
21
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