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2010/08/17 Item 10
CITY COUNCIL AGENDA STATEMENT ~~~ CITY OF CHULA VISTA Item No.• D Meeting Date: 8/17/10 ITEM TITLE: 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; AND JJJ & K INVESTMENTS TWO, LLC; FOR CONVEYANCE OF 160 ACRES TO THE CITY FOR UNIVERSITY/REGIONAL TECHNOLOGY PARK DEVELOPMENT SUBMITTED BY: ASSISTANT CITY MANAG IRECTOR OF DEVELOPMENT SERVICES REVIEWED BY: CITY MANAGERc~7-~~ SS 4/STHS VOTE: YES NO X BACKGROUND On May 20, 2008, the City Council approved a resolution authorizing the Mayor to enter into a Land Offer Agreement (LOA) with JPB Development, LLC identical to the one being proposed with this action, except for two differences. First, one of the properties (Village 4) that was included in the previous LOA is no longer included. Since JPB Development, LLC no longer owns Village 4, this LOA is being proposed so as to include only property owned and controlled by JPB Development, LLC. Second, consistent with not owning Village 4, the 750 dwelling units that were assigned to Village 4 by the current LOA will be deleted from this new LOA. The LOA approved on May 20, 2008 will still be in effect and the 750 units will remain with the Village 4 property. This new LOA reduces the total potential dwelling units envisioned by this LOA for land owned by JPB Development, LLC (aka, OV Three Two, LLC; JJJ & K Investments Two, LLC) from 7,350 to 6,600. The goal of this LOA is the same as the goal the City had with approving the LOA in 2008; that is, to implement the General Plan. One of the key goals of the Chula Vista General Plan is the development of a University/Regional Technology Park. Successful implementation of the LOA would complete the land acquisition necessary to accomplish this goal through°the receipt by the City of 160 acres (100 acres net) of developable land. Under the terms of the proposed LOA, upon approval of entitlements, the property owner would convey 160 acres (100 acres net), which has 10-1 Date, Item No.:~ Meeting Date:_8/17/10 Page 2 of 3 been designated as a portion of the proposed "University/Regional Technology Park" to the City of Chula Vista. ENVIRONMENTAL REVIEW 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 entitlements associated with the land offer agreement will be subject to further environmental review at the time specific projects are proposed. RECOMMENDATION 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. BOARDS/COMMISSION RECOMMENDATION Not Applicable DISCUSSION The major terms of this LOA aze identical to the LOA approved on May 20, 2008. The terms are summarized below: Under the terms of this LOA, if the City approves the requested entitlements within the required timeframes, the City may accept Irrevocable Offers of Dedication (IODs) for 160 acres (100 acres net) of University/Tech Pazk Land. JPB Development provided the City with the IODs pursuant to the eazlier LOA that was approved by the City Council in 2008. In particulaz, as with the previous LOA, this LOA sets forth the terms under which the City may accept the offers of dedication.. In order to accept the IODs, the following must occur: Approval of all stated entitlements for proposed development of their ownership in Villages 3, 8 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 and JJJ & K Investments Two, LLC. In accordance with the LOA the processing of the above entitlements would be completed two years from the date their application is deemed complete. This LOA also provides OV Three Two, LLC and JJJ & K Investments Two, LLC with the option of repurchasing the dedicated University/Tech Pazk property if the City (or subsequent entity) should choose to use the property for non-university/technology park or related purposes. 10-2 Date, Item No.: /(~ Meeting Date:_8/17/10 Page 3 of 3 The repurchase agreement provision expires upon the eazlier 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. This LOA 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. However, the City's ability to accept the IODs is not contingent on the outcome of the negotiations with the wildlife agencies. The LOA 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 Director of Development Services based upon specific requirements. Both City staff and OV Three Two, LLC and JJJ & K Investments Two, LLC; believe these provisions will provide the necessazy flexibility to create better Village plans. The LOA includes a 30-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 Environmental Impact Report (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 and JJJ & K Investments Two, LLC; determines that the proposed conditions would render the project economically infeasible. All of the above described provisions were identical to the provisions of the LOA approved by the City Council in 2008. It is also important to note that the City Council and Planning Commission have full discretionary authority to consider the proposed plan changes at the time they aze presented in a public heazing, with benefit of a final EIR and staff analysis. The City has no obligation to process the requested entitlements in the time frame requested or approve the requested entitlements. 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 LOA. ATTACFIMENTS Draft Land Offer Agreement (including exhibits) Prepared by: Tony Lettieri, Project Manager, Development Services Department 10-3 THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL Dated: ~ (~ UNIVERSITY VILLAGES/OTAY RANCH PROJECT STAFFING AND PROCESSING AGREEMENT (OTAY RANCH PROJECT) BETWEEN THE CITY OF CHULA VISTA, AND JJ&K INVESTMENTS TWO, LLC; OV THREE TWO, LLC 10-4 REQUEST Clerk EN RECORDED MAIL, TO: Y OF CHiJi.A VISTA Fourth Avenue la Vista, CA 91910 Above Space fox Recorder s Use LAND OFFER AGRZ~T 'This Land Offer Agreement ("Agxeement'~ is entered into to be effective as of 2008, by and between JJf&x Investments Two, LLC and OV Three Two, both Delaware limited liability companies (" referred to collectively as "Ownex'~ and the City of Chula Vista, a political subdivision of the State of California ("City"). RECITALS A. Ckvnex, 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, 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 fox the development of a faality fox higher education and other compatible land uses as desmbed herein ("University Pxopexty'~ 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 entitlements fox the Reconfigured Property that requires processing and discretionary review by the City. G.` Owner and City by entering into this Agreement shall set forth the terms and conditions precedent for Owners conveyance and City's acceptance of the University Property, as well as the process fox the City's consideration of certain development entitlements fox the Reconfigured Property. H. Owner and City axe also parties to that certain Land Offer Agreement , dated May 20,2008, that was recorded against both the Property and additional property commonly referred to as Otay Ranch Village 4 (the Village 4 Property"). The Village 4 property is no longer owned in its entirety by the Owner and is not included in this Agreement. 10-5 NOW, THEREFORE, in consideration of the above recitals and of the mutual covenants hereinafter contained and fox other good and valuable consideration, the receipt and sufficienry ofwhich 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 defined below. These specially defined terms axe distinguished by having the initial letter capitalized, when used in this Agreement. The defined terms include the following: "Development Agxeemenu" means the Restated and Amended. Pre-Axmexation Development Agreement between the City and Jewels of Charity recorded August 6, 1996, Restated and Amended Pre-Anne~cation Development Agreement between the City and SNMB, LTD recorded August 6, 1996, and Restated and Amended Pre-Anne~ration Development Agreement between the City and United Enterprises recorded August 6, 1996. "Effective Date" means the date set forth in 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 6600 as the maximum number of residential units to be permitted fox development,.; (ii) Sectional Plannarg Area Plans. ("SPA Plans' fox the Reconfigured Property designating the permitted land uses, densities and intensities of development, which aze in substantial compliance with the Land Use Plan depicted on Exhibit "E' ; (iii) tentative subdivision maps to 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 fox the discretionary actions outlined in items (i),(ii) and (iii) above. "First Land Offer Agreement" means that certain agreement entered into between JJJ&I{ Investments Two, LLC; OV Three Two, LLC; and RR Quarry, LLC, all Delaware limited liability companies and the City, dated May 20, 2008. "Growth Pxogxam" means the City policies and standards intended to regulate the timing and phasing or rate of growth within the Citp, as set forth in the City's Growth Management Element of the City's General Plan in effect as of the Effective Date of this Agreement. "Hazardous Materials" means any substance, material ox waste which is ox 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 W35te", "sludge", "haZazdOUS W&SYC ', "extremely hazazdOUS waste", "TeStncted hazazdOUS waste", "Non-RCRA hazardous waste," "RCRA hazazdous waste", ox "reryclable material' under any federal, state ox local statue, regulation ar ordinance, including without ]imitation 2 10-6 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", ox "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 ox synthetic fuels, (viii) materials defined as hazardous ox extremely hazardous pursuant to the California Code of Regulations; (ix) polychlorinated biphenyls; (x) defined as a "Hazardous Substance" pursuant to Section 311. of the Federal Water Pollution Control Act (33 U.S.C. Section .1251, et reg.); (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 req., (xii) defined as a "Hazardous Substance" ox "Mixed Waste" pursuant to Section 101 of the Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. Section 9601, et req. 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) defined as an "Extremely Hazazdous Substance" pursuant to Section 302 of the Supexfund Amendments and Reauthorizations Act of 1986, 42 U.S.C. Section 11002, et req. "Irrevocable Offer of Dedication/ Offer of Dedication" means the document, attached as Exhibit "F," that allows fox 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 timing and processing of the Entitlements will be set forth therein. "Project" means the development of the Reconfigured Property consistent with the provisions of the Entitlements, 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. "Reconfigured Property" means the property described and shown in attached Exhibit "C". "Term" shall mean the period of time from the Effective Date until the termination of this Agreement as set forth in Pazagxaph 4.3. "Third Party Litigation" means any claim, action, referendum ox proceeding filed and served against the City and/or Owner by anyone not a party to this Agreement ox their agents ox successors in interest to challenge, set aside, void ox annul the approval of this Agreement ox the Entitlements, including without limitation, attacks upon California Environmental Quality Act compliance. "University Property" means the real property as shown on attached Exhibit "B". 1D-7 ARTICLE 2 OFFER OF DEDICATION AND THE FIRST LAND OFFER AGREEMENT 2.1 First Land Offer Agreement. This Agreement supersedes the First Land Offer Agreement as between Owner and City and the Parties agree that the provisions of this Agreement shall prevail with respect to the City's ability to accept the Irrevocable Offer(s) of Dedication for the University Pxoperry. The Parties acknowledge that the legal description included in the Irrevocable Offers of Dedication attached hereto as Exhibit F included more property than the 160 acre University Property. At such time as Owner provides a replacement Irrevocable Offer of Dedication with a correct legal description fox only the University Property, City covenants and agrees that it shall vacate the recorded Ixxevocable Offer of Dedication and record the replacement Ixxevocable Offer of Dedication against only the University Property provided said University Property is subject to only those same exceptions to title that were identified as Permitted Exceptions in paragraph 2.7 below. The Owner owns the University Pxopexry and would like to proceed with the entitlement process fox Villages 3, 8, 9 and 10 of the Otay Ranch Project. Owner no longer owns all of the Village 4 Property. Owner and City acknowledge that nothing in this Agreement shall affect the rights of the owner of the Village 4 Pxopexry to seek land use entitlements from the City pursuant to the First Land Offer Agreement. Ownefi agrees not to interfere or take any action to prevent the owners of the Village 4 Property from processing said entitlements but retains the right to comment on any proposal by the owner of the Village 4 Property that could have an adverse impact on the Project and to enforce any rights Owner may have under that certain Declaration of Use Restrictions fox Otay Ranch Village Foux, Chula Vista, California recorded in the official records of San Diego County as document number 2007-0392805 on June 11, 2007. Notwithstanding the foregoing, Owner understands and agrees that the City's acceptance of 'the Ixxevocable Offer(s) of Dedication fox the University Property is not subject to the City's approval of any entitlements fox the Village 4 Property. 2.2 Offer of Dedication. Ownex~concuxrently with the execution of the First Land Offer Agreement, submitted to the City an Ixxevocable Offer(s). of Dedication, fox the University Property that allowed fox the use of the University Property fox 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 fox the University Pxoperiy are referred to collectively as the "Permitted Uses". Notwithstanding the foregoing, in the event the City determines that the University Property ox a portion thereof, will be developed fox any Permitted Uses other than (i) higher educational uses, including a university campus; (ii) university-related housing (student and/ox faculty housing); (iii) a regional technology pazk ox campus intended to attract and promote a university; or (iv) uses ancillary to a university, such as a bookstore, coffee house ox 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- univexsity Development"), Owner shall have the right to repurchase that portion of the University Property proposed fox Non-university Development in accordance with the 4 ~~-8 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;) ox (ii) 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 ox a portion of the University Property in accordance with Paxagxaph 2.4. The Repurchase Right was included in the Irrevocable Offer(s) of Dedication that was recorded concurrently with the recordation of the First Land Offer Agreement and is a covenant running with the University Property. Owner hereby represents to the City, that the property owners of Village 4 have no property interests in the University Property. Notwithstanding any provisions of the First Land Offer Agreement, Owner hereby agzees that the City may accept the Irrevocable Offer(s) of Dedication subject only to the terms of this Agreement. 2.3 Offer to Purchase. In the event the Repurchase Right is triggered in accordance with Paragraph 2.2, the City shall promptly offer to sell that portion proposed fox Non-university Development to Owner ("Offer to Purchase"). The Offer to Purchase shall include the following: (i) Purchase Price (fair market value, subject to Paxagxaph 2.3(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 foxxn attached hereto as Exhibit "G". (iv) If the pasties do not agree on the fair market value of that portion of the University Property proposed fox Non-university Development, then the fair market value of said property shall be determined by an appraiser acceptable to both parties. If the pazties axe unable to agree on an appraiser within ten (10) daps after the City delivers the Offer to Purchase to Owner ("Delivery Date"), within twenty (20) days after the Delivery Date, each party shall each name an. appraiser who is a member of MAI ox 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 appraises within such period, and such failure continues fox more than five (5) days following written notice from the other pazty, the,appxaisex 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' deternnation of the fair market value of said property is within ten percent (10%) of each other, when 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 appraises within ten (10) days afrer issuance of their appraisal reports, ("Deciding Appraiser") meeting the same qualifications and who has no 1~-9 preexisting material financial ox business relationship with either of the appraisers, City ox 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 fox the appointment of an arbitrator pursuant to California Code of Civil Procedure section 1281.6. The Deciding Appraiser may not receive ox consider the appraisals prepared by the other two (2) appraisers. The Deciding Appraiser will deliver its report to the parties within thirty (30) days after its appointment and the fair market value of said property will be either: (i) if the fair market value detexxnined by the Deciding Appraiser is between the values determined by the first two (2) appraisers, the azithmetic average of the two (2) appraisals that aze closest to each other; ox, (ii) if the fair mazket value determined by the Deciding Appraiser is higher ox 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 fox the fees and expenses of any appraiser named solely by that pazty. Each party shall bear its own expenses in presenting evidence to the appraisers. The determination of fair mazket value by the appraiser(s) shall be final and binding on the parties. NOTICE: BY INITIALING IN THE SPACE BELOW, YOU ARE AGREEING TO HAVE THE DETERMINATION OF THE FAIR M~Rx>~ r VALUE OF THAT PORTION OF THE UNIVERSITY PROPERTY PROPOSED FOR NON-UNIVERSITY DEVELOPMENT AS PROVIDED IN THIS PARAGRAPH 2.3 (iv) DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA 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 2.3 (iv). IF YOU REFUSE TO SUBMIT TO ARBITRATION AS SET FORTH HEREIN AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUIZ-IORITY OF THE CALIFORNIA CODE OF CIVIL, PROCEDURE. YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY. YOU HAVE READ AND UNDERSTOOD THE FOREGOING AND AGREE TO SUBMIT DISPUTES ARISING OUT OF THIS PARAGRAPH 2.3(iv) TO NEUTRAL ARBITRATION. CITY'S INITIALS: OWNER'S INITIALS: 6 ~0-7~ 2.4 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 cannot agree on the Purchase Price within twenty (20) days after the City delivers the Offer to Purchase to Ckvner, the Purchase Price shall be determined in accordance with Paragraph 2.3(iv). Owner shall have ten (10) days from the date Owner is notified of the final determination of fau market value pursuant to Paragraph 2.3(iv) within which to notify the City whether it intends to exercise its Repurchase Right. If Owner declines to exercise the Repurchase Right ox fails to timely notify City of its detemunation, the Repurchase Right shall be terminated as to that portion of the University Property proposed fox Non-university Development In such event, the City shall have a right to proceed with the proposed development ox sale at the same ox higher price than that set forth in the Offer to Purchase, and equivalent terms. Thereafter, if the City decades 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 concuxxendy 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 ox a portion of the University Property. 2.4.1 Effect of Conveyance 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. Fos example, if Owner conveys to a developer thirty percent (30%) of the Reconfigured Property, the Repurchase Right shall terminate as to the thirty 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 any one 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. 2.4.2 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 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. 1Q-11 2.5. Execution of Offer. If the Owner exercises the Repurchase Right fox that portion of the University Property proposed fox 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 Pazagraph 2.2 (iv). 2.6. Title Insurance. Owner has obtained, at its expense, title insurance naming the City as the insured and, guazanteeing fee title, subject to any exceptions ox conditions approved by the City, fox 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 of the First Land Offer Agreement. Owner shall maintain said tide insurance fox the University Property in full force and effect until the City has accepted the Irrevocable Offers of Dedications fox the University Property pursuant to the provisions of this Agreement. Owner shall provide the City with proof of said tide insurance concurrent with execution of this Agreement. 2.7. Encumbrances. The Owner or successors-in-interest to Owner, may place liens, encumbrances and other dde exceptions on the University Property and Owner's Exchange Property, up until the time frames set forth herein fox the respective properties; provided, however such liens, encumbrances, and other exceptions to tide aze removed from the dde to said properties in accordance with the terms of this Agreement. Chvnex 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 pxiox to the City's acceptance of the:Offex 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 fox development of the Project which do not materially interfere with the intended use of the University Property ox' Owner's Exchange Properties fox the Pemutted 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), (5), (4), and, (14) of Preliminary Title Report, pxepazed by Chicago Tide Company, dated August 5, 2010, and. axe referred to as the "Permitted Exceptions'. 1n addition, Owner shall not pledge the rights to this Agreement as security fox any of its other obligations. 2.8 Removal of Encumbrances. No latex 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 ox otherwise demonstrate, to City's satisfaction, an irrevocable commitment and ability to remove said dde matters immediately upon approval of the entitlements. Owner shall provide the City with an updated Tide Report fox the University Property and Owner's Exchange Property five (5) calendar days pxiox to the last public hearing fox 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 8 10-12 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 fox the Entitlements shall be considered withdrawn by the Owner. 2.9. 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 fox the Entitlements with an update of the Phase One Hazazdous Waste Report fox the respective properties by the same professional firm. Owner shall be responsible fox 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 cleaz of any environmental condition which would be a violation of any applicable federal, state ox local law, ordinance ox regulation relating to Hazardous Materials. Owner further understands and agrees that Owner, in addition to any obligations as the property owner, is fully responsible fox the administration and oversight of the environmental condition of the University Property until the City has accepted the Offer of Dedication fox the University Property. If after the City's review of the updated Phase One Hazazdous Waste Report fox said properties, the City determines the environmental condition of the University Property is not acceptable to the City, Owner may, in its discretion, cute 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 fox the Entitlements shall be cancelled. 2.10 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 Director of Development Services may approve, in his ox her discretion, any uansfex of units more than fifteen percent (15%) ox any transfer of units to another village within Otay Ranch but not within the Project, if all of the following requirements axe satisfied: (i) The txansfex of units between villages is consistent with the village design policies and the Entitlements fox the village into which the units axe being transferred. (ii) The total number of units far the Project is not exceeded, (iii) Public facilities and infrastructure including schools and parks axe provided based on the final number of units within each village ox Planning Area, (iv) The planned identity of the villages axe 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 azea. 1~-13 ARTICLE 3 OFFER OF DEDICATION 3.1. Entitlements Pxocessi~Q. Owner will file with City all applications and pay all applicable fees fox 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 fox 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 tune frame set forth in Paragraph 3.3 herein. Owner understands and agrees that the processing and/ox 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 fox 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 deride 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 ox 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. 3.3. Approval of Entitlements. If the Entitlements aze approved by the City Council in substantially the form of the Final Draft Entitlements on ox before twenty four (24) months after Owner has submitted a completed application fox the Project to the City, as such tithe may be extended as provided fox in Paragraph 5.9 (Force Majeuxe), City shall accept the Offer of Dedication fox the University Property within thirty (30) days after the expiration of all applicable statutes of limitations to challenge the Entitlements and any additional time caused by Third Pazty 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 affirtning the validity of the Entitlements ox 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 xegazding corrective action necessary to preserve the Entitlements. In the event Owner ox City determines it is not in Owners ox City's interest to proceed with the corrective action necessary to preserve the Entitlements, 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 10 10-14 shall accept the Offer of Dedication fox the University Property within thirty (30) days after entry of a final, nonappealable judgment affirming the validity of the Entitlements. In the event the City does not approve the Entitlements in substantially the form of the Final Draft Entitlements ox in such corrected form as necessary to pxeseroe the Entitlements, on ox 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 fox in Paragraph 5.9 (Force Majeuxe), any Entitlements received by Owner shall be considered to have been withdrawn by Owner and City's action on the Entitlements shall be void ab initio and be of no effect. 3.4 Third Part~Litigation. In the event of the occurrence of Third Pazty Litigation, the term of this Agreement shall be extended fox the period of the pendency of the Third Party Litigation ox until such time as either the City ox Owner (irrespective of who is named in the Third Party Litigation) decides it is no longer desirable to defend against the Third Pazty Litigation, at which time written notice shall be provided to the other party requesting termination of this Agreement. In such event, the Entitlements received by Owner shall be considered withdrawn by Owners and be null and void. The City shall xetum 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 Director of Development Services) a CPF site of four acres in each village within the Reconfigured Property. The Director of Development Services shall reserve the right to waive the 4 acre requirement at his/hex discretion. 3.6 Discretion of Citv. Owner understands and agrees that the City reserves the right to exercise its discretion as to all matters which the City is by law entitled ox required to exercise its discretion with respect to the Entitlements, including but not limited to the California Environmental Quality Act and other similar laws. In addition the Entitlements shall he subject to and brought to City Council fox 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 ox 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 University Design. The pasties 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 10-15 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 azchitecture 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 ox its discretion as to all matters which the City is by law entitled or required to exercise its discretion with respect to any future decisions of the City with respect to any mattes pertauiuzg to the University Property ox design of a university. 3.10. Community Facilities Districts. City agrees that neighborhood parks within Owner's Reconfigured Property shall be eligible fox inclusion in any community facilities districts ("CFDs") and, therefore, eligible fox reimbursement. In addition, City agrees 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 fox Ckvnex's Reconfigured Property. City agrees to memorialize the above described provisions as a part of the Entitlements. 3.11 Development Agreements. City agrees to use its best faith efforts to process, in a timely manner, amendments to the Development Agreement to include the provisions specifically set forth on Exhibit "D" fox consideration by the City Council in accordance with applicable legal requirements. Developer shall be responsible fox any costs associated with said processing. Notwithstanding the foregoing, Owner understands and agrees that the City's acceptance of the Offer of Dedication fox the University Property is in no way contingent upon ox subject to the provisions contained in this pazagraph 3.11. ARTICLE 4 Conveyance of Properties 4.1 Conveyance. In the event that City approves the Entitlements and has the right to accept the Offet of Dedication pursuant to Pazagraph 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 109 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 Qwnex the sixty (60) acres of land 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. Hazazdous Materials. With regazd to the Owner's Exchange Pazcel, the City's Exchange Parcel, and Parcels C and D, City and Owner 12 10-16 shall each be responsible fox addressing and resolving all title matters, encumbrances and hazazdous materials xegazding the paxticulaz property that they each own in an identical manner as set forth in Pazagxaphs 2.6, 2.7, 2.8 and 2.9 above as if said pazagxaphs 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 Pazcel. 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 Pazcels A, B, C, and D. Owner shall have the right, but not the obligation, to negotiate with the jurisdictions responsible fox the Otay Ranch Preserve to determine whether the development rights on Parcels C and D can be eliminated in exchange fox allowing development on certain other properties, including but not limited to, Pazcel A and Pazcel 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 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 Pazcels C and D fox development rights on Parcels A and B, City agrees , if Owner so elects, to convey City's legal interest in Parcel Aand/ox Parcel B to Ckvner provided Owner concurrently conveys Owner's legal interest in Parcels C and D as preserve land. Prior to the conveyance of Parcels Aand/ox B to Owner and Parcels C and D to City, the pazties shall address and resolve all title matters, encumbrances and hazardous materials regarding the properties uz an identical manner as set forth in Pazagxaphs 2.6, 2.7, 2.8 and 2.9. Owner understands and agrees that City is not obligated to convey its interests to Parcels Aand/ox B if it finds the title or environmental condition (presence of Hazardous Materials) of Parcels C and D to be unacceptable fox purposes of conveyance in fee title to the Otay Ranch Preserve ox should the appropriate entities not approve ox agree to the exchange of the respective parcels. Pazcels A and B will be processed for development as past of the Entitlements and the Land Use Plan along with Pazcels 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 fox 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 Pazcels 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 regazdless of its efforts to modify the boundaries of the Otay Ranch Preserve. ~ a3» ARTICLE 5 GENERAL PROVISIONS 5 1. Infrastructure To Serve University Propert~Ownex will not be required. to fund, and the development of the Reconfigured Property shall not be conditioned upon the funding ox 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 ox reimbursement in accordance with State Law and/or the City's ordinances. 5.2. University Property Assessments City agrees not to impose on the University Property any special taxes, assessments, fees, chazges ox 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 cuxxendy being imposed on the University Property until the City has accepted the Offer of Dedication. 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 ox Force Majeure as herein defined, except fox 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 University Property ox the Owner's Exchange Property, or the fitness of said land fox City's intended use ox development thereof. ARTICLE 6 NIISCELLANEOUS PROVISIONS 6.1. Entire Agreement. This Agreement, the Processing Agreement and Entitlements set forth and contains the entire understanding and agreement of the parties, and there ate no oral ox written representations, understandings ox ancillary covenants, undertakings ox agreements which ate not contained ox expressly xefeued to as an exhibit herein. No testimony ox evidence of any such representadons, understandings or covenants shall be admissible in any proceeding of any kind of nature to interpret ox determine the terms ox conditions of this Agreement. 6.2. Severability. If any term, provision, covenant or condition of this Agreement shall be determined invalid, void ox unenforceable, then this Agreement shall tem~uiate 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 Cahfoxnia. This Agreement shall be construed as a whole according to its fair 14 io-ia 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. Paxagxabh Headinsas. All Paragraph heading and subheadings axe inserted fox convenience only and shall not affect any construction ox interpxetatlon 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. 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, ox 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 Party Benefidanes. This Agreement is made and entered into fox the sole protection and benefit fox 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 Majeuxe. Neither party shall be deemed to be in default where failure ox delay in performance of any of its obligations under this Agreement is caused by earthquakes, other Acts of God, fixes, wars, riots ox similar hostilities, strikes and other labor difficulties beyond the party's control (including the party's employment farce), governmental regulations beyond the City's reasonable control, court actions (such as restraining orders ox injunctions), or other causes beyond the party's reasonable control. If any such event shall occur ox should delays be caused by Owner failing to submit plans ox other documents in a timely manner that causes a delay in the City's processing of the Entitlements, ox requests further changes ox amendments to the Project ox Entitlements, the term of this Agreement and the time fox performance shall be extended fox the duration of each such event, provided that the term of this Agreement shall not be extended under any circumstances fox more than five (5) years. 6.10. Mutual Covenants. Unless expressly provided otherwise in this Agreement, the covenants contained herein axe 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 ox 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 fox the purposes of protecting the interest of the community and other parties public ox private, in whose 1019 favor and fox whose benefit of such covenants running with the land have been provided without regard to whether City has been, remained ox axe owners of any particulaz land ox interest therein. 6.12. Counterparts. The pazties may execute this Agreement in counterparts, which counterparts shall be construed together and have the same affect as if all the pazties had executed the same instnunent. 6.13 Turisdiction and Venue. Any action ox law ox inequity arising under this Agreement ox brought by an pazty hereto fox the purpose of enforcing, construing ox detex+r+ning the validity of any provision of this Agreement shall be fled 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 fox the filing, removal ox 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 Reconfia,red Property when authorized by this Agreement, provided that neither party will be obligated to modify any rights or accept any additional obligations ox 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 seasonably 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 pasties specifically approving the amendment. 6.16. Notices. Any notice called fox in this Agreement shall be sent by hand delivery, overnight courier service, ox by registered ox certified mail as follows: To City at: City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 Atm: Bart C. Miesfeld, City Attorney With a copy to JPB Development 1392 East Palomaz Street, Suite 202 Chula Vista, CA 91913 Attn: Rob Cameron 16 ~~-20 Ox to such other address as a party may inform the others of from time to time. Any such notices sent by registered ox 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 delivery, charges prepaid to the U.S, Postal Service ar private courier. Any notice ox 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 ox persons executing this Agreement and any of the 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 axe incorporated herein and made a part of this Agreement. 6.19 Termination. In the event this Agreement terminates as provided in Paragraphs 2.7, 2,8, 2.9, 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 Undextakin¢. 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 ox 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 ox partnership between the City and Owner. 6.21 No Attorney fees. No attorney's fees shall be recoverable in connection with this Agreement. 6.22 Hold Harmless and Indemnification. Owner shall defend, indemnify, protect and hold harmless the City, its elected and appointed officers, employees, and other persons working on behalf of the City from and against all claims, suits, actions ox proceedings whether judicial ox administrative, writs, orders, injunctions or other relief, damages, liability, cost and expense (including without limitation attorneys' fees) arising out of ox alleged by third parties to be the result of this Agreement ox the City's actions in processing or issuing Owner's Entitlements resulting from ox as described in this Agreement or the First Land Offer Agreement. (NEXT P:1GE IS SIGNATURE PAGE) 17 10-21 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 CHLTLA VISTA, a political subdivision of the State of California APPROVED: Cheryl Cox, Mayor ATTEST: Donna Norris, City Clerk APPROVED AS TO FORM: Bart C. Miesfeld, City Attorney C\Docvmenrs and Settings\c6erylp\Lod Settings\'1'emporuy Internee Fdes\OLK7E\JPBLandOfEerAgteemmt~8.13.10-FINAI..doe 18 10-22 SIGNATURE PAGE TO LAND OFFER AGREEMENT CONTINUED OV THREE TWO, LLC a Delawaze limited Liability Company, By: OV THREE ONE, LLC, a Delawaze limited Liability Company, It's Managing Member By: Otay Village Three Investments, LP, a Delaware limited partnership, It's Managing Member By: PC Management III, Inc., a Delawaze corporation, It's General Partner By: Robert B. Cameron It's Vice President JJJ&K INVESTMENTS TWO, LLC, a Delawaze limited Liability Company By: JJJ&K INVESTMENTS ONE, LLC, A Delaware limited Liability Company It's Managing Member By: JJJ&K INVESTMENTS, LP, A Delawaze limited partnership It's Managing Member By: JJJ&K Management, Inc., A Delawaze corporation, It's General Partner By: Robert B. Cameron It's Vice President 19 10-23 LIST OF EXHIBITS Exhibit A Legal Description of Existing Ownership Exhibit B University Property (160 acres) Exhibit C Legal Description of Reconfigured Property Exhibit D Amendments to Development Agreement Exhibit E Land Use Plan Exhibit F Iuevocable Offer of Dedication Exhibit G Purchase Agreement Exhibit H Owner's Exchange Property and City's Exchange Property Exhibit I Pazcels A, B, C, and D 102024 EXHIBIT A OTAY RANCH VILLAGES 3 AND 8 PARCEL I: LOT 43 OF OTAY RANCH, IN THE CFTY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF N0. 862, FILED IN THE OFFICE OP THE COUNTY RECORDER OF SAN DIEGO COUNTY, FEBRUARY 7, 1900. EXC'L--PTING THEREFROM THAT PORTION OF SAID LOT 43 LYING WITHIN THE FOLLOWING DESCRIBED LAND: C0~9MENCING AT TI-IE SOUTHWEST CORNER OF FRACTIONAL SECTION 17, TOWNSHIP 18 SOUTH, RANGE 1 WEST, SAN BERNARDINO MERIDIAN, IN SAID SAN DIEGO COUNTY, ACCORDING TO LICENSED SURVEYOR'S MAP THEREOF N0.275, A PLAT OF WHICH 15 FILED IN THE OFFICE OF THE COUNTY RECORDER NOVEMBER 5, 1936; THENCE ALONG THE SOUTHERLY LINE OF SAID FRACTIONAL SECTION 17, SOUTH 88°55'00" EAST, A DISTANCE OF 2,071.03 FEET (2,074.27 PER SAID LICENSED SURVEYOR'S MAP NO. 275) TO A PO1T ON THE WESTERLY BOUNDARY OF SAID OTAY RANCH, SAID POINT BEING ALSO THE TRUE POINT OF BEGINNING; THENCE LE.AViNG SAID SOUTHERLY LINE, NORTH 19°00'00" 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 CQRNER OF THA"C 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 19°00'00" WEST, A DISTANCE OF 741.41 FEET; THENCE LEAVING SAID WESTERLY BOUNDARY, NORTH 74°23'37" EAST, A DISTANCE OF 3,829.24 FEET; THENCE SOUTH 02°-44'38" EAST, A DISTANCE OF 2,922.46 FEET; THENCE SOUTH 59°39'21" WEST, A DISTANCE OF 3,06430 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 FRACFIONAL SECTION 20, TOWNSHIP 18 SOUTH, RANGE 1 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 ZQ, BEING ALSO THE WESTERLY BOUNDARY LINE OF SAID OTAY RANCFI, NORTH 18°37'06" WEST 650.00 FEET TO THE TRUE POINT OP BEGINNING; THENCE LEAVING SAID RANCH BOUNDARY NORTH 71°22'54" EAST 55.00 FEET; THENCE LEAVING SAID RANCH BOUNDARY NORTH 71°22'54" EAST 55.00 FEET; THENCE NORTH 18°37'06" WEST, PARALLEL WITH SAID RANCH BOUNDARY LINE 200.00 FEET; THENCE SOUTH 71°22'54" WEST 55.00 FEET TO SAID RANCH BOUNDARY LINE; THENCE ALONG SAID LINE SOUTH 18°3706" EAST 200.00 FEET TO SAID POINT OF BEGINNING. 10-25 ALSO EXCEPTIPdG THEREFROM THAT PORTION OF SAID LOT 43 DESCRIBED AS FOLLOWS: BEGINNING AT A POINT ON THE WESTERLY RANCH OTAY BOUNDARY DISTANT SOUTH 18°3T l0" EAST 499.12 FEET ALONG SAID OTAY RANCH BOUNDARY FROM THE SOLrl'HEAST CORNER OF LOT 17 OF MAP N0. 8147; THENCE LEAVING SAID OTAY RANCH BOUNDARY EASTERLY ALONG ANON-TANGENT CURVE, CONCAVE SOUTHERLY AND HAVING A RADIUS OF 157.00 FEET, A RADIAL TO SAID POINT BEARS NORTH 34°56'19" WEST; THENCE ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 49°41'39" AN ARC LENGTH OF 136.17 FEET; TFIENCE TANGENT TO SAID CURVE SOUTH 75°14'40" EAST 179.58 FEET; THENCE SOUTH 14°45'20" WEST 62.00 FEET; THENCE NORTH 75°[4'40" WEST 45.61 FEET TO THE BEGINNING OF A TANGENT 95.00 FOOT RADIUS CIURVE CONCAVE SOUTHERLY; THENCE WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 107°28'43" A LENGTH OF 178.21 FEET 'f0 A POINT ON THE NORTHERLY LINE OF SAIll LOT 44 OF OTAY RANCH; THENCE DEPARTING THE ARC OF SAID CURVE NUN-RADIALLY SOUTH 71°58'08" 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 18°37'10" WEST 78.39 FEET ALONG THE EASTERLY LINE OF SAID EASEMENT FOR COUNTY HIGHWAY; THENCE SOUTH 71°22'50" 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 NORTII 18°37' 10" WEST 119.86 FEET TO THE POINT OF BEGINNING. PARCEL H: PARCEL 3 OF PARCEL MAP NO. 19923, IN THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OP CALIFORNIA, FII.ED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, JANUARY I8, 2006. PARCEL H: PARCEL 4 OP PARCEL MAP NO. 20264, IN THE CITY OF CI3ULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, TUNE 1, 2007. 1'A12C'EL H: PARCEL 2 OF PARCEL MAP NO. 20264, IN THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, FII.ED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, JUNE 1, 2007. ~~-26 PARCEL G LOTS 25 AND 26 IN OTAY RANCHQ IN THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 862, FII.ED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, FEBRUARY 7, 1900. EXCEPTING THEREFROM THAT PORTION OF SAID LOT 2~ CONVEYED TO THE STATE OF CALIFORNIA BY DEED RECORDED NNE 21, 2006 AS DOCUMENT N0. 2006-0437364. PARCEL G: 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 11, 1912 RECORDED NNE 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 OP SAID OTAY RANCHO AND STRIPS OF LAND VARYING IN WIDTH FROM 100 FEET TO 50 FEET FOLLOWING THE LINE OF THE RIGHT OF WAl' OF THE OTAY-SAN DIEGO PIPE LINE AND THE LINE OF THE RIGHT OF WAY OF "CHE OTAY-CORONADO PIPE LINE, AS DESCRIBED IN SAID DEED AND SHOWN ON THE MAPS WHICH ARE ATTACHED TO AND MADE A PART OF SAID INS"CRUMENT, 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 7KACT NO. OS-07 MC MILLIN OTAY RANCH VILLAGE 7 "A" MAP, ACCORDING `CO 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 "CHE STATE OF CALIFORNIA BY DEED RECORDED JUNE 21, 2006 AS DOCU MENT NO. 2006-0437364. OTAY RANCH VILLAGES 9 AND 10 PORTIONS OF PARCELS E AND F LOTS 13 AND 14 OF OTAY RANCHO, IN THE CITY OF CFIULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO: 862, FILED 1N "Cl-IE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, FEBRUARY 7, 1900. ~~-27 EXC'L-PTING THEREFROM THAT PORTION OF LOT 14 OF OTAY RANCHO, CONVEYED BY SAN DIEGO LAND COMPANY TO THE SOUTHERN CALIFORNIA MOUNTAIN WATER COMPANY, BY DEED DATED APRIL 11, 1912 AND RECORDED JUNI: 24, 1912 IN BOOK 570, PAGE 113 OF DEEDS. PORTIONS OF PARCELS E AND F: LOT 15 OF OTAY RANCHO, IN THE CITY OP CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 862, FII.ED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, FEBRUARY 7, 1900. ~o-2s O I N fD EXHIBIT "A" EXISTING OWNERSHIP /11 I /' ,, t'' F.~.~E~ _ '~ \`~ ARF~ , __ `] ///'}' ~L ~EI ~~`~ - ~ - IHREA2 i I % j ~~ ' ' !i~~ ' ~.,~ I ;\ ~...1 > I p 1 ~, ~ ~ ~ i ~ __ __ ~ .._ ..r ~.I ~~ .~ - ~l ~.( ®OWNER'S EXISTING PROPERTY - ~----.._.._..... ,~_. k._ _._ ._. ,~_ ~_a,..M _._..~~,..._~z,~.,.,,.,, UNIVERSITY PROPERTY ~ ~ ~~vt-.~mvNi ~- ~, ~~~ ~~ ~~ ~~~ ~---------------- --J ----------r+i-- I /// ~ ,~~ 1 / ~~~ ~ I i ®UNIiVERSITY PROPERTY i i ~ i ~ z• ~eessVmutcnwr~.~E~ an. cr.. <ne rm. rua~ Joo :m~..drelHoru-tW6~x:a 10-30 O I W EXHIBIT "C" RECONFIGURED O RSHIP J .-'" \ cti= (J ~ \ ~ ~ j - _ PAfltfL F AREA 5 A .ill ® OWNER'S RECONFIGURED PROPERTY --- x\osssla~,~.nait,~tiw osi~ ~.. me rd:e Fm~w~ 300 „d,.ey[yvy-0~-zoian~v EXHIBIT D DE4'ELOPMENT AGREEMENT PROVLSIONS 1. Tcra the following language shay be added afar the phrase "nveaty (20) yeats° and befoze the phrase "(the term)" in the fourth sentence of Seccioa 3 of the existing Development Agzeemenu "from , 20~ the date upon which the City may accept the Offezs oEDedication in Sections 33 of chat certaixr "Iand Offer Agzeement" by and between the City and OV Three Two, IS.C; JJf & K Investments Two, LLC; and RR Qoaay, LLC, approved by the City Cotmal on , 2008." 2 Tentative biap/Peratir Duxadon. Section 6.2 of the earring Development Agreement, entitled "Length of Validity of Tentative Subdivision Maps," is hereby deleted in its entirety and replaced with the following "62 Tentative Man/Permit Duration Pursuant m California Government Code section 664326, nay tentative subdivision map, parcel map or other map authorized by the State Subdivision Map Act that is approved for the Project shall zemain valid For a period of time equal to a tear of this Agreement In addition, aotwithstaading any condition or provision to the contrary, every peanit and appcaval for the Project other than tainistetial appmvak shall zemain valid for a period of time equal w the term of this Agreement" 3. Growth .The second Full paragraph of Section 5.2 appearing at page 8 of the existing Development Agreement, entitled "Development of Property," which begins "Notwithstanding the foregoing," shall be deleted in its mtixety and repla¢d with the following: "Notwithsraadiag nay provision of this Agreement to the coatratp, the City's Growth Management program, as set forth in the Growth Managcnmt Element of the City's General Plan, applicable to the Pzoject shall be those in effect on the data the City approves the Land Offer Agreement referenced is Section 3 hereof." 4. Modifications to Existing Project Azprovak. The following sentence shall be added to the end of Scctioa 5.23 of the existing Development Agreement "The parties agree that they accept the modifications to the Existing Project Approvals approved by the City Council oa __ ___ , 20 ." 5. Reimbursement. At the end of the first sentence of Section ZS of the existing Developnunt Agreement, melded "Faaliries Which are the Obligations of Another Party, or are of Excessive Size, Capaary, Length or Number,"anew sentence shall be inseaed as follows: 10-32 "City shall not require such monies or improvements unless City provides reasonable assurance of funding or reimbursement in accordance with Siafe law and/or the City's ordinances." 10-33 O I w EXNIBR "E' LAND USE PLAN PARCEL LOCATION MAP /'I I ~/ E 1{- '} 1/ H~ E H it H ~ F C~ \~ G D ~ ~~.. G.-C--!' ~~ PARCEL VILLAGE C 0 E VILLAGE 9110 F UNIVERSfIYIRTP G VILLAGE B N VILLAGE3 - _... ¢\ceu\an'~~Fmen~\E~af osir ur nna rate exnen .wo yae.a.yp~~y-of-m~a ie~s EXHIBIT "E" LAND USE PLAN VILLAGE 3 PARCEL H ~3 ~R~ /.mil \~~ ~~~ ,~,, ~~ '~~, A~ 'P PARK (~; ~' ~ ® SCHddL `-J n CONfMUhfITY USE TRANSIT STCP g ~t .,w..~~,.,~...,,.,..,._..,...,.....................,. __ _-- -,..-, VILLAGE 3 AREA LAND USE/ DISTRICT GROSS ACRES DU GROSS DU/ACRE t MH 20 360 18 2 lJd 121 484 4 3 IND 74 TOTALS 215 844 10-35 EXHIBIT "E" LAND USE PLAN ~ VILLAGE 8 _ PARCEL G ~ °~ AREA 2 CO ~ s N AREA 1 ©~ © PARK OS SCHOOL © COMMUNITY USE © TRANSIT STOP AREA 3 AREA AREA 5 AREA 6 ~ ~ (1) THIS AREA IS SUBJECT TO MSCP BOUNDARY ADJUSTMENT. IF OWNER IS SUCCESSFUL IN MODIF'lING THE BOUNDAAY, 30T UNITS WILL BE TRANSFERRED FROM AREA 1 ANO/OR AREA 2 TO AREA 5. A, \uaas\dPoa4Exhwua\txi asra aro aae reza cnwrz .wu ,aae m,orlwa..-zo-zoos rxz~ VILLAGE 8 AREA LAND USE/ DISTRICT GROSS ACRES DU GROSS DU/ACRE 1 MH 45 1148 26 2 MH 75 1320 18 3 MH 25 450 16 4 LM 22 188 8 5 LM 51 (1) 8 ACTIVE REC/COMM PARK 41 TOTALS 259 3106 10-36 EXHIBIT "E" LAND USE PLAN VILLAGE 9/10 ~~CEL E,F,C & D ~~ \~\ PARCEL E ~\~~ AREA ~ ~\~ ~\ ~ \\ \\ PARCEL E I \~~ REA 2 ~, \\ ~ PARCEL C PARCEL F li I 1 \ ~ AR~A AREA 5 'n I PARCEL D ~ 11 AREA 3 ® PPRK Q SCHOOL © COMMUNfTV USE ®TRANSfT STOP (1J UP TO 360 UNITS FROM AREA 2 WILL 8E 7RANSFERED TO PARCELS A,B,CAND/OR D ( SEE EXHIBITI) PUflSUANT TO PARAGRAGH 4.3.2 OF THE AGREEMENT VILLAGE 9(10 AREA LAND USE/ DISTflfCT GROSS ACRES DU GROSS DU)ACRE I MH 70 2050 24 2 LM 40 600 15 3 LM 50 (I) 4 LM 70 (1) 5 UNN 295 TOTALS 465 2650 1 ~-~ / \EP/n \EMID!(a \E#f OSIJ GM A,H ivke L1A11 ]00 araledr9Ulok-IS-200@1A'i E~~T Recording Requested by and Pleare RePxrn te: City Clerk City of Chula Vista P.O. Box 1087 Chub Vista, Califomia 91912 Tbir Instrument Ben~tt City Only No Fee Required Tbir Sface far Recorder'r Ure Only APN(s) C.V. Frle IRREVOCABLE OFFER OF DEDICATION OF FEE INTEREST FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, OV THREE TWO, LLC; JJJ&x INVESTMENTS TWO, LLC; RR QUARRY, LLC represent that, as the owner of the herein-described real property, hereby makes an Irrevocable Offer of Dedicaton of fee interest to TF~ CITY OP CHULA VISTA, A MUNICIPAL CORPORATION ("Gty'~, the hereinafter described real property fox the following public purpose: FOR HIGHER EDUCATION ~~ND RELATED COMPATIBLE USES, ACTNE PUBLIC RECREATION, QUASI PUBLIC AND ALL OTHER USES INCLUDING RESIDENTIAL USES, INDUSTRIAL AND COMMERCIAL. The property refesed to above is situated in the City of Chula Vista, County of San Diego, State of California andis more particularly described on Exhtbit "A" attached hereto and incorporated herein by this reference the ("Property"). This Offer of,Dedicadoa 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 otu~ 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- 10-38 ~~aa~zT ~ Puzsuant 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 ox a portion of the Property ("Repurchase Rights' fox 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 laced 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 ]imitations, covenants, conditions, and restrictions contained herein, and as incorporated by reference from the Land Offer Agreement (i) is fox the benefit of certain real psopesty described on Exhibit "B" attached hereto and incotpoxatedhexein (the `Benefited Property") and is a burden upon the Pxopertp, (u) attaches to and runs with the Property and the Benefited Property, (vi) benefits each successor ownez doting its ownership of the Benefited Property ox any portion thereof, and (iv) is binding upon each successor owner during its ownership of the Property ox anp portion thereof, and each owner having anp interest therein derived in any manner through any owner of the Property or anp portion thereof, whether by opuarion of law ox any xnannex whatsoever. Notwithstanding the foregoing, Owner may elect from time to time, in accoxdaacewith the tezms of the Land Offer Agreement, by a duty recozded document to remove any portion of the Benefited Property from the benefit of the covenants set forth herein. (SIGNATURES ON FOLLOWING PAGE] ~0-39 EXHIBIT F This is to certify that the interest in real property offered herein to the City of Chula Vista, a govenunental 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 CITY CLERK By: 10-40 OV THREE TWO, LLC a Delaware limited liability coanpany, By: OV TI3.REE ONE, LLC, a Delaware Limited liability company, Ifs Managing Member By. Otay Village Three Investments, LP, a Delawaze limited partnership, Its Managing Member By: PC Management ffi, Inc., a Delaw a corporation, Its Gen al PaJ. N By: Robert B ~ Cameron Its Vice Presidem JJJ&K INVESTMENTS TWO, LLC, a Delaware limited liability company By: JJJ&KINVESTMENTS ONE, LLC, a Delaware limited liability company Its Managing Member By: JJJBcK INVESTMENTS, LP,. a Delawaze limited partnership Its Managing Member By: JJJ&K Management, Inc., a Del oration, Its Gen al Partn By . Robert B. Cameron Its Vice President By: RIt Quarry, LLC, a Delaware limited liability company By: 3JJ8K Management, Inc., aDelawar Corp 'on Its Managing ember By: ~ Robert B. Cameron Its Vice President 10-41 Exhibit A OTAY RANCH VII,LAGES 9 AND 10 PORTIONS OF PARCELS E AND F LOTS 13 AND 14 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 LOT 14 OF OTAY RANCHO, CONVEYED BY SAN DIEGO LAND COMPANY TO THE SOUTHERN CALIFORNIA MOUNTAIN WATER COMPANY, BY DEED DATED APRIL 11, 1912 AND RECORDED JUNE 24, 1912 IN BOOK 570, PAGE 113 OF DEEDS. PORTIONS OF PARCELS E AND F: LOT 15 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. END OF LEGAL DESCRIPTION C\Documen[s and Settings\cherylp\LOCaI Settings\Temporary IntemetFi}ys\OIjC~\IODE~chbit4-8.13.10.doc Exhibit B 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 11, 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 TFIE SOUTH 492.5 FEET OF TFIE 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. OS-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. END OF LEGAL DESCRIPTION C:\Documents and Setcings\cherylp\Local Settings\Tempomry Internet Files\OLK7E\IODExhibitH-8.13.10.docx 10-43 EXEiIBIT G AGREEMENT OF PURCHASE AND SALE AND ESCROW INSTRUCTIONS TO: THIS AGREEMENT OF p[)RCHASE AND SALE AND ESCROW INSTRUCTIONS is made and entered into this day of _, by and between (hereinafter "SELLER"), and (hereinafter "Buyer"). 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 consideraticn 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 pa-d by Buyer SHALL gE Dollars ($ ) 3. TERMS OF PAYMENT OF PURCHASE PRICE The purchase price shall be paid as follows: 4. CONDITIONS PRECEDENT TO CLOSING 10-44 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 ilOlder 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 *_he.latest bills and thirty (30) day month (360 day year) as cf the close of escrow. (f) Payment of Costs. The expenses of escrow described herei- n sh~l be paid in the following manner: 1. Seller shall pay the full ccst 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 10-45 EXHIBIT G NOTICES All notes under this Agreement shall he 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. Suyer 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 SEL interpretation of any of the ter Agreement, or in connection with any herein, the prevailing party in such addition to damages, injunctive reasonable cost and expenses, nat and reasonable attorneys' fees. LER seeking enforcement or ms or provisions of this of the Property described action snail be awarded, in or other relief, its limited to taxable costs, 10-46 EXHIBIT G 10 11 12 13 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. TIME OF ESSENCE Time is of the essence in this Agreement. PERFORMANCE OF ACTS The parties hereto agree to perform such acts and execute such documents as may be required to carry out the terms and purposes of this Agreement. PROPERTY "AS IS" Buyer is relying solely upon its owr. inspections, investigations and analyses of the Property in entering into this Agreement and i s 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. 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) 10-47 EXI-OBIT 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 10-48 OWNER'S EXCHANGE PROPERTY ,~- n iii ~IIII ~~; :~i I 1 ,~~ I 1~ ;~ I ~~ II ~, ®OWNER'S EXCHANGE PROPERTY osra cs.. ane rw. raren xe .~~.e.y(?+.y-rs-moa ias 10-49 LAND OWNERSHIP AFTER EXCHANGE & I.O.D. ACCEPTANCE \~ / ~' OWNER`S. PROPERTY \~ OSie Gixe Md TWe fxh~Dll JOJ ,~- 70-50 CITY'S EXCHANGE ~ ~ \\~D"..<< i i I I ~ I ~ ~~~ -.._.. ,_._...~ i ~, CITY'S EXCHANGE PROPERTY PROPERTY ~~: ~I\\ \~~ ~~ ~I -\ u I III I l{II I III ~~I ~` nsfn crK am rare emert wo 10-51 EXHIBIT "I" ^ ,~ 'i VILLAGE 9/10 it ~% PARCEL A,B,C & D ~ . ~v ~~~ A ~ ~\\ \~\, II a* `\ \~~, \, ul ~~ '~ C ul ~ D ~. III 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 4.32 Po\0655\YPIn\£rAibik\Ebf 0.514 Wro Mtl iG'e EM2N ]00 icmeEwg(}kY~6-100a t21G VILLAGE 9/10 PARCEL LAND USE/ DISTRICT GROSS ACRES A MH 35 g LM 25 c LM io p LM 50 TOTALS 120 10-52 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 AND JJJ & K INVESTMENTS TWO, LLC; FOR CONVEYANCE OF 160 ACRES TO THE CITY FOR UNIVERSITY/REGIONAL TECHNOLOGY PARK DEVELOPMENT 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 Pazk, which would be associated with the University(ies); and WHEREAS, JJJ & K Investments Two, LLC; OV Three Two, LLC; and RR Quazry, LLC, all Delaware limited liability companies and the City, entered into a Land Offer Agreement, dated May 20, 2008 that was recorded against real property commonly referred to as Villages 3, 4, 8, 9 and 10 of the Otay Ranch Project ("First Land Offer Agreement"); and WHEREAS, pursuant to the terms of First Land Offer Agreement, the City may accept Irrevocable Offers of Dedication for 160 acres to be utilized as a University/Regional Technology Pazk and other uses set forth in said instrument ("University Property"); and WHEREAS, the above described entities no longer own all of the properties described in the First Land Offer Agreement; and WHEREAS, JJJ & K Investments Two, LLC and OV Three Two, LLC as the current owners of the University Property, would like to proceed with the entitlement process for Villages 3, 8, 9 and 10 of the Otay Ranch Project; and WHEREAS, JJJ & K Investments Two, LLC, and OV Three Two, LLC (collectively "Owner") agree to convey the University Property pursuant to the terms of the new proposed Land Offer Agreement for Villages 3, 8, 9, and 10 of the Otay Ranch Project. 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 other associated purposes, a copy of which shall be kept on file in the Office of the City Clerk. 10-53 Resolution No. Page 2 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. Presented by Gary Halbert, P.E., AICP Assistant City Manager / . Development Services Director Approved as to form by ` Bart ,YU1City Attorney 10-54