MTS Doc No. ____________
EXCLUSIVE NEGOTIATION AGREEMENT
BY AND BETWEEN
City of Chula Vista
AND
San Diego Metropolitan Transit System
AND
Bayview Point, LLC
THIS EXCLUSIVE NEGOTIATION AGREEMENT (Agreement) is made and entered into this ___ day of _____________, 20__ (the “Effective Date”), by and between the City of Chula Vista, a chartered municipal corporation (City) , San Diego Metropolitan Transit System , a public body, corporate and politic (Agency) , and Bayview Point, LLC , a California Liimited Liability Coporation (Developer), individually referred to herein as the “Party” and collectively referred to herein as the “Parties,” with reference to the following:
RECITALS
A. In December 2018, City and Agency agreed to seek partners that would develop a high density, mixed- use, transit -oriented development on the City -owned 707 F Street and Agency-owned 750 E Street properties. Subsequently in April 2019 City released a Joint Request for Qualifications/Request for Proposals (Joint RFQ/RFP) solicitation to identify the most qualified development teams that would develop a high-quality project with seamless planning and design across the nearly ten acres. The schedule required submittals by July 2019 with evaluations and subsequent interviews taking place thereafter.
B. During the pendency of the Joint RFQ/RFP process, the State Legislature passed and Governor Newsom signed into law AB 1486 (Ting), which restricted the process for public agencies to dispose of surplus land.
C. To remove any uncertainty about the status of the Joint RFQ/RFP and the rights of Agency and City to complete the Joint RFQ/RFP process by negotiating agreements with a successful proposer, Agency and City sought legislative amendments to confirm t hat the Joint RFQ/RFP could proceed. SB 51 (Durazo) was approved by Governor Newsom on July 23, 2021.
SB 51 amended Government Code Section 54234 to include a new subsection which reads:
If a local agency, as of September 30, 2019, has issued a competitive request for proposals for the development of property that includes at least 100 residential units and at least 25 percent of the total residential units are restricted to lower income households, as defined in Section 50079.5 of the Health and Safety Code, with an affordable housing cost or an affordable rent, as defined in Sections 50052.5 and 50053 of the Health and Safety Code, for a minimum of 55 years for rental housing and 45 years for ownership housing, the provisions of this article as it existed on December 31, 2019, shall apply, without regard to the changes made to this article by Chapter 664 of the Statutes of 2019, and all subsequent amendments to this article, to the disposition of the property to the party that MTS Doc No. ____________
participated in the competit ive request for proposals process, or the party’s successors or assigns, provided a disposition and development agreement for the property is entered into not later than December 31, 2024. A joint development involving multiple parcels shall meet the requirements of this paragraph so long as there was a single competitive request for proposals process and the joint development otherwise meets all the requirements listed in this paragraph. A “disposition and development agreement” means an agreement between the developer and the local agency that binds the developer to construct a specific development and the local agency to dispose of the property if permits and other entitlements for the project are obtained. This paragraph shall not apply to land held in the Community Redevelopment Property Trust Fund pursuant to Section 34191.4 of the Health and Safety Code, or that has been designated in a long- range property management plan pursuant to Section 34191.5 of the Health and Safety Code. If the property is not disposed of pursuant to a qualifying disposition and development agreement before March 31, 2026, or if no disposition and development agreement is entered into before December 31, 2024, then future negotiations for and disposition of the property shall be subject to the provisions of this article.
D. On September 9, 2021, Agency and City requested updated proposals from the existing Joint RFQ/RFP participants, which would comply with the requirements of Government Code section 54234(a)(3). (Note: a subsequent bill (AB 175) renumbered this provision from subsection (a)(2) to (a)(3). Subsection (a)(3) is referenced throughout this Agreement to be consistent with current law.).
E. On ________________, 2022, City approved moving forward with exclusive negotiations with Developer as it relates to the City Site.
F. On _________________, 2022, the Agency Board of Directors approved moving forward with exclusive negotiations with Developer as it relates to the Agency Site.
G. As a re sult of the above process, the City and Developer desire to enter into negotiations concerning development of certain land (defined below as the “City Site”); H. As a result of the above process, the Agency and Developer desire to enter into negotiations concerning the development of certain land (defined below as the “Agency Site”); I. The Parties recognize and acknowledge the purpose of this Agreement is to set forth the terms upon which the Parties agree to negotiate the terms of one or moreDisposition and Development Agreements (DDAs) with respect to the disposition and development of the City Site and the Agency Site for consideration by their respective legislative bodies.
NOW THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES CONTAINED
HEREIN, AND OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT OF WHICH
IS HEREBY ACKNOWLEDGED BY EACH OF THE PARTIES HERETO, THE PARTIES HERETO AGREE AS FOLLOWS:
MTS Doc No. ____________
Section 1. RECITALS
The Recitals set forth above are hereby incorporated into this Agreement by this reference, as though fully set forth herein.
Section 2. THE CITY AND AGENCY SITES
The City Site is comprised of certain real property located at 707 F Street in the City of Chula Vista, legally described in the Legal Description attached hereto as Exhibit A and incorporated herein by reference. The Agency Site is composed of certain real property located at 750 E Street in the City of Chua Vista , legally described in the Legal Description attached hereto as Exhibit B and incorporated herein by this reference.
Section 3. PURPOSE OF AGREEMENT
A The purpose of this Agreement is to set forth the terms for the negotiation by the Parties of one comprehensive DDA or two individual DDAs providing for the coordinated disposition and development of the City Site and the Agency Site into a mixed use project comprised of high density market rate housing, affordable housing, commercial (office and retail) space, a Full Service hotel, replacement transit parking spaces, and other necessary and approved public and private improvements (P roposed Project). A summary of the terms to be negotiated is provided in Section 6 of this Agreement, below. The Parties acknowledge and agree that the terms of this Agreement , the negotiations conducted hereunder, and the terms of any DDA that may be negotiated and ultimately approved by the Parties as a result of such negotiations, are intended to be in fully compliance with the terms set forth in Government Code Section 54234(a)(3).
B Notwithstanding any provisions of this Agreement, Developer acknowledges and agrees that nothing in this Agreement shall obligate the City or Agency to approve individual DDAs or the Proposed Project or shall otherwise expressly or impliedly obligate the City or Agency to transfer any property or interests therein. Developer further acknowledges and agrees that the approval of this Agreement and individual DDAs and the participation in any portion of the Proposed Project by the City or Agency shall be in the sole and absolute discretion of the City and/or Agency. Developer further acknowledges and agrees that this Agreement does not confer upon Developer the right to have individual DDAs, the Proposed Project, or any portion of the Proposed Project approved by the City and/or Agency. The Parties in no way intend for this Agreement to waive or restrict the Agency’s exercise of its independent, discretionary judgment with regard to individual DDAs and any and all portions of the Proposed Project.
Section 4. EXCLUSIVE RIGHT TO NEGOTIATE
A The City and Agency hereby grant to the Developer and the Developer hereby accept the right under this Agreement to exclusively negotiate the terms of one or more DDAs for the Proposed Project with City and Agency for a period, commencing with the Effective Date,of Two Hundred Seventy (270) calendar days, and continuing in full force and effect until the earlier of (i) expiration or earlier termination of this Agreement pursuant to Sections 8 or 9 of this Agreement and (ii) the date that any individual DDA for the Proposed Project is approved or disapproved by the City of Chula Vista City Council and/or Agency Board (the “Term”).
MTS Doc No. ____________
B Subject to earlier termination pursuant to Sections 8 or 9 of this Agreement, this Agreement shall remain in effect for the Term so long as Developer has not breached this Agreement.
C City, Agency and Developer agree during the Term , and so long as this Agreement is effective, to negotiate diligently and in good faith to prepare individual DDAs to be entered into by the City and Developer, and Agency and Developer with regard to the objectives described above and the purposes of this Agreement. During the Term, the City and Agency agree not to negotiate for the acquisition, financing and/or development of the City and Agency Sites, or any portion thereof, with any party other than the Developer , or approve or conduct a public hearing for any other acquisition, financing and/or development of the City and Agency Sites, or any portion thereof.
D Subject to the approval of the City of Chula Vista City Manager and Agency CEO or their individual designees, each acting in their sole discretion, the Term may be extended one or more additional times for a period not to exceed an aggregate of an additional One Hundred Eighty (180) calendar days upon the request of Developer.
E If Developer requests an additional extension of the Term of this Agreement beyond the extension described in Section 4( E), then any such extension shall be granted, if at all, in the collective sole discretion of the City of Chula Vista City Manager and Agency CEO or their individual designees and only if the Developer agrees to reimburse the City and Agency for all reasonable costs and expenses for staff and consultant time expended on the negotiation and preparation of individual DDAs during such extended term.
F If, upon the expiration of the Term of this Agreement, the Parties have not each approved and Developer has not executed individual DDAs then this Agreement shall automatically terminate and Developer shall have no further rights regarding the subject matt er of this Agreement or all or any part of the City and Agency Sites and the City and Agency shall be free to negotiate with any other persons or entities with regard to all or any part of the City and Agency Sites.
Section 5. TERMS FOR CONDUCT OF NEGOTIATIONS
A City, Agency and Developer hereby agree to comply with each of the following in accordance, as applicable, with the timing described below:
(i) Status Reports. Upon request of City and/or Agency, the Developer shall provide status reports on part icular issues under review or negotiation to the City Principal Economic Development Specialist and Agency Manager of Real Estate Assets. (ii) Financial Analysis. Developer shall provide the City and Agency with a detailed financial analysis for the Proposed Project containing matters typically contained in such analyses, including without limitation, a detailed development cost budget; proposed rents, values, and detailed operating income and expense estimates; and estimated developer returns for each project componen t (Financial Analysis). The Financial Analysis will be used to evidence the financial feasibility of the Proposed Project and to assist in the negotiation of terms in the individual DDAs regarding the financing of the various components of the Proposed Project. City and Agency staff shall use reasonable efforts to review and comment on the Financial Analysis in a timely MTS Doc No. ____________
manner, expected to be within thirty (30) days after receipt of the Financial Analysis from Developer, unless City or Agency requires the assistance of outside consultants to complete such review.
(iii) Submittal and Review of Conceptual Plans . The Developer shall submit to the City and Agency conceptual plans for the development of the Proposed Project (Conceptual Plans). City and Agency staff and the City of Chula Vista City Council and Agency Board shall use reasonable efforts to review and comment on the Conceptual Plans in a timely manner.
(iv) City’s Planning Process. Developer , at its sole cost and expense, shall submit to the City of Chula Vista Development Services Department such plans as are necessary to conduct a single or multi-discipline preliminary review for the Proposed Project that the City reasonably determines must be completed prior to the submittal of individual DDAs for City of Chula Vista City Council or Agency Board approval. Such plans shall be for the entire City and Agency Sites and Proposed Project. Developer shall be solely responsible for paying any and all costs and expenses associated with Developer’ preparation of such plans and with the review and processing of the plans by the City and the Agency. The City (as owner of the City Site) and Agency (as owner of the Agency Site) at no material cost thereto, shall reasonably cooperate with Developer in processing the plans, including, without limitation, execution of all necessary applications to the City.
(v) CEQA Compliance. Developer, at its sole cost and expense, shall be responsible for compliance with the California Environmental Quality Act (CEQA) in connection with the development of the City and Agency Sites and the Proposed Project. Developer shall be solely responsible for paying any and all costs and expenses associated with the City and Agency’s compliance with applicable CEQA requirements ( including, without limitation, any required Environmental Impact Report and/or other required environmental documents). Developer shall cooperate fully and in a timely manner to requests for information from the City or Agency and any of the City or Agency’s consultants. The City (as the owner of the City Site) and Agency (as the owner of the Agency Site) at no material cost thereto, shall reasonably cooperate with Developer in processing the CEQA analysis, including, without limitation, execution of all necessary applications therefor. Subject to Developer’s obligation to pay such costs, t he City and Agency shall conduct any required CEQA review required by this Section 5(A)(v) in order to take action on individual proposed DDAs with Developer. Alternatively, City, Agency and Developer recognize that they may conclude, after a legal review, that the CEQA review process is instead required to take place during the pendency of the individual proposed DDAs but before the execution of a purchase and sale agreement long-term ground lease for the City/Agency Sites. If the City or Agency is required to defend an action under CEQA related to the Project, Developer agrees to defend and indemnify the City and Agency from all costs and expenses of such defense, including reasonable attorneys’ fees of the City and Agency or attorneys’ fees awarded by a court arising out of such action.
(vi) DDA Process. If the negotiations hereunder culminate in individual DDAs that are acceptable to the Parties, such agreements shall become effective only after and if the individual DDAs have been considered and approved by the City of Chula Vista City Council and Agency Board after a public meeting. The City and Agency shall reasonably cooperate with Developer in order to enable Developer to meet its deadlines (including, without limitation, using reasonable efforts to make City and Agency staff and consultants available as reasonably needed MTS Doc No. ____________
to allow the City and Agency to timely perform their obligations under this Agreement); however, the City and Agency shall not be obligated to expedite any reviews, approvals, notices, meetings or other matters, and nothing contained i n this Agreement shall be construed to limit the City or Agency’s discretion in its activities in connection with the Proposed Project. (vii) City and Agency’s Right to Additional Information. The City and Agency reserve the right, during the Term of this Agreement, to request reasonable additional information and data from Developer necessary for review and evaluation of the City and Agency Sites and the Proposed Project; provided, however, Developer shall not be obligated to provide any information or data that is not reasonably related to City or Agency’s review and evaluation of the Project and the proposed DDA terms. Developer agrees to provide such additional information or data as requested in a timely manner. All infor mation regarding the Developer ’s business practices and finances which may be provided to the City and Agency shall remain confidential to the extent permissible by law including, without limitation, the California Public Records Act. If the City or Agency at the request of the Developer is required to defend an action under the California Public Records Act with regard to a request for disclosure of any of the documents or reports related to the Project, Developer agrees to defend and indemnify the City and Agency from all costs and expenses of such defense, including reasonable attorneys’ fees of the City and Agency or attorneys’ fees awarded by a court arising out of such action. (viii) Developer’s Due Diligence . During the Term of this Agreement , Developer shall have the right to examine, inspect and investigate the City and Agency Sites and to determine whether the City and Agency Si tes are acceptable to Developer, which right of Developer is subject to and conditioned upon the terms and provisions of a Right of Entry Agreement, the form of which will be the one most currently used by the City or Agency at the time of required entry.
(ix) City and Agency Not Responsible for Costs; Negotiation Payment. (a) Except as otherwise may be mutually agreed to in writing by the Parties, as part of this Agreement or the DDA, the City and Agency shall not be liable for any costs and expenses associated with the pr eparation of any reports by Developer or the planning or development of the City or Agency Sites pursuant to or arising from this Agreement. (b) Developer shall pay to the City a payment of One-hundred Thousand Dollars ($100,000) due on the Effective Date (Negotiation Payment). The Negotiation Payment shall be made in consideration of Cit y/Agency entering into this Agreement and shall be used by City/Agency to cover expenses incurred in connection with this Agreement, including but not limited to, legal expenses, financial analysis expenses, administrative and staff expenses, materials, and labor (Expenses).
(1) In the event the parties are unable to agree to the terms of individual DDAs resulting in termination or expiration of this Agreement, City will deduct from the Negotiation Pa yment all Expenses and return any remaining portion to Developer, provided that the City shall be entitled to retain the entire Negotiation Payment, regardless of Expenses, in the event of a material breach of this Agreement by Developer as set forth in Section 8. To obtain this refund and related accounting, Developer must send to City by certified mail, a written notice of cancellation, requesting an accounting and refund of any remaining portion of the Negotiation Payment minus Expenses. City will provide the accounting and refund within forty-five (45) days after receiving a cancellation notice and request. Except as set forth MTS Doc No. ____________
above, the Developer hereby waives any claim or right to any refund of the Negotiation Payments, any portion thereof, and any interest accrued thereon.
(2) In the event City’s Expenses exceed the Negotiation Payment, or are reasonably anticipated to exceed the amount of the Negotiating Payment that remains on deposit, City, and Developer shall meet and confer on the amount of an additional deposit necessary to cover City’s Expenses up to and until individual DDAs are executed by the Parties, or until this Agreement is terminated pursuant to Sections 8 or 9, whichever occurs first.
Developer shall make an additional payment to City within fifteen (15) days of receiving City ’s request for additional funds.
(x) Individual DDAs to Supersede this Agreement. This Agreement will be superseded by individual DDAs, if and when the proposed individual DDAs are executed by Developer, approved by the City and/or Agency in the manner required by law, and executed by the City and/or Agency.
(xi) Real Estate Commissions . Neither the City, Agency nor the Developer shall be liable for any real estate commissions or brokerage fees which may arise herefrom. City, Agency and Developer each represent it has not engaged a broker, agent or finder in connection with this transaction. Developer agrees to defend, hold harmless and indemnify the City and Agency from any claim by any broker, agent or finder retained, or claimed to have been retained, by Developer. City and Agency agree to defend, hold harmless and indemnify Developer from any claim by any broker, agent or finder retained, or claimed to have been retained by the City or Agency.
Section 6. DDA TERMS TO BE NEGOTIATED
A City, Agency and Developer shall meet regularly with each other in order to negotiate proposed individual DDAs which shall include, without limitation, the following provisions:
(i) A Scope of Development for the Proposed Project setting forth the total square feet of development space, the number of required replacement transit parking spaces and the design parameter s for the City and Agency Sites including, but not limited to, building height, acceptable architectural and landscape quality, access and circulation, determination of parcel boundaries, on- City and Agency Sites and off-City and Agency Site s improvements, City and Agency Site-perimeter treatment, landscaped buffers, parking, signage, lighting, and easements, if applicable. Use issues involving the compatibility and amount of uses, their financial feasibility and their physical compatibility, shall also be resolved. (ii) The manner in which the edges of the development are designed to maximize compatibility with the abutting and adjacent uses by the use of a variety of materials to provide a sense of visual relief and openness, to preserve the privacy of adjac ent residential units and to minimize noise and other impacts, if any.
(iii) The coordination of the planning, design and construction of the Developer’s Proposed Project to maximize the Proposed Project’s compatibility with the abutting and adjacent uses, including operation of the transit center operated by Agency, and to minimize environmental, traffic and other impacts on the abutting and adjacent uses.
MTS Doc No. ____________
(iv) The manner in which the development will be designed to be compatible with the Urban Core Specific Plan, and any other applicable land use plans. (v) A sources and uses budget, which shall be based upon a financial pro forma that has been approved by the City and/or Agency, and a feasible method of financing, reasonably demonstrating to the City and Agency the availability of all funds needed to complete the development of the Proposed Project.
(vi) The timing and conditions precedent for the conveyance of the City and Agency Sites or portions thereof including, without limitation, City/Agency approval of sources and terms for Proposed Project financing, and concurrent closing of such financing. (vii) Financial consideration to be paid by Developer to the City and Agency for conveyance of a fee simple transfers or long-term ground lease interests in the City or Agency Sites respectively to Developer for purposes of developing the Proposed Project. (viii) Number, location, and type of parking to be reconstructed for use by City and Agency and access to City and Agency facilities. (ix) Any transit facilities that need to be constructed or reconstructed for use by Agency after construction of the Proposed Project. (x) The terms of any financial assistance to be provided by the City or Agency for the payment of eligible development costs of the Proposed Project and Developer’s construction of additional off-City or Agency Site improvements requested by the City or Agency and agreed to by the Developer, if any.
(xi) A schedule of performance encompassing appropriate and necessary legal, administrative, transfer of property interest , financial and construction benchmarks to be met by the appropriate Party.
(xii) The DDA with Agency shall be subject to the requirements of Agency Board Policy No. 18, Section C(7) and C(8), which require:
(a) All projects approved pursuant to the program shall be considered public works for purposes of Chapter 1 (commencing with Section 1720) of Part 7 of Division 2 of the Labor Code, regardless of whether an exemption under Section 1720 of the Labor Code applies to the project; and
(b) A joint development agreement between MTS and a private entity shall include a requirement that the developer’s construction comply with Public Utilities Code section 120221.5.
(xiii) The individual DDAs shall be subject to the City’s and Agency’s standard insurance requirements and all other applicable and customary City and Agency policies.
Such other provisions regarding the participation and responsibilities of the Developer, City, and the Agency deemed necessary or advisable by the City and Agency to further the purpose of MTS Doc No. ____________
developing the Proposed Project, revitalizing the area around the City and Agency Sites, and meeting all applicable legal requirements including, without limitation, the requirements of Government Code Section 54234(a)(3).
Section 7. LIMITATIONS ON REMEDIES FOR BREACH OR DEFAULT AND
RELEASE OF CLAIMS
A Rights and Remedies . If any Party defaults with regard to any of the provisions of this Agreement, then the non-defaulting Part(ies) shall serve written notice of such default upon the defaulting Party. If the default is not cured within a reasonable time (but not more than fifteen (15) calendar days), then the defaulting Party shall be liable to the non-defaulting Party for any direct, out of pocket, damages caused by such default, and the non-defaulting Party may thereafter (but not before) commence an action for such damages against the defaulting Party with respect to such default; provided however, that no Part(ies) shall have any obligation to any other Party for payment of punitive, exemplary or consequential damages (including, without limitation, any claim for opportunity costs or lost profits) (collectively, “special damages”) and provided further, that each Party waives its right to bring an action for special damages or specific performance against t he other Part(ies), except that Developer may bring an action for specific performance to enforce the Agency’s obligation to negotiate exclusively with Developer during the Term of this Agreement and the City or Agency may bring an action for specific performance to enforce Developer ’s obligation to pay those City and Agency costs expressly required by this Agreement to be paid by the Developer. In the event of a breach or default of this Agreement, the non- breaching Part (ies) shall be entitled to only the remedies available pursuant to the terms of this Agreementand all such remedies are cumulative in nature and may be asserted by such Part(ies) in the alternative and the assertion of a remedy by a Party shall not be deemed an exclusive election of remedies or waiver of any other rights conferred on that Party by the terms of this Agreement.
B Section 1542. Each Party acknowledges that it is aware of the meaning and legal effect of California Civil Code Section 1542, which provides:
A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at t he time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.
C General Release. California Civil Code Section 1542 notwithstanding, it is the intention of all of the Parties to be bound by the limitation on damages and remedies set forth in this Section 7 of the Agreement, and the Parties hereby release any and all claims against each other and their respective officers, officials, employees, consultants or agents for damages or specific performance (except as set forth above) related to any breach of this Agreement (other than those claims and damages allowed in Section 7 (A) above), whether or not any such released claims were known or unknown to any of the Parties as of the date of this Agreement.
Each of the Parties hereby waives the benefits of California Civil Code Section 1542 and all other statutes and judicial decisions (whether state or federal) of similar effect with regard to the limitations on damages and remedies and waivers of any such damages and remedies contained in this Section 7.
______________ ________________ ________________
City’s Initials Agency’s Initials Developer’s Initials MTS Doc No. ____________
Section 8. TERMINATION BY CITY AND/OR AGENCY
A City and Agency shall have the right to terminate this Agreement in the event of any of the following:
(i) Developer fails timely to perform any of their obligations hereunder or are otherwise in default under this Agreement, after expiration of any applicable notice and cure periods; or
(ii) The negotiations reach a point where the City of Chula Vista City Council and/or Agency Board, each acting in their sole and unfettered discretion, has rejected a last, best and final proposal from Developer and determ ined that further negotiations with Developer are not likely to lead to an agreement.
B The City or Agency’s right of termination in Section 8.A(i), above, shall be subject to the fifteen (15) calendar day notice and cure provisions set forth in Section 7(A) of this Agreement.
Section 9. TERMINATION BY DEVELOPER
A. Developer shall have the right to terminate this Agreement in the event of the occurrence of any of the following:
(i) Developer determines, in its sole and absolute discretion, that (i) the development of the Proposed Project is not financially feasible or (ii) it is reasonably likely that the Proposed Project will not obtain all necessary entitlements and environmental clearances necessary for the development and operation of the Proposed Project. (ii) In the course of its investigation of the City or Agency Sites , Developer discovers any currently unknown conditions or circumstances which would materially impact the cost of the Proposed Project and/or the use of all or any portion of the Proposed Project; or
(iii) City or Agency fails timely to perform any of its obligations hereunder or is otherwise in default under this Agreement.
B. Developer’s right of termination shall be subject to the fifteen (15) calendar day notice and cure provisions set forth in Section 7(A) of this Agreement.
Section 10. NO THIRD PARTY BENEFICIARIES
City, Agency and Developer expressly acknowledge and agree they do not intend, by their execution of this Agreement, to benefit any persons or entities not a signatory to this Agreement, including, without limitation, any brokers representing the parties to this transaction. No person or entity not a signatory to this Agreement shall have any rights or causes of action against City, Agency or Developer arising out of or due to City’s, Agency’s or Developer’s entry into this Agreement.
MTS Doc No. ____________
Section 11. NOTICES
A Any notice, request, approval or other communication required to be provided by any Party under this Agreement shall be in writing and dispatched by first class mail, postage prepaid, or by personal delivery (including by means of professional messenger service, courier service such as United Parcel Service or Federal Express, or by U.S. Postal Service), to the addresses of the City, Agency and the Developer set forth in Section 11(B) of the Agreement, with an additional copy sent by email to the recipient . Such written notices, requests, approvals or other communication may be sent in the same manner to such other addresses as either Party may designate from time to time.
B Any notice pe rsonally delivered (including by means of professional messenger service, courier service such as United Parcel Service or Federal Express, or by U.S.
Postal Service), shall be deemed received on the documented date of receipt; and any notice that is sent by first-class mail, postage prepaid shall be deemed received on the date of receipt thereof.
If to the City:
Glen Googins, City Attorney
City of Chula Vista
276 Fourth Avenue
Chula Vista, CA 91910
Email: [email protected]
If to the Agency:
Karen Landers, General Counsel
San Diego Metropolitan Transit System
1255 Imperial Avenue, Suite 1000
San Diego, California 92101
Email: [email protected]
If to the Developer:
James Pieri
Bayview Point, LLC
496 Third Avenue
Chula Vista, CA 91910
Email: [email protected]
Section 12. NO CONFLICT OF INTEREST
No member, official, or employee of City or Agency shall have any personal interest, direct or indirect, in this Agreement, nor shall any such member, official or employee participate in any decision relating to this Agreement which affects his or her personal interests or the interests of any corporation, partnership or association in which he or she is, directly or indirectly, interested.
Developer warrants that it has not paid or given, and will not pay or give, directly or indirectly, any MTS Doc No. ____________
City or Agency employee or official any money or other consideration at all, whether or not connected in any way with the subject matter of this Agreement. Further, Developer warrants that it has no knowledge of any financial interest of any City or Age ncy employee or official in Developer, directly or indirect ly, or in any perso n or entity affiliated with Developer , or in any transaction in which Developer have been involved.
Section 13. LIMITATION ON EFFECT OF AGREEMENT
This Agreement shall not obligate any Party to enter into individual DDAs or to enter into any particular DDA. City, Agency and Developer do not intend this Agreement to be a purchase agreement, ground lease, license, option or similar contract. Nor do City, Agency and Developer intend to be bound in any way by this Agreement except during the Term as expressly set forth herein. By e xecution of this Agreement, City and Agency are not committing themselves to or agreeing to undertake acquisition, disposition, or exercise of control over any portion of the City or Agency Sites nor is Developer committing itself to undertake the acquisition of any portion of the City or Agency Sites or the development, financing or construction of the Proposed Project .
Execution of this Agreement by the City, Agency and Developer is merely an agreement to conduct a period of exclusive negotiations and to prepare recommendations to the City of Chula Vista City Council and Agency Board in accordance with the terms hereof, reserving for subsequent City and Agency action the final discretion and approval regarding the execution of individual DDAs and all proceedings and decisions in connection therewith. Any individual DDA resulting from negotiations pursuant to this Agreement shall become effective only if and after such individual DDAs have been considered and approved by the City of Chula Vista City Council and Agency Board following performance of all legally required procedures. Each Party assumes the risk that, notwithstanding this Agreement and good faith negotiations, the Parties may not enter into individual DDAs due to the Parties’ failure to agree upon essential terms of a transaction or a decision by the City of Chula Vista City Council or Agency Board not to authorize execution of individual DDAs. Except as expressly provided in this Agreement, a Party shall have no obligations or duties to the other Part(ies) hereunder and no liability whatsoever in the event the Parties fail to execute individual DDAs.
Section 14. MISCELLANEOUS PROVISIONS
A Counterparts. This Agreement may be executed in counterparts, each of which when so executed shall be deemed an original, and all of which, when taken together, shall constitute but one and the same instrument.
B Entire Agreement/Integration. This Agreement represents the entire agreement of the Parties and integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements, oral or written, between the Parties with respect to development of the City or Agency Sites.
C Waivers; Amendments. All waivers of the provisions of this Agreement must be in writing and signed by the appropriate authorized agents or officers of the Party to be charged, and all amendments and modifications hereto must be in writing and signed by the appropriate authorized agents or officers of the Parties. Except as otherwise expressly provided in this Agreement, any failure or delay by either Party in asserting any of its rights or remedies as to any Default shall not operate as a waiver of said Default or of any rights or remedies in connection therewith or of any subsequent Default or any rights or remedies in connection MTS Doc No. ____________
therewith, 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.
D Governing Law and Venue. This Agreement and the legal relations between the Parties shall be governed by, interpreted under, construed and enforced in accordance with, the internal laws of the State of California without reference to the rules governing the conflict of laws. This Agreement is made and entered into in the County of San Diego, California, and any legal actions or proceedings arising from or related to this Agreement shall be brought in the County of San Diego.
E No Association Between Developer and City or Agency. The Parties in no way intend for this Agreement to give rise to or create any relationship of partnership, joint venture, or any other form of association of any kind or nature between Developer and City and/or Agency.
F Litigation Expenses and Attorneys’ Fees. In the event any action, suit or proceeding is brought for the enforcement of, or the declaration of any right or obligation pursuant to this Agreement or as a result of any alleged breach of any provision of this Agreement, the prevailing Party in such suit or proceeding shall be entitled to recover its costs and expenses, including reasonable attorney’s fees, from the losing Party, and any judgment or decree rendered in such a proceeding shall include an award thereof.
G Assignment. This Agreement shall not be assignable by any Party without the prior written consent of all Parties. The City or Agency shall have the right to terminate this Agreement if Developer assigns this Agreement or if there is any material change in the management or control of the Developer.
H Ambiguities. This Agreement is in all respects intended by each Party hereto to be deemed and construed to have been jointly prepared by the Parties and the Parties hereby expressly agree that any uncertainty or ambiguity existing herein shall not be interpreted against any of them. Except as expressly limited by this Section 14 (H) of the Agreement, all of the applicable rules of interpretation of contracts shall govern the interpretation of any uncertainty or ambiguity of this Agreement.
I Captions and Headings. The headings and captions of the various sections and paragraphs of this Agreement have been inserted only for the purpose of convenience and are not a part of this Agreement and shall not be deemed in any manner to modify, explain, expand or restrict any of the provisions of this Agreement.
J Severability. Every provision of this Agreement is intended to be severable.
If any provision of this Agreement or the application of any provision hereof to any party or circumstance is declared to be illegal, invalid or u nenforceable for any reason whatsoever by a court of competent jurisdiction, such invalidity shall not affect the other terms and provisions hereof or the application of the provision in question to any other party or circumstance, all of which shall continue in full force and effect.
K Warranty Against Payment of Consideration for Agreement . Developer warrants that they have not paid or given, and will not pay or give, any third party any money or other consideration for obtaining this Agreement.
MTS Doc No. ____________
L Nonliability of Officials, Officers, Members, and Employees . No member, official, officer, or employee of the City or Agency shall be personally liable to Developer, or any successor in interest, in the event of any default or breach by City or Agency or for any amount which may become due to Developer or to their successors, or on any obligations under the terms of this Agreement. No member, officer or employee of Developer shall be personally liable to the City or Agency, or any successor in interest, in the event of any default by the Developer or for any amount which may become due to the City or Agency or its successor, or an obligation under the terms of this Agreement.
M Authority to Enter Agreement . Developer represents and warrants that it has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and to bind each respective Party.
[Remainder of page intentionally left blank]
MTS Doc No. ____________
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as of the Effective Date.
Date:
_______________________________
Date:
_______________________________
Date:
_______________________________
CITY OF CHULA VISTA
By: ___________________________________
Maria V. Kachadoorian, City Manager
Approved as to Form:
By: ___________________________________
Glen R. Googins, City Attorney
SAN DIEGO METROPOLITAN TRANSIT
SYSTEM
By: ___________________________________
Sharon Cooney, Chief Executive Officer
Approved as to Form:
By:
______________________________________
Karen F. Landers, General Counsel
Date:
_______________________________
BAYVIEW POINT, LLC
By:
______________________________________
James Pieri, President and CEO
https://chulavistaca-
my.sharepoint.com/personal/mshirey_chulavistaca_gov/Documents /Covid-19 Work From Home/Corp Yard/Agreements/ENA-9.22.22- InterimFinal.doc
EXHIBIT A
LEGAL DESCRIPTION OF CITY SITE
The land referred to herein is situated in the State of California, County of San Diego, City of Chula Vista and described as follows:
APN: 567-031-27-00
All of the southeast quarter of the northwest quarter of quarter section 162 of subdivision of Rancho De La Nacion, in the City of Chula Vista, County of San Diego, State of California, according to Map thereof No. 505, filed in the Office of the County Recorder of San Diego County, March 13, 1888.
Excepting therefrom the easterly 30 feet, the Southerly 40 feet and the westerly 140 feet.
Also excepting therefrom, that portion conveyed to San Diego and Arizona Railway Company, by Deed dated May 8, 1920, and recorded in Book 811, Page 414 of Deeds, records of said San Diego County, described as follows:
Beginning at a point on the northerly line of “F” Street, distant 100 feet easterly from the easterly line of Bay Boulevard which point of commencement is on easterly line of Grantee’s main line right of way; thence easterly along northerly line of “F” Street, 279.00 feet; thence northwesterly along a curve to the right, having a radius of 439.276 feet, through a central angle 51° 25’ to a point on said easterly right of way line distant 260.51 feet northerly from said northerly line of “F” Street; thence southerly along said easterly right of way line, 260.51 feet to the point of beginning.
APN: 567-031-27-00
(End of Legal Description)
EXHIBIT B
LEGAL DESCRIPTION OF AGENCY SITE