1 RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Chula Vista
276 Fourth Avenue
Chula Vista CA 91910
Attn: City Clerk
No fee for recording pursuant to
Government Code Section 27383
THIS SPACE ABOVE FOR RECORDER’S USE
SECOND AMENDMENT
TO
AGREEMENT BETWEEN THE CITY OF CHULA VISTA
HOMEFED VILLAGE III MASTER, LLC
AND
FLATROCK LAND COMPANY, LLC
FOR
CONSTRUCTION OF NEIGHBORHOOD PARK P-1 IN OTAY RANCH
VILLAGE 3 AND A PORTION OF COMMUNITY PARK P-2 IN OTAY RANCH VILLAGE 4
Item 5.10 - Second Amendment
Added on 11/07/2022
2 SECOND AMENDMENT
TO
AGREEMENT BETWEEN THE CITY OF CHULA VISTA
AND
HOMEFED VILLAGE III MASTER, LLC
FLATROCK LAND COMPANY, LLC
FOR
CONSTRUCTION OF NEIGHBORHOOD PARK P-1 IN OTAY RANCH
VILLAGE 3 AND A PORTION OF COMMUNITY PARK P-2 IN OTAY RANCH VILLAGE 4
This Second Amendment (the “Second Amendment”) is effective as of this ____ day of __________, 2022_(the “Effective Date”) by and between the CITY OF CHULA VISTA (the “City”), a municipal corporation and charter city and HOMEFED VILLAGE III, MASTER, LLC, a Delaware limited liability company (referred to herein as “Master Developer” or “HomeFed”), and FLATROCK LAND COMPANY, LLC, a Delaware limited liability company (“FlatRock”) (sometimes collectively referred to as “Developer Parties”) with reference to the following facts:
RECITALS
WHEREAS, City and Master Developer previously entered into that certain agreement, namely, Agreement Regarding Construction of Neighborhood Park P-1 in Otay Ranch Village 3 and a portion of Community Park P-2 in Otay Ranch Village 4, recorded in the Office of the San Diego County Recorder, Document Recording Reference No. 2016-0700044, (the “Original Agreement”) on December 6, 2016; and
WHEREAS, the Original Agreement was amended pursuant to the terms of that certain First Amendment to Agreement Regarding Construction of Neighborhood Park P-1 in Otay Ranch Village 3 and a portion of Community Park P-2 in Otay Ranch Village 4, recorded in the Office of the San Diego County Recorder, Document Recording Reference No. 2018-0416193, (the “First Amendment”) on August 14, 2018; and
WHEREAS, the Original Agreement as amended by the First Amendment (referred to hereinafter simply as the “Original Agreement”), set forth the terms for Master Developer’s satisfaction of its parks requirements with respect to Otay Ranch Villages 3 and 4 (the “Original Parks Requirements”); and
WHEREAS, pursuant to the terms of the Original Agreement, in partial satisfaction of the Original Parks Requirement, Master Developer provided City an Irrevocable Offer of Dedication (“IOD”) on Village 3 North Final Map No. 16160, recorded in the Office of the San Diego County Recorder, Document Recording Reference No. 2016-7000534, for the 7.5-acre Neighborhood Park P- 1; and
WHEREAS, pursuant to the terms of the Original Agreement, and in further satisfaction of the Original Parks Requirements, Master Developer also (1) delivered to City an IOD for 4.7-acres within the Community Park P-2 in Otay Ranch Village 4 (“Community Park North IOD”) and (2) committed to post a bond with the City (the “Community Park Bond”) prior to the building permit issuance for the 782nd residential unit within Village 3 in an amount equal to 110% of the preliminary budget for the de
velopment of the park now commonly referred to as “Community Park North” (the Community Park Item 5.10 - Second Amendment
Added on 11/07/2022
3 North IOD and the Community Park Bond are collectively referred to herein as the “Community Park North Obligation”); and
WHEREAS, City and Master Developer also desire to amend the Original Agreement to allow Master Developer to satisfy its outstanding Community Park North Obligation either by (1) paying Parkland Development Fees consistent with Chula Vista Municipal Code Chapter 17.10 et seq. (“CVMC 17.10”) instead of posting the Community Park Bond; or (2) entering into a new agreement, subject to City Council approval, for the development of park at an alternative location; and
WHEREAS, on June 15, 2021, City approved the Village 3 and a Portion of Village 4 Sectional Planning Area (“SPA”) Amendment by Resolution No. 2021-122 of the City Council which authorized amendments to the land use designations with neighborhoods R-6, R-19 and R-20, resulting in an additional park obligation of approximately 2.21-acres, as calculated in the Village 3 and a Portion of Village 4 Supplemental Public Facilities Financing Plan, Table H.4 and an obligation to pay in-lieu parkland development fees for units within neighborhoods R-6, R-19 and R-20 (the “Additional Park Obligation”); and
WHEREAS, City and Master Developer also desire to Amend the Original Agreement to address how Developer Parties will satisfy the Additional Park Obligation through the dedication of
2.21 acres of community park land and payment of Parkland Development Fees, consistent with CVMC
17.10; and
WHEREAS, FlatRock Land Company LLC, a Delaware limited liability company (“FlatRock”), an affiliate thereof, has acquired approximately 10 (ten) acres located in Village 3 (the “R-20 Property”).
WHEREAS, pursuant to the terms of Section 14.11.1 of the Original Agreement, and by acknowledging and agreeing to the terms of this Second Amendment, FlatRock has agreed to be bound by the terms of the Original Agreement, as amended hereby, applicable to the R-20 Property, including, without limitation the Additional Park Obligations;
NOW, THEREFORE, in consideration of the above Recitals and the mutual obligations of the parties set forth herein, City, Master Developer and FlatRock agree as follows:
Section I. Amendments to Original Agreement
Section 4.1 is hereby amended and restated in its entirety as follows:
4.1 Community Park Budget. The Community Park Budgets both with respect to the Community Park North and Community Park South, as described below, shall be revised annually, consistent with the annual index-based adjustment of in-lieu development fees authorized by CVMC
17.10.110, until such time as the Development Fees are paid for the development of the such Community Parks.
Section 4.2 is hereby amended and restated in its entirety as follows:
4.2 Community Park North. Master Developer agrees it has an outstanding obligation to fulfill its Community Park North Obligation. Master Developer shall fulfill such obligation as follows:
Item 5.10 - Second Amendment
Added on 11/07/2022
4 (a) Master Developer shall provide an Irrevocable Offer of Dedication to the City for 4.7-acres within the Community Park P-2 in Otay Ranch Village 4 (“Community Park North IOD”) upon recordation of the First Final Map for Village 3 (Exhibit A).
(b) Master Developer shall pay to City Parkland Development Fees calculated based upon the development of 4.7-acres of park pursuant to the terms of CVMC 17.10 by no later than City’s issuance of the building permit for fifty-fifth (55) residential unit within neighborhood R-20. In order to allow for negotiations to occur between City and Master Developer for a possible alternative mechanism for Master Developer’s fulfillment of its Community Park North Obligation, the City Manager shall have the authority to extend this building permit trigger, in City Manager’s sole discretion, until prior to the issuance of the building permit for the 112nd residential unit within neighborhood R-20. Per Ordinance No. 3324, the amount of the Development Fee due and payable shall be calculated at the time payment is due consistent with terms of CVMC 17.10.110, including any applicable index- based adjustment authorized thereunder.
Section 4.3 is hereby amended and restated to read in its entirety as follows:
4.3. Additional Obligation for Community Park South. Master Developer agrees it has an outstanding obligation to fulfill its Additional Park Obligation. Master Developer shall fulfill such obligation as follows:
(a) Master Developer, or Developer parties as their interests may arise, shall grant an IOD (Exhibit A) prior to the recordation of the first Final Map in Village 3 for R-19, R-6 or R- 20, whichever comes first, for a total of 2.21 net acres of Community Park Land as provided in the Conditions of Approval for the Tentative Maps (CVT-20-0004 AND CVT-20-0005).
The 2.21 net acre IOD shall be recorded on property located in Area P-2 of Tentative Map CVT-13-03, Otay Ranch Village 8 East (Village 8E P-2 Otay Ranch Community Park South), to the satisfaction of the Director of Development Services (Exhibit B).
(b) Developer Parties shall pay to City Parkland Development Fees for residential units within neighborhoods R-6, R-19 and R-20 pursuant to the terms of CVMC 17.10 prior to final Building Permit inspections for each respective neighborhood. Per Ordinance No. 3324, the amount of the Development Fee shall be based on the current Parkland Development Fee at the time payment is due and consistent with the annual index-based adjustment authorized by CVMC 17.10.110.
Section II. Miscellaneous Provisions of this Second Amendment
a. Except as expressly provided herein, all other terms and conditions of the Original Agreement shall remain in full force and effect. Except as separately defined herein, or the context otherwise requires, all capitalized terms herein shall have the meanings ascribed thereto in the Original Agreement.
b. Each party represents that it has full right, power and authority to execute this Second Amendment and to perform its obligations hereunder, without the need for any further action Item 5.10 - Second Amendment
Added on 11/07/2022
5 under its governing instruments, and the parties executing this Second Amendment on the behalf of s
uch party are duly authorized agents with authority to do so. c.
This Second Amendment may be executed in counterparts, each of which shall be deemed an original, but all of which shall constitute one Second Amendment after each party has signed such a counterpart.
d.
The captions and heading of this Second Amendment are for convenience only and shall not define or limit the provisions hereof.
e.
FlatRock as a new signatory to the Original Agreement hereby acknowledges and agrees that it shall be bound by all provisions of the Original Agreement, as well as, any provisions amended in the Original Agreement by this Second Amendment. FlatRock’s obligations shall be joint and several with those of the Master Developer.
[Remainder of page intentionally left blank]
Item 5.10 - Second Amendment
Added on 11/07/2022
6 SIGNATURE PAGE TO
S
ECOND AMENDMENT TO
AGREEMENT REGARDING CONSTRUCTION OF NEIGHBORHOOD PARK P-1 IN OTAY RANCH VILLAGE 3 AND A PORTION OF COMMUNITY PARK P-2 IN OTAY RANCH VILLAGE 4
+
HOMEFED VILLAGE III MASTER, LLC, a
Delaware limited liability company
CITY OF CHULA VISTA, a California
charter city and municipal corporation
BY:_______________________________ BY:_________________________________
CHRIS FOULGER MARIA KACHADOORIAN
VICE PRESIDENT CITY MANAGER
FLATROCK LAND COMPANY, LLC, a
Delaware limited liability company
ATTEST
BY:_______________________________ BY:________________________________
CHRIS FOULGER KERRY BIGELOW
VICE PRESIDENT CITY CLERK
BY:_______________________________
GLEN R. GOOGINS
CITY ATTORNEY
https://chulavistaca-my.sharepoint.com/personal/mshirey_chulavistaca_gov/Documents/Covid-19 Work From Home/Projects/Village 3/Parks/Agreements/2nd Amendment/V3ParkAgreement-SecondAmend-1.20.22-ACADraft.docx Item 5.10 - Second Amendment
Added on 11/07/2022
7 S
tate of California )
County of San Diego )
On , before me, , a Notary Public,
personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the f
oregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
State of California )
County of San Diego )
On , before me, , a Notary Public,
personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the f
oregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
Item 5.10 - Second Amendment
Added on 11/07/2022
8 Attachments:
Exhibit "A": 4.7-acre Irrevocable Offer of Dedication
Ex
hibit "B": 2.21-acre Irrevocable Offer of Dedication
Exhibit “C”: Ownership Map
Item 5.10 - Second Amendment
Added on 11/07/2022
9 EXHIBIT "A"
Irrevocable Offer of Dedication for 4.7 acres
[See Attached]
Item 5.10 - Second Amendment
Added on 11/07/2022
Item 5.10 - Second Amendment
Added on 11/07/2022
Item 5.10 - Second Amendment
Added on 11/07/2022
Item 5.10 - Second Amendment
Added on 11/07/2022
Item 5.10 - Second Amendment
Added on 11/07/2022
Item 5.10 - Second Amendment
Added on 11/07/2022
Item 5.10 - Second Amendment
Added on 11/07/2022
10 EXHIBIT "B"
Irrevocable Offer of Dedication for 2.21 acres
[See Attached]
Item 5.10 - Second Amendment
Added on 11/07/2022
Item 5.10 - Second Amendment
Added on 11/07/2022
Item 5.10 - Second Amendment
Added on 11/07/2022
Item 5.10 - Second Amendment
Added on 11/07/2022
Item 5.10 - Second Amendment
Added on 11/07/2022
Item 5.10 - Second Amendment
Added on 11/07/2022
1 1
EXHIBIT "C" - Ownership Map
[
See Attached]
Item 5.10 - Second Amendment
Added on 11/07/2022
HUNSAKER
& ASSOCIATES
S A N D I E G O, I N C.
9707 Waples Street (858)558-4500
San Diego, CA 92121
Item 5.10 - Second Amendment
Added on 11/07/2022