HomeMy WebLinkAbout2008/05/20 Item 8
CITY COUNCIL
AGENDA STATEMENT
~~f:. CITY OF
:pt::-?" (HUlA VISTA
ITEM TITLE:
SUBMITTED BY:
REVIEWED BY:
SUMMARY
Item No.: b
Meeting Date: 5/20/08
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA AUTHORIZING THE MAYOR TO ENTER
INTO A LAND OFFER AGREEMENT BETWEEN THE CITY
OF CHULA VISTA AND OV THREE TWO, LLC; JJJ & K
INVESTMENTS TWO, LLC; AND RR QUARRY, LLC FOR
CONVEYANCE OF 160 ACRES TO THE CITY FOR
UNIVERSITYIREGIONAL TECHNOLOGY PARK
DEVELOPMENT AND ACKNOWLEDGING THE OFFER OF
DEDICATION.
BUILDI
DIRECTOR OF PLA
CITY MANAGER
ASSIST ANT CITY
~'l
4/5THS VOTE: YES D NO 0
One of the key goals of the Chula Vista General Plan is the development of a University/Regional
Technology Park. Successful implementation of the Land Offer Agreement would complete the
land acquisition necessary to accomplish this goal through the receipt by the City of 160 (100 acres
net) acres of developable land.
ENVIRONMENTAL STATUS
The Environmental Review Coordinator has reviewed the proposed activity for compliance with
the California Environmental Quality Act (CEQA) and has determined that there is no possibility
that the activity may have a significant effect on the environment; therefore, pursuant to Section
15061(b)(3) of the State CEQA Guidelines the activity is not subject to CEQA. Future
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Page 2 of 5, Item No.: 5
Meeting Date: 5/20/08
entitlements associated with the land offer agreement will be subject to further environmental
review at the time specific projects are proposed.
RECOMMENDA nON
That the City Council approve the resolution authorizing the Mayor to enter into the proposed
land offer agreement between the City and OV Three Two, LLC; JJJ & K Investments Two,
LLC; and RR Quarry, LLC.
BOARDS/COMMISSION RECOMMENDA nON
Not applicable.
DISCUSSION
Background: Since adoption of the 1993 Otay Ranch General Development Plan, the City of
Chula Vista has maintained the vision of an institution (s) of higher education within our corporate
limits. Progress was previously made through the acquisition of over 760 acres of land, for
university development and as an open space buffer as part of the Otay Ranch Preserve.
Recognizing the need for viable employment lands, the December 2005 General Plan Update
called for a Regional Technology Park use in conjunction with a university (ies).
In January 2006 the former City Manager requested the two key land owners (one was a land
owner, the other had an option on their land) work together on a land plan to then be reviewed by
City staff. The goal was a land plan that would work for both property owners and meet the
goals and policies of the General Plan and General Development Plan. Over the course of a
year, the two parties were not able to reach closure.
In December 2007 the Planning and Building Director sent both land owners a letter requesting
"an agreed-upon proposal" by January 12, 2007 or the City would initiate our own Land
Planning process, which would respect the property rights of the land owners, but be solely
based on the best interest of the community at large.
Since Spring of 2007 the Planning and Building staff and the City Attorney have been working
with OV Three Two, LLC; JJJ & K Investments Two, LLC; and RR Quarry, LLC, in order to
create a land plan that would facilitate the future development of a university (ies) and a
Regional Technology Park while also providing equitable benefit to the land owners.
These negotiations have been extremely complex since the only acceptable outcome would be a
win/win for all parties. For the City this means; I) a land plan that on its own merits is beneficial
to the City and carries out the goals of the General Plan and Otay Ranch General Development
Plan, and 2) dedication of land necessary for the universitylregional technology park complex
and other benefits.
In the case of the landowner, there needs to be significantly greater benefit than the development
intensity they already enjoy through their existing development agreement. The draft
development agreement provides OV Three Two, LLC; JJJ & K Investments Two, LLC; and RR
Quarry, LLC the opportunity to achieve a maximum of7,350 residential units.
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Page 3 of 5, Item No.: B
Meeting Date: 5/20/08
Maior Terms of Agreement
Under the terms of the proposed land offer agreement, upon approval of entitlements, the
property owner would convey 160 acres (100 acres net), which has been designated as a portion
of the proposed "UniversitylRegional Technology Park" to the City ofChula Vista.
The agreement requires OV Three Two, LLC; JJJ & K Investments Two, LLC; and RR Quarry,
LLC to provide the City of Chula Vista with Irrevocable Offers of Dedication (laD's) for the
160 acres (100 acres net) of University/Tech Park Land within 5 days of execution of the land
offer agreement. The City would take title to the property upon approval of the requested
entitlements within the required timeframes.
The Agreement sets forth the terms under which the City may accept this offer. Specifically, in
order to accept the offer of dedication, the City would be required to provide the following
considerations:
Approval of all stated entitlements for proposed development of their ownership
in Villages 3, 4, 8, 9 and 10. It should be noted that the City and property owners
are proposing to reconfigure portions of the City General Plan/Otay Ranch
General Development Plan. Under the Land Offer Agreement, the entitlements
include a General Plan Amendment, Otay Ranch GDP amendment, a SPA Plan,
and tentative map. The maximum residential unit count is for reconfigured
property under OV Three Two, LLC; JJJ & K Investments Two, LLC; and RR
Quarry, LLC.
In accordance with the land offer agreement the processing of the above entitlements
would be completed within two years of a complete submittal(s).
The draft Land Offer Agreement provides OV Three Two, LLC; JJJ & K Investments Two,
LLC; and RR Quarry, LLC with the option of repurchasing the dedicated University/Tech Park
property if the City (or subsequent entity) should choose to use the property for non-
university/tech park or related purposes. The repurchase agreement provision expires upon the
earlier of either occupancy of 90% of the residential units within the project as evidenced by
final inspection notices or upon expiration of the amended Pre-annexation Development
Agreement.
The draft Agreement also provides that 60 acres of land currently owned by the City be
conveyed to the Owner. Although this land is currently designated for development, it is
considered challenging to develop. It would be extremely expensive for the City to provide
infrastructure to this site for development of any university related uses. The Owner intends on
negotiating with the wildlife agencies to convey this land to them to use as open space in
exchange for permission to develop on other sites currently designated for preserve.
The Draft Agreement also provides for the transfer of up to 15% of the residential units between
Villages within Otay Ranch. Any transfer greater than 15% requires approval by the Planning
and Building Director based upon specific requirements. Both City staff and OV Three Two,
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Page 4 of 5, Item No.: b
Meeting Date: 5/20/08
LLC; JJJ & K Investments Two, LLC; and RR Quarry, LLC believe these provisions will
provide the necessary flexibility to create better Village plans.
The agreement includes a 3D-day preliminary review of the conditions of approval for the SPA
Plan, as well as the draft Public Facilities Financing Plan, following close of the public review
period for the draft EIR. During this time, the applicant may review proposed conditions and
requirements for the project, and may decide to stop processing the entitlements if OV Three
Two, LLC; JJJ & K Investments Two, LLC; and RR Quarry, LLC determines that the proposed
conditions would render the project economically infeasible.
Analvsis
This offer agreement provides the City with an opportunity to obtain the remaining significant
portion of the proposed University/Regional Technology Park Site, through providing certain
considerations in conjunction with future entitlements for the Otay Ranch Villages 3, 4, 8, 9 and
10. Implementation of the subject land offer agreement in conjunction with the recently adopted
land offer agreement (with OV Three Two, LLC; JJJ & K Investments Two, LLC; and RR
Quarry, LLC) and previously acquired property will bring the total university/regional
technology developable park acreage to 345 acres. In order to assemble the university/tech park
acreage in a usable and contiguous configuration, the land offer agreement calls for the trading of
property currently owned by the City of Chula Vista for property owned by OV Three Two,
LLC; JJJ & K Investments Two, LLC; and RR Quarry, LLC, as well as acquisitions of an
additional 100 acres from OV Three Two, LLC; JJJ & K Investments Two, LLC; and RR
Quarry, LLC. Development of the university (ies) and regional technology park will over time
transform the City of Chula Vista from a bedroom community to a more balanced community
with both housing and high paying jobs. This would fulfill key City General Plan goals.
Attached is a preliminary Site Utilization Plan, which depicts locations of land uses, approximate
densities and the location of major arterials. Although we are aware that there are always
refinements to any land plan as we work with the applicant through the entitlement process, we
have conducted a preliminary analysis and we believe the proposed land plan can be consistent
with and accomplished within the overall policy framework established by the City's General
Plan. This plan would also preserve the character already established within the Otay Ranch
Master Planned Community. Staff is supportive of the additional residential units as authorized
by the entitlements subsequent to this agreement due to the need for adequate housing to support
the university and regional technology park.
It should be emphasized that both the City Council and Planning Commission will have full
discretionary authority to consider the proposed plan changes at the time they are presented in a
public hearing, with benefit of a final EIR and staff analysis. It is also important to note that the
provisions of the current Growth Management Ordinance will continue to be applicable in order
to insure that necessary infrastructure is delivered in a timely manner.
It should be noted that implementation of the subject land offer agreement (with the one
previously entered into with Otay Land Company) will require a significant commitment of staff
resources that are currently not available. Staff is recommending that the City Council approve
the attached agreement, and direct staff to move forward to complete a project
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Page 5 of5, Item No.: B
Meeting Date: 5/20/08
staffing/recruitment plan and processing schedule, which will provide for completion of
processing of entitlements in accordance with the overall schedule set forth in this agreement.
DECISION-MAKER CONFLICTS:
No Property within 500 feet:
Staff has reviewed the property holdings of the City Council and has found no property holdings
within 500 feet of the boundaries of the property which is subject to this action.
FISCAL IMPACT
The applicant would pay for all costs associated with processing the terms of this agreement.
Prepared by: James D. Sandoval, Director of Planning and Building
Attachment:
Draft Land Offer Agreement (including exhibits)
J:\planning~im\COUNCIL AGENDA STATEMENT Univ Land Offer Agreement JPB 5-20-08.doc
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RESOLUTION NO.
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA AUTHORIZING THE MAYOR TO
ENTER INTO A LAND OFFER AGREEMENT
BETWEEN THE CITY OF CHULA VISTA AND OV
THREE TWO, LLC; JJJ & K INVESTMENTS TWO, LLC;
AND RR QUARRY, LLC FOR CONVEYANCE OF 160
ACRES TO THE CITY FOR UNIVERSITY/REGIONAL
TECHNOLOGY PARK DEVELOPMENT AND
ACKNOWLEDGING THE OFFER OF DEDICATION.
WHEREAS, in adopting the Otay Ranch General Development Plan in 1993 the
City of Chula Vista formally declared its intent to plan for and pursue an institution(s) of
higher learning within it's municipal boundaries; and
WHEREAS, the updated City of Chula Vista General Plan in December 2005
recognized the many benefits of a Regional Technology Park, which would be associated
with the University(ies); and
WHEREAS, under the terms of the proposed Land Offer Agreement, JJJ&K
Investments Two, LLC, OV Three Two, LLC and RR Quarry, LLC (collectively
"Owner") would agree to convey 160 acres which will be utilized as a portion of the
proposed "University / Regional Technology Park Site";
NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula
Vista does hereby approve the Land Offer Agreement between the City of Chula Vista and
Owner for conveyance of 160 acres to the City for University/Regional Technology Park and
associated mitigation purposes, a copy of which shall be kept on file in the Office of the
City Clerk.
BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is
hereby authorized and directed to execute said Agreement on behalf of the City of Chula
Vista and for staff to acknowledge the offer to dedicate 160 acres.
Presented
Approved as to form by
C:Y1I1A~
Ann Moore -
City Attorney
James D. Sandoval, AICP
Director of Planning and
Building
V-0
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THE ATL\CHED AGREEMENT HAS BEEN REVIEWED
AND APPROVED AS TO FORM BY THE CITY
ATTORNEY'S OFFICE i\ND WILL BE
FO~'v1ALLY SIGNED UPON APPROVAL BY
THE CITY COUNCIL
(A~
Ann Moore
City Attorney
Dated:
1/6/no
LAND OFFER AGREEMENT BETWEEN
OV THREE 1WO, LLC;JJJ&K INVESTMENTS 1WO,
LLC; RR QUARRY, LLC AND
THE CITY OF CHULA VISTA
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CORDING REQUEST BY:
City Clerk
HEN RECORDED MAIL TO:
CITY OF CHULA VISTA
76 Fourth Avenue
ChuIa Vista, CA 91910
Above Space for Recorder's Use
lAND OFFER AGREEMENT
This Land Offer Agreement ('Agreement'') is entered into to be effective as of
2008, by and between JJJ&K Investments Two, LLC; OV Three Two, LLC; and
RR Quarry, LLC, all Delaware limited liability companies (' referred to collectively as
"Owner") and the City of ChuIa Vista, a political subdivision of the State of California
("City").
RECITALS
A. Owner, owns the undeveloped real property located in the City as more
particularly described and shown on the attached Exhibit "A" (the "Property")
B. The Property is part of a master planned community commonly known as
portions of Villages 3, 4, 8, 9 and 10 of the Otay Ranch Project.
C. City has requested Owner to convey to City one hundred sixty (160) acres
within the Property designated for the development of a facility for higher education and other
compatible land uses as described herein ("University Property") The University Property is
shown and described on Exhibit "B"
D. City and Owner desire to exchange certain additional properties so as to
allow City to assemble its property ownership in a configuration that is conducive to
the planning of a university campus and regional technology park.
E. Following the exchange of properties referenced in Recital D above,
Owner will own the property depicted in attached Exhibit "c" (the "Reconfigured
Property") and described in Paragraph 4.3.2 below.
F. Owner desires certain development entidements for the Reconfigured
Property that requires processing and discretionary review by the City.
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G. Owner and City by entering into this Agreement shall set forth the
terms and conditions precedent for Owner's conveyance and City's acceptance of the
University Property, as well as the p=ss for the Gty's consideration of certJlin development
entitlements for the Reconfigured Property.
NOW, lliEREFORE, in consideration of the above recitals and of the mutual covenants
hereinafter contained and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Owner and City agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions. This Agreement uses a number of terms having specific meanings, as
defmed below. These specially defmed terms are distinguished by having the initial
letter capitalized, when used in this Agreement. The defmed terms include the
following:
"Development Agreements" means the Restated and Amended. Pre-Annexation
Development Agreement between the City and Jewels of Charity recorded August 6,
1996, Restated and Amended Pre-Annexation Development Agreement between the City
and SNMB, LID recorded August 6, 1996, and Restated and Amended Pre-Annexation
Development Agreement between the City and United Enterprises recorded August 6,
1996.
"Effective Date" means the date set forth m the first paragraph of this
Agreement.
"Entitlements" means: (i.) amendments to the City's General Plan and the Otay
Ranch General Development Plan which establish 7350 as the maximum number of
residential units to be permined for development, and amendments to the Development
Agreements to include only the provisions specifically set forth on Exhibit "D"; (ii)
Sectional Planning Area Plans ("SPA Plans") for the Reconfigured Property designating the
permitted land uses, densities and intensities of development, which are in substantial
compliance with the Land Use Plan depicted on Exhibit "E"; (iii) tentative subdivision
maps ro subdivide the Reconfigured Property in accordance with the SPA Plans and
related entitlement documents, such as Public Facilities Financing Plans, necessary to
implement the SPA Plans, as may be identified in the Processing Agreement; and
(iv)appropriate California Environmental Quality Act compliance for the discretionary
actions outlined in items (i),(ii) and (iii) above.
"Growth Program" means the City policies and standards intended to regulate
the timing and phasing or rate of growth within the City, as set forth in the City's Growth
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Management Element of the City's General Plan in effect as of the Effective Date of
this Agreement.
"Hazardous Materials" means any substance, material or waste which is or
becomes (1) regulated by any local or regional governmental authority, the State of
California or the United States Government as hazardous waste, (ii) defined as a "solid
" "I dge" "h d " " ly L_ d "". ed L_ d
waste. s u , azar ous waste, extreme nazar DUS waste, restnct Bazar OUS
waste", "Non-ReRA hazardous waste," "ReRA hazardous waste", or "recyclable material";
under any federal, state or local statue, regulation or ordinance, including without limitation
Sections 25115, 25117, 25117.9, 25120.2, 25120.5, 251227, 25140,25.141 of the California
Health and Safety Code; (iii) defined as "Hazardous Substance" under Section 25316 of
the California Health and Safety Code; (iv) defined as a "Hazardous Material",
"Hazardous Substance", or "Hazardous Waste" under Section 25501 of the California
Health and Safety Code; (v) defined as a "Hazardous Substance" under Section 25281
of the California Health and Safety Code; (vi) asbestos; (vii) petroleum products,
including without limitation, petroleum, gasoline, used oil, crude oil, waste oil and any
fraction thereof, natural gas, natural gas liquefied, natural gas or synthetic fuels, (viii)
materials defmed as hazardous or extremely hazardous pursuant to the California Code of
Regulations; (ix) polychlorinated biphenyl s; (x) defined as a "Hazardous Substance"
pursuant to Section 311. of the Federal Water Pollution Control Act (33 U.S.c. Section
.1251, et seq.); (xi) defined as a "Hazardous Waste" pursuant to Section 1004 of the
Federal Resource Conservation and Recovery Act, 42 U.S.c. Section 6901., et seq., (xii)
defined as a "Hazardous Substance" or "Mixed Waste" pursuant to Section 101 of the
Comprehensive Environmental Response Compensation and Liability Act, 42 U.s.c.
Section 9601, et seq. and regulations promulgated hereunder; (xiii) defined as a
"Hazardous Substance" pursuant to Section 401.1.5 of the Clean Water Act, 40 C.F.R.
116; OR (xi.v) defmed as an "Extremely Hazardous Substance" pursuant to Section 302
of the Superfund Amendments and Reauthorizations Act of 1986, 42 U.S.c. Section
11002, et seq.
"Irrevocable Offer of Dedication/ Offer of Dedication" means the
document, substantially in the form attached as Exhibit "F," allowing for the transfer
of ownership of the University Property to the City in accordance with Government
Code Section 7050.
"Processing Agreement" means the Project Staffing and Processing
Agreement, to be entered into by the City and Owner, in which the riming and
processing of the Entidements will be set forth therein.
"Project" means the development of the Reconfigured Property consistent
with the provisions of the Entidements, applicable City policies and standards
including the City Growth Program and Ordinance.
"Property" means the real property described and shown in Exhibit "A" to this
Agreement.
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"Reconfigured Property" means the property described and shown in arrached
Exhibit "C".
"Term" shall mean the period of time from the Effective Date until the
termination of this Agreement as set forth in Paragraph 4.3.
"Third Party Litigation" means any claim, action, referendum or proceeding
ftled and served against the City and/or Owner by anyone not a party to this
Agreement or their agents or successors in interest to challenge, set aside, void or annul
the approval of this Agreement or the Entitlements, including without limitation, attacks
upon California Environmental Quality Act compliance.
"University Property" means the real property described and shown on arrached
Exhibit "B".
ARTICLE 2
OFFER OF DEDICATION
2.1 Offer of Dedication. Concurrently with the execution of this Agreement,
Owner shall submit to the City an Irrevocable Offer(s) of Dedication, for the
University Property to allow for the use of the University Property for higher
educational purposes and related compatible uses, active public recreation, quasi public,
and all other uses, including residential, industrial and commercial. The uses set forth for
the University Property shall be referred to collectively as the "Permitted Uses".
Notwithstanding the foregoing, in the event the City determines that the University
Property or a portion thereof, will be developed for any Permitted Uses other than (i)
higher educational uses, including a university campus; (il) university-related housing
(student and/or faculty housing); (ill) a regional technology park or campus intended to
attract and promote a university; or (iv) uses ancillary to a university, such as a
bookstore, coffee house or copy center, or other accessory land uses commonly
associated with higher educational institutions (uses other than those described in
subsections (i) through (iv) collectively shall be referred to as "Non-university
Development"), Owner shall have the right to repurchase that portion of the University
Property proposed for Non-university Development in accordance with the terms and
conditions set forth herein ("Repurchase Right"). The Repurchase Right shall take effect
upon the City's acceptance of the Irrevocable Offer of Dedication for the University
Property and expire upon the earlier to occur of (i) the expiration of the Development
Agreements as amended herein; or (il) the occupancy of ninety percent (90%) of the
residential units within the Project, as evidenced by final inspection notices
("Repurchase Right Expiration"); unless terminated earlier as to all or a portion of the
University Property in accordance with Paragraph 2.3. The Repurchase Right shall be
included in the Irrevocable Offer(s) of Dedication recorded concurrently with the
recordation of this Agreement and shall be a covenant running with the University
Property. City's acceptance of the Irrevocable Offer(s) of Dedication shall be subject to
the terms of this Agreement.
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2.2 Offer to Purchase. In the event the Repurchase Right is triggered in accordance
with Paragraph 2.1, the City shall promptly offer to sell that portion proposed for
Non-university Development to Owner ("Offer to Purchase"). The Offer to Purchase
shall include the following:
(i) Purchase Price (fair market value, subject to Paragraph 2.2(iv)
below), to be paid in cash.
(ii) Closing Date, not sooner than 60 days from the date the Purchase
Agreement is executed.
(iii) The Purchase Agreement shall be substantially in the form attached hereto as
Exhibit "G".
(iv) If the parties do not agree on the fair market value of that portion of
the University Property proposed for Non-university Development, then
the fait market value of said property shall be determined by an appraiser
acceptable to both parties. If the parties are unable to agree on an
appraiser within ten (10) days after the City delivers the Offer to Purchase
to Owner ("Delivety Date"), within twenty (20) days after the Delivery
Date, each party shall each name an. appraiser who is a member of MAl
or an equivalent organization and has at least five (5) years experience
appraising similar properly in. the Chula Vista area. If either party fails to
appoint such an appraiser within such period, and such failure continues
for more than five (5) days following written notice from the other party,
the appraiser appointed by the party giving such notice shall proceed to
make the appraisal as herein set forth, and the determination thereof
shall be conclusive on both parties. The two (2) selected appraisers will
each prepare an appraisal report within thirty (30) days after their
appointment. If the two (2) appraisers' determination of the fait market
value of said property is within ten percent (10%) of each other, then
the fair market value of the same will be the arithmetic average of the
two (2) appraisals. Otherwise, the two (2) selected appraisers will appoint a
third appraiser within ten (10) days after issuance of their appraisal reports,
("Deciding Appraiser") meeting the same qualifications and who has no
preexisting material financial or business relationship with either of the
appraisers, City or Owner. If the two (2) selected appraisers fail to appoint a
Deciding Appraiser within such period, then either party may petition a
court of competent jurisdiction to appoint a Deciding Appraiser
meeting the qualifications set forth herein, in the same manner as
provided for the appointment of an arbitrator pursuant to California
Code of Civil Procedure section 1281.6. The Deciding Appraiser may
not receive or consider the appraisals prepared by the other two (2)
appraisers. The Deciding Appraiser will deliver its report to the parties
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within thirty (30) days after its appointment and the fair market value of
said property will be either: (i) if the fair market value determined by the
Deciding Appraiser is between the values determined by the fIrst two
(2) appraisers, the arithmetic average of the two (2) appraisals that are
closest to each other; or, (ii) if the fair market value determined by the
Deciding Appraiser is higher or lower than both of the values determined
by the fIrst two (2) appraisers, the fair market value determined by the
appraisal of the fIrst two (2) appraisers that is closest to the value
determined by the Deciding Appraiser. The parties shall share equally the
fees and expenses of the appraisers jointly named, if any, but each party
shall be responsible for the fees and expenses of any appraiser named
solely by that party. Each party shall bear its own expenses in presenting
evidence to the appraisers. The determination of fair market value by the
appraiser(s) shall be fmal and binding on the parties.
NOTICE: BY INITIALING IN THE SPACE BELOW, YOU ARE
AGREEING TO HAVE THE DETERMINATION OF THE FAIR MARKET
VALUE OF THAT PORTION OF THE UNIVERSITY PROPERTY
PROPOSED FOR NON~UNlVERSITY DEVELOPMENT AS PROVIDED IN
THIS PARAGRAPH 2.2 (iv) DECIDED BY NEUTRAL ARBITRATION AS
PROVIDED BY CAUFORNIA LAW AND YOU ARE GIVING UP ANY
RIGHTS YOU MIGHT POSSESS REGARDING THE FAIR MARKET VALUE
TO HAVE LITIGATED IN A COURT OR JURY TRIAL. SUCH ARBITRATION
WILL NOT APPLY TO ANY OTHER DISPUTES OR MATTERS UNDER
THIS AGREEMENT. BY INITIALIZING IN THE SPACE BELOW, YOU ARE
GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL,
UNLESS THESE RIGHTS ARE SPECIFICALLY INCLUDED IN THIS
PARAGRAPH 2.2 (iv). IF YOC REFUSE TO SUBMIT TO ARBITRATION AS
SET FORTH HEREIN AFTER AGREEING TO THIS PROVISION, YOU
MAYBE COMPEllED W ARBITRATE UNDER THE AUTHORITY OF THE
CALIFORNIA CODE OF CIVIL, PROCEDURE. YOUR AGREEMENT TO
THIS ARBITRATION PROVISION IS VOLUNTARY. YOU HAVE READ
AND UNDERSWOD THE FOREGOING AND AGREE TO SUBMIT
DISPUTES ARISING OUT OF THIS PARAGRAPH 2.2(iv) TO NECTRAL
ARBITRATION.
O\\7NER'S INITIALS:
CITY'S INITIALS:
2.3 Repurchase Right. City and Owner agree to negotiate in good faith the
Purchase Price contained in the Offer to Purchase, provided however, if City and
Owner can not agree on the Purchase Price within twenty (20) days after the City delivers
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the Offer to Purchase to Owner, the Purchase Price shall be determined in accordance with
Paragraph 2.2(iv). Owner shall have ten (10) days from the date Ownet is notified of the
final determination of fait market value pursuant to Paragraph 2.2(iv) within which to
notify the City whether it intends to exercise its Repurchase Right. If Owner declines to
exercise the Repurchase Right or fails to timely notify City of its determination, the
Repurchase Right shall be terminated as to that portion of the University Property
proposed for Non-university Development. In such event, the City shall have a right to
proceed with the proposed development or sale at the same or higher price than that set
forth in the Offer to Purchase, and equivalent terms. Thereafter, if the City decides to
change the price of said property to be less than that set forth in the Offer to Purchase or
to change other material terms of the same, City shall provide Owner with a new offer to
purchase before offering the University Property to any other prospective purchasers
("Renewed Right to Purchase"). The Renewed Right to Purchase shall be governed
by the terms of this Agreement. The Renewed Right to Purchase shall expire concurrently
with the Repurchase Right Expiration. The Repurchase Right and Renewed Right to
Purchase shall terminate prior to the Repurchase Right Expiration as to any portion of
the University Property for which Owner declines to exercise such rights. Owner
agrees to deliver to City within ten (10) business days of City's written request, a quitclaim
deed releasing the University Property, or a portion thereof, from the provisions of the
Repurchase Right and Renewed Right to Purchase upon the expiration or earlier
termination of said rights as to all or a portion of the University Property.
2.3.1 Effect of Convevance on Repurchase Right. At no time
shall more than one legal entity possess the Repurchase Right; The Repurchase Right
shall terminate as to any portion of the Reconfigured Property conveyed by Owner to a
third party which conveyance comprises less than the total Reconfigured Property owned
by Owner immediately prior to the conveyance. For example, if Owner conveys to a
developer thitty percent (30%) of the Reconfigured Property, the Repurchase Right shall
terminate as to the thitty percent (30%) conveyed. Under this example, the Repurchase
Right would not terminate as to the remaining seventy percent (70%) of land retained
by Owner. If the Owner conveys the entirety of the Reconfigured Property at anyone
time (a "bulk_sale"), the Repurchase Right shall not terminate and shall continue to run
with the land conveyed in the bulk-sale. Using the example above, if Owner
subsequently conveyed the remaining seventy percent (70%) of the Reconfigured
Property in a bulk-sale to a developer, the Repurchase Right would not terminate as a
consequence of such conveyance.
2.3.2 No Vested Development Rights. Owner acknowledges and
agrees that neither this Agreement nor the Development Agreement confer vested
development rights upon any portion of the University Property acquired by Owner
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pursuant to the Repurchase Right and Owner shall he subject to applicable City land use
regulations with regard to any future applications to develop said property.
2.4. Execution of Offer. If the Owner exercises the Repurchase Right for
that portion of the University Property proposed for Non-university Development,
Owner agrees to execute the purchase agreement, in substantially the form attached
hereto as Exhibit "G" within forty five (45) days after the determination of fair market
value pursuant to Paragraph 2.2 (iv).
2.5. Title Insurance. Within twenty (20) days of the Effective Date, Owner shall
have obtained, at its expense, title insurance naming the City as the insured and,
guaranteeing fee title, subject to any exceptions or conditions approved by the City, for
the University Property from Chicago Title Insurance Company in an amount
reasonably agreed upon by the parties representing the estimated fair market value of
the properties as of the Effective Date. Owner shall maintain said title insurance for
the individual properties in full force and effect until the City has accepted the
Irrevocable Offers of Dedications for the University Property.
2.6. Encumbrances. The Owner or successors-in-interest to Owner, may place
liens, encumbrances and other title exceptions on the University Property and
Owner's Exchange Property, up until the time frames set forth herein for the
respective properties; provided, however such liens, encumbrances, and other
exceptions to title are removed from the title to said properties in accordance with the
terms of this Agreement. Owner shall provide the City with written notice of any
liens, encumbrances, or other exceptions placed on the respective properties within
thirty (30) days of its placement on said properties. Notwithstanding any provision of
this Agreement, Owner agrees that prior to the City's acceptance of the Offer of
Dedication for the University Property and the exchange of the properties, as set
forth in paragraph 4.1 herein, it shall take any and all actions necessary to provide each
of the respective properties to the City free and clear of all liens and encumbrances other
than: (i) any easements and rights-of-way determined upon final approval of the
Entitlements required for development of the Project which do not materially
interfere with the intended use of the University Property or Owner's Exchange
Properties for the Permitted Uses; (ii) prorated non-delinquent real estate taxes,
special taxes and assessments; and (iii) those exceptions to title that are approved by the
City (collectively (1), (2), (4), (8), and (11) through (20)of Preliminary Title Report,
prepared by Chicago Title Company, dated Aptil 24, 2008, and. are referred to as the
"Permitted Exceptions"). In addition, Owner shall not pledge the rights to this
Agreement as security for any of its other obligations.
2.7 Removal of Encumbrances. No later than five (5) calendar days prior to
the first public hearing on the Entitlements, Owner shall remove all liens,
encumbrances and any other exceptions, other than the Permitted Exceptions, and any
other exception not approved by the City from the title to the University Property and
Owner's Exchange Property or otherwise demonstrate, to City's satisfaction, an
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irrevocable commitment and ability to remove said title matters immediately upon
approval of the entitlements. Owner shall provide the City with an updated Title
Report for the University Property and Owner's Exchange Property five (5) calendar
days prior to the last public hearing for the Entitlements as set forth in this Paragraph.
Owner understands and agrees that if Owner fails to remove all liens, encumbrances and
those exceptions, other than the Permitted Exceptions, not approved by the City, in
the time frames set forth herein, this Agreement and the Processing Agreement shall be
terminated and any remaining hearings on the Entitlements shall be cancelled and the
application for the Entitlements shall be considered withdrawn by the Owner.
2.8. Hazardous Waste Report Owner shall provide the City within thirty (30) days
of the Effective Date of this Agreement with a Phase One Hazardous Waste Report on
the University Property by a professional firm acceptable to the City and again not less
than thirty (30) days prior to the first public hearing for the Entitlements with an
update of the Phase One Hazardous Waste Report for the respective properties by the
same professional firm. Owner shall be responsible for the costs of both reports.
Owner understands that the City's acceptance of the Offer of Dedication is
conditioned upon the City's approval of said report and that the City has entered into
this Agreement contingent on the University Property being 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. Owner further
understands and agrees that Owner, in addition to any obligations as the property owner,
is fully responsible for the administration and oversight of the environmental condition
of the University Property until the City has accepted the Offer of Dedication for
the University Property . If after the City's review of the updated Phase One
Hazardous Waste Report for said properties, the City determines the environmental
condition of the University Property is not acceptable to the City, Owner may, in its
discretion, cure said condition within thirty (30) days of City's written notice to
Owner that such property is not acceptable. If Owner decides not to cure the
condition of the University Property, this Agreement and the Processing Agreement
shall be terminated and any applications submitted for the Project shall be considered
withdrawn by the Owner and any and all hearings for the Entitlements shall be
cancelled.
2.9 Transfer of Units. Owner may transfer, at its discretion, up to fifteen
percent (15%) of the units allocated to a village within the Project to another village
within the same Project. The Planning Director may approve, in his or her discretion,
any transfer of units more than fifteen percent (15%) or any transfer of units to
another village within Otay Ranch but not within the Project, if all of the following
requirements are satisfied:
(i) The transfer of units between villages is consistent with the
village design policies and the Entitlements for the village into which the units
are being transferred.
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(ii) The total number of units for the Project is not exceeded,
(ill) Public facilities and infrastructure including schools and parks are
provided based on the final number of units within each village or Planning Area,
(iv) The planned identity of the villages are preserved including the
creation of pedestrian friendly and transit-oriented development; and
(v) Preserve conveyance obligations will continue to be based on the final
map development area.
ARTICLE 2
OFFER OF DEDICATION
3.1. Entitlements Processing. Owner will file with City all applications and
pay all applicable fees for the review, processing, and consideration of the Entitlements
by the City. City will diligently process, in accordance with the schedule set forth in the
Processing Agreement, the Entitlements for final consideration by the City Council.
Notwithstanding the foregoing, the City's acceptance of the Offer of Dedication is not
contingent on the time frames associated with the processing of the Entitlements as set
forth in the Processing Agreement, except that final approval of the Entitlements must
be received by the Owner within the time frame set forth in Paragraph 3.3 herein.
Owner understands and agrees that the processing and/or approval of final maps, grading
permits and other ministerial permits are not subject to this Agreement and the
acceptance of the Offer of Dedication to the City shall not be contingent on Owner
receiving such ministerial approvals. In addition, Owner acknowledges and agrees that
the City has not made any representations or warranties as to the viability of any of the
land uses contemplated in the Entitlements.
3.2. Review Period. Owner shall have thirty (30) days after the fmal draft for the
Entitlements (which include all of the conditions and mitigation measures associated
with said documents) ("Final Draft Entitlements") have been completed by the City, to
review such documents and decide whether to proceed with processing the
Entitlements. During the Owner's thirty-day review period, City agrees to meet with
Owner in good faith to discuss the draft documents and consider any changes Owner
may request. Owner shall notify the City in writing, at the conclusion of the thirty-day
review period, as to whether Owner wishes to continue processing the
Entitlements. Owner may decide to stop processing the Entitlements if Owner
determines, in its sole discretion, that it is economically infeasible or undesirable to
continue. If City is notified to stop processing Entitlements and the reasons thereof,
this Agreement shall terminate, and the application for the Entitlements shall be
considered withdrawn by the Owner.
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3.3. Approval of Entitlements. If the Entitlements are approved by the City Council in
substantially the fotm of the Final Draft Entitlements on or before twenty four (24)
months after Owner has submitted a completed application for the Project to the
City, as such time may be extended as provided for in Paragraph 5.9 (Force
Majeure), City shall accept the Offer of Dedication for the University Property within
thirty (30) days after the expiration of all applicable statutes of limitations to challenge the
Entidements and any additional time caused by Third Party Litigation, as described in
Paragraph 3.4 herein. In the event of Third Party Litigation, City shall accept the
Offer of Dedication within thirty (30) days after entry of a final, nonappealable
judgment affirming the validity of the Entidements or other resolution mutually
acceptable to the parties ("Favorable Outcome"). In the event of any outcome to the
Third Party Litigation other than a Favorable Outcome, the parties agree to meet and
confer regarding corrective action necessary to preserve the Entitlements. In the event
Owner or City determines it is not in Owner's or City's interest to proceed with the
corrective action necessary to preserve the Entidements, this Agreement shall
terminate and any Entitlements that have been approved by the City shall be
considered void ab initio and be of no effect. In the event Owner and City elect
to proceed with the corrective action necessary to preserve the Entitlements, the City
shall accept the Offer of Dedication for the University Property within thirty (30) days
after entry of a final, nonappealable judgment affirming the validity of the Entidements.
In the event the City does not approve the Entitlements in substantially the form of
the Final Draft Entitlements or in such corrected form as necessary to preserve the
Entitlements, on or before twenty four (24) months after Owner has submitted a
completed application for the Project to the City, as such time may be extended as
provided for in Paragraph 5.9 (Force Majeure), any Entidements received by Owner
shall be considered to have been withdrawn by Owner and City's action on the
Entidements shall be void ab initio and be of no effect.
3.4 Third Party Litigation. In the event of the occurrence of Third Party Litigation,
the term of this Agreement shall be extended for the period of the pendency of the
Third Party Litigation or until such time as either the City or Owner (irrespective of who
is named in the Third Party Litigation) decides it is no longer desirable to defend against
the Third Party Litigation, at which time written notice shall be provided to the other
party requesting termination of this Agreement. In such event, the Entidements
received by Owner shall be considered withdrawn by Owners and be null and void.
The City shall return the Irrevocable Offer of Dedication to the Owner.
3.5 Community Public Facilities Credit. Once the City has accepted the Offer of
Dedication to the University Property, Owner's obligations to provide Community
Public Facilities land uses within the Reconfigured Property shall he deemed satisfied.
Notwithstanding the foregoing, Owner shall provide (subject to the approval of the
Planning Director) a CPF site of four acres in each village within the Reconfigured
Property except for Village 4. The Planning Director shall reserve the right to waive
the 4 acre requirement at his fher discretion.
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3.6 Discretion of City. Owner understands and agrees that the City reserves the right
to exercise its discretion as to all matters which the City is by hw entided or required to
exercise its discretion with respect to the Entidements, including but not limited to the
California Environmental Quality Act and other similar laws. In addition the
Entidements shall be subject to and brought to City Council for consideration in
accordance with applicable legal requirements, including laws related to notice, public
hearings and due process. In addition, nothing herein shall be construed as to restrict
the City's ability to exercise its discretion as provided by the City's Growth Management
Program or to condition the Project in the manner City determines appropriate in
accordance with its general police powers.
3.7 [Intentionally omitted.]
3.8 [Intentionally omitted.]
3.9 Universit;y Design. The parties acknowledge and agree that a university will
benefit the citizens of the City and the region and could provide a unique opportunity to
complement the development of the Reconfigured Property. The City acknowledges that
the Owner may participate, by providing input and feedback to the City, in the design of
any future university within Otay Ranch including the design of the University
Property. City agrees to solicit input from Owner, and the public, meet with Owner to
discuss the design of a university, and provide to Owner all non-privileged
documents, studies and materials relevant to the design and development of a
university it is the desire of the parties to work cooperatively, as allowed by law, in the
design of the university to insure compatibility of land uses, design and architecture
with other adjacent properties, including the Project. Notwithstanding the foregoing,
nothing contained herein shall be construed as to restrict the City's ability to exercise
its legislative authority or its discretion as to all matters which the City is by law
entided or required to exercise its discretion with respect to any future decisions of the
City with respect to any matter pertaining to the University Property or design of a
university.
3.10. Community Facilities Districts. City shall amend Owner's Development
Agreements to provide that neighborhood parks within Owner's Reconfigured Property
shall be eligible for inclusion in any community facilities districts ("CFDs") and,
therefore, eligible for reimbursement. In addition, City agrees to amend the Owner's
Development Agreements to provide that the current City policy with regard to CFDs
limiting the total assessment to two percent (2%) of home sales prices shall remain in
effect for Owner's Reconfigured Property.
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ARTICLE 4
Conveyance of Properties
4.1 Conveyance. In the event that City approves the Entitlements and has the right to
accept the Offer of Dedication pursuant to Paragraph 3.3 above, City and Owner shall,
simultaneous with City's acceptance of the Offer of Dedication of the University
Property, convey the following properties to each other:
4.1.1 Owner's Exchange Property. Owner shall convey to City an additional
109 acres of land as described in attached Exhibit "H" (the "Owner's
Exchange Property").
4.1.2 City's Exchange Property. City shall convey to Owner approximately
1 09 acres of land as described in Exhibit "H" to this Agreement (the
"City's Exchange Property").
4.1.3 Parcels C, and D. City shall convey to Owner the sixty (60) acres ofland
described as Parcels C and D in attached Exhibit "I", and provided
however City first receives any necessary approvals from any appropriate
entities.
4.2. Title. Encumbrances. Hazardous Materials. With regard to the Owner's
Exchange Parcel, the City's Exchange Parcel, and Parcels C and D, City and Owner
shall each be responsible for addressing and resolving all title matters, encumbrances
and hazardous materials regarding the particular property that they each own in an
identical manner as set forth in Paragraphs 2.5, 2.6, 2.7 and 2.8 above as if said
paragraphs had specifically referenced the City's Exchange Property, the Owner's
Exchange Property and Parcels C, and D.
4.3. Purpose of Conveyances.
4.3.1 City's Exchange Parcel and Owner's Exchange Parcel. As depicted in
attached Exhibit "H", City and Owner intend to exchange ownership of the City's
Exchange Parcel and the Owner's Exchange Parcel in the event that the Offer of
Dedication of the University Property is accepted by City. The exchange is designed to
consolidate the City's ownership such that the university and regional technology park
can be located in one area adjacent to both the University Property and the property
that City intends to acquire from other parties.
4.3.2 Parcels A, B, C, and D. Owner shall have the right, but not the obligation, to
negotiate with the jurisdictions responsible for the Otay Ranch Preserve to determine
whether the development rights on Parcels C and D can be eliminated in exchange for
allowing development on certain other properties, including but not limited to, Parcel A
and Parcel B as described in attached Exhibit "I". Parcel A and Parcel B are currently
included in the Otay Ranch Preserve and, therefore, cannot currently be developed. City
15
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shall provide Owner with its reasonable best efforts to support Owner in its
negotiations. In the event Owner is successful in trading the development rights on
Parcels C and D for development rights on Parcels A and B, City agrees, if Owner so
elects, to convey City's legal interest in Parcel A and/or Parcel B to Owner provided
Owner concurrently conveys Owner's legal interest in Parcels C and D as preserve land.
Prior to the conveyance of Parcels A and/or B to Owner and Parcels C and D to City,
the parties shall address and resolve all title matters, encumbrances and hazardous
materials regarding the properties in an identical manner as set forth in Paragraphs 2.5,
2.6, 2.7 and 2.8. Owner understands and agrees that City is not obligated to convey its
interests to Parcels A and/or B if it finds the title or environmental condition (presence
of Hazardous Materials) of Parcels C and D to be unacceptable for purposes of
conveyance in fee title to the Otay Ranch Preserve or should the appropriate entities not
approve or agree to the exchange of the respective parcels. Parcels A and B will be
processed for development as part of the Entitlements and the Land Use Plan along
with Parcels C and D; provided, however, that Parcels A and B will be included as a part
of the Entitlements only in the event that development on Parcels C and D is
eliminated such that Parcels C and D remain in the Otay Ranch Preserve and Owner has
received all the required approvals for such development. It is specifically understood
and agreed, however, that Owner's obligation to convey the University Property and
Owner's Exchange Property pursuant to this Agreement is in no way contingent on
Owner's ability to negotiate any modifications to the Otay Ranch Preserve to facilitate
development of Parcels A and B as described above. In short, Owner shall be obligated
to convey the University Property and the Owner's Exchange Property pursuant to this
Agreement and shall be entitled to obtain title to Parcels C and D regardless of its
efforts to modify the boundaries of the Otay Ranch Preserve.
ARTICLE 5
GENERAL PROVISIONS
5 1. Infrastructure To Serve Universit;y Propert;y. Owner will not be required. to fund,
and the development of the Reconfigured Property shall not be conditioned upon the
funding or construction of public infrastructure required to serve the University
Property including, without limitation, streets, sanitary, sewer, storm drain, water,
park, open space, landscaping and dry utility facilities unless City provides reasonable
assurance of funding or reimbursement in accordance with State Law and/or the
City's ordinances.
5.2. Universit;y Property Assessments. City agrees not to impose on the
University Property any special taxes, assessments, fees, charges or other exactions
prior to City acceptance of the Irrevocable Offer of Dedication of the University
Property. Owner shall be responsible for paying any taxes, liens and assessments
currently being imposed on the University Property until the City has accepted the
Offer of Dedication.
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5.3. Term. The term of this Agreement and the rights, duties and obligations of the
parties under this Agreement shall expire five (5) years from the Effective Date
unless extended due to Third Party litigation or Force Majeure as herein defined,
except for such provisions herein which expressly survive beyond the expiration of this
five-year term.
5.4. "As Is" Conveyance. City is relying solely upon its own inspection, investigation,
and analysis of the University Property and the Owner's Exchange Property in
entering into this Agreement. The University Property and the Owner's Exchange
Property will be conveyed to City on an "as is" basis. The parties agree that Owner
makes no representations or warranties regarding the condition of the Cniversity
Property or the Owner's Exchange Property, or the fitness of said land for City's
intended use or development thereof.
ARTICLE 6
MISCELLANEOUS PROVISIONS
6. I. Entire Agreement. This Agreement, the Processing Agreement and
Entitlements set forth and contains the entire understanding and agreement of the
parties, and there are no oral or written representations, understandings or ancillary
covenants, undertakings or agreements which are not contained or expressly referred to
as an exhibit herein. No testimony or evidence of any such representations,
understandings or covenants shall be admissible in any proceeding of any kind or nature
to interpret or determine the terms or conditions of this Agreement.
6.2. Severabiliq. If any term, provision, covenant or condition of this Agreement
shall be determined invalid, void or unenforceable, then this Agreement shall terminate
in its entirety, unless the parties otherwise agree in writing.
6.3. Interpretation and Governing Law. This Agreement and any dispute
arising hereunder shall be governed and interpreted in accordance with the laws of the
State of California. This Agreement shall be construed as a whole according to its fair
language and common meaning to achieve the objectives and purposes of the parties
hereto, and the rule of construction to the effect that ambiguities are to be resolved
against the drafting party shall not be employed in interpreting this Agreement, all
parties having been represented by counsel in the negotiation and preparation hereof.
6.4. Paragraph Headings. All Paragraph heading and subheadings are inserted for
converuence only and shall not affect any construction or interpretation of this
Agreement.
6.5. Singular and Plural. As used herein, the singular of any word includes the plural.
6.6. Time of Essence. Time is of the essence in the performance of the provisions of this
Agreement as to which time is an element.
17
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6.7. Waiver. Failure of a party to insist upon the strict performance of any of
the provisions of this Agreement by the other party, or the failure by a party to
exercise its rights upon the default of the other party, shall not constitute a waiver of
such party's right to insist and demand strict compliance by the other party with the
terms of this Agreement thereafter.
6.8. No Third Paro/ Beneficiaries. This Agreement is made and entered into for the sole
protection and benefit for the parties and their successors and assigns. No other
person shall have any right of action based upon any provisions of this Agreement.
6.9. Force Majeure. Neither party shall be deemed to be in default where failure or delay
in performance of any of its obligations under this Agreement is caused by earthquakes,
other Acts of God, fires, wars, riots or similar hostilities, strikes and other labor difficulties
beyond the party's control (including the party's employment force), governmental
regulations beyond the City's reasonable control, court actions (such as restraining
orders or injunctions), or other causes beyond the party's reasonable control. If any
such event shall occur or should delays be caused by Owner failing to submit plans or
other documents in a timely manner that causes a delay in the City's processing of
the Entitlements, or requests further changes or amendments to the Project or
Entitlements, the term of this Agreement and the time for performance shall be extended
for the duration of each such event, provided that the term of this Agreement shall not
be extended under any circumstances for more than five (5) years.
6.10. Mutual Covenants. Unless expressly provided otherwise in this Agreement, the
covenants contained herein are mutual covenants and also constitute conditions to the
concurrent or subsequent performance by the party benefited thereby of the covenants
to be performed hereunder by such benefited party.
6.11. Successors In Interest. Unless expressly provided otherwise in this Agreement, this
Agreement shall be binding upon and inure to the benefit of the successors, assigns
and interests of the parties as to any or all of the Reconfigured Property until released by
the mutual consent of the parties. The burden of the covenants contained in this
Agreement benefit and burdens the Reconfigured Property, its successors and assigns
and any successor in interest thereto as well as benefit the City. City is deemed the
beneficiary of such covenants for and in its own right and for the purposes of
protecting the interest of the community and other parties public or private, in whose
favor and for whose benefit of such covenants running with the land have been
provided without regard to whether City has been, remained or are owners of any
particular land or interest therein.
6.12. Counterparts. The parties may execute this Agreement in counterparts, which
counterparts shall be construed together and have the same affect as if all the parties
had executed the same instrument.
6.13 Jurisdiction and Venue. Any action or law or inequity arismg under this
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Agreement or brought by an party hereto for the purpose of enforcing, construing or
determining the validity of any provision of this Agreement shall be filed and tried in the
Superior Court of the County of San Diego, State of California, and the parties hereto
waive all provisions of law providing for the filing, removal or change of venue to any
other court.
6.14. Further Actions and Instruments. Each of the parties shall cooperate with and
provide reasonable assistance to the other to the extent contemplated hereunder in the
performance of all obligations under this Agreement and the satisfaction of the
conditions of this Agreement. Upon the request of either party at any time, the other
party shall promptly execute, with acknowledgment or affidavit if reasonably required,
and file or record such required instruments and writings reasonably acceptable to such
party and take any actions as may be reasonably necessary under the terms of this
Agreement to carry out the intent and to fulfill the provisions of this Agreement,
including without limitation actions necessary to remove this Agreement from the chain
of title as to all or a portion of the Reconfigured Property when authorized by this
Agreement, provided that neither party will be obligated to modify any rights or
accept any additional obligations or liabilities in connection therewith. Following
City's acceptance of the Irrevocable Offer of Dedication for the University Property,
upon the request of Owner, City will take actions reasonably necessary to remove this
Agreement from the chain of title of that portion of the Reconfigured Property being
conveyed to a third party.
6.15. Amendments in Writing/Cooperation. This Agreement may be amended only
by written consent of both parties specifically approving the amendment.
6.16. Notices. Any notice called for in this Agreement shall be sent by hand delivery,
overnight courier service, or by registered or certified mail as follows:
To City at:
City of Chula Vista
276 Fourth Avenue
Chula Vista, CA 91910
Atm: Ann Moore, City Attorney
With a copy to
JPB Development
Company, LLC
610 West Ash St, Suite
1500
San Diego, CA 92101
Atm: Rob Cameron
JPB Development, LLC
270 Newport Center Drive, Suite 200
Newport Beach, CA 92660
Atm: Ron Therrien
19
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or such other address as a party may inform the others of from time to time. Any
such notices sent by registered or certified mail, return receipt requested, shall be
deemed to have been duly given and received three (3) business days after the same
is so addressed and mailed with postage prepaid. Notices delivered by overnight
service shall be deemed to have been given upon delivety, charges prepaid to the
U.S, Postal Service or private courier. Any notice or other document sent by any other
matter shall be effective only upon actual receipt thereof.
6.17 Authority to Execute. Owner and the City each warrants and represents
that the person or persons executing this Agreement and Irrevocable Offers of
Dedication on their behalf have the authority to execute this Agreement and
Irrevocable Offers of Dedication.
6.18 Exhibits and Attachments. All Exhibits referenced within the Agreement are
incorporated herein and made a part of this Agreement.
6.19 Termination. In the event this Agreement terminates as provided in
Paragraphs 2.6, 2,7, 2.8, 3.2, 3.3, 3.4, and 3.9 herein, the Entitlements shall be
withdrawn, the Offers of Dedication shall be null and void, and of no further force
and effect (the parties shall promptly take all actions reasonably necessary to promptly
remove the document from the chain of title) and the Processing Agreement also shall
terminate, Owner agrees to promptly pay any outstanding processing fees due the City
in accordance with the Processing Agreement.
6.20 Project as A Private Undertaking. It is specifically understood by City and
Owner that (i) the Project is a private development; (ii) City has no interest and/or
responsibilities for or duty to the Owner or third parties concerning any improvements
to the Reconfigured Property; (iii) Owners shall have the full power and exclusive
control of the Reconfigured Property subject to the obligations of Owner set forth in
this Agreement, any other agreements with City and applicable law; and (iv) the Project
is not a joint venture or partnership between the City and Owner.
6.21 No Attorney fees. No attorney's fees shall be recoverable in connection
with this Agreement.
(NEXT PI\GE IS SIGN.-\TURE PAGE)
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SIGNATURE PAGE TO
LAND OFFER AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and year first set forth above.
CITY OF CHULA VISTA, a political subdivision of the State of California
By:
Donna Norris, Interim City Clerk
APPROVED AS TO FORM
Ann Y. Moore, City Attorney
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MAY-15-2008 15:01 From:
To: 5194095823
P.U1
Ha~ 16 08 04:04p
C.V.Cit~ Att~ - LIt. D1v.
(619)476-5305
p.1
OV THREI; TWO. LLC
~ LJelawarclimlied Liability Company,
By; OV THRICE ONE. LLC,
a pe~w""limited Liability Company,
It. Managing Member
By: O..y VUlage Tb.....lav..l_ts. LP,
. Delaware limited partnorsh ip,
It'. Managil1i Member
By:
JJJ&K INVESTMENTS TWO. LLC,
a Delawa,e limited Liability Company
By: .IJJ&K INVr.sTMENTS ONE, LLC,
A Delaware limited Liability Conlpill1,Y
Itls Managing Mt..'111bet
By: J.JJ&I< INVESTMENTS, LP.
A Delil.wlrr. timl~d partnlllrship
It's Managinj; MCl1Ibet
By: JJJ&K M.n.AOJII"'~ lac..
A Delllware c~o' ,
It'sGen....IP 'r CJ
By._ ~
rt B. Cam.ron --
It'. Vie. Prc,irlfnt
RR Quarry. LLC,
A Delaware lilllilcd LtahiHty Company
Ily;
lUlbertB. Cam.;o;;-'.
It', Vie. Pre,ident
24
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Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Exhibit F
Exhibit G
Exhibit H
Exhibit I
LIST OF EXHIBITS
Legal Description of Existing Ownership
Legal Description of University Property (160 acres)
Legal Description of Reconfigured Property
Amendments to Development Agreement
Land Use Plan
Irrevocable Offer of Dedication
Purchase Agreement
Owner's Exchange Property and City's Exchange Property
Parcels A, B, C, and D
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EXHIBIT A
OTAY RANCH VILLAGES 3, 4 AND 8
PARCEL I:
LOT 43 OF OTAY RANCH, IN THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO,
STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 862, FILED IN THE
OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, FEBRUARY 7,1900.
EXCEPTING THEREFROM THAT PORTION OF SAID LOT 43 LYING WITHIN THE
FOLLOWING DESCRIBED LAND:
COMMENCING AT THE SOUTHWEST CORNER OF FRACTIONAL SECTION 17,
TOWNSHIP 18 SOUTH, RANGE I WEST, SAN BERNARDINO MERIDIAN, IN SAID SAN
DIEGO COUNTY, ACCORDING TO LICENSED SURVEYOR'S MAP THEREOF NO. 275, A
PLAT OF WHICH IS FILED IN THE OFFICE OF THE COUNTY RECORDER NOVEMBER
5, 1936; THENCE ALONG THE SOUTHERLY LINE OF SAID FRACTIONAL SECTION 17,
SOUTH 88055'00" EAST, A DISTANCE OF 2,071.03 FEET (2,074.27 PER SAID LICENSED
SURVEYOR'S MAP NO. 275) TO A POINT ON THE WESTERLY BOUNDARY OF SAID
OT A Y RANCH, SAID POINT BEING ALSO THE TRUE POINT OF BEGINNING; THENCE
LEAVING SAID SOUTHERLY LINE, NORTH 19000'00" WEST, ALONG SAID WESTERLY
BOUNDARY, A DISTANCE OF 2,893.65 FEET (2,893.04 FEET PER SAID LICENSED
SURVEYOR'S MAP NO. 275) TO THE MOST NORTHERLY NORTHEAST CORNER OF
THAT LAND DESCRIBED IN DEED TO THE COUNTY OF SAN DIEGO, RECORDED
APRIL 16, 1962 AS DOCUMENT NO. 64315, IN THE OFFICE OF SAID COUNTY
RECORDER; THENCE CONTINUING ALONG SAID WESTERLY BOUNDARY NORTH
19000'00" WEST, A DISTANCE OF 741.41 FEET; THENCE LEAVING SAID WESTERLY
BOUNDARY, NORTH 74023'37" EAST, A DISTANCE OF 3,829.24 FEET; THENCE SOUTH
02044'38" EAST, A DISTANCE OF 2,922.46 FEET; THENCE SOUTH 59039'21" WEST, A
DISTANCE OF 3,064.30 FEET TO THE TRUE POINT OF BEGINNING.
ALSO EXCEPTING THEREFROM THAT PORTION OF SAID LOT 43 DESCRIBED AS
FOLLOWS:
COMMENCING AT THE EAST QUARTER CORNER OF FRACTIONAL SECTION 20,
TOWNSHIP 18 SOUTH, RANGE I WEST, SAN BERNARDINO MERIDIAN, AS SHOWN
ON OTAY INDUSTRIAL PARK, MAP NO. 8147, FILED IN THE OFFICE OF THE COUNTY
RECORDER; THENCE ALONG THE EASTERLY LINE OF SAID FRACTIONAL SECTION
20, BEING ALSO THE WESTERLY BOUNDARY LINE OF SAID OT A Y RANCH, NORTH
18037'06" WEST 650.00 FEET TO THE TRUE POINT OF BEGINNING; THENCE LEAVING
SAID RANCH BOUNDARY NORTH 71022'54" EAST 55.00 FEET; THENCE LEAVING
SAID RANCH BOUNDARY NORTH 71022'54" EAST 55.00 FEET; THENCE NORTH
18037'06" WEST, PARALLEL WITH SAID RANCH BOUNDARY LINE 200.00 FEET;
THENCE SOUTH 71022'54" WEST 55.00 FEET TO SAID RANCH BOUNDARY LINE;
THENCE ALONG SAID LINE SOUTH 18037'06" EAST 200.00 FEET TO SAID POINT OF
BEGINNING.
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ALSO EXCEPTING THEREFROM THAT PORTION OF SAID LOT 43 DESCRIBED AS
FOLLOWS:
BEGINNING AT A POINT ON THE WESTERLY RANCH OTAY BOUNDARY DISTANT
SOUTH 18037'10" EAST 499.12 FEET ALONG SAID OTAY RANCH BOUNDARY FROM
THE SOUTHEAST CORNER OF LOT 17 OF MAP NO. 8147; THENCE LEAVING SAID
OTAY RANCH BOUNDARY EASTERLY ALONG A NON-TANGENT CURVE, CONCAVE
SOUTHERLY AND HAVING A RADIUS OF 157.00 FEET, A RADIAL TO SAID POINT
BEARS NORTH 34056'19" WEST; THENCE ALONG SAID CURVE THROUGH A
CENTRAL ANGLE OF 49041 '39" AN ARC LENGTH OF 136.17 FEET; THENCE TANGENT
TO SAID CURVE SOUTH 75014'40" EAST 179.58 FEET; THENCE SOUTH ]4045'20"
WEST 62.00 FEET; THENCE NORTH 75014'40" WEST 45.61 FEET TO THE BEGINNING
OF A TANGENT 95.00 FOOT RADIUS CURVE CONCAVE SOUTHERLY; THENCE
WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF
107028'43" A LENGTH OF 178.21 FEET TO A POINT ON THE NORTHERLY LINE OF
SAID LOT 44 OF OTAY RANCH; THENCE DEPARTING THE ARC OF SAID CURVE
NON-RADIALLY SOUTH 71058'08" WEST 9.63 FEET ALONG THE NORTHERLY LINE
OF SAID LOT 44 TO THE EASTERLY LINE OF THAT EASEMENT FOR COUNTY
HIGHWAY RECORDED APRIL 9,1979 AS DOCUMENT NO. 79-144675; THENCE NORTH
18037'10" WEST 78.39 FEET ALONG THE EASTERLY LINE OF SAID EASEMENT FOR
COUNTY HIGHWAY; THENCE SOUTH 71022'50" WEST 55.00 FEET ALONG THE
NORTHERLY LINE OF SAID EASEMENT FOR COUNTY HIGHWAY TO A POINT OF
INTERSECTION WITH SAID RANCH BOUNDARY; THENCE ALONG SAID RANCH
BOUNDARY NORTH 18037'10" WEST 119.86 FEET TO THE POINT OF BEGINNING.
PARCEL I:
PARCEL 3 OF PARCEL MAP NO. 19923, IN THE CITY OF CHULA VISTA, COUNTY OF
SAN DIEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, JANUARY 18,2006.
PARCEL H:
PARCEL 4 OF PARCEL MAP NO. 20264, IN THE CITY OF CHULA VISTA, COUNTY OF
SAN DIEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, JUNE 1,2007.
PARCEL H:
PARCELS 1 AND 3 OF PARCEL MAP NO. 20264, IN THE CITY OF CHULA VISTA,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY, JUNE 1,2007.
PARCEL H:
PARCEL 2 OF PARCEL MAP NO. 20264, IN THE CITY OF CHULA VISTA, COUNTY OF
SAN DIEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, JUNE 1,2007.
25
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PARCEL G:
LOTS 25 AND 26 IN OTAY RANCHO, IN THE CITY OF CHULA VISTA, COUNTY OF
SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 862, FILED
IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, FEBRUARY 7,
1900.
EXCEPTING THEREFROM THAT PORTION OF SAID LOT 25 CONVEYED TO THE
STATE OF CALIFORNIA BY DEED RECORDED JUNE 21,2006 AS DOCUMENT NO.
2006-0437364.
PARCELG:
LOTS 23 AND 24 OF OTAY RANCHO, IN THE CITY OF CHULA VISTA, COUNTY OF
SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 862, FILED
IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, FEBRUARY 7,
1900.
EXCEPTING THEREFROM THAT PORTION OF SAID LOT 24 CONVEYED BY SAN
DIEGO LAND COMPANY TO THE SOUTHERN CALIFORNIA MOUNTAIN WATER
COMPANY, BY DEED DATED APRIL 1 1,1912 RECORDED JUNE 24,1912 IN BOOK 570,
PAGE 113 OF DEEDS, RECORDS OF SAN DIEGO COUNTY; THE PARCELS OF LAND SO
CONVEYED TO SAID WATER COMPANY BEING THE SOUTH 492.5 FEET OF THE
EAST 506 FEET OF LOT 4 OF SAID OTAY RANCHO AND STRIPS OF LAND VARYING
IN WIDTH FROM 100 FEET TO 50 FEET FOLLOWING THE LINE OF THE RIGHT OF
WAY OF THE OTAY-SAN DIEGO PIPE LINE AND THE LINE OF THE RIGHT OF WAY
OF THE OTAY-CORONADO PIPE LINE, AS DESCRIBED IN SAID DEED AND SHOWN
ON THE MAPS WHICH ARE ATTACHED TO AND MADE A PART OF SAID
INSTRUMENT, REFERENCE BEING HEREBY MADE TO THE RECORD OF SAID
INSTRUMENT FOR A MORE PARTICULAR DESCRIPTION OF SAID PARCELS.
ALSO EXCEPTING THEREFROM THAT PORTION OF SAID LOT 23 LYING WITHIN
CHULA VISTA TRACT NO. 05-07 MC MILLIN OTAY RANCH VILLAGE 7 "A" MAP,
ACCORDING TO MAP THEREOF NO. 15014, FILED IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, MAY 6, 2005.
FURTHER EXCEPTING THEREFROM THAT PORTION OF SAID LOTS 23 AND 24
CONVEYED TO THE STATE OF CALIFORNIA BY DEED RECORDED JUNE 21, 2006 AS
DOCUMENT NO. 2006-0437364.
PARCEL H:
THAT PORTION OF LOTS 34, 35, 36 AND 37 OF OTAY RANCHO, IN THE CITY OF
CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO
MAP THEREOF NO. 862, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN
DIEGO COUNTY, FEBRUARY 7, 1900 MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
2-5f
BEGINNING AT A POINT ON THE WESTERLY LINE OF SAID LOT 34 WHICH LIES
1,350.00 FEET NORTHERLY ALONG SAID WESTERLY LINE FROM THE SOUTHWEST
CORNER OF SAID LOT 34; THENCE NORTHEASTERLY 1,000.00 FEET PARALLEL
WITH THE SOUTHERLY LINE OF SAID LOT 34; THENCE SOUTHEASTERLY 1,350.00
FEET MORE OR LESS PARALLEL TO SAID WESTERLY LINE TO A POINT ON SAID
SOUTHERLY LINE; THENCE SOUTHWESTERLY TO A POINT IN THE WESTERLY LINE
OF SAID LOT 35 THAT LIES 900.00 FEET SOUTHERLY ALONG SAID WESTERLY LINE
FROM THE NORTHWEST CORNER OF SAID LOT 35 AS MEASURED ALONG SAID
WESTERLY LINE; THENCE WESTERLY TO A POINT IN THE WESTERLY LINE OF
SAID LOT 37 THAT LIES 500.00 FEET NORTHERLY OF THE SOUTHWEST CORNER OF
SAID LOT 37 AS MEASURED ALONG SAID WESTERLY LINE; THENCE NORTHERLY
TO A POINT WHICH LIES 1,400.00 FEET EASTERLY OF, MEASURED AT RIGHT
ANGLES TO, THE WESTERLY LINE OF SAID LOT 37 AND 800.00 FEET SOUTHERLY
OF, MEASURED AT RIGHT ANGLES TO, THE NORTHERLY LINE OF SAID LOT 37;
THENCE EASTERLY TO THE POINT OF BEGINNING.
OTAY RANCH VILLAGES 9 AND 10
PORTIONS OF PARCELS E AND F:
LOTS 13 AND 14 OF OTA Y RANCHO, IN THE CITY OF CHULA VISTA, COUNTY OF
SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 862, FILED
IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, FEBRUARY 7,
1900.
EXCEPTING THEREFROM THAT PORTION OF LOT 14 OF OT A Y RANCHO,
CONVEYED BY SAN DIEGO LAND COMPANY TO THE SOUTHERN CALIFORNIA
MOUNTAIN WATER COMPANY, BY DEED DATED APRIL II, 1912 AND RECORDED
JUNE 24,1912 IN BOOK 570, PAGE 113 OF DEEDS.
PORTIONS OF PARCELS E AND F:
LOT 15 OF OT A Y RANCHO, IN THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO,
STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 862, FILED IN THE
OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, FEBRUARY 7, 1900.
17
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EXHIBIT D
DEVELOPMENT AGREEMENT PROVISIONS
1. Term. The following language shall be added after the phrase "twenty (20) years" and before
the phrase "(the term)" in the fourth sentence of Section 3 of the existing Development Agreement:
"from , 20-, the date upon which the City may accept the
Offers of Dedication in Sections 3.3 of that certain "Land Offer Agreement" by and
between the City and OV Three Two, liC; JJJ & K Investments Two, liC; and
RR Quarry, liC, approved by the City Council on ,2008."
2. Tentative Map/Pennit Duration. Section 6.2 of the existing Development Agreement,
entided "Length of Validity of Tentative Subdivision Maps," is hereby deleted in its entirety and
replaced with the following:
"6.2 Tentative Man/Permit Duration. Pursuant to California Government Code
section 66452.6, any tentative subdivision map, parcel map or other map authorized
by the State Subdivision Map Act that is approved for the Project shall remain valid
for a period of time equal to a term of this Agreement. In addition, notwithstanding
any condition or provision to the contrary, every permit and approval for the Project
other than ministerial approvals shall remain valid for a period of time equal to the
term of this Agreement."
3. Growth. The second full paragraph of Section 5.2 appearing at page 8 of the
existing Development Agreement, entided "Development of Property," which begins
HNotwithstanding the foregoing," shall be deleted in its entirety and replaced with the folloVling:
"Notwithstanding any provision of this Agreement to the contrary, the City's Growth
Management program, as set forth in the Growth Management Element of the City's
General Plan, applicable to the Project shall be those in effect on the date the City
approves the Land Offer Agreement referenced in Section 3 hereof."
4. Modifications to Existing Project Approvals. The following sentence shall be added
to the end of Section 5.2.3 of the existing Development Agreement:
"The parties agree that they accept the modifications to the Existing Project
Approvals approved by the City Council on ________________ , 20 ."
5. Reimbursement. At the end of the frrst sentence of Section 7.5 of the existing
Development Agreement, entided "Facilities Which are the Obligations of Another Party, or
are of Excessive Size, Capacity, Length or Number," a new sentence shall be inserted as
follows:
101071974.2
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"City shall not require such monies or improvements unless City provides
reasonable assurance of funding or reimbursement in accordance with State law
and/or the City's ordinances."
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C8 PARK
@ SCHOOL
@ COMMUNITY USE
(J) TRANSIT STOP
AREA
1
2
3
TOTALS
EXHIBIT liE' LAND USE PLAN
VILLAGE 3
PARCELl
AREA 3
AREA 2
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VILLAGE 3
LAND USE/ DISTRICT GROSS ACRES
MH 20
LM 121
IND 74
215
DU GROSS DU/ACRE
360 18
484 4
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EXHIBIT "E' LAND USE PLAN
VILLAGE 4
PARCEL H
V
AREA 2
AREA 1
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AREA
1
2
LAND USE! DISTIlICT
MH
LM
NET ACRES
31
26
DU GROSS DU/ACRE
620 20
130 5
TOTALS
57
750
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EXHIBIT 'E" LAND USE PLAN
VILLAGE 8
PARCEL G
AREA 2
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AREA 1
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@ SCHOOL
@ COMMUNITY USE
(J) TRANSIT STOP
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[ AREA 4
AREA 5
AREA 6
VIUAGE 8
AREA
1
2
3
4
5
6
TOTALS
lAND USE! DISTRICT
MH
MH
MH
L.M
L.M
ACTIVE REC/COMM PARK
GROSS ACRES
45
75
25
22
51
41
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1 D80 24
1320 18
450 18
188 8
(1)
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(1) THIS AREA IS SUBJECT TO MSCP BOUNDARY ADJUSTMENT. IF OWNER IS SUCCESSFUL
IN MODIFYING THE BOUNDARY, 307 UNITS WILL BE TRANSFERRED FROM AREA 1 ANDIOR AREA 2 TO AREA 5.
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PARCEL C
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VILLAGE 9/10
AREA LAND USE/ DISTRICT GROSS ACRES
1 MH 70
2 LM 40
3 LM 50
4 LM 10
5 UN~ ~
TOTALS 465 2650
(1) UP TO 360 UNITS FROM AREA 2 WILL BE TRANSFERED TO PARCELS A,B,C AND/OR D
( SEE EXHIBIT I) PURSUANT TO PARAGRAGH 4.3.2 OF THE AGREEMENT
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600 15
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EXHIBIT F
Recording Requested by
and Please Return to:
City Clerk
City of Chula Vista
P.o. Box 1087
Chub Vista, California 91912
This Instrument Benefits City Only
No Fee Required
This Space jOr Recorder' s Use Only
APN(s)
c.v. File No.
IRREVOCABLE OFFER
OF DEDICATION OF FEE INTEREST
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, OV THREE
TWO, LLC; JJJ&K INVESTMENTS TWO, LLC; RR QUARRY, LLC represent that, as the owner of
the herein-described real property, hereby makes an Irrevocable Offer of Dedication of fee interest to
THE CITY OP CHULA VISTA, A MUNICIPAL CORPORATION ("City"), the hereinafter described
real property for the following public purpose:
FOR HIGHER EDUCATION AND RELATED COMPATIBLE
USES, ACTIVE PUBLIC RECREATION, QUASI PUBLIC AND
ALL OTHER USES INCLUDING RESIDENTIAL USES,
INDUSTRIAL AND COMMERCIAL.
The property referred to above is situated in the City of Chula Vista, County of San Diego, State of
California and is more particularly described on Exhibit "A" attached hereto and incorporated herein by
this reference the ("Property").
This Offer of Dedication is made pursuant to Section 7050 of the Government Code of the State of
California and the terms and conditions of that certain Land Offer Agreement by and between Owner
and City dated April 7, 2008, which Land Offer Agreement is incorporated herein by reference.
This Offer of Dedication may be accepted by the City Clerk of the City of Chula Vista only in
accordance with the Land Offer Agreement.
This Offer of Dedication of fee interest shall be irrevocable and shall be binding on the Owner, its heirs,
executors, administrators, successors and assigns.
- 1 -
f? --Lf3
EXHIBIT F
Pursuant to Article 2 of the Land Offer Agreement, following the City's acceptance of this Offer of
Dedication, Owner shall retain certain rights to repurchase all or a portion of the Property ("Repurchase
Rights") for the term specified in Section 2.1 of the Land Offer Agreement. It is the intention of the
parties that the Repurchase Rights shall be covenants running with the land pursuant to applicable law,
including, but not limited to Section 1468 of the Civil Code of the State of California. The City and
Owner agree that each of the limitations, covenants, conditions, and restrictions contained herein, and
as incorporated by reference from the Land Offer Agreement (i) is for the benefit of certain real
property described on Exhibit "B" attached hereto and incorporated herein (the "Benefited Property")
and is a burden upon the Property, (ii) attaches to and runs with the Property and the Benefited
Property, (iii) benefits each successor owner during its ownership of the Benefited Property or any
portion thereof, and (iv) is binding upon each successor owner during its ownership of the Property or
any portion thereof, and each owner having any interest therein detived in any manner through any
owner of the Property or any portion thereof, whether by operation of law or any manner whatsoever.
Notwithstanding the foregoing, Owner may elect from time to time, in accordance with the terms of the
Land Offer Agreement, by a duly recorded document to remove any portion of the Benefited Property
from the benefit of the covenants set forth herein.
[SIGNATURES ON FOLLOWING PAGE]
- 2-
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EXHIBIT F
SIGNATURE PAGE TO
IRREVOCABLE OFFER
OF DEDICATION OF FEE INTEREST
IN WITNESS WHEREOF, the parties hereto have executed this Irrevocable Offer of
Dedication of Fee Interest on the day and year fIrst set forth above.
CITY OF CHULA VISTA, a political
subdivision of the State of California
OTA Y LAND COMPANY, LLC,
a Delaware limited liability company
By:
Curt Noland, Vice President
By:
Its:
Donna Norris, Interim City Clerk
APPROVED AS TO FORM
EXECUTED BY
Ann Y. Moore, City Attorney
Cheryl Cox, Mayor
101086936.1
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EXHIBIT F
This is the IOD with
Corrected Signature Pages
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EXHIBIT F
Recording Requested by
and Please futurn to:
City Clerk
City of Chula Vista
P.O. Box 1087
Chub Vista, California 91912
This InJtrument Benefits City Only
No Fee fuquired
This Space for Recorder's Use Only
APN(s)
C.V. File No.
IRREVOCABLE OFFER
OF DEDICATION OF FEE INTEREST
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, OV THREE
TWO, LLC; JJJ&K INVESTMENTS TWO, LLC; RR QUARRY, LLC represent that, as the owner of
the herein-described real property, hereby makes an Irrevocable Offer of Dedication of fee interest to
THE CITY OP CHULA VISTA, A MUNICIPAL CORPORATION ("City"), the hereinafter described
real property for the following public purpose:
FOR HIGHER EDUCATION AND RELATED COMPATIBLE
USES, ACTIVE PUBLIC RECREATION, QUASI PUBLIC AND
ALL OTHER USES INCLUDING RESIDENTIAL USES,
INDUSTRIAL AND COMMERCIAL.
The property referred to above is situated in the City of Chula Vista, County of San Diego, State of
California and is more particularly described on Exhibit "A" attached hereto and incorporated herein by
this reference the ("Property").
This Offer of Dedication is made pursuant to Section 7050 of the Government Code of the State of
California and the terms and conditions of that certain Land Offer Agreement by and between Owner
and City dated April 7, 2008, which Land Offer Agreement is incorporated herein by reference.
This Offer of Dedication may be accepted by the City Clerk of the City of Chula Vista only in
accordance with the Land Offer Agreement.
This Offer of Dedication of fee interest shall be irrevocable and shall be binding on the Owner, its heirs,
executors, administrators, successors and assigns.
-1- CZ-L/7
EXHIBIT F
Pursuant to Article 2 of the Land Offer Agreement, following the City's acceptance of this Offer of
Dedication, Owner shall retain certain rights to repurchase all or a portion of the Property ("Repurchase
Rights") for the term specified in Section 2.1 of the Land Offer Agreement. It is the intention of the
parties that the Repurchase Rights shall be covenants running witb tbe land pursuant to applicable law,
including, but not limited to Section 1468 of the Civil Code of the State of California. The City and
Owner agree that each of the limitations, covenants, conditions, and restrictions contained herein, and
as incorporated by reference from the Land Offer Agreement (i) is for the benefit of certain real
property described on Exhibit "B" attached hereto and incorporated herein (the "Benefited Property")
and is a burden upon the Property, (ii) attaches to and runs with the Property and the Benefited
Property, (iii) benefits each successor owner during its ownership of the Benefited Property or any
portion thereof, and (iv) is binding upon each successor owner during its ownership of the Property or
any portion thereof, and each owner having any interest therein derived in any manner through any
owner of the Property or any portion thereof, whether by operation ofllw or any manner whatsoever.
Notwithstanding the foregoing, Owner may elect from time to time, in accordance with the terms of the
Land Offer Agreement, by a duly recorded document to remove any portion of the Benefited Property
from the benefit of the covenants set forth herein.
[SIGNATURES ON FOLLOWING PAGE]
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.2.
EXHIBIT F
This is to certify that the interest in real property offered herein to the City of Chula Vista, a
governmental agency, is hereby acknowledged by the undersigned, City Clerk" on behalf of the Chula
Vista City Council pursuant to authority conferred by Resolution No. of the Chula Vista City
Council adopted on , 2008, and the grantees consent to the recordation thereof by its
duly authorized officer.
DONNA NORRIS
INTERc\1 CITY CLERK
By:
Date:
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OV THREE TWO, Ll,C
" Uel~waro limHed Liability Company,
By: OV THIlER Oi'l1l, LLe.
a Delaware limitod Unbility Company,
Ir's Managing Member
!;y: Ollly Village Thre. lavO$llnents. LP,
a Delaware limitttct partnership,
It' s M.naSin~ M omber
8y:
iC
JJJ&K INVIlSTMENTS l'WO. LLe.
a Delaware limited l.iability Conwal\Y
By:
./.IJ&K INV&STMENTS ONE, LLC,
^ Deleware limited LiabUity Com""",,
lt~s Millmgio.g, Mem.~
By: .1,1J&K INYESTMENT$, LP.
A Del;J.w~t"r. Ihl11t~d part(l~rship
It's Managing Member
B,:
RR Qu.rry. LLC,
A. Dcl4warc limiled I..lnbility Company
Robert R Cameron
It's. Vice Presidenl
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EXHIBIT G
AGREEMENT OF PURCHASE AND SALE
AND ESCROW INSTRUCTIONS
TO:
THIS AGREEMENT OF
and entered into
between
"SELLER"), and
"Buyer") .
PURCHASE AND SALE AND ESCROW
this day of
TNSTRUCTTONS is mAd",
by and
(hereinafter
(hereinafter
RECITALS
SELLER is the owner of certain real property located in the County
of San Diego, State of California, containing approximately 45
acres, as legally described on Exhibit "1" attached hereto
("Property") .
AGREEMENT
NOW, THEREFORE, in consideration of the covenants and promises
contained herein, the parties agree as follows:
1. PURCHASE OF PROPERTY
SELLER agrees to sell the Property to Buyer and Buyer agrees
to purchase the Property, upon the terms and conditions herein
contained.
2. PURCHASE PRICE
The purchase price for the Property to be paid by Buyer SHALL
BE Dollars
($ ) .
3. TERMS OF PAYMENT OF PURCHASE PRICE
The purchase price shall be paid as follows:
~ CONDITIONS PRECEDENT TO CLOSING
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EXHIBIT G
5. ESCROW
This Agreement constitutes joint escrow instructions to
("Escrow Holder") instructing it to consummate this sale upon
the terms and conditions set forth herein. Escrow Holder
shall be concerned with the provisions of this paragraph and
the paragraphs and subparagraphs below.
(a) Opening. Escrow shall open within three (3) days after
execution of this Agreement by the parties.
(b) Deposit. Upon opening escrow, Buyer shall deposit:
(c) Effective Date. The effective date for all time
requirements under this Agreement shall be the opening of
escrow.
(d) Closing Date. This escrow shall close on or before
(e) Prorations. All ordinary real property taxes levied or
assessed against the Property shall be prorated between
Buyer and SELLER on the basis of the latest bills and
thirty (30) day month (360 day year) as of the close of
escrow.
(f) Payment of Costs. The expenses of escrow described
herein shall be paid in the following manner:
1. Seller shall pay the full cost of preparing,
executing and acknowledging any deeds or other
instruments required to convey title to the Property
to Buyer, any tax that may be imposed on the
conveyance of title to the Property to Buyer under
the Documentary Transfer Tax Act of California, and
one-half of the escrow fees.
2. Buyer shall pay the cost of recording the
Grant Deed or other instrument executed by
SELLER conveying title to the Property to Buyer
and one-half of the escrow fees.
(g) Possession. Possession of the Property shall be
delivered to Buyer on close of escrow.
2
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EXHIBIT G
6. NOTICES
All notes under this Agreement shall be effective upon
personal deliver to SELLER, Buyer, or Escrow Holder, as the
case may be, or forth-eight (48) hours after deposit in the
United States mail, registered or certified mail, postage
fully prepaid, and addressed to the respective parties as
follows:
To SELLER:
To BUYER:
To Escrow Holder:
or to such other address as the parties may from time to time
designate in writing.
7. ACCESS
Buyer shall be entitled to reasonable access to the Property
at any time prior to the close of escrow for the purpose of
making such engineering, surveying, soils, geology and
environmental studies as Buyer may reasonably deem necessary,
all of which will be completed at no expense to SELLER. Buyer
agrees to indemnify and hold SELLER and the Property free and
harmless from any and all liens, costs, liabilities or
expenses incurred in connection with such engineering,
surveying, soils, geology and environmental studies.
8. ATTORNEYS' FEES
In any action between Buyer and SELLER seeking enforcement or
interpretation of any of the terms or provisions of this
Agreement, or in connection with any of the Property described
herein, the prevailing party in such action shall be awarded, in
addition to damages, injunctive or other relief, its
reasonable cost and expenses, not limited to taxable costs,
and reasonable attorneys' fees.
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EXHIBIT G
9. ASSIGNMENT
Buyer shall have the right to assign this Agreement and the
rights and responsibilities under it with the consent of
SELLER, which consent shall not be unreasonably withheld.
10. TIME OF ESSENCE
Time is of the essence in this Agreement.
11. PERFORMANCE OF ACTS
The parties hereto agree to perform
documents as may be required to
purposes of this Agreement.
such acts and execute such
carry out the terms and
12. PROPERTY "AS IS"
Buyer is relying solely upon its own inspections,
investigations and analyses of the Property in entering
into this Agreement and is not relying in any way upon
any representations, statements, agreements, warranties,
studies, reports, descriptions, guidelines or other
information or material furnished by Seller or its
representatives, whether oral or written, express or implies
of any nature whatsoever regarding any such matters. Buyer
acknowledges that it has become familiar with the
Property and made such independent investigations
and analysis as Buyer deems necessary or appropriate
concerning Buyer's proposed use, sale and development of the
Property.
13. MISCELLANEOUS
This Agreement shall be construed in accordance with the laws
of the State of California. This Agreement may be executed in
counterparts. This Agreement shall be binding upon and shall
inure to the benefit of all the parties hereto, their
beneficiaries, successors and assigns.
Headings at the beginning of each numbered section of the
Agreement are solely for the convenience of the parties and
are not a part of this Agreement. This Agreement contains all
of the agreements of the parties hereto with respect to the
matters contained herein and no prior agreement or
understanding pertaining to any such matter shall be effective
for any purpose. No provision of this Agreement may be
amended or added to except by an agreement in writing signed
by the parties hereto or their respective successors in
interest.
(NEXT PAGE IS SIGNATURE PAGE)
4
2- -GL(
EXHIBIT G
SIGNATURE PAGE TO
AGREEMENT OF PURCHASE AND SALE
AND ESCROW INSTRUCTIONS
IN WITNESS WHEREOF, Buyer and SELLER have executed this Agreement
the day and year first above written.
"BUYER"
By
"SELLER"
By
Receipt of executed copy of this Agreement is hereby acknowledged
this day of
By
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PARCEL
A
B
C
D
TOTALS
VILLAGE 9/10
LAND USE! DISTRICT GROSS ACRES
MH 35
LM 25
LM 10
LM 50
120
· PARCELS A AND B WILL BE INCLUDED IN THE ENTITLEMENTS ONLY IF PARCELS C AND D
ARE DEDICATED BY OWNER TO PRESERVE PURSUANT TO PARAGRAPH 4.3.2
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