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HomeMy WebLinkAboutOrd 1988-2245 Revised 12/15/87 ORDINANCE NO. 2245 AN ORDINANCE OF THE CITY OF CHULA VISTA ADOPTING THE DEVELOPMENT AGREEMENT FOR RANCHO DEL REY SPA I WHEREAS, the Rancho del Rey SPA I Development Agreement was considered by the Planning Commission at its meeting on November 4, 1987, and WHEREAS, pursuant to Government Code Section 65864 et seq., the City is authorized to enter into an development agreement, and WHEREAS, the land uses allowed and the public improvements required by the development agreement are based on the City's General Plan, the E1 Rancho del Rey Specific Plan, the Rancho del Rey General Development Plan, the Rancho del Rey Sectional Planning Area (SPA) I Plan, and the Rancho del Rey Public Facilities Plan and Financing Analysis. WHEREAS, the City Council of the City of Chula Vista finds that the provisions of the Agreement are consistent with the General Plan and all applicable specific plans because the land uses allowed and the public improvements required are based on those found in the General Plan, the E1 Rancho del Rey Specific Plan, the Rancho del Rey General Development Plan, the P ~ho del Rey Sectional Planning Area (SPA) I Plan and the ~ ~ic Facilities Plan and Financing Analysis, and WHEREAS, the development agreement refers to the proposed "development impact fee~ (DIF) which will be coming before the Council at the first meeting in January and, therefore, should be contingent upon the passage of the "DIF". NOW, THEREFORE the City Council of the City of Chula Vista ordains as follows: SECTION I: Rancho del Rey SPA I Development Agreement. In accordance with Section 65864 et seq., the City Council of the City of Chula Vista approves that certain document entitled "Development Agreement" for the Rancho del Rey SPA I development contingent upon passage of the "DIF". A copy of said Development Agreement is attached hereto and incorporated herein as Exhibit "A". SECTION II: This ordinance shall take effect and be in full force on the thirty-first day from and after its passage. Presented by Approved as to form by ~'~r~e~'Kv~em Of ~b~mas J. H , City AttOrney Or Planning 3620a FIRST READ AT A REGULAR MEETING OF THE CITY COUNCIL OF THE Y ( ;HULA VISTA, CALIFORNIAj HELD llecember 8 . 19 87 · AND ALLY PASSED AND ADOPTED AT A REGULAR MEETING THEREOF HELD January 5 · 88 , BY THE FOLLOWING VOTE· TO-WIT: S: Councilmen Moore, McCandliss, Nader, Malcolm, Cox 'ES: Councilmen None ;TAIN: Councilmen None ;ENT: Councilmen None o/~C/° ~ MayOr if of Chulo Vista FEST/~~~Cl~y'Clerk~' ~ ~.TE OF CALIFORNIA ) JNTY OF SAN DIEGO ) ss. Y OF CHULA VISTA ) I, JENNIE M. FULASZ, CMC, CITY CLERK of the City of Chulo Visto, Colifornio, HEREBY CERTIFY that the above and foregoing is o full, true ond correct copy of Ordinance 2245 ,end that the same hos not been amended or repealed. TED _ l~.~ef;) _ City Clerk ,,,W OF HULA VISTA C-660 DEVELOPMENT AGREEMENT California Government Code Sections 65864-65869.5 THIS DEVELOPMENT AGREEMENT ("this Agreement") is entered era t ("Developer") , and the CITY OF CHULA VISTA, a municipal corporation having charter powers ("City"), with reference to the recitals set forth below. 1. Recitals. 1.1 City's Authority to Enter into Development Agreement. City, as a charter city, is authorized under California Government Code Sections 65865 through 65869.5, Resolution No. 11933 , its Charter, and its self-rule powers to enter into binding development agreements with persons having legal or equitable interests in real property for the purposes of assuring, among other things, (i) certainty as to permitted land '~ses in the development of such property, and (ii) construction [ adequate public facilities to service such property. 1.2 The Property; Developer's Interest. Developer holds fee title to the property known as Rancho del Rey SPA-I described in Exhibit "A-l" ("the Property"). The Property is the subject of this Agreement. Developer is master planning the Property as the initial phase of the Rancho del Rey Planned Community. Developer represents that it has a legal interest in the Property and that Developer intends that all other persons holding legal or equitable interest in the Property be bound by this Agreement. SPA-I is a portion of the Corcoran Ranch Sectional Planning Area as described in the Specific Plan and, except for a few small parcels, Developer is the owner of the land covered by the Corcoran Ranch Sectional Planning Area. The overall real property so owned by Developer is described on Exhibit "A-2" attached hereto. Developer has proposed that this overall area be divided into four separate Sectional Planning Areas (i.e. SPAs I through IV). Reference to "SPAs I through IV" means the real property described on Exhibit "A-2". 1.3 Property Covered by this Agreement. This Develop- ment Agreement covers only the Property; provided, however, the Paragraph below entitled "Release From 1980 East H Street Agreement" also cover SPAs II through IV. The parties may, at a -1- 11/24/87 (No Threshold Vesting) ~ter date, enter in separate development agreements for each of ~s II through IV. 1.4 Benefit to City. City, by virtue of the develop- ment of the Rancho del Rey Planned Community, will receive development impact fees and other benefits. 1.5 Intentions of Parties in Entering into this Agreement. Developer and City intend to enter into this Agree- ment to: (i) assure Developer's participation in the construc- tion and financing of public facilities pursuant to the Financing Plan, (ii) provide certainty in the land use regulations and policies applicable to the development of the Property, (iii) provide Developer with a vesting of rights to proceed in accor- dance with the development of the Property as limited below, and (iv) provide that the improvements required by the SPA-I shall be completed when necessary to service the needs created by Developer's project. 1.6 Resolution No. 12934. The City and Developer each intend that the vesting provisions of this Agreement implement and make contractually binding, to the extent stated in this Development Agreement, the City's moral commitment stated in Resolution No. 12934 adopted by the City Council on March 10, 1987. 1.7 Adoption of Ordinance Approving Agreement. On cember 15 , 1987, City Council adopted Ordinance No. 2245 approving this Agreement: the Ordinance took effect on February 4, , 1988. 1.8 Findings of City Council. City Council has found that this Agreement is consistent with City's General Plan, the E1 Rancho del Rey Specific Plan, and all applicable mandatory and optional elements of SPA-I, as well as all other applicable policies and regulations of City. 2. Definitions. In this Agreement, unless the context ~therwise requires: 2.1 "Builder" or "Merchant Builder" means a developer to whom Developer has sold or conveyed property within the SPA-I for purposes of its improvement for residential, commercial or industrial use. 2.2 "City Councilx means the City Council of the City of Chula vista. 2.3 "Developer" means Rancho del Rey Partnership and the legal persons to which or whom it may assign all or any portion of its rights under this Agreement. -2- 11/24/87 2.4 "Development Regulations' means the development jgulations set forth in Part III of SPA-I. 2.5 "Financing Plan" means the Rancho del Rey SPA-I Public Facilities and Financing Plan adopted by City on DecembeF 15 , 1987, pursuant to Resolution No. 13392 , and any modification thereto agreed upon by the parties to this Agree- ment. The Financing Plan is, by this reference, made a part of this Agreement as though fully set forth herein. 2.6 '1980 East H Street Agreement" shall refer to that certain agreement entitled "Agreement Between the City of Chula Vista, E1 Rancho del Rey Corporation, Otay Land Company and Roll Investments for the Construction of East H Street Phase I Improvements (From Hidden Vista to 576.42 Feet West of Buena Vista Way)" entered into between the City, The Gersten Companies and Roll Investments during 1982 pursuant to the City's Resolu- tion No. 10878. 2.7 "Phase" means a particular phase of SPA-I and related public facilities as described in Chapter 3 of the Financing Plan. 2.8 "Planning Commission" means the Planning Commis- sion of the City of Chula Vista. 2.9 "Project" means the development of the Property as apresented by the SPA-I (defined below) and the Tentative Maps. 2.10 "Property" means the real property described in Exhibit "A-l". 2.11 "SPA-I" means the "Sectional Planning Area 1 SPA Plan for the Colonies of Rancho del Rey" approved by City on December 15 , 1987, and any modifications thereto agreed upon by the parties to this Agreement. SPA-I covers the Property (defined above). SPA-I is by this reference made a part of this Agreement. 2.12 "Specific Plan" means the E1 Rancho del Rey Specific Plan adopted by the City on November 12, 1985 by City Council Ordinance N0. 2130. 2.13 "Substantial Compliance," for the purposes of this Agreement and periodic review hereunder, shall mean that the party has sufficiently followed the terms of this Agreement so as to carry out the intent of the parties in entering into this Agreement. 2.14 "Tentative Map(s)" or "Tentative Subdivision Map(s)" shall refer to the Tentative Subdivision Maps for SPA-I. -3- 11/24/8v '~e term "Final Subdivision Map(s)" shall refer to any Final Map .3proved pursuant to such Tentative Subdivision Map(s). 3. Description of ProDertv. The Property subject to this Agreement consists of approximately 809 acres in area and is located approximately 3 miles east of downtown Chula Vista, approximately 2 miles west of the Eastlake project. The Property is bounded on the north by Otay Lakes Road and on the south by East H Street. The Property is more particularly described on Exhibit "A-1#. 4. Vested Riqhts. In consideration of Developer's participation in the construction and financing of public facilities, all as more particularly described in the Financing Plan and this Agreement, Developer is vested with the right to develop and maintain the Project pursuant to the provisions set forth in this Paragraph 4. 4.1 Right to Develop. Subject to complying with applicable requirements of the Financing Plan, including the thresholds and monitoring program described below, the Developer and Merchant Builders shall have the right to develop the Project for the uses and to the densities set forth in SPA-I. 4.2 Maximum Height and Size of Structures. The ~ximum height and size of structures to be constructed on the ~oject will be governed by City ordinances. 4.3 Thresholds. The City shall have the right to withhold the issuance of building permits for lots in SPA-I any time after it is reasonably determined by the City that: (a) A threshold of development ("Threshold") (as described in Chapter 3 of the Financing Plan) has been reached, unless and until the City is provided a bonded agreement reasonably acceptable to the City to guarantee completion of the Facility(ies) which correspond to the Threshold. (b) The Facility(ies) corresponding to a prior threshold have not yet been completed. The Threshold Cumulative Regional Development standards set forth on Table 4 of the Financing Plan refer to residential dwelling units, commercial/office square footage and industrial square footage within the Area of Benefit described on Exhibit 7 in Chapter 3 of the Financing Plan. 4.4 Occupancy Permits. In the event the City issues building permits for lots after a Threshold has been reached, but prior to completion of the corresponding Facility(ies), the City -4- 11/24/87 ~all have the right to withhold occupancy permits unless and ~til the corresponding Facility(ies) have been completed. 4.5 Required Condemnation. Should the construction of any Facility require construction or installation of offsite improvements on land which neither the Developer nor the City has sufficient title or interest at the time the Threshold becomes applicable, the City shall, within 120 days after determining such Threshold is applicable, acquire by negotiation or commence proceedings pursuant to Title 7 (commencing with Section 1230.010) of Part 3 of the Code of Civil Procedure to acquire an interest in the land which will permit the improvements to be made, including proceedings for immediate possession of the land. In the event the City fails to meet this 120-day time limitation, construction of the offsite Facility will be conclusively deemed to be removed as a basis for withholding building permits or occupancy permits. Should the interest be in land outside the City and the City reasonably believe that it does not have the power to condemn the interest, then the City will use its best efforts to obtain such interest by negotiation or by convincing the jurisdiction in which the land is located to condemn the interest. The offsite Facility will not be deemed removed, provided that the City so exercises its best efforts to obtain such interest. Nothing in this Agreement shall be deemed to preclude '-he City from requiring the Developer to pay the cost of acquir- mg such offsite land. 4.6 Changes in Thresholds. The Financing Plan anticipates an annual monitoring program and possible adoption of and revisions to a Regional Transportation Facility Financing Program. Nothing stated in this Agreement shall be deemed to prevent any such change from being applicable to the Property. 4.7 East H Street Monitoring. The City shall have the right to withhold the issuance of building permits for lots in SPA-I any time after it reasonably determines that vehicular traffic on East H Street immediately east of Hidden Vista Way exceeds 56,500 average daily trips (#ADTs"). 4.8 30,000 ADT Reservation. The City, in Resolution No. 12934 adopted by the City Council on March 10, 1987, stated its moral commitment to reserve 30,000 ADTs on East H Street to SPA-1. However, although it is believed that SPA-1 will generate 30,000 ADTs, traffic studies indicate that only 22,100 ADTs will be generated from SPA-1 on East H Street (with 7,900 ADTs being generated on Otay Lakes Road). In consideration of Developer improving the widening of East H Street to a full six (6) lanes, the City shall, during the term of this Agreement, exclude 22,100 ADTs from its determination of available East H Street capacity immediately east of Hidden Vista Way when the City considers -5- 11/24/8V ~rovals for development projects other than SPA-I. Developer ~nowledges its understanding that the City does not have 3urisdiction over the approval of all projects which could impact traffic on East H Street and that therefore the City does not represent or warrant that any particular capacity on H Street will be available to SPA-I. 4.9 Benefit of Earlier Vesting. Nothing in this 'Agreement will be construed as affecting Developer's earlier vested right, if any, to the development and use of the Property in the manner specified in this Paragraph 4 pursuant to the provisions of California's Constitutional, statutory and deci- sional law. 4.10 Information Regarding Thresholds. City will, from time to time, within a reasonable time after Developer's request, provide Developer with information regarding the current status of each Threshold (i.e. the then-existing cumulative number of residential dwelling units, etc. in the Area of Benefit). As of October 1, 1987 there were 3,074 residential dwelling units, 540,000 square feet of commercial/office space and 66,800 square feet of industrial space in the Area of Benefit. 4.11 Resolution No. 13346 Thresholds. Each proposed Tentative Subdivision Map which comes before the City's '~anning Commission and/or City Council for consideration and proval shall be reviewed for compliance with those thresholds and standards set forth in Resolution No. 13346 approved by the City Council on November 17 , 1987 ("Resolution No. 13346 Thresholds"). Notwithstanding any other provision in this Agreement, the City may disapprove any such Tentative Subdivision Map if it finds that, as of the date of the Tentative Subdivision Map approval hearing, the project covered by the Tentative Subdivision Map would not comply with any of the Resolution No. 13346 Thresholds. 5. Development Proqram. 5.1 Processing of Application and Permits. City will accept the processing and review of all Tentative Maps, Final Maps, development applications and permits or other entitlements with respect to the development and use of the Property in accordance with this Agreement and SPA-I. 5.2 Pre-Final Map Development. If Developer desires to do certain work on the Property (including, without limita- tion, grading) prior to the recordation of a Final Map for such portion of the Property, it may do so by obtaining a grading or other permit from the Director of Public Works of City. The Director of Public Works will issue such permit to Developer or its contractor upon Developer's application for the same if -6- 11/24/87 ~suance of the permit would be in compliance with all applicable fdinances and regulations, 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 Maps do not record. 5.3 Estate Lots Schedule. Pursuant to the requirement set forth in Part C of Section IX of the Specific Plan, Exhibit #B# attached hereto sets forth Developer's estimated schedule for the development and marketing of the Estate Lots (as #Estate Lots" is referred to in the Specific Plan). Developer cannot, however, guarantee the accuracy of this schedule. 6. Urban Infrastructure. 6.1 Dedications, Reservations and Improvements of Land for Public Purposes. The portions of the Property to be reserved, dedicated and/or improved for public purposes are designated in SPA-I and the Financing Plan and may be further described in the Tentative Subdivision Map(s). Such dedications, reservations and improvements will be imposed in accordance with the provisions of the California Government Code and the Chula Vista Municipal Code in effect as of the date of application of the respective building permits. 6.2 Pioneering of Facilities. Developer shall have 'he right, but not the obligation, to complete those offsite ]cilities which constitute regional Thresholds within the Financing Plan. To the extent Developer itself constructs (i.e. "pioneers") any improvements which are covered by a development impact fee program (including the DIF program described in Paragraph 7 below), Developer shall be given a credit against development impact fees otherwise payable, subject to the City Engineer's reasonable determination that such costs are allowable under the applicable development impact fee program. It is specifically intended that Developer be given DIF credit for the DIF program improvements it makes to East H Street and Otay Lakes Road Facilities, and the fact that such improvements may be financed by an assessment district shall not prevent DIF credit from being given to the extent such district creates liened indebtedness against the Property. 6.3 Parks. In consideration of the vesting provisions Of this Agreement, Developer agrees to comply with the parks and recreation requirements set forth in Chapter 2 of the Financing Plan, regardless of whether the requirements of such program exceed the requirements of existing City ordinances. 6.4 Insurance. Developer shall name City as addi- tional insured for all insurance policies obtained by Developer for this project as pertains to the Developer's activities and Operation on the Project. -7- 7. Development ImDact Fees. The following development impact fee program is hereby established for the Property. 7.1 Development Impact Fee Payments. Developer shall pay to the City a Development Impact Fee (#DIF") for improvements covered by a building permit at the time of application for the building permit. The DIF will be in the amount established by the City at the time of application for the building permit. The per-acre DIF for industrial buildings shall be prorated on the basis of acreage covered by each applicable building permit for such buildings. 7.2 Other Developers. The City will use its best efforts to impose and collect, or cause the imposition and collection of, the same DIF program on all the undeveloped real property located in the Area of Benefit described on Table 7 of Chapter 3 of the Financing Plan. 7.3 Use of DIF. 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 Section 53077. The City shall expend such funds only for the transportation projects described in the Financing Plan. The City will use its best efforts to cause such projectsto be completed as soon as ~acticable; provided, however, the City shall not be obligated ~ use its general funds for such projects. Nothing herein stated shall, however, prevent the City from using its general funds for such purpose. 7.4 Withhold of Permits. Developer agrees that City shall have the right to withhold issuance of the building permit for any dwelling unit in the Property unless and until the DIF is paid for such dwelling unit. 7.5 New or Additional DIF Programs. Nothing stated in this Development Agreement is intended to limit the City in its establishment of any new or additional DIF or related program, nor from replacing the DIF program with another program and applying the same to the Property. Any such new, additional or replacement program shall include such other land as would have a reasonable nexus to the program. 7.6 Release From 1980 East H Street Agreement. Subject to Developer's completion of Public Facility Improvement Nos. 1, 2 and 3 (the East H Street extension), City hereby releases E1 Rancho del Rey Corporation, Developer and SPAs I through IV from all past, present and future obligations under the 1980 East H Street Agreement. In particular, but without limitation, it is intended that subject to the completion of Public Facility Improvement Nos. 1, 2 and 3, Developer and SPAs I -8- 11/24/87 ~rough IV be released from any obligation to reimburse City 'rsuant to the 1980 EastH Street Agreement. Within thirty (30) ~dyS Of Developer's written request after completion of Public Facility Improvement Nos. 1, 2 and 3, City shall record with the County Recorder of San Diego County a statement that the release herein stated is no longer conditional. Nothing stated herein is intended to imply any admission of liability by Developer under the 1980 East H Street Agreement and Developer expressly denies any such liability. 8. Binding Effect; Enc~mhrance of ProDertV; Status. 8.1 Binding Effect. The provisions of this Agreement will be binding upon and inure to the benefit of the parties' successors in interest. 8.2 Discretion to Enc,~mher. Nothing in this Agreement will prevent or limit Developer, in any manner, at Developer's sole discretion, from encumbering all or any portion of the Property or improvement thereon by any deed of trust or other security device. 8.3 Status. Each party will, within fifteen (15) days prior written request, give written notice to the other party of whether the party giving the notice knows of any breach of this Agreement and its current understanding of status of performance '~nder this Agreement. A copy of any such notice which is sent to veloper shall also be sent to the holder of any institutional ~lrst trust deed encumbering the Project if such holder has made written request for notice and provided the City with the holder's address for notice purposes. 9. Annual Review; Notice. City will, once every twelve (12) months during the term of this Agreement, pursuant to California Government Code Section 65865.1, undertake a periodic review of the parties' compliance with the terms of this Agree- ment pursuant to the procedures set forth below. Developer shall present information with respect to Developer's good-faith com- pliance with Paragraph 9.1. In addition to the information pro- vided by Developer in accord with Paragraph 9.1, City may request Developer address additional issues with respect to Developer's good-faith compliance with the terms of this Agreement. City shall deliver no less than thirty (30) days' written notice to Developer prior to any hearing of any requirement City desires to be addressed, and applicable staff reports, in a manner suffi- cient for Developer to respond. Either party may address any requirement of this Agreement during the review period. If at any time of review, an issue not previously identified in writing pursuant to Paragraph 9 is required to be addressed by City, the review at the request of either party may be continued to afford -9- 11/24/87 '~ficient time for analysis and preparation. Such review by the Ay may be conducted by the City Manager. 9.1 Information to be Provided Developer. Pursuant to Government Code Section 65865.1, Developer shall have the duty to demonstrate its good-faith compliance with the terms of this Agreement at each periodic review. Developer's duty to demon- strate may be satisfied (except for additional issues raised by City pursuant to Paragraph 9) by the presentation to the City of: (i) a written report identifying Developer's performance or the reasons for its nonperformance or excused performance of the requirements of this Agreement, or (ii) oral or written evidence submitted at the time of review. 9.1.1 The parties recognize that this Agreement and the documents incorporated herein could be deemed to contain thousands of requirements (i.e., construction standards, landscaping standards, et al.), and that evidence of each and every requirement would be a wasteful exercise of the parties' resources. Accordingly, Developer shall be deemed to have satis- fied its duty of demonstration when it presents evidence of its good faith and substantial compliance with any issues requested to be addressed by City in accordance with Paragraph 9, and substantial compliance with the major provisions of the Financing Plan, SPA-I, and compliance with the restrictions on the uses, number, type, lots and sizes of structures completed, and any required reservations and dedications to the City. Generalized evidence or statements shall be accepted in the absence of any evidence that such evidence is untrue. 9.2 Finding by City During Annual Review Period That Developer is in Default. If, during any annual review period, City, on the basis of substantial evidence, finds Developer has not in good faith complied with this Agreement, it will give Developer thirty (30) days' notice of default pursuant to Paragraph 10. 10. Default. If either party defaults under this Agree- ment, the party alleging such default will give the breaching party not less than thirty (30) days' notice of default in writing. The notice of default will specify the nature of the alleged default and, where appropriate, the manner and period of time in which said default may be satisfactorily cured. During any period of cure, the party charged will not be considered in default for the purposes of termination or institution of legal proceedings. If the default is cured, then no default will exist and the noticing party will take no further action. -10- 11/24/87 10.1 Option to Set Matter for Hearing or Institute ~gal Proceedings. After proper notice and the expiration of the cure period, the noticing party to this Agreement, at its option, may (i) institute legal proceedings, or (ii) request hearings before the Planning Commission and the City Council for a determination as to whether this Agreement should be modified, suspended or terminated as a result of each default. 10.2 Waiver. Except as otherwise expressly provided in this Agreement, any failure or delay by a party in asserting any of its rights or remedies as to any default by the other party will not operate as a waiver of any default or of any such rights or remedies or deprive such party of its right to insti- tute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. 10.3 Remedies Upon Default. In the event of a default by either party to this Agreement, the parties shall have the remedies of specific performance, mandamus, injunction and other equitable remedies. Neither party shall have the remedy of monetary damages against the other except for costs of litiga- tion, including reasonably incurred attorneys' fees. 11. Modification; Suspension; Termination. 11.1 Emergency Circumstances. If, as a result of jecific facts, events or circumstances, City finds that a severe and immediate emergency threat to the health, safety and general welfare of City require the modification, suspension or termina- tion of this Agreement, City will: 11.1.1 Notification of Unforeseen Circum- stances. Notify Developer of (i) City's determination, and (ii) the reasons for City's determination and all facts upon which such reasons are based; 11.1.2 Notice of Hearing. 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 hearing described in Paragraph 11.1.3, all documents related to such determination and reasons therefor; and 11.1.3 Hearinq. Hold a hearing on the determination at which hearing Developer will have the right to address the City Council. At the conclusion of said hearing, City Council may take action to suspend this Agreement. City Council may suspend this Agreement if, at the conclusion of said hearing, based upon the evidence presented by the parties, the City -11- 11/24/87 finds that the suspension of this Agreement is required to avoid an immediate and severe threat to the health, safety and general welfare of the City. Anything stated in this Agreement to the contrary notwithstand- ing, no limited growth or similar ordinances, regulations or policies which may be enacted or adopted to control growth in Chula Vista shall be applied to the Property during the term of 'this Agreement unless, pursuant to the procedure set forth in this Article 11, the City finds that a severe and immediate emergency threat to the health, safety and general welfare of the City requires application of such ordinance or regulation to the Property. 11.2 Change in State or Federal Law or Regulations. 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 11.2.1 and 11.2.2. 11.2.1 Notice; Meetinq. The party first becoming aware of such enactment or action or inaction will provide the other party with written notice of such state or federal law or regulation and provide a copy of such law or regulation and a statement regard- ing 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. A copy of any such notice which is sent to Developer shall also be sent to the holder of any institutional first trust deed encumbering the Project if such holder has made written request for notice and provided the City with the holder's address for notice purposes. 11.2.2 Hearinq on SuDersession of DeveloP- ment Aqreement. Thereafter, regardless of whether the parties reach agreement on the effect of such federal or state law or regulation, the matter will be " scheduled for hearing before the City Council no sooner than ten (10) days following written notice of such hearing to Developer. City Council, at such hearing, will determine the exact modification, suspension or termination which is required by the federal or state law or regulation, if any. Developer, at the hearing, will have the right to offer oral and written testimony regarding any proposed action by City. Any modifica- tions, suspension or termination are subject to judicial review. -12- 11/24/87 12. General Provisions. 12.1 Notices. All notices required by or provided for ~nder this Agreement shall be in writing and delivered in person or sent by certified mail, postage prepaid, return receipt requested, to the principal offices of the City and Developer. Notice shall be effective on the date delivered in person or the date when the postal authorities indicate that the mailing was delivered to the address of the receiving party indicated below: Notice to Developer: With Copy to: Rancho del Rey Partnership Home Capital Corporation 2727 Hoover Avenue 707 Broadway, Suite 1017 National City, CA 92050 San Diego, CA 92101 Attn: Mr. Ken Baumgartner Attn: President Notice to City: City Manager The City of Chula Vista 276 Fourth Avenue Chula Vista, CA 92010 Such written notices may be sent in the same manner to -uch other persons and addresses as either party may from time to ~me designate by mail. 12.2 Joint and Several Liability. If either party consists of more than one legal person, their obligations are joint and several. 12.3 Severability. If any material provision of this Agreement is held invalid, this Agreement will be automatically terminated unless within fifteen (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 11.1. 12.4 Recordation of Agreement; Amendments. All amendments hereto must be in writing signed by the appropriate agents of city and Developer, in a form suitable for recording in the Office of the Recorder, County of San Diego. Within ten (10) days of the date of this Agreement, a copy will be recorded in the Official Records of San Diego County, California. Upon completion of performance of this Agreement or its earlier termination, a statement evidencing said completion or termina- tion, signed by the appropriate agents of Developer and City, 11/24/87 '~,11 be recorded in the Official Records of San Diego County, lifornia. 12.5 Attorneys' Fees and Costs. If either party commences litigation or other proceeding (including, without limitation, arbitration) for the interpretation, reformation, enforcement or rescission of this Agreement, the prevailing party will be entitled to its reasonable attorneys' fees and costs. 12.6 Applicable Law. This Agreement will be construed and enforced in accordance with the laws of the State of California. 12.7 Assignment. Developer may transfer its rights and obligations under this Agreement if such transfer or assign- ment is made as part of a transfer, assignment, sale or lease of all or a portion of the Property and the City consents to said transfer. Said consent shall not be unreasonably withheld. 12.8 Term of Agreement. This Agreement shall expire seven (7) years after the date it is entered into. 12.9 Conflict. The provisions stated in this Agree- ment shall prevail, should there be any conflict between this Agreement and the Financing Plan. IN WITNESS WHEREOF, the parties have executed this Agreement ~ the date first above written. "City" CITY OF CHULA VISTA, a municipal corporation By ~ ~M~yo~r~- Gr , -14- 11/24/87