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HomeMy WebLinkAboutPIP 05-03; PALOMAR FORUM LOT 6 & 7; Planned Industrial Permit (PIP)li I f'~ ~! OLD REPUBLIC TITLE COMPANY l~r..~· * * 2111 Atlanta Avenue • Riverside, CA• 92507 • (951) 222-2634 Issued for the sole use of: DAVIS PARTNERS 1420 BRISTOL STREET #100 NEWPORT BEACH, CA 92660 Phone: (949) 752-2066 Fax: (949) ·752-8776 Attention: KIMBERLY TYSDAL Property Address: PRELIMINARY REPORT Our Order Number 2907012455-1 Customer Reference PALOMAR FORUM ASSOCIATES LP When Replying Please Contact: Robert Sexton Fax: (951) 341-3942 In response to the above referenced application for a policy of title insurance, OLD REPUBLIC TITLE COMPANY hereby reports that it is prepared to issue, or cause to be issued, as of the date hereof, a Policy or Policies of Title Insurance describing the land and the estate or interest therein hereinafter set forth, insuring against loss which may be sustained by reason of any defect, lien or encumbrance not shown or referred to as an Exception below or not excluded from coverage pursuant to the printed Schedules, conditions and Stipulations of said policy forms. The printed Exceptions and Exclusions from the coverage of said Policy or Policies may be set forth in Exhibit A attached. Copies of the Policy forms should· be read. They are avai!able from the office which issued this report. Please read the exceptions shown or referred to below and the exceptions and exclusions set forth in Exhibit A of this report carefully. The exceptions and exclusions are meant to provide you with notice of matters which are not covered under the terms of the title insurance policy and should be carefully considered. It is important to note that this preliminary report is not a written representation as to the condition of title and may not list all liens, defects, and encumbrances affecting title to the land. This report (and any supplements or amendments hereto) is issued solely for the purpose of facilitating the issuance of a policy of title insurance and no liability is assumed hereby. If it is desired that liability be assumed prior to the issuance of a policy of title Insurance, a Binder or Commitment should be requested. Dated as of January 12, 2005, at 7:30 AM OLD REPUBLIC TITLE COMPANY For Exceptions Shown or Referred to, See Attached Page 1 of 8 Pages ORT 3158-A (Rev. 5/1/00) OLD REPUBLIC TITLE COMPANY ORDER NO. 2907012455-1 The form of policy of title Insurance contemplated by this report is: A CLTA Standard Coverage (1990) Owner1s Policy. A specific request should be made if another form or additional coverage is desired. The estate or interest in the land hereinafter described or referred or covered by this Report is: a Fee. Title to said estate or interest at the date hereof is vested in: Palomar Forum Associates LP., a California Limited Partnership The land referred to in this Report is situated in the County of San Diego, City of Carlsbad, State of California, and is described as follows: Lots 6 and 7 of Carlsbad Tract No. 99-06, in the City of Carlsbad, County of San Diego, State of California, according to Map thereof No. 14831, filed in the Office of the County Recorder of San Diego County, June 29, 2004. Excepting therefrom one-half of all minerals in, on or under said land, as reserved by Burton D. Hightowner, a widower, in the Deed recorded May 19, 1959 in Book 7669 Page 361 of Official Records. At the date hereof exceptions to coverage in addition to the Exceptions and Exclusions in said policy form would be as follows: 1. Taxes and assessments, general and special, for the fiscal year 2005 -2006, a lien, but not yet due or payable. Code No. 09021 2. Taxes and assessments, general and special, for the fiscal year 2004 -2005, as follows: ORT 3158-B Assessor1s Parcel No Code No. 1st Installment 2nd Installment Land Imp. Value Exemption 221-010-34-00 09021 $6,719.19 $6,719.19 $1,270,770.00 $0.00 $0.00 Said matters affect a portion of said land Page 2 of 8 Pages Marked Paid NOT Marked Paid -- OLD REPUBLIC TITLE COMPANY ORDER NO. 2907012455-1 3. Taxes and assessments, general and special, for the fiscal year 2004 -2005, as follows: Assessor's Parcel No Code No. 1st Installment 2nd Installment Land Imp. Value Exemption 221-012-19-00 09019 $53,913._73 $53,913.73 $10,172,275.00 $0.00 $0.00 Marked Paid NOT Marked Paid Said matters affect property in question with other property. 4. Said land is not seperately assessed on the latest equalized assessment roll. 5. The lien of supplemental taxes, if any, assessed pursuant to the provisions of Section 75, et seq., of the Revenue and Taxation Code of the State of California. 6. Terms and provisions as contained in an instrument, Entitled Executed By Recorded Notice and Waiver Concerning Proximity of the Planned or existing Transportation corridor(s) case no: CT 99-06 Palomar Forum Associates LP, a Limited Partnership October 18, 2002 in Official Records as Instrument Number 2002- 0913259 Reference is made to said instrument for further particulars. 7. Terms and provisions as contained in an instrument, Entitled Executed By Recorded Notice of Restriction on Real Property The City of Carlsbad October 18, 2002 in Official Records as Instrum~nt Number 2002- 0913314 Reference is made to said instrument for further particulars. Page 3 of 8 Pages ORT 3158-B OLD REPUBLIC TITLE COMPANY ORDER NO. 2907012455-1 8. Covenants, Conditions, Restrictions, Limitations, Easements, Assessments, Reservations, Exceptions, Terms, Liens or Charges, but omitting any covenants or restrictions if any, based upon race, color, religion, sex, handicap, familial status, or national origin unless and only to the extent that said covenant (a) is exempt under lltle 42, Section 3607 of the United States Code or (b) relates to handicap but does not discriminate against handicapped persons, as provided in an instrum~nt. Recorded January 10, 2003 in Official Records as Instrument Number 2003- 0035144 "If this document contains any restriction based on race, color, religion, sex, familial status, marital status, dlsability, national origin, or ancestry, that restriction violates state and federal fair housing laws and is void, and may be removed pursuant to Section 12956.1 of the Government Code. Lawful restrictions under state and federal law on the age of occupants in senior housing or housing for older persons shall not be construed as restrictions based on familial status." Said Covenants, Conditions and Restrictions provide that a violation thereof shall not defeat or render invalid the lien of any Mortgage or Deed of Trust made in good faith and for value. 9. Deed of trust to secure an indebtedness of the amount stated below and any other amounts payable under the terms thereof, ORT 3158-B Amount Trustor /Borrower Trustee Beneficiary /Lender Dated Recorded $15,100,000.00 Palomar Forum Associates LP., a California Limited Partnership Amarir::in iitla rnmn::.n" I \IIIWl l'-''""f I I 1'-1"" ,.,.,,n,,1111-'""'I 17 California National Bank, a National Banking Association May 30, 2003 June 26, 2003 in Official Records as Instrument Number 2003- 0754317 Affects this and other property. NOTE: Said Deed of Trust by the provisions of an agreement Dated Recorded July 28, 2003 October 22, 2003 in Official Records as Instrument Number 2003-1292103 Executed By Palomar Forum Associates LP., a California Limited Partnership was made subordinate to the Reciprocal Easement Agreement referred to herein as recorded July 24, 2003 as Instrument No. 2003-0884893. Page 4 of 8 Pages OLD REPUBLIC TITLE COMPANY ORDER NO. 2907012455-1 13. Terms and provisions as contained in an· instrument, Entitled Executed By Dated Recorded Hold Harmless Agreement Geological Faliure Palomar Forum Associates, LP., a California Limited Partnership and City of Carlsbad March 29, 2004 May 27, 2004 in Official Records as Instrument Number 2004- 0494023 Reference is made to said instrument for further particulars. 14. Release and relinquishment of abutter's or access rights to Eagle Drive and Grey Hawk Court, over the southerly boundary line of Lots 6 and 7 to Grey Hawk Court and over the westerly and southwesterly boundary line of Lot 7 to Eagle Drive, as set forth on the filed Map of said land. 15. An easement affecting that portion of said land and for the purposes stated herein and incidental purposes as shown on the filed map. For Affects Proposed drainage easement in favor of Lot 6 In general, the northerly 15 feet of Lot 7 16. Improvement restriction imposed on those areas shown as "Sight Distance Corridor" affecting Lots 6 and 7 as shown on the filed map. 17. An easement affecting that portion of said land and for the purposes stated herein and incidental purposes as provided in the following Granted To For Recorded Affects San Diego Gas and Electric Company, a Corporation Public Utilities September 27, 2004 in Official Records as Instrument Number 2004- 0911006 A portion of Lot 7, as set forth in said document 18. The requirement that all gen.era! partners sign on behalf of said partnership, or at least authorize or ratify in writing anything executed by less than all general partners. 19. Rights and claims of parties in possession. Page 6 of 8 Pages ORT 3158-B OLD REPUBLIC TITLE COMPANY ORDER NO. 2907012455-1 20. The effect of instruments, proceedings, liens, decrees or other matters which do not specifically describe said land but which, if any do exist, may affect the title or impose liens or encumbrances thereon. The name search necessary to ascertain the existence of such matters has not been completed and, in order to do so, we require a signed Statement of Identity from or on behalf of William K. Davis. Page 7 of 8 Pages ORT 3158-B OLD REPUBLIC TITLE COMPANY ORDER NO. 2907012455-1 --------------------Informational Notes------------------- The applicable rate(s) for the policy(s) being offered by this report or commitment appears to be section(s) 2.1 (A). Short Term Rate (11STR") applies (but may be precluded or limited by application of the above shown section(s) of our Schedule of Fees and Charges.) If you anticipate having funds wired to Old Republic Title Company, our .wiring information is as follows: Comerica Bank, 275 Battery Street, San Francisco, CA 94111 credit to the account of: Old Republic Title Company Acct #1892374933, ABA# 121 137 522. When instructing the financial institution to wire funds, it is very important that you reference Old Republic Title's order number 2907012455. Should you have any questions in this regard, please contact your title officer immediately. IW/Short Term Rate Applies Page 8 of 8 Pages ORT 3158-B Exhil:iit A CALIFORNIA LAND TITLE ASSOCIATION STANDARD COVERAGE POLICY -1990 EXCLUSIONS FROM COVERAGE The following matters are expressly excluded from the coverage of this policy and the Company will not pay loss or damage, costs, attorneys' fees or expenses which arise by reason of: l. (a) Any law, ordinance or governmental regulation (including but not limited to building or zoning laws, ordinances, or regulations) restricting, regulating, prohibiting or relating (i) the occupancy, use, or enjoyment of the land; (ii) the character, dimensions or location of any improvement now or hereafter erected on the land; (iii) a separation in ownership or a change In the dimensions or area of the land or any parcel of which the land is or was a part; or {iv) environmental protection, or the effect of any violation of these laws, ordinances or governmental regulations, except to the extent that a notice of the enforcement thereof or a notice of a defect, lien, or encumbrance resulting from a violation or alleged violation affecting the (and has been recorded in the public records at Date of Policy.- (b) Any governmental police power not excluded by (a) above, except to the extent that a notice of the exercise thereof or notice of a defect, lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy. 2. Rights of eminent domain unless notice of the exercise thereof has been recorded in the public records at Date of Policy, but not excluding from coverage any taking which has occurred prior to Date of Policy which would be binding on the rights of a purchaser for value without knowledge. 3. Defects, liens, encumbrances, adverse claims or other matters: (a) whether or not recorded in the public records at Date of Policy, but created, suffered, assumed or agreed to by the insured claimant; (b) not known to the Company, not recorded in the public records at Date of Policy, but known to the insured claimant and not disclosed in Writing to the Company by the insured claimant prior to the date the insured claimant became an insured under this policy;. (c) resulting in no loss or damage to the insured claimant; (d) attaching or created subsequent to Date of Polley; or (e) r.esulting in loss or damage which would not have been sustained If the insured claimant had paid value for the insured mortgage or for the estate or interest insured by this policy. 4. Unenforceability of the lien of the insured mortgage because of the Inability or failure of the insured at Date of Policy, or the inability or failure of any subsequent owner of the indebtedness, to comply with the applicable doing business laws of the state In which the land Is situated. 5. Invalidity or unenforceability of the lien of the insured mortgage, or claim thereof, which arises out of the transaction evidenced by the insured mortgage and is based upon usury or any consumer credit protection or truth in lending law. 6. Any claim, which arises out of the transaction vesting in the Insured the estate of interest insured by this policy or the transaction creating the interest of the insured lender, by reason of the operation of federal bankruptcy, state insolvency or similar creditors' rights !;;ws, EXCEPTIONS FROM COVERAGE -SCHEDULE B, PART I This policy does not insure against loss or damage (and the Company will not pay costs, attorneys' fees or expenses) which arise by reason of: 1. Taxes or assessments Which are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real property or by the public records. Proceedings by a public agency which may result in taxes or assessments, or notices of such proceedings, whether or not shown by the records of such agency or by the public records. 2. Any facts, rights, interests, or claims Which are not shown by the public records but which could be ascertained by an inspection of the land which may be asserted by persons in possession thereof, 3. Easements, liens or encumbrances, or claims thereof, which are not shown by the public records. 4. Discrepancies, conflicts in boundary lines, shortage in area, encroachments, or any other facts which a correct survey would disclose, and which are not shown by the public records. 5. (a) Unpatented mining _claims; (b) reservations or exceptions in patents or in Acts authorizing the issuance thereof; (c) water rights, claims or title to water, whether or not the matters excepted under (a), (b) or (c) are shown by the public records. OLD REPUBLIC TITLE COMPANY Privacy Policy Notice PURPOSE OF THIS NOTICE Title V of the Gramm-Leach-Bliley Act (GLBA) generally prohibits any financial institution, directly or through its affiliates, from sharing nonpublic personal information about you with a nonaffiliated third party unless the institution provides you with a' notice of its privacy policies and practices, such as the type of information that it collects about you and the categories of persons or entities to whom it may be disclosed. In compliance with the GLBA, we are providing you with this document, which notifies you of the privacy policies and practices of OLD REPUBLIC TITLE COMPANY. We may collect nonpublic personal information about you from the following sources: Information we receive from you such as on applications or other forms. Information about your transactions we secure from our files, or from [our affiliates or] others. Information we receive from a consumer reporting agency. Information that we receive from others involved in your transaction, such as the real estate agent or lender. Unless it is specifically stated otherwise in an amended Privacy Policy Notice, no additional nonpublic personal information will be collected about you. We may disclose any of the above information that we collect about our customers or former customers to our affiliates or to nonaffiliated third parties as permitted by law. We also may disclose this information about our customers or former customers to the following types of nonaffiliated companies that perform .marketing services on our behalf or with whom we have joint marketing agreements: Financial service providers such as companies engaged in banking, consumer finance, securities and insurance. Non-financial companies such as envelope stuffers and other fulfillment service providers. WE DO NOT DISCLOSE ANY NONPUBLIC PERSONAL INFORMATION ABOUT YOU WITH ANYONE FOR ANY PURPOSE THAT IS NOT SPECIFICALLY PERMITTED BY LAW. We restrict access to nonpublic personal information about you to those employees who need to know that information in order to provide products or services to you. We maintain physical, electronic, and procedural safeguards that comply with federal regulations to guard your nonpublic personal information. ORT 287-C 5/07/01 • • ORDER NO.: 2907012455-1 EXHIBIT A The land referred to is situated in the County of San Diego, City of Carlsbad, State of California, and is described as follows: Lots 6 and 7 of Carlsbad Tract No. 99-06, in the City of Carlsbad, County of San Diego, State of California, according to Map thereof No. 14831, filed in the Office of the County Recorder of San Diego County, June 29, 2004. Excepting therefrom one-half of all minerals in, on or under said land, as reserved by Burton D. Hightowner, a widower, in the Deed recorded May 19, 1959 in Book 7669 Page 361 of Official Records. EXHIBIT "ONE" PARCEL A: Order No. 9711161 PARCEL 1 OF PARCEL MAP NO. 18720, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAND DIEGO COUNTY, JUNE 5, 2001 AS FILE NO. 2001-03685640F OFFICIAL RECORDS. PARCEL B: NONEXCLUSIVE RIGHTS SHARED WITH PARCEL 2 OF PARCEL MAP NO. 18720, IN AND TO THAT EXCLUSIVE EASEMENT TO CONSTRUCT, MAINTAIN, REPAIR, REPLACE AND REMOVE A ROADWAY AND TO PROVIDE FOR VEHICULAR AND PEDESTRIAN INGRESS AND EGRESS, OVER, ALONG AND ACROSS THAT PORTION OF LOT 1 IN THE CARLSBAD TRACT NO. 74-21, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA ACCORDING TO MAP THEREOF NO. 10372, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, APRIL 13, 1982, DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEASTERLY CORNER OF SAID LOT 1; THENCE SOUTH 88°14'35"WEST, ALONG THE NORTHERLY LINE OF LOT 1, 100.00 FEET; THENCE SOUTH 01 °45'25" EAST, 18.00 FEET; THENCE NORTH 88°14'35" EAST 100.30 FEET TO THE WESTERLY RIGHT OF WAY OF LOKER AVENUE AS SHOWN ON SAID MAP, SAID WESTERLY RIGHT OF WAY BEING A NON-TANGENT 536.00 FOOT RADIUS CURVE, CONCAVE EASTERLY, WHOSE CENTER BEARS NORTH 86°19'07" EAST, THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 01 °55'28", 18.00 FEET TO THE POINT OF BEGINNING. PARCEL C: A RECIPROCAL, NON-EXCLUSIVE, PERMANENT EASEMENT AND RIGHT OF WAY OVER, UDDER, ALONG AND ACROSS PARCEL 2 OF PARCEL MAP NO. 18720 FOR THE PURPOSE OF PEDESTRIAN AND VEHICULAR ACCESS, INGRESS AND EGRESS TO AND FROM THE RESPECTIVE PARCELS IN THE AREA THAT ARE IMPROVED AND DESIGNATED AS INTERNAL CIRCULATION DRIVEWAYS, COMMON ACCESS DRIVEWAYS, SIDEWALKS AND SIMILAR IMPROVEMENTS; TOGETHER WITH AN EASEMENT FOR SURFACE DRAINAGE OVER AND PARKING UPON SAID PARCEL 2 OF PARCEL MAP NO. 18720, AS RESERVED IN THE "DECLARATION OF RECIPROCAL ACCESS, DRAINAGE AND PARKING EASEMENTS" RECORDED MAY 3, 2001 AS FILE NO. 2001-02806280F OFFICIAL RECORDS. PARCEL D: AN EASEMENT FOR RECIPROCAL ACCESS, PARKING AND DRAINAGE, OVER, ACROSS AND UPON PARCEL 2 OF PARCEL MAP NO. 18720, AS DESCRIBED IN THE "COVENANT FOR EASEMENT" RECORDED JULY 31, 2001 AS FILE NO. 2001-05343240F OFFICIAL RECORDS. Assessor's Parcel No: 209-081-31 2 Order No. 9711161 AT THE DATE HEREOF, ITEMS TO BE CONSIDERED AND EXCEPTIONS TO COVERAGE IN ADDITION TO THE PRINTED EXCEPTIONS AND EXCLUSIONS IN SAID POLICY FORM WOULD BE AS FOLLOWS: 1. Property taxes, which are a lien not yet due and payable, in~luding any assessments collected with taxes to be levied for the fiscal year 2004-2005. 2. The lien of supplemental taxes, if any, assessed pursuant to the provisions of Chapter 3.5 (Commencing with Section 75) of the Revenue and Taxation code of the State of California. 3. Water rights, claims or title to water, whether or not disclosed by the public records. 4. An instrument entitled "Hold Harmless Agreement -Drainage" recorded March 29, 1982 as Instrument/File No. 82-083817 of Official Records. Reference is made to said document for full particulars. 5. Ea.sement{s} for the purpose(s) shown below and rights incidental thereto as delineated or as offered for dedication, on the Map of: 10372. Purpose: Sewer and drainage Affects: As shown on said map 6. Covenants, conditions and restrictions (deleting therefrom any restrictions indicating any preference, limitation or discrimination based on race, color, religion, sex, handicap, familial status or national origin) as set forth in the document Recorded: October 11, 1985, Instrument No. 85-378668, of Official Records Said instrument also provides for the levy of assessments, the lien of which are stated to be subordinate to the lien of certain mortgages or deeds of trust made in good faith and for value. 7. Covenants, conditions and restrictions (deleting therefrom any restrictions indicating any preference, limitation or discrimination based on race, color, religion, sex, handicap, familial status or national origin) as set forth in the document Recorded: December 29, 1986, Instrument No. 86-614181, of Official Records 8. Matters contained in that certain document entitled "Easement Agreement Right of Way" dated August 2, 1988, executed by and between Kaiser Development Company, a California corporation and McMahan Realty Company, a California corporation recorded August 22, 1988, Instrument No. 88-416291, of Official Records. Reference is hereby made to said document for full particulars. 9. An instrument entitled "Hold Harmless Agreement Drainage" recorded September 22, 1988 as Instrument/File No. 88-480651 of Official Records. Reference is made to said document for full particulars. 3 ITEMS: (Continued) Order No. 9711161 10. An instrument entitled "Hold Harmless Agreement Drainage" recorded September 27, 1988 as Instrument/File No. 88-489401 of Official Records. Reference is made to said · document for full particulars. 11. Matters contained in that certain document entitled "Covenant and Agreement" dated August 22, 1988, executed by and between McMahan Realty Co. and The City of Carlsbad, a municipal corporation recorded October 7, 1988, Instrument No. 88-512004, of Official Records, which document, among other things, contains or provides for: Agreement to pay drainage fees as required by the growth management program and the adopted local facilities management plan for zone 5 -Sunnycreek Drainage Area. Reference is hereby made to said document for full particulars. 12. Easement(s) for the purpose(s) shown below and rights incidental thereto as granted in a document; Granted to: Purpose: Recorded: Affects: City of Carlsbad A water main June 1, 1989, Instrument No. 89-290565, of Official Records A portion of said land 13. Covenants, conditions and restrictions (deleting therefrom any restrictions indicating any preference, limitation or discrimination based on race, color, religion, sex, handicap, familial status or national origin) as set forth in the document Recorded: February 7, 1997, Instrument No. 1997-0055229, of Official Records 14. Matters contained in that certain document entitled "Declaration of Reciprocal Access, Drainage and Parking Easements" dated April 27, 2001, executed by Newport National/Cornerstone LLC, a California limited liability company recorded May 3, 2001, Instrument No. 2001-0280628, of Official Records. Reference is hereby made to said document for full particulars. 15. Covenants, conditions and restrictions (deleting therefrom any restrictions indicating any preference, limitation or discrimination based on race, color, religion, sex, handicap, familial status or national origin) as set forth in the document Recorded: May 3, 2001, Instrument No. 2001-0280629, of Official Records 16. Easement(s) for the purpose(s} shown below and rights incidental thereto as granted in a document; Granted to: Purpose: Recorded: Affects: Carlsbad Municipal Water District, a public agency For the general purpose of collection, storing, transporting, pumping and treating all water, including surface water, stream water, flood water and ground water flowing into said facilities and all natural and artificial drainage ditches and structures of any kind, whether above or below the surface of the ground June 5, 2001, Instrument No. 2001-0366642, of Official Records A portion of said land 4 ITEMS: {Continued) Order No. 9711161 17. Easement(s) for the purpose(s) shown below and rights incidental thereto as granted in a document; Granted to: Purpose: Recorded: Affects: City of Carlsbad, a municipal corporation Sewer access June 5, 2001, Instrument No. 2001-0366643, of Official Records A portion of said land 18. A notice of restriction on real property by the City of Carlsbad was recorded June 26, 2001 as File No. 2001-0431859 of Official Records. Reference is made to said document for full particulars. 19. An instrument entitled "Hold Harmless Agreement Drainage" recorded July 19, 2991 as Instrument/File No. 2001-0501853 of Official Records. Reference is made to said document for full particulars. 20. Matters contained in that certain document entitled "Covenant and Agreement" dated, executed by and between Newport National/Cornerstone, LLC, a California limited liability company and the City of Carlsbad recorded July 31, 2001, Instrument No. 0534323, of Official Records. Reference is hereby made to said document for full particulars. 21. Matters contained in that certain document entitled "Covenant and Agreement" dated, executed by and between Newport National/Cornerstone, LLC, a California limited liability company and the City of Carlsbad recorded July 31, 2001, Instrument No. 2001-0534324, of Official Records. Refere.nce is hereby made to said document for full particulars. 22. Easement(s) for the purpose(s) shown below and rights incidental thereto as granted in a document; Granted to: Purpose: Recorded: San Diego Gas & Electric Company, a corporation Underground electric facilities and underground communication facilities August 14, 2001, Instrument No. 2001-0575725, of Official Records The exact location and extent of said easement is not disclosed of record. 23. Easement(s) for the purpose(s) shown below and rights incidental thereto as granted in a document; Granted to: Purpose: Recorded: Affects: Carslbad Municipal Water District, a public agency Water easement October 7, 2002, Instrument No. 2002-0865007, of Official Records A portion of said land 5 ITEMS: (Continued) Order No. 9711161 24. A deed of trust to secure an indebtedness in the amount shown below, and any other obligations secured thereby Amount: Dated: Truster: Trustee: Beneficiary: Loan No.: Recorded: $3,753,750.00 December 18, 2002 Franz, LLC, a California limited liability company Zions First National Bank Zions First National Bank None shown December 18, 2002, Instrument No. 2002-1166885, of Official Records 25. An assignment of all the moneys due, or to become due, as rental, as additional security for the obligations secured by deed of trust shown as item no. 24. Assigned to: by Assignment Recorded: Zions First National Bank December 18, 2002, Instrument No. 2002-1156886, of Official Records 26. A deed of trust to secure an indebtedness in the amount shown below, and any other obligations secured thereby Amount: Dated: Truster: Trustee: Beneficiary: Loan No.: Recorded: $1,263,000.00 December 14, 2002 Franz LLC, a California limited liability company Discovery Valley Bank Discovery Valley Bank None shown December 18, 2002, Instrument No. 2002-1156887, of Official Records 27. An assignment of all the moneys due, or to become due, as rental, as additional security for the obligations secured by deed of trust shown as item no. 26. Assigned to: by Assignment Recorded: Discovery Valley Bank December 18, 2002, Instrument No. 2002-1156888, of Official Records 28. Matters contained in that certain document entitled "Hazardous Substances Certificate an~ Indemnity Agreement" dated December 14, 2002, executed by and between Franz, LLC, and Discovery Valley Bank recorded December 18, 2002, Instrument No. 2002-1156889, of Official Records. Reference is hereby made to said document for full particulars. 29. An unrecorded lease with certain terms, covenants, conditions and provisions set forth therein as disclosed by the document Entitled: Lessor: Lessee: Recorded: Subordination Agreement Franz, LLC, a California limited liability company O'Day Consultant, Inc. January 15, 2003, Instrument No. 2003-0050802, of Official Records The present ownership of the leasehold created by said lease and other matters affecting the interest of the lessee are not shown herein. 6 J ITEMS: (Continued} Order No. 9711161 An agreement which states that this instrument was subordinated to the document or interest shown as Item No. 27, By agreement Recorded: January 15, 2003, Instrument No. 2003-0050802, of Official Records 30. A deed of trust to secure an indebtedness in the amount shown below, and any other obligations secured thereby Amount: Dated: Trustor: Trustee: Beneficiary: Loan No.: Recorded: $1,300,000.00 December 17, 2002 Franz, LLC, a California limited liability company Chicago Title Company CDC Small Business Finance Corp. None shown January 15, 2003, Instrument No. 2003-0050803, of Official Records An assignment of the beneficial interest under said deed of trust which names: Assignee: Loan No.: Recorded: Untied States Small Business Administration None shown January 15, 2003, Instrument No. 2003-0050804, of Official Records 31. Matters which may be disclosed by an inspection and/or by a correct ALTA/ACSM Land Title Survey of said land that is satisfactory to this Company, and/or by inquiry of the parties in possession thereof. 32. Any easements not disclosed by those public records which impart constructive notice as to matters affecting title to real property and which are not visible and apparent from an inspection of the surface of said land. 33. Any rights of the parties in possession of a portion of, or all of, said land, which rights are not disclosed by the public record. This Company will require, for review, a full and complete copy of any unrecorded agreement, contract, license and/or lease, together with all supplements, assignments and amendments thereto, before issuing any policy of title insurance without excepting this item from coverage. The Company reserves the right to except additional items and/or make additional requirements after reviewing said documents. 7 I J ITEMS: (Continued) Order No. 9711161 34, Before issuing its policy of title insurance, this Company will require for review, the following documents from the Limited Liability Company named below. Note 1. Note 2. Note 3. Note 4. Limited Liability Company: Franz LLC, a California limited liability company (al (bl (c) (d} (e) A copy of its operating agreement and any and all amendments, supplements and/or modifications thereto, certified by the appropriate manager or member. Confirmation that its Articles of Organization (LLC-1}, and Certificate of Amendment (LLC-2), any restated Articles of Organization (LLC-1 Ol and/or Certificate of Correction (LLC-11) have been filed with the Secretary of State. If the Limited Liability Company is member-managed a full and complete current list of members certified by the appropriate manager or member. If the Limited Liability Company was formed in a foreign jurisdiction, evidence satisfactory to the Company, that it was validly formed, is in good standing and authorized to do business in the state of origin. If the Limited Liability Company was formed in a foreign jurisdiction, evidence satisfactory to the Company, that it has complied with California "doing business" laws, if applicable. After review of the requested documents, the Company reserves the right to add additional items or make additional requirements prior to the issuance of any policy of title insurance. END OF ITEMS Property taxes for the fiscal year shown below are PAID. For proration purposes the amounts are: APN: Fiscal year 1st Installment: 2nd Installment: Exemption: Land: Improvements: Personal Property: Code Area: 209-081-31 2003-2004 $30,402.68 PAID $30,402.68 PAID $0.00 $1,055,000.00 $4,835,000.00 $0.00 09013 The Company is not aware of any matters which would cause it to decline to attach the CL TA Endorsement Form 116 indicating that there is located on said land single family residence known as 2710 West Loker Avenue, Carlsbad, CA to an Extended Coverage Loan Policy. There are NO deeds affecting said land, recorded within six (6) months of the date of this report. If you are aware of any improvements whatsoever that have been recently completed, that are ongoing, or contemplated prior to closing, this office must be informed Qf these facts immediately so that your transaction is not delayed. 8 ITEMS: (Continued) Order No. 9711161 Note 5. Section 12413. 1, California Insurance Code became effective January 1, 1990. This legislation deals with the disbursement of funds deposited with any title entity acting in an escrow or subescrow capacity. The law requires that all funds be deposited and collected by the title entity's escrow and/or subescrow account prior to disbursement of any funds. Some methods of funding may subject funds to a holding period which must expire before any funds may be disbursed. In order to avoid any such delays, all fundings should be done through wire transfer, certified check or checks drawn on California financial institutions. Note 6. The charge where an order is cancelled after the issuance of the report of title, will be that amount which in the opinion of the Company is proper compensation for the services rendered or the purpose for which the report is used, but in no event shall said charge be less than the minimum amount required under Section 12404.1 of the Insurance Code of the State of California. If the report cannot be cancelled "no fee" pursuant to the provisions of said Insurance Code, then the minimum cancellation fee shall be that permitted by law. Note 7. California Revenue and Taxation Code Section 18662, effective January 1, 1994 and by amendment effective January 1, 2003, provides that the buyer in all sales of California Real Estate rnay be required to withhold 3 and 1 /3 % of the total sales price as California State Income Tax, subject to the various provisions of the law as therein • contained. • 9 ITEMS: (Continued} OrderNo.9711161 WIRING INSTRUCTIONS Senate Bill 1550, which became effective January 1, 1985, requiring the title companies to disburse on collected funds has raised many questions. The following information is provided to assist our customers with the law: The fastest method for receiving collected funds is by wire transfer of funds credited to your account. The following instructions should be used when funds are being wired to our bank: EFFECTIVE NOVEMBER 16, 2001 Wire funds through the Federal Reserve Bank to: Union Bank of California, Los Angeles, CA ABA No.: 122000496 Credit to: Fidelity National Title, Corona Title Trust Account Account No. 9100744500 Title Order No.: 9711161 10 Fidelity National Financial Group of Companies' Privacy Statement July 1. 2001 We recognize and respect the privacy expectations of today's consumers and the requirements of applicable federal and state privacy laws. We pelieve that making you aware of how we use your non-public personal information ("Personal Information"), and to whom It Is disclosed, will form the basis for a relationship of trust between us and the public that we serve. This Privacy Statement provides that explanation. We reserve the right to change this Privacy Statement from time to time consistent with applicable privacy laws. In the course of our business, we may collect Personal Information about you from the following sources: • From applications or other forms we receive from you or your authorized representative; • From your transactions with, or from the services being performed by, us, our affiliates, or others; • From our internet web sites; • From the public records maintained by governmental entities that we either obtain directly from those entitles, or from our affiliates or others; and • From consumer or other reporting agencies, Our Policies Regarding the Protection of the Confidentiality and Security of Your Personal Information We maintain physical, electronic and procedural safeguards to protect your Personal Information from unauthorized access or intrusion. We limit access to the Personal Information only to those employees who need such access in connection with providing products or services to you or for other legitimate business purposes. Our Policies and Practices Regarding the Sharing of Your Personal Information We may share your Personal Information with our affiliates, such as insurance companies, agents, and other real estate settlement service providers. We also may disclose your Personal Information: • to agents, brokers or representatives to provide you with services you have requested; • to third-party contractors or service providers who provide services or perform marketing or other functions on our behalf; and to others with whom we enter into joint marketing agreements for products or services that we believe you may find of Interest. In addition, we will disclose your Personal Information when you direct or give us permission, when we are required by law to do so, or when we suspect fraudulent or criminal activities. We also may disclose your Personal Information when otherwise permitted PY applicable privacy laws such as, for example, when disclosure is needed to enforce our rights arising out of any agreement, transaction or relationship with you. One of the important responsibilities of some of our affiliated companies ls to record documents in the public domain. Such documents may contain your Personal Information. Right to Access Your Personal Information and Ability to Correct Errors or Request Changes or Deletion Certain states afford you the right to access your Personal Information and, under certain circumstances, to find out to whom your Personal Information has been disclosed. Also, certain states afford you the right to request correction, amendment or deletion of your Personal Information. We reserve the right, where permitted by law, to charge a reasonable fee to cover the costs incurred in responding to such requests. All requests must be made In writing to the following address: Multiple Products or Services Privacy Compliance Officer Fidelity National Financial, Inc. 601 Riverside Avenue Jacksonville, FL 32204 If we provide you with more than one financial product or service, you may receive more than one privacy notice from us. We apologize for any inconvenience this may cause you. EXHIBIT A AMERICAN LAND TITLE ASSOCIATION RESIDENTIAL TITLE INSURANCE POLICY 16-1-87) EXCLUSIONS In addition to th• Exceptions in Sch■dul• 8, you are m~t i,sur-ltd against 1011. ccliti, 1ttorn•vs' fffl, and axp■Mts resulting fron'I: 1, Gcveirnmental police pow•r, and th• txist.nce or violation of any t.aw ot government rogulation. Thi$ irick.ldm. building -11nd zoni,g ordimmces and ako lawr and regulation• ooncsrning~ • I.and UH • improvements cm the land • land div1iion • •nvirQnm1ntal -prottc.t!on This d1Xi;!Y1i:ion do■ s not apply to violations or th& enforc,ment of ti'IHl!ll matters which app■ilt _.. 1he pub lie r,cords at policy date. This t)(c!Uf$l0n doec not fknlt th• zoniig coverage d11crib,d il Item, 12 and t 3 or Cgven,d Title Rltkt. 2. Tho right to lako th• land by oondemnlng 11. unkt11: • a r,otica of ,xerc/1lng VI• right app•ar1 n 1ho pubric racotd1 on tho Polley Data • th■ taking happened prbr ta th• Polley tl•t• end Iii bindi'ig on you if you bovght th• land without knowledoo of tho takng In addition to tha Exclusions, yo1,1 are not i"'lsur•d •g•irl•t Ion, coatt, attornoywi' fclH, and the expenso, resulting from: 1. Any rightl', interests, or claim, of parti..-in posseulon of tha land not •hewn by di• public r.cords, 2:. Any HHmonw c;ir liens not thown by th■ public roeord,. This does not lirttlt 1h1 lien oov«aga in lteM e of Coverod ritlo Riek,. 3. Titl1 Riok.: • that are crNted, allow~. or'"''°" tQ by you • that are known to you, but not to ua, on 'lh• Polm Oat•unlsss they appoarod in tha public rlfCotdti • that re&Ult In no Joss to you • that first affaet your tlt!o after th• Polley Date • !hi$ doos not limit tho labct and matoriol lion cov«aga in Item a of Covar•d Titft Rtlks 4. Failut■ to pay VIIUO for your titlt. 5. Lack of a right; • to er,y land oub:ide lh• aru -s>ecffiQalfy d•cri:led and r•f•r•d to in Item 3 of Sdi■duhl A or • ii stroot,, elleys, or watorway, that 1oud\ your kmd Thil exciusk>o dee• not li"nit tho 1i;c;en cov«age In ltom 5 of Covtred Title RiGl<s. 3. My fact. ob out th• land whiolt a con-•et surv.,y would dice Jo., and whioh ar• not shown by tho public rtcords. Thie do■~ not linit 1ht forc■d r•movat covw•g• in: ftem 12 of Cov•■d Tlti. Risks. 4. My wator rillht,; or claims or tltlo to watll' In or under th■ land, Wh•thor or not mown by tho public teoords. CALIFORNIA LAND TITLE ASSOCIATION STANDARD COVERAGE POLICY -1990 EXCLUSIONS FROM COVERAGE The followllQ nu1tws ora expr~ly axclud•d from tti, i;c;iv■rac,w of 1hil policy and 11,a Company wiD not pay loss or damaga, cons, attorn•Y•' f•• or expon111 which wia-■ by rtaton of: 1. (a.) Any law, crdinanc1111 or Qovornrn.-.tal regulation (i,ollJdingi butnotlinited to buildinlil and zonhg laws, ordlnAni;ot, or r■glllaitions) rHU-k:tiog, regulattlig. prQhibitii; ot relatinQ (0 u,, oocupill\QY, 1.1se, or enjoyrnont of tha land; (ii) tho charactar, di-ntnticn1 er loo1'\iQn of any n'\provemtnt nQW Qr har■after erected on the !.nd; (iii) • .. parai!on In owner.t.lp or a chang:• 11 di• dimensions er art• Qf "th• land or any parcel of whloh 'the land 11 or wn a part; or (iv) tnvlronment,il prc::it■ction, or tht tff~t of any violation of thHo \41iws, ordVlances or iOvemrnental rtgul1tion1, ,xoep1 to the txttnt fiat• notic• cf thei enforcimtnt thE.1reof or a notice of I dtftct1 rian at .ncumbranc:t rtsulting from a vtOlati<m or 1lle;•d vlolotion affacting tho lilnd has bHn record.din the publio records l'C Datt of Policy. (bl Any Qovemmental polk:1 powor not oxoludod by (o) abo,o, ,xeept to 1ht txtont that• notico of tht axerciae thereof or a notice of • dafact, lien or encumbrance rtsulting from a violation or aUeo•d violation affectin9 Ula land hu bHn r,c;ord•d in 1h• public rtcQf'dlJ at D•t• of Polley. 2. Right, of eminont domain unlus nottc• of th■ ■x■rclH ther,of has bffl'l r■corded in tho public r■cords at Data of Policy. but not •)(eluding from cov■rag• W'IY taking whk;h has occurred prior to Datt of Poticy which would b& binding on the rightt of a purcha .. r for value whhout knowltdge. 3. Oefec:ts, fi•ns. oncurnbrancu, advtrH ol,kns, at ath., matters; (al whether ct not r•oordod h 1h, pvblio r•oords at Dot. of Polley, but c:roatad, roff111d, atsumod or agreed to by th• i·u1,1.1r.ad claimant; lb) not known tc;, th• Company. not rKorded in the public tecords at Daw of Policy, but known to the i'lwrtd cl1fflflllt and not ditclosed in writing to tht Compill}y by the ins1.1rtd claimant ptlor to the dato lh• lnsurod clalmont beoam• an ln111red under this policy; (cJ rtsulting il no bu ot damage to the n,ur•d claknant; [di attaching or orootod subHquent to Oat• of Polley; or !•I ro.ultng In loH or damao• which would not have b""' S1J•taln•d If tho il•urod olaimant had paid valu• for th• n"'rod mortgage or for tho -tao, lnternt lnourod by this pollcy, 4. Unonforoeab!lty of lho lien of th• Insured mortiiao• h1ctu1• of th■ lnabllitv or /oilur• of tho lnsurod el Dato of Policy, or tho lnabHity or fallura ohny ,ubuquont owner of the lndobt•dnon, to comply with th1 applioabl• doing buslnHI law• of the state In which the land Is ,iwatod. 6. Invalidity or unanfotC•a.bllity of the lien of fflt i\tured morto•o•. or c:l1in ther•of, which arlH• ovt of the transaction ,vktenced by U,e ln'1.1r■d mortoao• and ii bu.ct upon uwry or any con11.1m« «;:redit protection ct truth n lw,dlna law. 6. Any elam. which «iaH out of th• 1ransaction. VHting 11 th11 Insured tho ntate or interest i\sured by th,r polic.y or th• transactlon crHthg tha iit«est of tho inltlfred lander, by rol'on of th• operation c;,f fedt1ral bankruptcy, JStata insotvonc.y or similar crediu>n' right& laws. SCHEDULE B. PART I EXCEPTIONS FROM COVERAGE Thia policy does not insure ag~lnst los, or damage (and tht Company wlll l'lot p&y co1t11, attorneys' ftts or t)(Pf90&11&) Which arise by roa&on of: 1. T aMs Qr ai.&e&smints which are not shown as oxrltiog lisns by the rocords of ~my taxing au1:hority tt'n•t l11vitJ$ taxes or a&sanments on real property or by dit P'-'blic r.cord:s:. Proc::c,oding& by a public' agonoy which may reirult in taxes or -Nlienm■nts, or notir;:01 of 1ruch proc1111dings, whothar or not shown by tha record• of such agency or by the pubHc rae:ord1, 2. Any facts, right&, interests or claim& which art not mown by th• public: roc.ord, but which couJd bl(t; ascertained by 11r1 inspeotion of 1ho land or which may b• M•ert~ by pw.ons il Po*'Hslon thareof. PART! 3, E,semanta, litns or onoumbrancff, or olai,la thtr•Of, whidi ara not shown by tfi• publio r•cords. 4, Oi1grepanclet, conftlow fn boundary lines, 1hortage n art1, .-ru:::roachmontt, or any othwr facts which 1 com1ct surv•v would di,ck>H, and which ar■ not shown by th■ public rteords. 5. (1) Unpatented mlnng ol;,ims; (bl rM1<V1uon1 or •xooptlon• in patents or in Act,; authctll!lno the iNuem;:e th«tof, (cl water riQ.hts, claim or titi• to wator, wli•th.-or not the matters axc•pted under [II), {b), Ot (ol aro lhown by th• publio reoord•. EXHIBIT A (CONTINUED) AMERICAN LAND TITLE ASSOCIATION LOAN POLICY (10·17-92) WITH A,t..T.A. ENDORSEMENT-FORM 1 COVERAGE EXCLUSIONS FROM COVERAGE Tho followng maltor• 1110 oxpro••ly ,xoludod from the coverage of this policy and tho C~any will not pay Joss or damage, c;:.osta, attorn1y1S' f11111s or exp,n,H Which arise by raa,on of: 1. (a) Any law. ordinanc;a cl' govornmontat r•auiation {ii,c;:Judi':IQ but not tlmited to buikllng and zoning law•, ordinances, or rcigulattona} rottricting, r•gulatin;, prohibiting or rtl•tW'lQ to {I) tho oool.Jpancy, use, or onjoyment of th• land; lm tho character, dimonsions or location of .,,y improvement now or h111eaftor erscted on thi, land; (if~ • ,eparatlon il ownership or a chang• n th• dim1nsk>n; or••• of dl• land or any parc:ol af which tho hind is or WH ;i patt; er (ivJ environmal'\tal protit0tion, at the •fftot of any violation of these: law,, crdrlances or gov..-nn"!ffltal rtgulations, exctpt to th• axt•nt thtt a nctic• of tht .nfaro•mtnt 11,,,raof or• notice of a defect. lien or encumbrance r•ultiig from a vioJation or allaQtd viol•tion affecting th■ land has bean t.corded in tha publ10 record, at t)ata of Polley. lb) Any govomm..,tal pollco power not 1xc1Uded by la) abovo, except to tho oxtont that a noUoe of the exercise thereof or a l"lotlce of a d■f•ct. Uen or ancumbranc:o resulting fron, 1 violation or alleg-,d violation affecting the land hH bun rocordod n lh• public records at Dato of Polley, 2. Rights of eminent domain unsew notice of the exercin: thereof h■1 b■an r•corded in th• public record, ~t Data of Polley. butnot•xcludlng from ocv«1ge any takiia which h• oct::urred prier to 0.-tt: of Polley which W01Jld be binding on tho rlqhts of a purchaser f.,.-value WithO<lt knowkodgo, 3. O•f•ct,. RMs, encumbran,;es, adv«H i;Jaf'J')S, or olhor l'Jlilttars: l•l cre•tod, wffo<ed, assumed or agreed to by lh• insured cloimar,t; !bl not known to th• Company, not rocordod In th• public record• at O•t• of Policy, but known to tho insuri,d claimant and not disclos,d in wtitrtg to 1ho Company by th• k1'ured claimant priQt to th• date the insured c1alrnam became an Insured ul'ld«-th.ii poliov; (cl resu(tinq i, no ron Qr damaga to tia iicur~ cf1im,nt; (di attaching or croated ,ubo•quont to tl•t• of Polley (oxcopt to tho oxtent that thio policy ln111.1r•• the priority of tho lien of the in11.1rttd mortgag, ov.r any statutory lien for HNictlf, labor or matwt.l ot to the extent insurano• 1, effordad h«on H to assn,mentt: for stre■t lrl'\provwnants un:d.,. con,trt.iction er c:arnpletod at Oat• of Policy); or (e) r••Ultlng in Ion or dama,ga which WO\lld not have been sust.ined if ti, iru:ut.c:I clainant had P•id value for th• i'IIUred mortgago. 4, Unonforcaabllity of tho lien of the naurod morto•a• boc.,. .. of tho Inability or lalluro of lh• inaurod at Oat• of Polley, ot the inability or failure of any .ubHquont ownor of tho lndabtednoH, to comply with applicabl• doing business ll'N• of th• ,tat■ In which tht land nr situatad, a. ln11alld1ty or un..,forcoobaity of1h• llan olth• naurad mortgage, or claim theraol, which arises out of the tran,..,tion ovldoncod by tho .,,urod morb;J•O• and lo b .. od upon u"'ry or tl\Y oon"'mer crtdlt protection or trtnh in lending law. 6. Any st«tutatV litn for •arvia••• Jabor or mawJaJs (or th• claim of priority cf any r.t11tutcrv hen for 1orvlc1s, labor or materials over tho 11-n of th• hour,d mortgage) .-Ising from 111 irnpr0v111n1nt or work ralatod to lho land which io contracted for and commoncod O\lb&oqu■nt to O•te of Policy and ;. not f111anced in whole or ii part by prce•eds of Ult rldabtedn111 tecau•d by the J"l■ured mortgai.ia which at Oat• of Policy th■ i"laured hH ,dvanced or is obltgattd to ~vant::•. 7, Any cfain, whit:h atf,tt out ot th• transaetlon crtHJtna die tflWatt of 1he mortQ•gH rt,ured by thi• policy, by reason of th• opor11tion of federal bankruptcy, stilta lnaot-lency, or similar ~e(ljti;in:' ri{ahts l~vv•, that ii baod on: (ii th■ tranaac.tion creati-ig th• interest of the inVYr■cl mortga;•• baing d•em,d a fraudulent convey.a.nc• or frt1Udut.nt 1ran,for; 01' (IQ tho oubotdn1tion of tho ntarm of th• insured rnortg1;0, •• a , .. ult of th• application cf 1/1• doctrno of equitabJe 11.1bordiiation: or (ip) th• trannction craatl!g tho intlllMt of tho i'l<Urod mort;agu being d....-nod a pref"on~•I transfer except where tho ptaf111rtnti1l tniosf.,. rMuttl: frotn th• faitura; (iY to tinaJy reoord th• h1trumtK1t of transf.-; or (b} of wch record11tion to hlpart notic• to a purchu.,-for v,k.l• or a 1,Jdgem11nt or lien creditor. AMERICAN LAND TITLE ASSOCIATION OWNER'S POLICY (10-17-92) l:XCLUSIONS FROM COVERAGE: The following matters are expranly oxc:fud11d from tho c:overaga of this poliQY and the COfTlpany will not pay !oH or d&!Tlillil"• costs. attorn-vs• feH or axpan,.s whtl.h arise by reason of: 1. {al Any law, ordinanco or govornmontal rOQu~tion {ncludi1g but not limited to buikli'lg and zoning !awe, ordlnonoss, or rogul•tion•J rootrio\iog, rogullti'lg, prohibiting or ro~tlng to {iJ tho occupancy, UIO, or anjoymont of th• land; (ii} the charact.r, dimtnslonir or location of any improvement novv or hereafter er11cted on th, land; UliJ • r;:11peration in ownership or• chang• r'I th• dmtrl■iona er aroa of tha land or any parcel of which the lond i• or was • port; or (Iv) onvironmont1l protection, or tno effoot of any violation of tho&n laws, ordinanc•s or gov.-nmtntal r~1.datlcn•, except to th• a)(ttn,1 fi•t a nctio• of the enforc:omant tharoot or a notice of• defect, lien or encumbranc• rMUtting from I violation or alt.gtd violation affecting tho land hat b1on recorded in th• pubho t&e0rd1 It Oilta of Policy. (bl Any governmontal polic■ pow" not •~oudod by (a) above, except to tho oxtont that• notlca of tho tx&rcisa thertof or a notics of • d■f■ct, tiln or wu:umbranc, rMUlti'iQ' from I vk>lati::>n or alleged vlol;.tion affecting th■ land ha, b•.-. r•corded in th• public r.cords at Datt of Policy. 2. Righi¥ of ominont dom•i'I uni .. • notice of tho oxorcisa thareof h .. b-racorded In the public record• •t Dot• of Policy, butnotexcludilg from coverage '11\Y taking which hea occurred prior to Date of Polley which would be binding on the righhl of a purchaser tor val\le withoot knowledge, 3. Oefectli, u~ns. en1:1.1mbranccs, advel'$t elains, or ath«" matto": (a) created, suff«ud, aU\Jmed or agreed to by the i'mtttd clalnant; (M not known t,;, th• Comp"'1y, not recorded in the public r■cordo at D•I■ of Policy, but known to the i'lwrad claimant ond not dioclo,ed n wrlti'lg to th• Company by th• Insured claimant prior lo the dat• tho ln1Nt•d claimllnt bocom• an lnwred under thi< policy; {o) <Hullii~ in no loH or dlll'IIAQo to th• nsurod cliirnant; Id) attachng o, creatad ,ub .. quont to Oat■ of Policy, or {t) r■sultiig Il loH or damttg, which would not have bai:in GUstalned if th• insured clillirnant hlld paid val.io lot tht totato or nt111nt Insured by thio porlO'f. 4. Any olaim, which orio■• out of tho ttanoaotlon vestng in tho incurod tho "tat• o, lntarut i'l<Ured by thia policy, by ro .. 011 of tne op.-atlor\ of fodo,al bankNptov, otato ln,olvanoy, or similar creditoro' right& law.. 1hat iii based on: {il tho trannction creatilg th• astatl or i,tet .. t houred by tnio policy bong d"med a fraudulent conv•yAnc• or fraudul«lt 1ransflN'.' or (IQ U,e "transaction crt1t-'111 the ntate or int«ast l1•ur■d by 1:htl polioy b•r'lg daamtd a prtfersntial tran1for exc■pt wh..-. 1h• preferential tran&fllf" rHults from 1h• h11ikx■~ (1) to timely record lh• instrument of translor; or {b) of such r•corcfation to i-npart notice to a purc;hHIN' fer v,fu■ or• r-,ldgernent or lion creditor. The above ALTA policy form■, dated 10-17•92, may b• i&.ued to afford oithor Stond..-d Covll'ago ot Extended Covarago, In addition to tho ab0110 Exclusions from Covo<>Q•. tho Excoptloo• from Covarago In • Standard Covotago policy wlll aloo include tho following Gonorol Excaptlons: EXCEPTIONS FROM COVERAGE This policy dc■s not insure against ton or damag, (and th• Company will not pay ool'ts, ■ttorn,y,' faea or •xpi,naM) whk:h ar~11 by reason of: 1. Taxes or a-s~enm81ltswhlch ar, notwhown aw exi&titig lton, by \i,11 r.cotds of ~Y t.-xlng «uthorhv th•t lavles taxes or P!ilieli&ments on real property or by th• public record•. Proee,ding• by • public agency whj(;h may roliUlt in taxH or HHHmtntf, ot noticos of such pro~eodlo~•, wh•th•r or not IAlown by the records "' such agonoy or by th• pubJic r.cordt. 2. Any fact,, rlghbi:, inttrHW or clairnt which ar• not 1hown by d-iie publlo raoords b1.1t which could b• ascnrtainod by M inspoctir;in of the tand or by making inqui'y of ptrlJQl'ls n riosse11lon 1her•of. 3. EHtm■ntt. litn, or IKlCUmbrWlQIJ81 or clainw thtll'.of, which ¥• not shown by the p1.1blt0 rtoorda, 4. O~crepanclt•, oonfltOtt in boundatY llnH, ,hortao• in area, ancrcai;hm■nts, or any othet facts which ■ cort•ct .urv•y would dilSolgs■, .rid whtO:h al'• net ehown by tht pub lie rtcords, 5, (a) Unp1ttntad mining ckams; (b) rnervations or •><oapti0n1 in pat.nm or in Acts mnhorizW"lg tho inuance thereof: (c) w•t■r r(Qhts, clams °' title to wat111r. whethlllr' or not ch• matt«t OX'gepbrd under l•J. lb) or (cl a,o shown by the public reoord,, Atriu.m Lot If/Fram:, U.C OiutDffll 16371-00101 • 1804858.1 117'78.' SELLER: Atrium Lot Il, LLC, a California limited liability company By: The Emerald Lake/ Atrium II, LLC, a California limited liability company Its: Member By: Newport National/Cornerstone. LLC, a California limited liability company Its: Manager By: Newport National Corporation, a California corporation Its: Manager By: ~-"'1+1da~ Name: Scott Brusseau Title: President Description: San Diego,CA Dooumant-~e.r.DoeID 2002.1156884 Page: 2 0£ 5 Order: 9711161 Comment: .,, 117.79 EXHIBIT A LEGAL DESCRIPTION OF THE LAND PARCEL A: PARCEL I OF PARCEL MAP NO. 18720, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIBGO COUNTY, JUNE 5, 2001 AS FILE NO. 2001-0368564 OF OFFICIAL RECORDS. PARCELB: NONEXCLUSNE RIGHTS SHARED WITH PARCEL2 OFPARCELMAP NO.18720, IN AND TOTHATEXCLUSIVEEASEMENTTO CONSTRUCT, MAINTAIN, REPAIR, REPLACE AND REMOVE A ROADWAY AND TO PROVIDE FOR VEHICULAR AND PEDESTRIAN INGRESS AND EGRESS, OVER, ALONG AND ACROSS THAT PORTION OF LOT I IN THE CARLSBAD TRACT NO. 7~21, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIBGO, STATE OF CALIFORNIA ACCORDING TO MAP THEREOF NO. 10372, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, APRIL 13, 1982, DESCRIBED AS FOLLOWS: BEGINNJNG AT THE NORTHEASTERLY CORNER OF SAID LOT l; THENCE SOUTH 88°14135 11 WEST,ALONGTHENORTHERLYLINEOFLOT l, LO0.00FEET;THENCESOUTH 01 °45' 25" EAST, 18.00 FEET; THENCE NORTH 88?14' 35" EAST 100.30 FEET TO THE WESTERLY RIGHT OF WAY OF LOKER AVENUE AS SHOWN ON SAID MAP, SAID WESTERLY RIGHT OF WAY BEING A NON-TANGENT 536.00 FOOT RADIUS CURVE, CONCAVE EASTERLY, WHOSE CENTER BEARS NORTH 86°19' 07" EAST, THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 01°55128", 18.00 FEET TO THE POINT OF BEGINNING. PARCELC: A RECIPROCAL, NON-EXCLUSIVE, PERMANENT EASEMENT AND RIGHT OF WAY OVER, UNDER, ALONG AND ACROSS PARCEL 2 OF PARCEL MAP NO. 18720 FOR THE PURPOSEOFPEDESTRIAN AND VEHICULAR ACCESS, INGRESS AND EGRESS TO AND FROM THE RESPECTNE PARCELS IN THE AREAS THAT ARE IMPROVED AND DESIGNATED AS INTERNAL CIRCULATION DRIVEWAYS, COMMON ACCESS DRIVEWAYS, SIDEWALKS AND SIMILAR IMPROVEMENTS; TOGETHER WITH AN EASEMENT FOR SURF ACE DRAINAGE OVER AND PARKJNG UPON SAID PARCEL2 OF PARCEL MAP NO. 18720, AS RESERVED IN THE "DECLARATION OF RECIPROCAL ACCESS,DRAINAGEANDPARKING EASEMENTS11 RECORDED MAY 3, 2001 AS FILE NO. 2001-0280628 OF OFFICIAL RECORDS. Atrium Lot IVFr.mz. LLC Onin1D<ed 16371--00101 • 1804858.1 Description: san D~ego,CA Documsnt-Year . .OOcXD 2002.1156884 Page: 3 0£ 5 Order: 9711161 Comment: ., 11'180 PARCELD: AN EASEMENT FOR RECIPROCAL ACCESS, PARKJNG AND DRAINAGE, OVER, ACROSS AND UPON PARCEL2 OF PARCEL MAP NO. 18720, AS DESCRIBED IN THE "COVENANT FOR EASEMENT" RECORDED JULY 31, 2001 AS FILE NO. 2001-0534324 OF OFFICIAL RECORDS. Atrium Lot IVFranz. U..C Grant Deed 16371-00101 • 1804858,1 Description: San Diego,CA Document-Year.DocID 2002.1156884 Page: 4 of 5 Order: 9711161 Comment: Velocitel Standard Operating Procedure Policy #15: Billing for Site Cancellations and suspension Attachment #2: Billing Tracking Worksheet Project Number Cost Cat. ID Billing Rate Quantity Billable %Complete PDK Site Number: 102SASNFCCA2362 SA3-ZNDC-BLD-ML $ 2,100.00 1 $2,100.00 100% 102SASNFCCA2362 SA3-ZNDEC-PM 102SASNFCCA2362 SA3-ZNAPP-PM 102AESNFCCA2362 AE3-CD-STRU-ML $ 3,150.00 1 $3,150.00 100% 102AESNFCCA2362 AE2-ZD-TS-A 102AESNFCCA2362 AE3-ZD-TS-A 102AESNFCCA2362 Power-ML $ 720.00 1 $720.00 100% 102AESNFCCA2362 Telco-ML $ 1,080.00 1 $810.00 75% 102AESNFCCA2362 Rmis -Title Report $ 797.50 1 $797.50 100% Total a Cancellation Vendor PO Billing WIP (not yet in WIP) $ 2,100.00 $ 1,166.57 $ 66.66 $3,150.00 $ 369.93 $ 792.45 $720.00 $810.00 $797.50 $ 725.00 $7,577.50 b Total Costs $1,166.57 $ 66.66 $ 369.93 $ 792.45 $ 725.00 $3,120.61 a-b Net Profit (Loss) $4,456.89 0(6) Number of units to be constructed when a condominium or community apartment project is involved. 0(7) Total number oflots proposed. 0(8) Proposed density in dwelling units per acre. 0(9) Total building coverage. 0(10) Building square footage. 0(11) Percent of site to be landscaped. 0(12) Number of parking spaces required/provided. 0(13) Square Footage of required employee eating areas. Square footage provided (interior and exterior eating area, if applicable). 0(14) Square Footage of open or recreational space (if applicable), for each unit and total common open space for the project. 0(15) Area of the site which is undevelopable per Zoning Ordinance Section 21.53.230 (include the acreage in each category). If not applicable, state on the plans. 0(16) Cubic footage of storage space (if applicable). Show location. 0(17) Average Daily Traffic generated by the project, broken down by separate uses. 0(18) Name of sewer, water and school district providing service to the project. 2. SITE INFORMATION a. GENERAL 0(1) 0(2) 0(3) 0(4) 0(5) 0(6) 0(7) 0(8) 0(9) Approximate location of existing and proposed building and permanent structures onsite and within 100 feet of site. Location of all major vegetation, showing size and type, both within the project and offsite for a distance of 150 feet. Existing onsite trees; those to be removed and those to be saved. Location of railroads. Legal description of the exterior boundaries of the subdivision (approximate bearings, distances and curve data). Lot lines and approximate dimensions and number of each lot. Lot area for each proposed lot. Setback dimensions for the required front, rear and side yard setbacks for all structures. Distance between buildings and/or structures. Indicate top and bottom elevations for all fences, walls, and retaining walls. Show these elevations at each end of the wall and in the middle. Also show the worst condition elevation. 0(10) Indicate on site plan improvements and amenities for the interior and/or exterior employee eating areas, i.e. benches, tables, trash cans, etc. 0(11) Show site details for all recreation lots or areas (when applicable). 0(12) Location and dimensions of all accessways and pathways as required for compliance with Title 24 -State Accessibility Requirements. b. GRADING AND DRAINAGE 0(1) Approximate contours at 1' intervals for slopes less than 5%; 2' intervals for slopes between 5% and 10%; and 5' intervals for slopes over 10% (both existing and proposed). Existing and proposed topographic contours within a 100-foot perimeter of the boundaries of the site. Extend contours sufficiently out from the site to adequately show the adjacent floodplain (if applicable). 0(2) Earthwork volumes: cut, fill, import and export. 0(3) Spot elevations at the comers of each pad. 0(4) Method of draining each lot. Include a typical cross section taken parallel to the frontage for lots with less than standard frontage. ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ • ♦ ♦ ♦ ♦ ♦ ♦ ♦ Form 1 Revised 04/04 Page 2 of9 0(5) 0(6) 0(7) 0(8) 0(9) 0(10) Location, width and/or size of all watercourses and drainage facilities within and adjacent to the proposed subdivision; show location and approximate size of any proposed detention/retention basins. Clearly show and label the 100 year flood line for the before and after conditions for any project which is within or adjacent to a FEMA flood plain. Show all Best Management Practices (BMPs) to be used to reduce storm water discharge during the "use" or existing development phase. Indicate proposed elevation in relation to sea level of the lowest floor (including basement) of all structures. [For Floodplain Special Use Permit (SUP)] In Perna Zone AO or VO show elevation of highest adjacent grade and proposed elevation oflowest floor of all structures. [For Floodplain Special Use Permit (SUP)] Show proposed elevation in relation to mean sea level to which any structure will be floodproofed. [For Floodplain Special Use Permit (SUP)] c. STREETS AND UTILITIES 0(1) The location, width and proposed name of all streets within and adjacent to the proposed project. Show street grades and centerline radii. Provide separate profile for all streets with grades in excess of 7%. Streets should be in conformance with City Standards and Engineering Department Policies. 0(2) Name, location and width of existing adjacent streets and alleys. Include medians and adjacent driveway locations. 0(3) Typical street cross sections for all streets within and adjacent to the project. 0( 4) Width, location and use of all existing and/or proposed public or private easements. 0(5) Public and private streets and utilities clearly identified. 0(6) Show distance between all intersections and medium and high use driveways. 0(7) Clearly show parking stall and aisle dimensions and truck turning radii for all parking areas. 0(8) Show access points to adjacent undeveloped lands. 0(9) Show all existing and proposed street lights and utilities (sewer, water, major gas and fuel lines, major electric and telephone facilities) within and adjacent to the project. 0(10) Show all existing and proposed fire hydrants associated with the project, and all existing, off-site fire hydrants within 300 feet of the project boundary. Fire hydrants on commercial, industrial and multi-family residential sites should be installed at 300 feet intervals. Fire hydrants serving single-family residential projects should be installed at no more than 500-foot intervals. When possible, fire hydrants should be installed at street intersections on developed side of street if single loaded. A void cul-de-sac installations. For installation requirements on public roadways, contact the Carlsbad Fire Department at (760) 602-4666. d. WATER FACILITIES 0(1) 0(2) 0(3) 0(4) 0(5) 0(6) 0(7) Show average and peak potable water demand in gallons per minute (gpm). Provide fire flow demand in gallons per minute (gpm); calculate using table attached to Land Use Review Application. Provide a map or diagram showing existing and proposed on-site and off-site water pipelines, pressure reducing stations, fire hydrants, reservoirs and pumping stations. (These facilities must be shown within the public right-of-way or within easements to be granted to the District or the City.) Show a looped potable water distribution pipeline (wh~n more than 19 homes are proposed). Show a public fire flow system ( constructed as a looped pipeline system for all industrial or commercial development). Show a private fire sprinkler system, if required or proposed; state on exhibit. Provide a water phasing plan, if proposed. ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ Form 1 Revised 04/04 Page 3 of9 NOTE: San Diego County Water Authority capacity charge will be collected at issuance of application for any meter installation. e. RECYCLED WATER FACILITIES 0(1) Colored recycled water use area map (all areas proposed to be irrigated with recycled water must be clearly indicated on the map in color). 0(2) Peak irrigation or industrial water demand in gallons per minute (gpm). 0(3) Existing and proposed recycled water pipelines, pressure reducing stations, reservoirs and pumping stations. (These facilities must be shown within the public right-of-way or within easements to be granted to the District or the City.) f. SEWER FACILITIES 0(1) Average sewer generation in million gallons per day (mgd). 0(2) Existing and proposed sewer pipelines, and sewage lift stations. These facilities must be shown within the public right-of-way or within easements to be granted to the District or the City. 0(3) Indicate sewer facility phasing, if proposed. NOTE: No sewer lift stations or sewer siphons may be proposed unless otherwise agreed to in writing by the appropriate District Engineer. B. LANDSCAPE PLAN -Five (5) copies prepared on 24" x 36" sheet(s) at the same scale as the project plans. Ten (10) copies of the plans shall be submitted by the applicant upon request of the project planner prior to project approval. The preliminary landscape plan shall contain the following information: 1. GENERAL INFORMATION Oa. Landscape zones per the City of Carlsbad Landscape Manual. Ob. Typical plant species, quantity of each species and their size for each planting zone in a legend. (Use symbols). De. An estimate of the yearly amount of irrigation ( supplemental) water required to maintain each zone. 0d. Landscape maintenance responsibility (private or common) for all areas. De. Percent of site used for landscaping. Of. Water Conservation Plan. Og. All applicable Fire Suppression Zones, as required by the City's Landscape Manual, are minimums. Additional requirements may apply. C. BUILDING ELEVATIONS AND FLOOR PLANS -Five (5) copies prepared on 24" x 36" sheet(s). Ten (10) copies of the plans shall be submitted by the applicant upon request of the project planner prior to the project approval. Each building elevation and floor plan shall include the following information: 1. GENERAL INFORMATION Oa. Floor plans with square footage included. Ob. All elevations of existing and proposed buildings, including signs and exterior lights. De. Location and size of storage areas. 0d. Include a scale on all floor plans and building elevations. De. Indicate the height on all building elevations. Of. Indicate on all building elevations, compliance with Carlsbad Height Ordinance 21.04.065. Og. Indicate ceiling height or the height of the underside of the roof in any building areas intended for storage uses. • • • • • ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ • • • • • • ♦ ♦ ♦ ♦ • ♦ • • ♦ ♦ Form 1 Revised 04/04 Page 4 of9 Oh. Indicate the Uniform Building Code occupancy classifications of all building areas. Di. Indicate type of construction per Uniform Building Code. O. Disclose any building uses that will result in the presence of Acutely Hazardous Materials, Compressed Flammable Gases in excess of 1,500 pounds, Flammable Liquids in excess of 10,000 gallons, Hazardous Materials in excess of 500 pounds or 55 gallons, or compressed gas in excess of 200 cubic feet. Ok. Provide documentation demonstrating compliance with City Council Policy 44 - Neighborhood Architectural Design Guidelines (if applicable). D1. ROOF PLAN: One (1) copy (plan view). Show roof design to include ridges, hips, slope direction, etc. Show location of roof appurtenances, mechanical equipment and screening. Show all roof top equipment, appurtenances, stairways or other access provisions, including those required by the applicable building, plumbing, electrical and mechanical codes. All ro~f mounted equipment shall be installed in accordance with Building Department Policy 80- 6. D. CONSTRAINTS MAP -One (1) 24" x 36" sheet folded to 9" x 12" shall include the following information: (NOTE: This information is not required for previously graded sites and the conversion of existing structures.) If the constraint does not apply to the property, list it on the map as not applicable. Constraint map should be the same scale as other exhibits, i.e. Site Plan, etc. 1. GENERAL INFORMATION Oa. Major ridge lines. Ob. Distant views. De. Internal views. 0d. Riparian or woodlands. De. Intermittent drainage course. 0£ 25 -40% slopes. Og. Greater than 40% slopes. Oh. Major rock outcroppings. Di. Easements. Q. Floodplains. Ok. Archaeological sites. (Do not identify location. List in map legend if present.) D1. Special Planning Areas -Type of special planning area. Om. Biological Habitats. Indicate the location of all vegetation communities existing on the project site. (Use Modified Holland System as described in the Multiple Habitat Conservation Plan.) On. Beaches. Do. Permanent bodies of water. □P· Wetlands. Oq. Land subject to major power transmission easements. Dr. Railroad track beds. E. COLORED SITE PLAN AND ELEVATION PLAN -Not required with first submittal. It is the Applicant's responsibility to bring one (1) copy of a colored site plan and one (1) set of colored elevations to the Planning Department by 12:00 noon, eight (8) days prior to the Planning Commission meeting. Do not mount exhibits. II. REQUIRED DOCUMENTS AND SUBMITTAL ITEMS DA. Completed Land Use Review Application Form. OB. Coastal Development Permit Supplemental Application (if applicable). ♦ ♦ ♦ ♦ ♦ • ♦ • ♦ ♦ ♦ ♦ ♦ ♦ • ♦ ♦ • • • • • • • • • • • • • • • • ♦ • ♦ • • • • Form 1 Revised 04/04 Page 5 of9 De. Environmental Impact Assessment Form (Fee not required with initial submittal. Fee to be determined after review of project and environmental impact assessment form.) Required for tentative parcel maps only where a significant grading is proposed. Check with Planning staff to determine if required for your application. OD. Disclosure Statement. (Not required for tentative parcel maps.) OE. Two (2) copies of the Preliminary Title Report ( current within the last six ( 6) months). OF. Proof of availability of sewer if located in the Leucadia Waste Water District or the Vallecitos Water District. OG. Statement of agreement to waive tentative parcel map time limits. Required only when project ( tentative parcel map) requires concurrent processing of planning application or environmental review. OH. All projects must evaluate their potential impacts on the regional transportation system, including the costs of mitigating the associated impacts, as required by the SANDAG Congestion Management Program (C:MP). For projects with an average daily traffic (ADT) generation rate greater than 500 vehicles per day or 200 or more peak-hour vehicle trips. Submit two (2) copies of a Circulation hnpact Analysis for the project. The analysis must be prepared by a Registered Traffic Engineer or Registered Civil Engineer. The analysis must show project impacts to all intersections and road segments identified as impacted within the included Local Facilities Management Plan or as otherwise determined in discussions with staff. The following minimum information should be included with the study: 1. 8 ½" x 11" or 8 ½" x 14" plats showing zone impacted roads, background and project AM and PM peak hour impacts and traffic distribution. 2. Project traffic generation rates and traffic assignment. 3. Necessary calculations and/or analysis to determine intersection and road segment levels of service. 4. Any proposed mitigation requirements to maintain the public facility standards. 5. On Collector streets and above, an analysis of the need for a traffic signal will be required. "Large" projects: Any project which, upon its completion will be expected to generate either an equivalent of 2,400 or more average daily vehicle trips or 200 or more peak-hour vehicle trips, including large projects that may have already been reviewed under CEQA but require additional local discretionary actions, is defined as a "large project" under the SANDAG Congestion Management Program (CMP) and will be subject to enhanced CEQA review as specified in the CMP. Depending upon the complexity of the project, the City of Carlsbad reserves the right to require a traffic study on any project. Or. Two copies of preliminary soils/geologic report for all projects with cut or fill depths exceeding 5 feet. OJ. For all condominium conversions, a signed statement by the owner stating Section 66427.1 of the State Map Act will be complied with. OK. For all condominium conversions, a letter from San Diego Gas and Electric stating that plans to convert the gas and electric system to separate systems have been submitted and are acceptable. OL. For all condominium conversions, one (1) copy of a compliance inspection performed by the Building Department. (Separate fee required.) OM. Preliminary Hydrology map and calculations for lots exceeding one acre. Show before and after discharges to each included drainage basin. If a preliminary Storm Water Management Plan (SWMP) is required, the Hydrology map and calculations may be incorporated into the preliminary SWMP. • • • • • • • • • • • ♦ • • • ♦ • • • • • • • • • • • • ♦ • ♦ ♦ • • ♦ • ♦ ♦ • ♦ Form I Revised 04/04 Page 6 of9 ON. A preliminary Storm Water Management Plan (SWMP) shall be provided, if the project is defined as a "Priority Development Project" pursuant to Section Fl.b.(2)(a) of California Regional Water Quality Control Board, San Diego Region, Order No. 2001-01. At a minimum, the SWMP shall identify: Do. □P. OQ. DR Os. □T. Du. ov. Ow. III. □A. 1. Hydrologic Unit the project contributes to. 2. hnpaired water bodies in the basin and pollutants impacting the water body. 3. Drainage characteristics of the project site. 4. Anticipated pollutants-of-concern "prior" to development. 5. Anticipated pollutants-of-concern "after" development. 6. Types of source control BMP measures to be implemented to avoid pollutant contact with storm water. 7. Types of treatment control BMP measures to be implemented. Provide manufacturer specification sheets or detail sheets of the device. 8. Hydrologic/Hydraulic calculations to verify "flow-based" or "volume-based" methods are met to verify treatment control devices are adequate per Order 2001-01. 9. Include a topographic exhibit demonstrating the project and treatment control device locations. Completed "Project Description/Explanation" sheet. Signed ''Notice of Time Limits on Discretionary Applications." Noise study consistent with City of Carlsbad Noise Guidelines Manual. Biological resource, cultural resource, and/or other environmental studies that are necessary to make an environmental determination (i.e. BIR, Negative Declaration or Exemption). Signed "Hazll;l"dous Waste and Substance Statement" form. Provide color board(s) (no larger than 9" x 12"), showing building materials and color samples of glass, reveals, aggregate, wood, etc. Photographs of the property from the north, south, east and west. Digital copy of Tentative Map along with required number of hard copy maps. _ Fees: See Fee Schedule for amount. SPECIFIC PROJECT REQUIREMENTS For Master Plans and Specific Plans Only: 1. It is strongly recommended the applicant meet with staff before submitting text and maps for a master plan or specific plan. 2. Please refer to the Zoning Ordinance, Chapter 21.38.060, for the required contents of a Master Plan. OB. For Density Bonus Projects: 1. A letter signed by the present owner stating what specific incentives are being requested from the City. For any development standards modification or other additional incentive requested, the applicant shall submit a project pro-form.a to demonstrate that the standards modification or other requested incentive is necessary to make the project economically feasible. 2. A detailed vicinity map showing the project location and such details as the location of the nearest commercial retail, transit stop, potential employment locations, park or recreation facilities or other social or community service facilities. 3. For condominium conversion requests, a report documenting the following information for each unit proposed to be converted: the monthly income of tenants of each unit throughout the prior year, the monthly rent for each unit throughout the prior year and vacancy information for each unit throughout the prior year. 4. Identify the number and location of lower income dwelling units. ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ Form 1 Revised 04/04 Page 7 of9 De. For Senior Citizen Housing Projects: 1. A letter signed by the present owner stating what specific incentives are being requested from the City. For any development standards modification or other additional incentive requested, the applicant shall submit a project pro-forma to demonstrate that the standards modification or other requested incentive is necessary to make the project economically feasible. 2. A detailed vicinity map showing the project location and such details as the nearest market, transit stop, park or recreation area, medical facilities or other related uses or services likely to be patronized by senior citizens. 3. Five (5) copies of floor plans for each different type of unit indicating a typically furnished apartment, with dimensions of doorways, hallways, closets and cabinets. 4. Five (5) copies of floor plans showing any common areas and accommodations. 5. Identify the number and location of lower income inclusionary dwelling units. 6. A plan for monitoring age restrictions for all units and income restrictions for designated inclusionary units. OD. In-fill Residential Projects: Infill Residential Projects with two or more dwelling units that: (1) require a discretionary permit (i.e. Non-Single Family Regular CDP, Redevelopment Permit or Site Development Plan) and (2) are bordered on a minimum of two sides (property lines) by existing single family residential development shall be required to: 1. Post project notices on the project site pursuant to Planning Department Administrative Policy No.37. 2. Submit project photo-simulation exhibits to the Planning Department upon determination that the project application is complete. The photo simulation exhibits should be scaled representations of the project, as viewed from adjacent streets and adjacent developed single- family residential properties. OE. Wireless Communication Facilities: Carlsbad Municipal Code Section 21.42.010(2)(]) allows accessory public and quasi-public buildings and facilities, which include Wireless Communication Facilities (WCF), in all zones with the approval of a conditional use permit (CUP). All proposed WCFs should follow the City's guidelines (see City Council Policy No. 64) in the review of conditional use permits for new wireless facilities as well as extensions and amendments to CUPs for existing installations. This policy applies to all commercial providers of wireless communication services. It does not apply to amateur (HAM) radio antennas and dish and other antennas installed on a residence for an individual's private use. OF. Flood Plain Special Use Permits: 1. Two (2) sets of the hydrology and hydraulic calculations. Include HEC-1 and HEC-2 computer printouts with appropriate annotations to clarify readouts. 2. Two (2) copies of all required certifications listed in Section 21.110.150(4) of the Municipal Code signed and sealed by a registered Civil Engineer or other appropriately licensed professional. OG. CommercialNisitor-Serving Overlay Zone: 1. Prior to filing an application for a Conditional Use Permit for a Commercial/Visitor-Serving use within the Overlay zone, the applicant shall make a Preliminary Review (Pre-filing) submittal. 2. Projects within the Commercial/Visitor-Serving Overlay Zone shall submit a proposed sign program as part of this application. The program shall be provided as separate exlubits and should include the following information: proposed sign location, dimensions, area, materials, sign copy and colors. ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ Form 1 Revised 04/04 Page 8 of9 NOTE: WHEN THE APPLICATION IS TENTATIVELY SCHEDULED TO BE HEARD BY THE DECISION MAKING BODY, THE PROJECT PLANNER WILL CONTACT THE APPLICANT AND ADVISE HIM TO SUBMIT THE RADIUS MAP, TWO SETS OF THE PROPERTY OWNERS LIST AND LABELS. THE APPLICANT SHALL BE REQUIRED TO SIGN A STATEMENT CERTIFYING THAT THE INFORMATION PROVIDED REPRESENTS THE LATEST EQUALIZED ASSESSMENT ROLLS FROM THE SAN DIEGO COUNTY ASSESSOR'S OFFICE. THE PROJECT WILL NOT GO FORWARD UNTIL THIS INFORMATION IS RECEIVED. ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ Form 1 Revised 04/04 Page 9 of9 12137 pedestrian and vehicular access, ingress and egress to and from the respective Parcels in the areas that are improved and designated as internal circulation driveways, common access driveway, sidewalks, and similar improvements. 2. Drainage Easement. Declarant hereby reserves, for the benefit of Parcels 1 an.d 2, a mutually reciprocal, permanent, non-exclusive easement for surface drainage over Parcels 1 and 2. No Owner shall interfere with or obstruct the established surface drainage pattern over any Parcel, unless adequate alternative provision is made for proper drainage and is first approved in writing by the other Owner. As used herein, "established drainage" means the drainage which exists at the time the overall grading of the Parcels is completed in accordance with the grading plans prepared by Partners Planning and Engineering, Sheet Nos. C-1 through C-6, dated March 7, 2001. 3. Parking Easement. Declarant hereby reserves, for the benefit of Parcels 1 and 2, a mutually reciprocal, permanent, non-exclusive easement for parking over Parcels 1 and 2 in the areas that are designated by Declarant ( or if Declarant is no longer an Owner, then by the Owners) for parking from time to time and not otherwise reserved for the exclusive use of one or more Permitted Parties of a Parcel. 4. Owners. As used herein, an 11Owner0 means the holder of fee title to a Parcel, whether one or more persons or entities from time to time. Each Owner shall be such only during the time period it holds the required interest. 5. Permitted Users. The easements granted herein may be used, on a non~ exclusive basis, by each Owner of a Parcel that is benefited by such easement as expressly provided in this Declaration and each tenant of any such Owner and their respective officers, directors, employees, agents, contractors, sublessees, customers, visitors, invitees and licensees, and by such service and emergency vehicles and personnel as shall be necessary and appropriate to the lawful use of the benefited Parcel (collectively, the "Permitted Parties''). 6. No Obstruction. No Permitted Party shall use or permit the use of the easements granted herein so as to interfere unreasonably with the use of any other Permitted Party nor shall they create or permit any barricade on or obstruction of the easements, unless such party has obtained the prior written consent of the other Owner benefited by such easement(s). 7. Scope of Easements. The easements reserved herein are to be used solely for the purposes set forth in this Declaration and in connection with the use of the benefited Parcels. Except as expressly set forth in this Declaration, the Owners of the Parcels benefited by this Declaration shall have no other rights, licenses, easements or interests in any other Parcel subject to this Declaration. 8. Character of Easement and Licenses. The easements reserved herein are appurtenant to the benefited Parcels, and shall inure to the benefit of all current and future holders of any interest therein. S34579.02/SD 1'163&7.00S/4-6.01/J(llld/cah Description: San Diego,CA Document-Yaar.DocID 2001.280628 Page: 2 0£ 1 Order: 9711161 Commsnt: 12138 9. Term of Easements. The easements reserved by this Declaration shall be perpetual. 10. General Provisions. 10.1 Choice of Law. This Declaration shall be construed and enforced in accordance with the laws of the State of California. 10.2 Covenants that Run with the Land. The easements reserved herein and the terms and conditions of this Declaration shall run with the land and shall bind the successors, heirs or assigns of Declarant and Owners as to their respective Parcels. Without limiting the generality of the foregoing, Declarant intends this Declaration to comply with all relevant provisions of California law regarding covenants that run with the land including but not limited to California Civil Code Section 1468. 10 .3 Enforcement; Attornexs' Fees. Each benefited Owner and Declarant, until such time as it no longer owns a Parcel, shall have the right to enforce this Declaration. If an Owner or Declarant files an action or proceeding to enforce this Declaration, the prevailing party shall be entitled to recover from the other party or parties all reasonable expenses, attorneys' fees and costs. 10.4 Indemnity. Each Owner(the "Indemnifying Party1') assumes the risk of injury to and death of persons and damage to and destruction of property in connection with its use of the easements granted to it hereunder and, except for the gross negligence or willful misconduct of the other Owner ( each an 11Indemnified Party"), agrees to defend (with counsel reasonably satisfactory to the Indemnified Party), indemnify and hold harmless the Indemnified Party, its agents, partners, directors, members, officers and employees, tenants and invitees, against any and all claims, losses, damages or liabilities, including, without limitation, injuries to or death of persons, whether employees, contractors, tenants or invitees of the Indemnified Party or others, and damage to or destruction of property and environmental degradation or contamination of the easement property and adjoining property, which arise out of or relate to the use or maintenance by the Indemnifying Party, its agents, employees, tenants, guests or invitees of the easements granted to the Indemnifying Party hereunder. 10.5 Insurance. For so long as any easement reserved hereunder is in effect, each benefited Owner, at its own expense, shall maintain appropriate policies of public liability insurance (including, without limitation, workers' compensation insurance) and casualty insurance for any injury to or death of persons or damage to or destruction of property resulting from the use, operation, maintenance, repair or replacement of the easements granted to such Owner hereunder, including, without limitation, all improvements, fixtures and personal property located thereon. Such insurance shall be issued by reputable insurers qualified to do business in the state of California in the amounts customary for similar types of business parks, and the Owners of any burdened Parcel(s) and their mortgagees (if any) shall be named as additional insureds under such policies. 534519.02/SD N6l8?-00,I4.6.0llllmd/cah -3- Description: San Diego,CA Document-Year.DoaID 2001.280628 Page: 3 of 7 Order: 9711161 Comment: 1-2139 10.6 Modification; Termination. This Declaration may be amended and any easement granted herein abandoned or terminated only with the consent of all Owners benefited by such easement, and Declarant for so long as Declarant is the Owner of any Parcel. Any such amendment, abandonment or tennination shall be in writing, executed and acknowledged by the parties whose consent is required and duly recorded in the Office of the County Recorder, County of San Diego. 10.7 Mortgages Not Affected. A breach of any of the provisions of this Declaration shall not defeat or impair the lien of any mortgage or deed of trust made in good faith and for value on the Real Property or any portion thereof. The terms and conditions of this Declaration, however, shall be binding on and effective against any party whose title to such property, or any part or portion thereof, is acquired by foreclosure, trustee's sale, deed in lieu of foreclosure, or otherwise, and those claiming under thexn. 10.8 Transferability. The rights and obligations of each Owner hereunder shall be transferable only in connection with the transfer of the Parcel to which they are appurtenant. Subject to the foregoing, all terms of this Declaration shall be binding upon, inure to the benefit of, and be enforceable by each benefited Owner and their respective legal representatives, successors and a$signs. 10.9 No Dedication. The provisions of this Declaration are not intended to and do not constitute a dedication for public use and the rights herein created are private and for the benefit only of the benefited Owners hereunder, their successors and assigns, and the other Permitted Parties referred to in this Declaration. 10.10 Injunctive Relie£ In the event of any violation or threatened violation of this Declaration, any benefited Owner and Declarant, for so long as Declarant is the Owner of a Parcel, shall have the right to enjoin such violation or threatened violation in a court of competent jurisdiction. Prior to the commencement of any such action, written notice of such violation shall be given to the offending Owner. S34579,02/SO N63&7.005/4-6-0111and/cah -4- Description: San Die~o,CA Document-Year.DocZD 2001.280628 Page: 4 0£ 7 Order: 9711161 Comment: 12142 EXIDBlTA REAL PROPERTY Lot 2 of Carlsbad Tract No. 74-21, in the City of Carlsbad, County of San Diego, State of California, according to Map No. 10372 filed in the San Diego County Recorder's Office on April 13, 1982. S34S79.02/SD 'N63S7..005/4-o-Olll:md/eatl EXHIBIT A -1- Description: Sa.n Diego,CA Doaument-Year.DocID 2001.280628 Page: 7 0£ 7 Order: 9711161 Comment: 12137 pedestrian and vehicular access, ingress and egress to and from the respective Parcels in the areas that are improved and designated as internal circulation driveways, common access driveway. sidewalks, and similar improvements. 2. Drainage Easement. Declarant hereby reserves, for the benefit of Parcels 1 and 2t a mutually reciprocal, permanent, non-exclusive easement for surface drainage over Parcels 1 and 2. No Owner shall interfere with or obstruct the established surface drainage pattern over any Parcel, unless adequate alternative provision is made for proper drainage and is first approved in writing by the other Owner. As used herein, "established drainage" means the drainage which exists at the time the overall grading of the Parcels is completed in accordance with the grading plans prepared by Partners Planning and Engineering, Sheet Nos. C-1 through C-6, dated March 7, 2001. 3. Parking Easement. Declarant hereby reserves, for the benefit of Parcels 1 and 2, a mutually reciprocal, permanent, non-exclusive easement for parking over Parcels 1 and 2 in the areas that are designated by Declarant ( or if Declarant is no longer an Owner, then by the Owners) for parking from time to time and not otherwise reserved for the exclusive use of one or more Permitted Parties of a Parcel. 4. Owners. As used herein, an "Owner" means the holder of fee title to a Parcel, whether one or more persons or entities from time to time. Each Owner. shall be such only during the time period it holds the required interest. 5. Pennitted Users. The easements granted herein may be used, on a non- exclusive basis, by each Owner of a Parcel that is benefited by such easement as expressly provided in this Declaration and each tenant of any such Owner and their respective officers, directorst employees, agents, contractors, sublessees, customers, visitors, invitees and licensees, and by such service and emergency vehicles and personnel as shall be necessary and appropriate to the lawful use of the benefited Parcel (collectively, the 11Pennitted Parties"). 6. No Obstruction. No Permitted Party shall use or permit the use of the easements granted herein so as to interfere unreasonably with the use of any other Permitted Party nor shall they create or pennit any barricade on or obstruction of the easements, unless such party has obtained the prior written consent of the other Owner benefited by such easement(s). 7. Scope of Easements. The easements reserved herein are to be used solely for the purposes set forth in this Declaration and in connection with the use of the benefited Parcels. Except as expressly set forth in this Declaration, the Owners of the Parcels benefited by this Declaration shall have no other rights, licenses, easements or interests in any other Parcel subject to this Declaration. 8. Character of Easement and Licenses. The easements reserved herein are appurtenant to the benefited Parcels, and shall inure to the benefit of all current and future holders of any interest therein. 534579.02/SD N6387.00S/~-6..0l/kind/CM -2- Description: San Diego,CA Document-Year.DocID 2001.280628 Page: 2 0£ 7 Order: 9711161 Comment: 12138 9. perpetual. Term of Easements. The easements reserved by this Declaration shall be 10. General Provisions. l 0.1 Choice of Law. This Declaration shall be construed and enforced in accordance with the laws of the State of California. 10.2 Covenants that Run with the Land. The easements reserved herein and the tenns and conditions of this Declaration shall run with the land and shall bind the successors, heirs or assigns of Declarant and Owners as to their respective Parcels. Without limiting the generality of the foregoing, Declarant intends this Declaration to com.ply with all relevant provisions of California law regarding covenants that run with the land including but not limited to California Civil Code Section 1468. 10.3 Enforcement; Attorneys, Fees. Bach benefited Owner and Declarant, until such time as it no longer owns a Parcel, shall have the right to enforce this Declaration. If an Owner or Declarant files an action or proceeding to enforce this Declaration, the prevailing party shall be entitled to recover from the other party or parties all reasonable expenses, attorneys' fees and costs. 10.4 Indemni:tx, Each Owner (the "Indemnifying Party") assumes the risk of injury to and death of persons and damage to and destruction of property in connection with its use of the easements granted to it hereunder and, except for the gross negligence or willful misconduct of the other Owner (each an "Indemnified Party"), agrees to defend (with counsel reasonably satisfactory to the Indemnified Party), indemnify and hold harmless the Indemnified Party, its agents, partners, directors, members, officers and employees, tenants and invitees, against any and all claims, losses, damages or liabilities, including, without limitation, injuries to or death of persons, whether employees, contractors, tenants or invitees of the Indemnified Party or others, and damage to or destruction of property and environmental degradation or contamination of the easement property and adjoining property, which arise out of or relate to the use or maintenance by the Indemnifying Party, its agents, employees, tenants, guests or invitees of the easements granted to the Indemnifying Party hereunder. 10.5 Insurance. For so long as any easement reserved hereunder is in effect, each benefited Owner, at its own expense, shall maintain appropriate policies of public liability insurance (including, without limitation, workers' compensation insurance) and casualty insurance for any injury to or death of persons or damage to or destruction of property resulting from. the use, operation, maintenance, repair or replacement of the easements granted to such Owner hereunder, including, without limitation, all improvements, fixtures and personal property located thereon. Such insurance shall be issued by reputable insurers qualified to do business in the state of California in the amounts customary for similar types of business parks, and the Owners of any burdened Parcel(s) and their mortgagees (if any) shall be named as additional insureds under such policies. 534S79.02/SD N6337-00'14-6.011kmcl/~ -3- Description: San Diego,CA Docmm.ent-Year.DocID 2001.280628 Page: 3 of 7 Order: 9711161 Comment: 1-2139 l 0.6 Modification; Tennination. This Declaration may be amended and any easement granted herein abandoned or terminated only with the consent of all Owners benefited by such easement, and Declarant for so long as Declarant is the Owner of any Parcel. Any such amendment, abandonment or termination shall be in writing, executed and acknowledged by the parties whose consent is required and duly recorded in the Office of the County Recorder, County of San Diego. 10. 7 Mortgages Not Affected. A breach of any of the provisions of this Declaration shall not defeat or impair the lien of any mortgage or deed of trust made in good faith and for value on the Real Property or any portion thereof. The terms and conditions of this Declaration, however, shall be binding on and effective against any party whose title to such property, or any part or portion thereof, is acquired by foreclosure, trustee's sale, deed in Heu of foreclosure, or otherwise, and those claiming under them. 10.8 Transferability. The rights and obligations of each Owner hereunder shall be transferable only in connection with the transfer of the Parcel to which they are appurtenant. Subject to the foregoing, all terms of this Declaration shall be binding upon, inure to the benefit of, and be enforceable by each benefited Owner and their respective legal representatives, successors and a~signs. 10.9 No Dedication. The provisions of this Declaration are not intended to and do not constitute a dedication for public use and the rights herein created are private and for the benefit only of the benefited Owners hereunder, their successors and assigns, and the other Permitted Parties referred to in this Declaration. 10.10 Injunctive Relief. In the event of any violation or threatened violation of this Declaration, any benefited Owner and Declarant, for so long as Declarant is the Owner of a Parcel, shall have the right to enjoin such violation or threatened violation in a court of competent jurisdiction. Prior to the commencement of any such action, written notice of such violation shall be given to the offending Owner. S34~79,02/SD N6337-005/4-6-0litmd/calt Description: San Diego,CA Document-Year,DocID 2001.280628 Page: 4 of 7 Order: 9711161 Comment: 12142 EXHIBIT A REAL PROPERTY Lot 2 of Carlsbad Tract No. 74~21, in the City of Carlsbad, County of San Diego, State of California, according to Map No. 10372 filed in the San Diego County Recorders Office on April 13, 1982. 534519.02/SD ~87..005/4-6-0liland/cah EXHIBIT A -1- Description: San Diego,CA Document-Year.DocID 2001.280628 Page: 7 0£ 7 Order: 9111161 CQ11111J.snt: 12144 required in connection with post-construction Best Management Practices required pursuant to the Storm Water Pollution Prevention Plan approved by the City for Property (the 0Shared Improvements"), This Declaration is intended to provide for the maintenance of all Shared Improvements that may be located on the Real Property from time to time. Each Owner shall be responsible for maintaining all improvements and other facilities on their Parcel that are not Shared Improvements. No landscaping, other than the main line and meter for the landscape irrigation system, shall be deemed a Shared Improvement. 1.2 Manager. Declarant, for so long as it desires and continues to own a Parcel, shall be the "Manager. 11 At such time as Declarant elects to relinquish the role of "Manager," or ceases to own a Parcel, the Owner of Parcel 2 shall become the "Manager" until such time as the Owner of Parcel 2 elects to relinquish the role of "Manager" or ceases to own a Parcel, at which time the Owners of Parcel 1 and Parcel 2 shall have the right to substitute an Owner or third-party manager to act as the Manager by recording an amendment to this Declaration executed by the Owners and designating the new Manager. The Manager shall maintain the Shared Improvements located on the Real Property in good order, condition and repair (including replacements), including, but not limited to sweeping, repairing, replacing, restriping and resurfacing (as necessary). The Manager shall have the right to charge a reasonable management fee. If the Manager is an Owner, the Manager may contract with third parties for performance of all or any portion of its obligations hereunder. 1.3 Reimbursement "Maintenance Costs" shall mean all actual costs incurred by the Manager in performing its maintenance and repair obligations pursuant to Section 1.2 except for costs of electricity for the exterior site lighting which shall be the responsibility of the Owner of the Parcel upon which the site lights are located. With respect to the landscape irrigation system, only the costs for the water and related utility costs and repair, maintenance or replacement of the main line and meter shall be deemed 11Maintenance Costs". The Owner of Parcel 1 shall be responsible for 51 % of all Maintenance Costs and the Owner of Parcel 2 shall be responsible for 49% of all Maintenance Costs. 1.4 Failure to Pay Maintenance Costs. If an Owner fails or refuses to pay any Maintenance Costs which are the obligation of such Owner within thirty (30) days after receipt of a statement therefor or an estimate thereof, such Owner shall be in default hereunder and the other Owner may {but shall not be obligated to) pay such costs. In such event, the defaulting Owner shall reimburse the other Owner upon demand, together with interest on such costs at the rate of 2% plus the prime rate per annum charged by Wells Fargo Bank (San Diego Office) (or a financial institution of same quality and reputation in the event Wells Fargo Bank no longer exists) from time to time, but not to exceed the maximum rate permitted by law, from the date paid by the curing Owner until the date reimbursed by the defaulting Owner and a ten percent (10%) late fee. In addition to each other remedy then available to the curing Owner at law or in equity, the curing Owner shall have the right to impose a lien upon the defaulting Owner's Parcel by recording a notice of claim of lien in the Official Records of San Diego County, stating the amount due, the 53496',04/SO N4.187,00l/4-20-0111:md/«ih Description: San Diego,CA Doc::ument-Year.DocID 2001.280629 Page: 2 0£ 8 Order: 9711161 C0llllllent: 12145 name of the defaulting Owner and the legal description of the defaulting Owner's Parcel. The priority of such lien shall be determined as of the date of its recording. Any such lien may be foreclosed in accordance with the laws pertaining to the foreclosure of mortgages. No such default shall terminate this Declaration or any rights or obligations hereunder. 1.5 Failure to Maintain. If the Manager fails to maintain the Shared Improvements in accordance with the requirements set forth herein, and if such failure is not cured within thirty (30) days after the Manager's receipt of written notice of such default (which thirty (30) day period shall be extended for the time reasonably required to cure the default if the cure reasonably requires more than thirty (30) days and the Manager has commenced and is diligently pursuing the cure), the nondefaulting Owner shall have the right to perform such maintenance in a commercially reasonable manner and in accordance with this Declaration. In such event, the curing Owner shall have the right to reimbursement from the other Owner as provided above for the Manager. 2. Maintenance License. 2.1 License. The Owners grant the Manager and its contractors, materialmen and laborers a license ("License") for access and passage over the Parcels as shall be reasonably necessary to perform its obligations hereunder. The Manager shall not permit any liens to stand against the Parcels for any work done or materials furnished in connection with the maintenance or repair of the Shared Improvements. 2.2 Scoee of License. The License granted herein shall be used solely for the purposes set forth in this Agreement. 3. Storm Water. 3.1 Each Owner and its respective tenant(s) shall coordinate efforts to establish or work with established disposal programs to remove and properly dispose of toxic and hazardous waste products. 3.2 Toxic chemicals or hydrocarbon compounds such as gasoline, motor oil, antifreeze, solvents, paints, paint thinners, wood preservatives, and other such fluids shall not be discharged into any street, public or private, or into storm drain or storm water conveyance systems. Use and disposal of pesticides, fungicides, herbicides, insecticides, fertilizers and other such chemical treatments shall meet Federal, State, County and City requirements as prescribed in their respective containers. 3.3 Each Owner shall use Best Management Practices to eliminate or reduce surface pollutants when planning any changes to the landscaping and surface improvements. 4. Owners. As used herein, an "Owner" means the holder of fee title to a Parcel, whether one or more persons or entities from time to time. Each Owner shall be such only during the time period it holds the required interest. $34964.04/SD N6387.001/4•:20.0l/lm1d/c:llt Description: San Diego,CA Document-rear,DocID 2001.280629 Page: 3 of 8 Order: 9711161 COllllllent: 12150 EXHIBIT A REAL PROPERTY Lot 2 of Carlsbad Tract No. 74-21, in the City of Carlsbad, County of San Diego, State of California, according to Map No. 10372 filed in the San Diego County Recorder's Office on April 13, 1982. $.34964,04/SD N6387-001/4·20-01/kl1\cVCllh EXHIBIT A -1- Description: San Diego,CA Document-Year.DocID 2001.280629 Page: 8 or 8 Order: 9711161 comment: PARCEL ~A' 6454 EXHIBIT 'A' LEGAL DESCRIPTION ll'OR WATER EASEMENT PR Ol-13 4/25/01 THAT PORTION OF LOT 2 OF CARLSBAD TRACT 74-21, ONIT 4, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 10372,. FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, APRIL 13, 1982, AS FILE/PAGE NO. 82-101695, OF OFFICIAL RECORDS, SAID EASEMENT IS MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHWESTERLY CORNER OF SAID LOT 2, THENCE ALONG THE NORTHERLY LINE T'HEREOF WTR-LEGAL 1. NORTH 87°22' 31" EAST 2. SOOTH 02°37' 04" EAST 3. SOUTH 87°22'31" WEST 4. SOUTH 42°43'19" WEST 5. SOUTH 01°55' 54" EAST 6. SOUTH 88°04'06" WEST 7. SOOTH 01°55'54" EAST 8. NORTH 88°04'06" EAST 9. SOUTH 01°55' 54" EAST 10. SOOTH 04°17'13" EAST 11. SOOTH 02°37' 29" EAST 12, SOOTH 87°22'31" WEST 13. SOUTH 02°37'29" EAST 14. NORTH 87°22'31" EAST 15. SOUTH 02°37' 29" EAST 140.81 FEET; THENCE LEAVING THE SAID LINE 15.42 FEET TO THE TRUE POINT OF BEGINNING; THENCE 83.69 FEET; THENCE 38.36 FEET; THENCE 161,25 FEET; THENCE 8.00 FEET; THENCE 10,00 FEET; THENCE 8.00 FEET; THENCE 21.12 FEET; THENCE 44.55 FEET; THE 15.24 FEET; THE l3,17 FEET; 10,00 FEET; 13.17 FEET; THENCE 104.93 FEET; THENCE Pagel of3 Description: San Diego,CA Doaument-Year.DocID 2001.366642 Uage: 4 oz 9 Order: 9711161 Co111111ent: SHEET 1 OF 3 6462 EXHIBI'l' 'A' LEGAL OESCRIPTION FOR SEWER. EASEMENT FR 01-12 THAT PORTION OF LOT 2 OF CARLSBAD TRACT 74-21, UNIT 4, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 10372, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, APRIL 13, 1982, AS FILE/PAGE NO. 82-101695, OF OFFICIAL RECORDS, SAID EASEMENT IS MORE PARTICULARLY DESCRIBED AS FOLLOWS: PARCEL 'A' BEGINNING AT THE SOUTHWESTERLY CORNER OF SAID LOT 2, AS DEDICATED PER SAID MAP NO. 10372, NORTH 88°14'35" EAST 286.59 FEET TO THE TRUE POINT OF BEGINNING, SAID POINT ALSO BEING A POINT ON SAID PROPERTY LINE; THENCE DEPARTING SAID PROPERTY LINE l. NORTH 72°52' 44" WEST 7. ll FEET; Tt{ENCE 2. NORTH 51°22' 28n WEST 55.18 l!'EET; THENCE 3, NORTH 37°41'52" WEST 33.23 FEET; THENCE 4. NORTH 29°15' 17" WEST 73.53 FEET; THENCE 5. SOUTH 78°16'04!1 WEST 38.66 FEET; THENCE 6. NORTH 89°51' 31" WEST 29.04 FEET; THENCE 7, NORTH 81°22' 57" WEST 51.79 FEET; THENCE 8. NORTH 13°40'54" WEST 21.62 FEET;' THENCE 9. NORTH 81°22,' 57" WEST 58.51 FEET; THENCE i'o. NORTH 89°51' 31" WEST 25.48 FEET; THENCE 11. NORTH 78°16' 04" EAST 51.24 FEET; THENCE 12, SOUTH 29°15'17" EAST 86.72 FEET; THENCE 13. SOUTH 37°41' 5211 EA.ST 29.36 FEET; THENCE 14. SOOTH 51°22' 28" EAST 48.98 FEET; THENCE 15. SOUTH 72°52'44" EAST 20.28 FEET; THENCE Description: San Diego,CA Doeument-Year.DocID 2001.366643 Page: 3 of 8 Order: 9711161 Comment: ' .... .:..(:_ .•. .:. ~-. . ,' I SHEET 2 OF 3 16. NORTH 88"05' 53" EAST 17. SOUTHERLY 18. SOOTH 8_8°14' 35" WEST 6463 36.67 FEET TO THE BEGINNING OF 536 FOOT RADIUS CURVE CONCAVE EASTERLY, SAID CURVE ALSO BEING A PORTION OF THE EASTERLY PROPERTY LINE OF SAID LOT; THENCE ALONG THE ARC OF SAID CURVE 13,53 FEET THROUGH A CENTRAL ANGLE OF 01°26' 47" TO THE SOUTHEAST CORNER OF SAID LOT; THENCE 59.02 FEET ALONG THE SOUTHERLY PROPERTY LINE TO TEE TRUE POINT OF BEGINNING. ~AID PARCEL CONTAINS 6,735.20 SQUARE FEET, MORE OR LESS. PARCEL 'B' BEGINNING AT THE SOUTHWESTERLY CORNER OF SAID LOT 2, AS DEDICATED PER SAID MAP NO, 10372, NORTH 88°14'35" EAST 28.80' FEET TO A POINT ON SAID PROPERTY LINE; THENCE LEAVING SAID PROPERTY LINE 1. NORTH 02°37' 29"WEST 69.13 FEET TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING THE SAME LINE 2, NORTH 02°37' 29"WE:ST 65.76 FEET; THENCE 3. NORTH 46(>35' 11" EAST 15.53 FEET; THENCE 4. SOUTH 13°40'54" EAST 42.96 FEET; THENCE s. SOUTH 02°31'5711 EAST 48.49 FEET; THENCE 6. NORTH 56°07' 19" WEST 24. 78 FEET TO THE TRUE POINT OF BEGINNING. SAID FA~CEL CON'l'AINS 1431 SQUARE FEET, MORE OR LESS. DGscription: San Diego,CA Doaument-Year.DocID 2001.366643 Page: 4 0£ 8 order: 9711161 Comment: ff alba ( •••"' •i. 111111 1s•1 •n•• 110 TIT ••••- ..... 10040 EXRIBIT 'B' LEGAL DESCRIP~ION li'OR BENSiITING PROPERTY ATRIUM II FR 01-48 J?ARCEL l OF PARCEL MAP NO. \~"l,ZO IN THE CITY OF CARLSBAD, COCJNTY OF SAN DIEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COCJNTY, DATEOJuw~ S 2001, AS FILE/PAGE N02CCl-'SCoes'(JI OF OFFICIAL RECORDS, PARTICULARLY DESCRIBED AS FOLLOWS; PARCEL 1 BEGINNING AT THE NORTHWESTERLY CORNER OF PARCEL 2 OF PARCEL MAP No.le,1'20 , THENCE ALONG THE WESTERLY LINE THEREOF, 1. SOUTH 02(37'2911 EAST 2, SOUTH 02(37'29" EAST 3. NORTH 88(14 1 35" EAST 4. NORTHE:RLY 5. NORTH 67(46'07" WEST 6, SOOTH 22(10'54" WEST 7. NORTH 72(17'56" WEST 8. SOUTH 16 (26' 42" WEST 9. SOUTH 11(10'25" W£ST 10. SOOTH 78(16'04" WEST 11. NORTH 89(51'31" WEST 12. NORTH 81(22'57" WEST 13. NORTH 02(37'29" WEST 14. SOOTH 87(22 131" WEST BENIFIT2 .DOC 117,51 FEET TO THE TRUE POINT OF BEGINNING; THENCE 291,49 FEET; THENCE 345.61 FEET TO THE BEGINNING OF 536 FOOT RADIUS CURVE ALSO BEING A PORTION OF THE EASTERLY PROPERTY LINE OF THE SAID PARCEL 1; THENCE ALONG THE ARC OF SAID CORVE 256.65 FEET THROUGH A CENTRAL ANGLE OE' 27°26'04"; THENCE 128.65 FEET; THENCE 82,25 FEET; THENCE 34.84 FEET; THENCE 39.55 FEET; THENCE 57,00 FEET; THENCE 52.21 l:EJ::T; THENCE 27.26 FEET; THENCE 81.13 FEET; THENCE 143.06 FEET; THENCE 40,80 FEET TO THE TROE POINT OF BEGINNING. Page 1 of2 . . . Description: San Diego,CA Dooument-Year.DocID 2001.534324 Page: 7 0£ 10 Order: g711161 Comaent: r • .., 11193 Loan No: 9001 ASSIGNMENT OF RENTS (Continued) Page 2 Property In proper repair and condition, and als0 to pay all taxes, assessment$ and water utlllties, and the premiums on fire and other Insurance effected by lender on tho Property, Compnanc& with Lllw•. Lender may do any and all things to e11ei:ute and comply with the l11ws of the State of California and also all other laws, rules, orders, ordinances and requirements of i,II other governmental agencies affecting the Property. LeaH the Property. Lender may rent or lease the whole or any pert of the Property for such term or terms and on such conditions as Lender may deem appropriate, EmplQy Agents. Lender.may engage such agent or agents as Lander may deem appropriate, either in Lender's name or in Grantor's name, ID rent and rminage the Property, Including the collection and 11pplication of Rents. Other Acts, lender may do all such other things and acts with reepect to the Property as Lender may deem appropriate and may act exclusively and solely in the place and stead of Granter and to have all of the powers of Granter for the purposes stated above. No A11qulrem,nt 10 Act. Lender shall not be required to do any of the foregoing act:1 or things, and the fact that Lender shall have performed one or more of the foregoing acts or thin9S shall not require Lander to do 1my other specific act or thing. APPLICATION OF RENTS. All costs and expenses incurred by Lender in connection with the Property srnill be for Grantor's account and Lender may pay such costs and eicpenses from the Rants. Lender, In Its sole discretion, shall determine the application of any and all Rents received by It; however, any such Rents receivad by Lender which ere not applied to such costs and e1Cpe~es shl!II be applied to the Indebtedness. All expenditures made by Lander under this Assignment and not reimbursed from the Rents shall become a part of the Indebtedness a&cured by this Assignment, and shall be payable on demand, with interest at the Note rate from date of elCpanditure until paid. FULL PERFORMAf;ICE. If Granter pays all of the Indebtedness when due and otherwise performs all the obligations imposed upon Granter under this Assignment, the Note, and the Related Oocuments, lender shall e><ecut11 and deliver to Grantor a suitable satisfaction of thls Assignment and suit11ble statements of terminotion of any finenclng statement on tile evidencing Lendor's security interest in the Rents and the Propert','. Any termination fee required by law shall be paid by Granter, If permitted by applicable law. LENDER'S EXPENDITURES. If any action or proceeding Is commenced that would materially afflict Lender's Interest in th1t F'roperw or if Granter falls to comply with any provision of this Assignment or any Related Documents, including but not limited to Grantor's failure to discharge or pay when due any amounts Grantor Is required to discharge or pay under this Assignment or any Related Documents, Lender on Grantor's behalf may lbut shall not be obllga111d tel take any action that Lender deems appropriate, Including but ne>t llmited to discharging or paying all taxes, liens, security interests, encumbrances and other claims, at any time levied or placed on the Rents or the Property and paying all costs for Insuring, maintaining and preserving the Property. All such expenditures incurred or paid by Lender for such purposes will then bear interest at the rate charged undar the Note from the dat11 Incurred or paid by Lender to the date ot repayment by Granter, AU such expenses will become a part of the Indebtedness and, at Lender's option, wlll (A} be payable on demand; (Bl be added to the balance of the Note and be apportioned among and be p11y11ble with any installment payments to become due during either fH the term of any applic;ibla insurance policy; or (2) the remaining term of the Note; or IC) be treated as I! balloon payment which will be due end payable at the Note's maturity. The Assignment also will secure payment of these amounts. Such right shall be in addition to ell other rights and remedies to which Lender m11y b11 entitled upon Default, DEFAULT, Each of the following, at Lender's option, shall constitute an Event of Default under thla Assignment: Payment Default. Granter fails to make any payment when due under the lnd11btednes$, Other Defauhs. Grantor fails to comply with or to perform any other term, obligation, covenant or condition containe:d In this Assignment or in any of the Related Documents or to comply with or to perform any term, obllg11tit1n, covenant er condition contained in any other a9reement between Lander and Granter, Oafsult on Other Payments. Failure of Granter within the time required by this As,lgnment to make any payment for taxes or insurance, or any other payment necessary to prevent filing of or to effect discharge of any lien. Default In Favor of Third Parties. Granter defaults under any loan, eMtension of credit, security agreement, purchase or sales 11greement, or any other agreement, in favor of any other creditor or person that may m11teri11lly affect any of Grantor"s property or Grantor's ability to perform Gtantor's obllgatlons under this Assignment or any of the Related Oocuments. False Stattments, Any warrantv, rapre51,ntatlon or statem11nt made or furnished to Lender by Grantor or on Grantor's behalf under this Assignment or the Ri,Jated Documtnts Is false or mtsleadln9 in any material reapect, either now or at the tirne made or furnished or becomes false or misleading at any time thereafter. Defactivt Collatarallzatlon, This Aaslgnment or any of the Related Docurnent• ceases to be in full force and effect (including failure of any collateral document to create a valid and pertectecl security Interest or lien) at any time and tor any reason. Oeath or Insolvency. The dissolution of Grantor's tregardless of whether oloction to continue i$ made), any member withdraws from the llmited ll11blllty company, or any other termination of Grantor's existence as a going business or the death of any member, the Insolvency cl Granter, the appointment of a receiver for any part of Grantor's property, •ny assignment for the benefit of creditors, any type of creditor work.01.1t, or the comrnencement of any proceeding under any bankruptcy or insol11ency laws by or against Granter. Creditor or Forfeiture Proceedings. Commencement of foreclosure or forfeiture proceedings, whether by Judicial proceeding, self-help, repossession or any other method, by any creditor of Grantot or by any governmental agency against the Rents or any property securing the lndabtadness. This includes a garnishment of any of Grantor's accounts, including deposit account$, with Lender. However, thi1 Event of Default :;hall not apply lf there is e gocd faith disputo by Granto, es to the velidity or reasoneblenua of the claim which is the basis of the creditor or lorfeiture 'proceeding and If Granter gives Lender written notice of the creditor or forfeiture proceeding and deposits with Lender monies or a surety bond for the creditor or forfeiture proceeding, In an amount determined by Lender, in its sole discraticn, as being an adequate reserve or bond lor the dispute. Property Damage or Lo41, The Properw la lost, stolen, substantially damaged, sold, or borrowed against, Description: San Diego,CA Doacao.ent-Year.DocID 2002.1156886 Page: 2 0£ 6 Order: 9711161 Comm.en~: loan No: 9001 ASSIGNMENT Of RENTS {Continued) 11794 Page 3 Events Affecting Guaranto,, Any of the preceding events occurs with respect to any Guarantor of any ol the Indebtedness or any Guarantor dies or becomes incompetent, or revokes or di11putes the validity of, or llabillty under, any Guaranty of the Indebtedness. AdV11rae Chango. A material adverse change occurs in Grantor's financial condition, or Lender belle~s the prospect of payment or performance of the Indebtedness is impaired. . Insecurity. lender In good faith believes Itself insecure. RIGHTS AND REMEDIES ON DEFAULT. Upon thn occurrence ol any Event of Oefault and et any time thereafter, Lender may exercise any one or more of the following rights end remedies, In addition to any other rights or remedies provided by law: Accelarato lndebtedneu. Lendar shall have the right at its option without notice to Grantor to declare tho entire Indebtedness immediately due and payable, Including any prepayment penalty which G1antor would be required 10 pay. Collect Renta. Lender shall have tho right, without notice to Graotor, to take possession of the Properw and collect the Rents, including amounts past due and unpaid, and 1pply the net proceeds, over and above Lendar's costs, against the Indebtedness. In furtherance l)f this right, Lender shall have all the rights provided for in the Lender's Right to Receive and Collect Rents Section, above. If the Rents ere collected by Lender, then Grantor Irrevocably designates Lender as Grantor's attorney-In-fact to endorse instruments received In payment thereof In the name of Grantor and to negotiate the same end collect the proceed,. Payments by tenan~ or other userll to Lender In re5ponse to Lender's demand shall satii;fy the obligations for which the payments are made, whether or not any proper grounds for the demand existed. Lender may exorcise its rights under this subparagraph either In person, by agent, or through a receiver. Appoint Recolvtr, Lender shall have the right to have a receiver appointed to take possession of all or any part of the Property, with tha power to protect and preserve the Property, to operate the Property preceding foreclosure or sale, and to collect the Rents from the Property and apply the proceeds, over and above the coat of the receivetship, against the Indebtedness. The receiver rnay serve without bond If permitted by law, Lender's right to the appointment of a 1eceiver shall exist whether or not the apparent value of the Property exceeds the Indebtedness by a substantial amount, Employment by Lender shall not disquallly a person from 11ervlng as a receiver, Other Remadlaa, Lender shall have all othar rights and remedies provided in this Assignment or the Note or by law. l;lec:tion of Remedies. Election by Lender to pursue any remedy shall not exclude pursuit ol 11ny other remedy, and an election to make expendituru or to take action to perform •n obligation of Granter under this Assignment, a~er Grantor's failure to perlo,m, shall not affect Lender's right to declare a default 11nd exercisa itll remedies. Attorneys' Faesi Expenses, If l.ender lnstltu1es any suit or action to enforce any of the terms of this Assignment, Lender shall be entitled to reccvar such sum as the court may adjudge reasonable as attorneys• tees at trial and upon any appeal. Whather er not any court action ls involved, and ,o the extent not prohibited by law, oil reasonable expenses Lender incurs that in I.ender's opinion ere na~ssary at 1.1ny time tor the protection of its Interest or the enforcement of its rights shall become a part of the Indebtedness payable on demand end shall bear interest at the Note rate from tha date of the expenditure until repaid. Expenses covered by this paragraph include, without llmitatlon, however subject to any limits under applicable law, Lender'• attorneys' fees and Lender's legal expenses, whether or not there la II lawsuit, locludlng attorneys' fees and expenses for bankruptcy proceedings !Including effotts to modify or vacate any automatic stay or injunctlonl, appeals, and any anticipated wst<iudgment collection scrvfoes, tht cost of searching records, obtaining title reports (including foreclosure reports), surveyors' reports, and appraisal fees, title Insurance, and fees for the Trustee, to the extent permitted by applicable law. Grantor also will pay any court costs, in addition to all other sums provided by law. MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Assignment: Amendments. This Assignment, together with ony Related Ooouments, constitutes the entire understanding and agreement of the parties 115 to the matters set forth lo this Assignment. No alteration of or amendment to this Assignment shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendn'lent. Caption Headings, Caption headings in this Assignment are for convenience purposes only and are not to be used 10 interpret or define the provisions of this Assignment. Governing Law. Thi• Assl11nment will be gov■rned by. construed and enforced In accordance wlth federal law and th11 laws of the State of Utah, except and only to tht txtont of proced11ral matters related to the perfection and enforcement of Ltnder', right, and remedles agaln,t the Property, which matters ahall be govern■ d by th• l1w1 of t!wl Seate of California. However, in the event that the enforcaabllltv or valldltY of any provision of this Assignment la challenged or questioned, such provision shall be governed by whichever appllcabl• 1t11ta or federal law would uphold or would enforce a11ch challenged or questioned provision, The loan transaction which Is evidenced by the Note and this Ani!lflm•nt ha. been applied for, considered, approved and mad,. and 11II necessary loan documents have bttn accepted by Lander In th• State of Utah. Merger. There shall be no merger of the interest or estate r;rnated by this assignment with any other interest or estoto in the PropertY .it any time held by or for the benefit of Lender in anv capacity, without tha written consent Of Lender. Interpretation. lll In all casee. where there is mere than one Borrower or Grantor, then all words used in this Assignment in tl1e singular shall be deemed to have been used in the plural where the context and construction go require. (2) It more than one person signs this Assignment aa "Granter,• the obligations of each Grantor are joint and several. This means lhat if I.ender brings a lawsuit. Lender may s-.ie any one or more of the Grantors. If Borrower and Grantor are not the &ame person, Lender need not sue Borrower first, and that Borrower need not be Joined In any lawsuit. (3} The names given to paragraph5 or sections in thb Assignment are for convenience purpo5es only, They are not to be used to interpret or define the provisionc; of this Assignment. No WalVIII• by Lender, Lender shall not be deemed to have waived any rights under this Assignment unless such waiver Is given in writing and signed by Lender. No delay or omission on the pan or Lender In exercising any right shall operate as a waiver of such right or aoy other right. A waiver by Lender of a provision of this Assignment $hell not prejudice or constitute a waiver of Lender•; right otherwise to demand strict compliance with that provision or any other provision of this Assignment, No prior waiver by Lender, Description: San. Diego,CA DoClll!.lent-rsar.DocID 2002.1156886 Page: 3 0£ 6~----- 0rder: 9711161 Comm.nt: I • Loan No: 9001 ASSIGNMENT OF RENTS (Continued} 11795 Page 4 nor any course of dealing between Lender and Grantor, shall constitute a waiver of any of I.ender's rights or of any of Grantor's obligations i,s to any fotura transactions. Whenever tile consent of Limder Is required under this Assignment, the granting of such consent by Lender ln any instance shall not constitute continuing consent to subsequent instances whera such consent is r"quired and in all cases such consent may be granted or, withheld in the sole discretion of Lender, Notlcts. Any notice rE1qulred to be given under this Assignment shall be given in writing, and shall be effective when actually delivered, when actually received by telefacslmllci !unless otherwise required by law), when deposited with 1.1 nationally recognized overnight courier, or, if malled, when deposited In the United St111es mail, os first class, certified or reglst11rad mail postage prepaid, directed to the addresses shown near the beginning of this Assignment. Any party may change its address for notices under this Assignment by giving forn:ial written notic:e to the other parties, specifying that the purpose of the notlce is to changa the party's address. For notice purposes, Granter agrees to keep Lender informed at all times of Grantor's current address. Vnless otherwise provided or required by law, if there ls more than one Granter. any notice given by Lender to any Grantor is deemed to be notice given to all Orantors. Powers of Attorney, The various 1.1gencies and powers of attorney conveyed on Lender und11r this Assignment ant granted foi purposes of security and may not be revoked by Granter until such timo as the same are renounced by Lender. Severablllty. If a court of competent Jurisdiction finds any provision of this Assignment to be Illegal, Invalid, or unenforceable es to any circumstance, that finding shall not make the offending provision Illegal, Invalid, or unenforceablo as to any other circumstance. If feasible, the offending provision shall oo considered modified so that ft becomes legal, valid and enforceable. If the offending provision cannot be 110 modified, It shall be considered deleted from this Assignment. Unless otherWise required by law, the illegality, Invalidity, or unenforceabillty of any provision of this Assignment shall not affect the legatity, validity or enforceability of any other provision of this Assignment. Succa110rs and Asslgn1, Subject to 1.1ny limitations stated In this Assignment on tr.insfer of Grantor's interest, this Assignment shall be binding upon and lnllfe to the ooneflt of the parties, their successors and assigns, If owner11hlp of the Property becomes vested in a person.other than Granter, Lender. withot.rt notice to Grentor, may deal with Grantor's 11uccessors with referenoe to ttlis Assignment and the Indebtedness by way of forbearance or extension without releasing Orantor from the obllgationa of this A:;signment or liability under the indebtedness. Tlmt I• of 1ht Esunc:&. Time is of the essence in tho performance of this Assignment. WAIVER OF RIGHT OF REDEMPTION. NOTW11HSTANDING ANY OF THE PROVISIONS TO THE CONTRARY CONTAINED IN THIS ASSIGNMENT, GRANTOR HEREBY WAIVES ANY AND ALL RIGHTS OF RSDEMPTION ¥'ROM SALE UNDER ANY ORDER OR JUDGMENT OF FORECLOSURE ON GRANTOR'S BEHALF AND ON BEHALF OF EACH AND !:VERY PERSON, EXCEPT JUDGMENT CREDITORS OF GRANTOR, AC0UIRINC3 ANY INTEREST IN OR TITLE TO THE PROPER'fY SUEISEQUENT TO THE DATE OF THIS ASSIONMl=NT. DEFINITIONS, The following capitalized words and terms shall have the following meanini;is when used in this Assignment. Unless specifically stated to the contrary, all references to dollar amounts shall mean amounts in lawful money of the United States of America, Words and terms used in the alngular ahall l11clucle the plural, and the plural shall include the singular, as tho context may require. Words and terms not otherwise defined in this Assignment shall have the meanings attributed to such terms in the Uniform Comm11rcial Code: Assignment. The word "AS3ignment'' means this Assignment of Rents, as this AS$ignment of Rents may be amended or modified from time to time, together with all exhibits and schedules attached to this Assignment of Rents from time to time. Borrower. The word "Borrower" means FRANZ, LLC. Default, The word "Default" means tha Default set forth In this Assignment In the section titled "Default". Event of Default. The words •fvont of Default" mean any of the events of d11fault set forth in this Assignment in the default section of this Assignment. Grantor. The word "Grantor" means FRANZ, LLC, Guarantor. The word "Guarantor• means any guarantor, surety, or accommodadon partV of any or all of the Indebtedness. Guaranty, The word "Guaranty• means the guaranty from Guarantor to I.ender, Including without limitation a guaranty of all or part cf the Noto, lnd11btadneas. The word "Indebtedness" means and includes without limitation all Loans, together with all other obllgntions, debts and liabilities of Borrower to Lender, or any one or more.of them, as well as all clalma by Lender against Borrower, or any one or more of them; whether now or hereafter existing, voluntary or Involuntary, due or not due, absolute o, contingent, liquidated or unllquldated; whether Borrower may be liable individually or jointly with others: whether Borrower may be obligated as a guarantor, surety, or otherwise; whether recovery \!Pon such Indebtedness may be or hereafter may become barred by any atatute of limitations; end whether such indebtedness may be or hereafter may become otherwise unenforceable. Lender. Tile word "\.ender• means ZIONS FIRST NAilONAL BANK, its successors and assigns. Note. The word "Note" means the promissory note dated December 18, 2002, ln the original principal amount of $3,753,750.00 from Granter to Lender, togather with all renewals of, extensions of, modifications of, reflnancings of, consolidations of, and substitutions for the promissory note or agreement. Property. The word "Property" means all of Grantor's right, title and interest In and to all the Property as d11scdbed in the "Assigl'lment• section of this Assignment, Related Doc:umenta. The words "Related Dccuments" mean all promissory r10tes, credit agreements, loan agreements, onvlronmental agreements, guaranties, security agreements, mortgages, deeds of trust, security deeds, collateral mortgages, and all other instruments, agreements and documents, whether now or heraafter exittlng, executed in connection with the Indebtedness. Rents. The word "Rents" means all of Grantor's present and future rights, title and interest in, to and under any and all present and f1,1ture leilses, including, without limitation, all rents, revenue, income, issues, royaltie&, bonuses, accounts receivable, cash or security Description: San Diego,CA Document-Year.DocID 2002.1156886 Page: 4 0£ 6 _____ ... Order: 9711161 Comment:----· Loan No: 400033300 11800 DEED OF TRUST (Continued) advance assurances aatiaf11c:tory to lender th11t Trustor can 11nd will pay the cost of stieh improvements. PROPERTY DAMAGE INSURANCE. The followlng proviaions relating to inauring the Property are a part of this Oeed of Trust. Page3 Malnten11nce of Insurance. Truster shall procure and maintain policies of fire insurance with standard extended coverage endom,ments on a replacement basis for the full Insurable value covering 11II Improvements on the Real Propert;y In an amount $ufficlent to ;ivoid 1:1ppllcation of any coinsurance clause, and with n $tandard mortgllgee cleuse in fi,vor of Lender, Trustor shall l!llso prcx:un, and ml!lintain comprehensive general liability insurance In such coverage amounts es Lender may request with Trustee and Lender belng named as additional Insureds in auch liability insurance pollciea, Additlonally, Trustor shall maintain such Qther Insurance, Including but not limited to haurd, busirt(lH interruption, 11nd boiler lmurance, aa Lendc,r m11y reasonably require. Notwithstanding the foregoin9, In no event shall Trustor be roqulred to provido haz11rd insurance In excc,ss of the replacement value of the Improvements on the Real Prgperty. Policies shall be written in form, amouma, covereges and basis reHonably 11ccept11bla to t.,mder aod issued by II company or companin reasonably acceptable to Lender, irustor. upon request of Lander, will deUver to Lender from time to time the policios or certificates of insurance in form satisfactory to Lender, including stipulations that coverages will not be cancelled or diminished without at least thirty 130) day& prior written notice to Lender, Each Insurance policy also shall include an endorument providing that coverage in favor of Lender will not be Impaired In any way by any act. omission or default of Trustor or any other pen;on. Should 1he Real Propert;y be 101.•ted in an are, design11ted by the Director of the Federal Emergency Management Agem:y as a sp11ci11I flood hazard 11rea, Trustor agrees to obtpln and maintain Federal Flood lnaurance, If 11v11ih1ble, within 45 days attar notice is given br lender that the Property i• loi=atad In a 11pecial flood haurd •rea, for the full uripald principal balance of the loan and any prior liens on tha property securing the loan, up to the maximum policy llmlta set under the National Flood Insurance Program, or aa othetwi$e required by Lender, and to molntain such insurance for the turm of the loan, Appllcatlon of Proceeds, Ttustor shall promptly notify Lender of anv loss or dllmll(le to the P1op11rt;y if the aatlmated cost of repair or replacement exceeds $10,000.00. Lender may make proof of loss if Ttustor fails to do ao within fifteen (15) daya of the casualty. If in Lender's aoi& judgment Lender's security intereat in the Propeny has been impaired, Lender may, at Lender'a election. receive and retain the proceeds of any insurance and apply tha proceeds to tha reduction of the lndebtednen, peyment of any lien .effecting tho Properw, or the restoration and repair of the Property. If the proceeds are to be applied to restoration and repair, Trustor shall repair or replace the damaged or destroyed Improvements In a manner satisfactory to Lender. Lender shall, upon satisfactory proof of 1uch expenditure, pay or reimburse Truator from the proceeds for the reasonable c:ost of repair or restorotlon if Trustor is not in default under this Deed of Trust. Any proceeds which have not been disbursed within 180 daya ettar their recaipt and which Lendor hes not eommitted to the rapair or reator,tlon of the Property shall be used first to pay any amount owing to Lender under this Deed of Trust, then to pay accrued intere,t, and the remainder, if any. shall be applied to the princip&I balance of the Indebtedness. If Lender holds anv proc:eada after payment in full of the lndobtBdness, such proc1111ds shall Plil paid to Trustor as Tru1tor'1 interests may appear. (:ompllanet with Existing lnd1bt1dn111. Puring thll period in which any Existing Indebtedness described below is in offect, compliance with the insurance provisions contained in the in:mument evidencing such Existing lndebtednaaa 4hall constitute compliance with tha Insurance provisions under this Deed of Trust, to the extent compliance with the terms of this Deed of Trust would constitute a duplication of insurance requirement. If any proceeds from the Insurance become payable on loss, the provisions In this Deed of Trust for division of proceeds ahali apply only to that portion of the proceeds not payable to the holder of the Existing indebtedness. Tru1tor'1 ~port on ln1uranc1. Upon request or Lender, however not more than once e year, Trustor shall furnish to lander a report on each 11xisting policy of inauranee showing: 111 the nama of the insurer; 121 the risks insured; 131 the amount of the poUcy; {41 tho property lnsurad, the then current r11plac11ment vatu11 of such property, and the manl\lilr of determining that value; 11nd (61 the expiration date of the poUcy. Tru11tor shall, 11p0n request of i..ender, have an Independent appraiGer satlsfactorv to Lender determine the cash value r11placement cost of the Propert;y. TAX AND INSURANCE RESERVES. Subject to any limitations set by appllcabla law, Lender may require Truster to maintaln with Lander reserves for payment of annual taxes, asaessments, and lnsural'>Ce premiums, which reserves shall ba created by advance pavment or monthly payments of a sum estimated by Lender to ba 111fflciant to produce, amounta at leaat equal to the taxes, assesaments, and insurance premiums to be l)llid. Thfl reserw funds shall be held by Lender aa e g11neral deposit from Truator, which Lender may satisfy by payment of the taxea, assellllments, and Insurance premiums required to be paid by Trustor as they become due. Lender shall have tha right to draw upon the ruerve funds to pay ,uch items, and Lender shall not be required to determine the validlty or accuracy of any item before paying it. Nothing In the Deed of Trwt shall be construed a, requirin9 Lender to advance other monies for such purposes, and Lender shall not incur any llebilitY for anything it may do or omit to do with respect to the reserve account, Subiect to any limitations set by applicable law, If the reserve funds disclose II shortage or deficiency, Trustor sh11II pay such shortage or deficiency as required by Lender, All amounts in the reserve account afe hereby pledged to further secure the Indebtedness, and Lender 111 hereby authorized to withdraw and apply such amounts on the Indebtedness upon the occurrence of en !:vent of Default. Lender ahall not ba required to pay any interest or earnings on the reserve funds unless required by law or agreed to by Lender ln writing, L11nd411r does not hold the raaerve fund$ In trust for Trustor, and Lender is not Trustor's agent for payment of the uxaa end assessment• required to be paid by Trustor. LENDER.'$ l:XPENDITURES. If any action or proceeding la commenced that would matetlally affect Lender's interest In the Property or if Trustor fails to comply with any provision of this 088d of Trust or any Related Documents, including but not limited to Trustor's failure to comply with any obllgatlon to maintain Exiatino lndebtednass In good standing as required below, or to discharge or pay when due any amounts Tru$tor is r11qulrod to discharge or pay under this Dead of Trust or any Related Documents, Lender on Trustor'a behalf may (but shall not be obligated to) take any action th11t Lender deama appropriate, including but not limited to discharging or paying all taxes, !lens, security Interests, encumbrances and other cl111ims, at any time levied or placed on the Property and paying all coats for in&urlng, maintaining and preserving the Propert;y. All such e>tpanditures incurred or paid by lender for s11Ch purposes will then bear interest at tha rate charged under tha Note from the date Incurred or peld by Lender to the dote of rapaymem by Trvstor. AU such expenses will become a pert of the lndebtedneu and, at Lander's option, wm lAI !;le p.ayable on demand; /Bl be added to tile b11l11nce of tile Note and be apportioned among and be payable wnh eny lnstellment payments tg become doo during (lither 11 l the term of tiny applieabht Insurance policy; or 12) the remaining term of the Note; or (C) be treated ns a balloon p11yment which will be doo and pay,ble at the Note's maturity, The Deed of Trust also will secure payment of these amounts. Such right ahall be in addition to all other rights and remedies to which Lender rnav be entitled upon Default. WARRANTY: DEFENSE OF TITLE, The following provisions relating to ownership of the Property are a pert of this Dead of Trust: Description: San Diego,CA Document-Year.PocID 2002.1156887 Page: 3 of 11-· Order: 9711161 Comment: Loan No~ 400033300 DEED OF TRUST {Continued} 11801 Paga 4 Title. Trustor warrants that: (al Trustor holds good and marketable tltfe of record to the Property In fee simple, free and clesr of 11U liellS and encumbrance~ other than those 11ut forth In tho Real Property description or in the Existing Indebtedness section below or in any title Insurance policy, title report, or final title opinion lssued in favor of, and accepted by, Lendor in connection with lhis 0<1ed of Trust, and (bl TrU5tor !las the full right, power, and authority to execute and deliver this Deed of Trust to L11nder. Defanst of Tltle, Subject to the exclilptlon In the paragraph above, Trustor warrants and will forever defend the tltle to the Property against the lawful clalma of all persons. In the event any action or proceeding Is commenced that questions Tru~tor'& title or the interest or Trustee or Lender under thla D11ad of Trust, Trustor shaR defend the action at Trustor'i expense. Trustor may be tho nominal party In auch proceeding, but Lender shall be entitled to partlclp11te in the proceeding end to be represented In tho proceeding by counsel of Lender's own choice, end Truster will deliver, er cause to be delivered, to Lender such Instruments as Lender may request from time to time to permit such participation. C11mpilanc1 With Lawt, Truster warrants that the Property and Truster's use of the Property complie$ with •II existing applicable laws, ordinance,, and regulations of governmental aUthorities. Survtv•I of R1pr1nnt.tlon1 and Warrantl11. All representations, warranties, and agreements made by Trustor In this Dood of Trust shall survive the execution and delivery of this 0Hd of Trust, shall be continuing in nature, and shall remain in full force and effect until such time as Trustor'a Indebtedness shall be paid in full. l!XISTING INDeBTEDNESS. The following provisions conc:ernlng 1:xlsting lndebtednesa •re a part of this Deed of Trust: Eidstlng Lien. The lien of "this Deed of Trust securing tho Indebtedness mav be secondary and inferior to an existing lien. Truster expressly covenants and agrees to pay. or aae to the payment of, the Existing Indebtedness and to prevent 1my default on such indebtedness, any default under the lnatruments evidancing such lndebtednctSs, or any default under any security documents for such indebtadn1sa. No Modification. Truator shall not enter Into any agreement with the holder of any mortgage. deed of trust, or other security agreement Which h11s priorir.v over this Deed of Trust by whic:h that agreement Is modified, amended, eictended, or renewed without the prior written con&ent of Lender. Trustor •hell neither request nor accept any future adv11nces under any such security agreement without the prior written consent of Lender. CONDEMNATION. Tho following provision$ 1olatinr1 to eminent domain and invotse condemnation proceedinr11 are a part of this Deed of Truat: Proceedtnga, If any eminent domain or inverse condemnation proceeding is commenced affacting tha Property, Trustor shall promptly notify Lender in writing, and Truator shall promptly take auch steps as may be necussary 10 pursue or defend tha action end obtain the award, Truster may be the nomi11al party In any such proceeding, but Lender shall be entitled, at its election, to participate In the proce11dlng and to be represented in the proceeding by counsel of lts own choice, and Trustor will dallver or cause to be delivered to Lender suc;h Instruments and documentation as may be requested by Lender from time to time to permit such p11rtlcipation. Applleatlon of Net Proceed,. If any award 111 made or settlement entered Into in any condemnation proceeding1 affecting all or 11ny part of tho Ptopeny or by any proceeding or purchase in lieu of condemnation, Lender may at lts election, and to the extent permitted by law, require that all or any portion of the award or settlement be applied to the lndabtedne11 and to the repayment of all reasonable co:sts, expenses, and attorneys' fees Incurred by Trustee or Lender in connection with th& condemnation proceedings. IMPOSITION OF TAXES, FEES AND CHARGES BY GOVERNMENTAL AUTHORITIES, 'rhe following provisions relating to governmental taxes, fee, and charges are a part of thi& Deed of Trust: Current Tax .. , FHa and Charaea, Upon request by Lender, Truitor ahall execute such documents in addition to this Deed of Trust and take whatever othar action iu requaated by Lender to perfect and continue Lender's lien on the Real Propeny. Trustor shall reimbura11 Lender for 11II taxoe, es described below, together witt\ ell expenaas incurred In recording, P11rfecting or continuing this Deed of Trust, Including without limitation all taxes, feos, documentary stamps, and other chargas for rec_ordlng or registering this Deed of Trust. Taxes, The following &h111l constitute taxes to which this 1111ctlon applies: 11 l a specific tax upon this type of Deed of Trust or upon all or any part of the lndabtednes:11 secured by this Deed of Trust: 121 e speeific taK on Trustor which Tn1stor is authorized or required to deduct from payments on the Indebtedness secured by this type of Deed of Trust; (3) 11 tax on this type of Deed of Trust chargeable against the Lender or the holder of tho Note; and (4) a specific tax on 11II or any portion of the lndebtednes$ or on peymenta of principal and interest m11de by Trustor. . Subuquant T1xH, If any tax to which thia aectian applies Is enacted subsequent to tho date of this Deed of Trust, this event shell have the same effect as an Evant of Default, and Lender may exarclae any or au of its available remedies for an Event of Oef11ult as provfded below unless Truster either 1H p,ys the tax before it becomes delinquent, or 121 contests the tax as provided above in the Taxes and Lien!I 11ectlon and deposits with Lendor cash or a sufficient corporate surety bond or other security satisfactory to Lender. @ SECUR11Y AGREEMENT; ANANCING STATEMENTS, The following provisions relating to this Deed of Trust aa a :security agreement are a part of this Deed of Tru11t: Security Agreament. This instrument shall canstltuto a Security Agreement to th11 eKtflnt any of tho Property constitutes fixtures, and Lendor shall have all of th& righu of a secured party under ttie Uniform Commercial Code a,. amended from time to time. SocurltY lnurast. Upon request by Lender, Truster shall execute financing statement, and take whatever other actlon Is reqvested by I.ender to perfect Md continue Lander's security Interest In the Rents and Personal Property, Truster shall reiml>urso I.ender for all expenses incurred In perfecting or continuing thls sacvrity interest. L/pcn default, Trv,tor Sholl not remQv!J, saver or detach the Pe11onal Property from the Property. Upcn default, Truster shall assemble any Personal Property not affixed to the Property in ii manner end et II place rell$0nably convenient to Truster and Lender and make it avail.Ible to Lender within three (3) days alter receipt of written demand from Lender to the axtent permitted by appMcabla law. Addresses, The malllng 11ddresse1 of Truator !debtor} and Lender !secured party) from which information concernlng the security De$cripti.an: San Di.ego,CA IJoaimumt:--:lear.DocII> 2002.l1S6887 Page: 4 0£ 11--- 0rder: 9711161 Comment: --------------··. -· Loan No: 400033300 DEED OF TRUST (Continued} 118-0S the obligations arising under the guaranty In a m11nner 3atisfactory to Lend11r, 11nd, in doing so, cure any Event of Default. Page 6 Advamt Chane•• A material adverse change occurs in Truster's financial condition, or Lender beliava11 the prospect of paymont or performance of the lndebtadness Is Impaired. lnaecurlty. Lender in good faith believes Itself lmi,cure. El!:Jstlng lnd8btadnsu. The p11ymem of any lnstellmant of principal 01 any Interest on the E:.xlsting lndebtedne$a is not made within the time required by the promissory note evidencing such indebtedness, or II default occurs under the iNtrumant securing such l11dabte<1nasa ~nd 1$ not cured during eny applicable grace period In such Instrument, or any auit or other action is commenced to foreclose any existing lien on the Proper:y. Right to Cure. If $UCh a fallure is curable and if Truator h11s not been given e notice of a breach of the same provision of this Deed of Truat within the preceding twelve (12) months, it may be cured land no Event of Default wlll have occurred) If Trustor, after Lender sends written notice demanding cure of 1uch failure: la} cunts the failure within thlrt-., 130} days; or lb) if the cure requires more then thirty (30) days, Immediately initiates steps auffici11nt to cure the failure and thereafter contln1,1e11 and completes all reasonable 11nd necessary •teps sufficient to produce compliance .111 900n as re11sonably practical. RIGHTS ANI) REMEDIES ON DEFAULT. If an Event of Default occura under this Deed of Tr1.1st, at eny time thereafter, Trustee or Lender may exercise any cne or more of the following righu and rornedios: Election of R,m•dlta, Election by Lender 10 pursue any remedy shall not exclude pursuit of any other remedy, and an election to make expenditures or to take actlon to perform an obligation of Trustor under this Deed of Trust, after Truster's fail1.1re 10 perform, shall not affect Lender's right to daclare a default and exercise Its remedias. fortcroaure by Sale. Upon an !!vent of Default under thi1 Deed of Trust, Beneficiary may declare the antire Indebtedness sec1.1red by this Daed of Trust immediately due and payable by delivery to Trulltee of written dsclaration of default and demand for sale and of written notice of defautt and of election to c11uu to be sold tho P-toparty, which notice Tru11tae shall car.,se to bo filed for record. Sensllclary also shall deposit with Trustee thi, Oeed of Trust, the Note, other documents ,equested by T1u11tee, and all documents evidencing a,cpendlturu 11acured he1eby. After the lapse of such time as mav then be required by law followll'lg the recordation ot the notice of default, and notica of aala having been given aa than required by law, Trust1111, without demand on Truster, shall 11ell the Property at the tlmo and place fixed by it In the notice of aale, either as a whole or In separate parcels, and in •uch order u it may determlna, at public auction to the hlghe$l bidder for cesh In Jawiul money of the United States, payable at time of ule, Trustee may postpone sale of all or any portion of the Property by public announcement at such time and place of sale, and from time to time thereafter m•Y postpone such sale by public announcement et the time fixed by the preceding postponament in accordance with appUcable law. Trustee ehall deliver to such purchaser Its deed conveying the ProP4rtY so sold, but without any covenant or warranty, express or imprted, Tho reclt11l1 In such deed of any matters or fact, shall be conc:lualve proof of the truthfulness thereof, Any parson, includi11g Trustor, Trustee or Beneficiary may purchau 8' such sale. After daductlng all costs, fees and expanses of Trustee and of thla Trust, Including cost of evidel'Ce of titfo in connection with sale, Tru,tee ehall apply the proceeds of aala to peyment of: all 1um, expended under the t,rma hereof, not then repaid, with accrued interest at the amount allowed by low in effect at the date hereof; all other suma than secured hereby; end the remainder, if any, to tho person or porsons legally entitled thereto. Judlclal FOl'tcloaur,. With respect to all or a"y part of the ·Real Prope,ty, Lender ahall have the right in lieu of for11C!oaure by power of sale to foreclO$& by judicial foreclosure In accordance with and to the full extent provided by California Jaw. UCC R•lfflldllls. Wrth respect to all or My part of the Per&onal Property, Lender shall have all tho rights and remeelies of • secured party undor the Uniform Commercial Coda, inclr.,ding without limitation the right to recover any deficiency in the manner and to the full extent provided by California law. Callec;t Rents, Lender ahall have the right, without notice to Truster to take possession of and manage the Property and collect the Rents, including amounts past due and unpaid, and apply the net proceed,, over and above Lend,r's costs, against the Indebtednes11. In furtherance ot this right, Lender may require any tenant or other user of the Property to make paymants of rent or use ftt,,e directly to lender. If the Aunts are collected by Lender, then Truster irrevocably designates Lender as TrU$tor'a attornav•in,fact to endorse lnstrumen'II racelved In payment thereof in the name of Tru1tor and to negotiate the same and collect the proceeds. Payments by tenants or other users to Lender in response to Lender's demand shall satisfy the cbligatians for which the payments are made, whether or not any proper grounds fer tha demand existed, Lender may exercise its rights under this subparagraph alther In parson, by agent, or thro1.1gh e receiver. Appoint Recefv,r, Lender shall have the right to have a racalvar appoimed to takt possession of allot any part of the Property, with the power to protect ■nd preserve the Property, to operate the Prope,ty prec:edlng foraclosura ot sale, and to collect the Rents from the Property and apply the proceeds, over and above the cost of the receivership, against the lndebtednesa, The receiver may aeNe without bond If permitted by law. I.ender'• right to the appointment of a receiver shall exist whather or not the apparent value of the Property exceeds the Indebtedness by a substantial amount. Employment by Lender shall not disqualify a person from serving as a receiver. Tenaney at Saifftranca, lf Trustor remains In possession of tho Prope,ty afte~ the Property is sold as provided above or Lender otherwise becomes entitled to posseuion of the Property upon default of Truster, Trustor shall become a t11nent at sufferance of Lender or the purchaser of the Property and ahall, at Lender's option, either !\I pay II reasonable rental for the use of the Property, or 12) vacate the P-roperty Immediately upon tile dem111d of Lender, Othu RemedlH. Trustee or Lender shaU have any other right or remedy provided in this Deed of Truet or the Note or by law, Notiot of Sale. ·Lemltit Ghall give Truator rvasonable noti<:111 of the time and pla~ of any public sale ot the Portonal Property er of the time a~er whieh any private ,ale or other intended disposition of the Personal PropertY is to be made. Rea,onable notice shall mean notice given at lout ten 110) days before the time of tho sala or dlspo11ition, Any aala of the Personal Proparty may be made in conjunction with any sale of 1he Real Property, S1111 of th• Prope,w. To the extent permitted by applicable law, Trustor h11reby waives any 1.nd all rights to have the Propeny Description: San Diego,CA Zlocument-rear.DocID 2002.1156887 Page: 6 0£ 11 Order; 9711161 C0111111ent: Loan No: 400033300 DEED OF TRUST· (Continued) 11804 Page 7 mar11h11lled. In exercising It! rights and remedies, the Trustee or Lender shall ba free to sell ,n or any part of the Property together or separately, in one sale or by separate sales. Lender shall be entitled to bid at any publir;: Nie on all or any portion of the Property. Attorney•• "-H: Expen111, If Lender institutes any suit or action to enforce any of the terms of this Deed of Trust, Lender shall be entitled to recovar ,uch sum as the court may 11djud11a rea11on11ble as ottorneya' fees at trlal and upon any appeal, Whether or not any court action is involved, and to the el<tent not prohibited by law, ail reasonable expenses Lender incurs that In Lender's opinion are necenary at any time for the protection of its interest or the enforcement of It$ rights shall beoom11 a part of tho Indebtedness payable on demand and shall bear interest at the Nata rate from the date of the expenditure until repaid. Expenses covered by this paragraph lnclucle, without limitation, however subject to •ny limits under applicable law, Lender'• attorneys' fees 11nd Lender's legal expenses, whether or not thara is a lawsuit, Including attorneys' fees and expenses for bankruptcy proceedings llncluding efforts to modify or v11c11te any automatic 11tay or Injunction), appeals, and 1my anticipated post-judgment collection aervlces, the cost of searching recorda, obtaining title reports !including foreclosure reports), surveyors• reports, and appraisal fees, title lmrur;inc&, and feee for the Trustee, to the extent permitted by applicable law. Truster also will pey any court cost,, In addition to all other sums provided by law. Rlgtltl of Trun••• Trustea ahall have afl of the rights and duties of Lender aa set forth in this section, POWERS AND OBLIGATIONS OF TRUSTEE. The followfng provlsiona releting to the powers •nd abligatlona of TrUitH are part of this Deed of Trust: Powtr1 of Tru•tee, In addition to all powera of Trustee arisin; aa a m&tter of law, Trustee shell have tha power to t;ike the following actions with respect to the Property upon the written raquut Of Lender and Trustot: {al Join In preparing and filing II map or plat of the Real Property, iffl:klding the dedication ot streets or other righta to the public: lbl Join in granting any easement or creating •ny restriction on the Real Property; and (ol join In any subordination or other agreement affecting thil Deed of Trust or the Interest or Lender vnclar this Deed of Trust. ObUgatlon1 to Notify, Trustee shall not be obligated to notify any other party of a pending nle under eny other trust dead or lien, or of any action or proceedln9 In which 't'rustor, Lender, or Trustee shall be a party, unl1111 the action or proceeding le brought by Trustee. Trust ... Tru1t,e shall meat all qualifications required for Trustee under applfcable law, In addition to the rights end remedies sat forth above, with reapact tc all or any part of the Property, tht Trustee ahall have the right ta foreclose by notice end sale. and Lender 1hatl have the right to foreclose by judicial foreclosure, in eithflr cesa In accordance With and to the full extent provided by applicable law. Succ■e1ar Trusttt, lender, et Lender's option, may from time to time appoint a succe11&or Tr1.1&taa to any Trustee apPQinted under this Deed of Trust by an instrument axecutad and acknowledged by I.ender and recorded in the office of the racord,r of San Diego County, State of California. The instrument shall eontain, in addition to ell olher matters required by atate law, the namae of the original Lend11r, Trustea, and Truster, the book end page where this Deed of Trust la recorded, •nd the name and 11ddre11s of th& suc:cessor trustee, and the Instrument shell ba executed and er;:knowladgod by Lander or its successors in Interest. The succaasor trustee, without conveyance of the Property, shall succeed to all the title, power, and duties conferred upon thG iruistee in this Deed of Trust and by applicable law. This procedure for aubstltution of Trustee shall govern to the excl1JSl0n of all other provisions for substitution, Acceptance by Tf\l•t••· Trustee accepta thi11 Trust when this Deed of Trust. duly sxecutod and acknowledged, is made • public record as provided by law. NOTICES, Anv notloe required 10 be given under this Deed of Trust shall bn given In writing, and shall be effective when actually d11livered, when actually received by teleh10simite (unlesa otherwise n1quired by law), when deposited with a nationally recognized overnight courier, or, if moiled, when deposited In the United Stataa mail, ea fltat class, certified or registered mall postage prepaid, directed to the addresses shown naar tl'IO beglMing of this Deed of Trust. Truster reque$ta thet coplea of any notices of default and Hie be directed to Truster's •ddr0t1s shown near tha beginning of thla Dead of Trust. All copies ot notlcee of foreclosure from the holder of any lien which has priority over this Deed of Trust shall be sent to Lander's •ddress, as shown ne11r tho beginning of this Deed of Trust. Any party may changu its address for notices under this Deed of Trust by giving form•I written notice to the other parties, specifying that the purp01111 of the notice la to ohanga the party'• addroes, For notice purposes, Truster igreu to keep Lender Informed at all times of Tru•tor'a current addreu. Unless otharwiae provided or required by law, if there 1, more than one Trustor, any notice given by Lender to any Trustor is deemed to b& notice given to 1111 Truators. STATEMl:NT OF OBLIGATION FEE. Ltnder may coHect a fee, not to exceed the maximum amount permitted by law, for furnishing the statement of obligation as provided by Section 2943 of the Civil Code of Callfornla. MISCELLANEOUS PROVISIONS. The following miscellaneous provisions ere a part of this Deed of Tru,t: Amendments. Thia Deed of Trust, together with any Related Documents, constitutoa the entire understanding •nd agreement of the partiea as to the matters set forth In this Deed ot Trust. No alteration ot or amendment to thia Dead of Truat ahall ba effective unless given In writing and signed by the penv or parties sought to be charged or bound by the alteruion or amendment. Annual Reporta. If the Property ls used for purposes other then Trustot's residence, Truster 1haH furnish to Lander, up011 request, a certified statement of net operating income received from the Property during Truster's previous fiscal year in such form and detail as Lender shall rec1uire. "Nat operating income• shall mean all cash receipts from the Proparty les1 all cash expenditures made in coMection with thll operation of the Property, C11ptlen Headings. Caption ha•dings in this Deed of Trust are for coovenfence purpoinis only and era not to Ila used to interpret or define tha provi1ions of thia Dead of Trust, Merger. There 1heU be no marg,r of the lnter•st or estate created by this Oeed of Trust with any other interest or estate in the Property et any time held by or far the benefit of Lender In any capacity, without the written can111nt of IAnder, Governing Law, Thlt Deed of Trust wm ba governed by, construed and anfarc•d In accordence with fadaral law and the law• of tha Description: San Diego,CA Doaument-Yea.r.DoaID 2002.1156887 Page: 7 0£ 11 Order: 9711161 Comment: Loan No: 400033300 DEED OF TRUST (Continued) 11805 State of California. 1ni. 0Hd of Trust hH bHn accepted by Lender In tho State of C111ifornl#, Page8 Cholc• of Y•nut. If there is a lawsuit, Trustor agre11s upon L11ndar'a request to aubmit to the juriediction of the courts of San Diego County, State of California. No Waiver by Lender, Lender ahllll not be deemed to have waived any rights under this Deed of Trust unles, such waiver I• given In writing and signed by Lender. No delay or omission on th9 part of Lender il'I exercising any right shall operate as u w1;1iver of such right or any ottwr right. A waiver by Lender of II provi~ion or this Daod of Trust shall not prejudice or constituto II weiver of I.ender's right otherwise to demand strict campllani;a1 with that provision or any other provision of this Deed Of Truat. No prior waiver by Lender, nor any courso of dealing betw11en Lender and Tr1JStor, ahall constitute a waiver of any ol I.ender's rights or of any of Trustor'a obligations as to any future transactions. When11ver t~ consent of lender Is required under this Deed of Trust, the granting of such consent by Lender in any instance shall not constitute continuing consent to 1111bsequent instances where such consent ls requited and in all case, such consent may be granted or withheld in the sch, discretion of Lender, Saverablllty. If a court cf competent Jurisdiction finds any provision of this Deed of Trust to be illegal, invalid, or unenforceable as to any circumstance, that finding shall not make 1ht offending provision illegal, Invalid, or unenforceable as to any other circumstance. If feasible, the offending provision sh11II be considorod modified so that It becomes legal, valid and enforceable. If the offending provision cannot be so modified, it shall b11 considered deleted from thit Deed of Trust, Unlos11 otharwise raquired by Jaw, the illegality, Invalidity, or unenforceabllity of anv provision of this Deed of Trust shall not affect the legality, validity or enforceability of any other ptovieion of this Deed of Truat, succHsors and Anlgn,. Subject to any Hmi'ca1lona stated In this Deed of Trust on tr,nsfer of Truster's lnterest, this Deed of Trust shall be binding upon and inure to the benefit of the partlea, their auccessora end assigns. If ownatahlp of the Property become, vested In a person other than Trustor, I.ender, without notice to Trustor, may d111i1I with Tru1tc:ir'a successors with reference to this Deed of Trust and the Indebtedness by way of forbe11ranco or extension without releasing Truator from tho obligations of this Oead of Trust or liabillty under ihe Indebtedness. Tlma 11 of the Elaenc:1. Tlme is of the essence In the performance of this Dead of Trust. DEFINITIONS. The following c11pltatized worde and terms shall have tho following meanings when used In this Deed of Trvst, Unless 1pecificallv stated to the contrary, all references to doUar amount$ •hall mean amounts in lawful money ol the United States of America. Words and terms UHd in the singular 1hall Include the plural, and the plural shall Include the singular, as the contel(t may require. Words ,nd tarms not otherwise defined In lhis Deed of Trust shall have the meanings attributed to wch terms In the Uniform Commercial Coda: a,neflclary. Ttw word "Beneficiary• means OlSCOVl:RY VALLEY BANK, and its successors and assigns. Borrower. The word "Borrower" moans Freni. LLC, and all oth11r parsons and entities signing tho Note in whatever capacity. Deed of Tna,t. The words "Deed of Trust• mean this Deod of Trust among Truator, Lender, and TNstee, and includes without limitation all a■signment and •ecurltv interest provisions relating to the Personal Property and Rents, Default, ih11 word •0ef11u1t• muans tile D<'lfault set forth In this Deed of Trust in the section titled 'Oefault". Environment.I Laws. The words "Environmental Laws• maan any and all stnta, federal and local statutes, regulations and ordinances relating to the protection of human health or the environment, Including without limitation the COmprehensiva environmental Response, Compensation, and Liability Act of 19B0, aa amended, 42 U.S.C. Section 9601, et HQ, ("CERCLA"I, the Superfund Amendments and Reauthorization Act of 1988, Pub. l., No. 99-499 ('SARA "I, the Hazardous Materl81s Transportation Act, 49 U.S.C. Section 1801, et seq .. the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., Chapters 6,5 through 7.1 of Divition 20 of the ~lifornia H11alth and Safety Codet, Section 25100, et seci,, or other applicable atate or federal laws, rules, or regulations adopted pursuant thereto. Event of Default, The words •event of Default" mean any Of the evonts of default set forth in this Deed of Trutt In the events of default section of this Deed of Trust. Ex11tlng lnd1btedneu. The word& •existing Indebtedness• mean the indebtedness described In the Existing Liens provision of this Deed of Tru1t. Guarantor. The word •Guarantor• means any guarantor. surety, or accommodation party of any or all of tha lndebtodneas. Guaranty. The word "G4aranty" means the guaranw from Guaramor to Lender, Including without limitation a guaranty of ell or part of the No1a. Hazardau1 Substance,. The words •Hazardol.lS Substances• me1m materials that, because of their quantity, concentrBtlon or physical, chemical or Infectious characteristlos, may cau1e or pose a presant or potential hazard to human health or the environment when improperly used, treated, stored, disposed of, generated, manufactured, trBnsported or otherwise handled. The words "Hazardous Substancaa• are used in their very broadest sense and Include without limitation any and 1111 hazardous or toxic substances, materials or waste as defined by or listed under the Environmental Laws. The term "Hazardous Substances• arso includes, without llmitatlon, petroleum and petroleum by-products or any fraction thereof and asbe$tos, lmprovementa. The word "Improvements" meana all existing and future improvements, buildings, structures, mobile homes affixed on the Real Propsrty, facilltles, additions, replacements and other cotlstruction on the Real Property. lndebtednHs. The word "Indebtedness• means all principal, Interest, and other amounts, costs atid el(f)anses payable under the Note or Related Documents, together with all renewals of, extensions of, modifications of, consolidation, cf and substitutions for the Note or Related Oooumants and any amounts expended or advanced by Lender to discharge Trustor'i obligations or expimses incurred by Trustee or Lander to enforce Trustor'1 obligations under this Oead of Trust, togeth9r with lntereat on such amounts as provided in this Oeed of irust. Lender. The word "Londet• means D1SCOVERY VALLEY SANK, its successors and aasigns. Note. Th11 word 'Note· means the promissory note dated December t4, 2002. In the otlginal principal amount of Description: San Diago,CA Doeument-Year.DooID 2002.1156887 Page: 8 of 11 Order: 9711161 Comm.ant: l.oan No: 400033300 ASSIGNMENT OF RENTS (Continued) 11'810 Page 2 FULL PERFORMANCE. If Grantor pays all of the lndtbtedneas whB11 due and otherwise performs 1111 the obligations Imposed upon Grantor under this Assignment, the Note, and the Related Documents, Lender shall execute and deliver to Grantor a suitable satisfaction of this Assignme11t and suitable .statements of termination of any flnanoing statement on file evidenolnp Lender"s security internt In the Rents end the Property. Any termination fee required by law shall be peid by GtMtor, if parmitted by applicable law. LENDER'S EXPENDITlJRES. If eny action or proceeding Is commenced that would materi<1lly affect Lender's Interest In the Property or if Granter fails to comply with any provision of this Assignment or any Reistad Document$, inclvding but oot limited to Grantor's failure to discharge or pay when due eny emounts Grantor Ir; required to di1ch11rge or pay under thla Assignment or any Rel11ted Documents, Lender on Grantor's bahall may lbut shall flOt be obligated to) take any action thot Lender deems appropriate on the Rents or the Property and paying all cosa for Insuring, maintaining and preserving the Property, All such expenditures Incurred or paid by Lender for such purposes will then bear interest at the rate charged under the Note from the dnte incurred or paid by Lender to the date of repayment by Granter. All such expenses will become II part of the lndobtedneaa end, at Lender's option, will IAI be p11yabl11 on demand: (Bl be added to the balance of the Note and be apportioned among and be payable with MY installment payments to become due during either ( 1 I the term ot any applicable Insurance policy: or {2} the remaining term of the Note: or (Cl be treated H a balloon payment which will be due and payable at the Note'a maturity, DEFAULT, Each of the following, at Lender's Option, shall constitute an Event of Defeult under this Aaalgnment: Payment Default. Grantor fall• to make any payment when due under the lndabtedneas. Ofher Default, Grantor fails to comply with any other term, obligation, covunent or condition cont<1lned in this Assignment or in any of the Related Documents. RIGHTS AND REMEDIES ON DEFAULT. Up0n the occurrence of any Event of Default and at any time ther111!1fter, I.ender may exercise any one or more of the following rights and remedies, In addition to any other rights or remedies provided by law: . Accelerate lndebtedntH, Lander shall have the right at lta option without notice to Grantor to declare tho" entire Indebtedness immediately due and payable, including eny prepayment fee which Grantor would be required to pay, Colltct Rents, Lender shell have the right, without notice to Granter, to take possession of the Property and collect tha Rents, lncb,1(1ing amounts past due and unpaid, and apply the net proceeds, over and above Lender'a oosta, against the lndebtednen, In furtherance of this right, Lender shall have all the rights providad for in th& Lender's Ri9ht to Rocalve and Collect Rents Section, above, If the Rents are collected by Lender, then Grantor lrrovocably designates Lender aa Grantor's attorney-in-fact to andorse instruments recei11ed in payment thereof in the name of Granter and to negotiate the same and collect the proceai:ls. Payments by tenants or other uaera to Lender in response to Lander's demand ahall satisfy the obligations for which the paymrmts are made, whether or not any proper grovnda for the demand existed. Lender may exatciae Its rights under this subparagraph either In person, by agent, or through a receiver. Appoint Receiver. Lender shall have the right to have a receiver appointed to take possession of all or any part of the Property, with the power to protect and prG111rve tha Property, to Qperata the PropertY preceding foreclosure 01 nle, and to collect the Rents from the Property and apply the proceeds, over end above the cost of the receivership, against the Indebtedness. The receiver may serve without bond if permitted by law. L11ncle1's right to the appointment of II tecelver shall exist whether or not the <1pparant value of the Prope11V excuds the Indebtedness by a substantial 11mount. Employment by Lander shell not disqualify a peraon from serving as e receiver. Other Remedies, Lend11r shall have all other rights and remedies provided in thia Assignment or the Note or by law. etoctlon of RamedlH, Election by Lendor to puraua any remedy shall not exclude pursuit of any other remedy, and an election to make expenditures or to take action to perform an obligation of Granter under this Assignment, after Grantor's failure to perform, shaU not affect I.ender's right to daclare a default and exercise Its remedies. Attorney,• Fees; Exp1n1H, If Lender institutes any suit or action to enforce any of the terms of this Assignment, Lender shall be entitled to recover such sum u the court may adjudge reasonable 111 attorneys• fees at trial and upon any appeal, Whether or not any court action is involved, and to the extent not prohibited by law, all reaaonable expenses Lender incurs that in Lender's opinion are necessary at any time for tha protection of its interest or the enforcement of IU tights sh11U becoma a part of the Indebtedness payable on demand and shall bear interest at the Note rate from the date of tho expenditure until repaid, Expenses covered by this paragraph Include, without limitation, however :subject to any limits under applicabla law, Lencler'a attorneys' fees and Lender's legal expenses, whether or not there la a lawsuit, Including attorneys' faes and expenses for bankruptcy pcoceadings (including efforts to modify or vacate any automatic stay or injunction), appoals, and any anticipated poat-)udgment collection services, the cost of searching records, obtaining title reporta {including foreclosure reports), surveyor,• reports, and appraisal fees, title Insurance, and fees for the Tr11$tee, to the extant permitted by appllcabl11 law. Granter elso will pay any court costs, in addition to all other suma provided by lew. MISCELlANEOUS PROVISIONS, The following mlscellaneous provisions are 8 part of this Assignment: Governing I.aw, Thi■ A•tignmem wUi be 11overned by, con1tt11ad end enforced In accord■nct whh f•d•r•I law e11d the laws of tho Stote of California. Thi■ Aa1lgnment hH b■en acc:epted by Lender In tha State of C■Ufornla. Choice of Venu,. If thert Is a lawault, Granter agre1111 upon Lender's request to submit io thQ jurisdiction of tho courta of San Diego County, State of California, lnterprttetion, 11) In 11n c:asea where there is more than one Borrower or Gr1ntor, then all words used In this Assignmem In the singular shall be deemed to have been used in the plural where tho context and con.structlon so require, (21 If more than one person 11igns tliis Assignment as "Grantor, • the obligations of each Granter are joint snd several. This means that if lender brings ~ lawsuit, Lender may aue any one er more of the Grantors. If Borrower and Grantor ere not the same parson, Lender need not sue Borrower first, and that Borrower need not be Joined in any lawsuit. (31 lhil names 11ivan to paragraphs or sections In this Asalgnment are for conveniaoca purpoaes only, They ere not to ba u11ed to Interpret or define the provi,ion1 of this Assignment, WAIVER OF RIGHT OF REDEMPTION. NOTWITHSTANOING ANY OF iHE PROVISIONS TO THE CONTRARY CONTAINED IN THIS Descr~ption: San Diego,CA Document-Year.DocIP 2002.1156888 Page: 2 of 5 Order: 9711161 Comment: ' . I _, • "EXHIBIT A" 11813 FAllCE~ A: PARCEii 1 OF 1?11.JtCEL MAP. NO. 18720, rN THE CITY OF CARLSBAD, COON'l''lr OF SAN DIEGO, STATE OF CALUORNIA, PIL.SD IN THE OFFICE or THE COUNTY UCOR:!Jl::R OF S1.N D.IEGO COUNTY, JONES, 200l AS FILE NO. 2001•0368564 OF OFFICl'.Al. RECORDS. PARCEL B: AN EXCLUSJ:VE EASEMENT TO CONSTRi!CT, MAXNTAIN1 REPAIR, REPLACE AND 1U:MOV1!! A ROADWAY Alm TO PROVIDE FOR WHl'C'ClLAR ANP PEDES'r~ INGRES~ AND RGRESS, OVER, ALONG~ ACROSS TKAT PORTJ:ON OF LOT l IN THE Cl\RLSBAD TRACT NO. 74~21, IN TEE CI'I'Y OF CARLSBAD, COONTY OF SAN DIEGO, STATE OF CALIFORNIA ACCORDING TO MAP THE.~OF NO. 1037;2, FILED IN THE OFFICE OF Tlm COUNT£ RECORDER OP SAN DIEGO COUNTY, APRI~ 13, 1982 1 DESCRIBED AS FOttOWS: EEG!NN!NG AT THE NOR'l'HE]\STERL '! COR.mlR OF. .SAID LO'l" 1 ~ THENCE SOOTH B 8 Q 14 • J 5 n W:E:ST ALONG'"'lfHE NORTHERLY LINE.OF LOT 1, 100.00 °FEE'l'; THENCE SOOTH Ol•4S'25" EAST,· 1 lB.00 FEET; THENCE NORTH 88°14'3511 EAST l00.30 Fim'l".'I'O TH:S WESTERLY RIGHT OF WAY or LOKER AVENUE AS SHOWN ON SAIO MAP, SAilJ WESTERLY IU:GHT OF WAY SE::r:NG A NON-TANGENT 536.00 FOOT AAOIUS CURVE, CONCAVE EASTERLY, WHOSE' CENTER BEARS NORTH 8 6 • U' 07 1' EAST, THENCE NORTH!lU,Y ALONG THE ARC or SAID CURVE THROUGH A O!:NTRAI., 0 ANGLE OF 01"55'28", 18.00 1-":€:ST 'l'O TBS POINT OF BEG:tNNING. PARCEL C: A RECil?ROCAL; NON-EXCLUSIVE, PERMANENT l!:ASEMENT AND RIGHT OF WAY OVER, UNDER, ALONG AN!l ACROSS PARCEL 2 OF l?ARCEL MAl? NO. una FOR T.HE PURPOSE OF PROESTRI:AN' AND VEHICULAR ACCESS, I~GRESS .ANO EGRESS TO AND fROM THE RESPECT:r:vi:: PAR.c::EI,S :Z:N Tl-!E AR.E:AS T!-!AT ARE J:MPROVED AND DESIGNATED AS nrI'ERNAL CIRCULATION DRIVEWAYS, COMMON ACCESS DRIVEWAYS, SIDEWALKS Afro SIMILAR IMPROVEM:5NrS; TOGETHER w::tTH AN EASEMEN'r FOR SURFACE DRJ\INAGE Ove.R ANn PARKING UPON SAID PARCEL 2 OF PAaCEL MAP NO. 1B720, AS RESERVED W THE "DECLARATION OF RECIPROCAL ACC:E:SS, DRAINAGE AND PARJCING EASEMENTS" RECORDED MAY J, 2001 AS FILE NO. 200l-02SOG28 OF OFFICIA!, RECORDS. PAR.CSL D : Aff EASEMENT FOR RECIPROCAL ACCESS, :PARK.IN~ ANO DRAINAGE, OVER, ACROSS AND O'l?ON PARCEL 2 OF PARCEL MAP NO •. l8720, AS DESCRIBED IN THE ''COVENANT FOR EASEMENT•• RECORDED JOI..Y 31, ~001 AS Fit.E NO. 2001-0534324 OF OFFICIAL RECORDS .. • t· San ":z.'ego CA Doai:rment-Year.DoeID 2002.ll56SSS Page: 5 of! S -·· Descrip :z.on: "'· , order: 9711161 comment: Loan No: 400033300 HAZARDOUS SUBSTANCES AGREEMENT (Continued) 11815 Page 2 on the Property, In the event lnclemnitor falls to perform any of lndemnitor's obligation, under this section of the Agreement, Lander may (but sh1dl not be rectulred to} perform such obligations at lndemnitor's axponse, All &uch costs and expenses incurred by Lender under this section and otherwise under this Agreemem shall be reimbursed by lndamnltor to Lender upon demand with interest et the Loan default rate, or In the absence of a default rata, at the Loan interust rate. Lender and lndemnltor intend that Lander shall have fut( recourse to lndemnitor for any sum at any time due to Lender under this Agreemant. In parformlng any such obligations of lndemnltor, Lender shall at all time& b-, dettmed to be the agent of lndernnitor and shall not by reason of such perforrnancfl be deamfld to be assuming 1ny responslbintY of lndemnitor under any Environmental Law or to any third party, lndemnltor hereby irrevocably appoints Lender as lndemnitor'a attorney•ln•fact wi~ lull power to perform s®h of lndemnitor'1 ollligatlona under this section of the Agreemern as Lender deems nacesaery and appropriate. Notlcoa. lndemnitor shall immediately notify lender upon becoming aware of any of the following: 11 l Any spill, release or disposal of a Hazardous Substance on any of the Property, or in connection with any of its operations if such spill, releasa or disposal must be reported to llnY governmental authority under applicable Environmental Laws. (21 Any contamination, or imminent threat of contamination, of the Property by Hazardous Substances, or any violation of Envlronmental Laws In connection with the Pro~rty or the operations conducted on the Property. 131 Any order, notice of violation, fine or penalty or other similar action by any governmental 11uthorliy relating to Hez1mfous $ubat11ncaa or Environmental Lawa and tht Property or the operations conducted on the Property. (4} Any judicilll or administrative Investigation or procuadlng relating to Hazardous Substance11 or Envil'onmimtel Laws and to the Property or th• operations conducted on the Property, (5) Any matters relating to Haiardous Subatances or Envitoomentaf Laws that would give a reasonably prudent Lender cause to be concerned that the value of Lender's security Interest in the Property may be reduced or threatened or that may impair, or threaten to Impair, lndemnltor"s ability tQ perform any of its obllg-itlons under this Agreement when such performance le due. Accen to Records. lndemnitor $hall deliver to Lender, at Lender's request, copies ot any and aU documents In lndemnitor's possession or to which It has access relating to HazardOU$ Substances or Environmental Laws and the Proparty end tha operations conducted on thrt Proprtrty, including without limitation results ot J11bo.-atory analyses, site assessments or studies, environmental audit reports and other consultants' studies and reports. ln1p1c:tlQns, Lander reserves the right to Inspect and lnve:stigau the Property and operations on it at any time and from time to time, and lndemnitor shall cooparate fully with Lender in 1uch Inspection and investigations, If Lender at any time has reason to believe that lndemnltor or any Occupant• of the Property are not complying with all applicable Environmental Laws or with the requirements of this Agreement Qt that a material spill, ralease or disposal of Hazardous Substances has occurred on or under the Property, Lender may requlre lndemnitcr to furnish 1.t,nder at lndemnitor's expense an erlVlronmental audit or II site a11&essment with respect to the matters of concern to Lender. Such audit or 88senment shall be performed bV a Qu111ifled c011sultant approved by Lender. Any insp11ctions or tests made by Lender shi,n ba for Lander's purposes only and shall not be construed to create any rasporusibility or liability on the part of Lender to any lndemnltor or to any other per5on, INDEMNITOR'S WAIVER AND INDEMNIFICATION, lndemnitor hereby indemniflee end holds harmless Lender end Lender's officers, directors, employees and agents, and Lander's successors and essigns and their officers, directors, employees end a11enta against any and all claims, demands, losses, liebilitiH, costs and axpenses (including without limitation attorneys' fees at vial and on any appeal or petition for review! Incurred by sLJch parson {al arising out of or relatlng to any investigatory or remedlal action Involving the PropertY, the operations conducted on the Property or any other operationa of lndemnltor or any Occupant and raquirad by Environmental Laws or by orders of any governmental authority having jurisdiction under any Environmental Laws, or (bl on 110oount of Injury to any person wh11tsoever or damage to any property arising out of, In connection with, or in any way relating to (ii the breach of any covenant contained In this Agreement, (Ill the violation of any Environmental Lawa, lliil the use, treatment, storage, generation, manufacture, transport, releaso, spill disposal or other hendllng of Haz11rdous Substances on the Property, IM the contamination of any of the Property by Hazardous Substances by any means whatsoever (including without limitation any presently existing contamination of tha PropertY}, or M any costs Incurred by Lender pursuant to this Agreement, In addition to this indemnitV, lndemnitor hereby releases and welvea all presant cmd future clalma egalnat lander for Indemnity or contribution In the event lndemnitor becomes liable for cleanup or other costs under any environmental Laws. PAYMENT: FULi. RECOURSE TO INCEMNITOR, lndemnlt01 Intends that Lender shall have full recours11 to lndemnitor for lndemnitor's obligations under this Agreement as they become due to lender. Such liabilities, losses, cl■ims, damages and axpensas shall be reimbursable to Lender H lander'• obligations to make payments with respect tharato are incurred, without any requirement of waiting for the ultimate outcome of any litigation, cfaim or othvr proceeding, and lndemnltor shall pay such ll11billty, losses, claims, damages and expenses to Lender as so Incurred within thirty (301 days aher written notlc:e from Lender. Lander'• notice 1hail contatn I brief itemization of the amounts Incurred to the date of sueh notlce, In addition to eny remedy evallabla fer failure to pay periodically 1uch amount$, such amounts shall thereattar bear interest at the Loan default rate, or In the absence of a default rate, at the Loan Interest rate. SURVIVAL, The eovanants contained in this Agreement shell survive !Al the repayment of the Indebtedness, (8J any foreclo11ure, whether Judicial or nonjudicial, of the Property, and (Cl any delivery of a deed In lieu of foreclosure to Lender or 11ny successor of Lender, Ths covenants contalnocl in this Agreement 11h11ll be tor the benefit of Lender and any llUccessor to Lender, 11s holder of any aecurity interest In th& Property or the indebtedness secured thereby, or as owner af the Property following forecroaure or the delivery of II deed In lieu of forecloaure. MISCELLANEOUS ~FIOVISIONS, The followlno mis1:all11naous provisions ara II part of this Agreement: Amendment,, This Agreement, 1ogether with any Related Documents, conatitutes the entire understanding and agreement of the parties as to the mattere Ht forth in thfa Agreement, No alteretion of or amendment to this Agreement shall be effei;tivo unless given in writing and signed by the party or partiH sought to be charged or bound by the alteration or am11ndm11nt. Attorneys' FaH; Expen,ea. If t,i,ndar !netitutes any suit or action to enforce _any of the terms of this Agreement, Lender shall be entitled to recover such sum as the court may adJudg11 reasonable as attorneys' feo• at trial and upon any appaal, Whether or not 11ny Desa~iption: San Diego,CA Document-Year.DocID 2002.1156889 Page: 2 0£ 6 Order: 9711161 Comment: Loan No: 400033300 HAZARDOUS SUBSTANCES AGREEMENT (Continued} 11816 Page 3 court action ls invclvad, and to the extant not prohibited by law, all reasonable expenses Lender Incurs that in Lender's opinion are necessary et any time for the protection of Its Interest or the enforcement of Its rights shall become a part of the Indebtedness peyeble on demand and shall beer Interest at the Note rata from the date of tha expenditure until repaid. E,cpensas covered by this paragraph include, without limltlstion, however subject to any limits undar applicable law, Lender's snornaya' fees and Lender's legal e,cpanses, whethisr or not ther, is a ~wsult, includinQ attorneys' f&ea and expenses for bankruptcy proceedings (lnclud1ng efforts to modify or vacate any automatic stay or inJvnction), appel!ls, and any anticipated post•iudgment collection s&rvice$, the cost of searching records, obtaining title report11 (including foreclo$ure reports), survf.\yors' reports, and appraisal fees and title Insurance, to the extent permitted by applicable l11w. lndemnitor also will pay any court coats, In addition to all other suma provided by law. Caption Htadlng■, Caption heacllngs in this Agreement are for convenience purposes only and are not to be used to Interpret or define the provisions of,thls Agraement, Gov,mtng Law. Thlt AgrHmtnt wlU be governed by, c:onatnied and enforced ln accordance wld1 fedaral law and tht laws of the S1111 of CllllfOJnla, Thia AgrHmant hH been accapttd by Lender In the Stat, of Canfornla. Choice of Venu■, If there la a lawault, lndamnitor agrees upon lander•, r11qui,at to aubmlt to the Jurisdiction of the cov"• of San Diego County, State of California. Joint and Several U.bUlty. All obligations of lndemnitor under this Agreement shall be Joint and several, and all references to lndemnltor shall mean each and every lndemnitor. Ttila m1111na that aich lndemnitor signing below l1 responsible for 1111 obligations In this Agroement. No W1lvar by t.■nder. Lender shall not be deemed to have waived anv rights under this Agreement unless such waiver ia given In writin11 and aigned by Lender, No delay or omission on the part of Lendar in exercising eny right shall operate as a waiver of such right or any other right, fl,. waiver by Lender of a provhdon of this Agreement 1holl not pre]udica or constitute a waiver of Lendar'a right otherwise to demand strict compliance with that provision or any other provision of thla Agreement. No prior wolvar by Lendar, nor any course of daallng between Lender and lndemnltor, shall canstltuta a waiver of any of Lender•• rights or ol any of lndemnltor's obllgatlons as to any future transaction•. Whenever ihe eoll/lent of Lender 1.9 required under this Agreemtnt, the granting of such consent by Lender In any Instance shall not COMtitt.1te continuing con.sent to subsequent instance, wher, such consent is required and In all ciasea suoh consent l'I\IY be gr11nt11d or withheld In the sole discretion of Lender. lnd1:1mnitor hereby waives notice of acceptance of this Agraament by Lender. Notice■. Any notice required to be glvort under this Agreement shall be given In writing, and shall be effec.tive when ectually delivered, when actually received by telefacslrn/11 (unless otherwlH required by law), when depaslted with a nationally recognized overnight courier, or, if mailed, when deposited in the United States mall, as first class, certified or registered mall postage prepaid, directed to the addresae11 1hown near the beginning of thla Agreement. Any party may change its address for notices under this Agreement by giving formal written notice to the other parties, specifying that the purpose of the notia11 is to change the party's addtaaa. Fer notice pur~ses, lndemnitor agrees to keep Lender informed et ell times of lndemnltor's current address. Unless otherwisa provided or r11quir■d by law, if there ;. more tllan one lndemnltor, any notice given by Lendor to any lndemnitor is deemed to be notice given to all lndemnltors, s,ver,blllty. If II court of competent jurisdiction finds any provision of this Agreement to be Illegal, invalid, or unenforceable as to any circumstance, that flndlng shaU not make the ollendlng provision illegal, invalid, or unenforceable aa 10 any other circumstance. If feasible, the offending provi$lan shall be considered modified 10 that it becomes legal, valid and enforcHble. If ttia offending provhsior, cannot bo eo modified, It shall be con•ldered deleted from this Agreement. Unfe■-otherwise required by law, 1h11 illegality, lnvalidltY, or t.1nenforcaebitlty of any provision of this Agreement shall not affect the legality, validity or enforceability of any other provision Of this Agreement, SuccH1or1 and As1l11n1. Subject to any !imitations sated In this Agreement on transfer of lndemnftor'a lnten,at, this Agreement shall ba binding upan and inure to the benefit of the pertfea, their aucca■sora and acslgna, If ownership of 1h11 Collateral becom91 vested In a person other ttion lndemnhor, l.ender, without notice to lndemnltar, m,v deal with lnclemnltor'a aucceasors with reference to this Agreement and th11 lndebtedn11ss by way of forbearance or ei1tenalan without releasing tndemnltor from the obilgatlons of this Agreement or liability 1,1nder the lndabtedneu. Time Is of th• EHanc■• Time is of the easence ln the performance of this Agreement. DEFINITIONS, The following capitalized words and terms ahall have the following meanings when u111d in this A11reament. Unless sp11clficallv 1t11tad to the contrary, all references to dollar amot.1nts ahlsU mean amounts in lawful money of the United States of America. Words and terms uaad In tilt singular shsU Include the plural, and the plural shall Include the singular, as the context may require. Words and terms not otherwise defined In thil Agreement shall have thli meanings attributed to auch terma In the Uniform Commercial Code: Agr■1m1nt, TIie word "Agreement" m111n1 this Hazardous SubstencH Agreement, as this Hu11rdous Sub■tances Agreement may be amended or modified from time to time, together with all exhibits end ochadulas attached to this Haiardous Substances Agreement from time to lime, Collateral, Th11 word "Collateral" means all of lndemnitor' a Jig ht, title and Interest in and to all the Collateral as dsscrlb■d In tha Collateral Oa_scrlptlor;i sec1ion of this Agreement. Enwonmental Laws, The words "Environmental Laws• mean any and all"atatll, federal and loc::sl statutes, regulations and ordinances relating to the protection of human health or the environment, including without fimitation the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S,C, Section 9601, et aeq. ("CERCI-A"I, the Superfund Amendments and Reauthorii11tlon Act of 1988, Pub, L. No. 99-499 !"SARA"), the Hazerdous M11terials Trimsportallon Act, 49 U.S.C. Section 1801, et HQ,, the liesource Conservation and Recovery Act, 42 u.s.c. Section 6901, et seq., Chapters 6.5 through 7.7 of Oivlaion 20 of the Califcmia Health and Safety Code, Section 25100, et seq., or other applicable stats or ffldsral lawii, rules, or regulations adopted pursuant thereto. Ha111rd11u1 Substance,, lhe words "Hazardous Substances• mean materials thet, because of their quantity, c:oncantration or physical, chemical or infectroua characteristics, may cause or pose a pre3ent or potential hazard to human health 01' the environment Description: San Diego,CA Dooument-Year.DacID 2002.1156889 ~age: 3 0£ 6 Order: 9711161 comment: City of Carlsbad 1635 Faraday Avenue Applicant: HOFMAN PLANNING ASSOCIATES Description PIP05003 Receipt Number: R0048454 Transaction Date: 03/08/2005 Pay Type Method Description Carlsbad CA 92008 Amount 3,520.00 Amount Payment Check 543 3,520.00 Transaction Amount: 3,520.00 3363 03/08/05 0002 01. 02 c:: Gf:" 35.~~0" 00 • PROJECT DESCRIPTION/EXPLANATION PROJECT NAME: Palomar Forum Lots 6 and 7 APPLICANT NAME: Palomar Forum Associates LP A request for a Planned Industrial Permit for a 5 .94 acre lot -located north of Palomar Airport Road between Eagle Drive and Business Park Drive. The project is described as lot 6 and 7 located in Local Facilities Management Zone 18 and is adjacent to lot 5 detailed on approved Palomar Forum Final Map CT 99-06. The lot will contain 9 two story buildings ranging from 5,020 -14,000 square foot with a total ground floor area of 81,130 square feet. Environmental compliance is established by way of Mitigated Negative Declaration and Addendum, and Mitigation Monitoring and Reporting Program GPA 01-07/ ZC 01-06/CT 99-06/HDP 99-03/PIP 01-03 which was approved by Planning Commission (Resolution 5031) on October 17, 2001 and adopted by City Council (Resolution 2001-352) on December 4, 2001. Final Map for Carlsbad Tract CT'99-06 (Resolution 2004-177) Palomar Forum in which Lots 6 and 7 is contained, was passed, approved and adopted by City Council on June 1, 2004. The project is in conformance with PI General Plan Designation as well as the P-M zoning ordinance. In the near future, the Developer intends on subdividing building airspace by way of a Tentative Tract Map (CT) application and incorporating common space area by way of a Planned Unit Development (PUD). -!::ti Hofman Planning LETTER OF TRANSMITTAL Associates Planning Project Management Fiscal Analysis DATE: March 8, 2005 PROJECT: Palomar Forum Lot 6 and 7 Planned Industrial Permit Application DELIVERED BY: .Tony Sanfilippo ATTENTION: Anne Hysong Message: Attached for your review is/are: ► Five (5) sets of Engineering Plans ► Five (5) sets of Architectural Plans ► Five (5) sets of Landscape Plans ► One (1) signed Planned Industrial Permit Application ► One (1) signed Disclosure State ► One (1) signed Hazardous Waste Statement ► One (1) copy of Lot 5 Project Description ► Two (2) copies of EIA I ► Two (2) copies of Stormwater Management Plan (SWMP) ► Two (2) copies of the Hydrology Study ► Two (2) copies of the Traffic Study ► One (1) Color and Materials Board ► One (1) Check in the amount of $3,520 for PIP Plancheck ► Two (2) copies of the Title Report RECEIVED M~C? fl 8 2005 CITY OF PLANNJiGARDLSBAD EPT Please feel free to contact me should you have any questions regarding this submittal Regards, FROM: Tony Sanfilippo Project Planner tsanfilippo@hofmanplanning.com 5900 Pasteur Court • Ste 150 • Carlsbad • CA • 92008 • 7 60-438-1465 • Fax 7 60-438-2443 ENVIRONMENTAL IMPACT ASSESSMENT FORM-PART I (TO BE COMPLETED BY THE APPLICANT) BACKGROUND -1. CASE NAME: Palomar Forum Business Park Lots 6 and 7 CASE NO:-'f'---1_/u_o_y_c:.V_> DATE: February 3, 2004 2. LEAD AGENCY NAME AND ADDRESS: City of Carlsbad 1635 Faraday Ave Carlsbad 3. CONTACT PERSON AND PHONE NUMBER: Bill Hofman, Hofman Planning (760)438-1465 4. PROJECT LOCATION: North of Palomar Airport Road between Business Park and Melrose Dr 5. PROJECT SPONSOR'S NAME AND ADDRESS: _D--av __ is~P--art--n--e--rs=-------------- 6. GENERAL PLAN DESIGNATION: _P_I ________________ _ 7. ZONING: _P_M ________________________ _ 8. OTHER PUBLIC AGENCIES WHOSE APPROVAL IS REQUIRED (i.e., permits, financing approval or participation agreements): _________________ _ 9. PROJECT DESCRIPTION/ ENVIRONMENTAL SETTING AND SURROUNDING LAND USES: A request for a Planned Industrial Permit for a 5.94 acre lot located north of Palomar Airport Road between Eagle Drive and Business Park Drive. The project is described as lots 6 and 7 located in Local Facilities Management Zone 18 and is adjacent to lot 5 detailed on approved Palomar Forum Final Map CT 99-06. The lot will contain nine two story buildings ranging from 5,020 to 14,000 square foot with a total ground floor area of 81,130 square feet. Environmental compllance_ Is estabflshed by way of Mitigated Negative Declaration and Addendum, and Mitigation Monitoring and Reporting Program GPA 01-07/ ZC 01-06/CT 99-06/HDP 99-03/PIP 01-03 which was approved by Planning Commission (Resolution 5031) on October 17, 2001 and adopted by City Council (Resolution 2001-352) on December 4, 2001. 1 Rev. 07/26/02 ENVIRONMENTAL FACTORS POTENTIALLY AFFECTED: The summary of environmental factors checked below would be potentially affected by this project. involving at least one impact that is a "Potentially Significant Impact." or "Potentially Significant Impact Unless Mitigation Incorporated" as indicated by the checklist on the following pages. D Aesthetics D Agricultural Resources lli] Air Quality [xJ Biological Resources W Cultural Resources D Geology/Soils 0Noise .0 Hazards/Hazardous Materials D Population and Housing 1K] Hydrology/Water Quality IR] Land Use and Planning D Mineral Resources D Mandatory F:indings of Significance 2 D Public Services D Recreation (8] Transportation/Circulation D Utilities & Service Systems Rev. 07/26/02 ENVIRONMENT AL IMPACTS STATE CEQA GUIDELINES, Chapter 3, Article 5, Section 15063 requires that the City conduct an Environmental Impact Assessment to determine if a project may have a significant effect on the environment. The Environmental Impact Assessment appears in the following pages in the form of a checklist. This checklist identifies any physical, biological and human factors that might be impacted by the proposed project and provides the City with infonnation to use as the basis for deciding whether to prepare an Environmental Impact Report (EIR), Negative Declaration, or to rely on a previously approved EIR or Negative Declaration. • A brief explanation is required for all answers except "No Impact" answers that are adequately supported by an information source cited in the parentheses following each question. A "No Impact" answer is adequately supported if the referenced information sources show that the impact simply does not apply to projects like the one involved. A "No Impact" answer should be explained when there is no source document to refer to, or it is based on project-specific factors as well as general standards. • "Less Than Significant Impact" applies where there is supporting evidence that the potential impact is not significantly adverse, and the impact does not exceed adopted general standards and policies. • "Potentially Significant Unless Mitigation Incorporated" applies where the incorporation of mitigation measures has reduced an effect from "Potentially Significant Impact" to a "Less Than Significant Impact." The developer must agree to the mitigation, and the City must describe the mitigation measures, and briefly explain how they reduce the effect to a less than significant level. • "Potentially Significant Impact" is appropriate if there is substantial evidence that an effect is significantly adverse. • Based on an "EIA-Part I", if a proposed project could have a potentially significant adverse effect on the environment, but all potentially significan~ adverse effects (a) have been analyzed adequately in an earlier EIR or Mitigated Negative Declaration pursuant to applicable standards and (b) have been avoided or mitigated pursuant to that earlier EIR or Mitigated Negative Declaration, including revisions or mitigation measures that are imposed upon the proposed project, and none of the circumstances requiring a supplement to or supplemental EIR are present and all the mitigation measures required by the prior environmental document lmve been incorporated into this project, then no additional environmental document is required. • When "Potentially Significant Impact" is checked the project is not necessarily required to prepare an EIR if the significant adverse effect has been analyzed adequately in an earlier EIR pursuant to applicable standards and the effect will be mitigated, or a "Statement of Overriding Considerations" has been made pursuant to that earlier EIR. • A Negative Declaration may be prepared if the City perceives no substantial evidence that th~ project or any of its aspects may cause a significant ad\·erse effect on the environment. • If there are one or more potentially significant adverse effects, the City may avoid preparing an EIR if there are mitigation measures to clearly reduce adverse impacts to less than significant, and those mitigation measures are agreed to by the developer prior to public review. In this case, the appropriate "Potentially Significant Impact Unless Mitigation Incorporated" may be checked and a Mitigated Negative Declaration may be prepared. 3 Rev. 07/26/02 • An EIR fil!!fil be prepared if "Potentially Significant Impact" is checked, and including but not limited to the following circumstances: ( 1) the potentially significant adverse effect has not been discussed or mitigated in an earlier EIR pursuant to applicable standards, and the developer does not agree to mitigation measures that reduce the adverse impact to less than significant; (2) a "Statement of Overriding Considerations" for the significant adverse impact has not been made pursuant to an earlier EIR; (3) proposed mitigation measures do not reduce the adverse impact to less than significant; or ( 4) through the EIA-Part I analysis it is not possible to determine the level of significance for a potentially adverse effect, or determine the effectiveness of a mitigation measure in reducing a potentially significant effect to below a level of significance. A discussion of potential impacts and the proposed mitigation measures appears at the end of the fom1 under DISCUSSION OF ENVIRONMENT AL EVALUATION. Particular attention should be given to discussing mitigation for impacts, which would otherwise be determined significant. 4 Rev. 07/26/02 Issues (and Supporting Information Sources). (Supplemental documents may be referred to and attached.) e) Have soils incapable of adequately supporting the use of septic tanks or alternative wastewater disposal systems where sewers are not available for the disposal of wastewater? VII. HAZARDS AND HAZARDOUS MATERIALS - Would the project: a) Create a significant hazard to the public or the environment through the routine transport, use, or disposal of hazardous materials'? b} Create a significant hazard to the public or environment through reasonably foreseeable upset and accident conditions involving the release of hazardous materials into the environment'? c) Emit hazardous emissions or handle hazardous or acutely hazardous materials, substances, or waste within one-quarter mile of an existing or proposed school? d) Be located on a site which is included on a list of hazardous materials sites compiled pursuant to Government Code Section 65962.5 and, as a result, would it create a significant hazard to the public or environment? e) For a project within an airport Jund use plan, or where such a plan has not been adopted, within two miles of a public airport or public use airport, would the project result in a safety hazard for people residing or working in the project area'? f) For a project within the vicinity of a private airstrip, would the project result in a safety hozard for people residing or working in the project area'? g) Impair implementation of or physically interfere with an adopted emergency response plan or emergency evacuation plan? h) Expose people or structures to a significant risk of loss, injury or death involving wildland fires, including where wildlands are adjacent to urbanized areas or where residences are intermixed with wildlands? VIII. HYDROLOGY AND WATER QUALITY -Would the project: a) Violate any water quality standards or waste discharge requirements? 8 Potentially Significant Impact □ □ □ □ □ □ □ □ □ □ Potentially Significant Unless Mitigation Incorporated □ □· □ □ □ □ □ □ □ □ Less Thon Significant Impact □ □ □ □ □ □ □ □ □ No- Impact [] □ [] □ Rev. 07/26/02 • Issues (and Supporting Information Sources). (Supplemental documents may be referred to and attached.) n) Changes to receiving water quality (marine, fresh or wetland waters) during or following construction? o) Increase in any pollutant to an already impaired water body as listed on the Clean Water Act Section 303( d) list? p) The exceedance of applicable surface or groundwater receiving water quality objectives or degradation of beneficial uses? IX. LANDUSE AND PLANNING -Would the project: a) Physically divide an established community'? b) Conflict with any applicable land use plan, policy, or regulation of an agency with jurisdiction over the project (including but not limited to the general plan, specific plan, local coastal program, or zoning ordinance) adopted for the purpose of avoiding or mitigating an environmental effect'? c) Conflict with any applicable habitat conservation plan or natural community conservation plan? • X. MINERAL RESOURCES -Would the project: a) Result in the loss of availability of a known mineral resource that would be of future value to the region and the residents of the State? b) Result in the loss of availability of a locally important mineral resource recovery site delineated 0.n a local general plan, specific plan, or other land use plan? XI. NOISE -Would the project result in: a) Exposure of persons to or generation of noise levels in excess of standards established in the local general plan or noise ordinance or applicable standards of other agencies? b) Exposure of persons to or generation of excessive groundbourne vibration or groundbourne noise levels? c) A substantial permanent increase in ambient noise levels in the project vicinity above levels existing without the project? d) A substantial temporary or periodic increase m ambient noise levels in the project vicinity above levels existing without the project'? Potentially Significant Impact □ □ □ □ □ □ □ □ □ □ Potentially Significant Unless Mitigation Incorporuted □ □ □ □ □ □ □ □ □ □ □ □ Less Than Significant Impact □ □ □ □ □ □ □ □ □ □ □ □ Rev. 07/26/02 No Impact l8J ~ El Issues (and Supporting Infomiation Sources). (Supplemental documents may be referred to and attached.) b) Does the project include recreational facilities or require the construction or expansion of recreational facilities, which might have an adverse physical effect on the environment? XV. TRANSPORTATION/TRAFFIC -Would the project: a) Cause an increase in traffic, which is substantial in relation to the existing traffic load and capacity of the street system (i.e., result in a substantial increase in either the number of vehicle trips, the volume to capacity ratio on roads, or congestion at intersections)? b) Exceed, either individually or cumulatively, a level of service standard established by the county congestion management agency for designated roads or highways? c) Result in a change in air traffic patterns, including either an increase in traffic levels or a change in location that results in substantial safety risks? d) Substantially increase hazards due to a design feature (e.g., sharp curves or dangerous intersections) or incompatible uses (e.g., farm equipment)? e) Result in inadequate emergency access? f) Result in insufficient parking capacity? g) Conflict with adopted policies, plans, or programs supporting alternative transportanon (e.g., bus turn- outs, bicycle racks)? XVI. UTILITIES AND SERVICES SYSTEMS -Would the project: a) Exceed wastewater treatment requirements of the applicable Regional Water Quality Control Board'? b) Require or result in the construction of new water or wastewater treatment facilities or expansion of existing facilities, the construction of which would cause significant environmental effects? c) Require or result in the construction of new storm water drainage facilities or expansion of existing facilities, the construction of which could cause significant environmental effects? d) Have sufficient water supplies available to serve the project from existing entitlements and resources, or are new or expanded entitlements needed? 12 Potentially Significant Impact □ □ □ □ □ □ □ □ □ □ □ □ • Potentially Significant Unless Mitigation Incorporated □ □ □ □ □ □ □ □ □ □ □ □ Less Than Significant No lmpac1 Impact □ □ □ □ □ □ □ □ □ □ Rev. 07/26/02 IBJ [x] Issues (and Supporting Information Sources). (Supplemental documents may be referred to and attached.) e) Result in a determination by the wastewater treatment provider, which serves or may ser\'e the project that it has adequate capacity to serve the project's projected demand in addition to the provider's existing commitments'? f) Be served by a landfill with sufficient permitted capacity to accommodate the project's solid waste disposal needs? g) Comply with federal, state, and local statutes and regulations related to solid waste? XVII. MANDATORY FINDINGS OF SIGNIFICANCE a) Does the project have the potential to degrade the quality of the environment, substantially reduce the habitat of a fish or wildlife species, cause a fish or wildlife population to drop below self-sustaining levels, threaten to eliminate a plant or animal community, reduce the number or restrict the range of a rare or endangered plant or animal or eliminate important examples of the major periods of California history or prehistory? b) DoC's the project have impacts that are individually limned, but cumulatively considerable'! ("Cumula- tively considerable" means that the incremental effects of a project are considerable when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects?) c) Does the project have environmental effects, which will cause the substantial adverse effects on human beings, either directly or indirectly? XVIII. EARLIER ANALYSES Potentially Significant Impact □ □ □ □ □ □ • Potentially Significant Unless Mitigation Incorporate\: □ □ □ □ □ □ Less Than Significant Impact □ CJ □ □ No Impact □ □ Earlier analyses may be used where, pursuant to the tiering, program EIR, or other CEQA process, one or more effects have been adequately analyzed in an earlier EIR or negative declaration. Section 15063(c)(3)(D). In this case a discussion should identify the following on attached sheers: a) Earlier analyses used. Identify curlier analyses and state where they are available for review. b) Impacts adequately addressed. Identify which effects from the above checklist were within the scope of and adequately analyzed in an earlier document pursuant to applicable legal standards, and state whether such effects were addressed by mitigation measures based on the earlier analysis. c) Mitigation measures. For effects that are "Less Than Significant with Mitigation Incorporated," describe the mitigation measures, which were incorporated or refined from the earlier document and the extent to which they address site-specific conditions for the project. 13 Rev. 07/26/02 ---· ----• DISCUSSION OF ENVIRONMENTAL EVALUATION AIR QUALITY-Would the project: a) Conflict with or obstruct implementation of the applicable air quality plan? No Impact. The project site is located in the San Diego Air Basin which is a federal and state non-attainment area for ozone ( 03), and a state non-attainment area for particulate matter less than or equal to 1 O microns in diameter (PM10). The periodic violations of national Ambient Air Quality Standards (AAQS) in the San Diego Air Basin (SDAB), particularly for ozone in inland foothill areas, requires that a plan be developed outlining the pollution controls that will be undertaken to improve air quality. In San Diego County, this attainment planning process is embodied in the Regional Air Quality Strategies (RAQS) developed jointly by the Air Pollution Control District (APCD) and the San Diego Association ofGovemments (SANDAG). A plan to meet the federal standard for ozone was developed in 1994 during the process of updating the 1991 state- mandated plan. This local plan was combined with plans from all other California non-attainment areas having serious ozone problems and used to create the California State Implementation Plan (SIP). The SIP was adopted by the Air Resources Board (ARB) after public hearings on November 9th through 10th in 1994, and was forwarded to the Environmental Protection Agency (EPA) for approval. After considerable analysis and debate, particularly regarding airsheds with the worst smog problems. EPA approved the SIP in mid-1996. The proposed project relates to the SIP and/or R..\.QS through the land use and gro-wth assumptions that are incorporated into the air quality planning document. These growth assumptions are based on each city's and the County's general plan. If a proposed project is consistent with its applicable General Plan, then the project presumably has been anticipated with the regional air quality planning process. Such consistency would ensure that the project would not have an adverse regional air quality impact. Section 15125(B} of the State of California Environment Quality Act (CEQA) Guidelines contains specific reference to the need to evaluate any inconsistencies between the proposed project and the applicable air quality management plan. Transportation Conu·ol Measures (TCMs) are part of the RAQS. The RAQS and TCM plan set forth the steps needed to accomplish attainment of stat<: and federal ambient air quality standards. The California Air Resources Board provides criteria for determining whether a project conforms with the RAQS which include the following: • Is a regional air quality plan being implemented in the project area? • Is the project consistent with the growth assumptions in the regional air quality plan? The project area is located in the San Diego Air Basin, and as such, is located in an area where a RAQS is being implemented. The project is consistent with the growth assumptions of the City's General Plan and the RAQS. Therefore, the project is consistent with the regional air quality plan and will in no way conflict or obstruct implementation of the regional plan. b) Violate any air quality standard or cont~ibute substantially to an existing or projected air quality violation? Less Than Significant Impact. The closest air quality monitoring station to the project site is in the City of Oceanside. Data available for this monitoring site through April, 2002 indicate that the most recent air quality violations recorded were for the state one hour standard for ozone (one day in both 2000 and 2001) and one day in 2001 for the federal 8-hour average for ozone and one day for the 24-hour state standard for suspended particulates in 1996. No violations of any other air quality standards have been recorded recently. If there is grading associated with the project, the project would involve minimal short-term emissions associated with grading and construction. Such emissions woultl be minimized through standard construction measures such as the use of properly tuned equipment and watering the site for dust control. Long-term emissions associated with travel to and from the project will be minimal. Although air pollutant emissions would be associated with the project, they would neither result in the violation of any air quality standard (comprising only an incremental contribution to overall air basin quality readings), nor contribute substantially to an existing or projected air quality violation. Any impact is assessed as less than significant. c) Result in~ cumulatively considerable net increase of any criteria pollutant for which the project region is non-attainment under an applicable federal or state ambient air quality standard? 14 Rev. 07/26/02 • Less Than Significant Impact. The Air Basin is currently in a non-attainment zone for ozone and suspended fine particulates. The proposed project would represent a contribution to a cumulatively considerable potential net increase in emissions throughout the air basin. As described above, however, emissions associated Wita the proposed project would be nrinirnal. Given the limited emissions potentially associated with the proposed project. air quality would be essentially the same whether or not the proposed project is implemented. According to the CEQA Guidelines Section 15130 (a)(4), the proposed project"s contribution to the cumulame impact is considered de minimus. Any impact is assessed as less than significant. EARLIER ANALYSIS USED AND SUPPORTING INFORMATIOl'i-SOURCES The following documents were used in the analysis of this project and are on file in the City of Carlsbad Planning Department located at 1635 Faraday Avenue, Carlsbad, California, 92008. 1. Final Master Environmental Impact Report for the City of Carlsbad General Plan Update (MEIR 93-01). City of Carlsbad Planning Department. March 1994. 2. "Carlsbad Raceway/Palomar Forum Storm Water Pollution Prevention", prepared by O'Day Consultants, dated June 6, 2001. 3. "Palomar Forum Transportation Analysis", prepared by Urban Systems Associates, Inc. dated May 22, 2001. 4. "Preliminary Geotechnical Investigation Proposed Industrial Development-Byron White Property" dated June 24, 1998, prepared by Vinje & Middleton Engineering Inc. 5. "PAR 62 Property Biological Technical Report" prepared by Helix Environmental Planning, Inc., dated January 15, 1999; "Palomar Forum Biological Mitigation", prepared by Helix Environmental Planning, Inc., dated April 16, 1999; Letters from Barry Jones, Helix Environmental Planning, Inc., to: Julie Vanderwier, USFWS dated July 1, 1998; Letter ("Year 2001 Protocol gnatcatcher survey report for the Carlsbad Raceway"), dated April 19, 2001: Letter to Ms Hysong dated August 28, 2001. 6. "Pesticide Soil Assessment at Byron White Property, Palomar Airport Road, Carlsbad, CA", prepared by MV Environmental, Inc. dated July 28, 2001. 7. "Results of Archeological Significcance Assessment of CA-SDl-10,552, CA-SDl-10,550, and a portion of CA-SDl-9045 for the Melrose Drive Extension Project", prepared by RECON dated October 11, 1999 and "Draft Archeological Testing of Four Sites at the Wimpey/Gentry Property: SDi-9041, SDi-9042, SDi-9043 and SDi-9045, Carlsbad, CA" prepared by RECON dated March 22, 1989. 8. "EIA Form Part I dated February 9, 1999. 9. "EIA Form Part II, dated May 3, 2001; Recirculation Date August 31,_2001. 10. "Recirculated Mitigared Negative Declaration" dated September 6, 2001. 11. "Planning Commission Resolution No. 5031, 5032, 5033" adopted October 17, 2001. 11. "City Council Resolution No. 2001-352" adopted December 4, 2001. 12. "Environmental Mitigation Monitoring Checklist" dated July 15, 2001. 13. "City Council Resolution2004-177" adopting Final Map CT 99-06 dated June 1, 2005. 15 Rev. 07/26/02 ,-----• LIST OF MITIGATING MEASURES (IF APPLICABLE) A Copy of the Mitigating Measures for GPA 01-07/ZC 01-06/CT 99-06/HDP 99-03/PIP 01-03 is on file at the City of Carlsbad Planning Department. ATTACH MITIGATION MONITORING PROGRAM (fF APPLICABLE) A Copy of the Mitigating Monitoring Program for GPA 01-07/ZC 01-06/CT 99-06/HDP 99-03/PIP 01-03 is on file at the City of Carlsbad Planning Department. • 16 Rev. 07 /26/02 EIAPARTI PALO MAR FORUM LOT 6 AND 7 I. AESTHETICS a) Less than Significant Impact: This item has been analyzed, and compliance is established by way of a Mitigated Negative Declaration and Addendum, and Monitoring Program adopted by City Council on December 4, 2001. The mitigation measures adopted as a part of the Mitigated Negative Declaration prohibit placement of mechanical equipment on roofs and the installation of roof screens unless the project incorporates architectural elements or parapets that are integrated into the architectural design of buildings. The mitigation measures also require enhanced architectural treatment of all building elevations and prohibit loading bays that are visible from Palomar Airport Road or Melrose Drive. Compliance with these requirements will ensure that the proposed development does not create any adverse aesthetic impacts. b) No Impact: The proposed project will not substantially damage scenic resources within a State scenic highway because there are no State scenic highways near the proposed project. c) Less than Significant Impact: This item has been analyzed, and compliance is established by way of a Mitigated Negative Declaration and Addendum, and Monitoring Program adopted by City Council on December 4, 2001. The mitigation measures adopted as a part of the Mitigated Negative Declaration prohibit placement of mechanical equipment on roofs and the installation of roof screens unless the project incorporates architectural elements or parapets that are integrated into the architectural design of buildings. The mitigation measures also require enhanced architectural treatment of all building elevations and prohibit loading bays that are visible from Palomar Airport Road or Melrose Drive. Compliance with these requirements will ensure that the proposed development does not create any adverse aesthetic impacts. d) No Impact: The proposed project would not create a new source of substantial light and glare, which would adversely affect views in the area. The proposed project is not intended to contain any materials that would cause such adverse affects. II. AGRICULTRAL RESOURCES a) No Impact: The proposed project will not convert farmland to non-agricultural use. b) No Impact: The proposed project will not conflict with existing zoning for agricultural use, or a Williamson Act contract, because the land is not zoned for agricultural use. • c) No Impact: The proposed project will not change the existing environment, which due to their location or nature, could result in conversion of Farmland to non-agricultural use because there is no surrounding Farmland uses. III. AIR QUALITY a) No Impact: The project site is located in the San Diego Air Basin which is a federal and state non-attainment area for ozone (03), and a state non-attainment area for particulate matter less than or equal to 10 microns in diameter (PM10). The periodic violations of national Ambient Air Quality Standards (AAQS) in the San Diego Air Basin (SDAB), particularly for ozone in inland foothill areas, requires that a plan be developed outlining the pollution controls that will be undertaken to improve air quality. In San Diego County, this attainment planning process is embodied in the Regional Air Quality Strategies (RAQS) developed jointly by the Air Pollution Control District (APCD) and the San Diego Association of Governments (SANDAG). A plan to meet the federal standard for ozone was developed in 1994 during the process of updating the 1991 state-mandated plan. This local plan was combined with plans from all other California non-attainment areas having serious ozone problems and used to create the California State Implementation Plan (SIP). The SIP was adopted by the Air Resources Board (ARB) after public hearings on November 9th through 10th in 1994, and was forwarded to the.Environmental Protection Agency (EPA) for approval. After considerable analysis and debate, particularly regarding airsheds with the worst smog problems, EPA approved the SIP in mid-1996. The proposed project relates to the SIP and/or RAQS through the land use and growth assumptions that are incorporated into the air quality planning document. These growth assumptions are based on each city's and the County's general plan. If a proposed project is consistent with its applicable General Plan, then the project presumably has been anticipated with the regional air quality planning process. Such consistency would ensure that the project would not have an adverse regional air quality impact. Section 15125(B) of the State of California Environment Quality Act (CEQA) Guidelines contains specific reference to the need to evaluate any inconsistencies between the proposed project and the applicable air quality management plan. Transportation Control Measures (TCMs) are part of the RAQS. The RAQS and TCM plan set forth the steps needed to accomplish attainment of state and federal ambient air quality standards. The California Air Resources Board provides criteria for determining whether a project conforms with the RAQS which include the following: • Is a regional air quality plan being implemented in the project area? . • Is the project consistent with the growth assumptions in the regional air quality plan? 2 The project area is located in the San Diego Air Basin, and as such, is located in an area where a RAQS is being implemented. The project is consistent with the growth assumptions of the City's General Plan and the RAQS. Therefore, the project is consistent with the regional air quality plan and will in no way conflict or obstruct implementation of the regional plan. b) Less Than Significant Impact: In the long term, development anticipated to occur on the project site will generate additional vehicular traffic. The proposed project is consistent with, and implements several mitigation measures identified in the City's General Plan Master EIR 93-01 to reduce air quality impacts. c) No Impact: Impacts resulting in cumulatively considerable net increase of any criteria pollutant for which the project region is in non-attainment under an applicable federal or state ambient air quality standard will be no greater than those already anticipated in the City's MEIR. The project is within the scope of that MEIR. d) No Impact: Since there are no sensitive receptors in the vicinity, the proposed project will not expose sensitive receptors to substantial pollutant concentrations. e) No Impact: The proposed project is consistent with the City's General Plan Master EIR 93-01. Therefore, impacts involving the creation of objectionable odors will not be greater than those already anticipated in the MEIR. IV. BIOLOGICAL RESOURCES a) Less Than Significant Impact: This item has been analyzed, and compliance is established by way of a Mitigated Negative Declaration and Addendum, and Monitoring Program adopted by City Council on December 4, 2001. The mitigation measures adopted as a part of the Mitigated Negative Declaration require the restoration of 1. 7 acres of Diegan Coastal Sage Scrub (DCSS) onsite within the wildlife corridor and to develop a conceptual restoration plan prior to final map. The mitigation measures also require the attainment of 1.5 acres of DCSS or other habitat acceptable to the City and wildlife agencies. All necessary permits from wildlife agencies have been obtained, an engineering and feasibility study for a potential wildlife crossing under Palomar Airport Road has been prepared and a payment of $133,867.80 has been collected to mitigate impacts to non-native grassland and southern mixed chaparral. The HMP has not been approved prior to final map approval, the City in consultation with the wildlife agencies have determined the most beneficial use of mitigation funds. The mitigation measures also include conducting burrowing owl surveys with possible relocation if necessary and the submittal of a wetland and coastal sage scrub restoration program for approval by City and wildlife agencies prior to construction activities. Compliance with these requirements will ensure that the proposed development does not create any adverse biological impacts. 3 b) Less Than Significant Impact: This item has been analyzed, and compliance is established by way of a Mitigated Negative Declaration and Addendum, and Monitoring Program adopted by City Council on December 4, 2001. The mitigation measures adopted as a part of the Mitigated Negp.tive Declaration require the creation of .08 acres ofriparian habitat or freshwater marsh vegetation within the Carlsbad Raceway HMP wildlife corridor. c) Less Than Significant Impact: This item has been analyzed, and compliance is established by way of a Mitigated Negative Declaration and Addendum, and Monitoring Program adopted by City Council on December 4, 2001. The mitigation measures adopted as a part of the Mitigated Negative Declaration require the creation of .08 acres ofriparian habitat or freshwater marsh vegetation within the Carlsbad Raceway HMP wildlife corridor. d) Less Than Significant Impact: The proposed project would potentially constrict wildlife movement across the site. To ensure continued wildlife movement in accordance with the City's HMP, the project proposes a north-south wildlife corridor consisting of the easterly 1.5 acres of the property that will help link open space within the Rancho Carrillo project to the south with additional open space provided within the Carlsbad Raceway project to the north. This open space corridor will connect to open space to the north, however, it is bisected by the alignment of Melrose Drive, a circulation arterial roadway required for the project. A 12' high arched wildlife culvert is proposed below Melrose Drive to provide a connection to open space to the northwest. e) No Impact: The proposed project does not conflict with any local policies or ordinances protecting biological resources because the mitigation requirements for the project are consistent with the City's HMP. f) No Impact: The proposed project does not conflict with the provisions of an adopted Habitat Conversation Plan, Natural Community Conservation Plan, or other approved local, regional, or state habitat conservation plans because the mitigation requirements for the project are consistent with the City's HMP. g) • No Impact: The proposed project will not have an adverse effect on sensitive tributary areas as none are present because the site has been subject to continued agricultural use in the past. V. CULTURAL RESOURCES a) No Impact: No historical resources are known to exist on the proposed site. b) Less Than Significant Impact: There is a known archeological site located in the northwest comer of the site. However, the grading of the site will be monitored to ensure that any archeological impacts to the site will be mitigated to a level of insignificance. 4 c) No Impact: No significant pale ontological resources are known to exist on the proposed site. d) No Impact: No human remains are known to exist on the proposed site. VI. GEOLOGY AND SOILS ai) No Impact: Significant faults are not indicated crossing the site and therefore the site is not subject to fault rupture. See the Preliminary Geotechnical Investigation, Byron White Property, for more information. aii) No Impact: Seismic ground shaking is unlikely, as there are no known active faults in the vicinity of the proposed site. aiii) No Impact: The proposed project will not expose people or structures to potential substantial adverse effects, including risk of loss, injury or death involving seismic-related ground failure, including liquefaction, because the proposed project is not on a known earthquake fault. aiv) No Impact: The proposed project will not expose people or structures to potential substantial adverse effects, including the risk ofloss, injury or death involving landslides because the site is not at risk for landslides. b) No Impact: The proposed project will not result in substantial soil erosion or the loss of topsoil because the development of the proposed property is feasible from a geotechnical viewpoint provided the recommendations for remedial grading and site development are followed. c) Less Than Significant Impact: Unstable existing landslide conditions are not in evidence at the property, however, marginally stable earth materials are present which will impact the stability of the planned cut slopes along the south perimeter below Palomar Airport Road. Conventional cut-fill grading methods may be utilized to achieve design grades; however, selective grading consistent with the engineering properties of site earth materials is recommended in order to achieve safe and stable slopes and building pads. d) No Impact: The proposed project is not located on expansive soils as defined in Table 18-1-B of the Uniform Building Code (1997), and therefore would not create substantial risks to life or property. e) No Impact: The project does not propose septic tanks and will use sewers. Therefore, there will be no impacts involving soils that support the use of septic tanks. VII. HAZARDS AND HAZARDOUS MATERIALS 5 a) Less Than Significant Impact: This item has been analyzed, and compliance is established by way of a Mitigated Negative Declaration and Addendum, and Monitoring Program adopted by City Council on December 4, 2001. The mitigation measures adopted as a part of the Mitigated Negative Declaration require that no project facilities located within 1,000 feet of any residential unit shall store, handle or use toxic, or highly toxic gases as defined in the most currently adopted fire code at quantities which exceed exempt amount as defined in the most currently adopted fire code. Facilities which store, handle or use regulated substances as defined in the California Health and Safety Code _25532(g) in excess of threshold quantities shall prepared risk management plans for determination of risks to the community. Compliance with these requirements will ensure that the proposed development does not create a significant hazard to the public or the environment through the routine transport, use or disposal of hazardous materials. b) Less Than Significant Impact: This item has been analyzed, and compliance is established by way of a Mitigated Negative Declaration and Addendum, and Monitoring Program adopted by City Council on December 4, 200 I. The mitigation measures adopted as a part of the Mitigated Negative Declaration require that no project facilities located within 1,000 feet of any residential unit shall store, handle or use toxic, or highly toxic gases as defined in the most currently adopted fire code at quantities which exceed exempt amount as defined in the most currently adopted fire code. Facilities which store, handle or use regulated substances as defined in the California Health and Safety Code _25532(g) in excess of threshold quantities shall prepared risk management plans for determination of risks to the community. Compliance with these requirements will ensure that the proposed development does not create a significant hazard to the public or the environment through the reasonably foreseeable upset and accident conditions involving the release of hazardous materials into the environment. c) No Impact: The proposed project will not emit hazardous emissions or handle any hazardous materials within one-quarter mile of an existing or proposed school. d) No Impact: The proposed project is not located on a site which is included on a list of hazardous materials sites compiled pursuant to Government Code Section 65962.5. e) No Impact: The project is consistent with the McClellan Palomar Airport Comprehensive Land Use Plan and would not result in a safety hazard for people working in the project area. f) No Impact: The project is not within the vicinity of a private airstrip. g) No Impact: The project will not impair implementation of or physically interfere with an adopted emergency response plan or emergency evacuation plan, no such plan exists in the project site. 6 h) Less Than Significant Impact: To avoid an increase in the fire hazard due to placement of buildings in proximity to slopes containing high fuel native vegetation, the project Landscape Plans identify a 30' wide fire suppression zone in which the 10' closest to the top slope must be landscaped in accordance with the City's Landscape Manual provisions for manufactured slopes (Zone A-2). IX. HYDROLOGY ANQWATERQUALITY a) No Impact: The proposed project will not violate any water quality standards or waste discharge requirements. The proposed project is consistent with the City's General Plan Master EIR 93-01 and will be designed to City standards. No impacts involving water quality standards or waste discharge are anticipated by the MEIR. b) No Impact: The proposed project would have no impact on groundwater supplies. It is not located in an area in which a significant aquifer has been identified, nor is it expected to impact groundwater. c) No Impact: The proposed project will not impact groundwater quality because no high groundwater in the area is to be graded. d) No Impact: The proposed project would not alter the existing drainage pattern of the site or area because it is consistent with the City's General Plan Master EIR 93-0land site drainage will be designed to city standards. Therefore, impacts involving the drainage pattern will not be greater than those already anticipated by the MEIR. e) No Impact: The proposed project will not substantially alter the existing drainage pattern of the site or area, which would result in substantial erosion or siltation on-or off-site. The proposed project is consistent with the City's General Plan Master EIR and site drainage will be designed to city standards. Therefore, impacts involving the drainage pattern and surface runoff will not be greater than those already anticipated by the MEIR. f) No Impact: The proposed project will not create or contribute runoff water, which would exceed the capacity of existing or planned storm water drainage systems or provide substantial additional sources of polluted runoff. The proposed project is consistent with the City's General Plan Master EIR and site drainage will be designed to city standards. Therefore, impacts involving the drainage pattern and surface runoff will not be greater than those already anticipated by the MEIR. g) Less Than Significant Impact: Potential impacts to water quality shall be mitigated through compliance with the provisions of the "Carlsbad Raceway/Palomar Forum Storm Water Pollution Prevention" summary NPDES study prepared for the project by O'Day Consultants ·dated June 6, 2001. 7 h) No Impact: The proposed project does not place housing within a 100-year flood hazard area as mapped on a Federal Flood Hazard Boundary or Flood Insurance Rate Map or flood delineation map. i) No Impact: The proposed project does not place within 100-year flood hazard area structures, which would impede or redirect flood flows. j) No Impact: The proposed project does not expose people or structures to a significant risk of loss injury or death involving flooding, including flooding as a result of the failure of a levee or dam. The proposed site is not within a flood plain. k) No Impact: This site is not located in an area with a known history of seiche, tsunami, or mudflow. Therefore, there will be no impact. 1) No Impact: The proposed project is consistent with the City's General Plan Master EIR and is designed to city standards. Therefore, impacts involving increased erosion into receiving waters will not be greater than those already anticipated by the MEIR. m) Less Than Significant Impact: The development of this project into industrial lots will create an increase in pollutants discharged in storm water. Potential impacts to water quality shall be mitigated through compliance with the provisions of the "Carlsbad Raceway/Palomar Forum Storm Water Pollution Prevention" summary NPDES study prepared for the project by O'Day Consultants dated June 6, 2001. The Study lists potential structural Best Management Practices (BMPs) that will be used, their effectiveness at removing the anticipated pollutants, and some preliminary sizing calculations to reduce the impact of pollutants to less than significant. n) No Impact: The proposed project is consistent with the City's General Plan Master EIR and will be designed to city standards. No impacts are expected involving changes to receiving water quality that will be greater than those already anticipated by the MEIR. o) No Impact: No impaired waterbodies exist onsite. p) No Impact: The proposed project will not exceed applicable surface or groundwater receiving water quality objectives or degrade beneficial uses. Due to the detention of runoff at Melrose Drive, no significant change in the amount of surface water body is anticipated. No high groundwater in the area is to be graded. IX. LAND USE PLANNING 8 a) No Impact: The proposed project does not disrupt the physical arrangement of an established community because an established community does not currently exist on site. b) No Impact: The proposed project does not conflict with any applicable policies adopted by agencies with jurisdiction over the site. The proposed project is consistent with the'Planned Industrial (PI) Land Use designation for the property and the industrial subdivision is consistent with the PM zoning ordinance regulating industrial subdivisions. c) No Impact: The proposed project does not conflict with any applicable habitat conservation plan or natural community conservation plan. The proposed project is included in Carlsbad's Habitat Management Plan (HMP) and identified as a part of Linkage Area D. The project is consistent with the HMP in that a 400' wide north-south corridor is proposed to be preserved along the eastern boundary. X. MINERAL RESOURCES a) No Impact: The proposed project will not result in the loss of availability of a known mineral resource that would be of future value to the region and the residents of the State since there are no known mineral resources on site. b) No Impact: The proposed project will not result in the loss of availability of a locally important mineral resburce recovery site delineated on a local general plan specific plan, or other land use plan since the site has no such distinction. XI. NOISE a) No Impact: The proposed.project would not result in exposure of persons to or generation of noise levels in excess of standards established in the local general plan or noise ordinance or applicable standards of o_ther agencies. The proposed project is consistent with the City's General Plan Master EIR and no impacts will exceed those expected by the MEIR. b) No Impact: The proposed project will not result in exposure of persons to or generation of excessive groundboume vibration or groundboume noise levels. It is consistent with the City's General Plan Master EIR and therefore, exposure to such noise and vibration will not exceed levels anticipated by the MEIR. c) No Impact: The proposed project would not result in a substantial permanent increase in ambient noise levels. It is consistent with the City's General Plan Master EIR and therefore will not produce noise levels greater than what was anticipated by the MEIR. d) No Impact: The proposed project would not result in a substantial temporary increase in ambient noise levels. It is consistent with the City's General Plan Master EIR and therefore will not produce noise levels greater than what was anticipated by the MEIR. 9 e) No Impact: The proposed project is consistent with the McClellan Palomar Airport Comprehensive Land Use Plan and therefore would not expose people residing or working in the project area to excessive noise levels greater than anticipated by the Plan. f) No Impact: The proposed project is not within the vicinity of a private airstrip. XII. POPULATION AND HOUSING a) Less Than Significant Impact: The project will require the last segment of Melrose Drive between its existing northerly terminus in the City of Vista and Palomar Airport Road and Faraday Avenue between its existing westerly terminus in the City of Carlsbad and the City's easterly boundary. This extension of a prime arterial roadway is part of the City's circulation arterial roadway system necessary to support existing and proposed development in the surrounding area and to alleviate regional traffic congestion. Given that existing development surrounds the Carlsbad Raceway property, construction of these roadways cannot be considered to be directly or indirectly growth reducing. b) No Impact: The proposed project will not displace existing housing or affordable housing because there is no existing or affordable housing on site. c) No Impact: The proposed project will not displace people, necessitating the construction of replacement housing elsewhere because there are no people currently on site. XIII. PUBLIC SERVICES ai -av No Impact: The proposed project will not result in the need for new or altered government services. The development of the site will be required to adhere to the applicable standards and requirements of Zone 18 Local Facilities Management Plan. XIV: RECREATION a) No Impact: The proposed project would not increase the demand for neighborhood or regional parks or other recreational facilities beoause there is no residential dwellings onsite. b) No Impact: The proposed project does not include recreational facilities and would therefore cause no impact due to such development, nor would it require the construction or expansion of recreational facilities which might have and adverse physical effect on the environment. XV. TRANSPORTATION/TRAFFIC a) Less Than Significant Impact: This item has been analyzed, and compliance is established by way of a Mitigated Negative Declaration and Addendum, and Monitoring Program adopted by City Council on December 4, 200 I. The mitigation measures adopted as a part of the Mitigated Negative Declaration include prior to the recordation of a final map, the developer shall design, dedicate, and bond for the following roadways: the widening of Palomar Airport Road from the City of Vista boundary west to existing improvements west of Melrose Drive; Melrose will be constructed from Palomar Airport Road to the existing terminus in the City of Vista; Onsite, Street "A" will connect to the adjacent project to the north Carlsbad Raceway Industrial Park, providing another link and secondary access to Melrose Drive and to Business Park Drive; and Faraday A venue shall be financially guaranteed as a Secondary arterial to be constructed from the existing terminus in the City of Vista west of Melrose Drive to the existing terminus in the City of Carlsbad at Orion Way. Compliance with these requirements will ensure that the proposed development does not cause an increase in traffic to the existing traffic load and capacity of the street system. b) No Impact: This project does not exceed a level of service standard established by the City's Growth Management Plan for any adjacent intersections or road segments because it is in conformance with the City's General Plan Master EIR. Therefore, impacts involving level of service will not be greater than those already anticipated by the previously certified MEIR. c) No Impact: Air traffic patterns will not be impacted by the proposed project. The proposed project is consistent with the City's General Plan Master EIR. d) No Impact: The proposed project is consistent with the City's General Plan Master EIR. Therefore, impacts involving hazards to safety from design features will not be greater than those already anticipated by the MEIR. e) No Impact: The proposed project will have no impact that would result in inadequate emergency access. The plan is consistent with the City's General Plan Master EIR and is in compliance with Carlsbad's emergency access standards. f) No Impact: The proposed project would provide the parking capacity as required by the City of Carlsbad. Therefore, the project would not result in insufficient parking capacity. g) No Impact: The proposed project will not conflict with any policies supporting alternative transportation. It is in conformance with the City's General Plan Master EIR. XVI. UTILITIES AND SERVICES SYSTEMS a-g) No impact: The proposed project will significantly impact any of these utilities or service systems. The project is conditioned to comply with Zone 18 LFMP to ensure the timely provision of public facilities required to meet the additional demand generated by the project. 11 XVII. MANDATORY FINDINGS OF SIGNIFICANCE a) Less Than Significant Impact: The proposed project is in conformance with the City's General Plan Master EIR 93-01. Mitigation measures from the approved Mitigated Negative Declaration and Addendum, and Monitoring Program will be implemented to ensure the project does not degrade the quality of the environment, substantially reduce the habitat of a fish or wildlife species, cause a fish or wildlife population to drop below self-sustaining levels, threaten to eliminate a plant or animal community, reduce the number or restrict the range of a rare or endangered plant or animal or eliminate important examples of the major periods of California history or prehistory. b) Less Than Significant Impact: The proposed project is in conformance with the City's General Plan Master EIR 93-01. It has impacts that are individually limited, but cumulatively considerable. Impacts that are cumulatively considerable will not be greater than those already anticipated, and mitigation measures from the approved Mitigated Negative Declaration and Addendum, and Monitoring Program will be implemented. c) No Impact: The proposed project is in conformance with the City's General Plan Master EIR 93-01. The impacts involving environmental effects that will cause substantial adverse effects on human beings will not be greater than those already anticipated by the MEIR. XVIII. EARLIER ANALYSIS a) Source documents are on file in the Planning Department located at 1635 Faraday Drive, Carlsbad, Phone (760) 602-4600. 1. "EIA Form Part I dated February 9, 1999. 2. "EIA Form Part II, dated May 3, 2001; Recirculation Date August 31, 2001. 3. "Recirculated Mitigated Negative Declaration" dated September 6, 2001. 4. "Planning Commission Resolution No. 5031, 5032, 5033" adopted October 17, 2001. 5. "City Council Resolution No. 2001-352" adopting the Recirculated Mitigated Negative Declaration, December 4, 2001. 6. "Environmental Mitigation Monitoring Checklist" dated July 15, 2001. b) All of the impacts were adequately addressed. In particular, impacts to Aesthetics, Air Quality,, Biological Resources, Cultural Resources, Hazards, 12 • Hydrology, Land Use and Planning and Transportation/Circulation were within the scope of and adequately analyzed in the EIA II and Mitigated Negative Declaration approved by City Council on December 4, 2001. c) Please see the attached list of mitigation measures. 13