HomeMy WebLinkAboutOrd 1985-2102
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JentÙe M. FuIasi. ~ fJd ORDINANCE NO. 2102
P. O. Box 1087
Ch..-'- Vista, California 92012
AN ORDINANCE OF THE CITY OF CHULA VISTA ADOPTING THE
DEVELOPMENT AGREEMENT FOR THE EASTLAKE PLANNED COMMUNITY
WHEREAS, the development of the EastLake Planned
Community will require substantial public improvements phased
over a period of time, and
WHEREAS, the Government Code provides authority for
cities to enter into development agreements.
NOW, THEREFORE, the City Council of the City of Chula
Vista ordains as follows:
SECTION I: Development Agreement for EastLake
Planned Community
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 "Development
Agreement" for the EastLake Planned Community (attached
hereto as Exhibit "A"). Said development agreement
establishes certain rights and obligations for the City
of Chula Vista and the EastLake Development Company.
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
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Ge~t4~ctor of ~ ¡::.d'ft
Charles R. Gill, Assistant
Planning City Attorney
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FIRST READ AT A REGULAR MEETING OF THE CITY COUNCIL OF THE
CTry OF CHULA VISTA) CALIFORNIA) HELD February 19 , 19~) AND
FINALLY PASSED AND ADOPTED AT A REGULAR MEETING THEREOF HELD Fphrll~ry 26,
19 85 ) BY THE FOLLOWING VOTE) TO-WIT:
AYES: Councilmen Cox, Malcolm, McCandliss, Scott, Moore
NAYES: Councilmen None
ABSTAI N: Councilmen None
ABSENT: Councilmen None
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ATTEST ~</ ~l &j'.u~
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S E. OF CALIFORNIA )
COUNTY OF SAN DIEGO ) ss.
CITY OF: CHULA VISTA )
" JENNIE M. FULASZ, CMC, CITY CLERK of the City of Chula Vista, California,
DO HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of
ORDINANCE NO. 2102 ,and that the same has not been amended or repealed.
DATED May 29, 1985
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(sea ) City Clerk
CC-660
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ORDINANCE NO. 2102
.0.
AN ORDINANCE OF THE CITY OF CHULA VISTA ADOPTING THE
DEVELOPMENT AGREEMENT FOR THE EASTLAKE PLANNED COMMUNITY
WHEREAS, the development of the EastLake Planned
Community will require substantial public improvements phased
over a period of time, and
WHEREAS, the Government Code provides authority for
cities to enter into development agreements.
NOW, THEREFORE, the City Council of the City of Chula
Vista ordains as follows:
SECTION I: Development Agreement for EastLake
Planned Community
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 "Development
Agreement" for the EastLake Planned Community (attached
hereto as Exhibit "A"). Said development agreement
establishes certain rights and obligations for the City
of Chula Vista and the EastLake Development Company.
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
~ '
Ge~~r~~ctor of ~ ¡::.d'ft
Charles R. Gill, Assistant
Planning City Attorney
0O2la
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FIRST READ AT A REGULAR MEETING OF THE CITY COUNCIL OF THE
CIT~ OF CHULA VISTA) CALIFORNIA) HELD February 19 , 19~) AND
FI~ALLY PASSED AND ADOPTED AT A REGULAR MEETING THEREOF HELD Fphrll~ry (,6,
19 85 ) BY THE FOLLOWING VOTE) TO-WIT:
AYES: Councilmen Cox, Malcolm, McCandliss, Scott. Moore
NAYES: Councilmen None
ABSTAI N: Cot.r1cilmen None
ABSENT: Councilmen None
!~ I! f1
/~l Mayo' f e City of Chula Vista
ATTEST '<~PU;é ~l <Þ ~
t/ City erk
51. .:. OF CALIFORNIA )
COUNTY OF SAN DIEGO ) ss.
CITY OF CHULA VISTA )
" JENNIE M. FULASZ, CMC, CITY CLERK of the City of Chula Vista, California,
DO HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of
ORDINANCE NO. 2102 ,and that the same has not been amended or repealed.
DATED
{sear> City Clerk
CC-660
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DEVELOPMENT AGREEMENT
California Government Code Sections 65864-65869.5
This Development Agreement ("this Agreement") is entered into
on February 26 , 19 85 , between EASTLAKE DEVELOPMENT
COMPANY, a California general partnership ("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.l City's Author i ty to Enter into Development Agreement.
City, as a charter city, is authorized under California Government
Code Sections 65864 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 uses J.n the development of such
property, and (ii) construction of adequate public facilities to
service such property.
1.2 The Property; Developer's Interest. Developer holds an
enforceable right to acquire the property known as EastLake I
described in Exhibit A ("the Property"). The Property is the
subject of this Agreement. Developer is master planning the
Property as the initial phase of the EastLake Planned Community.
Developer represents that it has a legal interest in the Property
and that all other persons holding legal or equitable interest in
the Property will be bound by this Agreement.
1.3 Benefit to City. The achievement of the goals of the SPA
and the Financing Plan (defined in Paragraphs 2.8 and 2.4,
respectively) requires the cooperation of various landowners,
Developer and City. City, by virtue of the development of the
EastLake Planned Community, will receive sales tax revenues,
increase in the property tax base, residential housing, sewer,
water, and street facilities, and contribution toward public
facilities.
1.4 Intentions of Parties in Enterin into this A reement.
Developer and City intend to enter into this Agreement to: i)
assure Developer's participation in the construction 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 accordance with various permits
issued authorizing the development of the Property, (iv) provide
that the improvements required by the EastLake SPA shall be
completed when necessary to service the needs created by
Developer's project.
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1.5 Planning Commission Hearings. As required by California
Government Code Section 65867, on February l3, 1985, City's Planning
Commission, after giving notice pursuant to California Government
Code Sections 65854, 65854.5 and 65856, held a publi c hearing on
this Agreement.
1.6 City Council Hearing. As further required by California
Government Code Section 65867, City Council, after providing public
notice pursuant to California Government Code Sections 65854,
65854.5 and 65856, held public hearings on this Agreement on January
29 and February 19, 1985.
1.7 Findings of City Council. City Council has found that
this Agreement is consistent with City's General Plan and all
applicable mandatory and optional elements of, the General
Development Plan for EastLake I, the Sectional Planning Area Plan,
as well as all other applicable policies and regulations of City.
1.8 Adoption of Ordinance Approving Agreement. On February
19, 1985, City Council adopted Ordinance No. 2102 approving this
Agreement: the Ordinance took effect on March 22 ,
1985.
2. Definitions.
In this Agreement, unless the context otherwise requires:
2.l "Builder" or "Merchant Builder" means a developer to whom
EastLake Development Company has sold or conveyed property within
the Eastlake SPA for purposes of its improvement for residential,
commercial or industrial use.
2.2 "City Council" means the City Council of the City of Chula
Vista.
2.3 "Developer" means EastLake Development Company and the
legal persons to which or whom it may assign all or any portion of
its rights under this Agreement.
2.4 "Financing Plan" means the Public Facilities and Financing
Plan adopted by City on February 19, 1985, pursuant to Resolution
No. 11934 and any modification thereto agreed upon by the parties to
this Agreement. The Financing Plan is, by this reference, made a
part of this Agreement as though fully set forth herein.
2.5 "Planning Commission" means the Planning Commission of the
City of Chula Vista.
2.6 "Project" means the development of the Property as
represented by the SPA (defined below) and the Tentative Maps.
2.7 "Property" means the real property described in Exhibit
"A".
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2.8 "SPA" means the Sectional Planning Area Plan for the
EastLake Planned Community approved by City on February 19, 1985
and any modifications thereto agreed upon by the parties to this
Agreement. The SPA is, by this reference, made a part of this
Agreement.
2.9 "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.
2.10 "Planned Community District Regulations" means the
regulations approved by the City on February 19, 1985, pursuant to
ordinance No. 2l03.
2.11 "Tentative Map(s)" or "Tentative Subdivision Map(s) "
shall refer to the Tentative Subdivision Maps for the EastLake
SPA. The term "Final Subdivision Map(s)" shall refer to any Final
Map approved pursuant to such Tentative Subdivision Map(s).
3. Description of Property.
The Property subject to this Agreement consists of
approximately 892 acres ln area and is located approximately 7.5
miles east of downtown Chula Vista and 7 miles north of the United
States/Mexican border, and is more particularly described in
Exhibit "A".
4. Vested Right.
In consideration of Developer's participation in the
construction and financing of Public Facilities, all as more
particularly described in Paragraph 6, Developer, by this
Agreement, is vested with the right to develop and maintain the
Property pursuant to the provisions set forth in this Paragraph 4.
4.l Permitted Uses. The Property will be developed as the
first phase of a planned community consisting of residential
neighborhoods, community recreational facilities, school sites, a
commercial center, and industrial parks, all as more particularly
authorized by the SPA, and for such other uses that may be mutually
agreed upon by the parties pursuant to an amendment to the SPA.
4.2 Permitted Density of Development. The Property may be
developed to the densities indicated in the SPA, subject to the
limitations contained therein and any allowable density transfers
within the SPA pursuant to the Planned Community District
Regulations for EastLake SPA.
4.3 Maximum Height and Size of Structures. The maximum height
and size of structures to be constructed on the Property will be
governed by City ordinance.
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4.4 Controlling Plans, Laws, Ordinances, Rules, Regulations,
Official Policies. The development of the Property will be
governed by this Agreement, the SPA, the Financing Plan, the
Tentative Map, and the rules, regulations, ordinances, laws,
general plans, and official policies of City which govern density,
use, growth management, environmental consideration, and design
criteria which are (i) in force upon the commencement of the term
of this Agreement, or subsequently amended pursuant to 4.4.l, and
( i i) not in conflict with any provision of this Agreement, the SPA
or the Financing Plan.
4.4.l Application of Subsequently Enacted Laws, Rules,
Regulations, Fees, etc. City may, during the term of this
Agreement, apply to the development or use of the Property only
such newer City-enacted or modi tied laws, regulations, ordinances,
fees, standards or policies, and official policies which are (i)
applicable to all private projects in City, (ii) to be applied to
the Project only as to applications for building and other
development permits or approvals of tentative subdivision maps not
yet approved as of the date of such enactment or modification, and
(Hi) application of which would not prevent development of the
Property pursuant to this Agreement or, without limitation, prevent
the development of the Property to the uses, density, or intensity
of development specified in this Agreement. This paragraph will
not preclude the application to the Property of changes in City
laws, regulations, ordinances, standards, or policies speci fically
mandated by changes in State or Federal law or regulations made
applicable to this Agreement pursuant to Paragraph lO.3.
4.5 Modification of Agreement. Nothing in the foregoing
provisions of this Paragraph 4 will prevent the parties from
modifying this Agreement pursuant to Paragraph lo.l to permit
Developer to respond to changing market factors in the development
of the Property. Developer may also apply to City for a
modification or replacement of the Tentative Map(s) or SPA. Any
Developer-requested modification or replacement of the Tentative
Map(s), SPA or Facili ty Financing Plan will not require a
modification to this Agreement, and from the date such modification
or replacement is approved by City, Developer will automatically
have a vested right pursuant to this Paragraph 4 to the development
and use of the Property pursuant to the modified or replaced
Tentative Map(s) or SPA.
4.6 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 decisional law.
Developer, however, recognizes that the Financing Plan establishes
limi ts beyond which project may not proceed unless speci tied
facilities are constructed. The limitations on such construction
may be enforced by withholding the issuance of building permits.
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5. Development Program.
5.l Processing of Applications and Permits. City will accept
the processing and review of all development applications and
permits or other entitlements with respect to the development and
use of the Property in accordance with this Agreement. It is
understood by the parties to this Agreement that, pursuant to
existing law, tentative subdivision maps shall not remain valid for
the same length of time as the term of this Agreement.
Accordingly, Developer shall have the right to file new tentative
subdivision maps on portions of the project where a previously-
approved tentative map or maps have expired. Any new tentative
subdivision map filed by Developer shall be reviewed and approved
where it is consistent with the SPA and the terms of this
Development Agreement.
5.1.1 Costs which are attributable to work related to the
Project, including hiring of additional personnel, will be
I reimbursed to City by Developer. This may include the hir ing of
professionals, including but not limited to engineers for a period
up to six years to meet the City's responsibility to create
assessment or reimbursement districts.
5.2 Final Map(s). Prior to conveying any portion of the
Property to a builder, Developer will process with City a Final
Subdivision Map(s) prepared substantially in compliance with the
Tentative Map for such portion of the Property. Developer may
finalize the Tentative Map(s) through as many final maps and in
such locations as Developer and City deem appropriate, upon
compliance with the conditions of approval.
5.2.l Recordation of Final Subdivision Map in Name of
Builder or Third Party. Developer may, if it so elects with
respect to any portion of the Property, convey such portion of the
Property to a builder or third party by a grant deed to be recorded
in the Official Records of San Diego County as one document number
preceding that of the Final Map for the portion of the Property so
conveyed. In such case, the builder or third party will (i) sign
the Final Subdivision Map for the portion of the Property so
conveyed as record owner, (i i) enter into a subdivision improvement
agreement with City for the improvements required as a condition of
the Final Map and (iii) provide security and insurance satisfactory
to City for the completion of the subdivision improvements.
5.2.2 Recordation of Final Subdivision Map in Developer's
Name; Transfer of Obli ations Under Subdivision 1m rovement
Agreement s). If Developer so elects, it may defer the conveyance
of any portion of the Property to a builder or third party until
after the Final Subdivision Map(s) of such portion of the Property
is recorded. If Developer elects to proceed in this manner, it
will enter into subdivision improvement agreement(s) with City for
the improvements required as a condition to the recordation of such
Final Subdivision Map(s) and provide security and insurance for the
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completion of such improvements. However, Developer may assign all
or any part of its obligations under any such subdivision
improvement agreement(s) to a builder or third party to which
Developer conveys such portion of the Property. In such case, city
will permit the security and insurance obtained by Developer with
respect to such subdivision improvement agreement(s) to be
exonerated and cancelled in return for the procurement of bonds and
insurance by the merchant builder or third party to secure the
completion of the respective improvements.
5.3 Pre-Final Map Development. If Developer desires to do
certain work on the. Property (including without limitation,
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
Publi c Works will issue such permit to Developer or its contractor
upon Developer's application for the same if Developer posts a bond
or other reasonably adequate security required by City in an amount
to assure the rehabilitation of the land if the Final Maps do not
record.
6. Urban Infrastructure.
6.l Dedications and Reservations of Land for Public Purposes.
The portions of the Property to be reserved or dedicated for public
purposes are designated in the SPA and the Tentative Subdivision
Map(s). Such dedications and reservations will be imposed in
accordance with the provisions of the California Government Code
and the Chula Vista Municipal Code in effect as of the commencement
date of this Agreement.
6.l.l Parks. Developer will construct parks provided in
the SPA and provide the City with an open space easement over
portions of the parks to be fixed at the time of approval of Final
Map(s). City agrees to waive all park fees and Residential
Construction Tax (RCT) fees.
6.2 Public Facilities; Financing Plan. The Financing Plan
sets forth a description of "public facilities" (Project Reference
Nos. 1-52, inclusive) needed to serve the eastern areas of the City
as a result of the cumulative effect of the development of the
EastLake SPA and other adjacent developments. Some of the Public
Facilities needed will be situated within the EastLake SPA, and
others will be situated outside of the EastLake SPA, pursuant to
the terms of Sections VIII, IX and X of the Financing Plan.
Subject to the provisions below, the Financing Plan sets forth an
itemization of the required Public Facilities, the developer
bearing the responsibility for the construction of each Publi c
Facility, the means by which such facili ty shall be financed, and
whether or not the facili ty is to be assured when needed pursuant
to the terms of the Subdivision Map Act, Government Code Sections
66410, et seq., and any tentative subdivision map(s) adopted with
respect to the EastLake SPA or other projects and/or assured
pursuant to the terms of this Development Agreement.
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The text of the Financing Plan not specifically referenced to by
this Agreement, shall constitute a statement of the parties' intent
and shall be used to interpret the express requirements for the
development of the project.
6.2.l Improvements Required by Subdivision Map. Pursuant
to the terms of any approved Tentative Subdivision Map, it shall be
the responsibility of Developer or Developer's builders to
construct, as provided for in the conditions affixed to Tentative
Subdivision Map(s), for any of the areas encompassed by the
EastLake SPA, the public and private improvements as are more
particularly described in Sections VIII, IX and X of the Financing
Plan.
6.2.2 Improvements Conditioned And Required By This
Agreement. Pursuant to Sections VIII, IX and X of the Financing
Plan, Developer agrees that the development of the EastLake SPA
shall not proceed beyond, and building permi ts may be withheld
where, the improvements described in the Financing Plan and
required for a particular stage have not been financed and either
constructed or under construction at the time that such
improvements are scheduled for completion in accordance with the
methods set forth in the Financing Plan. City acknowledges and
agrees, however, that where the issuance of building permits to
Developer is suspended pursuant to this provision and the
provisions of the Financing Plan, such suspension shall remain in
effect only so long as the facilities needed at any phase or stage
of development have not been provided. Thereafter, City shall
continue, upon request of Developer, to issue building permits. In
the event the issuance of building permits is suspended pursuant to
the provisions herein, such suspension shall not constitute a
breach of the terms of this Agreement by Developer, so long as
development does not proceed beyond the identified stages or phases
at which various improvements are determined to be necessary
pursuant to the terms of Sections VIII, IX and X of the Financing
Plan.
6.2.3 Requirements Upon Developer to Provide Facilities of
Excess Size, Capacit , Len th or Number. Developer may be required
to advance monIes and or to construct public facilities which are
of a larger size, greater length or greater capacity than that
reasonably necessary to meet the public need arising as a result of
Developer's project. Ci ty, where requesting such construction or
funding, including construction pursuant to the requirements of
Section 6.2.1 shall agree to the formation of a reimbursement
district, assessment district, facility benefit assessment
district, or some other means identified and provided for in the
Facili ty Financing Plan, for equitable reimbursement of Developer
to the extent that the facilities provided are of excessive size,
length, capacity, or in some other manner larger than needed to
serve the cumulative needs created by Developer's project.
6.2.4 Improvements Required of other Developers. Pursuant
to the Financing Plan, various public improvements listed in
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Section X of the Financing Plan are or shall be conditions upon the
development of other projects by other developers. Nothing
contained herein is intended to be construed as a waiver by City of
the requirements, conditions or exactions requiring the
construction of public facilities reasonably necessary to serve the
public need created by such projects. Pursuant to this Agreement,
however, Developer shall have the option, but not the obligation,
to install or "pioneer" the facilities mandated upon other
development projects where such facilities are required for
Developer to proceed in accordance with the staging or phasing
schedule contained in Sections VIII and IX of the Financing Plan.
City will coordinate the imposition of such conditions upon other
developers so that the referenced Project Numbers and the publi c
facilities needed by Developer and other adjacent projects can be
bu il t out in accordance with the phasing and staging plans set
forth in Sections VIII and IX of the Financing Plan. In the event
Developer wishes to "pioneer" any facility mandated upon another,
Developer and City shall enter into a separate agreement
acknowledging Developer's right of reimbursement to the extent that
the "pioneered" facility is not reasonably necessary to serve the
public need created by Developer's project.
6.3 City Obligations Under Facili ty Financing Plan. As
generally described in the Public Facility Financing Plan, the City
shall, except where limited by law, meet the obligations set forth
below.
6.3.l City shall periodically review the Financing Plan
and, upon request, take testimony or evidence from persons affected
by such Plan with respect to the need for the facilities currently
required under the Facili ty Financing Plan, the phasing or staging
at which such facilities are deemed to be necessary for the
development in the general area to proceed, the allocation of
responsibili ty between various developers in the area for the
installation of the contemplated facilities and the funding
mechanisms which may be utilized to fund the public improvements.
6.3.2 City shall use its best efforts to establish, in the
case of the construction extensions and/or widening or
reconstruction of major thoroughfares and other area-wide public
facilities, the need for which is created in part by other
developments, one or more financing mechanisms of the general type
described in the Facility Financing Plan to assist Developer in
financing, in concert with other developers, the facilities listed
in Section X of the Facility Financing Plan which are mandated by
the City of Chula Vista including those for which procedures are
not currently in existence including, without limitation,
assessment districts, Mello-Roos Community Facili ties Districts,
Facili ty Benefit Assessment Districts, nonprofit corporations and
such other mechanisms as may be deemed advisable to finance the
facili ties discussed. Said mechanisms shall be established where
necessary through the cooperative efforts of the City, in concert
with other agencies of local government including the Otay Water
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District, Chula Vista City School District, Sweetwater Union High
School District and the County of San Diego, as the case may be,
through contractual understandings or the formation of a Joint
Powers Agency.
6.3.3 City shall use its best efforts to establish
reimbursement mechanisms to reimburse Developer for facilities
required of Developer but not reasonably necessary to meet the
public needs arising from Developer's project including, without
limitation, consideration of the establishment of a reimbursement
district pursuant to local ordinance, a reimbursement district and
procedure pursuant to the provisions of the Subdivision Map Act,
and reimbursement mechanisms pursuant to the terms and conditions
of any Facility Benefit Assessment District which may be
established.
6.3.4 City shall, pursuant to Section 53077 of the
Government Code, establish and maintain a separate Capital Facility
Fund and account for the purpose of depositing any and all fees
generated as a result of, without limitation, any assessment
district, Facility Benefi t Assessment District, Mello-Roos
Community Facilities District, et cetera, which is enacted for the
purpose of providing capital funding for all of the Projects listed
in Section X of the Facili ty Financing Plan. Said fund shall be
held in an interest-bearing account and shall be expended only for
such purposes as may be established in opening said account.
6.4 Maintenance of Community Facilities. All park and
recreation facili ties constructed by Developer or Builders and
I shown in the SPA will be maintained by one or more master community
I associations having jurisdiction over all or a major part of the
I
I EastLake SPA or a neighborhood owners association formed by a
builder.
6.5 Schools. Developer shall satisfy all of City's
requirements for the provision of school facilities pursuant to
Chapter 17.11 of Chula Vista Municipal Code prior to the issuance
of any residential building permits for the project.
6.6 Route l25. The Developer shall irrevocably offer to
dedicate right of way for future SR-125 to accommodate an 8-lane
freeway, except within the Village Center portion of the SPA Plan.
6.7 Wa ter. Water to the Property shall be provided by Otay
Water District.
6.8 Hold Harmless. It is understood and agreed that City, as
indemnitee, or any officer or employee thereof, shall not be liable
for any injury to person or property occasioned by reason of the
acts or omissions of Developer (including any assignee of
Developer, but only to the extent of specific improvements, acts or
omissions of said assignee), its agents or employees, related
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to this Agreement. Developer further agrees to protect and hold
harmless City, its officers and employees, from any and all claims,
demands, causes of action, liability or loss of any sort, because
of or arising out of acts or omlSSlons of Developer, including any
assignee of Developer (but only to the extent of sped fic
improvements, acts or omissions of said assignee), its agents or
employees, related to this Agreement. Said indemnification and
agreement to hold harmless shall extend to damages or taking of
property resulting from the construction of said project and the
public improvements as provided herein, to adjacent property owners
as a consequence of the diversion of waters in the construction and
maintenance of drainage systems and shall not constitute the
assumption by City of any responsibility for such damage or taking,
nor shall City, by said approval, be an insurer or surety for the
construction of the project pursuant to said approved improvement
plans. The provisions of this paragraph shall become effective
upon the execution of this Agreement and sha 11 remain in full force
and effect for three years following the acceptance by the City of
each improvement; such acceptance shall not be unreasonably
withheld. This section is not intended, nor shall it be construed,
to require Developer or city to indemnify or hold the other
harmless from their own negligent acts or omissions.
6.8.1 Indemnification. Developer shall indemnify and
defend City in any lawsuit or claim which challenges the City's
approval of the Project, the approval of this Agreement or the
participation by the City in this Agreement.
6.9 Insurance. Developer shall name City as additional
insured for all insurance policies obtained by Developer for this
project.
7. Binding Effect; Encumbrance of Property; Releases.
7.l Binding Effect. The provisions of this Agreement will be
binding upon and inure to the benefit of the parties' successors in
interest.
7.2 Any lender will receive written noti fication from City of
any default by Developer under this Agreement which is not cured
within thirty (30) days, if such lender requests in writing such
notification; provided however, failure of the City to provide such
notification shall not limit City's rights under this Agreement.
7.3 Discretion to Encumber. Nothing in this Agreement will
prevent or limi t Developer, in any manner, at Developer's sole
discretion, from encumbering all or any portion of Property or
improvement thereon by any deed of trust or other security device.
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7.4 Releases. City shall, from time to time, within 30 days
after Developer's written request, release portions of the property
including, but not limited to, individual builder parcels and/or
units of individual home ownership or commercial or industrial lots
from any and all obligations established by this Agreement, upon
the payment by Developer of all fees and construction of all Public
Facilities required at various stages of the development pursuant
to the provisions of Sections VIII, IX and X of the Financing
Plan. City will effect each such release by executing,
acknowledging and delivering to Developer as release of further
obligations of Developer and/or builder under this Agreement, in a
form and substance acceptable to the County Recorder and a title
insurer, particularly describing the portion of the property to be
so released. No such release to any portion of the property will
affect (i) Developer's vested right to develop such portion of the
property pursuant to Paragraph 4, unless a Notice of Default is
pending pursuant to Section 9, or (ii) City's other rights or
obligations under this Agreement.
8. Annual Review; Notice.
City will, once every l2 months during the term of this
Agreement, pursuant to California Government Code Section 65865.1
and Chula Vista City Council Resolution No. ll933, undertake a
periodic review of the parties' compliance with the terms of this
Agreement pursuant to the procedures set forth below. Developer
shall present information with respect to Developer's good-faith
compliance with Section 8.1. In addition to the information
provided by Developer in accord with Section 8.l, City may request
Developer address addi tional issues with respect to Developer's
good-faith compliance with the terms of this Agreement. City shall
deliver no less than 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 sufficient 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 iden ti tied in wr i ting pursuant to Section 8,
is required to be addressed by the City, the review at the request
of either party may be continued to afford sufficient time for
analysis and preparation.
8.1 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 demonstrate
may be satisfied (except for additional issues raised by City
pursuant to Paragraph 8) by the presentation to the City of: (1) a
written report identi fying Developer's performance or the reasons
for its nonperformance or excused performance pursuant to Section
12.l of the requirements of this Agreement, or (2) oral or written
evidence submitted at the time of review.
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8.Ll 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 satisfied 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 Section 8, and substantial compliance with
the major provisions of the EastLake Public Facility Financing
Plan, the EastLake SPA, 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.
8.2 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
30 days' notice of default pursuant to Paragraph 9.
9. Default.
If either party defaults under this Agreement, the party
alleging such default will give the breaching party not less than
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.
9.l Option to Set Matter for Hearing or Institute Legal
Proceedings. After proper notice and the expiration or the cure
period, the noticing party to this Agreement, at its option, may
(i) institute legal proceedings pursuant to Paragraph 12.2 or (ii)
schedule 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.
9.2 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 institute and
maintain any actions or proceedings which it may deem necessary to
protect, assert, or enforce any such rights or remedies.
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9.3 Remedies Upon Default. In the event of a default by
either party to this Agreement, the parties shall have such legal
rights and equitable remedies as may be provided to parties to a
contract pursuant to the provisions of California law. In addition
thereto, the parties to this Agreement shall have such rights and
remedies as may be provided by Article 2.5 of Chapter 4 of Division
1 of Title VII of the California Government Code, commencing with
Sections 65864, et seq., as amended.
10. Modification; Suspension; Termination.
10.1 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, and Resolution 11933 of the City of Chula Vi sta. The term
"this Agreement" as used in this Agreement will include any such
modification properly approved and executed.
lo.1. 1 The parties to this Agreement contemplate the
periodic review and modification of the EastLake SPA and provisions
of the Facility Financing Plan. Such agreed-upon modifications by
the parties hereto are anticipated and shall not constitute an
amendment to this Agreement or a modification pursuant to this
Section lo. L
lO.2 Unforeseen Circumstances. If as a result of facts,
events, or circumstances presently unknown, unforeseeable, and
wh i ch could not have been known to the parties prior to the
commencement of this Agreement, City finds that the health, safety,
and general welfare of City requlre the modification, suspension,
or termination of this Agreement, City will:
10.2.l Notification of Unforeseen Circumstances. Notify
Developer of (i) Ci ty' s determination and (ii) the reasons for
City's determination and all facts upon which such reasons are
based;
10.2.2 Notice of Hearing. Notify Developer in writing
at least l4 days prior to the date, of the date, time, and place of
the hearing and forward to Developer, a minimum of 10 days prior to
the hearing described in Paragraph 10.2.3, all documents related to
such determination and reasons therefor; and
10.2.3 Hearing. 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. The City Council may suspend
this Agreement if, at the conclusion of said hearing, based upon
the evidence presented by the parties, the City finds that as a
result of facts, events or circumstances which were unknown and
unforeseeable to the parties hereto, the health, safety and general
welfare of the community require the suspension of the Agreement.
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lo.3 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 lO.3.1 and 10.3.2.
10.3.1 Notice; Meeting. 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 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.
lO.3.2 Hearing on Supersession of Development
Agreement. 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 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 such
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 modification,
suspension or termination of the Agreement must be authorized by
the affirmative vote of not less than a majority of the authorized
voting members of the City Council in order to be effective. Any
modifications, suspension, or termination may be subject to
judicial review under Paragraph 12.2 of this Agreement.
11. Equity Participation; Sewer Fees; Joint Power Agreements;
Assessment Distr:cts, Public Financing Mechanism and Reserve Fund.
l1.l Equity Participation. Developer shall offer the City an
equity participation opportunity in cable television franchise.
City will take steps to preserve Developer's options for a new
cable franchise to the extent permi t ted by law and any existing
franchise agreements to which City is a party. Said participation
shall be pursuant to separate agreements between the Developer and
the City.
11.2 Sewer Fee. Notwithstanding any provision of this
Agreement to the contrary, Developer acknowledges that a sewer fee
may be adopted by the City applicable to all properties during the
term of this Agreement and that said fee may be applied to
Developer's project.
11.3 Joint Powers. City acknowledges that a Joint Powers
Authority (JPA) with one or more other public entities may be
necessary
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for the efficient and successful completion of public facil i ties
required by this Agreement. City will actively seek the creation
of JPA' s when needed.
*
l1.4 Assessment Districts or Public Financing Mechanisms.
This Agreement and the Public Facilities Financing Plan recognize
that assessment districts or other public financing mechanisms may
be necessary to equitably distribute the cost of public
improvements. Said costs shall include the engineering and legal
fees associated with the formation of said districts.
11.5 Reserve Fund. A reserve fund, as more particularly
described in Section XII of the Public Facilities Financing Plan,
shall be established for the project.
12. General Provisions.
l2.l Enforced Delay; Extension of Time of Performance.
Failure to perform or delay in performance by either party will not
constitute a default for purposes of Section 9 where such delay or
failure in performance is due to war, insurrection, strikes,
walkouts, riots, floods, earthquakes, fires, casualties, acts of
God, litigation, or other occurrence beyond the party's reasonable
control. If written notice of such delay is given by the delayed
party to the other party within 30 days of the commencement of such
delay, an extension of time for such cause will be granted in
writing for the period of the enforced delay, or a longer period as
may be mutually agreed upon.
12.2 Institution of Legal Proceedings. In addition to any
other rights or remedies, either 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, or in the Federal
District Court in the Southern District of California.
l2.3 Rules of Construction.
12.3.1 Number; Gender. The singular includes the
plural and the neuter gender includes the masculine and the
feminine wherever the context so requires.
l2.3.2 Will and ShalL The words "will" and "shall"
are mandatory except as expressly provided otherwise in this
Agreement.
12.4 Notices. All notices required by or provided for under
this Agreement shall be in writing and delivered in person or sent
by certified mail, postage prepaid, return receipt requested, to
the pr incipal offices of the City and EastLake Development
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Company. 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 EastLake Development Company:
EastLake Development Company
7ol "B" Street, Suite 730
San Diego, California 92lo1
Notice to City:
City Manager
City of Chula Vista
276 Fourth Avenue
Chula Vista, California 92010
Such written notices may be sent in the same manner to
such other persons and addresses as either party may from time to
time designate by mail.
l2.5 Joint and Several Liability. If either party consists of
more than one legal person, their obligations are joint and several.
12.6 Severability. If any material provision of this
Agreement is held invalid, this Agreement will be automatically
terminated unless within l5 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 lo.l.
l2.7 Recordation of Agreement; Amendments. All amendments
hereto must be in wri ting 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 10 days of the date of
this Agreement, a copy w ill be recorded in the Official Records of
San Diego County, California. Upon the completion of performance
of this Agreement or its earlier termination, a statement
evidencing said completion or termination signed by the appropriate
agents of Developer and City will be recorded in the Official
Records of San Diego County, California.
12.8 Covenant of Good Faith and Fair Dealing. Neither party
shall do anything which shall have the effect of harming or
injuring the r i gh t of the other party 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
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that such party shall do in order to accomplish the objectives and
purposes of this Agreement.
l2.9 Attorneys' Fees and Costs. If either party commences
li tigation or other proceedings (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.
l2 .lO Applicable Law. This Agreement will be construed and
enforced in accordance with the laws of the State of California.
12.1l Assignment. Developer may transfer its rights and
obligations under this Agreement if such transfer or assignment 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.
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IN WITNESS WHEREOF, the parties have executed this Agreement
on the date first above written.
CITY: DEVELOPER:
CHULA VISTA, a EASTLAKE DEVELOPMENT COMPANY,
1 corporation a California general partnership
comprised of corporations
By: DANIEL V., INC., a
California corporation,
General Partner
Its: Mayor
By:
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I hereby approve the form and legality of the foregoing
Agreement this ~ day of ¡4.;r ItfI ' 19 ~,;;;;--
L~/~ £. c.J12 k
CIty Attorney //
STATE OF CALIFORNIA)
COUNTY OF SAN DIEGO ) ss.
CITY OF CHULA VISTA)
19 ¡- 6 --
On , in the year
before me, of the City of Chula
Vista, perso peared rego Cox, known to me to be the
person who executed this instrument as Mayor of the City of Chula
Vista, a political subdivision of the State of California, and
acknowledged to me that the City of Chula Vista executed it.
WITNESS my hand and official seal.
j1»z~~~
STATE OF CALIFORNIA)
COUNTY OF ~ ) ss.
)
On this ~ day of ~ ' in the year 19 f 5
before me, the undersigned, a Notar Public in and for said State,
personally appeared Daniel D. Lane, personally known to me or
proved to me on the basis of satisfactory evidence to be the
person who executed the within instrument as the President of the
corporation that executed the within instrument on behalf of
EastLake Development Company, the partnership that executed the
within instrument, and acknowledged to me that such corporation
executed the same as such partner and that such partnership
executed the same.
TNESS my hand and official seal.
OF?ICIAL SEAL 7l7~);;. 6~
' MARY E BLACKARD
NOTARY PUBLIC - CALIFORNIA
OR1\NGE COUNTY
My comm. expires APR 5. 1989
STATE OF CALIFORNIA)
~ss.
COUNTY OF / )
On this ~ day of ~ ,in the year 19P5
be fore me, the undersigned, a Notar Public in and for said State,
personally appeared David B. Kuhn, Jr., personally known to me or
proved to me on the basis of satisfactory evidence to be the
person who executed the within instrument as the President of the
corporation that executed the within instrument on behalf
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of EastLake Development Company, the partnership that executed
the within instrument, and acknowledged to me that such corpora-
tion executed the same as such partner and that such partnership
executed the same.
WITNESS my hand and official seal.
OF?ICIAL SEAL ~ ß. ~~~ /
MARY E BLACKARD
NOTARY PUBLIC - CALIFORNIA
OI1'ANGECüUNTY
My comm. expires APR 5, 1989
o2l7a
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LEGAL DESCRIPTION
THOSE PORTIONS OF SECTIONS 27, 28, 33, 34, AND 35 ALL BEING
IN TOvlliSHIP 17 SOUTH, RANGE 1 WEST, ALL OF SAN BERNARDINO
MERIDAN, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA,
ACCORDING TO UNITED STATES GOVERNMENT SURVEY, TOGETHER WITH
THAT PORTION OF RANCHO JANAL, ACCORDING TO THE MAP THEREOF
RECORD, IN BOOK 1 PAGE 89 OF PATENTS, RECORDS OF SAN DIEGO
COUNTY ALL BEING DESCRIBED HERZING:
THE TRUE POINT OF BEGINNING BEING THE SOUTWNEST CORNER OF THE
NORTHEAST QUARTER OF FRACTIONAL SECTION 33;
1. THENCE NORTH 170 52' 14" WEST, 4207.74 FEET;
2. THENCE SOUTH 89040' 56" EAST, 3326.91 FEET;
3. THENCE NORTH 530 17' 52" EAST, 663.88 FEET;
4. THENCE NORTH 010 49' 21" NEST, 920.54 FEET;
5. THENCE SOUTH 88057' 38" EAST, 2729. 84 FEET;
6. THENCE SOUTH 00004' 42" EAST, 874.80 FEET;
7. THENCE SOUTH 67047' 42" EAST, 416.80 FEET;
8. THENCE SOUTH 470 42' 18" EAST, 446.13 FEET;
9. THENCE NORTH 880 57' 13" WEST, 71 5 . 40 FEET;
10. THENCE SOUTH 000 04' 42" EAST, 1312.61 FEET;
11. THENCE SOUTH 880 47' 50" EAST, 2633.41 FEET;
12. THENCE SOUTH 880 27' 08" EAST, 820.00 FEET;
13. THENCE SOUTH 010 23' 02" WEST, 1125.63 FEET;
14. THENCE SOUTH 110 19' 49" WEST, 1615.01 FEET;
15. THENCE SOUTH 760 ) l' 54" WEST, 14 9 . 29 FEET;
16. THENCE NORTH 15006' 57" WEST, 180.00 FEET
TO A POINT ON A NON-TANGENT 4936.00 FOOT RADIUS
CURVE CONCAVE SOUTHEASTERLY, THE RADIAL TO SAID
CURVE BEARS NORTH 15° 06' 57" WEST;
17. THENCE SOUTm~ESTERLY ALONG SAID CURVE THROUGH A
CENTRAL ANGLE 090 04' 59" A DISTANCE OF 782.50
FEET TO A LINE TANGENT TO SAID CURVE;
18. THENCE SOUTH 650 48' 04" í'lEST, 1411. 59 FEET;
19. THENCE SOUTH 64031' 41" í'lEST, 450 . 11 FEET;
20. THENCE SOUTH 650 48' 04" WEST, 574.21 FEET;
21. THENCE NORTH 000 OS' 47" EAST, 1215.80 FEET;
22. THENCE NORTH 880 53' 15" ívEST, 2680.31 FEET;
23. THENCE NORTH 890 21' 14" í~EST, 2554.31 FEET;
TO THE TRUE POINT OF BEGINNING.
388.0102 EXHIBIT A
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33 34
BEING .d PORT/ON OF S€C770NS 13
~ .., ¿7. ?ð. .33. .:J'I 4A1f) 35 4tl 8E/N6 4
IN TOJVN.s#/P /7 .sOUTH R.¿v6ê
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ANNEXATION OF EASTLAKE I
TO IMPROVEMENT DISTRICT NO. 22
/'
EXHIBIT A
ORDINANCE NO. 2102
AN ORDINANCE OF THE CITY OF CHULA VISTA ADOPTING THE
DEVELOPMENT AGREEMENT FOR THE EASTLAKE PLANNED COMMUNITY
By a unanimous vote on February 26, 1985, the City Council
placed the ordinance on second reading and adoption.
The development agreement, as permitted by California law,
helps a public agency and a large scale development
identify the rules before large sums of public and/or
private money are invested in a project. The development
agreement sets forth the commitments the developer will do
and the commitments the City will do. EastLake Development
Company agrees to provide the public and private improve-
ments identified in the SPA Plan and the Public Facilities
and Financing Plan and the City agrees not to change the
planning and zoning approvals applicable to EastLake I
during a specified period of time.
The development agreement specifies the time during which
the Ci ty agrees not to change its regulations, the per-
mitted uses of the property, the density or intensity of
uses and provisions for dedication or reservation of land
for public purposes.
Copies of the development agreement (Ordinance No. 2102)
are available at the office of the City Clerk, City Hall,
276 Fourth Avenue, Chula vista, CA.
Dated: 2/28/85
.~~/~
M. Fulas, C, 'City e~k
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