-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
PARKS AGREEMENT FOR OTAY RANCH VILLAGE EIGHT EAST
This Agreement Regarding Construction of Park s (“Agreement”) is made as of ____________, 2025, by and between HomeFed Village 8E, LLC, a Delaware limited liability company (“Developer”), and the City of Chula Vista, a California municipal corporation and charter city (“City”), with reference to the following facts:
A. Developer owns certain real property generally known as Otay Ranch Village Eight East, as shown on Exhibit “A” and described in Exhibit “B”, and located in the City of Chula Vista (“Property”). Developer intends to develop the Property as generally depicted o n Exhibit “C” attached hereto.
B. Village Eight East will be developed in accordance with the Village Eight East Sectional Planning Area (“SPA”) Plan, adopted by Chula Vista City Council Resolution No. 2014- 235, amended by Chula Vista City Council Resolution No . 2024-082, dated May 14, 2024 (“Project”).
C. Developer shall comply with the Chula Vista Municipal Code (“CVMC”) Chapter
17.10 Parklands and Public Facilities Ordinance (“PLDO”), as amended.
D. The PLDO requirements are imposed on the Project through conditions numbered 43 through 49 of the Village Eight East Tentative Subdivision Map (CVT 22-0005) approved by Chula Vista City Council Resolution 2024-082, dated May 14, 2024 (“Tentative Map”) as shown on Exhibit “D” and the supplemental subdivision improvement agreement(s).
E. The PLDO is utilized to determine the parkland usable acreage and/or in -lieu fee payments required for the Project, whereby 460 square feet of parkland is required per single - family dwelling unit (“DU”) and/or detached multi-family DU, and 341 square feet of parkland is required per attached multi-family DU. For the purposes of this Agreement, 336 single family DU times 460 square feet plus 2,940 attached multi-family DU times 341 square feet divided by 43,560 square feet equals 26.56 acres of usable parkland for the Project.
-2-
F. The Village Eight East SPA Plan anticipates that the Project will provide sufficient area and facilities to meet its recreational needs on site through the provision of a Neighborhood Park, a portion of a Community Park and the Edge Trails (defined below), consistent with the City’s Parks and Recreation Master Plan adopted August 7, 2018, the Project’s Park Master Plans (as defined in the Chula Vista Landscape Manual Part 3 – Public City Requirements, Section 1 – Submittals) and the Parkland Acquisition and Development requirements of the PLDO. Consistent with the Village Eight East SPA Plan, final design of the public parks may be refined or modified during park planning to include other facilities or amenities that serve evolving demographics and associated outdoor recreational needs and meet the intent of the City’s parks mission.
G. The Project is a Common Interest Development and, by its approval of this Agreement, the legislative body of the City has determined that both the publicly-owned Community Park and privately-owned and maintained Neighborhood Park and Edge Trail s developed within the Project are eligible to satisfy parkland dedication, development and/or in lieu fee requirements under the PLDO.
H. The parties intend b y this Agreement to implement the requirements of the SPA Plan, the PLDO, and the conditio ns of approval of the T entative Map by establishing a Neighborhood Park, Edge Trails, and a portion of a Community Park that satisfy park requirements for the Project. Developer agrees to maintain (or cause the Association to maintain) the privately- owned Neighborhood Park and Edge Trails. The Community Park within the Project will be owned and maintained by the City.
I. In order to secure full public access to the Neighborhood Park and Edge Trail s, Developer shall grant a Public Access Easement over the Neighborhood Park and Edge Trail s in conjunction with the Project’s Final Map(s) as further described herein . The Neighborhood Park and Edge Trails shall be open for public use daily pursuant to CVMC 2.66.270 . Pursuant to the Community Declaration of Covenants, Conditions and Restrictions and Establishment of Easements of Cota Vera (Village Eight West), recorded on October 14, 2021, in the County of San Diego Recorder’s Office as Document No. 2021 -0717126 (“CC&Rs”), into which CC&Rs the Village 8 East Property and the Neighborhood Park and Edge Trails will be annexed, each Owner and the Association acknowledge and agree that such Neighborhood Park and Edge Trails shall be required to remain open to the general public and that the Association shall be obligated to maintain, operate and program such Neighborhood Park and Edge Trails in accordance with this Agreement. In no event shall the Association or any Owner seek to have the City-accepted Public Access Easement vacated for the Neighborhood Park and Edge Trails.
J. Developer has agreed to provide a mechanism to fund the perpetual maintenance of the Neighborhood Park and Edge Trails within the Project , as required by the Fiscal Impact Analysis prepared by DPFG dated April 2024 and included in the Project’s Supplemental Public Facilities Finance Plan (“PFFP”) approved by Chula Vista City Council Resolution 2024 -082, dated May 14, 2024 . Based on the esti mated initial annual cost of $14,000 per acre to maintain parks, Developer or their Assignees are responsible for an initial annual Neighborhood Park maintenance cost of approximately $91,630/year and an initial annual Edge Trail maintenance cost of approx imately $30,660/year. The maintenance budgets shall be adjusted to reflect cost escalations on an annual basis and in accordance with the approved Homeowners Association (“Association”) annual budget. The cost savings to the City General Fund for Neighborhood Park
-3-
maintenance is reflected in the fiscal model summary of the Supplemental PFFP and is a requirement of the Project.
K. On the First Final Map within the Project, Developer shall grant an irrevocable offer of dedication (“IOD”) to the City for a total of 21.107 acres (defined below) of the Community Park (“Village Eight East Community Park IOD”), as provided in the condition of approval for the Tentative Map. Before the City accepts the Village Eight East Community Park IOD, the City and Developer (or the Association) shall enter into a maintenance agreement, to be approved by the City, for the Developer or Association to maintain the slopes greater than 4:1 that are contained within the Village Eight East Community Park IOD area as shown on the Unit 2 Final Map. Such maintenance agreement shall be recorded. Within the IOD, a total of 17.825 net usable acres shall be eligible to receive park credit. The remaining 0.61 acres consist ing of two City of San Diego waterline easements, shown on Exhibit E-2, is not eligible for park credit. Slopes greater than 4:1 and areas with encumbrances or easements not in favor of the City are ineligible for park credit.
The Village Eight East Community Park IOD is subject to the review and approval of the Development Services Director, or their designee. The City shall be responsible for construction of the improvements for and maintenance of the Community Park.
L. This Agreement does not increase or decrease any park obligation s but instead clarifies responsibility for the PLDO requirements attributable to the Pro ject by addressing the amount of parkland dedication, development and/or in -lieu fee payments required, as well as requirements for park design, park construction, and bonding.
NOW THEREFORE, in consideration of the mutual promises described herein, and other good and valuable consideration, the parties agree as follows:
1. Definitions. Unless otherwise indicated, for purposes of this Agreement, the following terms shall mean:
1.1 “Association” means the property homeowners association , commonly known as Cota Vera Homeowners Association, that will own, operate and maintain the Neighborhood Park and Edge Trails.
1.2 “Bid Documents” means documents prepared by Developer and approved by the City to solicit proposals for a Parks or Trails construction contract as described in Section 2.9.(C). Bid and Award herein.
1.3 “Commence Construction ” means a construction permit or other such approval necessary to commence construction has been issued by the City and construction staging has begun.
1.4 “Community Park ” means the Community Park designated P -2 Community Park on the Village Eight East Tentative Map and commonly referred to as the Otay Ranch Community Park South containing approximately 43.3 acres (gross) and 36.3 acres (net) shown conceptually on Exhibit “E-1” including 21.107 acres (gross) and 17.825 acres (net) of which shall be dedicated to City on the Village Eight East First Final Map.
The Community Park will be owned, constructed, operated and maintained by the City.
-4-
1.5 “Community-Oriented Retail Vendor ” means retail and/or commercial vendors approved by Association which may operate within designated spaces or structures in the Neighborhood Park. Designated spaces/structures shall be approved by Association and may include buildings/structures, containers (temporary or otherwise) , carts, pop -up canopies, or similar structures to enable the provision of concession s, goods or services .
The Association shall submit all buildings, structures, containers (temporary or otherwise), tents, canopies, and similar items proposed for vendor use to the City for permit review and approval in accordance with the Chula Vista Municipal Code and all applicable State requirements. Association shall coordinate with vendors to ensure vendors comply with all City requirements, including business license requirements.
1.6 “Complete Construction ” or “Completion of Construction ” means that construction of the Neighborhood Park and Edge Trails, individually, has been completed to the written satisfaction of the Director of Develo pment Services , or their designee, exclusive of any required maintenance establishment and warranty periods.
1.7 “Concessions” means the sale of food and beverages or other i tems to the public by Association or by an Association-approved Community-Oriented Retail Vendor from a designated area or building within the Neighborhood Park.
1.8 “Construction Costs ” means the costs of constructing the park improvements in the Neighborhood Park and Edge Trails including labor and materials , construction project management, City plan check and inspections and maintenance costs during any required maintenance establishment periods.
1.9 “CVMC” means the Chula Vista Municipal Code.
1.10 “Development Fees” means the development portion of the Park land Acquisition and Development (“PAD”) fees required per CVMC.
1.11 “Edge Trails” means the trails shown in the SPA Plan and on the Tentative Map (Exhibit F attached hereto) and comprised of approximately 2.190 net usable acres.
The final usable acres to be determined during Landscape Erosion Control Plan preparation. The Edge Trails shall be owned, operated and maintained by the Association and a Public Access Easement shall be recorded as discussed in Section 1. 25 below over the entirety of the Edge Trails on the Village Eight Units 1 and 2 Final Maps.
1.12 “Edge Trails Plan” means a design plan to be prepared depicting the three Edge Trails segments, overlooks, and pedestrian amenities. The Edge Trails Plan shall be incorporated within the Project’s Landscape Master Plan and Landscape Erosion Control Plans. The Edge Trails Plan shall be subject to review and approval pursuant to Section 2.4 and 2.8 of this Agreement.
1.13 “IOD” means an Irre vocable Offer of Dedication . IOD shall be free and clear of all encumbrances and easements that would prevent the use of the area subject to the IOD for public park purposes. Any IOD shall be subject to review and approval of the Director of Development Services, or their designee.
-5-
1.14 “Landscape Master Pla n” means the comprehensive plan for the entire Project site in accordance with Tentative Map Condition of Approval No. 55 within Resolution No. 2024-082.
1.15 “Landscape Erosion Control Plans ” means the set of drawings and other documents required to be submitted to the City and bonded for prior to issuance of the Project’s grading permit or other permit to grade, excluding mass grading permit , consistent with the City of Chula Vista Subdivision Manual.
1.16 “Landscape Improvement Plans” means a set of drawings and other documents required to be submitted to the City for approval in order to demonstrate that the landscape design complies with the requirements of the Water Conservation Ordinance CVMC 20.12, the Landscape Manual, and the Subdivision Manual.
1.17 “Maintenance Establishment Period ” means the period of time between Completion of Construction and Turnover of the Neighborhood Park or Edge Trails to Developer or Association, in which the Developer is responsible for maintaining the Neighborhood Park and Edge Trail improvements, which includes ensuring that plant materials are fully established, and irrigation systems are fully installed and operational before the Neighborhood Park or Edge Trails are open for public use. The duration of this period and maintenance operations will be specified in contract documents for the specific project, subject to adjustments as determined by the City.
1.18 “Neighborhood Park ” means the Neighborhood Park containing 6.545 usable acres, shown conceptually on Exhibit “G.” The final usable acres to be determined during Neighborhood Park Landscape Improvement Plan preparation. The Neighborhood Park shall be owned, operated and maintained by the Association and a Public Access Easement shall be recorded as discussed in Section 1.25 below over the entirety of the Neighborhood Park designated Lot 9 on the Village Eight first Final Map.
1.19 “Park and Edge Trail Improvements ” means the improvements per Sections 2.3 and 2.4 below.
1.20 “Park Credit” means the Parkland Acquisition and Development ( PAD) credits granted in writing to Developer by the City in satisfaction of the Project meeting its PLDO obligations. Such credits are transferable to other owners within Village Eight East for application toward PAD fees due prior to building permit issuance. Final Park Credit for the acreage and development of 26.56 net usable acres based on full buildout of approved units shall be reconciled upon issuance of the last building permit in Village Eight East.
1.21 “Park Development Budget” means the estimated Construction Cost budget, consistent with the approved Neighborhood Park Master Plan and/or Edge Trail Plan, that has been approved by the City as part of the final Landscape Improvement Plans.
1.22 “Parkland Development Credit” means the portion of the PAD credits granted to Developer by the City for the development of the Neighborhood Park (6.545 net usable acres), Edge Trails (2.190 net usable acres), and the payment of in-lieu fees for the development of the Community Park (17.825 net usable acres) in satisfaction of the Village
-6-
Eight East PLDO obligation. If Parkland Credits granted to Developer by City exceed the Village Eight East parkland obligation, then excess Parkland Credits may be applied to future parkland obligation of Developer, or Developer affiliated company(ies) in accordance with state regulatory requirements. Credits in excess will be distributed in a manner consistent with CVMC 3.54.155.
1.23 “Park Hours of Operation” means the Neighborhood Park and Edge Trails shall be open for public use daily from 7 a.m. to 10 p.m. consistent with CVMC 2.66.270 unless otherwise amended by the City. At no time shall Association modify Neighborhood Park or Edge Trails hours of operati on without prior approval by Director of Park s and Recreation, or their designee.
1.24 “Privately Owned and Maintained Project Standard(s)” means the adopted Privately Owned and Maintained Project Standard(s) per the City of Chula Vista Landscape Manual and Sub division Manual Section 4 -304.2, that may be adjusted based on project design as negotiated between Developer and City during the design phase.
1.25 “Public Access Easement ” means an irrevocable and perpetual easement granted by Developer to the City , to the City’s written satisfaction and approval, on the Village Eight East Units 1 & 2 Final Maps for public use and access over, through , and across the Neighborhood Park and Edge Trails , including as discussed in Section
2.4(A)(4)A below relating to the Edge Trails.
1.26 “Resource Management Plan ” means the Otay Ranch Resource Management Plan, Phase 1 and Phase 2.
1.27 “Rough Grading Plan(s)” means the set of documents required to obtain a rough grading permit consistent with the City of Chula Vista Subdivision Manual.
1.28 “Turnkey” means the Neighborhood Park and Edge Trails are designed, all improvements are constructed and required Maintenance Establishment Periods have been completed consistent with the provisions of the Chula Vista Landscape Manual, the Landscape Water Conservation Ordinance, the City’s Parks and Recreation Master Plan, as amended in the Village Eight East SPA Plan, and related Development Services Department specifications and policies in effect on the date of this Agreement. For a period of five (5) years from the Effective Date, such policies and specifications shall remain applicable to the determination of Turnkey completion, regardless of any subsequent amendments or updates. After five (5) years, any new or amended policies in effect at that time may apply unless otherwise agreed in writing by the City and Developer.
1.29 “Turnover” means the process by which control, ownership, and maintenance responsibility of common areas or community assets are transferred from the developer (or declarant) to the Association, consistent with the Project’s Grant of Easements and Landscape Maintenance Agreement (GELMA).
1.30 “Usable Acres” means the area of land in acreage for the Community Park, Neighborhood Park, and Edge Trails eligible to receive park credit as described in the PLDO and City of Chula Vista Parks & Recreation Master Plan, as amended in the Village Eight East SPA Plan , unless easement areas are otherwise stated in this Agreement and
-7-
shown on the approved Tentative Map (CVT-22-0005). Slope areas within the Neighborhood Park, Edge Trail, and Community Park boundaries greater than 4:1 (25%) are ineligible for Parkland Credit. Edge Trails located within the Otay Water District (OWD) easement shall not be eligible to satisfy the parkland obligation or receive Parkland Credit unless the City receives a letter from OWD expressly consenting to the use of its easement for public trail purposes.
2. Satisfying Parkland Development Obligation. Developer shall satisfy the 26.56 usable acres of PLDO land dedication requirements for the Project by granting Public Access Easements over the 6.545 net usable acre Neighborhood Park and 2.190 net usable acre Edge Trails and by granting the IOD containing 17.825 net usable acres within the Community Park in lieu of paying land acquisition fees otherwise required by the PLDO . Developer shall satisfy the park land development requirements of the PLDO for the Project by providing the Turnkey Neighborhood Park and Edge Trails and by paying in -lieu fees for the Project’s proportionate share of the Community Park development improvements as provided in the PLDO (“Development Fees”).
The final parkland dedication requirement is subject to the number and type of units constructed within the Project, consistent with the PLDO and the terms of this Agreement. The location of the Project’s parkland facilities is depicted in Exhibit s C, E, F and G attached hereto. The parkland dedication requirements for the Project shall not be increase d by the City, unless the number of residential units constructed within the Project is increased through City Council approval of an amendment to the Village Eight East SPA Plan and Tentative Map.
2.1 Parkland Acquisition and Development Fees. PAD fees may be financed and/or reimbursed with the proceeds of special taxes and bonds of one or more CFDs. Such financing and reimbursement shall not in any way replace, negate, or reduce the development fee credits outlined by this Agreement.
2.2 Additional Parklan d. If the Project includes more than 336 detached residential units, 2,940 attached residential units, and/or the type of unit changes from attached to detached, Developer shall satisfy the additional PLDO obligations consistent with CVMC Chapter 17.10.
2.3 Neighborhood Park. Developer shall construct the 6.545 net usable acre Neighborhood Park with park improvements consistent with the SPA Plan, Exhibit “G-1” Conceptual Neighborhood Park Plan, the PLDO, the City of Chula Vista Parks & Recreation Master Plan, and the Chula Vista Landscape Manual pursuant to the following process and on the following terms:
(A) Park Design and Approval of Construction Documents . Developer shall obtain City written approval of the design of the Neighborhood Park pursuant to Section 2.7 of this Agreement.
(B) Park Level of Improvements . City and Developer acknowledge that the Neighborhood Park shall be privately owned and maintained by Association and, as such, Park Improvements may deviate from standard Park Improvements typically required in City parks, subject to review and approval of the Director of Development Services, or their designee . The Neighborhood Park Improvements provided pursuant to this Agreement shall be in Turnkey condition and consistent
-8-
with the SPA Plan and Council approved Park Master Plan . Developer may elect to provide amenities that are different and/or beyond , but not less than, those associated with a typical City park . If Developer provides any such additional amenities, the cost and associated pa rk development credits shall be subject to approval by Director of Development Services, or their designee. If a Park Master Plan for the Neighborhood Park is approved that reflects a construction cost for Park Improvements in excess of the park development fee obligation identified in Section 2.9 Park Development Fee Obligation and Estimated Construction Cost , the Developer shall in advance of incurring the costs get approval from the Director of Development Services, or designee, to receive credit up to equivalent of the approved Construction Costs as documented, and PAD-D fee for Community Park acreage shall be reduced commensurately.
(C) Construction/Timing. Developer shall commence design and preparation of the Park Master Plan for the Neighborhood Park no later than issuance of the building permit containing the 838th residential unit in the Project (equal to approximately 25% of the residential units), or as otherwise approved in writing by the Director of Development Services, or their designee. Develo per shall commence construction of the Neighborhood Park no later than the issuance of the building permit for the 1,638th residential unit in the Project (equal to approximately 50% of the residential units), or as otherwise approved in writing by the Director of Development Services, or their designee. Construction work for the Neighborhood Park shall proceed diligently and in good faith to the City’s satisfaction.
(D) Alternatives and Boundary Adjustments . The parties agree that minor adjustments to the Neighborhood Park boundaries may be appropriate during preparation of the Park Master Plan and/or Park Landscape Improvement Plans for the Neighborhood Park to optimize the interface with adjacent development. All such adjustments shall be subject to written approval of the Director s of Development Services and Engineering, or their designees. Nothing in this Section shall be construed as allowing any reduction in the overall acreage of the Neighborhood Park, but additional usable acreage provided may result i n a park credit at City’s discretion.
2.4 Edge Trails . Developer shall construct the Edge Trails comprised of approximately 2.190 net usable acres as identified in Exhibit F and defined below. The total area of the Edge Trails eligible to receive park credit shall be consistent with the standards of this section and determined during final engineering and construction . The Edge Trails shall include trail and recreational improvements consistent with the SPA Plan, the PLDO, the Chula Vista Landscape Manual, the Project Landscape Master Plan , applicable Project entitlements, and City Codes and regulations. Edge Trail improvements shall be included in the landscape erosion control plans containing Edge Trail segments described below, pursuant to the following process and on the following terms:
(A) Edge Trail Design and Approval of Construction Document s. Developer shall obtain written City approval of the design of the Edge Trail s pursuant to
-9-
Section 2. 8 of this Agreement. Edge Trail segments shall be designed and constructed consistent with the following minimum requirements:
(1) The Project Unit 1 Final Map shall include a Public Access Easement over the portion(s) of the Edge Trail s within the limits of the applicable Unit 1 Final Map. The Project Unit 2 Final Map shall include a Public Access Easement over the remaining portion(s) of the Edge Trails. (2) All Edge Trail segments shall be designed and constructed to include pedestrian amenities at key locations. Pedestrian amenities may include, but are not limited to, overlook points (as defined below), benches, trail signage, fencing, shade structures, activity stations or features, informational, wayfinding or cultural monumentation/kiosks, trash and recycling receptacles and pet waste stations. Landscaping (trees, shrubs, groundcover) and irrigation shall be consistent with the Project Landscape Master Plan and the Project ’s Fire Protection Plan and Addendum (s) applicable Fuel Modification Zone(s).
(3) Developer shall include the Edge Trail segments in the Project Landscape Master Plan and Landscape Erosion Control Plans containing the Edge Trails as the basis for the Section 2.8 process. (4) The following design standards shall apply to Edge Trail segments; consistency with these standards shall qualify such segments for parkland credit:
A. The Public Access Easement shall be 24-feet wide within a 24- foot wide graded area. Portions of the Public Access Easement coincide with an Otay Water District (“OWD”) Utility
Easement, City of Chula Vista sewer and/or storm drain
easement; the OW D utility easement shall only qualify as satisfying the PLDO parkland obligations upon written
notification from OWD to the City of Chula Vista Director of Development Services allowing the placement of a public access easement over OWD utility easement. The City of Chula Vista sewer and/or storm drain easement is not eligible to satisfy the PLDO parkland obligations.
B. Use of the OWD utility easement for Edge Trail requires a letter of approval from OWD to Development Services Director
approving use as a public access easement.
C. The Edge Trail shall maintain a 12-foot-wide minimum walkable surface with landscape buffers on each side within the 24-foot wide level area (less than 5%).
D. All Edge Trail segments shall be designed and constructed consistent with th e accessibility standards and requirements included within the California State Parks Trails Handbook.
-10-
E. Retaining walls and wall footings are not permitted within the 24-foot Public Access Easement.
F. Post and rail fencing is permitted but not required on the Edge Trail Segment A (Tentative Map, Street Section 13).
G. Post and rail fencing is permitted and required along the southern boundary of the trail within the Edge Trail Segment B (Tentative Map, Trail Section 4) and Edge Trail Segment C (Tentative Map, Trail Section 5).
H. Portions of Edge Trail Segment B and Segment C are located within Fuel Modification Zone 1. Landscaping within Fuel Modification Zone 1 must comply with the Project Fire
Protection Plan (“FPP”) , Addendum(s), associated Approved Plant Palette , and OWD requirements. Tree planting is
permitted outside of the OWD easement, consistent with the Fuel Modification Zone 1 requirements.
(5) Trail Overlook Points. Two (2) Overlook Points are planned along the Edge Trails. The level portion of the Overlook P oints with slopes less than 4:1 shall be eligible for parkland credits and are included in the estimated net usable acreage associated with the Edge Trails. The Overlook Points are shown on the Tentative Map and are depicted on attached Exhibit F. Overlook surfaces and seating shall meet accessibility requirements and landscaping shall comply with the applicable FPP requirements. (B) Edge Trail Level of Improvements . City and Developer a cknowledge that the Edge Trails , including Overlook Points , shall be privat ely owned and maintained by Association. The Edge Trail improvements provided pursuant to this Agreement shall be in Turnkey condition and consistent with the SPA Plan and approved Landscape Master Plan and Landscape Erosion Control Plans. (C) Construction/Timing. Developer shall commence design and preparation of the Edge Trails within the Landscape Erosion Control Plans concurrent with, and approved with, the precise grading plan. Developer shall commence construction of the Edge Trail improvements no later than issuance of the building permit for the 2,784th residential unit in the Project (equal to 85% of the residential units), or as otherwise approved in writing by the Director of Development Services, or their designee. Construction work for the Edge Trails shall proceed diligently and in good faith to the City’s satisfaction.
(D) Alternatives and Boundary Adjustments. The parties agree that adjustments to the boundaries of the Edge Trails and Overlook Points may be appropriate during preparation of the Landscape Master Plan and/or Landscape Erosion Control Plans containing the Edge Trail improvements to optimize the interface with adjacent development. All such adjustments shall be subject to approval of the Directors of Development Services and Engineering, or their designees. Nothing in this Section
-11-
shall be construed as allowing any reduction in the overall acreage of the Edge Trails or the required minimum width of 24 feet in any location within the Public Access Easement, but additional usable acreage provided may result in a credit at discretion of the Director of Development Services, or designee.
2.5 Community Park.
(A) Developer shall grant City an IOD containing 21.107 gross acres and
17.825 net usable acres within the P-2 Community Park on the first Final Map within the Project. Such IOD shall be free and clear of all encumbrances or easements not in favor of the City in accordance with the PLDO. (B) PAD-D in-lieu fees for the Community Park shall be collected prior to building permit issuance. Based on the approved SPA Plan and PFFP, it is anticipated that approximately 2,160 units of the 3,276 total units in Village 8 East will be responsible for paying PAD-D fees toward the Community Park based on fee at time of permit issuance.
(C) Developer shall initiate the rough grading of the Community Park site subject to the IOD upon receipt of written notice from City. Developer is required to bond for grading of the Community Park site which shall remain in force until such grading is completed.
(D) The City shall be responsible for the design, construction and maintenance of the Community Park including the Community Park Access Trails as defined in the SPA Plan and Tentative Map.
(E) Developer and/or Association shall be responsible for maintaining the slopes exceeding 4:1 adjacent to the Community Park.
(F) Developer shall install underground utilities to serve the Community Park site to the property line . Consistent with Tentative Map condition of approval 49 (Exhibit “D”), Applicant shall construct an underground recycled water line as depicted on the Village Eight East Tentative Map within the Community Park Trail to the eastern property line of the Community Park (P -2). The Applicant shall construct an underground potable water line within the existing Avenida Caprise right-of-way from the point of connection in Village Eight West to the western property line of the Community Park (P-2).
2.6 Park Credits & In-Lieu Fees. City shall grant Park Credits to Developer pursuant to the following terms:
(A) Parkland Acquisition Credits. In satisfaction of the Project’s PLDO obligation, City shall grant Developer Parkland Credits totaling 26.56 net usable acres for the P-1 Neighborhood Park, the Edge Trails, and the P-2 Community Park IOD area(s) consistent with the PFFP.
(B) Park Development Credits for Installation. In satisfaction of the Project’s PLDO obligation, City shall grant Developer Park Development Credits for
-12-
installation of the Neighborhood Park and the Edge Trails consistent with the approved Park Development Budget. Developer may transfer such Park Development Credits to other owners or guest builders within Village Eight East to be applied to residential building permits within the Project in acco rdance with Chula Vista Municipal Code Section 3.50.155. City shall grant Developer Park Development Credits in accordance with Chula Vista Municipal Code Section
3.50.150.
(C) Park Development Fee Allocation. Consistent with section 2.5(B), a portion of units within Village 8 East shall be responsible for paying PAD -D fee for the Community Park at time of building permit issuance. In satisfaction of the Project’s PLDO obligation.
(D) Parkland Credit Adjustments.
(1) After Developer has completed construction of the Neighborhood Park and Edge Trail improvements, if it is determined that the amount of Park Development Credits or obligations applied to residential building permits within the Project exceeds the actual cost to construct the Neighborhood Park and Edge Trail improvements, then Developer shall pay the balance of the Park Development Fees to City within 60 days of receipt of written notice from City to Developer.
(2) If Developer determines that construction costs will exceed the City’s PLDO obligations, then Developer may propose to amend the Park Master Plan / Edge Trail Plan to reduce or modify facilities to be consistent with the City’s PLDO requirements. Alternatively, Developer may propose to fund the additional construction costs. Developer shall submit, in advance of incurring the costs, documentation to the City’s written satisfaction demonstrating that the construction costs will exceed the City’s PLDO obligations. The Developer may request the City grant Developer additional Park Development Fee Credits, subject to review and written approval of the Director of Development Services, or their designee.
2.7 Neighborhood Park Plan Review and Approval Process. The Park Master Plan shall comply with the SPA Plan , Village Design Plan , the PLDO, Chula Vista Landscape Manual, City Codes and regulations, and any applicable Project entitlements .
The privately owned and maintained P-1 Neighborhood Park shall be reviewed by City pursuant to privately owned and maintained project standards under the Landscape Manual and Landscape Improvement Review Packet to the maximum extent applicable as approved by the City , and presented to the Chula Vista Parks & Recreation Commission and Chula Vista City Council for approval, consistent with the following:
(A) Design Administration (Issue Concept Documents)
(B) 1st Submittal Package shall include:
(1) Description of park program and design concept
-13-
(2) Illustrative site plan identifying all features, amenities, landscaping, property lines, easements and interface with adjacent developments and planned improvements fronting rights-of-way.
(3) Plant material legend, providing plant material options for each use area and applicable hydrozone.
(4) Preliminary construction m aterials schedule, conveying the proposed hardscape, fencing, walls , buildings/structures, furnishings, lighting, signage , sculptural/art elements and amenity materials and colors.
(5) Preliminary grading and drainage design, including stormwater management.
(6) Sketches, elevations, sections and/or 3 -D modeling (maximum of two (2), as required to convey the proposed landforms and uses of key areas.
(7) Hydrozone map showing areas to be irrigated and preliminary irrigation mainline layout with proposed water meter(s) and brief description of irrigation type.
(8) Preliminary Cost Estimate.
(C) Public Community Input. Developer shall conduct two (2) public community meetings regarding the design and amenities of the Neighborhood Park.
Meeting noticing shall be limited to 500 feet of the project/park site including the Association management entity in accordance with City policy. Developer shall be responsible for community meeting notice in accordance with City policy copying the Director of Development Services and notifying City staff of meeting dates, times, and locations no less than 15 days prior to the meeting or in accordance with City Policy, whichever is longer.
(D) Subsequent submittals shall include:
(1) Developer shall address all City comments.
(2) Developer shall meet and confer with City to resolve comments. (E) Developer shall initiate the Design Development phase upon City Council approval of the Neighborhood Park Master Plan.
(F) Developer shall submit 100% Construction Documents to City for review (1st review) prepared pursuant to Privately Owned and Maintained Project Standards. Construction Documents shall include:
(1) Precise Grading and Drainage Plans
-14-
(2) Site Utility Plans
(3) Building Plans (per separate approval process)
(4) Landscape hardscape materials plans and support documentation (5) Landscape amenities plan and support documentation
(6) Signage plan and support documentation
(7) Recycled water irrigation plans and support documentation (8) Planting plans and support documentation
(9) Lighting plans and support documentation (per sepa rate approval process)
(10) Specifications
(11) Cost estimate
(G) Developer shall address City comments and submit revised Construction Documents to City for subsequent reviews.
(H) Developer shall submit Construction Documents to Otay Water District (“OWD”) and County of San Diego Department of Environmental Health (“DEH”) for review and approval prior to City approval.
(I) After securing OWD and DEH approval and signatures and upon written notification from City, Developer shall prepare final documents (mylars are not required for private projects) for City approval.
(J) Construction Administration (Issue Bid Documents)
(1) Developer shall select a minimum of three qualified contractors and shall prepare and issue competitive bid documents.
(2) Developer shall provide City with bid documents and tabulation of bids. Developer shall select the lowest bidder. If the lowest bidder is not selected, Developer shall provide City with reasoning for the selection.
(3) Developer shall select contractor and initiate construction. (4) Park improvements shall be subject to the City’s Landscape & Irrigation Inspection Card for Privately Owned and Maintained Project Standard(s).
(K) City shall issue final Park Development Credits to Developer once the park construction and required maintenance establishment period(s) are complete, the
-15-
Turnkey Park has been turned over to the Association and the City approves the 100% audit of park improvement Construction Costs.
2.8 Edge Trail Plan Review and Approval Process . The Edge Trail Plan shall be reviewed and approved by City pursuant to trail improvement plans and consistent with Privately Owned and Maintained Project standards, and presented to the Chula Vista Parks & Recreation Commission and Chula Vista City Council for approval, consistent with the following:
(A) The Landscape Master Plan, Rough Grading Plans, and Landscape Erosion Control Plans, as required by the Subdivision Manual, shall define the location, dimensions, slopes, irrigation systems, and surface and edge materials for the Edge Trails consistent with th e adopted SPA Plan. The Edge Trail design shall specify planting, pedestrian amenities, and detailed design features within the 24-foot Edge Trail corridor as depicted in the Landscape Erosion Control Plan. All such plans shall comply with the SPA Plan, Preserve Edge Plan, Village Design Plan, and all other applicable project entitlements, City codes, and regulations. (B) Public Community Input. Developer shall conduct two (2) public community meetings regarding the design and amenities of the Neighborhood Park which shall include concept for the Edge Trail design . Meeting noticing shall be limited to 500 feet of the project/park site including the HOA management entity in accordance with City policy. Developer shall be responsible for community meeting notice in accordance with City policy copying the Director of Development Services and notifying City staff of meeting dates, times, and locations no less than 15 days prior to the meeting or in accordance with City Policy, whichever is longer. (C) 1st Submittal Package of Landscape Master Plan shall include:
(1) Description of Edge Trail design concept
(2) Illustrative site plan identifying all features, amenities, landscaping, property lines, easements and interface with adjacent developments and planned improvements.
(3) Plant material legend, providing plant material options for each use area and applicable hydrozone.
(4) Preliminary construction materials schedule, conveying the proposed hardscape, fencing, walls , furnishings, lighting, signage and amenity materials and colors.
(5) Preliminary grading and drainage design, as shown in Rough Grading Plans.
(6) Sketches, elevations, sections and/or 3 -D modeling (maximum of two (2)), as required to convey the proposed landforms and uses of key areas.
-16-
(7) Hydrozone map and conceptual irrigation notes.
(8) Preliminary Cost Estimate.
(D) Subsequent submittals shall include:
(1) Developer shall address all City comments.
(2) Developer shall meet and confer with City to resolve comments. (E) The Edge Trails concept approved in the Landscape Master Plan shall be presented to Parks & Recreation Commission and Council concurrently with the Neighborhood Park Master Plan. Developer shall initiate Design Development phase upon City Council approval of the Neighborhood Park Master Plan and the Edge Trails.
(F) Developer shall s ubmit 100% Construction Documents of the Landscape Erosion Control Plans to City for review, prepared pursuant to Privately Owned and Maintained Project standards. Construction Documents shall include:
(1) Precise Grading and Drainage Plans with reference to applicable Rough Grading Plans (per separate approval process)
(2) Site Utility Plans with reference to applicable Civil improvement plans (per separate approval process)
(3) Landscape hardscape materials plan and support documentation (4) Landscape amenities plan and support documentation
(5) Signage plan and support documentation
(6) Recycled water irrigation plan and support documentation (7) Planting plans and support documentation
(8) Lighting plans and support documentation (per separate approval process)
(9) Specifications
(10) Construction Cost Estimate
(G) Developer shall address final City comments and submit revised Construction Documents to City for second review.
(H) Developer shall submit Construction Documents to OWD and County of San Diego DEH for review and approval.
-17-
(I) After securing City, OWD, and DEH approval and signatures and upon written notification from City, Developer shall prepare final documents. (J) Construction Administration (Issue Bid Documents)
(1) Developer shall select three qualified contractors and shall prepare and issue competitive bid documents.
(2) Developer shall select contractor and initiate construction. (3) Edge Trail Improvements shall be subject to the City’s Landscape & Irrigation Inspection Card for Privately Owned and Maintained Project Standard(s).
2.9 Park Development Fee Obligation and Estimated Construction Costs. The estimated park development fee obligation for the Neighborhood Park and Edge Trails will be calculated in accordance with CVMC 17.10. The final credit amount will be determined upon Completion of Construction. The Development Impact Fee (“ DIF”) rate used to calculate park credits will be identified at approval of the construction documents .
Developer is responsible to spend the park development fee obligation on the installation of the Neighborhood Park and Edge Trails through documented and approved Construction Costs (soft and hard costs) consistent with this section. If the design and cost packages for the Neighborhood Park and Edge Trails are submitted concurrently, park development fee obligation shall be applicable to the total combined acreage of the Neighborhood Park (6.545 ac) and Edge Trail (~2.190 ac), a specific per acre amount shall not be required for any individual acre of the total approximate 8.735 acres eligible for pa rk credit. If the design and cost packages for the Neighborhood Park and Edge Trails are submitted separately, the per acre PAD Fee shall be applicable to the Neighborhood Park acreage and Edge Trail acreages separately.
(A) Documentation of Construction Costs. Developer shall within sixty (60) days of Completion of Construction , provide City with all documentation reasonably required to verify completion and substantiate Construction Costs for the Turnkey Neighborhood Park and Edge Trails, for the City's review and approval.
(B) Competitive Bid or Solicitation. Developer shall award a contract for construction of the Neighborhood Park and Edge Trails by competitive bid.
Developer or its affiliate may act as a design -build entity or prime contractor for the Neighborhood Park and Edge Trails where Developer provides written notice to City of its intent to act as a design-build entity or prime contractor and provides information demonstrating its competence and qualifications to perform the developer-performed wor k, City determines, in City’s sole discretion, that Developer is competent and qualified to complete the developer -performed work and authorizes Developer to proceed with the developer -performed work; and Developer competitively bids all subcontracts for the developer-performed work. (C) Bid and Award . Developer shall prepare, or cause to be prepared, bid documents and contract documents (“Bid Documents”) for construction of the
-18-
Neighborhood Park and Edge Trails in accordance with all applicable local codes, SPA Plan, and project -specific design guidelines, subject to City approval consistent with this Agreement. Bid Documents shall include, without limitation, detailed plans and technical specifications, bonding requirements, insurance requirements, mandates f or timely completion, and remedies for untimely completion. Developer shall solicit, or cause to be solicited, sealed competitive bids for prime contracts and subcontracts for construction of the Neighborhood Park and Edge Trails on a guaranteed maximum price, lump sum price, or per unit, line-item basis and in accordance with industry standard procurement practices as determined by City. In the event that the Developer combines the Neighborhood Park or Edge Trail work with other development work, such as erosion control landscape, into a single bid solicitation or contract, the Developer shall clearly delineate all scope eligible to receive park credit within the bid and contract documents. Developer shall award contracts (except for prime contracts awarded to Developer or its affiliate pursuant to Section 2.9.(B)), and shall award, or shall cause the applicable entity or contractor to award, subcontracts for construction of each park/trail to the lowest responsive and responsible bidder , or the bidder that is determined by Developer to be the “best qualified contractor,” subject to City approval. When determining the “best qualified contractor,” Developer shall consider, without limitation, a bidder’s demonstrated competence, qualifications, ability to achie ve timely completion, capacity, skill, compliance with bid documents, costs, and other relevant criteria. If Developer awards a prime contract or subcontract to a bidder other than the lowest responsive and responsible bidder for an item or unit of work, then all Park Development Credits shall not exceed the amount of the lowest responsive and responsible bid for that item or unit of work ; bids submitted by bidders deemed to be not responsible shall not be used to determine the lowest bid for an item or unit of work. This not-to-exceed limitation may be waived where: (a) the amount of the bid does not exceed the engineer’s estimate or other approved estimate for the applicable park/trail by more than 10 percent; and (b) the City approves a waiver. All approvals of City required hereunder shall be in writing by the Director of Development Services, or their designee. (D) Resource Management Plan. The Otay Ranch Resource Management Plan (“RMP”), Section 6.1.2, requires the conveyance of fee title to land within the Otay Ranch Preserve to the Otay Ranch Preserve Owner Manager or its designee at a ratio of 1.188 acres for each acre of “development area,” as defined in the RMP.
Because the Neighborhood Park will have a Public Access Easement granting the public access to the Neighborhood Park for public park purposes , the City agrees that the Neighborhood Park will be considered “Common Area” for purposes of the RMP, and therefore, in accordance with RMP, Section 6.1.2, Developer will not be required to convey land within the Otay Ranch Preserve with respect to the acreage within the Neighborhood Park.
3. Maintenance.
3.1 Neighborhood Park & Edge Trails Maintenance.
-19-
(A) Maintenance Prior to Construction Completion. Developer shall be solely responsible for maintenance of the Neighborhood Park and Edge Trails to the satisfaction of the Director of Development Services , or their designee, until Association or other entity assumes responsibility for maintenance of the Neighborhood Park and Edge Trails pursuant to the CC&Rs. (B) Ongoing Park & Edge Trail Maintenance. CC&Rs governing Village Eight East shall stipulate that maintenance by Association shall be to the satisfaction of the Director(s) of Public Works and Parks and Recreation, or their designee(s); however, in no case shall City require the level of maintenance to exceed the level of maintenance of a City operated public park facility. Upon such acceptance (Turnover) of Neighborhood Park and Edge Trail maintenance re sponsibilities by Association in accordance with the Project’s GELMA, Developer shall be released from any further obligation to maintain the Neighborhood Park and Edge Trails by written consent of the Director of Development Services.
3.2 Community Park Main tenance. City shall maintain the Community Park upon acceptance of the IOD for the Community Park, as well as upon completion of rough grading of the site to the City’s written satisfaction pursuant to Section 2.5 above. Further, pursuant to Section 2.5(E) above, Developer and/or Association shall maintain slopes adjacent to the Community Park.
4. Permitted Uses and Events. Private operators, rentals, concessions and special events are permitted within the Neighborhood Park and Edge Trails. Special events may require additional permits from the City. This agreement does not waive any special event permitting.
4.1 Community Oriented Vendors, including private business operators and/or non-profit entities shall be permitted to operate facilities, services, programs, activities, and special events within the Neighborhood Park and Edge Trails consistent with the permitted uses listed below, at the sole discretion of the Association.
4.2 The Association shall have full decision -making power over rentals and concessions in Neighborhood Park and Edge Trails , as well as control over and right to receive any revenues derived therefrom . CVMC Chapter 2.66 applicable to City public parks shall apply to the Neighborhood Park and Edge Trails, unless specific permits are secured suc h as alcohol or event permits . The following operational rules shall be applicable to the Neighborhood Park and Edge Trails:
(A) Public Access. Both Association members and the public shall have access to rental opportunities in the Neighborhood Park. Members of the public shall coordinate directly with the Association for any such rentals and payment of fees.
Association members or the public may secure rentals on a first-come, first-served basis. Association shall establish rental fees at a reasonable market -rate fee for similar amenities. Rentals for Association members may be discounted at the discretion of the Association. Residents residing in deed restricted affordable units within the Association shall be considered for a reduced or entirely waived fee for rentals.
-20-
(1) Association shall, at all times, make available to the public current information regarding the procedures for renting and/or reserving facilities and spaces within the Neighborhood Park and/or Edge Trails, including all associated fees. Such information shall be published on the Association’s website or other publicly accessible platform and shall be provided to the City’s Director of Parks and Recreation, or their designee, annually and/or following any changes. The City may use this information for publication or dissemination in the same manner as it provides information about other City parks and recreational activities.
(B) City Reservation . City shall have the opportunity to request and receive approval from Association for up to twelve (12) City-sponsored events per year at the Neighborhood Park or Edge Trails , subject only to availability, reasonable insurance, public health , and safety requirements. City shall coordinate directly with the Association to schedule any City -sponsored events. Ci ty shall be responsible for repairing any damage to the Neighborhood Park or Edge Trails resulting from any City-sponsored event. In addition, City shall be responsible for all custodial and trash removal following any City-sponsored event. (C) Hours of Operation. The Neighborhood Park and Edge Trails shall be open to the public and Association members daily consistent with CVMC 2.66.270. (D) Permitted Uses. In addition to the uses permitted in the Village Eight East Planned Community District Regula tions, the following uses are permitted uses, subject to appropriate City permits, in the Neighborhood Park. All such uses shall not prevent public use of other portions of the Neighborhood Park:
(1) Athletic, health, play or sports equipment, or facilities. (2) Commercial recreation, including private, public or non-profit operators that provide indoor or outdoor recreational services and activities. Fee based services are permitted.
(3) Concessions in a fixed location, within a building, in a temporary tent, canopy or structure or provided by a mobile vendor. (4) Craft fair or market.
(5) Events, functions and programs that serve or sell alcoholic beverages, subject to State and or City regulations for the sale of alcoholic beverages.
(6) Farmer’s fair or market.
(7) Recurring and special events, both public and private. (8) Sale of merchandise, food and beverages.
-21-
(9) Vending vehicles, including food trucks and goods merchants for events, functions and programs organized by or supported by Association are expressly permitted. A City issued business license and any required permits to sell food or goods shall be required to all business and food trucks, as applicable.
(10) Youth and adult sport, health, educational and recreational activities including those operated by private entities.
5. Delays. The City may approve Commencement and /or Completion of Construction dates for the Neighborhood Park and Edge Trails due to City-caused delays in approving park plans or due to force majeure . Developer shall not be held responsible for Construction Timing requirements in sections 2.3.(C) and 2.4.(C), and City shall not withhold building permits, based on City-caused delays in approving park plans.
6. California Labor Code. As set forth in Lincoln Landing Project – City of Hayward, Public Works Case No. 2017-025 (April 18, 2019), the construction of the Neighborhood Park and Edge Trails consistent with PLDO obligations is not a “public work” as defined in the California Labor Code for the purposes of prevailing wage requirements and is therefore not subject to prevailing wage.
7. Changes. The City reserves its right to amend the PLDO , SPA Plan , City P arks and Recreation Master Plan and City Landscape Manual , subject to state and federal law, and to the statutory development agreements affecting Village Eight East. The parties agree that, should any changes in state or federal law result in one or more provisions of this Agreement no longer being enforceable, the parties shall meet and confer regarding amending the Agreement accordingly. The required PLDO fee obligat ions and values are subject to annual updates that are effective every October 1st.
8. City Action. If the City finds that the proposed design of the Neighborhood Park and/or Edge Trails is inconsistent with the terms of this Agreement, Developer shall have the opportunity to re -design the Neighborhood Park and/or Edge Trails and submit the revised design for the Development Services Director, or designee, for consideration.
9. General Provisions.
9.1 Notices. All notices and demands given pursuant to this Agreement shall be written. They shall be deemed served (i) immediately, upon personal delivery; (ii) the next business day, if sent prepaid by recognized overnight service such as FedEx for delivery the next business day; or (iii) three ( 3) business days after deposit in the United States mail, certified or registered mail, return receipt requested, first-class postage prepaid.
Until notice of a change of address is properly given, notice shall be given:
If to City: City of Chula Vista
Attn: City Manager
276 Fourth Avenue
Chula Vista, California 91910
-22-
With a copy to: Office of the City Attorney
Attn: City Attorney
276 Fourth Avenue
Chula Vista, California 91910
If to Developer: HomeFed Village 8E, LLC
1903 Wright Place, Suite 220
Carlsbad, California 92008
Attn: Chris Foulger and Kent Aden
With a copy to: Sheppard Mullin Richter & Hampton
501 West Broadway, Suite 1900
San Diego, California 92101
Attention: David M. Hymer
9.2 Captions. Captions in this Agreement are inserted for convenience of reference only and do not define, describe or limit the scope or the intent of this Agreement.
9.3 Entire Agreement . This Agreement embodies the entire agreement and understanding between the parties regarding the subject matter hereof . No prior or contemporaneous oral or written representations, agreements, understandings and/or statements regarding its subject matter shall have any force or effect . This Agreement is not intended to supersede or amend any other agreement between the parties unle ss expressly noted . However, all previous written agreements, such as supplemental subdivision improvement agreements, by and between the parties relating to park obligations, as well as City ’s Parks and Recreation Master Plan and Landscape Manual, remain in full force and effect except to the extent they conflict with this Agreement.
9.4 Scope. This Agreement applies only to the Property and the Project; it shall not relieve developers other than Developer (and its subsidiary entities, merchant builders and ot her buyers of portions of the Property) from any responsibility to meet park development obligations per the PLDO.
9.5 Contents of Agreement . All recitals set forth above and all exhibits attached hereto are part of this Agreement.
9.6 Severability. If any provision of this Agreement or its particular application is held invalid or unenforceable, the remaining provisions of this Agreement, and their application, shall remain in full force and effect, unless a party ’s consideration materially fails as a result.
9.7 Recordation. The City may record this A greement in the Office of the County Recorder of San Diego County, California.
9.8 Preparation of Agreement. No inference, assumption or presumption shall be drawn from the fact that a party or its attorney drafted this Agre ement. It shall be conclusively presumed that all parties participated equally in drafting this Agreement.
-23-
9.9 Authority. Each party warrants and represents that it has legal authority and capacity to enter into this Agreement, and that it has taken all necess ary action to authorize its entry into this Agreement . Each party warrants and represents that e ach individual signing this Agreement on behalf of such entity is duly authorized to sign this Agreement on its behalf so as to bind their principal.
9.10 Modification. This Agreement may not be modified, terminated or rescinded, in whole or in part, except by written instrument duly executed and acknowledged by the parties hereto, their successors or assigns.
9.11 Successors.
(A) In the event that Developer transfers or assigns its interest in the Property in whole or in part, to any person or entity during the Term of this Agreement, any such transferee or assignee shall be bound by the terms and conditions of this Agreement, as applicable to the portion of the Property acquired by the transfer or assignment. Notwithstanding the foregoing, except as provided in Section 3.1 with respect to maintenance of the Neighborhood Park and the Edge Trails , no assignment or transfer shall relieve the Developer from any of its obligations under this Agreement without prior written consent by the City, which consent shall not be unreasonably withheld.
(B) Compliance with this Agreement shall be deemed to satisfy Developer ’s PLDO and SPA Plan obligations relating to P arks. Once the Neighborhood Park and the Edge Trails and their associated improvements have been constructed and once the Community Park IOD has been accepted, as required by this Agreement, all Park dedication and improvement requirements for the Property and Project shall be deemed complete and the obligation shall be removed from title, as to Developer and any merchant builders developing within the Property. (C) Notwithstanding any other provision of this Agreement:
(1) When any individual lot has been finally subdivided and sold, leased, or made available for lease to a member of the public or any other ultimate user, PAD obligations have been met and a certificate of occupancy has been obtained for the building(s) on the lot, that lot and its owner shall have no further obligations under and shall be released from this Agreement.
(2) 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 from this Agreement.
9.12 Term. This Agreement shall remain in effect in perpetuity , provided however that the provisions of Sections 2.3 and 2.4 will terminate upon Completion of Construction and Turnover of the Neighborhood Park and the Edge Trails.
-24-
9.13 Governing Law and Venue . This Agreement shall be governed by and construed in accordance with the laws of the State of California. Any action arising under or relating to this Agreement shall be brought only in the federal or state courts located in San Diego County, State of California, and if applicable, the City of Chula Vista, or as close thereto as possible. Venue for this Agreement, and performance hereunder, shall be the City of Chula Vista.
9.14 Administrative Claims Requirements and Procedures . No suit or arbitration shall be brought arising out of this Agreement against the City unless a claim has first been presented in writing and filed with the City and acted upon by the City in accordance with the procedures set forth in CVMC Chapter 1.34, as may be amended from time to time, the provisions of which are incorporated by this reference as if fully set forth herein, and such policies and procedures used by the City in the implementation of same.
Upon request by the City, Developer shall meet and confer in good faith with City for the purpose of resolving any dispute over the terms of this Agreement.
9.15 Remedies. The rights of the Parties under this Agreement are cumulative and not exclusive of any rights or remedies that the Parties might otherwise have unless this Agreement provides to the contrary, including the rights of the City to enforce the CC&Rs as provided in Section 16.9 thereof. Should the Developer and/or its Assignee fail to maintain the Neighborhood Park and the Edge Trails in accordance with this Agreement or should they take any action that unreasonably restricts public access to the Neighborhood Park and Edge Trails in violation of the Public Access Easement, the City may provide written notice of such failure to the Developer or the Association setting forth in detail the alleged failure. The Developer or the Association shall have ten (10) business days from receipt of such notice to cure, or if it is not possible to cure within such ten (10) business day period, to commence curing such failure. If the Developer or the Association fails to cure, or fails to commence to cure as provided he rein, the City may perform the maintenance and charge the cost thereof to the Developer or the Association.
9.16 Indemnification. Developer shall timely and fully indemnify, reimburse, protect and hold the City, its officers, employees, agents and independent contractors, free and harmless from any liability, costs, injury, including death, or damage of any kind or nature, relating to, arising out of, or alleged to be the result of the acts, omissions, negligence or willful misconduct of Developer or Developer ’s employees, subcontractors or other persons, agencies or firms for whom Developer is legally responsible, relating to or arising from Developer ’s activities contemplated and required under this Agreement, excepting only those claims for damages arising fro m the active negligence or willful misconduct of the City. Developer shall defend, at its own expense, including attorneys ’ fees, the City, its officers, agents, employees and independent contractors in any legal action based upon such alleged acts or omis sions of Developer . The City may, in its discretion, participate in the defense of any such legal claim, action or proceeding at its own expense with the understanding that Developer ’s attorneys shall be lead counsel and City’s attorneys shall, to the maxi mum extent feasible, cooperate with Developer ’s attorneys. Developer’s obligations under this Section shall terminate with respect to any liability, costs, injury, including death, or damage of any kind arising with respect to the Neighborhood Park and the Edge Trails after the Association acquires title to such
-25-
Neighborhood Park and the Edge Trails and with respect to any Community Park after the City accepts the IOD and rough grading for such Community Park.
9.17 Non-liability of City Officials and Employees. No member, official, employee or consultant of the City shall be personally liable to Developer or its successor- in-interest in the event of any default or breach by City , or for any amount which may become due to Developer or to its successor-in-interest, or on any obligations under the terms of this Agreement.
9.18 Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed to be an original, but all of which together will constitute one instrument.
-26-
9.19 SIGNATURE PAGE TO PARKS AGREEMENT FOR OTAY RANCH
VILLAGE EIGHT EAST
IN WITNESS WHEREOF, City and Developer have executed this Agreement as of the date set forth above.
CITY OF CHULA VISTA HomeFed Village 8E, LLC, a Delaware limited liability company
By:
Tiffany Allen,
City Manager
By:
Name: Erin Ruhe_________
Its:_Chief Operating Officer_______
Attest:
By:
Kerry Bigelow, City Clerk
Approved as to form by
Marco Verdugo, City Attorney
-27-
EXHIBIT A
VILLAGE EIGHT EAST
-28-
EXHIBIT B
LEGAL DESCRIPTION
PARCELS 1 AND 2 OF PARCEL MAP NO. 21215, IN THE CITY OF CHULA VISTA,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY JANUARY 29, 2015.
-29-
EXHIBIT C
VILLAGE EIGHT EAST SITE UTILIZATION PLAN
-30-
EXHIBIT D
REFERENCED TENTATIVE MAP CONDITIONS OF APPROVAL
-31-
-32-
EXHIBIT E-1
CONCEPTUAL COMMUNITY PARK PLAN
Note: This concept plan is for illustrative purposes only. Actual site development may vary from concepts depicted in this exhibit, as determined during park design.
-33-
EXHIBIT E-2
COMMUNITY PARK FIRST FINAL MAP UNIT 1 IOD ACREAGE
-34-
EXHIBIT F-1
EDGE TRAIL LOCATION AND DETAILS
Edge Trail Segment A (TM Private Acces Road Section 13, pg 3)
Edge Trail Segment B (TM trail Section 4, pg 3)
-35-
.
Edge Trail Section C (TM trail Section 5, pg 3)
-36-
EXHIBIT F-2
EDGE TRAIL EASEMENT NET ACREAGE
-37-
-38-
-39-
-40-
-41-
EXHIBIT G-1
CONCEPTUAL NEIGHBORHOOD PARK PLAN
Note: This concept plan is for illustrative purposes only. Actual site development may vary from concepts depicted in this exhibit, as determined during park design.
-42-
EXHIBIT G-2
NEIGHBORHOOD PARK GROSS AND NET ACREAGE