THE ATTACHED AGREEMENT HAS BEEN REVIEWED
AND APPROVED AS TO FORM BY THE CITY
ATTORNEY' S OFFICE AND WILL BE
FORMALLY SIGNED UPON APP VA Y
T CITY OUNCI
Gle R. Googins
City Attorney
Dated: / b /
DEVELOPMENT AGREEMENT
BETWEEN
TI- CITY OF CHUI_ A VISTA AI TD
VILLAGE II OF OTAY HB SUB; OTAY RANCH II SUN 12, LLC;
OTAY RANCH VILLAGE II- PC- 15, LLC;
VILLAGE II OF OTAY, LP; SUNRANCH CAPITAL PARTNERS, LLC;
AND MONTECITO VILLAGE, LLC
RECORDED AI REQUEST OF
AND WHEN RECORDED RETURN IO:
City of Chula Vista
276 Foulth Avenue
Chula Vista, California 91910
Attn: City Clerk Fee Exempt - Gov't Code §6103
(Space above for Recorder's Use)
DEVELOPMENT AGREEMENT
among
THE CITY OF CHULA VISTA,
a California charter city and municipal corporation
and
the entities comprising the "OWNER" as defined in Section 1.16 below 60093 00025\9324655 6 24oct14 - t IHIS DEVELOPMENI AGREEMENI ("Agreement") is entered into as of the EfFective Date (as defined below) by and among IHE CII'Y OF CHULA VISIA, a California charter city and municipal corporation ("City"), and the entities comprising the "OWNER" as defined in Section 1 16 below fhe City or the Owner are sometimes individually referred to in this Agreement as a "Party" and are collectively referred to as the "Parties" The Par'des enter into this Agreement with reference to the fbllowing recited facts (each a "Recital"):
RECITALS
A Io strengthen the public planning process, encourage private participation in comprehensive planning and to reduce the economic risk of development, the State of Califbrnia has enacted the Development Agreement Statute, found at Sections 65864 et seq,, of the California Government Code
B Ihe City is authorized by the Development Agreement Statute and by its City Charter to enter into development agreements with persons and entities having legal or equitable interests in teal property fbr the purpose of establishing predictability for both the City and the property owner in the development process and in the provision of public infiastructure and public benefits
C Owner has a legal or equitable interest in that certain real property consisting of approximately 362 7 acres of land located in the City of Chula Vista, County of San Diego, State of California, more particularly described and depicted in Exhibit "A" to this Agreement (the "Property")
D Ihe Property is located in the Otay Ranch Village of Montecito Sectional Planning Area Plan ("SPA Plan") It is currently partially developed having previously been entitled by the City for the development contemplated by the SPA Plan E Owner desires to amend the land use designations for areas of the SPA Plan to allow for additional residential units, parkland, school site and CPF facilities to enhance the Property as a unified, walkable and mixed-use development which offers potential residents additional housing options (the "Project'), A general description and depiction of key elements of the Project is contained in Exhibit "B" to this Agreement I: Owner has equested that the City enter into a development agreement for the development of the Project on the Property, and the City desiles to enter into this Agreement pursuant to the provisions of the California Government Code, the City Charter, the General Plan, the City Municipal Code, and applicable City policies 60093 00025\9324655 4 -2 G This Agreement assures that development of the Project will occur in accordance with the General Plan, the Otay Ranch General Development Plan ("Otay Ranch GDP"), the SPA Plan, as amended by the Prqject Approvals, and all of the implementing egulations for those various Plans
H Ihis Agreement constitutes a current exercise of' the City's police powers to provide predictability to the Owner in the development approval process by vesting the permitted uses, density, intensity of use, and timing and phasing of the Project in exchange for the Owner's commitment to provide significant public benefits to City I Ihis Agreement is also intended to ensure that the Owner has provided nding sufficient to provide the adequate and appropriate infiastructure and public facilities required by the development of the Prqject, and that this infiastructure and public facilities will be available no later than when required to serve the Project's demand J The commitments of the Owne made in this Agreement allow the City to realize significant economic, recreational, park, open space, educational, social, public facilities or other public benefits These public benefits will advance the intelests and meet the needs of Chula Vista's residents and visitors to a significantly greate extent than would development of the Project under the current entitlements and absent this Agreement K In return for the Owner's commitment to provide these public benefits, the City is willing to exercise its authority to enter into this Agreement and to make a commitment of predictability for the development process for the Project
AGREEMENI
For good and valuable consideration, the City and Owner agree as fbllows:
DEFINIq-IONS In this Agreement, unless the context otherwise requires, the following terms and phrases shall have the following meanings:
11 "Agreement" means this Development Agreement between the City and the Owne Ihe term "Agreement" shall include any amendment to the Agreement properly approved and executed pmsuant to the terms of this Agleement 12 "Approval Date" means the date on which the City Council conducted the fi,st reading ofthe Enabling Ordinance as part of the Project Approvals t3 "City" means the City of Chula Vista, a California charter city and municipal cmpmation
1 4 "City Charter" means the City ofChula Vista's City Charter 1 5 "City Council" means the governing body of the City 60093 00025\9324655 4 -3 16 "City Manager" means the City Manager of the City or his m her designee 17 "City Municipal Code" means the Chula Vista Municipal Code 18 "Day" means a calendar day unless specifically stated as a "business day" 19 "Effective Date" means the date on which the Enabling Ordinance becomes effective and the Parties have each signed this Agreement 110 "Enabling Ordinance" means City Ordinance No
Agreement was approved
by which this
111 "Existing Land Use Regulations" means all Land Use Regulations in effect on the Approval Date, including the General Plan, Otay Ranch GDP and SPA Amendments and other Project Approvals, but excluding any amendment or modification to the Land Use Regulations adopted, approved, or imposed after' the Approval Date that impairs or restricts Owner's rights set forth in this Agreement, unless such amendment or modification is expressly authorized by this Agreement or is agreed to by Owner in writing Owner has consented to the General Plan, Otay Ranch GDP and SPA Amendments and other Prcject Approvals in effect on the Approval Date, which shall all be considered part of the Existing Land Use Regulations
112 "General Plan" means the General Plan of the City of Chula Vista 113 "General Plan Amendment" means the amendments to the General Plan that are enacted as part of the Project Approvals
114 "Land Use Regulations" means all ordinances, resolutions, codes, rules, regulations and official policies of the City governing the development and use of land, including, without limitation, the permitted use of land, the density or intensity of use, subdivision requirements, timing and phasing of development, the maximum height and size of' buildings, the provisions for reservation or dedication of'land for public purposes, the City's public improvement engineer ing ordinances, policies, rules, regulations and standards, and the design, improvement, construction, and initial occupancy standards and specifications applicable to the Prc ject "Land Use Regulations" do not include any City ordinance, resolution, code, rule, regulation or official policy governing:
1141 Ihe conduct or taxation of businesses, professions, and occupations applicable to all businesses, professions, and occupations in the City; 1142 Iaxes and assessments of general application upon all residents of the city
1143 Ihe control and abatement of nuisances
60093 00025\9324655 4 -4 1 15 "Mortgagee" means a mortgagee of a mortgage, a beneficiary under a deed of' trust or any other secmity-device, a lender, and their successors and assigns 1 16 "Owner" means, jointly and severally, VILLAGE II OF OIAY HB SUB, a California general partnership, OIAY RANCH II SUN 12, LLC, a Delaware limited liability company, OIAY RANCH VILLAGE II-PC-15, LLC, a Delaware limited liability company, VILLAGE Ii OF O'fAY, LP, a Delaware limited partnership, SUNRANCH CAPIIAL PARTNERS, LLC, a Delaware limited liability company, MONIECIIO VILLAGE, LLC, a California limited liability company, and Owner's successors and assigns as set forth in the Agreement Each individual Owner is jointly and severally responsible fbr all obligations of the Owner set forth in this Agreement
1 17 "Owner's Vested Right" shall have the meaning set fbrth in Section 4 1 I 18 "Otay Ranch GDP" means the Otay Ranch General Development Plan 1 19
1 20
"Otay Ranch GDP Amendments" means the amendments to the Otay Ranch GDP that are enacted as part of the Project Approvals
"Parties" means the City on the one hand, and Owner on the other hand A "Party" means either the City or the Owner
1 21 "Project" means the development of the Property, including all related on-site and off-site improvements, as set forth in the Prc ject Approvals and Subsequent Project Approvals
1 22 "Project Approvals" means all permits and other entitlements approved or issued by the City for the use of; construction upon, and/or development of the Project on the Property A listing of' the Project Approvals is contained in Exhibit "C" to this Agreement
1 23 "Ptoperty" means the zeal property described and depicted in Exhibit "A" 1 24 "Reservation of Authority" or "Reserved Authority" means the rights and authority specifically reserved to the City which limits the assurances and rights provided to the Owner and the Owner's Vested Right under this Agreement 1 25 "Section" means a numbered section of this Agreement, unless specifically stated to refer to another document or mattes
126 "SPA Plan" means the Otay Ranch Village of Montecito Sectional Planning Area Plan
1 27 "SPA Plan Amendments" means the amendments to the SPA Plan that axe enacted as part of the Pmiect Approvals
60093 00025\9324655 4 -5 1 28 "Subsequent Project Approvals" means all Project Approvals approved, granted, or issued after the Approval Date which are required or permitted by the Project Approvals, Existing Land Use Regulations, any applicable Subsequent Land Use Regulations and this Agreement A listing of the anticipated Subsequent Prc ject Approvals is contained in Exhibit "D" to this Agreement 129 "Subsequent Land Use Regulations" means those Land Use Regulations which are both adopted and effective after the Approval Date and which are not included within the definition of Existing Land Use Regulations "Subsequent Land Use Regulations" include any Land Use Regulations adopted by moratorium, initiative, City action, or otherwise
130 "Ferm" means the term of this Agreement as set forth in Section 61 of this Agreement
1NIERESI OF OWNER Owner represents that it has a legal or equitable interest in the Property and is authorized to enter into this Agreement PUBLIC HEARINGS On , after providing notice as required by law, City Council held a public hearing on this Agreement and made any legally required findings as set forth in the Enabling Ordinance
4 DEVELOPMENI OF IHEPROIECI
41 Owner's Vested Right Owner shall have the vested right to complete the Project during the Term in accordance with the Project Approvals, the Subsequent Project Approvals, the Existing Land Use Regulations, and subject to the City's Reservation of' Authority and this Agreement ("Owner's Vested Right") Owner's Vested Right shall include the off-site CPF rights described in Section 410 below
42 Governing Land Use Regulations Except as otherwise provided in this Agreement, the Land Use Regulations applicable to the development of the Project shall be those contained in the Project Approvals, the Subsequent Project Approvals and the Existing Land Use Regulations Subsequent Land Use Regulations shall not apply to the development of the Project, unless expressly authorized by this Agreement or agreed to by Owner in writing 43 Permitted Uses. Except as otherwise provided within this Agreement, the permitted uses on the Property shall be as provided in the Project Approvals, the Subsequent Project Approvals and the Existing Land Use Regulations 44 Density and Intensity; Requirement for Reservation and Dedication of Land Except as otherwise provided in this Agreement, the density and intensity of use for the development of the Project, and the requirements for reservation and 60093 00025\9324655 4 -6 dedication of land, shall be as provided in the Project Approvals, the Subsequent Project Approvals and the Existing Land Use Regulations 45 Reselvation of Authority The following Land Use Regulations, Subsequent Land Use Regulations oi other requirements shall apply to the Propel'y and the Project:
45l Processing fees and charges imposed by the City to cover the City's estimated or actual costs of reviewing and processing applications for the Project, providing inspections, conducting annual reviews, providing environmental analysis, or for monitoring compliance with this Agreement or any Project or Subsequent Project Approvals granted or issued, provided such fees and charges are in force and effect on a general basis on the date of filing such applications with the City This Section shall not be construed to limit the authority of City to charge its then-cuH'ent, normal and customary application, processing, and permit fees for Prqject or Subsequent Project Approvals, building permits and other similar permits, which fees are designed to reimburse City's expenses attributable to such application, processing, and permitting and are in force and effect on a City-wide basis on the date of' filing such applications with City, notwithstanding the fact that such fees may have been increased by City subsequent to the Approval Date; 452
60093 00025\9324655 4
Development impact fees, monetary exactions or other mitigation requirements imposed by the City as a condition precedent to the issuance of any permit or approval to cover the impacts associated with the development of the Prqject ("Development Impact Fee"), as required by the Project Approvals or Subsequent Project Approvals, provided such fees or other mitigation requirements are in force and efIbct on a general basis on the date of filing for such permit m approval with the City However, this Agreement vests Owner the right, at its sole option, to defer the payment of the following Development Impact Fees, as applicable to the Project, and the Property, at the then-cmrent amount, until the request for final inspection of a building permit: Sewer Capacity Fee; Public Facility Development Impact Fee; Eastern Franspmtation Development Impact Fee; Western Fransportation Development Impact Fee; Telegraph Canyon Drainage Fee; Poggi: Canyon Sewer Development Impact Fee; Salt Creek Sewer Development impact Fee; Otay Ranch Village 1 and 5 Pedestrian Bridge Development Impact Fee; Otay Ranch Village 11 Pedestrian Bridge Development Impact l ee; Park Acquisition and Development Fee; and any successor or replacement fees fbr the fees named above Ihis Section shall not be construed to limit the authority of the City to charge its then-current, normal and customary impact fees or other mitigation requirements in place at the time of' the application for the permit or approval, notwithstanding the fact that -7
such fees may have been incleased by the City subsequent to the Approval Date;
453 Procedural regulations relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals, and any other matter of procedure; 454 Ihe following, provided that they are uniformly applied to all development projects within the City:
4541
455
456
Unifbrm codes governing engineering and construction standards and specifications adopted by the City pursuant to state law Such codes include, without limitation, the City's adopted version of the Uniform Administrative Code, California Building Code, California Plumbing Code, California Mechanical Code, Califbmia Electrical Code, and California F ire Code;
4542
4543
4544
Local amendments to those uniform codes which are adopted by the City pursuant to state law, provided they pertain exclusively to the preservation of life and safety;
Fhe City's standards and procedures regarding the granting of' encroachment permits and the conveyance of rights and
interests which provides fbr the use of or the entry upon public property; and
Ihe City's public improvement engineering ordinances, policies, rules, regulations and standards in etfect when construction drawings for those improvements are submitted to City City will reasonably consider requests for exceptions to and deviations fiom these public improvement engineering ordinances, policies, rules, regulations and standards necessary or desirable for implementation of the Prc ject or the Project Approvals
Regulations which may be in conflict with this Agreement, but which are required to protect the public health and safety;
State or federal laws or regulations which preempt local regulations or mandate local regulations or conditions that conflict with the development of the Prcject This expressly includes mandates imposed through the Clean Water Act or the Porter-Cologne Water Quality Control Act;
60093 00025\9324655 4 -8 4 5 7 Prior to exelcising the Reservation of Authority provided in Sections 4 55 and 45 6, the City shall provide Owner with written notice of the state or federal law ot egulation or the regulation required to protect the public health and safety that conflicts with this Agreement and a written explanation of the conflict created Within ten (10) days of the City's written notice, City and Owner shall meet and confer in good faith in a reasonable attempt to apply the state or federal law or regulation or the regulation required to protect the public health and safety in a manner that is most consistent with this Agreement, preserves the terms of this Agreement and that protects the rights of Owner as derived fiom this Agreement to the extent reasonably possible while still following the applicable law or regulation; 4571 Failure of City to provide notice identified in Section 45 7 shall not relieve Developer of its obligation to comply with such laws or regulations
47 46
4 58 Owner shall be issued building permits tot the Project after permit applications are reviewed and approved by City in the City's customary fashion for such review and approval; and
459 ]?he exercise of the power of eminent domain
Vested Rights Upon Iermination Owner acknowledges that following termination of this Agreement, except as to any Prqject Approval or Subsequent Project Approval that has vested under state law without reliance on this Agreement, City may amend the General Plan, Otay Ranch GDP, SPA Plan or Land Use Regulations as they relate to the Project and the Property Compliance with CEQA Ihe City Council has found that the environmental impacts of the Proiect have been addressed in the Otay Ranch General Development Plan Program Environmental Impact Report 90-01, the Otay Ranch Villages Iwo, Ihree and a Portion of' l?out SPA Plan Final Second-Iier Environmental Impact Report ("EIR 02-02") (SCH#2003091012), and the Village Two Comprehensive SPA Plan Amendment Final Supplemental Environmental Impact Report ("EIR 12-01") (SCH No 200 3091 012) Where the California Environmental Quality Act requires that an additional environmental analysis be performed in connection with a Subsequent Project Approval or other tute discretionary approval granted by the City for the Prcject, the Owner shall pay all of the City's reasonable costs to perform that additional analysis 48 liming of Development Because the California Supreme Court held in Pardee Construction Co. v. City of Camarillo, 37 Cal 3d 465 (1984), that the failure of the parties in that case to provide for the timing of development resulted in a later adopted initiative restricting the timing of development to prevail over the palties' 60093 00025\9324655 4 -9 agreement, it is the specific intent of the Parties to provide fbr the timing of the Project in this Agreement To do so, the Parties acknowledge and provide that, subject to express terms of this Agreement including, without limitation, Sections 4 5 5 and 4 56, Owner shall have the right, but not the obligation, to complete the Project in such order, at such rate, at such times, and in as many development phases and sub-phases as Owner deems appropriate in its sole subjective business judgment
4 9 Community Purpose Facilities.
491 Owner shall have the right to satisfy 9 0 acres of'its community purpose facilities (CPI?) requirements (Chula Vista Municipal Code Section 1948 025) for the Pr0iect through the provision of a CPI f ,cility on a 9 acre site located within the industrial area in Village 2 South (ie, either IND-2 or IND-3 as depicted on Chula Vista Tentative Map 12-05) Ihe City agrees that a non-profit (or for profit, if approved by the City Manager) vocational or adult education school will qualify as a permitted CPF use
4 9 2 Owner, with written approval fiom the City Manager, shall have the option, at its sole expense, to construct a swim facility in one of the future planned Neighborhood Parks (P-2, P-5 or P-6) as more particularly described on Exhibit "E" attached to this Agreement, funding that portion of the cost above what the normal PAD fees would otherwise cover frOwner elects to construct the swim facility:
4921 ]-he swim fiacility will be a public facility owned and operated by the City;
4922 Io exercise its option to construct a swim facility, Owner shall submit to the City Manager a preliminary facility plan and a preliminary budget for the facility, including ongoing operation and maintenance, in sufficient detail to allow the City Manager to assess whether the facility will be sustainable and will meet the amenities outlined in Exhibit "E" to this Agreement Within thirty (30) days of the City Manager's receipt of the preliminary facility plan and preliminary budget, the City Manager shall either provide Owner with written approval to construct the facility or' notify Owner of any deficiencies in the preliminary facility plan and preliminary budget that will need to be resolved to obtain the City Manager's written approval
60093 00025\9324655 4
4923 Upon written approval of' City Manager to pursue construction of the swim facility, City shall relieve Owner from the obligation to provide 39 acres of CPI in Village 7 as identified -10
in the agreement between the City and Otay Project, LP dated August 22, 2012 and allow Owner to process an application to re-zone that land fiom open space and low density single family residential to a higher density single family or multi-family residential Owner will be allowed to apply for a transfer of approved units fiom Village 2 to Village 7; and
4924 Owner shall have the option to process an application to rezone the 0 9 acre CPF-2 site in Village 2 South to a single family zone consistent with the surrounding zoning
4 9 3 Prior to the eaalier of (1) issuance of a building permit in neighborhoods MU-2, MU-3 or C-1 or (2) issuance of' a permit for construction of' P-3 park, Owner shall commence construction on the CPF-7 site (planned to be the homeowner's association swim club) and work diligently to completion
4,94 Prior to approval of a Design Review application for any project in neighborhood MU-2, Owner shall demonstrate to the satisfaction ofthe Director of Development Services, the means by which the CPF-4 obligation will be met Provision of a facility will be consistent with the SPA Plan and the Montecito Village Core Master Precise Plan. 410 Community Facilities District Owner may choose to use a phased Community Facilities District (CFD) for the Project, which may have multiple improvement phases or bond series City and Owner shall meet and confer regarding reasonable ways to lower the amount, if teasible, Owner must pay for the City's administration costs associated with such a phased CFD approach while providing the City with sufficient funds to cover the costs associated with the phased approach
411 Fiscal Impact Fee The 2,479 units within the Project which are subject to the Public Benefit Contribution as defined in Section 5 1 1 and as shown in the Public Benefit Contribution Fable attached to this Agreement as Exhibit "F" shall be subject to an additional fiscal impact fee of eighty dollars ($80), payable at the time of building permit issuance, in complete satisfaction of all fiscal impact funding requirements of the City Municipal Code, including CVMC 1909 060(1), for the Project (the "Fiscal Impact Fee") Ihe Neighborhoods shown as exempt fiom the Public Benefit Contribution on the Public Benefit Contribution Table shall also be exempt fiom the Fiscal Impact Fee and any other fiscal impact funding requirements
OWNER'S OBLIGAIIONS AND PROVISION OF PUBLIC BENEFITS
5 1 Extraordinary Public Benefit Contribution,
60093 00025\9324655 4 -1 1
5ll As consideration for City's approval of' the 1,562 additional residential units for the Project approved on the Approval Date with the amendments to the General Plan, Otay Ranch GDP and the SPA Plan and perfbrmance of' its obligations set forth in this Agreement, Owner shall make a contribution to City to be used fot a public facility or facilities that shall be in addition to any other fee or charge to which the Property and the Project would otherwise be subject (the "Public Benefit Contribution") in the amounts specified in the table attached as Exhibit "F" (the "Public Benefit Contribution ]?able") The Public Benefit Contribution was calculated to equal Five Thousand Dollars ($5,000) for each of' the 1,562 additional residential units, although it would be spread over 2,479 units within the Property as described in the Public Benefit Contribution q?able
512 The Public Benefit Contribution for each residential dwelling unit shall be payable at the time of building permit issuance for the unit in accordance with the Public Benefit Contribution Iable Owner shall have no obligation to obtain building permits in any particular order or obtain building permits for all of the units shown on the Public Benefit Contribution Table Iherefore, there is no guarantee that the entire Public Benefit Contribution will be paid
513 Owner shall have the right to build the public facility or facilities to the satisfaction of the City Manager pursuant to a separate agreement with City pursuant to which Owner would have the right to reimbursement fiom Public Benefit Contributions previously made and credits against Public Benefit Contributions not yet made
514 Owner agrees and acknowledges that its failure to satisfy the provisions of this Section shall constitute a default of its obligations under the Agreement and that upon any such default the City may pursue any of the remedies provided in this Agreement
5 2 Public 1%cilities and Services
521 Owner shall complete construction of a half width (ie, two, striped one-way lanes) of Heritage Road between Santa Victoria Road and Main Street (the "Portion of Heritage Road") to the satisfaction of the City's Development Services Director before the earlier of (a) eighteen (18) months fiom the issuance of a rough grading permit on V2 South, or (b) December 31, 2016 (the "Completion Date") The Completion Date shall be extended because of events that cannot reasonably anticipated or controlled as described in Section 1116 of this Agreement
60093 00025\9324655 4 - 12 5211 City shall reimburse Owner for the costs of all IDIF improvements within the Portion of Heritage Road in an
amount equal to the cost of the improvements within the Portion of Heritage Road estimated in the establishment of the ]-DIF fee, as it may be amended flora time to time In the event that Owner anticipates the costs to exceed the amount estimated for the improvements, Owner shall seek to have the TDI1z amended such that the estimated costs equals that which the Owne anticipates At the time of the execution of this Agreement, City shall have collected a certain dollar amount for a portion of such reimbursement fiom pi0jects previously constructed within Village 2 Owner shall be entitled to reimbursement fiom such funds As additional IDII funds a e collected by the City, such fhnds shall be available for reimbursement q-his reimbursement shall be in lieu of' I'DIF credits for the amount reimbursed fiom TDII funds and subject to the verification/approval process specified in the "[DIF ordinance City shall give Owner IDIF credits, subject to the verification/approval process specified in the IDIF ordinance, to the extent of any difference between the full cost of the IDI1 improvements and the amount of' IDIF funds available to reimburse Owner
5212 Upon tequest fiom Owner, City shall establish a reimbursement district or reimbursement agreement for all costs (both IDIF and non-TDI1 ) of' the entire Heritage Road within six (6) months of the request All owners and properties benefiting fiom the construction of Heritage Road shall be included in the reimbursement district or agreement and shall be required to contribute their fair share portion of the construction costs 6 IERM AND IERMINATION
61 Ierm of A ; eement The Term shall commence on the Effective Date The Term shall continue for a period of twenty (20) years fiom the Effective Date, subject to the following:
6 1 1 Ihe Term shall be extended for periods equal to the time during which:
6111 Litigation is pending which challenges any matter, including compliance with CEQA or any other local, state, or federal law, related in any way to the approval or implementation of' all or any part of the Prqject Approvals Any such extension shall be equal to the time between the filing of litigation, on the one hand, and the entry of' final judgment or dismissal, on the other 60093 00025\9324655 4 - 1 3 6112 Any other delay occuls which is beyond the control of the Parties, as described in Section 1116
612 During the Ierm, certain portions of the Property may be released fiom this Agreement as provided elsewhere in this Agreement
613 As provided in Section 62 and elsewhere within this Agreement, the Ietm may end earlier than the end of the Ierm as specified in this Agreement
62 Termination This Agreement shall be deemed terminated and of no fmther effect upon the earlier occurrence of any of the following events:
621 Expiration of the Ierm as set forth in Section 61; 622 Entry of a final judgment setting aside, voiding, or annulling the adoption of the Enabling Ordinance;
623 Ihe adoption of a referendum measure overriding or repealing the Enabling Ordinance;
624 Completion of the Project in accordance with the terms of this Agreement, including issuance of all required occupancy permits and acceptance, as required by state law, by City, or the applicable public agency, of all required dedications and the satisfaction of all of Owner's obligations under this Agreement; and
625 As may be provided by other specific provisions of this Agreement 63 Effect of Termination Subject to Section 64, upon any termination of this Agreement, the only rights or obligations under this Agreement which either' Party shall have are:
631 The completion of obligations which were to have been performed prior to termination, other than those which are separately addressed in this Agreement;
632 The performance and cure rights set fbrth in Section 93; and 633 Those obligations that are specifically set forth as surviving this Agreement, such as those described in Sections 81 through 85 and 1120
64 Release of Obligations With Respect to Individual Lots Upon Certification of Occu a.p_fi.n 2 Notwithstanding any other provision of this Agreement:
60093 00025\9324655 4 -14 64l When any individual lot has been finally subdivided and sold, leased, or made available fur lease to a member of' the public or any other ultimate user, and a certificate of occupancy has been obtained fbr the building(s) on the lot, that lot and its owner shall have no further obligations under' and shall be released fiom this Agreement 6 42 Upon the conveyance of any lot, parcel, or other property, whether residential, commercial, or open space, to a homeowners' association, property owners' association, or public or quasi-public entity, that lot, parcel, or property and its owner shall have no further obligations under and shall be released fiom this Agreement
No formal action by the City is required to effect this release, but, upon Owner's request, City shall sign an estoppel certificate m other document to evidence the release
6 5 Term of Map(_s) and Other Proiect Approvals
,
651 Subdivision Maps Pursuant to Government Code Section 664526, the term of all subdivision or' parcel maps that are approved for all or any portion of the Project shall be automatically extended to a date coincident with the Term and, where not prohibited by State law, with any extension of the ][erm
652 Other Project Approvals Pursuant to Government Code section 658639, the Project Approvals shall automatically be extended for a term ending concurrently with the applicable subdivision maps for the Prqject
ANNUAL REVIEW
71 Timing of Annual Review Pursuant to Government Code Section 65865 l, at least once during every twelve (12) month period of the ]?erm, City shall review the good faith compliance of Owner with the terms of this Agreement ("Annual Review")
72 Standards for Annual Review, During the Annual Review, Owner shall be required to demonstrate good faith compliance with the terms of' this Agreement "Good faith compliance" shall be established if Owner is in compliance with the terms and conditions of this Agreement. If the City Council or its designee finds and determines that Owner is not in good faith compliance, then City may proceed in accordance with Section 93 pertaining to the potential def tult of Owner and the opportunities for cure Owner shall pay the City's reasonable fees and costs incurred in connection with the Annual Review 60093 00025\9324655 4 -15 73 Procedures for Annual Review The Annual Review shall be conducted by the City Council or its designee Owner shall be given a minimum of sixty (60) days' notice of any date scheduled for an Annual Review
'74 Certificate of Compliance At any time during any year that the City Council or its designee finds that Owner is not in default under this Agreement, City shall, upon written request by Owner, provide Owner with a written certificate of' good faith compliance within fifteen (15) days of City's receipt of that request 8 THIRD PARIY LIIIGA'IION
81 General Plan Litigation City has determined that this Agreement is consistent with its General Plan, the Otay Ranch GDP and the SPA Plan Owner has reviewed the General Plan, the Otay Ranch GDP and the SPA Plan and concurs with City's determination City shall not have any liability, whether through equitable or legal arguments, under this Agreement m associated approvals or documents (eg General Plans, SPA Plan, Maps) associated with this Agreement for Owner's development of' Village 2, for any failure of City to perform under this Agreement, m for the inability of Owner to develop the Property as contemplated by the Project Approvals or this Agreement, if such failure or inability is the result of a judicial determination that part or all of' the General Plan, Otay Ranch GDP or SPA Plan is invalid, inadequate, or not in compliance with law.
82 Ihird Party Litigation Concerning Proiect or Agreement Owner shall, at Owner's expense, defend, indemnify, and hold City, its officers, employees and independent contractors engaged in Project planning, approval, or implementation, harmless fiom any third-party claim, action or proceeding against City, its agents, officers or employees to attack, set aside, void, or annul the Project Approvals, Subsequent Project Approvals or this Agreement City shall promptly notify Owner of any such claim, action or proceeding, and City shall reasonably cooperate in the defense City may in its discretion participate in the defense of any such claim, action or proceeding ffthe City uses its discretion to participate in the defense of any such claim, action or proceeding, the City shall pay its own attorneys' fees and litigation costs incurred in that defense 83 60093 00025\9324655 4
Indemnit,2 In addition to the provisions of Section 82, Owner shall indemnify, defend and hold City, its officers, agents, employees and independent contractors, engaged in Project planning or implementation, ft'ee and harmless fiom any third party liability or claims based or alleged upon any act or omission of Owner, its officers, agents, employees, subcontractors and independent contractors, fbr property damage, bodily ir jury or death (Owner's employees included) or any other element of' damage of any kind or nature, relating to or arising fi om development of'the Pmiect, except for claims for damages arising through active negligence or willful misconduct of' City, its officers, agents, employees and -16
independent contractors Owner shall defend, at Owner's expense, including attorneys' fees, City, its officers, agents, employees and independent contractors in any legal action based upon such alleged acts or omissions of Owner City may in its discretion participate in the defense of any such legal claim, action, m proceeding If the City uses its discretion to participate in the defense of any such claim, action or proceeding, the City shall pay its own attorneys' fees and litigation costs incurred in that defense
84 Environmental Contamination Owner shall indemnify and hold City, its officers, agents, and employees free and harmless fiom any liability, based or alleged, upon any act or omission of' Owner, its ofticers, agents, employees, subcontractors, predecessors in interest, successors, assigns, and independent contractors, resulting in any violation of' any federal, state or local law, ordinance or regulation relating to industrial hygiene or to environmental conditions on, under, or about the Property, including, but not limited to, soil and groundwater conditions, and Owner shall defend, at its expense, including attorneys' fees, City, its officers, agents and employees in any action based or asserted upon any such alleged act or omission City may in its discretion participate in the defense of any such claim, action, or proceeding If the City uses its discretion to participate in the defense of any such claim, action or proceeding, the City shall pay its own attorneys' fees and litigation costs incurred in that defense 85 City to Approve Counsel; Conduct of' Litigation With respect to Sections 8.1 through 84, City reserves the right either (a) to approve the attorney(s) that Owner selects, hires, or otherwise engages to defend City, which approval shall not be unreasonably withheld or delayed, or (b) in the City's sole discretion, conduct its own defense with the understanding that Owner's attorneys shall be lead counsel and City's attorneys shall, to the maximum extent feasible, cooperate with Owner's attorneys If City elects to conduct its own defense, Owner shall reimburse City for all reasonable attorneys' fees and litigation costs incurred for such defense Owner shall have the right to audit all billings for such fees and expenses
86 Survival The provisions of'Sections 81 through 85 inclusive, shall survive the termination, cancellation, or expiration of this Agreement 9 DEI AULIS AND REMEDIES
9.1 Default by Owner Owner shall be in default of this Agreement if' it does any or any combination of the following:
911
60093 00025\9324655 4
Willfully violates any order, ruling or decision of any administrative or judicial body having jurisdiction over the Property or the Prqject Owner may contest any such order, ruling or decision by appropriate proceedings conducted in good faith, in which event no default ofthis -17
Agreement shall be deemed to have occurred unless and until thee is a final, nonappealable judicial decision that Owner willfully violated such obligation
912 Fails to cure a material breach of this Agreement within the time set forth in a written notice of default fi'om the City
92 Default by City The City shall be in default of this Agreement only if it fails to cure a material breach of' this Agreement within the time set forth in a wlitten notice of'default fiom the Owner to the City
93 Notice and Iermination A Party alleging a default by any other Party shall serve written notice thereof Each such notice shall state with specificity all of the following:
931 Ihe nature of the alleged default, with reference to the specific Sections ot the Agreement that are alleged to have been breached and the specific facts supporting those allegations;
9 3 2 Ihe manner in which the alleged default may be satisfactorily cured 933 A period of time in which the default may be cured The notice of default shall allow at least sixty (60) days to cure the default If the default is of' such a nature as not to be susceptible of cure within sixty (60) days using diligent efforts, then the defaulting Party shall only be deemed to have failed to cure the default if it fails diligently to commence such cure within sixty (60) days or if it fails diligently to prosecute such cure to its conclusion
94 Default Remedies A Party who complies with the notice of defhult and opportunity to cure requirements of Section 9 3 may, at its option, institute legal action to cure, correct, or remedy the alleged default as provided in this Agreement
9.5 Owner's Remedy Ihe Owner acknowledges that the City would not have entered into this Agreement if it were to be liable in damages under or with respect to all or any part of the development of the Prc!ject Accordingly, Owner shall not sue the other City for damages m monetary ielief tbr any matter related to the development of the Project Owner's litigation remedies shall be limited to declaratory and irjunctive relief, mandate, and specific performance 96 Cit2 Remedy In the event of an uncured default by Owner, the City may pursue any and all available legal or equity remedies for the default 9'7 Waivel; Remedies Cumulative All waivers of performance must be in a writing signed by the Patty granting the waiver ihere are no implied waivels Failure 60093 00025\9324655 4 -1 8 by City or Owner to insist upon the striet performance of any provision of'this Agreement, irrespective of the length of' time fol which such failure continues, shall not constitute a waiver of the right to demand strict compliance with this Agreement in the fiatute
A written waiver affects only the specific matter waived and defines the per formance waived and the duration of'the waiver Unless expressly stated in a written waiver, fhture performance of the same m any other condition is not waived
A Party who complies with the notice of default and opportunity to cure requirements of' Section 93, where applicable, and elects to pursue a legal or equitable remedy available under this Agreement does not waive its right to pursue any other remedy available under this Agreement, unless prohibited by statute, court rules, or judicial precedent
Delays, tolling, and other actions arising under Section 1116 shall not be considered waivers subject to this Section 97
98 Alternative Dispute Resolution Any dispute between the Parties may, upon the mutual agreement of the Parties, be submitted to mediation, binding arbitration, or any other mutually agreeable form of' alternative dispute resolution While an alternative dispute process is pending, the statute of limitation shall be tolled tbr any claim or cause of action which either of the Parties may have against the other
10 ENCUMBRANCES, ASSIGNMEN]?S, AND RELEASES
101 Discretion to Encumber, Ihis Agreement shall not prevent or limit Owner, in any manner, at Owner's sole discretion, from encumbering some or all of the Property or any improvement on the Property by any mortgage, deed of trust, or other security device to secure financing related to the Property or the Project Notwithstanding the foregoing, any prcject or property shall be flee and clear ot all liens and encumbrances other than those previously approved in writing by the City prior to transfer to the City
t02 Mortgagee Protection City acknowledges that the lender(s) providing financing secured by the Property and/or its improvements may require certain Agreement interpretations and modifications City shall, at any time requested by Owner or the lender, meet with Owner and representatives of such lender(s) to negotiate in good faith any such interpretation or modification, City will not umeasonably withhold or delay its consent to any requested interpretation or modification provided such interpretation or modification is consistent with the intent and purposes of this Agreement Any Mortgagee of the Property shall be entitled to the following rights and privileges:
60093 00025\9324655 4 -19
1021 Neither enteling into this Agreement nora breach of' this Agreement shall defeat, render' invalid, diminish, or impair the lien of any mortgage or deed of'trust on the Property made in good faith and tbr value
1022 If City timely teceives a request fi'om a Mortgagee requesting a copy of' any notice of default given to Owner undel the terms of this Agreement, City shall provide a copy of that notice to the Mortgagee within ten (10) days of sending the notice of default to Owner the Mortgagee shall have the right, but not the obligation, to cute the default during the remaining cure period allowed Owner under Section 9 3 of this Agreement
1023 Except as otherwise provided within this Agreement, any Mortgagee who comes into possession of some or all of the Property pursuant to foreclosure of a mortgage ot deed of trust, or deed in lieu of' such foreclosure or otherwise, shall:
10231 Iake that property subject to the terms of this Agreement and as Owner' s successor;
10232 Have the rights and obligations of an Assignee as set forth in Sections 1051 and 105.3;
10233 Have the right to rely on the provisions of Section 4 of this Agreement, provided that any development proposed by the Morltgagee is in substantial conformance with the terms of this Agreement; and
10234 Not be liable for any defaults, whether material or immaterial, or monetary obligations of Owner arising prior to acquisition of title to the Property by the Mortgagee, except that the Mortgagee may not pursue development pursuant to this
Agreement until all delinquent and current fees and other monetary obligations due undel this Agreement for the portions of' the Property acquired by the Mortgagee have been paid to City
103 Estoppel Certificate Within ten (10) business days following a written equest by either of the Parties, the othel Party shall execute and deliver' to the requesting Party a statement certifying that (i) either this Agreement is unmodified and in full force and effect or there have been specified (date and nature) modifications to the Agreement, but it remains in full force and effect as modified; and (ii) either there are no known current uncured defaults under this Agreement or that the responding Party alleges that specified (date and nature) defaults exist 60093 00025\9324655 4 -20 The failure to timely deliver this statement shall constitute a conclusive presumption that this Agreement is in full force and effect without modifications, except as may be represented by the requesting Party and that there are no uncured defuults in the performance of' the requesting Party, except as may be represented by the requesting Party The statement shall also provide any other reasonable information requested Owner shall pay to City all reasonable administrative costs incurred by City in connection with the issuance of' estoppel certificates under this Section prior to City's issuance of such certificates 104 Transfer or Assignment Subject to Section 105 and 106, each individual entity comprising Owner shall have the right to sell, transfer, or assign its rights and obligations under this Agreement (collectively, an "Assignment") in connection with a transfer of Owner's interest in all, any portion of, or any interest in the Property (the "fransferTed Property") No Assignment shall be made unless made together with the sale, transfer, or assignment of all or any portion of' Owner's interest in the Property
At least fifteen (15) business days prior to the effective date of any Assignment, Owner shall notify City in writing of the proposed Assignment and provide City with an Assignment and Assumption Agreement, in a form substantially similar to Exhibit "G", executed by the purchaser, transferee, or assignee (collectively, the "Assignee") to expressly and unconditionally assume all duties and obligations of Owner under this Agreement remaining to be performed at the time of' the Assignment
105 Effect of Assignment Subject to Section 106 and unless otherwise stated within the Assignment, upon an Assignment:
1051 ]Fhe Assignee shall be liable for the performance of all obligations of Owner with respect to Transferred Property, but shall have no obligations with respect to the portions of' the Property, if any, not transferred (the "Retained Property")
1052 Ihe owner of the Retained Property shall be liable for the performance of all obligations of Owner with respect to Retained Property, but shall have no further obligations with respect to the Transferred Property 1053 The Assignee's exercise, use, and er joyment of' the Transferred Property shall be subject to the terms of this Agreement and the Assignee shall have all of the rights under this Agreement to the same extent as if the Assignee were the Owner
106 City's Consent. An Owner shall not be released fi'om its obligations with respect to the Transferred Property until it has obtained the City's consent to the transfer or assignment of all or a portion of' this Agreement, which consent shall not be 60093 00025\9324655 4 -21
unreasonably withheld, conditioned m delayed
11 MISCELLANEOUS PROVISIONS
11 1 Rules of Construction The singular includes the plural; the masculine gender includes the feminine; "shall" is mandatory; "may" is permissive 112 Binding Effect of' Agreement This Agreement shall be recorded against the Property and shall tun with the land Until eleased or terminated pursuant to the provisions of this Agreement or until Owner has fully perfbtmed its obligations arising out of this Agreement, no portion of'the Property shall be released fi'om this Agreement If' an Owner acquires other teal property within Village 2, that additional teal property shall be subject to this Agreement 113 Entire Agreement 1-his Agreement constitutes the entice understanding and agreement of City and Owner with respect to the matters set forth in this Agreement ]?his Agreement supersedes all negotiations or previous agreements between City and Owner respecting the subject matter of this Agreement 114 Recmded Statement Upon Ietmination Upon the completion of performance of this Agreement or its cancellation or termination, a statement evidencing completion, cancellation, or termination signed by the appropriate agents of City, shall be tecmded in the Official Records of San Diego County, California 115 Amendment or Cancellation of' Agreement Ihis Agreement may be amended fiom time to time or canceled only by the written consent of both City and Owner in the same manner as its adoption, as set forth in Califbrnia Government Code Section 65868 Any amendment m cancellation shall be in a from suitable for recording in the Official Recmds of San Diego County, California An amendment m other modification of this Agreement will continue to relate back to the Effective Date of this Agreement (as opposed to the effective date of the amendment ot modification), unless the amendment m modification expressly states otherwise Ihe Parties recognize that because of' fiagmented ownership within Village 2, amendments to this Agleement may be appropriate to add ot delete property to m fi'om this Agreement to reflect consolidations of'property by Owner ]?he Parties agree to cooperate reasonably to p ocess such amendments if the need arises
116 Minm Changes/Operating Memmandum Ihe provisions of this Agreement requite a close degree of cooperation between the Parties It is anticipated that minm changes to the Project may be required fiom time to time to accommodate design changes, engineering changes, and other refinements related to the details of the Parfies' per fotmance Minm changes me those changes to the Ptqject that 60093 00025\9324655 4 -22
are otherwise consistent with the Prqject Approvals, and which do not result in a change in the type of use, an increase in density or intensity of use, significant new or increased environmental impacts that cannot be mitigated, or violations of any applicable health and safety regulations in effect on the Approval Date Accordingly, the Parties may mutually consent to adopting minor changes through their signing of an operating memorandum reflecting the minor changes Neither the minor changes nor any operating memmandum shall require public notice or hearing The City Attorney and City Manager shall be authorized to determine whether proposed modifications and refinements are minor changes subject to this Section m more significant changes requiring amendment of this Agreement The City Manager may execute any operating memorandum for minor changes without City Council action Minor changes would include, without limitation, minor boundary or lot line adjustments necessary to properly reflect the applicability of this Agreement in the chain of title 117 Proiect as a Private Undertakin It is specifically understood by City and Owner that (i)the Project is a private development; (ii)City has no interest in or responsibilities for ot duty to third patties concerning any improvements to the Property unless City accepts the improvements pursuant to the provisions of' this Agreement or in connection with subdivision map approvals; and (iii)Owner shall have the full power and exclusive control of the Property, subject to the obligations of Owner set forth in this Agreement
11 8 Incorporation of Recitals Each of'the Recitals set forth at the beginning of this Agreement are part of this Agreement
119 C_C ptions The captions of this Agreement are for convenience and reference only and shall not define, explain, modify, construe, limit, amplify, or aid in the interpretation, construction, or meaning of any of the provisions of' this Agreement
11 10 Consent Where the consent or approval of City or Owner' is needed to implement Development under' this Agreement, the consent ot approval shall not be unreasonably withheld, delayed, or conditioned
11 11 Covenant of Cooperation City and Owner shall cooperate and deal with each other in good faith and assist each other in the perfolmance of the provisions of this Agreement
11 12 Execution and Recording The City Clerk shall cause a copy of'this Agreement or, at the City's discretion, a notice of the Agreement, to be signed by the appropriate representatives of the City and recorded with the Office of the County Recorder of' San Diego County, California, within ten (10) days following the Effective Date The failure of the City to sign and/or record this Agreement or 60093 00025\9324655 4 -23
notice thereof shall not affect the validity of and binding obligations set forth within this Agreement
1113 Relationship of' City and Owner ]-he contractual relationship between City and Owner arising out of this Agreement is one of independent contractor and not agency ]-his Agreement does not create any third-party beneficiary rights 11 14 Notices All notices, demands, and correspondence required or permitted by this Agreement shall be in writing and delivered in person, sent by electronic mail, or mailed by first class or' certified mail, postage prepaid, addressed as follows:
If to City, to:
City of Chula Vista
276 fi omth Avenue
Chula Vista, California 91910
Attn: City Manager'
With a copy to:
City Attorney
City of Chula Vista
276 Fourth Avenue
Chula Vista, California 91910
If to Owner, to:
Baldwin & Sons, LLC
610 West Ash Street, #1500
San Diego, California 92101
Attn: Mr Nick Lee
AND
Sunranch Capital Partners, LLC
610 West Ash Street, #1500
San Diego, California 92101
Attn: Mr, Stephen Haase
With a copy to:
Law Offices of R Martin Bohl
501 West Broadway, Suite 520
San Diego, California 92101
Attn: R Martin Bohl
City or Owner may change its address by giving notice in writing to each of the other names and addresses listed above Ihereai er, notices, demands, and coriespondence shall be addressed and transmitted to the new address Notice 60093 00025\93246554 -24
shall be deemed given upon personal delivery, the date of actual receipt or, if mailed, not later than two (2) business days following deposit in the United States mail
11 15 Waiver of' Right to Protest Execution of this Agreement is made by Owner without protest Ownel knowingly and willingly waives any rights it may have under Government Code section 66020 or any other provision of law to protest the imposition of any fees, dedications, reservations, or other exactions imposed on the Project as authorized by this Agreement, the Project Approvals or the Subsequent Prqject Approvals
1116 Delay for Events Beyond the Parties' Control (Force Maieure) Delay of Performance by either Party of its obligations under this Agreement shall not be deemed a breach of the Agreement and the ]?erm shall be extended, for periods equal to the time during which (1) litigation is pending which challenges any matter, including compliance with CEQA or any other local, state, ot federal law, related in any way to the approval or implementation of all or any part of the Prqject Approvals ot Subsequent PrQject Approvals Any such extension shall be equal to the time between the filing of' litigation, on the one hand, and the entry of' final judgment or dismissal, on the other All such extensions shall be cumulative; (2) a delay is caused by reason of' any event that cannot reasonably anticipated or controlled by the City or Owner which prevents or delays per formance by City or Owner of obligations under this Agreement Such events shall include, by way of example and not limitation, acts of nature, riots, sUikes, or damage to work in process by eason of fire, mud, rain, floods, earthquake, or other such casualties Such an event does not include a market or business downturn, recession ol other change in the business cycle 60093 00025\9324655 4 -25 If' City m Owner seeks excuse from pet fotmance for the period of a delay, it shall provide written notice of such delay to the other' within thirty (30) days of the commencement of' such delay, If the delay m default, whether material or immaterial, is due to an event that cannot be reasonably anticipated ot controlled by City or Owner; it shall be excused, and an extension of time for' such cause shall be granted in writing for the period of the enforced delay, or longer as may be mutually agreed upon In the event of a disagreement between the Parties with respect to whether this Section applies to a particular delay, a Party may file an action for judicial review of' the matter, including requests for declaratory and/or irljunctive relief The right to seek judicial review shall not limit any other remedies, whether legal or equitable, to which a Party may be entitled 11 17 Interpretation and Governing Law In any dispute regarding this Agreement, the Agreement shall be governed and interpreted in accmdance with the laws of the State of California Venue for any litigation concerning this Agreement shall be in San Diego County, California
11 18 Iime of Essence ]?ime is of the essence in the perfbtmance of the provisions of' this Agreement as to which time is an element
11 19 Successors and Assigns Ihis Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns 1120 I utur e Litigation Expenses
11 20 1
12 Payment to Prevailing ParW. If either Party brings a legal m equitable proceeding against the other Party which arises in any way out of this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys' fees and all other reasonable costs and expenses incurred in that proceeding
11 202 Scope of Fees Attorneys' fees under this Section shall include attorneys' fees on any appeal and in any postzjudgment proceedings to collect or enforce the judgment This provision is separate and several and shall survive the termination of this Agreement
EXHIBIIS All exhibits attached to this Agreement are incorporated as a part of this Agreement Ihose exhibits are:
"A" Legal Description and Depiction of the Property "B" General Description and Depiction of the Project 60093 00025\9324655 4 -26 "C" Listing of PrQject Approvals
"D" Listing of Anticipated Subsequent Project Approvals "E" Description of Possible P-5 Swim Facility
"F" Public Benefit Contribution Table
"G" Assignment and Assumption Agreement
(Signatures on following page)
60093 00025\9324655 4 -27
Owner and City have executed this Agreement on the dates set folth below
CIIY OWNER
CIIY OF CHULA VISIA, a California cha te [stgnature blocks next twopages] city and municipal co pomtion
By:_
Mayor
Date:
AITESI:
By:_
City Clelk
APPROVED AS IO FORM:
By:_
City Attorney
60093 00025\9324655 4 -28
VILLAGE II OF OTAY HB SUB
a California general partnership
By: Village II of Otay, L P,
a Delaware limited partnership,
Its: Managing General Partner
By:
Its:
Village II ofOtay GP, LLC,
a Delaware limited liability company,
Genelal P
By: .
Name: Nick Lee
Iitle: Senior Pxoject Managex
OTAY RANCH II SUN 12, LLC
a Delawa
/l // ;
bility company
By: /Y
Name: Nick Lee
Iitle: Senior Project Manager
OTAY RANCH VILLAGE II-PC-15, LLC
a Delaware limited liability company
By:
Its:
Heritage Building and Development, Inc,
a California corporation
Agent ////
_.By: • _
Name: ..l. Leo
Iitle: 8g iior Project Manager
60093 00025\9324655 4 -29
VILLAGE II OF OTAY, L,P,
a Delaware limited partnership
By:
Its:
Village Ii of Otay GP, LLC
a Delaware limited liability company
General Partner
By: ./
Name: Nick Lee
Iitle: Senior Project Manager
SUNRANCH CAPITAL PARTNERS, LLC
a Delaware limited liability company
By: SunPac Advisors, LLC
Its: Manager
Name: Nick Lee
Iitle: Senior Project Manager
MONTECITO VILLAGE, LLC
a California Hmited liability company
Name: Nick Lee
Iitle: Senior Project Manager
60093 00025\9324655 4 -30 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT civil CODE § 1189 State of California
County of San Diego
On October' 30, 2014before me,
Date
personally appeared
Cristin Beall, Notary Public
Here nsert Name and Title of the Officer
Nick Lee
Name(s) oI Signer(s)
.... c-,,ST;,%&[J -" "t
#/ _. . Commission # 1996057 •
z I
' '' ] Notary Public- California z
\ San Diego County
.... ...My co?m: E, r0, 2#7018
who proved to me on the basis of satisfactory
evidence to be the person( whose named) is/a:e
subscribed to the within instrument and acknowledged
to me that he/ y executed the same in
his/h , authorized capacity(Jes-), and that by
his/he#-t-heir signature(8 , on the instrument the
person( , or the entity upon behalf of which the
person,'0 acted, executed the instrument
I certify under PENALTY OF PERJURY under the
laws of the State of California that the foregoing
paragraph is true and correct
WITNESS my hand and official seal
Place Notary Seal Above
OPTIONAL
Though the information below )s not required by law. it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document Description of Attached Document
Title or Type of Document: Village 2 Development Agreement not yet datedDocument Date: Number of Pages: 42 Signer(s) Other Than Named Above: Cit;y o V f-
Capacity(ies) Claimed by Signer(s)
Nick LeeSigner's Name:
Corporate Officer- Title(s): P,! oj ectSenior
[] Individual RIGHT THUMBPRIN]
OF SIGNER
D Partner -- [] Limited [] General Top of thumb here
[] Attorney in Fact
El Trustee
[] Guardian or Conservator
[] Other:
Signer Is Representing:
Signer's Name:
[] Corporate Officer -- Title(s):
[] Individual
[] Partner -- [] Limited [] General
[] Attorney in Fact
D Trustee
Guardian or Conservator
D Other:
RI
OF SIGNER
Signer Is Representing:
Top of thumb here
© 2010 National Notary Association NatlonalNotary org 1 800 US NOTARY (1 800 876 6827) item #5907 EXHIBIT "A"
LEGAL DESCRIPTION AND DEPICTION OF THE PROPERTY
EXHIBI T A
60093 00025\9324655 4
Exhibit A
VILLAGE TWO OWNERSHIP - DEVELOPMENT AGREEMENT
Owner Legal Description
Village II of Otay HB SUB, GP Lots 34, 35 and 41 of Chula Vista Tract No 11-05 Otay Ranch Village 2 North "A" Map No 2 and Otay Ranch Village 2 North Neighborhood R-SB Unit No 1, in the City of Chula Vista, County of San Diego, State of California according to Map thereof No 15865 filed in the office of the County Recorder of said county May 7, 2012
Lots 26 and 33. of Chula Vista Tract No 06-05 Otay Ranch Village 2 and Portions of Village 4 "A" Map, in the City of Chula Vista, County of San Diego, State of California, according to Map thereof No 15350 filed in the office of the County Recorder of said county May 26, 2006.
Otay Ranch II Sun 12, LLC Lot 1 of Chula Vista Tract No 06-05 Otay Ranch Village 2 and Portions of Village 4 "A" Map, in the City of Chula Vista, County of San Diego, State of California, according to Map thereof No
3.5350 filed in the office of the County Recorder of said County May 26, 2006.
Otay Ranch Village II-PC-15, LLC
SunRanch Capital Partners, LLC
Montecito Village, LLC
Village II of Otay, L P
Lots "E" and "F" of Chula Vista Tract No 06-05 Otay Ranch Village 2 Neighborhood R-15A, in the City of Chula Vista, County of San Diego, State of California, according to Map thereof No 15862 filed in the office of the County Recorder of said county April 4, 2012.
Lots 28 and 33 of Chula Vista Tract No 06-05 Otay Ranch Village 2 and Portions of Village 4 "A" Map, in the City of Chula Vista, County of San Diego, State of California, according to Map thereof No 15350 filed in the office of the County Recorder of said county May 26, 2006.
Lot 30 of Chula Vista Tract No 06-05 Otay Ranch Village 2 and Portions of Village 4 "A" Ma p, in the City of Chula Vista, County of San Diego, State of California, according to Map thereof No 15350 filed in the office of the County Recorder of said county May 26, 2006.
Lots 4, 5, 9, and 14 of Chula Vista Tract No 06-05 Otay Ranch Village 2 and Portions of Village 4 "A" Map, in the City of Chula Vista, County of San Diego, State of California, according to Map thereof No 15350 filed in the office of the County Recorder of said county May 26, 2006.
10/17/14
Exhibit A
North
5oo¸ Loo
D men i ll & L ca i a Shown
afeApp ximaEe
LEGEND
Owner's Property
EXHIBIT "B"
GENERAL DESCRIPTION AND DEPICTION OF THE PROJECT
EXHIBIT B
60093 00025\9324655 4
Exhibit B
Fire Station #7
Otay Ranch
High School
R-30
MU-3
State Street
VILLAGE OF HERITAGE
(Village 1)
VILLAGE OF
SANTA VENETIA
(Village 6}
Birch
Road
R-14
HERITAGE HILLS
(Village One West)
IND-1B
IND-IA
SCHOOL
,- Ro21B
Landfill Buffer Line
North
R-23
IND-3
R-2O
CPF*2
OTAY
LANDFILL
/
Preserve
OS/2
VILLAGE 4
LEGEND
R Residential
S School
P Park
CPF Community Purpose Facility
OS Open Space
C Commercial
PQ Public/Quasi-Public
MU Mixed Use
IND Industrial
EXHIBIT "C"
LISIING OF PROJECT APPROVALS
1 Otay Ranch Villages Two, Three, and a Portion of Village Four' Sectional Planning Area Plan F inal Second Tier Environmental Impact Report (EIR 02-02) 2 Supplemental Environmental Impact Report (SEIR-12-01) 3 Ihe Village 2 Sectional Planning Area (SPA) Plan as amended (PCM 12-18) 4 Tentative Map for Otay Ranch Village 2 (PCS 06-05) 5 Tentative Map for Otay Ranch Village 2 North (PCS 12-02) 6 Tentative Map tbr Otay Ranch Village 2 West (PCS 12-03) 7 Tentative Map tbr Otay Ranch Village 2 R-15b and R-31 (PCS 12-04) 8 Tentative Map tot Otay Ranch Village 2 South (PCS 12-05) 9 Otay Ranch Village 2 Development Agreement ( ) 10 Otay Ranch Village 2 Pa ks Agreement (. ) 11 All design review approvals and grading, improvement and building permits issued in connection with the above approvals
EXHIBIT C
60093 00025\9324655 4
EXHIBIT "D"
LISTING OF ANTICIPATED SUBSEQUENT PROJECT APPROVALS
No Subsequent Prc!ject Approvals are anticipated other than design review approvals and grading, improvement and building permits issued pursuant to the Prc!ject Approvals
EXHIBIID
60093 00025\9324655 4
EXHIBIT "E"
DESCRIPTION OF POSSIBLE SWIM FACILITY AMENITIES
A public swim club designed and constructed by Owner could include the following facilities/amenities to the satisfaction of the City Manager:
• 25 yard, 8 lane pool with a minimum surface pool area of 5,000 sf • Wading pool or splash pad amenity;
• Water slides/play structure and a water exelcise area; • Pool decking with public viewing area
• Shade structures
• Administrative ottice space;
• Lifeguard office;
• Restrooms/changing rooms;
• Shower facilities;
• Storage space;
• Pool equipment room;
• Snack bar and concession stand
All buildings and required parking will be designed to meet the standards of the Village Design Plan and the Montecito Village Core Master Precise Plan All facilities shall be fully ADA accessible A parking study shall be provided to demonstrate adequate onsite parking will be provided to serve the facility
EXHIBII E
60093 00025\9324655 4
EXHIBIT "F"
PUBLIC BENEFIT CONTRIBUTION TABLE
Neighborhoods/units subject to extraordinary benefit contribution:
Neighborhood Total Units
R-4B(a) 111
R-4B(b) 275
R-8C 51
R-12 600
R-16B 17
R-17B(a) 34
R-17B(b) 95
R-18A(b) 24
R-18B(b) 5
R-19B 39
R-20 80
R-21B 53
R-23 93
R-24 59
R-25A 330
R-27 175
R-31 25
MU-1 38
MU-2 50
MU-3 90
C-I 235
Total Units 2479
Fee amount:
Contribution Units Total
Amount Contributing Contribution
Units 1-2129 $2,84641 2129 $6,060,000 Units 2130-2479 $5,00000 350 S 1,750,000 Total 2479 $7,810,000
Neighborhoods R-5B, R-6, R-8A, R-8B, R-9B, R-10A, R,10B, R-11, R-13, R14 & R-15b are exempt flom extraordinary benefit contribution,
EXHIBIT F
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EXHIBIT "G"
ASSIGNMENT AND ASSUMPTION AGREEMENT
EXHIBII G
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ASSIGNMENT AND ASSUMPTION OF
DEVELOPMENI AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION OF DEVELOPMENI AGREEMENT ("Assignment") is made as of the __ day of _, 20 ("Effective Date"), by and among the ("Owner") and .("Assignee") with reference to the following facts:
RECITALS
A Owner is a party to that certain Development Agreement, dated __., __ by and between the City of Chula Vista ("City"), on the one hand, and [list all owners] ("Owner") on the other hand ("Agreement") for certain Teal property consisting of approximately acres of land located in the City, mote particular ly described in Exhibit "A" ("Property") B Owner desires to assign and delegate, and Assignee desires to accept and assume, all of Owner's tights and obligations under the Agreement in accordance with the terms and conditions set forth herein
C By signing this Assignment, the City approves the Assignment in accordance with the terms and conditions set forth herein and in the Agreement
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which ate hereby acknowledged, Owner and Assignee do hereby agree as follows:
1 Assignment and Assumption Effective as of the Effective Date, Owner hereby assigns, transfers, and conveys to Assignee all of Owner's tights, interest, duties, liabilities, and obligations in, to, and under the Agreement, and Assignee hereby accepts and assumes all such rights, interests, duties, liabilities, and obligations unde the Agreement fiom Owner for [the Property or a portion of the Property] ("Assigned Property") [, except to the extent Owner has retained a portion of the Property (the "Retained Property")] 2 City Consent to Assignment Effective as of the Ef bctive Date, City hereby consents to the Assignment and hereby fully releases and forever discharges Ownel fi'om any and all obligations to City under the Agreement fbr the Assigned Property, [except Owner's obligations with respect to the Retained Property]
3 Entire Agreement This Agreement represents the final and entire agreement between the parties in connection with the subject matter hereofand may not be modified except by a written agreement signed by both Ownel and Assignee 3 Govemin Law ]-his Agreement has been prepared, negotiated, and executed in, and shall be construed in accordance with, the laws of the State of California, without regard to conflict of law rules
EXHIBIT G-1
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above vclitten
Ownel :
By:.
Assignee:
By:.
Name:
Its:
City:
City of Chula Vista,
a California Municipal Corporation
By:_
Name:
Its:
EXHIBII G-2
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