HomeMy WebLinkAbout2009 CON CDC City of Chula Vista / NCSDI No. 1 - MOU Harbor Drive-In ProjectMEMORANDUM OF UNDERSTANDING
THIS MEMORANDUM OF UNDERSTANDING (the "MOU") is entered into
this r day of44/L , 200.Z by and among, THE CITY OF CHULA VISTA, a municipal
corporation hav(ng charter powers ("Chula Vista"), THE CITY OF NATIONAL CITY, a
municipal corporation ("National City"), THE NATIONAL CITY COMMUNITY
DEVELOPMENT COMMISSION, a public entity corporate and politic (the "CDC"), and
NCSDI No. 1, LLC, a California limited liability corporation ("Sudberry") (Chula Vista,
National City, the CDC, and Sudberry are hereinafter individually referred to as a "Party" and
collectively referred to as the "Parties") with reference to the recitals set forth below which are
incorporated herein by reference as if set forth fully.
RECITALS
A. National City and Chula Vista have an uneven common boundary line running
approximately east and west along the Sweetwater River Channel ("Channel") between Interstate
5 on the west and Interstate 805 on the east.
B. Sudberry has an option to lease certain property, comprised of multiple parcels
adjacent to each other, located in both National City and Chula Vista, and desires to develop the
entire property as one project. Generally, there are three areas of properties that are the subject of
this MOU, and are referenced as Areas A, B, and C.
C. Sudberry has an option to a lease in Areas A and B. Area C is owned by the CDC.
While there are 14 parcels involved in this project, for ease of reference, they will be referred to
by the respective "Areas."
D. Area A is located in Chula Vista's jurisdiction, north of the Channel adjacent to
the common boundary line between the two cities, and is shown on Exhibit "A" as the green
cross -hatched parcel between National City Boulevard and D Avenue ("Area A"). While Area A
is in Chula Vista's jurisdiction, it is surrounded on three sides by the City of National City and
bordered by the SR-54 freeway on the fourth side. Any development of Area A may directly
affect and impact National City and Chula Vista.
E. Area B is located in National City's jurisdiction, north of the Channel adjacent to
the common boundary line between the two cities, and is shown on Exhibit "B" as the green
cross -hatched parcel between Highland Avenue and D Avenue ("Area B"). Any development of
Area B may directly affect and impact National City and Chula Vista.
F. Area C is located in National City's jurisdiction. The CDC owns this parcel of
property immediately west and adjacent to Area A, shown on Exhibit "C" ("Area C"), which
provides a logical linkage to Area A as part of an overall development, and which Sudberry
would like to have developed as part of the overall project. Area C is the subject of an Exclusive
Negotiating Agreement between the CDC, Sudberry, Derr Family Ventures LP, and Derco
Properties LLC. Any development of Area C may directly affect and impact National City and
Chula Vista.
W02-WEST:8BJM 1 401090580.20
-1-
G. Sudberry's leasehold interest is further described in Exhibit "D" and shown on
Exhibit "E" ("Property") of this MOU. Sudberry has proposed to purchase Area C from the CDC
("CDC Property"). If the CDC Property is purchased by Sudberry, then the Property and the
CDC Property shall collectively be referred to as the "Property." Any possible purchase will be
addressed in a separate Disposition and Development Agreement, if such document is approved
by the CDC.
H. The proposed project is commonly referred to as the Gateway Development. The
location of the proposed project ("Project Site") is depicted on Exhibit "F". The Project Site is
approximately 26.57 acres, of which 17.98 acres are located within National City and 9.22 acres
are located within Chula Vista. The Project Site is bounded by National City Boulevard, F
Avenue, and State Route 54. Sudberry has submitted the preliminary site plan at Exhibit "F" of
this MOU for development of the Property to Chula Vista and National City. The site plan shows
that part of the property would be located within the boundaries of Chula Vista, within the
boundaries of National City and within the National City Redevelopment Project Area.
I. National City and Chula Vista desire to mutually cooperate in the planning and
development of Areas A, B, and C. National City and Chula Vista each have the power to adopt
and enforce land use regulations, approve land use entitlements, and administer and apply
building and other development codes. National City and Chula Vista desire to mutually
cooperate with each other in the processing and review of the Gateway Development.
J. The Parties hereto wish to cooperate with one another to ensure that the
processing of the Gateway Development is orderly and coordinated, including without limitation
the provision of public services, the application of design, landscaping, and building standards,
the study of environmental effects under the California Environmental Quality Act ("CEQA")
and mitigation of impacts, a streamlined schedule for processing CEQA review and project
approvals, the imposition and collection of fees for development impacts, and the way in which
sales and use taxes from the Gateway Development would be allocated between National City,
the CDC, and Chula Vista.
K. Under CEQA Guidelines section 15050, where a project is to be carried out or
approved by more than one public agency, one public agency shall serve as the lead agency and
be responsible for preparing an EIR or negative declaration for the project The other public
agency serves as a responsible agency that must consider the lead agency's CEQA document
before acting on the project. The lead agency's determination on whether to prepare an EIR or
negative declaration is generally conclusive.
L. Under CEQA Guidelines section 15051(d), in cases where two public agencies
have a substantial claim to be the lead agency, the public agencies may by agreement, contract or
other means designate one public agency to be the lead agency and provide for cooperative
efforts. Both Chula Vista and National City have a substantial claim to be the lead agency, but
have entered into this cooperative MOU designating (1) National City as the lead agency since
the majority of the property is in National City and (2) Chula Vista as a responsible agency with
expanded rights to review the project as identified herein.
W02-WEST: 813.1M 1"".401090580.20
-2-
M. Pursuant to CVMC sections 19.56.040 and 19.56.048 and section A(3) of the
Chula Vista development application procedural guidelines, the P-Precise Plan may be used to
supplement or supersede Chula Vista's otherwise applicable guidelines, standards, and
regulations.
N. To avoid duplicative, conflicting regulations and to implement the cooperative
intent of this MOU and avoid conflicting guidelines, standards and regulations between the
jurisdictions, the parties anticipate Sudberry will submit an application for a P-Precise Plan in
accordance with Chula Vista Municipal Code ("CVMC") sections 19.56.040-048 that would
allow Chula Vista to apply National City's guidelines, standards and regulations within Area A to
the extent they conflict with Chula Vista's guidelines, standards and regulations.
O. It is anticipated that the project will generate impacts to both jurisdictions and the
Parties wish to assure that the burdens of development and required impact fees correspond
proportionately to the impacts on each jurisdiction. To implement the cooperative intent of this
MOU, the parties anticipate Sudberry will submit an application for modification of Chula
Vista's Public Facilities Development Impact Fees ("DIF") and Western Transportation
Development Impact Fees ("WTDIF") in accordance with CVMC sections 3.50.160 and
3.55.160. Sudberry and Chula Vista staff anticipate the modified WTDIF would be
proportionately related to the burdens of the proposed development generally in accordance with
the following formula:
WTDIF amount per acre times total project acres in Chula Vista times percentage
of total project ADTs in Chula Vista equals modified WTDIF payment to Chula
Vista.
P. To facilitate payment of impact fees over a period of time in a manner that
facilitates an applicant's ability to secure available and affordable project financing and to
implement the cooperative intent of this MOU, the parties anticipate Sudberry will submit an
application for deferral of payment of all impact fees ("Fee Deferral Plan") in accordance with
applicable rules of each jurisdiction.
Q. In light of the complexity of this cross jurisdictional project, the economic
downturn, and the importance of removing obstacles to economic stimulation, Chula Vista and
National City staff support and recommend use of the P-Precise Plan process, modification of
WTDIFs, and adoption of a Fee Deferral Plan, subject to the rights of the City Council of Chula
Vista and the City Council of National City to exercise their independent discretion at the time
the P-Precise Plan, modification of WTDIFs, and Fee Deferral Plan applications are processed.
R. Proposed development of the Project Site (the "Gateway Development") is
expected to include a rezone, coastal development permit, a P-Precise Plan and a design review
permit from Chula Vista; a planned development permit, rezone, coastal development permit and
general plan amendment from National City, and is expected to require redevelopment financing
provided by the CDC. Sudberry may process an application for the P-Precise Plan, along with
any modifications of DIFs and WTDIFs and Fee Deferral Plans, pursuant to applicable Chula
Vista Municipal Code provisions.
W02-WEST:8BIM 1 \401090580.20
-3-
S. The Parties wish to cooperate with one another to ensure that:
1. Each jurisdiction is fully informed about the portion of the Gateway
Development to be constructed in the adjacent jurisdiction and the potential impact of the
Gateway Development on each jurisdiction's public facilities;
2. One environmental document is completed and available for certification
for the Gateway Development in which National City acts as the lead agency and Chula Vista is
a Responsible Agency;
3. Adequate funding is available for all required public improvements and
that the adjoining jurisdiction will cooperate relative to completion of the public improvements
and required traffic mitigation measures for the project;
4. Site planning of the Gateway Development is coordinated between
National City and Chula Vista to ensure appropriate internal traffic circulation and ingress to and
egress from the public street system; and
5. The timing of public hearings and discretionary actions are coordinated
between the Parties, so that public hearings and discretionary actions are calendared in a
coordinated and complimentary fashion between National City and Chula Vista.
T. The Parties wish to jointly consider the funding sources available to provide the
required public improvements. The Gateway Project is expected to impact both jurisdictions.
Given the physical location of the project, it is anticipated that the development may impact
National City resources to a greater degree, and financially benefit both jurisdictions. In
recognition of such circumstances and the complexity of this cross jurisdictional project, Chula
Vista will make "best efforts" to establish fair share funding for said public improvements
through its Capital Improvement Program and Chula Vista staff support and recommend
including a fair share of the funding for the Project's off -site improvements in Chula Vista's
Capital Improvement Program.
AGREEMENT
NOW THEREFORE, in consideration of the above recitals and for good and valuable
consideration the receipt and sufficiency of which the Parties hereby acknowledge, Chula Vista,
National City, the CDC and Sudberry hereby agree as follows:
1. Parties Agree to Meet and Confer.
1.1 The City Council of Chula Vista hereby authorizes and directs the
Director of Development Services, his or her designee to meet, confer and exchange information
with the other Parties to this MOU and with the developers of the Gateway Development
regarding the Gateway Development.
W02-WEST:8BJM 1 \401090580.20
-4-
1.2 The City Council of National City and the CDC authorize and direct the
Executive Director of the CDC or his designee to meet, confer, and exchange information with
the other Parties to this MOU and with the developers of the Gateway Development regarding
that project.
1.3 The Parties shall establish a Working Group, with each Party designating
its key contacts who will be members of the Working Group. The members of this Working
Group will make best efforts to attend the meetings set by the Parties. The meetings will be
attended by those in the Working Group when agenda issues related to their areas are identified.
Smaller meetings of select members of the Working Group to address discrete issues may be
scheduled by the Working Group. Designated representatives of National City, the CDC, and
Chula Vista shall meet at the locations, dates, and times set forth in the schedule attached as
Exhibit "G", or as needed, as a "Working Group" to review and summarize the status of
processing the approvals for the Gateway Development, coordinating dates and times, and
communicating issues or questions that arise for either National City or Chula Vista with regard
to the coordinated processing of the Gateway Development.
1.3.1 Chula Vista's key contacts include one or more representatives
each from the following departments:
(a) Chula Vista's Development Services Department (including
one or more representatives each from the Planning Division, Land Development Engineering
Division, and Building Division);
(b) Chula Vista Fire Department; and,
(c) Chula Vista City Attorney's office.
1.3.2 National City's key contacts include one or more representatives
each from the following departments:
(a) National City Department of Planning and Building
(including one or more representatives each from the Planning Division and the Building
Division);
(b) National City Fire Department;
(c) National City Engineering Department;
(d) National City City Attorney's office; and,
(e) Community Development CDC.
1.3.3 Sudberry's key contacts include:
(a) One or more representatives designated by Sudberry.
W02-WEST:8BJM 1 \40 1090580.20
-5-
1.4 Each Party agrees that prior to any Party holding a public hearing or
taking any discretionary action relating to the Gateway Development, the Party holding the
hearing or considering taking action shall provide the other Parties with (a) ten days, or earlier if
in accordance with applicable law, written notice of such pending hearing or action; (b) a copy of
any and all written material including but not limited to staff reports and environmental
documents which will be provided to decision makers; and, (c) make a good faith effort to meet
with other Parties to this MOU at least one week prior to any hearing or discretionary action to
discuss matters of mutual concern.
2. Goals of Meet and Confer Process.
2.1 Provide an open exchange of information and concerns pertaining to the
Gateway Development;
2.2 Reach mutual agreement on all items of mutual concern relating to the
Gateway Development including but not limited to the issues set forth in Section 3 below; and
2.3 Determine whether more formal cooperation, financing or other agreement
is necessary to implement the Gateway Development, and if so, to agree on the proposed terms
of such implementing agreement and make recommendations regarding any proposed agreement
to their respective governing bodies.
3. Issues for Discussion. The following issues will be the subject of on -going
discussions amongst the Parties, but will not preclude the Parties from discussing other relevant
issues:
3.1 Coordination of the environmental document between the Parties;
3.2 Design of the Gateway Development including but not limited to mutually
agreeable design criteria and opportunities for Parties to review architectural design, site plan,
signage and landscape plan of the Gateway Development;
3.3 Impact of the Gateway Development on public facilities, including but not
limited to:
3.3.1 An integrated plan for internal traffic circulation within the
Gateway Development;
3.3.2 An integrated plan for vehicular ingress to and egress from the
Gateway Development;
3.3.3 Mutual agreement as to the specific improvements to the public
rights of way including streets, traffic signals, utilities and other public facilities required to
accommodate the Gateway Development across the National City and Chula Vista jurisdictions;
and,
4. Commitments of the Parties Regarding the Environmental Review Process. The
Parties agree to the following roles and obligations regarding the preparation of processing the
W02-W EST:8 B1M 1 \401090580.20
-6-
Gateway Development through the California Environmental Quality Act, California Public
Resources Code section 21000, et seq. ("CEQA"):
4.1 Lead Agency. Chula Vista and National City agree that National City
shall be the "lead agency," as the term is defined in Public Resources Code section 21067 and as
used throughout CEQA and 14 California Code section 15000, et seq. ("CEQA Guidelines"), for
the environmental review of the Gateway Development. National City shall have all discretion to
fulfill the obligations of a CEQA lead agency with respect to the Gateway Development.
4.2 Thresholds and Guidelines. As lead agency for the Gateway
Development, National City shall use the National City CEQA Guidelines and National City
rules, regulations, and policies pertaining to CEQA processing, as well as all applicable state
law, in its CEQA processing, including but not limited to, the selection of consultants. In
assessing whether impacts of the Gateway Development are significant under CEQA,
National City, as the lead agency, shall use the same thresholds of significance ordinarily used
by National City for projects occurring entirely within the boundaries of National City.
Chula Vista and National City may have differing significance thresholds for impacts. The
Parties agree that National City will determine the thresholds to be used because it is the lead
agency, and the Proposed Project is predominantly in National City, will predominantly impact
National City, and Parcel A (located within Chula Vista) is surrounded on three sides by
National City.
4.3 National City, as lead agency, shall consider any competing standard of
significance proposed by Chula Vista, and shall, in its sole discretion, use such standards of
significance as it believes are warranted. National City and Chula Vista shall meet and confer in
good faith to resolve any discrepancies between the standards of significance in National City
and Chula Vista. Nothing in this section shall be interpreted to modify or limit National City's
discretion as a lead agency in fulfilling its obligations under CEQA.
4.4 Chula Vista and the CDC shall be "responsible agencies" for the Gateway
Development as that term is defined in Public Resources Code section 21069 and as used
throughout CEQA and the CEQA Guidelines. In addition to those rights that Chula Vista and the
CDC have as responsible agencies, Chula Vista and the CDC shall have the additional rights of
review and comment as set out in section 6.6 of this MOU. Chula Vista shall charge Sudberry
for time spent by City officials reviewing technical reports, responses to comments and CEQA
findings as a responsible agency in accordance with Exhibit "I."
4.5 National City, as lead agency, shall be responsible for preparing the
environmental document for the Gateway Development. As responsible agencies, Chula Vista
and the CDC shall use National City's environmental document when acting on or approving the
Gateway Development.
4.6 The environmental review of the Gateway Development shall be
conducted in accordance with CEQA (California Public Resources Code Section 21000, et seq.),
California CEQA Statutes and Guidelines (California Code of Regulations, Title 14,
Section 15000 et seq.), and the rules, regulations, and procedures for implementation of CEQA,
as adopted by National City.
W02- W EST:8 BJ M P401090580.20
-7-
4.7 Chula Vista desires to review the environmental document prior to a draft
document being released for public comment. As part of this cooperative effort between
National City and Chula Vista, National City will provide Chula Vista with a copy of a rough
draft of the environmental document, including supporting technical studies, prior to the final
draft document being prepared for release for public comment. Chula Vista will have the
opportunity to provide comments on this rough draft or portions thereof, which are also
commonly known as screen checks. Chula Vista agrees to provide National City comments, if
any, within 10 working days of receipt of the rough draft. National City will consider each of
Chula Vista's suggestions and comments and make any such changes or revisions as it believes,
in its sole discretion, are warranted. Nothing in this section shall be interpreted to modify or
limit National City's discretion as a lead agency in fulfilling its obligations under CEQA.
4.8 National City, the CDC, and Chula Vista agree to use their best efforts to
comply with the schedule set forth in Exhibit "H" ("CEQA and Approval Schedule").
National City, the CDC, and Chula Vista agree to use their "best efforts" to pursue the processing
and preparation of the processing of CEQA in accordance with those "target dates" by taking the
requisite action or actions for each target date specified in the CEQA and Approval Schedule,
provided that the other Parties have substantially complied with their obligations specified in the
CEQA and Approval Schedule which are a prerequisite to such action(s). If National City or any
other Party believes that it will miss any "target date" in the CEQA and Approval Schedule, it
shall provide written notice to the other Parties, accompanied by an explanation of why the
"target date" was missed and an estimation of a "new target date" for the action and for any other
actions that will be delayed as a result of missing the "target date." The other Parties and
Working Group participants set forth in Section 1.3 of this MOU may request a meeting of the
Working Group upon receiving the written notice that a "target date" has or likely will be missed.
5. Project Review and Fees.
5.1 Uniform Standard for Completion of Application. National City and
Chula Vista shall agree within 30 days of the latest date applications are submitted to each
agency to determine and agree upon the standards for determining when an application is
"deemed complete".
5.2 Processing/Review Schedule. Once applications are deemed complete,
National City, the CDC, and Chula Vista will use their best efforts to follow the schedule set
forth in the CEQA and Approval Schedule (Exhibit "H") in reviewing the requested approvals
for the Gateway Development. National City, the CDC, and Chula Vista agree to use their "best
efforts" to pursue the processing and preparation of the processing of approvals in accordance
with those "target dates" by taking the requisite action or actions for each target date specified in
the CEQA and Approval Schedule, provided that the other Parties have substantially complied
with their obligations specified in the CEQA and Approval Schedule which are a prerequisite to
such action(s). If National City or any other Party believes that it will miss any "target date" in
the CEQA and Approval Schedule, it shall provide written notice to the other Parties,
accompanied by an explanation of why the "target date" was missed and an estimation of a "new
target date" for the action and for any other actions that will be delayed as a result of missing the
"target date." The other Parties and Working Group participants set forth in section 1.3 of this
W02-W EST:813J M 1 '401090580.20
-8-
MOU may request a meeting of the Working Group upon receiving the written notice that a
"target date" has or likely will be missed.
5.3 Cooperation in Processing. National City, the CDC, and Chula Vista shall
cooperate in good faith to diligently pursue the initiation and processing of the applications for
the Gateway Development, including, without limitation, executing all further and additional
documents as shall be reasonable, convenient, necessary or desirable to carry out the intent and
provisions of this MOU. National City, the CDC, and Chula Vista shall use their "best efforts"
to cooperate with each other to comply with the CEQA and Approval Schedule and to pursue the
processing and preparation of the processing of CEQA in accordance with the "target dates"
established in Exhibit "H" by taking the requisite action or actions for each target date specified
in the CEQA and Approval Schedule, provided that the other Parties have substantially complied
with their obligations specified in the CEQA and Approval Schedule which are a prerequisite to
such action(s).
5.4 Processing Fees. Chula Vista agrees that the differing financial incentives
and pressures presented by different fee mechanisms would pose an obstacle to orderly
cooperation between the staff of National City, the CDC and Chula Vista in processing the
Gateway Development, and therefore, Chula Vista agrees to apply the processing fee, cost, and
deposit mechanisms to all applications for any Chula Vista permit, map, or any other approval or
entitlement related to the Gateway Development, in accordance with the schedule attached as
Exhibit "I" ("Chula Vista Processing Fee Schedule"). In the event there is a substantial
modification to the proposed project, the Chula Vista Processing Fee Schedule shall be subject to
revision to cover the fees and costs incurred as a direct result of such modification.
5.4.1 Submittal Requirements. Submittal requirements, including but
not limited to, forms, documents, and plans for all applications for development permits and
approvals necessary for the Gateway Development, shall be those required by the approving
City, unless otherwise provided herein.
5.5 Development Impact Fees/Mitigation Requirements. All development
impact fees imposed by either National City, the CDC or Chula Vista on the Project shall be due
and payable in accordance with the jurisdictions' applicable ordinances or any approved Fee
Deferral Plan. Sudberry may seek a reduction or modification of impact fees in each
jurisdiction. In Chula Vista, DIFs and WTDIFs may be modified pursuant to CVMC sections
3.50.160 and 3.55.160 through filing a fee modification application within 10 days after notice is
given for the public hearing on a development permit application.
5.5.1 Costs of Public Improvements. It is anticipated that National City
and/or the CDC may assist in constructing improvements and/or providing other forms of
financial assistance to bring the Gateway Development to fruition. The Gateway Project is
expected to impact both jurisdictions. Given the physical location of the project, it is anticipated
that the development may impact National City resources to a greater degree, and financially
benefit both jurisdictions via taxes. In recognition of such circumstances and the complexity of
this cross -jurisdictional project, Chula Vista will make "best efforts" to establish fair share
funding for said public improvements through its Capital Improvement Program and Chula Vista
W02-WEST:8BJM 1 \40 1090580.20
-9-
staff support and recommend including a fair share of the funding for the Project's off -site
improvements in Chula Vista's Capital Improvement Program.
5.6 Reduced Parking. National City, Chula Vista, and the CDC recognize that
applying the parking requirements of National City and Chula Vista on the Gateway
Development may lead to inconsistencies and a requirement of the construction of parking in
excess of actual need, which would distort the design of the Gateway Development. Therefore,
the Parties that the Project shall provide mutual access and parking between the parcels in a
manner that assures that National City's applicable parking standards are satisfied. Chula Vista
staff will facilitate application of National City's parking standards via processing and review of
Sudberry's application for a P-Precise Plan in accordance with CVMC sections 19.56.040-048.
Chula Vista City Council shall exercise its independent discretion regarding the P-Precise Plan
application, and, if approved, the P-Precise Plan shall govern development within Area A.
5.7 Design, Landscaping, Public Infrastructure, and Building Standards,
Specifications, and Guidelines. National City, the CDC, and Chula Vista agree that uniform
design, landscaping, public infrastructure and building standards, specifications, and guidelines
should be used for the Gateway Development. National City and Chula Vista have both adopted
the Uniform Building Code and therefore do not anticipate any material differences between
their building standards. The Parties agree that the National City Design Guidelines, the
National City Guidelines for On -Site Landscaping, and other guidelines as set out in the
National City Municipal Code should be the design guidelines applicable to the Gateway
Development and any off -site public improvements required to be constructed by the Gateway
Development, with respect to the design review undertaken by each Party. The National City
standards, specifications, regulations, and guidelines will apply to CEQA analysis, signage,
stormwater and stormdrain systems, fire systems, water systems, grease interceptors,
landscaping, hardscaping, and public infrastructure, among others. Chula Vista staff will
facilitate application of the National City standards, specifications, regulations and guidelines via
processing and review of Sudberry's application for a P-Precise Plan in accordance the CVMC
sections 19.56.040-048. Chula Vista City Council shall exercise its independent discretion
regarding the P-Precise Plan application, and, if approved, the P-Precise Plan shall govern
development within Area A. All building plans shall be submitted for review and approval to the
jurisdiction where the proposed building is to be constructed. In the event a building is located
in both jurisdictions, National City shall process the building permit.
5.7.1 Design Review Process. Design review, including evaluation of
site plans, architectural and landscape components of the Gateway Development, shall be
conducted in accordance with National City and Chula Vista rules, regulations, and ordinances,
except as provided in section 5.7 above. Submittal requirements for design review will be the
same for both jurisdictions.
6. Taxes.
6.1 Sales and Use Tax. Sales and use taxes shall be allocated to the Party
whose territory constitutes the point of sale. For a parcel that is both within the territory of
Chula Vista and National City, sales tax shall be allocated by the tax area code in use by the
California State Board of Equalization assigned to the city, district, and redevelopment area (if
W02-WEST: BBJM 1'401090580.20
-10-
any) wherein the cash register is situated for the business. No Party shall require a seller to seek
a seller's permit from the California State Board of Equalization for more than one jurisdiction,
or to assign the sales taxes from the seller's location to more than one tax area code. If any one
city discovers that the allocation of sales and use taxes is being allocated by the California State
Board of Equalization differently from how it is envisioned to be allocated in this MOU,
Chula Vista, National City, and the CDC (if applicable), shall each execute a joint written letter
to the California State Board of Equalization requesting that allocation be performed according
to this MOU. If the California State Board of Equalization is unwilling or unable under
applicable law to allocate the sales taxes accordingly, National City, the CDC, and Chula Vista
shall take to their respective councils and/or boards, for their respective consideration and
possible approval, a tax revenue allocation agreement or some other legal instrument that will
redistribute the sales and use tax so that each jurisdiction would receive the same amount of sales
and use tax proceeds as if the sales and use taxes were allocated according to this MOU. A
proposed site plan is attached as Exhibit "F" ("Preliminary Site Plan"). If there are changes to
the Preliminary Site Plan that will result in modifications of gross floor area within either the
City of Chula Vista or the City of National City exceeding ten percent (10%) of that indicated in
Exhibit "F" or replacement or removal of buildings from the placement indicated on Exhibit
"F"," then this MOU shall be subject to renegotiation by the Parties.
6.2 Property Tax. National City and Sudberry shall mutually select a
consultant to perform a cost -revenue analysis relative to National City associated with the
Gateway Development.
7. Dispute Resolution.
7.1 In the event a Party, acting in good faith, believes another Party has
violated, or is preparing to violate, the terms of this MOU, or in the event a Party identifies an
unforeseen circumstance outside the control of the Parties that the Party in good faith believes
directly and adversely affects the terms and conditions in this MOU, the Parties shall meet at a
mutually convenient time to negotiate in good faith to resolve the dispute.
7.2 In the event that the Parties are unable to negotiate to a mutually
acceptable resolution of the dispute, the Parties may meet and agree to a formal dispute
resolution process, which may include, but is not necessarily limited to, mediation by the San
Diego County Supervisor representing District 1, mediation by some other third party, or binding
arbitration. No Party, however, shall be required to enter into, or accept, binding arbitration.
Where the Parties have agreed to submit a dispute to binding arbitration, the arbitrator's decision
in such arbitration shall be final and binding on both Parties. The Parties will mutually select the
potential mediators or arbitrators.
8. Exclusive Negotiation Agreement. National City, the CDC, and Sudberry will
comply with an Exclusive Negotiation Agreement between the CDC, Sudberry, Derr Family
Ventures LP, and Derco Properties LLC for the conveyance of the CDC Property to Sudberry.
9. Posting and Release of Bonds. A surety or performance bond shall be provided
by Sudberry in the amount sufficient to guarantee completion of all grading and public
improvements in National City and Chula Vista that are required for the Gateway Development
W02-WEST:8BJM 1`,401090580.20
-11-
and are the sole responsibility of Sudberry. National City and Chula Vista shall be the
beneficiary of this surety or performance bond, to the full extent allowed by the surety. Chula
Vista staff will recommend to the City Council that the City not require any other bonds.
10. Independent CEQA Review. Nothing in this MOU is intended or shall be deemed
to affect the independent judgment and analysis by National City, Chula Vista, or the CDC, as
required by CEQA.
11. Allocation of Legal Expenses. Except as otherwise set forth in Exhibit "I"
("Chula Vista Processing Fee Schedule"), and any conditions of any permits or approvals, each
Party shall bear its own costs relative to any costs or expenses incurred in compliance with, or in
the drafting or negotiation of, this MOU, or the processing of any applications for any permit,
map or other approval or entitlement related to the Gateway Development unless there is a
substantial modification to the proposed project, in which case the Chula Vista Processing Fee
Schedule is subject to revision.
12. Entire Agreement. This MOU contains all representations and the entire
understanding among the Parties with respect to the subject matter of this MOU. Any prior
correspondence, memoranda, or agreements, whether or not such correspondence, memoranda or
agreements are in conflict with this MOU, and whether written or oral, are intended to be
replaced in total by this MOU. Each Party warrants and represents that no representative of any
other Party has made any oral representations or oral agreements not contained in this MOU.
Each Party further warrants and represents that it has not relied upon any oral statements or
promises made by any representative of any other Party to this MOU in executing this MOU.
13. Severability. The terms, conditions, and covenants of this MOU shall be
construed whenever possible as consistent with all applicable laws and regulations. To the
extent that any provision of this MOU, as so interpreted, is held to violate any applicable law or
regulation, the remaining provisions shall nevertheless be carried into full force and effect and
remain enforceable, unless the deletion of such provision or provisions would result in such a
material change to this MOU so as to cause the continuation of performance contemplated herein
to be unreasonable.
14. Counterparts. This MOU may be executed in counterparts.
15. Warranty of Authority. Each of the signatories hereto warrants and represents
that he or she is competent and authorized to enter into this MOU on behalf of the Party for
whom he or she purports to sign.
16. Section Headings. The captions, subject, section and paragraph headings in this
MOU are included for convenience and reference only. They do not form a part hereof, and do
not in any way codify, interpret, or reflect the intent of the Parties. Said headings shall not be
used to construe or interpret any provision of this MOU.
17. Third Party Beneficiaries. No third party is intended to be a beneficiary of this
MOU.
W02-WEST:8BJM 1'401090580.20
-12-
18. Joint Preparation. This MOU and the provisions contained herein shall not be
construed or interpreted for or against any Party hereto because said Party drafted or caused the
Party's legal representative to draft any of its provisions. This MOU shall be construed without
reference to the identity of the Party or Parties preparing the same, it being expressly understood
and agreed that the Parties hereto participated equally or had equal opportunity to participate in
the drafting thereof.
19. Parties Retain Discretionary Approval Rights. The Parties understand and
acknowledge that each Party hereto reserves the right to exercise its full discretion as to all
matters which it is, by law, entitled or required to exercise its discretion relative to the Gateway
Development individually and collectively. Nothing in this MOU is to be construed as pre -
committing any Party to a decision which requires a separate discretionary process. Each Party
agrees and understands that by entering into this MOU no Party waives its right to review, object
to, or challenge any action taken by any other Party to the MOU relative to the Gateway
Development or any portion thereof.
20. Term. The Term of this MOU shall be one (1) year from the date of execution of
this MOU by all Parties. This MOU may be extended for two additional one-year terms, upon
agreement by the Parties.
21. Notice. All notices required or provided for by this MOU shall be in writing and
delivered in person or sent by certified mail, postage prepaid, return receipt requested, to the
principal offices of Chula Vista, National City, the CDC, and Sudberry as follows:
To Chula Vista: Chula Vista Mayor and Council Office
276 Fourth Avenue
Chula Vista, CA 91910
Attention: City Manager
To National City: National City Mayor and City Council
1243 National City Boulevard
National City, CA 91950
Attention: City Manager
To CDC: National City Community Development Commission
1243 National City Boulevard
National City, CA 91950
Attention: Brad Raulston, Executive Director
To Sudberry: Sudberry Properties, Inc.
5465 Morehouse Drive, Suite 260
San Diego, CA 92121
Attention: Mark Radelow
w/ copy to: Sheppard Mullin Richter & Hampton LLP
501 W. Broadway, 19th Floor
San Diego, CA 92101
Attention: John E. Ponder
W02-WEST ABJM1`,401090580.20 -13-
National City, Chula Vista, the CDC and Sudberry may change their addresses by giving
notice in writing to the other Parties. Thereafter, notices, demands and correspondence shall be
addressed and transmitted to the new address. Notice shall be deemed given upon personal
delivery or, if mailed, two (2) business days following deposit in the United States mail. Any
notice under this Agreement may also be given by facsimile or other telecommunication device
capable of transmitting and creating a written record, effective on receipt, or on the following
business day if received after normal business hours. Such notices shall be addressed to the
addresses of the entities set forth above.
IN WITNESS WHEREOF, this Memorandum of Understanding has been executed by
the Parties as of the last date set forth below.
Dated: `�/ g /C 9 CITY OF CHULA VISTA
By:
Attest:
By:
Donna Norris, City Clerk
Approved as to Form:
By:
kelOart M4�sfeld, City Attorney
Dated:
Cheryl Cox, Ma r
CITY OF NATIONAL CITY
Ron Morrison, Mayor
W02-W EST:BBJM I `401090580.20
-14-
Attest:
By:
Brad Raulsto
Approved as to Form:
By:
George Eiser,Attorney
Dated: biter ,(A
Approved as to Form:
By:
John E. Ponder, Esq.
By:
n Morrison, Chairman
NCSDI No. 1, LLC, a California limited liability
corporation
By: Sudberry Development, Inc., a California corporation
Its: Manager
By:
Mark K. Radelow
Its: Vice President
W02-WEST:8BJM 1 \40 1090580.17
-15-
Attest:
By:
Brad Raulsto , ec
Approved as to Form:
By:
(George Eiser, Attorney
Dated: b114101
Approved as to Form:
By:
Joh Ponder, Esq.
By:
n Morrison, Chairman
NCSDI No. 1, LLC, a California limited liability
corporation
By: Sudberry Development, Inc., a California corporation
Its: Manager
By:
Mark K. Radelow
Its: Vice President
\V02-W EST:8 BJM 1 \401090580.17
-15-
RESOLUTION NO. 2009 — 102
RESOLUTION OF THE COMMUNITY DEVELOPMENT
COMMISSION OF THE CITY OF NATIONAL CITY
AUTHORIZING THE CHAIRMAN TO EXECUTE
A MEMORANDUM OF UNDERSTANDING
BY AND AMONG THE CITY OF CHULA VISTA,
THE CITY OF NATIONAL CITY, THE NATIONAL CITY
COMMUNITY DEVELOPMENT COMMISSION, AND
NCSDI NO. 1, LLC RELATED TO PLANS PROCESSING,
ENVIRONMENTAL IMPACTS ANALYSIS, TAXATION, AND
COOPERATION FOR A PROPOSED COMMERCIAL PROJECT
ON 26.57 ACRES CURRENTLY KNOWN AS THE HARBOR DRIVE-IN
WHICH IS LOCATED BOTH IN THE CITY OF NATIONAL CITY
AND THE CITY OF CHULA VISTA
WHEREAS, the City of National City and the City of Chula Vista have an uneven
common boundary line running approximately east and west along the Sweetwater River
Channel ("Channel") between Interstate 5 on the west and Interstate 805 on the east; and
WHEREAS, developer Sudberry Properties, Inc., has an option to lease certain
property referenced in this Memorandum of Understanding ("MOU") as Areas A, B, and C,
comprised of multiple parcels adjacent to each other, located in both National City and Chula
Vista, and desires to develop the entire property as one project; and
WHEREAS, 9.22 acres ("Area A") is located in Chula Vista's jurisdiction, north of
the Channel adjacent to the common boundary line between the two cities; and
WHEREAS, 17.98 acres ("Area B") is located in National City's jurisdiction, north
of the Channel adjacent to the common boundary line between the two cities; and
WHEREAS, APN No. 562-321-08-00 ("Area C") is located in National City's
jurisdiction and is owned by the National City Community Development Commission ("CDC"),
and is subject of an Exclusive Negotiating Agreement between the CDC, Sudberry, Derr Family
Ventures LP, and Derco Properties LLC (collectively the owners of Areas A and B); and
WHEREAS, NCSDI, No. 1, L.L.C., proposes to develop a project commonly
referred to as the Gateway Development including 270,000 square feet of retail space and
accompanying improvements such as parking, lighting, signagem, and lighting, and has
submitted a preliminary site plan for development of the Property to Chula Vista and National
City to accomplish the project; and
WHEREAS, National City and Chula Vista each have the power to adopt and
enforce land use regulations, approve land use entitlements, and administer and apply building
and other development codes; and
WHEREAS, National City and Chula Vista desire to mutually cooperate in the
planning and development of Areas A, B, and C; and
WHEREAS, the Parties wish to cooperate with one another to ensure the
following:
Resolution No. 2009 — 102
May 5, 2009
Page 2
1. That each jurisdiction is fully informed about the portion of the Gateway
Development to be constructed in the adjacent jurisdiction, and the potential impact of the
Gateway Development on each jurisdiction's public facilities;
2. One environmental document is completed and available for certification
for the Gateway Development in which National City acts as the lead agency and Chula Vista is
a Responsible Agency;
3. Adequate funding is available for all required public improvements, and
that the adjoining jurisdiction will cooperate relative to completion of the public improvements
and required traffic mitigation measures for the project;
4. Site planning of the Gateway Development is coordinated between
National City and Chula Vista to ensure appropriate internal traffic circulation and ingress to and
egress from the public street system;
5. The timing of public hearings and discretionary actions are coordinated
between the Parties, so that public hearings and discretionary actions are calendared in a
coordinated and complimentary fashion between National City and Chula Vista; and
WHEREAS, the Parties wish to jointly consider the funding sources available to provide
the required public improvements necessary to the project.
NOW THEREFORE BE IT RESOLVED that the Community Development
Commission of the City of National City hereby authorizes the Chairman to execute a
Memorandum of Understanding by and among the City of Chula Vista, the City of National City,
the Community Development Commission of the City of National City, and NCSDI No. 1 L.L.C.,
related to plans processing, environmental impacts analysis, taxation, and cooperation for a
proposed commercial project on 26.57 acres currently known as the Harbor Drive -In, which is
located within the City of National City and the City of Chula Vista.
PASSED and ADOPTED this 5th day of May,
ATTEST.
Brad Raulston, secretary
APPROVED AS TO FORM:
George H. 'ser, III
City Attorney
on Morrison, Chairman
Passed and adopted by the Community Development Commission of the City of
National City, California, on May 5, 2009, by the following vote, to -wit:
Ayes: Commissioners Morrison, Parra, Sotelo-Solis, Van Deventer, Zarate.
Nays: None.
Absent: None.
Abstain: None.
AUTHENTICATED BY: RON MORRISON
Chairman, Community Development Commission
Secreta ity Development Commission
By:
Deputy
I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of
RESOLUTION NO. 2009-102 of the Community Development Commission of the City
of National City, California, passed and adopted on May 5, 2009.
Secretary, Community Development Commission
By:
Deputy
G
City of National City, California
COMMUNITY DEVELOPMENT COMMISSION AGENDA STATEMENT
MEETING DATE May 5, 2009
AGENDA ITEM NO.
37
ITEM TITLE A resolution approving a Memorandum of Understanding by and among the
City of Chula Vista, the City of National City, the Community Development Commission of the
City of National City and NCSDI No. 1 L.L.C. related to plans processing, environmental
impacts analysis, taxation and cooperation for a proposed commercial project on 26.57 acres
currently known as the Harbor Drive In which is located both in the City of National City and
the City of Chula Vista.
PREPARED BY
Patricia Beard ext 4255
Redevelopment Manager
DEPARTMENT
Community Development
EXPLANATION Sudberry Properties, Inc., a commercial developer, has entered into an
Option to Lease with the Derr Family, owners of the Harbor Drive In to pursue the development
of a shopping center including an estimated 270,000 square feet of retail space. The parties,
forming a Limited Liability Corporation ("LLC") called NCSDI No. 1, LLC have also entered into
an Exclusive Negotiation Agreement with the National City Community Development
Commission ("CDC") to consider adding 58,577 square feet of adjacent land owned by the
CDC (APN# 562-321-08-00) into the project. The parcels identified for the project straddle the
border between the City of Chula Vista and the City of National City.
The attached Background Report and Memorandum of Understanding ("MOU") detail
cooperative arrangements proposed between the parties and the respective Cities regarding
plans processing, analysis required by the California Environmental Quality Act ("CEQA"),
handing of taxes generated by the project and management of project impacts.
Environmental Review Not applicable.
Financial Statement Each party bore its own costs for the drafting and negotiation of this
MOU. The City of National City's costs were limited to staff time only.
STAFF RECOMMENDATION Adopt the resolution.
BOARD / COMMISSION RECOMMENDATION Not applicable.
STRATEGIC GOAL: 2) Achieve fiscal sustainability; 9b) Draw attention to important Gateways
and intersections.
ATTACHMENTS
1. Background Report
NOTE: The proposed MOU is an attachment
to the City Council agenda item on the MOU
Resolution No.
City of National City
Office of the City Clerk
1243 National City Boulevard, National City, CA 91950-4397
Michael R. Dalla, CMC - City Clerk
(619) 336-4228 Fax: (619) 336-4229
June 1, 2009
Mr. Jim Sandoval
City Manager
City of Chula Vista
276 Fourth Avenue
Chula Vista, CA 91910
Mr. Mark Radelow
Sudberry Properties, Inc.
5465 Morehouse Drive, Suite 260
San Diego, CA 92121
Dear Mr. Sandoval and Mr. Radelow,
On May 5th, 2009, Resolution No. 2009-97 was passed and adopted by the City Council
of the City of National City, and Resolution No. 2009-102 was passed and adopted by
the Community Development Commission of the City of National City, approving a
Memorandum of Understanding with the City of Chula Vista and NCSDI No. 1, LLC.
We are forwarding certified copies of the above Resolutions and a fully executed original
memorandum of understanding for your files.
Michael R. Dalla, CMC
City Clerk
cc: Community Development Commission, City of National City
Office of the City Manager, City of National City
John E. Ponder, Sheppard Mullin Richter & Hampton
Enclosures
® Recycled Paper