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HomeMy WebLinkAboutReso 2001-262 RESOLUTION NO. 2001-262 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AN OPTION AGREEMENT BETWEEN THE CITY AND NNP-TRIMARK PACIFIC, LLC, FOR THE SAN MIGUEL RANCH SECONDARY COMMUNITY PURPOSE FACILITY (CPF) SITE, CP-B, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT WHEREAS, this Option Agreement is an agreement between the City of Chula Vista (City) and NNP-Trimark Pacific, San Miguel LLC, a Delaware Limited Liability Company (Developer); and WHEREAS, Developer owns approximately 743.1 Acres of real property located within the City of Chula Vista known as the San Miguel Ranch (the "Project Site"); and WHEREAS, pursuant to Condition l12D of the approval by City of Tentative Subdivision Map-Chula Vista Tract 99-04, (approved 2/29/00 by Resolution 2000-068), Developer must grant to City an option to purchase certain real property within the project site consisting of a community purpose facility lot CP-B, as more specifically described in Attachment "A" of Exhibit 1, of the Option Agreement; and WHEREAS this Option Agreement is required by said Tentative Subdivision Map to be executed prior to the approval of the first Final Subdivision Map for the Project (Final Map); NOW THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby approve the Option Agreement between the City and Developer, a copy of which shall be kept on file in the Office of the City Clerk. BE IT FURTHER RESOLVED that the Mayor is hereby authorized and directed to execute said agreement on behalf of the City of Chula Vista. Presented by Approved as to form by Robert Leiter Jo~. Kaheny ~ Planning and Building Director City'Attorney ,Mfdy C~filSbell' - Parks and Recreation Director Resolution 2001-262 Page 2 PASSED, APPROVED, and ADOPTED by the City Council of the City of Chula Vista, California, this 7th day of August, 2001, by the following vote: AYES: Councilmembers: Davis, Padilla, Rindone, Salas and Horton NAYS: Councilmembers: None ABSENT: Councilmembers: None Shirley HortoJ4, Mayor ATTEST: Susan Bigelow, City Cle{'k STATE OF CALIFORNIA ) COUNTY OF SAN DIEGO ) CITY OF CHULA VISTA ) I, Susan Bigelow, City Clerk of Chula Vista, California, do hereby certify that the foregoing Resolution No. 2001-262 was duly passed, approved, and adopted by the City Cotmcil at a regular meeting of the Chula Vista City Council held on the 7th day of August, 2001. Executed this 7th day of August, 2001. Susan Bigelow, City Clerk OPTION AGREEMENT This Option Agreement (this "Agreement") is entered into as of _, 2001 by and between NNP - Trimark San Miguel Ranch, LLC, a Delaware limited liability company ("Developer"), and the City of Chula Vista ("City"). Recitals: A. Developer owns approximately 743.1 gross acres of real property located within the City of Chula Vista (the "Project Site"); and B. Developer intends to subdivide the Project Site into various residential, commercial and other lots, including two community purpose facility lots (collectively, the "Project"); and C. Pursuant to Condition 112D of the approval by City of Tentative Subdivision Map Chula Vista Tract 99-04 (Resolution No. 2000-068) ("TM"), Developer must grant to City an option to purchase certain real property consisting of community purpose facility lot CP-B, as more specifically described in attachment "A" hereto (the "Property"). Agreements: Now therefore, in consideration of the foregoing and the mutual covenants of the parties set forth in this Agreement, the parties agree as follows: 1. Grant of Option. City is hereby granted an option (the "Option") to purchase the Property for a purchase price to be determined pursuant to TM condition 112E at any time for so long as the property is a designated CPF site. 2. Exercise of Option. The Option shall be exemised by City giving Developer written notice (the "Option Notice"), and the sale shall be closed within ninety (90) days after the date of the Option Notice. Upon the closing of the sale, the purchase price shall be paid in full and Developer shall deliver to City fee simple title to the Property, which title shall be transferred by grant deed pursuant to escrow instructions and such other commercially reasonable terms upon which the parties may agree. Notwithstanding any other provision of this Agreement, Developer agrees that it will provide the Property free and clear of all liens and encumbrances other than (i) the deed restriction SD:DAP\AGR~SFD[511615885 072001 - 1 - described in TM Condition 112C; (ii) prorated non-delinquent real estate taxes, and (iii) title encumbrances which the City specifically approves. Developer further agrees that the Property is and will be, upon sale to City, free and clear of any environmental condition which would be a violation of any applicable federal, state or local law, ordinance or regulation relating to hazardous materials. 3. Excluded Sale. The foregoing provisions regarding the Option shall not apply in the event that (a) Developer sells the Property to a non-profit entity pursuant to TM Condition 112F, (b) Developer provides City with written notice of its intent to sell the Property at least ten (10) days prior to the execution of a purchase agreement for such sale, accompanied by a genuine and complete copy of such purchase agreement and sufficient information to enable City to determine the purchaser's intended use, and (c) City fails, within such ten (10) day period, to give written notice to Developer that City disapproves of the sale, which notice shall set forth in reasonable detail the basis for City's disapproval. The approval of City shall not be unreasonably withheld. 4. City's Obligations Regarding an Excluded Sale. In the event that City fails to disapprove of a sale as set forth in Section 3, City shall execute and deliver a quitclaim deed in the form of Exhibit "B" attached hereto, and shall take such further action as Developer may reasonably request in order to remove the Memorandum of Option Agreement (as defined below in Section 6) from the Official Records for the County of San Diego, California. All such actions taken with respect to this Section 4 shall be at Developer's sole cost and expense. 5. Memorandum of Option. Upon execution of this Agreement, the parties shall execute and acknowledge a Memorandum of Option Agreement in the form attached hereto as Exhibit "C", (the "Memorandum of Option Agreement") which shall be recorded in the Official Records for the County of San Diego, California. 6. Binding Effect. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. SD:DAP~AGR\SFD\51161588.5 072001 -2- 7. Counting of Days. Whenever a time period set forth in this Agreement would otherwise expire on a Saturday, Sunday, or banking or federally recoginzed holiday, such time period shall be deemed extended to the next following day which is not one of the foregoing. 8. Attorneys' Fees. Should a dispute arising out of this Agreement result in litigation, it is agreed that the prevailing party shall be entitled to a judgment against the other for an mount equal to reasonable attorney's fees and court costs incurred. The "prevailing party" shall be deemed to be the party who is awarded substantially the relief sought. 9. Waiver. Failure of either party at any time to require performance of uny provision of this Agreement shall not limit such party's right to enforce such provision, nor shall any waiver of any breach of any provision of this Agreement constitute a waiver of any succeeding breach of such provision or a waiver of such provision itself. 10. Notices. Notices under this Agreement shall be in writing and shall be effective two days after being deposited in the United States Mails, certified, return receipt requested, directed to the other party at the address set forth below, or to such other address as the party may indicate by written notice to the other party: SD:DAPLa~GR~gFD\51161588.5 072001 -3- If to Developer: NNP - Trimark San Miguel Ranch, LLC 85 Argonaut, Suite 205 Aliso Viejo, CA 92656 Attention: Mr. Stephen E. Hester Telephone: (949) 465-1655 Telecopy: (949) 465-1660 and NNP - Trimark San Miguel Ranch, LLC 31248 Oak Crest Drive, Suite 150 Westlake Village, CA 91361 Attention: Mr. Clinton R. Stevenson, Jr. Telephone: (818) 706-9797 Telecopy: (818) 706-9777 and NNP - Trimark San Miguel Ranch, LLC c/o Newland National Partners, LP 9404 Genesee Avenue, Suite 230 La Jolla, CA 92037 Attention: Mr. Derek C. Thomas Telephone: (858) 455-7503 Fax: (858) 455-5368 (with copies to:) NNP - Trirnark San Miguel Ranch, LLC c/o Newland National Partners, LP 9404 Genesee Avenue, Suite 230 La Jolla, CA 92037 Attention: Martha K. Guy, Esquire Telephone: (858) 455-7503 Fax: (858) 455-6142 SD:DAP\AGR\SFD\51161588.5 072001 -4- and Sheppard, Mullin, Richter & Hampton 501 West Broadway, Suite 1900 San Diego, CA 92101 Attention: Mr. Domenic C. Drago Telephone: (619) 338-6607 Fax: (619) 234-3815 If to City: David D. Rowlands, Jr. City Manager City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 11. Amendment. This Agreement may not be modified or amended except by the written agreement of the parties. No modification or amendment or attempted waiver of any provision of this Agreement shall be binding unless in writing and signed by the party to be bound. This Agreement may not be modified or amended orally. 12. Severability. If any term or provision of this Agreement or the application thereof to any person or circumstance shall to any extent be invalid or unenforceable, the remainder of this Agreement and the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected thereby, and each term or provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. 13. Integration. This Agreement contains the entire agreement and understanding of the parties with respect to the option granted hereunder and supersedes all prior and contemporaneous agreements between them with respect to such option. 14. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. SD:DAPLAGR\SFD\51161588.5 072001 -5- 15. Assi~ment. City may not assign this Agreement, in whole or in part, without Developer's consent, which consent may be withheld by Developer in its absolute discretion. 16. Counterparts. This Agreement may be signed in counterparts, each of which will be deemed an original and all of which, when taken together, shall constitute one and the same document. 17. No Third Part,/Beneficiaries. This Agreement does not confer any rights or remedies upon any person other than the parties and their respective successors and permitted assigns. 18. Time of Essence. Time is of the essence of the parties' obligations under this Agreement. 19. Conflicts. Should there be a conflict between this Agreement and the TM for the Property, the provisions of the TM shall control. [SIGNATURE PAGE FOLLOWS] SD:DAP~AGR\SFD\51161588.5 072001 -6- IN WITNESS WHEREOF, the parties have executed this Agreement on the date first set forth above. Developer: NNP - TRIMARK SAN MIGUEL RANCH, LLC, a Delaware limited liability company [Printe~l Name and Title] ~ q~CE PRESIDENT AND rmtea t'~ame anantle] City: CITY OF CHULA VISTA By: Shirley Horton, Mayor Attest: City Clerk Approved as to form by: City Attomey SD:DAP~AGR\SFD\51161588.5 072001 -7- [ u' , Notary Public, personally appeared '~.\d'/~¢0 ,- (r 4-~~' , ~ersonally ~o~ to me or ~ proved to me on ~e ~asi~ ~f satisfactow evidence to be ~e perso~whose n~e~is/~ subscribed to ~e wi~ ~nst~ent ~d ac~owledged to me that he/~ executed ~e same in hs~ authored capaci~and that by his/~i/fl~ si~a~e~on the ~s~ent the perso~or ~e enfi~ upon behalf of which the perso~ acted, executed ~e ins~ent. WI~ESS my h~d ~d official sefl. State of ~~ 4 ) Countyof ~ ) ,J~ personally known to me or Gl proved to me on the basis of satisfactory evidence to be the person~) whose name('$.) is/a~.e subscribed to the within instrument and acknowledged to me that 4m/she/ta~y executed the same in his/her/their authorized capacity(igs), and that by l~/her/th~, signature0t) on the instrument the person(r,), or the entity upon behalf of which the person(~) acted, executed the instrument. WITNESS my hand and official seal. L)Z GROMAN I ~ ~l~:.~ NOTARY PUBLIC.CAIJ~C)RI~ ) 'q~5-' I~yComm~xp. Ap~5,~O0S I , Notary Public SD:DAP~a, GR\S FD\51171660 I 101800 -3- SFD-61576 EXHIBIT A LEGAL DISCRIPTION Lot 13 of final map for San Miguel Ranch, Phase 1,2 and 4 "A" Map No. 1 City of Chula Vista Tract No. 99-04 per map thereof number EXHIBIT B FORM OF QUITCLAIM DEED [ATTACHED] 072001 -9- RECORDING REQUESTED BY SPACE ABOVE THIS LINE FOR RECORDER'S USE Quitclaim Deed THE UNDERSIGNED GRANTOR(s) DECLARE(s) DOCUMENTARY TRANSFER TAX IS $ _ [] unincorporated area [] City of Parcel No. [] computed on full value of property conveyed, or [] computed on full value less value of liens or encumbrances remaining at time of sale, and FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, hereby REMISE, RELEASE AND FOREVER QUITCLAIM to the following described real property in the county of , state of California: Dated STATE OF CALIFORNIA COUNTY OF ~' S,S. On before me, a Notary Public in and for said County and State, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she,ffhey executed the same in his/hedtheir authorized capacity0es), and that by his/herRheir signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal Signature (This area Io( official notoria[ seal) MAIL TAX STATEMENTS TO PARTY SHOWN ON FOLLOWING LINE; IF NO PARTY SHOWN, MAIL AS DIRECTED ABOVE EXHIBIT C MEMORANDUM OF OPTION AGREEMENT RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: NNP - Trimark San Miguel Ranch, LLC 85 Argonaut, Suite 205 Aliso Viejo, CA 92656 Attention: Mr. Stephen E. Hester lq-liS SPACE ABOVE FOR P~CORDER'S USE MEMORANDUM OF OPTION TO PURCHASE PROPERTY This Memorandum of Option to Purchase Property (this "Memorandum") is entered into as of ,2001 by and between the City of Chula Vista ("Optionor"), and NNP - TRIMARK SAN MIGUEL RANCH, LLC, a Delaware limited liability company ("Optionee"), regarding that certain real property described in Exhibit "A" attached hereto (the "Property"). Optionor and Optionee are parties to that certain Option Agreement dated as of ,2001 (the "Agreement") pursuant to which Optionor has granted to Optionee the exclusive right and sole option (the "Option") to purchase the Property on the terms and conditions set forth in the Agreement. The Option shall be exercisable for so long as the Property is a designated community purposes facility. This Memorandum is being recorded to give notice to the public that the Property is subject to the provisions of the Agreement and of the need to inquire into all of the terms and conditions of the Agreement, which terms and conditions are hereby incorporated by reference into this Mexnorandum. This Memorandum is intended to smnmarize some of the provisions of the Agreement, but in no way changes, modifies or otherwise affects any provision of the Agreement. In the event of any conflict between this Memorandum and the Agreement, the provisions of the Option Agreement shall prevail. [SIGNATURE PAGE FOLLOWS] SD:DAP\AGR\SFD\51161588.5 072001 - 10- IN WITNESS WHEREOF, Optioner and Optionee have executed this Memorandum as of the date first above written. CITY OF CHULA VISTA By: City Manager Attest: City Clerk Approved as to form by City Attorney NNP-TRIMARK SAN MIGUEL RANCH, LLC, a Delaware limited liability company By: [Printed Name and Title] By: [Printed Name and Title]