HomeMy WebLinkAbout1996-08-06; City Council; Resolution 96-269-c
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RESOLUTION NO. 9 6 - 2 6 9
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA, APPROVING A GRANT OF
EASEMENT, RV STORAGE AGREEMENT AND PROPERTY
MANAGEMENT AGREEMENT BETWEEN THE POINSETTIA
HILL SUBDIVISION AND THE VILLA LOMA
APARTMENTS, GENERALLY LOCATED NORTH OF
CASSIA ROAD, BETWEEN EL CAMINO REAL AND
AMBROSIA LANE, IN THE SOUTHWEST QUADRANT.
CASE NAME: POINSETTIA HILLNILLA LOMA RV
STORAGE AGREEMENT
WHEREAS, the City of Carlsbad is the property owner for the Villa
Apartments; and
WHEREAS, the owner of the Poinsettia Hill subdivision requires access
the Villa Loma property for their Recreational Vehicle Storage area.
NOW, THEREFORE, BE IT HEREBY RESOLED by the City Council
City of Carlsbad as follows:
1.
2.
That the above recitations are true and correct.
That the City Council APPROVES City Council Resolution No. 96-2
APPROVING the Grant of Easement, RV Storage Agreement and I
Management Agreement and authorizing the mayor to execute said agre
attached hereto.
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PASSED, APPROVED AND ADOPTED at a regular meeting of the City (
of the City of Carlsbad, California, on the 6th day of August , 1996,
following vote, to wit:
AYES: Council Members Lewis, Nygaard, Kulchin and Hall
NOES: None
ABSENT: Council Member Finnila &4d1
CLAUDE A. LEWIS, Mayor
ATTEST:
(SEAL)
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RECORDING REQUESTED BY AND WHEN RECORDED, MAIL TO:
Rutan & Tucker
611 Anton Blvd., Suite 1400
Costa Mesa, CA 92626
Attn: Adam N. Volkert, Esq.
Space above this line for Recorder's Use Only
APN 215-020-01
APN 215-020-15
GRANT OF EASEMENT (Access, Ingress and Egress)
THIS GRANT OF EASEMENT is made as of May 3, 1996 by and between CARLSBAD I, a California general partnership (or any successor owner of the Carlsbad I Property, as defined below, IICarlsbad Ill), and the CITY OF CARLSBAD, a municipal corporation
( IlCity") .
RE C I TAL S:
A. Carlsbad I is the owner of that certain real property in
the City of Carlsbad, County of San Diego, State of California (the *'Carlsbad I Property"), legally described in the attached Exhibit - IIA" and depicted in the attached Exhibit "A-1".
B, City is the owner of that certain real property in the
City of Carlsbad, County of San Diego, State of California (the "City Property"), legally described in the attached Exhibit aB1t and
depicted in the attached Exhibit "B-1".
C. La Terraza Associates, a California limited partnership
("La Terraza") , has ground leased the City Property pursuant to that certain Ground Lease dated October 28, 1994, by and between the City, as lessor, and La Terraza, as lessee (the "Ground Lease"). Pursuant to the Ground Lease, La Terraza is developing an
affordable housing project on the City Property (the "La Terraza Project").
D. A plat showing the geographical relationship of the aforementioned properties (the l1PlatIf) is attached hereto as Exhibit lIC1l.
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E. As a condition to the development of a residential
housing project on the Carlsbad I Property (the IICarlsbad
Project"), the City has required the construction of a recreational vehicle storage area (the "R.V. Site") and recreation facilities adjacent thereto (the "Recreation Areall), on a portion of the
Carlsbad I Property, as identified on the Plat. The parties hereto desire in this Grant of Easement to grant a non-exclusive easement for access, ingress and egress to the R.V. Site over the City
Property and grant a temporary construction easement for the
construction of the R.V. Site and Recreation Area (collectively,
the "Site Improvements1!) .
NOW, THEREFORE, incorporating the foregoing recitals of fact
and in consideration of the mutual covenants contained herein, the parties hereto agree as follows:
i
1. Grant of Easement. For valuable consideration, receipt of which is hereby acknowledged, the City hereby grants to Carlsbad I a non-exclusive easement for pedestrian and vehicular access, ingress and egress (llEasementll) in the location legally described
in the attached Exhibit IrD" and depicted in the attached Exhibit
'ID- 1" (the "Easement Area" ) .
2. Use of Easement. Carlsbad I shall be entitled to begin using the Easement after fifteen (15) days prior written notice from Carlsbad I to City and La Terraza of the completion of construction of the Site Improvements. The use of the Easement shall be subject to the terms and provisions of that certain Recreational Vehicle Storage Agreement of even date herewith (the
"R.V. Agreement") and the property management agreement attached as an exhibit to the R.V. Agreement, which provide among other things,
that the Easement may be terminated in the event of a default under the property management agreement or the R.V. Agreement.
3. TemDorarv Construction Easement. City hereby grants to
Carlsbad I, effective upon at least fifteen (15) days' written notice prior to commencement of construction of the Site
Improvements, an easement for temporary construction purposes over and across portions of the City Property as reasonably necessary for the construction of the Site Improvements. Carlsbad I shall use reasonable efforts to minimize interference with the La Terazza
Project caused by the construction of the Site Improvements, shall cause the construction area to be kept in a safe and clean manner and shall limit the hours of construction from 7:OO a.m. to 5:OO p.m. on Mondays through Fridays as more fully set forth in the R.V. Agreement. Upon completion of the Site Improvements, or the expiration of one hundred twenty (120) days from the commencement of construction, whichever first occurs, the foregoing temporary construction easement shall automatically terminate without further notice or the need for any instrument to be recorded by the parties hereto.
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L 4. Maintenance of Easement Area. The City agrees to maintain, or cause to maintain the Easement Area as an improved
paved road.
5. Character of Easement. The Easement granted herein is appurtenant to and for the benefit of the Carlsbad I Property and is a burden upon the City Property. The Easement shall in no way be construed as an easement in gross to Carlsbad I or to any other
person or entity. Nothing contained herein shall be construed to be a gift or a dedication of any portion of the City Property to the general public or for any public purpose whatsoever.
6. Insurance. On or before Carlsbad I begins to use the Easement, Carlsbad I shall, at its expense, maintain public
liability insurance in an amount not less than Two Million Dollars
($2,000,000.00) over the Easement Area, and shall name City,
La Terraza and the holder of the first deed of trust on the City
Property ( "First Mortgagee") , as additional insureds thereon. Such
policy shall provide that not less than thirty (30) days written notice shall be given to City, La Terraza and First Mortgagee prior to the cancellation of such policy. Upon request by any additional
insured, Carlsbad I shall provide a certificate of insurance evidencing the insurance coverage required herein.
7. Indemnity. Carlsbad I shall indemnify, defend and hold City, La Terraza, First Mortgagee and any successors-in-interest to the La Terraza Project harmless from and against all claims, damages and costs (including but not limited to those arising out of any injury or death to any person or persons or damage to any
property of any kind whatsoever and to whomsoever belonging, including City, La Terraza, First Mortgagee and any successors-in- interest, and including attorneys' fees) arising out of or in connection with the use by Carlsbad I and its permitted invitees of the Easement; except to the extent caused by the gross negligence,
willful misconduct, fraudulent or criminal acts of City, La
Terraza, First Mortgagee or their successors, or their respective
agents, contractors, employees or invitees.
8. Default. Any default by Carlsbad I in the performance of
the terms of this Grant of Easement shall constitute a default
hereunder, and City and La Terraza shall have the rights and
remedies afforded them pursuant to the terms of Article 5 of the
R.V. Agreement.
9. Bindins Covenants, Successors. The grants, covenants,
conditions and restrictions contained herein shall bind and inure to the benefit of Carlsbad I and its respective heirs, personal representatives, successors, assigns and any and all successive owners of the Carlsbad I Property, shall create mutual, equitable
servitudes upon the City Property, and shall, as to the owner of any portion of the City Property, its successors and assigns, operate as covenants running with the land for the benefit of the Carlsbad I Property.
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- 10. Modifications. This Grant of Easement may not be amended or otherwise modified, except by an agreement in writing signed by all parties hereto. No such amendments or modifications shall have
any force and effect whatsoever unless and until they are written
and executed in such a manner.
11. Recordation of Easement. This Grant of Easement shall be
recorded in the Office of the Recorder of the County of San Diego
and shall serve as notice to all successive owners of the City Property that such property shall be restricted in the manner
herein described.
IN WITNESS WHEREOF, the parties have executed this Grant of
Easement as of the day and year first above written.
CARLSBAD I, a
Califor-eneral partnership
BY aWA- -
Its: -~WC QpQTda
By :
Its:
llCarlsbad 1"
CITY OF CARLSBAD, a municipal corporation
By :
Its:
IrCity"
APPROVED AS TO FORM:
Carlsbad City Attorney
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- )
COUNTY OF 1
STATE OF CALIFORNIA Lo5 hyk ) ss.
/(?9L , befTeme, -F/oemE On OR^ W! Jmcn -
-- 3e-O -G I4H-imd.m personally appeared
personally known to me (or proved to me on the basis of satisfac-
tory evidence) to be the person(s) whose name (s) is/- subscribed to the within instrument and acknowledged to me that he/&e/&hq executed the same in his/hm-=ftheir authorized capacity(%), and that by his/ker/m signature(s) on the instrument the person+) or the entity upon behalf of which the person(& acted, executed
the instrument.
Witness my hand and official seal.
Notary Public A4XA3 I- P
STATE OF CALIFORNIA )
COUNTY OF )
) ss.
On , beforeme, personally appeared I
personally known to me (or proved to me on the basis of satisfac-
tory evidence) to be the person(s) whose name(s) is/are subscribed
to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity (ies) , and that by his/her/their signature (s) on the instrument the person (s)
or the entity upon behalf of which the person(s) acted, executed
the instrument.
Witness my hand and official seal.
Notary Public
[SEAL]
FS2\267\060324-0039\2 15841 8 9 a05/03/96
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% STATE OF CALIFORNIA 1 ) ss.
1 COUNTY OF
On , before me, -_ personally appeared
personally known to me (or proved to me on the basis of satisfac-
tory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature (s) on the instrument the person (s) or the entity upon behalf of which the person(s) acted, executed
the instrument.
Witness my hand and official seal.
Notary Public
[SEAL]
STATE OF CALIFORNIA )
COUNTY OF )
) ss.
On , before me, I
personally appeared
personally known to me (or proved to me on the basis of satisfac-
tory evidence) to be the person(s) whose name(s) is/are subscribed
to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature (s) on the instrument the person(s)
or the entity upon behalf of which the person(s) acted, executed the instrument.
Witness my hand and official seal.
Notary Public
[SEAL]
FS2\267\060324-0039\2158418 9 n05/03/96
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% STATE OF CALIFORNIA 1
COUNTY OF 1
1 ss.
I before me I On personally appeared I
personally known to me (or proved to me on the basis of satisfac-
tory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity (ies) , and
that by his/her/their signature (s) on the instrument the person (s) or the entity upon behalf of which the person(s) acted, executed the instrument.
Witness my hand and official seal.
Notary Public
[SEAL]
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- ' EXHIBIT aAn
JJEGAL DESCRIPTION OF CAR LSBAD I PROPERTY
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THE NORTHWEST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 23, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNARDINO MERIDIAN, IN
THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO
CRIBED BY METES AND BOUNDS AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF SAID SECTION 23, AS SHOWN
THE OFFICIAL PLAT THEREOF, AND BEING MORE PARTICULARLY DES-
ON RECORD OF SURVEY MAP NO. 6269, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, SEPTEMBER 25, 1963; THENCE ALONG THE WESTERLY LINE OF SAID SECTION 23, SOUTH 00-00'11" EAST, 1171.08 FEET TO THE SOUTHWEST CORNER OF SAID NORTHWEST
QUARTER OF THE SOUTHWEST QUARTER: THENCE ALONG THE BOUNDARY OF
SAID NORTHWEST QUARTER OF THE SOUTHWEST QUARTER AS FOLLOWS:
SAID NORTHWEST QUARTER OF THE SOUTHWEST QUARTER; AND NORTH NORTH 89-54'45" EAST, 1348-31 FEET TO THE SOUTHEAST CORNER OF
00-00'22" WEST, 1169.91 FEET TO THE NORTHERLY LINE OF SAID SECTION 23; THENCE ALONG SAID NORTHERLY LINE SOUTH 89-57'43"
WEST, 1348.24 FEET TO THE POINT OF BEGINNING.
*
*.
EXHIBIT "A"
TO GRANT OF EASEMENT
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1 EXHIBIT "B"
FEGAL DESCRIPTIO N OF CITY PRO PERTY
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That portion of parcel 2, in the City of Carlsbad, County of San Diego, State of
California, as shown at page 1 188 of Parcel Maps filed in the Office of the County
Recorder of San Diego County, December 21, 1972, lying Westerly of the Northwesterly
boundary of that part of County Road Suwey No. 1800-1 ( Known as El Camino Real )
as described in Parcel 68373-a in deed to the County of San Diego, recorded July 24,
1970 as File 130797 .
9
EXHIBIT "B" 6'
TO GRANT OF EASEMENT
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LEGAL DE~CRIFTION OF EASEMENT
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All that portion of Parael 2 of Parcel. Hap 1188, reoorded: Decemnber
20, 1972, as File No. 340334 of Off!icial Records being within the
City of Carlebad, County of San Diego, State of California, baing more particularly deecribed us follows:
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A 24.00 foot wide easement, the.uenterlin8 being more particularly deeoribed ab: follows;
Beginning at the txoutheaat: aorner of the above described Parael 2: thenoe westerly along the aoutkerly line of said Parcel. 2, North
89'32'21" West, 794.47 feet (Record: North 89*32t0111 West, PM
1181)); thence leaving said southerly line, North 0'27I39l1 East,
30.00 feat, to the northerly right-of-way line of Cassia Road and the TRUE POXNT OF BEGINNING; thence North 0*27'391t East, 239.31
feet, to the beginning of a tangent 300.00 foot radius curve, QonCave waeterly, thence northerly along the arc of said curve, through a oentrel-angle of 43*13'0OVf, an ara df6tanr;re of 226.28 feet; thence tangent to said aurve, North 42'4b12lg' West, 115.35
feet, to the brayinning of a tangent 200.00 foot radius curve,
aonaava eouthweeterly, thence northWe6terlY along the arc of said aurve, through a central angle of 46'40t4Gtf, an arc distance of
162.94 Peeti thence North 09'26'07" Weet, 246.70 Feet, to a11 interseation with the westerly line of the above described Parcel
2.
'The side lines of! said 24.00 foot easement to be prolonged and/or shortened to form Q aontinuow 24-00 foot wide strip, from the northerly right-of-way line of Cassia Road to the West line of said Parcel 2.
4
EXHIBIT "D" .
TO GRANT OF EASEMENT
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COUNTY OF )
STATE OF CALIFORNIA
On 1996, beforeme,
Notary Public, personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name (s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies1 , and that by his/her/their signature (s) on the
instrument the person(s) or the entity upon behalf of which the
person(s) acted, executed the instrument.
Z
Witness my hand and official seal.
Notary Public
STATE OF CALIFORNIA 1
COUNTY OF 1
) ss.
On 1996,beforeme, Notary Public, personally appeared
personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name (s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies) , and that by his/her/their signature (s) on the instrument the person(s) or the entity upon behalf of which the
person(s) acted, executed the instrument.
1
Witness my hand and official seal.
Notary Public
[SEAL]
0 0
CONSENT AND SUBORITINATION
LA TERRAZA ASSOCIATES, a California limited partnership, as
the ground tenant under that certain Ground Lease dated October 28,
1994, by and between the City of Carlsbad, as lessor, and
La Terraza, as lessee (the IlGround Leasell), as evidenced by that certain Memorandum of Lease dated October 28, 1994, and recorded on
November 4, 1994, as Instrument No. 0645097, Official Records of San Diego County, California:
Does hereby consent to the execution and recordation of the Grant of Easement (Access, Ingress and Egress) attached hereto, and
covenants and agrees that said Ground Lease, as the same may have
been amended of record, shall be, and the same is hereby made
subject and subordinate to the Grant of Easement, with the same force and effect as if said Grant of Easement has been executed,
delivered and recorded prior to the execution and delivery of said Ground Lease and the recordation of the Memorandum of Lease
evidencing said Ground Lease.
This Consent and Subordination shall become effective upon
recordation in the Official Records of San Diego County, California
and shall be binding upon the undersigned, its successors and assigns.
IN WITNESS WHEREOF, this Consent and Subordination has been
+I
duly executed by the undersigned this 2)* day of
1996.
LA TERRAZA ASSOCIATES, a California
limited partnership
By: BRIDGE HOUSING CORPORATION, a California non profit public
corporation, its benefit managing neral partner
By : /Zfy/&
Its: ?ws I'd Pd
3,
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i State of California
County of Alameda
On May 10, 1996 before me, Olqa Oelschlaesel personally
appeared Terry R. Scarlett and Theresa M. Vasauez personally known
to me (or proved to me on the basis of satisfactory evidence) to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized
capacities and that by their signature(s) on the instrument the
persons, or the entity upon behalf of which the persons acted,
executed the instrument.
OLGA OELSCHWEL
WITNESS my hand and official seal.
1 (3 Signature of atary (seal)
--
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1 STATE OF CALIFORNIA
) ss. COUNTY OF shlflwAflds&l )
1996, beforeme, L)O&MflA d, & Notary Public I ersonally appeared-f.&VH &g,&,&!-- -
personally known to me f-w GZ tkc BX~E =E
subscribed to the within instrument and acknowledged to me that h-e/she/&q executed the same in -b&'her/el=ek- authorized
capacitym I and that by kLs/her/+h-&r signature@-) on the
instrument the persontrf) or the entity upon behalf of which the person@) acted, executed the instrument.
- - c On+
4-n- VL - to be the person(& whose nameds3- is-
Witness my hand and official seal.
-
STATE OF CALIFORNIA )
COUNTY OF )
) ss.
On 1996, before me, I Notary Public, personally appeared
personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s1 whose name (s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies1, and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person (s) acted, executed the instrument.
Witness my hand and official seal.
Notary Public
[SEAL]
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RECORDING REQUESTED BY ANTI WHEN RECORDED RETURN TO:
Rutan & Tucker
P. 0. Box 1950 Costa Mesa, CA 92628-1950
Attn: Adam N. Volkert, Esq.,
APN 215-020-01
APN 215-020-15
RECREATIONAL VEHICLE STOUGE AGREEMENT
THIS RECREATIONAL VEHICLE STORAGE AGREEMENT (lrAgreementll), dated for reference purposes as of May 3, 1996, is entered into by and among CARLSBAD I, a California general partnership ('Carlsbad Ill), POINSETTIA HILL LIMITED, a California limited partnership
(lfPoinsettia Hill"), the CITY OF CARLSBAD, a municipal corporation
( I1City1I) and LA TERRAZA ASSOCIATES, a California limited
partnership ( "La Terraza" ) .
RE C I T 4 L S: -
A. Carlsbad I is the owner of that certain real property in the City of Carlsbad, County of San Diego, State of California (the
I1Poinsettia Hill Property"), legally described in the attached
Exhibit "Ar1.
B. City is the owner of that certain real property in the
City of Carlsbad, County of San Diego, State of California (the
"City Property") , legally described in the attached Exhibit eB1l.
Pursuant to that certain Option Agreement dated February
16, 1993, by and between Carlsbad I and Poinsettia Hill, Poinsettia Hill obtained an option to purchase the Poinsettia Hill Property.
A Memorandum of Option evidencing Poinsettia Hill's right to
purchase the Poinsettia Hill Property was recorded on March 16, 1993 as Instrument No. 1993-0161113 in the Official Records of San Diego County, as amended by that certain Amendment to Memorandum of
Option recorded on May 1, 1995 as Instrument No. 1995-0183080 in
the Official Records of San Diego.
C.
D. For purposes of this Agreement, the term "Poinsettia Hill Property Owner" shall refer to the fee title owner of the Poinsettia Hill Property, which, as of the date of this Agreement,
is Carlsbad I.
La Terraza has ground leased the City Property pursuant to that certain Ground Lease dated October 28, 1994, by and between the City, as lessor and La Terraza, as lessee (the !!Ground Leasell).
E.
3,
FS2\267\060324-0039\2138367. I 1 n05/03/96
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Pursuant to the Ground Lease, La Terraza is developing an
affordable housing project on the City Property (the "La Terraza
Projectll).
F. Poinsettia Hill is currently processing a residential development with the City to construct a housing project on the Poinsettia Hill Property (the "Poinsettia Hill ProjectJr). As a condition to development imposed by the City on the Poinsettia Hill Project, a recreational vehicle storage area (the "R.V. Site") must
be constructed for the benefit of the residents of the Poinsettia
Hill Project (the llHomeownersll) .
G. The parties desire that the R.V. Site and recreation
facilities adjacent thereto (the "Recreation Area") be constructed
on that certain portion of the Poinsettia Hill Property depicted on
the attached Exhibit aCfl. The legal description of the Recreation
Area is attached hereto as Exhibit lID1l. After completion of
construction of the R.V. Site and Recreation Area, the Poinsettia
Hill Property Owner shall transfer fee title in the Recreation Area
to the City and the City and La Terraza shall amend the Ground
Lease to incorporate such property under the Ground Lease. Concurrently herewith, the City shall grant to the Poinsettia Hill Property Owner an easement for ingress, egress and access to the R.V. Site over the City Property.
NOW, THEREFORE, incorporating the foregoing Recitals and in consideration of the mutual covenants contained herein, the parties
hereto agree as follows:
1. CONSTRUCTION OF R.V. SITE AND RECREATION AREA.
1.1, Improvements to be Constructed. The Poinsettia Hill Property Owner, at its sole cost and expense, shall construct simultaneously the R.V. Site, the Recreation Area, and the facilities and improvements thereon, all as described on the
attached Exhibit It E 'I (collectively, the "Site Improvementsll) . Prior to commencement of construction of the Site Improvements,
La Terraza and the then-holder of the first deed of trust on the La
Terraza Project (the "First Mortgageell) shall have the opportunity to review and approve the final plans and specifications for the Site Improvements, such approval not to be unreasonably withheld.
1.2. ComDletion of Construction. The Poinsettia Hill Property Owner shall complete the construction of the Site Improvements upon the earlier to occur of (a) one hundred twenty
(120) days after the completion of the first phase of the
Poinsettia Hill Project or (b) five (5) years from the date of this
Agreement. The "completion of the first phase of the Poinsettia Hill Project" shall mean the final inspection of the final unit of
the first phase of the Poinsettia Hill Project. If the construction of the Site Improvements has not been completed on or
before the expiration of such dates, or in the event the Poinsettia Hill Project is not constructed at all, the Poinsettia Hill Property Owner shall not be in default hereunder, but the "Access
nt
I/ Id
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Easement1' (as defined below) shall automatically terminate and all obligations of the parties in this Agreement and the "Property Management Agreement" (defined below) shall become null and void.
The Poinsettia Hill Property Owner shall give City and La Terraza
at least fifteen (15) days prior written notice of the anticipated
commencement of construction. Upon receipt of such notice of the anticipated commencement of construction, City and La Terraza shall
provide access and a temporary construction easement over appurtenant portions of the City Property for the construction of the Site Improvements pursuant to Paragraph 3 of the Access Easement. The Poinsettia Hill Property Owner shall use reasonable efforts to minimize interference with the La Terraza Project caused by the construction of the Site Improvements and shall use reasonable efforts to complete the Site Improvements within one hundred twenty (120) days after commencement of construction.
1.3. Interference with La Terraza Project. In connection with construction of the Site Improvements, the Poinsettia Hill Property Owner shall cause the construction area to be kept in a safe and clean manner and shall limit hours of construction from 7:OO a.m. to 5:OO p.m. on Mondays through Fridays. Upon written notice from La Terraza that the construction
of the Site Improvement is unreasonably interfering with La
Terraza's or its tenants' use and enjoyment of the La Terazza
Project the Poinsettia Hill Property Owner shall promptly take such steps as are necessary to eliminate such unreasonable interference.
If unreasonable interference shall then continue, the Poinsettia Hill Property Owner shall be deemed in default hereunder. The Poinsettia Hill Property Owner agrees to promptly repair any damage caused to the La Terraza Project in connection with the construction of the Site Improvements.
1.4. Insurance. Prior to commencement of construction of the Site Improvements, the Poinsettia Hill Property Owner shall obtain a comprehensive general liability insurance policy in an amount of not less than Two Million Dollars ($2,000,000.00) , naming
the City, La Terraza and the First Mortgagee as additional insureds thereunder. Except to the extent caused by the gross negligence or
willful misconduct of City, La Terraza, First Mortgagee or their successors, or their respective agents, contractors, employees or invitees, the Poinsettia Hill Property Owner shall indemnify, defend and hold City, La Terraza, First Mortgagee and/or their successors, harmless against any and all claims, damages, and/or liability in connection with the construction of the Site Improvements.
1.5. Determination of Comdetion by City. Upon completion of the Site Improvements, the City shall inspect the
R.V. Site and Recreation Area, issue its final signoff pursuant to
the required permit(s), and provide written notice to the Poinsettia Hill Property Owner and La Terraza of the completion of
the Site Improvements. Upon completion, the Poinsettia Hill Property Owner shall give City and La Terraza fifteen (15) days
r.> L/
FS2\267\060324-0039\2138367. I 1 305/03/96 -3-
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prior written notice that it intends to begin use of the access
rights set forth in the Access Easement.
2. CONVEYANCE OF RECREATION AREA TO CITY. Upon receipt of the notice of completion referenced in Section 1.5 above, the Poinsettia Hill Property Owner shall convey the Recreation Area to the City through a lot line adjustment (the "Lot Line Adjustment")
substantially in the form attached hereto as Exhibit IIFIl. The Lot Line Adjustment shall be finally approved by all parties from whom
approval is necessary prior to completion of construction of the Site Improvements. The conveyance of the Recreation Area shall specifically except and reserve to the Poinsettia Hill Property Owner a non-exclusive easement for access, ingress and egress over
and upon the Recreation Area to the R.V. Site in substantially the location depicted on Exhibit ''E". In the event that the legal description of the Recreation Area is modified in connection with
the final approval of the Lot Line Adjustment, the legal
description set forth in Exhibit I'D" shall be replaced with the final legal description determined through the Lot Line Adjustment. City, as owner of the City Property, hereby agrees to accept the conveyance of the Recreation Area pursuant to the Lot Line Adjustment and enter into an amendment modifying the Ground Lease
to include the Recreation Area.
3. GRANT OF EASEMENT. Concurrent with the execution of this
Agreement, the City shall execute an easement agreement that grants
to the Poinsettia Hill Property Owner a non-exclusive easement for
access, ingress and egress in the form attached hereto as Exhibit 2 ( llAccess Easement II ) , which shall become effective as set forth
therein. The Access Easement shall be subject to the terms and
provisions of this Agreement, including the automatic termination
of the Access Easement in the event completion of construction of
the Site Improvements has not occurred as set forth in Section 1.2
above.
4. MANAGEMENT AGREEMENT. Concurrent with the execution of
this Agreement, the Poinsettia Hill Property Owner and La Terraza shall enter into that certain Property Management Agreement in the
form attached hereto as Exhibit "H" ( "Property Management Agreement"), which shall provide for the maintenance and repair of the R.V. Site by La Terraza, subject to reimbursement by the
Poinsettia Hill Property Owner. The obligations of La Terraza
under the Management Agreement shall commence upon the completion
of the Site Improvements, as set forth in Section 1.4 above.
5. DEFAULT.
5.1. Events Constitutins Default. Except as otherwise
provided in Section 1.2 above, the following shall constitute a
default hereunder: (a) any failure to perform under this Agreement or under the Access Easement; (b) failure to convey the Recreation Area to the City; or (c) failure to construct the Recreation Area
when and if the R.V. Site is constructed.
w
FS2\267\060324-0039\2138367.11 a05/03/96 -4-
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5.2. Remedies. If the Poinsettia Hill Property Owner defaults in the performance of any of its obligations hereunder at
Hill Property Owner and all other parties hereunder describing the
default which the Poinsettia Hill Property Owner shall cure within twenty (20) days after service of such notice; provided, however, if the default is incapable of being cured within such period, the
Poinsettia Hill Property Owner shall not be in default provided the Poinsettia Hill Property Owner commences to cure the same during
such twenty (20) day period and thereafter diligently prosecutes
the cure to completion within ninety (90) days after service of such notice. If the Poinsettia Hill Property Owner fails to cure such default within the time periods set forth herein, the City or
La Terazza, in addition to any other rights or remedies it may have, shall have the right to terminate the Access Easement or terminate this Agreement by serving notice on the Poinsettia Hill
Property Owner.
any time, La Terazza shall provide written notice to the Poinsettia
6. MISCELLANEOUS.
6.1. Attorneys' Fees. In the event an action is
commenced to enforce any of the provisions contained herein, the
prevailing party(ies) shall be entitled to recover from the other party(ies) reasonable attorneys' fees and costs of such suit.
6.2. Notices. Unless otherwise provided for herein,
any notice to be given or other document to be delivered by one party to another hereunder shall either be delivered in person to such party or may be deposited in the United States mail, or by
overnight delivery service, with postage prepaid, or by facsimile transmission, addressed to the party for whom intended as follows:
To Carlsbad I: Spiers Enterprises
or Poinsettia Hill 23 Corporate Plaza, Suite 139 Newport Beach, CA 92660
Attn: Dwight W. Spiers
Phone: (714) 644-5719
FAX: (714) 644-5714
copy to: Rutan & Tucker 611 Anton Blvd., Suite 1400
Costa Mesa, CA 92626 Attn: Adam N. Volkert
Phone: (714) 641-5100
FAX: (714) 546-9035
To City: City of Carlsbad 2075 Las Palmas Drive Carlsbad, CA 92009 Attn: Planning Director Phone: (619) 438-1161 x4430 FAX: (619) 438-0894
?,"B
FS2\267\060324-0039\213+3367.11 ;105/03/96 -5-
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copy to: City Attorney City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Phone: (619) 434-2891
FAX: (619) 434-8367
To La Terraza: Bridge Housing Corporation One Hawthorne Street, Suite 400
San Francisco, CA 94105
Attn: Lydia Tan
Telephone: (415) 989-1111
Facsimile: (415) 495-4898
c/o Mr. Steve Nishimura
2255 India Street Los Angeles, CA 90039 Telephone: (213) 660-8563 Facsimile: (213) 665-4011
copy to: Carlsbad I
copy to: Goldfarb & Lipman One Montgomery Street, 23rd Floor San Francisco, CA 94104 Attn: Thomas H. Webber, Esq. Telephone: (415) 788-6336
Facsimile: (415) 788-0999
copy to: Great Western Bank
9451 Corbin Avenue Northridge, CA 91324 Attn: Major Loan Services Loan No. 1-424815-9
Telephone:
Facsimile:
Any party may from time to time, by written notice to the
others, designate a different address which shall be substituted
for the one above specified, and/or specify additional parties to be notified.
If sent by mail, any notice, delivery, or other communication shall be effective or deemed to have been given two (2) business
days after it has been deposited in the United States Mail, duly registered or certified, with postage prepaid, and addressed as set forth above, or one (1) business day after deposit before the daily
deadline time with a reputable overnight delivery service. If sent by facsimile transmission, or if delivered by courier or personal service, any notice, delivery, or other communication shall be
effective or deemed to have been given upon receipt, provided hard copies of such transmission shall be thereafter delivered by
certified mail or overnight delivery service.
I5 FS2\267\060324-0039\2138367.11 n05/03/96 -6-
0 e
6.3. Recordation of Aqreement. This Agreement shall be
recorded by the parties in the Official Records of the County of
San Diego, and shall serve as notice to all parties succeeding to
the interest of the parties hereto that their use of such property
shall be benefitted and/or restricted in the manner herein set
forth.
6.4. Bindins Covenants, Successors. The grants,
covenants, conditions and restrictions contained herein shall bind
and inure to the benefit of the Poinsettia Hill. Property Owner, the
City and La Terraza and their respective heirs, personal
representatives, successors, assigns and any and all successive owners of the Poinsettia Hill Property and the City Property, including First Mortgagee.
6.5. Transfer and/or Sale of Parcels. In the event any
party to this Agreement, or the successors and assigns thereof, shall convey its interest in all of the respective portions of the Property affected hereby, after the date of such conveyance, the conveying party shall be automatically free from any and all liabilities respecting the performance of the restrictions, covenants or conditions contained in this Agreement thereafter to
be performed with respect to the Property conveyed, it being
intended that the restrictions, covenants or conditions contained in this Agreement shall be binding upon the owners of the fee or
leasehold interest in the City Property and the Poinsettia Hill Property only during such time as their ownership, provided that the conveying owner shall remain liable for any actions taken
during such owner’s period of ownership.
6.6. Interpretation. This Agreement is to be construed
in accordance with the laws of the State of California. In the event any provision of this Agreement shall be found to be
unenforceable or inoperative as a matter of law, the remaining
provisions shall remain in full force and effect. All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, neuter, singular or plural as the identity of the person or persons, firm or firms, corporation or corporations, partners or
partnerships may require.
6.7. Entire Aqreement; Amendment: Modification. This
Agreement constitutes the entire agreement of the parties hereto
and may be amended only in a writing executed and acknowledged by
all of the parties. No such amendment or modification shall have
any force and effect whatsoever unless and until they are written
and executed in such a manner. All amendments shall be recorded as soon as practicable.
6.8. Authority. Each party executing this Agreement
represents and warrants to each other party that he/she is duly
authorized to execute and deliver this Agreement and no other
persons are required to execute this Agreement. Each party hereto
that is other than an individual person shall, at any other party’s
75
FS2\267\060324-0039\2138367. I I a05/03/96 -7-
0 0
request, deliver a certified copy of the appropriate formation and authorization documents authorizing such execution.
6.9. Miscellaneous. Each party hereto agrees to execute and deliver all documents and instruments and to take all
actions pursuant to the provisions hereof as may be reasonably
necessary in order to effect the transactions contemplated herein.
Time is of the essence of each and every term, condition,
obligation and provision hereof.
6.10. Mortsasee Protection. No breach of the covenants, conditions or restrictions contained herein shall defeat or render invalid the lien of any mortgage or deed of trust, made in good
faith and for value, encumbering any portion of the Property or any
portion thereof or any improvements thereon, but all such covenants, conditions and restrictions shall be binding upon and effective against any subsequent owner whose title is derived through foreclosure or trustee’s sale or otherwise.
6.11. CounterDarts. This Agreement may be executed simultaneously in counterparts, each of which shall be deemed an original, but all of which shall together constitute one and the
same instrument.
6.12. Covenants to Survive. The covenants and agreements
contained herein shall survive the consummation of this Agreement and shall be binding upon and inure to the benefit of the parties
hereto and their representatives, heirs, successors and assigns.
attached hereto, are incorporated herein by this reference.
6.13. Exhibits IIA” IlB” 11 C II 11 D II II E II II F It II G II and 11 H II I-I-I-I-f-I- -
IN WITNESS WHEREOF, this Recreational Vehicle Storage Agreement is executed as of the date first written above.
CARLSBAD I, a California General Pa tnership /
By:, -- -2Z?i?:L
Its: &~P~T.N. pfic:ii+x
By :
Its:
I! Carlsbad I II
[Signatures continued on next page]
!I9
FS2\267~060324-0039\2138367.11 n05/03/96 -8-
0 0
POINSETTIA HILL LIMITED, a California limited partnership
By: ' - __ .---
Dwight W. Spiers, as Trustee
under that certain Declaration
1983, as amended, general partner
of Trust dated Septeniber 14,
"Poinsettia Hill!!
CITY OF CARLSBAD, a Municipal
Corporation
By :
Its:
It City I!
APPROVED AS TO FORM BY:
Ron Ball, City Attorney
LATERRAZAASSOCIATES, a California limited partnership
By: BRIDGE HOUSING CORPORATION, a California nonprofit public benefit corporation, its managin general partner
By : ,&!g&L
Its: i s;Ght-
"La Terraza"
?\
FS2\267\060324-0039\2138367 11 n05/03/96 -9-
a 0
1
) ss.
STATE OF CALIFORNIA
COUNTY OF los b$es )
On rn fs-y >?I 1996, bzoreme,, FJOF-CE-XG~ -
I- personally appedred +.$ I‘shU.gR
personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(@ is/-
subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/ker/Mr authorized
capacity(k), and that by his/*/tMr signature(&) on the instrument the person(& or the entity upon behalf of which the
person(s) acted, executed the instrument.
Witness my hand and official seal.
D c> Notary Public
[S
)
) ss.
STATE OF CALIFORNIA
COUNTY OF Lf)-5vg1! )
On r”wd Iby; E96, beforeme omce )w CZ’ I
personally ap eared 50;F&F, I--
-
’D 16fd-7‘ (d I
_I. personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name (s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies) , and that by his/her/their signature (s) on the instrument the person(s) or the entity upon behalf of which the
person(s) acted, executed the instrument.
Witness my hand and official seal. - ?ebLekL j@k@D Notary Public
*ji,
FS2\267\060324-0039\2138367 11 a05/03/96 -10-
0 a
1
) ss.
COUNTY OF 1
STATE OF CALIFORNIA
- On 1996, before me,
I- personally appeared
satisfactory evidence) to be the person(s) whose name (s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized
capacity (ies) , and that by his/her/their signature (s) on the instrument the person(s) or the entity upon behalf of which the person (s) acted, executed the instrument.
personally known to me (or proved to me on the basis of -
Witness my hand and official seal.
Notary Public
[SEAL]
STATE OF CALIFORNIA ) ) ss.
COUNTY OF %nhnz\sco )
- MM a\ 1996, beforeme, (joNIV2A d, sl/, personally app
personally known to me fsr ~rcvcd tc -"?.= sn Ekc hais rik StisEaet=y --idea@ to be the personw whose name@) is- subscribed to the within instrument and acknowledged to me that
+/she- executed the same in &/her- authorized
capacity-), and that by -her/- signaturem on the instrument the persong) or the entity upon behalf of which the
personH acted, executed the instrument.
--_ - On,&, c CNO\ &\ccvlrlce
Witness my hand and official seal.
[SEAL]
4% JJ
FS2\267\060324-0039\2133367.11 n05/03/96 -11-
0 0
STATE OF CALIFORNIA ) 1 ss.
COUNTY OF 1
personally appeared I On , 1996, before me,
-- -- personally known to me (or proved to me on the basis of satj'&--
factory evidence) to be the person(s1 whose name(s) is/a=.z
subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the
instrument the person(s) or the entity upon behalf of which the
person(s) acted, executed the instrument.
Witness my hand and official seal.
Notary Public
[SEAL]
$4
FS2\267\060324-0039\21B367.11 n05/03/96 -12-
e 0
c
EXHIBIT "A"
LEGAL DESCRIPTION OF POINSETTIA HILL PROPERTY
THE NORTHWEST QUARTER OF THE SOUTHWEST QUARTER OF SECTION
23, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNADINO MERIDIAN,
IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT THEREOF, AND BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF SAID SECTION 23, AS
SHOWN ON RECORD OF SURVEY MAP NO. 6269, FILED IN THE OFFICE
1963; THENCE ALONG THE WESTERLY LINE OF SAID SECTION 23,
OF SAID NORTHWEST QUARTER OF THE SOUTHWEST QUARTER: THENCE
ALONG THE BOUNDARY OF SAID NORTHWEST QUARTER OF THE SOUTHWEST
QUARTER AS FOLLOWS: NORTH 89-54'45" EAST, 1148.31 FEET TO
THE SOUTHEAST CORNER OF SAID NORTHWEST QUARTER OF THE SOUTH- WEST QUARTER; AND NORTH 00-00'22" WEST, 1169.91 FEET TO THE NORTHERLY LINE OF SAID SECTION 23; THENCE ALONG SAID NORTHERLY
BEGINNING.
OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, SEPTEMBER 25,
SOUTH 00-00'11" EAST, 1171.06 FEET TO THE SOUTHWEST CORNER
LINE SOUTH 89-57'43" WEST, 1348.24 FEET TO THE POINT OF
EXHIBIT "A" /-
TO RECREATIONAL VEHICLE STORAGE AGREEMENT
F52\267\060324-0039\2138367.6 11 1108195
0 0
EXHIBIT "B"
LEGAL DESCRIPTION OF CITY PROPERTY
That portion of parcel 2, in the City of Carlsbad, County of San Diego, State of
California, as shown at page 1 188 of Parcel Maps filed in the Office of the County
Recorder of San Diego County, December 2 I, 1972, lying Westerly of the Northwesterly
boundary of that part of County Road Survey No. 1800- I ( Known as El Camino Real )
as described in Parcel 68373-a in deed to the County of San Diego, recorded July 24,
1970 as File 130797 .
EXHIBIT "B" TO RECREATIONAL VEHICLE STORAGE AGFM3E" 3
Fs2\267\060324.M)39\213836~.6 at 1108195
0 0
-
.. .. .. .. .. .. .. :: :: !d .I - .. :: :: .. .. I 1._._._.-.-.-.-.-.-:-.-.-.-.-.---.-.-.-.~ .:
0
EXHIBIT "D"
RECREATION AREA
0
THAT PORTION OF THE NORTHWEST QUARTER OF THE 60UfHWEGt QUARTBR OF
THE CITY Of CARLBBAD, COUNTY OF SAN DlEQ0,8TATE OF CALIFORNIA,
ACCORDIN0 TO OFFICIAL PLAT THEREOF, BEINQ MOM PARTICULARLY DESCRIBED
AB FOLLOWS:
COMMENCINO AT THE NORTHWEB'F CORNER OF RECORD OF 8URVEY MAP NQ. 14580,
FILED IN THE OFPICE OF THE COUNTY RECORDER OF 8AIO 8AN DIE00 COUNTY,
JUNE ZQ, 1994, $AID POINT BEINO OCCUPIED BY A 2 INCH IRON PIPE WITH A TAQ
MARKED L.8. $941 $A18 CORNER 8UR8 NORTH 00'33'03" EABT FROM THE
SOUTHWEBT CORNER OF 8Alo RECORD OF WfIVEY, 6All) CORNER 8EtNQ OCCUPlEQ
8tCTION 23, TQW6HIP 12 6OUTHI RANOE 3 WEST, $AN BERNARPINO MERIQ~N, \N -
. BY A 2 INCH IRON PIPE WITH A TAG MARKGO L,6. 6941: THENCE FROM AID
NoRTHWE~T CORNER ALONQ THE WESTERLY BOUNOARY LINE OF MID RECORD OF
THENCE CONTINUINO ALONG BAIO WEBTERLY BOUNDARY LINE, SOUTH 00'33'53'
WEST, 140,OO FEE% TNENCC LeAVlNQ BA1D WESTERLY BOUNDARY LINE, NORTH
80'28'07" WEST, 60.00 FEER THENCE NORTH 00933'63" EAST, 80.00 FEET; THENCE
$URVEY, 80WH W'33'63' WEST, 100100 FEET TO "HE TRUE POINT OF BEQINNINO;
NORTH 60wo7" WEST, i 10.00 FEE^ THENCE NORTH 00~33~~ EAST, 80.00 FEET;
THeNCf SOUTH 60'28'01" EAST, lW.00 FRIT TO THE TRUE POINT OF DIOINNlNO.
THE HEREINABOVE DESCRIBED PARCEL OF UNO CONTAIN8 0.363 ACRE MORE OR
LES6.
T
jwtp tf
JOtdW. HILL, JR, L,8,6QbQ
HVNSAKER & ABSOCIATES 6AN DIEOO, INC,
PAGE 1 OF f*-
;DA M,VIWUWAaf*~ wo w14 I
WUBIT "D"
'. .
n ? r I a rn
lW€IBIT "E" ---- 1 of 2
9
2 z
-
-
tl
2 of 2 -
0 e ClTY OF CARLSBAD - ENGINEERING DEPARTMENT
APPLICATION FOR ENGINEERING PIANCHECK OR PROCESSING
CamdHo aN .wroorht akrkmraH0n . Writ@ NtAwhan na rwnt.M..
PhanmNumbw: j PbomNumbw 1 1
ktnw Md corracttoth. best d my knawladga
Date
PhmoNunbw: l 1
Mdiq Addrw:
IMPROVEMENT VALUATION: sewer, water & reclaimed water:
Water District (circle one): Carlsbad Municipal Water Mttrkt Olihain Vallecitw
streets and drainage:
GRADING QUANTITIES:
PLEASE CHECK OFF APPLICATION NPES ON REVERSE SIDE
mIT 'F
1 of 4
~~~~R~\m~
0 0
.a CRY OF CARSBAD AW~~ PUT AN0 CERWlCATE OF COMPUANCE SUBMITTAL WECm
CCN PROJECT NO. CCN PROJECT NAME
- CllYDRAWlNQNO. CI7Y PROJECT ENGINEER
PLEASE NOTE;
8 TO INSURE THE l7MELY PROCESSINQ OF BOUNDARY AOJUSTMEMS AND CE~FICAE COMPUANCE IN THE MY, THOSE SUBMCrnNQ BOUNDARY ADJUS7MEHTs AND CER~FICAT
COMPUAUCE FOR CCTY RMM SHOULD CUECK WEIR SU8MlTTAL PACKAGES FOR COMPW
AND COMPLlANCE TO THE FOUOWIUQ CUECKUST. APPUCNVTSARL REOUIREO TO ACKNOW
COMPUTENESS BY lUmAuN0 THE SPACES PROMDED FOR EACHITEM. Ccry STNF WILL INVE~~
THESE ITEMS UPON SUBMITTAL
UNLESS SPECIFICALLY MARKED 'NIA' (NOT APPUCABLE) AND INMD 8Y THE ClTY PR( ENGINEER, ALL EMS USED ARE REQUIRED TO 8E SU8MTTT;ED. PEASE DO NOT DETACH THIS CHECKLIST WHEN AVACHED TO THE CHECK PRIM PACKAGE.
CHECKUST /SA PART OF THE RMW COMMENTS.
SHOULD YOU HAM ANY OUESTfONS, PLEASE CONTACT 77fE C/lY PROJECT ENGINEER AT 438
EXTENSION .
a
rn
A.
- 1. TRANsMcrtALLEiTER~THEEKuNEEAm~~woFIK~wTwE~BoNosuw
WoFI<~8KLNED8YTHEowNQys),~OEHoLENouI~ocIBpMcuAy(wENAPW
ME FOLLOWlNa ITEMS MUST BE INCLUDED IN THE INITW. SUBMIITAL:
-2 LEllERTOCRY~RE~THELOTWEA[UUBTMEHT~~TEOfCCWUAKE - 3- FOUR (4) SETS Of PUT8 IN ST- M'x 11' SHEEI'B SlWED AM 8EAlED BYl'W - OR WRW
(DIsTw8lJnOM lpuNcHKmER1FU,1PU"WQ1BUUIIE(O~~~OFF~.
FOUR (4) 803 Of LHUL -TypEw#TTp( 1E( Mm9 AND m FORMAT ON a%* X 11. !
SEPACUrrFOREACHNEWLY~COTS~PARCELS8KMD~BULEDBYTHEENOlNEDIORSUF - 4.
OFWoilK(WRWWW& 1 PuNCHEclQR 1 FlL€ 1 PuNrwa 1 BuLolElo m. cooEEwoFlcoAEKroF Two @j s€rs oFTRIIv€mi cALcuuTIoNB SIQNED AN0 SEALED BY ENWEER OR SURVEYOR OF
(-. 1 puNcHEcKD\, 1 m. - 6. WOcgSEBOfpoucvffrmE~EEDwmW~MoMHBOfApQucATIoN)~~
REPOAT (Issua,mnrrj 30 OAYS WMW 8EpAsuTE FOFI EhCH PNCEU OR Lcrrs BElK1 AA
(DISFUBLmON: 1 PANolKmnL 1 FkQ.
COPIES OF VESllNG DEEDBKWIEACH PARcELm LOT.
BOUNOARY ADJu(ITMQ(T UJO mTE Of - EVHEW CHECIQIBT WflH PRESuWflTM I
5.
- 7. - 0.
8. PAFiTNERSWPcERTyIcArrse)ANO~TUR€~~tfOTHER~WO(YIOUALS.
10. FEES(SEE~FEEB(ICHEWL9.~3~c
INFFUU) fRoM ENWEERQR 8wFJEvoRff wq
t SUBUlTM COYpLnt CHECKED BY MlE
COMMENTS
-%EE~UOc--
PAae 1 w2
P:\DOCSKHKLSnW.FRM 3 of 4
f3evwon od. 06/21/94
e 0 -.
.. - I CIT/ OF CARISBAD - BOUNDARY AAlUSTMENT AND CERTIFICATE OF COMPUANCE SUBMllTAL CHECWI
CfTy PROJECT NO.
CW DRAWING NO.
Cy PROJECT NAME
Clly PROJECT ENGINEER
’8. THE FOLLOWING ITEMS MUST BE INCLUDINQ iN EACH RESUBMllTAt: - 1. -2 COPYOF PREvKxI8TRANsMIIT14LLEITEA FR0)rlTHE CIIV. - 3.
fRANSMI‘ITAl L€lTER FROM ENQHEER OF1 WRVEYOA Of WWLLsrwQ +.THE REMS WPM m.
FOUR (4) SETS OFTHE CORFWI’TED PUl8KLNu) AND8EALED BYTHE ENWEER OR 8uWEVOR OF W-4
SK3NEDBYTHECIWNER(S),~ANDLP(DERT#)8FEE~BEMFEMY(WHP(APWCABCq (oIBTRIBuTI(
2 PUNCHECCR, 1 FKE, 1 PUNNLNa).
FOUR (4) SET8 OFTH~COWSED~O€SGWWW FoFl EACH “KY- LaTs OR PAFICELS W AND SEALFO WTHE bwHm OR SavEYW OF WW (OBTRIm 2 PUNCHEC4EFl, 1 WLE, 1 PUWNI!:O
OF WORK @csrwm 1 PUNCHECKER 1 FIE).
- 4. - 5. iWOOSDB~THECdRRECrrOTiUVERSECALCUATlOEW8K3NEDrUU)GEALEDBVTHE~EERORSURYEl
- 7. AoomoNAL rlEMs REWIRED
- 6. ALLPRMOUSCHECKPAlHlsOF:PUT,LEOKDE~TRAVERSE~~~ANOQTHERDOCUMEh
SUBMTTTAL COMPLETE CHECKED BY MTE
COMMENTS
c. THE FOUOWINQ ~TEMS MUST BE SUBM~D BEFORE cm ENQINEER APPROVAL OF n
BOUNDARY ADJUSTMENT AND ISSUANCE OF ME CERTlFlCATE OF COMPLIANCE:
1. ~&mfm~~~w~LLsrwQ~M~~su~.
2 coeyff pREvKxwTRANsMlTTKLErlER~lH€m. a owuNAL~oNMyuRoF1pHoTo)rcIuAocTHEcoF#EcTEDpulwrm~sKINATwIEAND~ffl
ENOWEEWNQ oF1suFNEvoFIoF~~wmr -sKLNANREs oFlH€owN8y8), -(s) A woER~oRBpKFIcuR((wHp(ApeucABLq.
4. THREE M ~~oFOWCUNALII~~THE~ LKULOEV Fa3 UCH~~E~LYYLOT~
PARcELssloNEoAND~8Y~oF1~ffwocK (DmRwmM3puNcHEcIQ9.
5. TWOC9SETSOCTHE~TlUVERSE~~~AND8EALEDBYTHE~EEROilSU~
OF wow< (DWTWmt-. - 6. ML PAMOUS cHEc)(pwIJTzIOF PUT,LKuLDEscwpIIKx(B. TRAVERS€CAlClU~ANOOTHEROOCUMEh
SUBMllTAL COYW CHLCKEO BY DATE
7. MomouALmMSR&alED
COMMEMS:
- SEE REVERSE SIDE -
PAaE: 2w2
P:\~CHtQSnCK4FW
R#biOtlOd.WRIlpI 4 of 4
e 0
RECORDING REQUESTED BY AND
WHEN RECORDED, MAIL TO:
Rutan & Tucker 611 Anton Blvd., Suite 1400 Costa Mesa, CA 92626
Attn: Adam N. Volkert, Esq.
Space above this line for Recorder's Use Only
APN 215-020-01
APN 215-020-15
GRANT OF EASEMENT (Access, Ingress and Egress)
THIS GRANT OF EASEMENT is made as of May 3, 1996 by and
between CARLSBAD I, a California general partnership (or any successor owner of the Carlsbad I Property, as defined below, IICarlsbad Ill), and the CITY OF CARLSBAD, a municipal corporation
( IICity") .
R E C I T A L S:
A. Carlsbad I is the owner of that certain real property in
the City of Carlsbad, County of San Diego, State of California (the
"Carlsbad I Property"), legally described in the attached Exhibit - "Ar1 and depicted in the attached Exhibit "A-1".
B. City is the owner of that certain real property in the City of Carlsbad, County of San Diego, State of California (the "City Property"), legally described in the attached Exhibit IIB" and depicted in the attached Exhibit aB-l".
C. La Terraza Associates, a California limited partnership
('!La Terraza") , has ground leased the City Property pursuant to
that certain Ground Lease dated October 28, 1994, by and between the City, as lessor, and La Terraza, as lessee (the IIGround Lease"). Pursuant to the Ground Lease, La Terraza is developing an
affordable housing project on the City Property (the "La Terraza Project").
D. A plat showing the geographical relationship of the
aforementioned properties (the tlPlat" 1 is attached hereto as Exhibit lIC1l.
EXHIBIT aG" TO RECREATIONAL VEHICLE STORAGE AGREEMENT
FS2\267\060324-0039\2158418.9 n05/03/96
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E. As a condition to the development of a residential
housing project on the Carlsbad I Property (the "Carlsbad
Project1'), the City has required the construction of a recreational
vehicle storage area (the IlR.V. Site") and recreation facilities
adjacent thereto (the "Recreation Area"), on a portion of the Carlsbad I Property, as identified on the Plat. The parties hereto
desire in this Grant of Easement to grant a non-exclusive easement for access, ingress and egress to the R.V. Site over the City
Property and grant a temporary construction easement for the
construction of the R.V. Site and Recreation Area (collectively,
the llSite Improvements1') .
NOW, THEREFORE, incorporating the foregoing recitals of fact
and in consideration of the mutual covenants contained herein, the
parties hereto agree as follows:
1. Grant of Easement. For valuable consideration, receipt of which is hereby acknowledged, the City hereby grants to Carlsbad
I a non-exclusive easement for pedestrian and vehicular access, ingress and egress (llEasementll) in the location legally described
in the attached Exhibit "Dlf and depicted in the attached Exhibit
IID-lII (the "Easement Areal').
2. Use of Easement. Carlsbad I shall be entitled to begin
using the Easement after fifteen (15) days prior written notice from Carlsbad I to City and La Terraza of the completion of construction of the Site Improvements. The use of the Easement shall be subject to the terms and provisions of that certain Recreational Vehicle Storage Agreement of even date herewith (the
IrR. V. Agreement II ) and the property management agreement attached as an exhibit to the R.V. Agreement, which provide among other things,
that the Easement may be terminated in the event of a default under the property management agreement or the R.V. Agreement.
3. Temporary Construction Easement. City hereby grants to
Carlsbad I, effective upon at least fifteen (15) days' written notice prior to commencement of construction of the Site Improvements, an easement for temporary construction purposes over
and across portions of the City Property as reasonably necessary
for the construction of the Site Improvements. Carlsbad I shall
use reasonable efforts to minimize interference with the La Terazza
Project caused by the construction of the Site Improvements, shall
cause the construction area to be kept in a safe and clean manner
and shall limit the hours of construction from 7:OO a.m. to 5:OO
p.m. on Mondays through Fridays as more fully set forth in the R.V.
Agreement. Upon completion of the Site Improvements, or the expiration of one hundred twenty (120) days from the commencement of construction, whichever first occurs, the foregoing temporary construction easement shall automatically terminate without further notice or the need for any instrument to be recorded by the parties hereto.
-2-
FS2\267\060324-0039\2158418.9 a05/03/96
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4. Maintenance of Easement Area. The City agrees to maintain, or cause to maintain the Easement Area as an improved paved road.
5. Character of Easement. The Easement granted herein is appurtenant to and for the benefit of the Carlsbad I Property and is a burden upon the City Property. The Easement shall in no way
be construed as an easement in gross to Carlsbad I or to any other
person or entity. Nothing contained herein shall be construed to be a gift or a dedication of any portion of the City Property to the general public or for any public purpose whatsoever.
6. Insurance. On or before Carlsbad I begins to use the
Easement, Carlsbad I shall, at its expense, maintain public liability insurance in an amount not less than Two Million Dollars
($2,000,000.00) over the Easement Area, and shall name City, La Terraza and the holder of the first deed of trust on the City
Property ( "First Mortgagee") , as additional insureds thereon. Such policy shall provide that not less than thirty (30) days written
notice shall be given to City, La Terraza and First Mortgagee prior
to the cancellation of such policy. Upon request by any additional
insured, Carlsbad I shall provide a certificate of insurance
evidencing the insurance coverage required herein.
7. Indemnity. Carlsbad I shall indemnify, defend and hold
City, La Terraza, First Mortgagee and any successors-in-interest to
the La Terraza Project harmless from and against all claims,
damages and costs (including but not limited to those arising out
of any injury or death to any person or persons or damage to any property of any kind whatsoever and to whomsoever belonging, including City, La Terraza, First Mortgagee and any successors-in-
interest, and including attorneys' fees) arising out of or in
connection with the use by Carlsbad I and its permitted invitees of the Easement; except to the extent caused by the gross negligence, willful misconduct, fraudulent or criminal acts of City, La Terraza, First Mortgagee or their successors, or their respective agents, contractors, employees or invitees.
8. Default. Any default by Carlsbad I in the performance of the terms of this Grant of Easement shall constitute a default
hereunder, and City and La Terraza shall have the rights and
remedies afforded them pursuant to the terms of Article 5 of the
R.V. Agreement.
9. Bindins Covenants, Successors. The grants, covenants, conditions and restrictions contained herein shall bind and inure to the benefit of Carlsbad I and its respective heirs, personal representatives, successors, assigns and any and all successive owners of the Carlsbad I Property, shall create mutual, equitable servitudes upon the City Property, and shall, as to the owner of any portion of the City Property, its successors and assigns, operate as covenants running with the land for the benefit of the Carlsbad I Property.
-3-
FS2\267\@60324-0039\2158418.9 n05/03/96
e 0
10. Modifications. This Grant of Easement may not be amended
or otherwise modified, except by an agreement in writing signed by
all parties hereto. No such amendments or modifications shall have
any force and effect whatsoever unless and until they are written and executed in such a manner.
11. Recordation of Easement. This Grant of Easement shall be
recorded in the Office of the Recorder of the County of San Diego
and shall serve as notice to all successive owners of the City Property that such property shall be restricted in the manner herein described.
IN WITNESS WHEREOF, the parties have executed this Grant of Easement as of the day and year first above written.
CARLSBAD I, a California general partnership
By :
Its:
By :
Its:
11 Carl sbad I II
CITY OF CARLSBAD, a municipal corporation
By :
Its:
!I City It
APPROVED AS TO FORM:
Carlsbad City Attorney
-4-
FS2\267\0603M1-0039\2 1584 18.9 a05103196
0 0
STATE OF CALIFORNIA 1
COUNTY OF )
) ss.
On I before me I I
personally appeared
personally known to me (or proved to me on the basis of satisfac-
tory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity (ies) , and
that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument.
Witness my hand and official seal.
Notary Public [SEAL]
STATE OF CALIFORNIA 1
COUNTY OF 1 ) ss.
On , beforeme, I
personally appeared
personally known to me (or proved to me on the basis of satisfac- tory evidence) to be the person(s) whose name(s) is/are subscribed
to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity (ies) , and
that by his/her/their signature (s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument.
Witness my hand and official seal.
Notary Public [SEAL]
FS2\267\060324-0039\2158418.9 n05/03/96
0 e
STATE OF CALIFORNIA 1
COUNTY OF 1 ) ss.
On , beforeme, I
personally appeared
personally known to me (or proved to me on the basis of satisfac- tory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity (ies) I and that by his/her/their signature (s) on the instrument the person (s) or the entity upon behalf of which the person(s) acted, executed
the instrument.
Witness my hand and official seal.
Notary Public
[SEAL]
STATE OF CALIFORNIA )
COUNTY OF )
) ss.
On I before me I I
personally appeared
personally known to me (or proved to me on the basis of satisfac- tory evidence) to be the person(s) whose name(s) is/are subscribed
to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and
that by his/her/their signature (s) on the instrument the person(s)
or the entity upon behalf of which the person(s) acted, executed
the instrument.
Witness my hand and official seal.
Notary Public [SEAL]
FS2\267\060324-0039\2178418.9 a05/03/96
0 e
STATE OF CALIFORNIA 1
COUNTY OF )
) ss.
On , before me, I
personally appeared
personally known to me (or proved to me on the basis of satisfac-
tory evidence) to be the person(s) whose name(s) is/are subscribed
to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity (ies) , and
that by his/her/their signature (s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed
the instrument.
Witness my hand and official seal.
Notary Public
[SEAL]
FS2\267\060324-0039\2158418.9 a05/03/96
Q Q
' EXHIBIT "A"
LEGAL DESCRI PTION OF CAR LSBAD I PROPERTY
--
THE NORTHWEST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 22, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNARDINO MERIDIAN, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT THEREOF, AND BEING MORE PARTICULARLY DES- CRIBED BY METES AND BOUNDS AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF SAID SECTION 23, AS SHOWN
COUNTY RECORDER OF SAN DIEGO COUNTY, SEPTEMBER 25, 1963; THENCE ON RECORD OF SURVEY MAP NO. 6269, FILED IN THE OFFICE OF THE
ALONG THE WESTERLY LINE OF SAID SECTION 23, SOUTH 00-00'11"
EAST, 1171.08 FEET TO THE SOUTHWEST CORNER OF SAID NORTHWEST
QUARTER OF THE SOUTHWEST QUARTER: THENCE ALONG THE BOUNDARY OF
SAID NORTHWEST QUARTER OF THE SOUTHWEST QUARTER AS FOLLOWS: NORTH 89-54'45'' EAST, 1348.31 FEET TO THE SOUTHEAST CORNER OF SAID NORTHWEST QUARTER OF THE SOUTHWEST QUARTER; AND NORTH
00-00'22'' WEST, 1169.91 FEET TO THE NORTHERLY LINE OF SAID SECTION 23; THENCE ALONG SAID NORTHERLY LINE SOUTH 89-57'43" WEST, 1348.24 FEET TO THE POINT OF BEGINNING.
%
-.
EXHIBIT "A"
TO GRANT OF EASEMEN"
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EXHIBIT "B"
FEGAL DESCRIPTIO N OF CITY PRO PERTY
-
That portion of parcel 2, in the City of Carlsbad, County of San Diego, State of
California, as shown at page 1 188 of Parcel Maps filed in the Office of the County
Recorder of San Diego County, December 21, 1972, lying Westerly ofthe Northwesterly
boundary of that part of County Road Survey No. 1800- 1 ( Known as El Camino Real )
as described in Parcel 68373-a in deed to the County of San Diego, recorded July 24,
1970 as File 130797 .
.,
EXHIBIT "B"
TO GRANT OF EASEMENT
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ExHLBlT "D"
LEGAL, DESCRIPTION OF EASEMENT
0
- All that portion of Parael 2 of Parcel, Map 1188, reaorded: December
20, 1972, as File No. 340334 of official Records being within the City of Carlsbad, County of San Dfego, State of California, being more particularly deecribed us follows:
-
A 24.00 foot wide easement, the aenterline being more particularly desoribed as follows:
BQghning at the aoutheaet oocner of the above described Parael 2; thenoe westerly along the southerly line of said Parcel 2, North
89'3212111 Weal;, 794.47 feet (Record: North 1)9*3280111 Weat, PM
1188) ; thence leaving said southerly line, North 0*2713911 East,
30.00 feet, to the northerly right-of-way line of Cassia Road and the TRUE POINT OF BEGINNING; thence North 0'27'39" East, 239.31 feet, to the beginning of a tangent 300.00 Coot radius cui-ve,
uonaave westerly, thence northerly along the arc of said curie, through a oentral.nngls of 43'1310011, an aro clfetanoe of 226.28 feetr thence tangent to said aurve, North, 42*45'2111 Weet, 115.39 feet, to the boginning of a tangent 200.00 Foot radius curve, uonaave eoulhwesterly, thence northwesterly along the arc of said aurve, through a cmtral angle of 46'40'4G11, an arc distance of
162.94 feet] thence North 89*26107'1 West, 246.72) feet, to all intersection with the westerly line of the above described Parcel
2.
The aide linea of said 24.00 foot easement tu be prolonged and/or shortaned to form B aonthuous 24.00 foot wide strip, from the
northerly right-of-way line of Cassia Road to the West line of said Parcel 2.
,
4
EXHlBIT "D *-
TO GRANT OF EASEMENT
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CONSENT AND SUBORDINATION
WELLS FARGO BANK, N. A., as the beneficiary under (i) that certain Construction Deed of Trust with Assignment of Leases and
Rents, Security Agreement and Fixture Filing (Ground Lease) dated
October 28, 1994, recorded November 4, 1994, as Document No. 1994-
0645099 in the Official Records of San Diego County, California
with La Terraza Associates, a California Limited Partnership, as
Trustor ("Leasehold Deed of Trust1'), (ii) that certain Construction Deed of Trust with Assignment of Leases and Rents, Security Agreement and Fixture Filing dated October 28, 1994, recorded
November 4, 1994, as Document No. 1994-0645098 in the Official Records of San Diego County, California with the City of Carlsbad,
a municipal corporation, as Trustor ("Fee Deed of Trust"), (the
Leasehold Deed of Trust and the Fee Deed of Trust shall be
collectively referred to herein as "Deed of Trust"), and as the holder of a Promissory Note secured thereby:
Does hereby consent to the execution and recordation of that
certain Grant of Easement (Access, Ingress and Egress) attached
hereto, and hereby covenants and agrees that said Deed of Trust, as
the same may have been amended of record, shall be and the same is
hereby made subject and subordinate to the Grant of Easement, with the same force and effect as if the Grant of Easement had been executed, delivered and recorded prior to the execution, delivery and recordation of said Deed of Trust.
This Consent and Subordination shall become effective upon recordation in the Official Records of San Diego County, California
and shall be binding upon the undersigned, its successors and
assigns.
IN WITNESS WHEREOF, this Consent and Subordination has been duly executed by the undersigned this day of I
1996.
WELLS FARGO BANK, N. A.
By :
Its:
By :
Its:
FS2\267\060324-0039\215~18.9 a05/03/96
0 0
CONSENT AND SUBORDINATION
LA TERRAZA ASSOCIATES, a California limited partnership, as the ground tenant under that certain Ground Lease dated October 28,
1994, by and between the City of Carlsbad, as lessor, and La Terraza, as lessee (the I1Ground Lease"), as evidenced by that certain Memorandum of Lease dated October 28, 1994, and recorded on
November 4, 1994, as Instrument No. 0645097, Official Records of
San Diego County, California:
Does hereby consent to the execution and recordation of the Grant of Easement (Access, Ingress and Egress) attached hereto, and
covenants and agrees that said Ground Lease, as the same may have been amended of record, shall be, and the same is hereby made
subject and subordinate to the Grant of Easement, with the same
force and effect as if said Grant of Easement has been executed, delivered and recorded prior to the execution and delivery of said Ground Lease and the recordation of the Memorandum of Lease evidencing said Ground Lease.
This Consent and Subordination shall become effective upon recordation in the Official Records of SanDiego County, California
and shall be binding upon the undersigned, its successors and
assigns.
IN WITNESS WHEREOF, this Consent and Subordination has been duly executed by the undersigned this day of
1996. I
LA TERRAZA ASSOCIATES, a California
limited partnership
By: BRIDGE HOUSING CORPORATION, a California non profit public benefit corporation, its
managing general partner
By :
Its:
FS2\267\060324-0039\2158418.9
0 a
PROPERTY MANAG-NT AGRE-NT
THIS PROPERTY MANAGEMENT AGREEMENT ( "Agreement IT ) is made as of this 3rd day of May, 1996 between CARLSBAD I, a California general
partnership (or any successor owner of the Land, as described
partnership ( "Agent II ) . below, !!Owner") and LA TERRAZA ASSOCIATES, a California limited
.., - RECITALS
A. Owner is the owner of that certain real property located in the City of Carlsbad, County of San Diego, State of California,
depicted on Exhibit "A" attached hereto (the ItLand") to be improved
with seven (7) 'recreational vehicle parking spaces, a drive aisle and appurtenant landscaping. The Land, together with the
improvements thereon, is collectively referred to herein as the "R.V. Site. !I
B. Owner and Agent, among others, have entered into that certain Recreational Vehicle Storage Agreement dated as of January
9, 1996 (the lIR.V. Agreement") in connection with the initial
development and construction of the R.V. Site.
C. Owner desires to retain the services of Agent to manage the R.V. Site on Owner's behalf on the terms and conditions more
particularly set forth herein, and Agent has agreed to so manage the R.V. Site.
NOW, THEREFORE, incorporating the foregoing Recitals and in
consideration of the mutual covenants contained herein, the parties
hereto agree as follows:
I. AGENCY AND TERM OF AGREEMENT
1.1 Asencv. Owner hereby appoints Agent as Owner's agent
for the management, maintenance and operation of the R.V. Site, which appointment is hereby accepted by Agent.
1.2 Term of Asreement. This Agreement shall commence on
the "Effective Date" defined in Section 1.3 below ( "Commencement Date") and shall continue until the earlier of (i) expiration or termination of the term of that certain Ground Lease dated October
24, 1994, by and between the City of Carlsbad, as lessor, and Agent, as lessee (the I1Ground Leasell); or (iii) termination in accordance with Sections 5.1, 5.2 or 5.3 hereof (the ItTermll).
1.3 Effective Date. The effective date of this Agreement
("Effective Date'!) shall be the date of completion of the "Site
Improvementstt pursuant to Section 1.5 of the R.V. Agreement.
-
EXHIBIT "HI' TO RECREATIONAL VEHICLE STORAGE AGREEMENT
FS2\267\060324-0039\2155498. I1 a05103196
0 0
11. DUTIES OF AGENT AND OWNER
2.1 Duties of Asent. - Agent shall, on behalf of, as agent for and at the expense of Owner, subject at all times to Owner's general supervision and control, perform duties required in
R.V. Site. Without limiting the foregoing, it shall be the duty and responsibility of Agent to perform all duties set forth in this
Agreement, including without limitation, the following:
(a) To maintain or cause to be maintained the R.V. Site, including parking areas, striping and landscaping, in a
clean and sightly condition consistent with Agent's
residential project adjacent to the R.V. Site (the "La Terraza
Projectv1), and to make all necessary or reasonably required repairs costing less than One Thousand Five Hundred Dollars
($1,500.00) to the R.V. Site.
(b) Within thirty (30) days after the Commencement Date, Agent shall submit to Owner a proposed budget for the balance of the calendar year (the IlBudgetIl) setting forth the reasonable costs to maintain the R.V. Site, the books and
records and other administrative costs relating thereto for
the balance of the calendar year. In addition, within thirty
(30) days of the end of each calendar year, Agent shall submit
to Owner a proposed Budget for the ensuing calendar year. The Budget shall set forth the anticipated annual maintenance and administrative costs broken down by line item.
(c) Agent shall prepare and furnish to Owner a detailed statement of all receipts, expenses and disbursements relating to the R.V. Site for the preceding calendar year, and
shall maintain books and records relating to the maintenance
and operation of the R.V. Site for the three (3) prior years.
(d) To obtain all necessary releases, waivers, discharges and assurances necessary to keep the R.V. Site free
of any mechanics', laborers', materialmen's, suppliers or vendors' liens in connection with the maintenance and repair of the R.V. Site.
(e)
connection with the management, maintenance and operation of the
To oversee the use of the R.V. Site by homeowners (llHomeownersll) of the residential project on the Land (the
"Carlsbad Project") authorized to use the R.V. Site and to
promulgate and enforce reasonable rules and. regulations
regarding the use and care of the R.V. Site by the Homeowners.
The foregoing rules and regulations may include, without
limitation, a prohibition against any form of lodging at the
R.V. Site and the right to terminate any Homeowner's use of
the R.V. Site for material violations of the rules and regulations. The rules and regulations shall be substantially in the form attached hereto as Exhibit ItBl1. In addition,
Agent has the right to amend from time to time the rules and
FS2\267\060324-0039\2155498.11 aOS/03/96 -2-
0 0
regulations, with the prior written consent of Owner, such
consent not to be unreasonably withheld.
Agent shall report to Owner in a timely manner any
conditions at, on or about the R.V. Site which, in the opinion
of Agent, requires the attention of Owner.
2.2 Duties of Owner. Owner and not Agent shall be
responsible for paying all real property taxes and assessments
levied against the R.V. Site, maintaining the insurance policies
required in Section 3.1 below and for all other costs associated
with the ownership of the R.V. Site not otherwise specifically
required to be performed by Agent and reimbursed hereunder.
2.3 Extraordinary Services. Except to the extent
specifically provided herein as a part of Agent’s duties, Agent
shall neither be authorized nor obligated to undertake work
exceeding that usual to normal management and such normal
management shall not include activities involving any repairs
costing in excess of One Thousand Five Hundred Dollars ($1,500.00),
construction, reconstruction, or rebuilding on the R.V. Site, or performance of any other extraordinary services, unless Owner and Agent first agree to the performance of such services. Notwithstanding the foregoing, in the event of an emergency in which health, safety or welfare issues are concerned, Agent shall be authorized to exceed the One Thousand Five Hundred Dollars
($1,500.00) limitation set forth herein and incur all reasonable costs and expenses to respond to such emergency. Agent shall submit invoices or other reasonable evidence of payment for performance of such extraordinary services and Owner agrees to reimburse Agent within thirty (30) days after receipt of such invoices or other reasonable evidence. Agent shall notify Owner
immediately in the event of such an emergency.
2.4 Other Activities of Aqent. Agent shall not be required
to spend its full time and attention in the management and
operation of the R.V. Site but shall devote to the R.V. Site such portion of its time as may be reasonably necessary to discharge the
duties of Agent set forth in this Agreement. Agent shall have the right to engage in any other activity for its own benefit or
advantage. Nothing contained herein shall preclude, prevent or be a limitation upon Agent being engaged in other real estate ventures, whether acting for itself or for others, or as a partner in a partnership or a stockholder in a corporation or otherwise.
(f)
111. INSURANCE AND INDEMNITIES
3.1 Insurance Maintained bv Owner. Throughout construction of the R.V. Site and thereafter during the Term, Owner shall maintain, at Owner’s expense, public liability insurance, in an amount not less than Two Million Dollars ($2,000,000.00), for the R.V. Site, and shall name Agent as an additional insured thereon. Such policy shall provide that not less than thirty (30) days
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written notice shall be given to Agent prior to the cancellation of
such policy. Upon request by Agent, Owner shall provide Agent with a certificate of insurance evidencing the insurance coverage required by this Agreement.
3.2 Insurance Maintained bv Asent. Agent shall maintain, at
Agent‘s sole cost and expense, workers‘ compensation insurance covering any employees of Agent in the statutory limits required by
the State of California. Such policy shall provide that not less
than thirty (30) days written notice shall be given to Owner prior
to the cancellation of such policy. Upon request by Owner, Agent
shall provide Owner with a certificate of insurance evidencing the
insurance coverage required by this Agreement.
3.3 Insurance Carried bv Third Persons. Unless otherwise
approved by Owner, Agent shall ensure that all persons who furnish labor, services, equipment or materials to the R.V. Site during the Term pursuant to any contract arranged by Agent carry, in full
force and effect throughout the term of the applicable contract,
(i) comprehensive liability insurance with a combined single limit
in the amount of TWO MILLION DOLLARS ($2,000,000.00) written on a
per occurrence basis; and (ii) worker’s compensation insurance
covering all employees of such person who may deliver goods or
perform services at the R.V. Site in the statutory limits as required by California law. Agent must receive satisfactory evidence of such insurance prior to such contractor‘s delivery of materials to or commencement of services on the R.V. Site.
3.4 Indemnity bv Owner. Owner shall indemnify, defend and hold Agent harmless from and against all claims, damages and costs, (including but not limited to those arising out of any injury or death to any person or persons or damage to any property of any kind whatsoever and to whomsoever belonging, including Owner, and including attorneys’ fees), arising out of or in connection with (i) the ownership of the R.V. Site, (ii) any material breach of this Agreement by Owner, (iii) the grossly negligent acts or omissions, willful misconduct, fraudulent or criminal acts of Owner
or Owner‘s agents (other than Agent, or Agent’s agents, employees or contractors) , employees and contractors; or (iv) the acts or
omissions of Agent in acting under the scope of its authority
granted hereunder or pursuant to the direction of Owner; but
specifically excluding Agent’s gross negligence, wilful misconduct, fraudulent or criminal acts.
3.5 Indemnity bv Asent. Agent shall indemnify, defend and hold Owner harmless from and against all claims, damages and costs (including but not limited to those arising out of any injury or death to any person or persons or damage to any property of any kind whatsoever and to whomsoever belonging, including Agent, and including attorneys’ fees) arising out of or in connection with (i) any material breach of this Agreement by Agent or (ii) the grossly negligent acts or omissions, wilful misconduct, fraudulent or criminal acts of Agent or Agent’s agents, employees and
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contractors; but specifically excluding Owner’s gross negligence,
willful misconduct, fraudulent or criminal acts.
IV. REIMBURSEMENT OF AGENT’S MAINTENANCE AND REPAIR EXPENSES
Owner shall remit to Agent on the first day of every calendar year of the term hereof the payment under the Budget and at the end of each calendar year, there shall be an appropriate adjustment of
Owner’s payments to Agent based upon the actual expenses incurred
during such calendar year. With respect to extraordinary services performed by Agent pursuant to Section 2.3, Agent shall submit
invoices or other reasonable evidence of payment for performance of
such work and Owner agrees to reimburse Agent within thirty (30) days after receipt of such invoices or other reasonable evidence.
Except as otherwise provided herein, no management or other fee shall be paid to Agent for performance of its duties hereunder, as Agent acknowledges that as partial consideration for entering into this Agreement, Owner has constructed a recreational facility adjacent to the R.V. Site for the use and enjoyment by the residents of the La Terraza Project. In the event Owner fails to pay either the annual budgeted amount or such sum for the performance of an extraordinary service within the time periods set forth herein, interest shall accrue from and after the due date at
a rate equal to the lesser of ten percent (10%) per annum, or the maximum rate allowed by law at the time the sum became due.
V. TERMINATION.
5.1 Default by Owner. If Owner defaults in the performance
of any of its obligations hereunder at any time during the term of
this Agreement, Agent shall provide written notice to Owner
describing the default which Owner shall cure within twenty (20) days after service of such notice; provided, however, if the
default is incapable of being cured within such period, Owner shall not be in default provided Owner commences to cure the same during such twenty (20) day period and thereafter diligently prosecutes
the cure to completion within ninety (90) days after service of such notice. If Owner fails to cure such default within the time periods set forth herein, Agent, in addition to any other rights or remedies it may have, shall have the right to (a) prohibit the
further use and enjoyment of the R.V. Site by Owner and its invitees until such default is cured or (b) terminate this
Agreement by serving notice on Owner.
5.2 Default by Agent. If Agent defaults in the performance
of any of its obligations hereunder at any time during the terms of
this Agreement, Owner shall provide written notice to Agent
describing the default which Agent shall cure within twenty (20) days after service of such notice; provided, however, if the
default is incapable of being cured within such period, Agent shall
not be in default provided Agent commences to cure the same during such twenty (20) day period and thereafter diligently prosecutes
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the cure to completion within ninety (90) days after service of
periods set forth herein, (i) Owner may, at its option, rectify or
cure such default and Agent shall reimburse Owner for all
reasonable sums expended by Owner, to the extent such obligations were to be paid by Agent and not reimbursed by Owner, or (ii) Owner may initiate an action against Agent as provided in Section 5.6
below, but Owner shall not be entitled to terminate this Agreement
and Owner's remedy shall be limited to damages or equitable relief,
including without limitation the right to seek specific performance or injunctive relief.
5.3 Voluntarv Right of Termination. Agent shall have the
right to voluntarily terminate this Agreement upon sixty (60) days
prior written notice to Owner.
5.4 Duties Upon Termination of Agreement. On the effective
date of termination of this Agreement, Agent shall turn over to
Owner all books and records relating to the R.V. Site (copies of
which may be made and retained by Agent at Agent's cost and expense), and Agent shall cooperate with Owner in the transfer of management responsibilities to Owner or its designee. Owner and Agent agree that notwithstanding the termination of this Agreement,
Owner's right to continue to use the access easement granted pursuant to the terms of the R.V. Agreement shall remain unhindered so long as the Owner causes the R.V. Site to be maintained in a
clean and sightly condition consistent with the La Terraza Project and maintains rules and regulations for the use of the R.V. Site substantially in the form attached hereto as Exhibit "A".
5.5 Rishts and Remedies Cumulative. The rights and
remedies of the parties are cumulative and the exercise by either
party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the
other party.
such notice. If Agent fails to cure such default within the time
j
5.6 Lesal Action. In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other
remedy consistent with the purposes of this Agreement.
VI. MISCELLANEOUS
6.1 Assisnment. The experience, knowledge, capability and
reputation of Agent, its principals and employees were a
substantial inducement for the Owner to enter into this Agreement. For this reason, neither this Agreement nor any interest herein may be assigned or transferred, voluntarily or by operation of law, by Agent (excluding the assignment of this Agreement by Agent to the beneficiary of the first deed of trust on the La Terraza Project
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[the "First Mortgagee"] ) without the prior written approval of
Owner. Owner agrees that upon the formation of a homeowners'
association for the Carlsbad Project, the rights, obligations and
duties of Owner hereunder shall be assigned to and assumed by the
homeowners' association. In the event the First Mortgagee shall
have foreclosed upon or otherwise taken title to the La Terraza
Project, this Agreement shall be deemed automatically assigned to First Mortgagee, and First Mortgagee shall be bound by and shall receive the benefit of the terms of this Agreement to the same
extent as Agent.
6.2 Entire Aqreement. This Agreement, together with the
R.V. Agreement, the terms of which are incorporated herein, contain
the entire agreement between the parties hereto, and any agreement hereafter made shall be ineffective to modify or terminate this Agreement or constitute a waiver of any of the provisions hereof
unless such agreement is in writing and signed by the party against whom enforcement of the modification, termination or waiver is
sought.
6.3 Captions. The captions in this Agreement are included
for convenience only and are not intended to and shall not be deemed to modify or explain any of the terms of this Agreement.
6.4 Aqreement - Bindins on Successors. Subject to Section 6.1above, the covenants and agreements herein contained shall bind and inure to the benefit of Owner and Agent, and each of their heirs, personal representatives, successors and assigns.
6.5 Attorneys' Fees. In the event that legal proceedings are brought to interpret or to enforce the terms of this Agreement, the prevailing party shall be entitled to recover from the other party all costs and expenses of such proceedings, including reasonable attorneys' fees, whether or not such proceedings are prosecuted to judgment.
6.6 Governins Law. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of California.
6.7 Relationship of the Parties. The relationship of the
parties hereto shall be that of principal and agent, it being
expressly understood and agreed that Agent does not in any way nor for any purpose become a partner of Owner in the conduct of the operation of the R.V. Site, or otherwise, or a joint venturer with Owner.
6.8 Nesotiated - Transaction. The provisions or this
Agreement were negotiated by all of the parties hereto and said
Agreement shall be deemed to have been drafted by all of the parties hereto.
6.9 Notices. Notices given under this Agreement shall be in writing and shall either be served personally, delivered by first class registered or certified, return receipt requested U.S.
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mail, postage prepaid, or delivered by reputable overnight delivery service. Notices may also effectively be given by transmittal over electronic transmitting devices such as Telex, facsimile or telecopy machine, if the party to whom the notice is being sent has
such a device in its office, provided a complete copy of any notice
so transmitted shall also be mailed in the same manner as required
for a mailed notice. Notices shall be deemed received at the
earliest of (i) actual receipt; (ii) three (3) days following deposit in U.S. mail, postage prepaid; or (iii) twenty-four (24)
hours after timely deposit with a reputable overnight delivery sewice. Notices shall be directed to the parties at the addresses
shown below, provided that a party may change its address for
notice by giving written notice to all other Partners in accordance
with this Section.
If to Owner: Carlsbad I c/o Mr. Steve Nishimura 2255 India Street Los Angeles, CA 90039 Telephone: (213) 660-8563 Facsimile: (213) 665-4011
23 Corporate Plaza, Suite 139 Newport Beach, CA 92660 Attn: Dwight W. Spiers Telephone: (714) 644-5719 Facsimile: (714) 644-5714
611 Anton Boulevard, Suite 1400 Costa Mesa, CA 92626 Attn: Adam N. Volkert, Esq. Telephone: (714) 641-5100 Facsimile: (714) 546-9035
If to Agent: Bridge Housing Corporation One Hawthorne Street, Suite 400 San Francisco, CA 94105 Attn: Lydia Tan Telephone: (415) 989-1111 Facsimile: (415) 495-4898
One Montgomery Street, 23rd Floor San Francisco, CA 94104 Attn: Thomas H. Webber, Esq. Telephone: (415) 788-6336 Facsimile: (415) 788-0999
With copy to: Great Western Bank 9451 Corbin Avenue Northridge, CA 91324 Attn: Major Loan Services Loan No. 1-424815-9 Telephone: Facsimile:
With copy to: Spiers Enterprises
With copy to: Rutan & Tucker
With copy to: Goldfarb & Lipman
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6.10 Exhibits. Exhibits I1AI1 and rlB1l attached hereto is
incorporated herein by this reference.
been executed as of the day and year first above written. IN WITNESS WHEREOF, this Property Management Agreement has
CARLSBAD I, a California general
partnership
By :
Its:
By :
Its:
II Owner II
LA TERRAZA ASSOCIATES, a California
limited partnership
By: BRIDGE HOUSING CORPORATION, a California non profit public benefit corporation, its
II Agent 'I
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5' g Qn
* ..
..I B m 0
t- wl I EXlUl3ZT "A" -----
0
EXHIBIT IrB"
RULES AND REGULATIONS FOR R.V. SITE
0
1. Access hours to the premises are from 9:OO a.m. to 6:OO p.m. daily. Access at any other time is strictly
prohibited unless prior arrangements with the property
manager are made. All vehicles must be parked only in
the permitted spaces and vehicles are subject to tow at the owner's expense for parking anywhere other than in
the properly designated space.
2. The speed limit on the premises and all entryways and
driveways is 5 miles per hour.
3. As children or others may be using the recreation area
immediately adjacent to the premises, extra caution must be exercised when entering and exiting the premises.
4. Do not block driveways at any time.
5. You are responsible for any loss, damage or injury and for the actions of you and your guests while on the
premises.
6. Do not dispose of any trash anywhere on the premises.
7. There is no lodging on the premises at any time and the premises may be used for no purpose other then for the
storage of campers, trailers, motor homes, boats, and
other recreational vehicles.
8. As the premises are located adjacent to a residential
project, noise at all times must be kept to a minimum.
9. Additional rules and regulations may be promulgated by
the property manager or homeowners' association as may be
necessary for the safety, care and cleanliness of the premises and for the preservation of good order therein. Each occupant agrees to abide by all such rules and regulations herein stated and any additional rules and regulations which may be hereafter adopted.
condition and must not leak oil or other fluids.
10. All vehicles parked at the premises must be in running
11. All vehicles must be registered and insured.
12. Any material violation of the foregoing rules and
regulations will result in the towing of your vehicle at
your expense and/or the termination of your use of the
premises.
EXHIBIT rrBr' TO PROPERTY MANAGEMENT AGREEMENT
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CONSENT BY LENDER
The undersigned hereby consents to the execution and delivery
by La Terraza Associates, a California limited partnership, of the
Recreational Vehicle Storage Agreement attached hereto.
GREAT WESTERN BANK, A FEDERAL SAVINGS BANK
By : Its: Vice €#esident
I
By : L( LLI TI\,&, h:\ \/a%! 1 i
Its: Assistant Secretary
0 0
PROPERTY MANAGEMENT AGRE-
THIS PROPERTY MANAGEMENT AGREEMENT ( "Agreement II ) is made as of
this 3rd day of May, 1996 between CARLSBAD I, a California general
partnership (or any successor owner of the Land, as described below, "Ownert1) and LA TERRAZA ASSOCIATES, a California limited
partnership ( "Agent M ) .
- RECITALS
A. Owner is the owner of that certain real property located
in the City of Carlsbad, County of San Diego, State of California,
depicted on Exhibit lrA1l attached hereto (the "Landt1) to be improved
with seven (7) recreational vehicle parking spaces, a drive aisle
and appurtenant landscaping. The Land, together with the improvements thereon, is collectively referred to herein as the
"R.V. Site. II
B. Owner and Agent, among others, have entered into that
certain Recreational Vehicle Storage Agreement dated as of January
9, 1996 (the IlR,V. Agreementf1) in connection with the initial
development and construction of the R.V. Site.
C. Owner desires to retain the services of Agent to manage the R.V. Site on Owner's behalf on the terms and conditions more
particularly set forth herein, and Agent has agreed to so manage
the R.V. Site.
NOW, THEREFORE, incorporating the foregoing Recitals and in
consideration of the mutual covenants contained herein, the parties
hereto agree as follows:
I. AGENCY AND TERM OF AGREEMENT
1.1 Aqencv. Owner hereby appoints Agent as Owner's agent for the management, maintenance and operation of the R.V. Site, which appointment is hereby accepted by Agent.
1.2 Term of Aqreement. This Agreement shall commence on the "Effective Date" defined in Section 1.3 below ("Commencement Date") and shall continue until the earlier of (i) expiration or termination of the term of that certain Ground Lease dated October
24, 1994, by and between the City of Carlsbad, as lessor, and Agent, as lessee (the IIGround Lease") ; or (iii) termination in accordance with Sections 5.1, 5.2 or 5.3 hereof (the llTermlt).
1.3 Effective Date. The effective date of this Agreement ("Effective Date") shall be the date of completion of the !'Site Improvementst1 pursuant to Section 1.5 of the R.V. Agreement.
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11. DUTIES OF AGENT AND OWNER
2.1 Duties of Asent. Agent shall, on behalf of, as agent for and at the expense of Owner, subject at all times to Owner's
general supervision and control, perform duties required in
connection with the management, maintenance and operation of the
R.V. Site. Without limiting the foregoing, it shall be the duty
and responsibility of Agent to perform all duties set forth in this
Agreement, including without limitation, the following:
(a) To maintain or cause to be maintained the R.V.
Site, including parking areas, striping and landscaping, in a
clean and sightly condition consistent with Agent's
residential project adjacent to the R.V. Site (the "La Terraza Project'!), and to make all necessary or reasonably required repairs costing less than One Thousand Five Hundred Dollars
($1,500.00) to the R.V. Site.
(b) Within thirty (30) days after the Commencement
Date, Agent shall submit to Owner a proposed budget for the balance of the calendar year (the I1Budgettf) setting forth the reasonable costs to maintain the R.V. Site, the books and
records and other administrative costs relating thereto for the balance of the calendar year. In addition, within thirty
(30) days of the end of each calendar year, Agent shall submit
to Owner a proposed Budget for the ensuing calendar year. The
Budget shall set forth the anticipated annual maintenance and
administrative costs broken down by line item.
(c) Agent shall prepare and furnish to Owner a detailed statement of all receipts, expenses and disbursements relating to the R.V. Site for the preceding calendar year, and shall maintain books and records relating to the maintenance and operation of the R.V. Site for the three (3) prior years.
(d) To obtain all necessary releases, waivers, discharges and assurances necessary to keep the R.V. Site free
of any mechanics', laborers', materialmen's, suppliers or vendors' liens in connection with the maintenance and repair
of the R.V. Site.
(e) To oversee the use of the R.V. Site by homeowners
(!fHomeownersfl) of the residential project on the Land (the
"Carlsbad Project") authorized to use the R.V. Site and to
promulgate and enforce reasonable rules and regulations
regarding the use and care of the R.V. Site by the Homeowners.
The foregoing rules and regulations may include, without
limitation, a prohibition against any form of lodging at the
R.V. Site and the right to terminate any Homeowner's use of
the R.V. Site for material violations of the rules and regulations. The rules and regulations shall be substantially
in the form attached hereto as Exhibit ItB". In addition,
Agent has the right to amend from time to time the rules and
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regulations, with the prior written consent of Owner, such consent not to be unreasonably withheld.
Agent shall report to Owner in a timely manner any
conditions at, on or about the R.V. Site which, in the opinion
of Agent, requires the attention of Owner.
2.2 Duties of Owner. Owner and not Agent shall be responsible for paying all real property taxes and assessments levied against the R.V. Site, maintaining the insurance policies required in Section 3.1 below and for all other costs associated
with the ownership of the R.V. Site not otherwise specifically
repired to be performed by Agent and reimbursed hereunder.
2.3 Extraordinary Services. Except to the extent specifically provided herein as a part of Agent's duties, Agent
shall neither be authorized nor obligated to undertake work
exceeding that usual to normal management and such normal
management shall not include activities involving any repairs
costing in excess of One Thousand Five Hundred Dollars ($1,500.00) ,
construction, reconstruction, or rebuilding on the R.V. Site, or
performance of any other extraordinary services, unless Owner and Agent first agree to the performance of such services. Notwithstanding the foregoing, in the event of an emergency in which health, safety or welfare issues are concerned, Agent shall be authorized to exceed the One Thousand Five Hundred Dollars
($1,500.00) limitation set forth herein and incur all reasonable costs and expenses to respond to such emergency. Agent shall submit invoices or other reasonable evidence of payment for performance of such extraordinary services and Owner agrees to reimburse Agent within thirty (30) days after receipt of such invoices or other reasonable evidence. Agent shall notify Owner
immediately in the event of such an emergency.
(f)
2.4 Other Activities of Asent. Agent shall not be required
to spend its full time and attention in the management and
operation of the R.V. Site but shall devote to the R.V. Site such
portion of its time as may be reasonably necessary to discharge the duties of Agent set forth in this Agreement. Agent shall have the
right to engage in any other activity for its own benefit or
advantage. Nothing contained herein shall preclude, prevent or be a limitation upon Agent being engaged in other real estate ventures, whether acting for itself or for others, or as a partner in a partnership or a stockholder in a corporation or otherwise.
111. INSURANCE AND INDEMNITIES
3.1 Insurance Maintained bv Owner. Throughout construction
of the R.V. Site and thereafter during the Term, Owner shall
maintain, at Owner's expense, public liability insurance, in an amount not less than Two Million Dollars ($2,000,000.00), for the
R.V. Site, and shall name Agent as an additional insured thereon. Such policy shall provide that not less than thirty (30) days
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written notice shall be given to Agent prior to the cancellation of such policy. Upon request by Agent, Owner shall provide Agent with
a certificate of insurance evidencing the insurance coverage
required by this Agreement.
Insurance Maintained bv Asent. Agent shall maintain, at
Agent’s sole cost and expense, workers’ compensation insurance covering any employees of Agent in the statutory limits required by the State of California. Such policy shall provide that not less
than thirty (30) days written notice shall be given to Owner prior
to the cancellation of such policy. Upon request by Owner, Agent
shall provide Owner with a certificate of insurance evidencing the insurance coverage required by this Agreement.
3.3 Insurance Carried bv Third Persons. Unless otherwise
approved by Owner, Agent shall ensure that all persons who furnish
labor, services, equipment or materials to the R.V. Site during the
Term pursuant to any contract arranged by Agent carry, in full
force and effect throughout the term of the applicable contract,
(i) comprehensive liability insurance with a combined single limit in the amount of TWO MILLION DOLLARS ($2,000,000.00) written on a
per occurrence basis; and (ii) worker’s compensation insurance covering all employees of such person who may deliver goods or perform services at the R.V. Site in the statutory limits as required by California law. Agent must receive satisfactory evidence of such insurance prior to such contractor’s delivery of materials to or commencement of services on the R.V. Site.
3.4 Indemnity by Owner. Owner shall indemnify, defend and
hold Agent harmless from and against all claims, damages and costs,
(including but not limited to those arising out of any injury or death to any person or persons or damage to any property of any kind whatsoever and to whomsoever belonging, including Owner, and including attorneys’ fees), arising out of or in connection with (i) the ownership of the R.V. Site, (ii) any material breach of this Agreement by Owner, (iii) the grossly negligent acts or omissions, willful misconduct, fraudulent or criminal acts of Owner
or Owner’s agents (other than Agent, or Agent’s agents, employees
or contractors), employees and contractors; or (iv) the acts or omissions of Agent in acting under the scope of its authority
granted hereunder or pursuant to the direction of Owner; but
specifically excluding Agent’s gross negligence, wilful misconduct,
fraudulent or criminal acts.
3.5 Indemnity by Asent. Agent shall indemnify, defend and hold Owner harmless from and against all claims, damages and costs
(including but not limited to those arising out of any injury or death to any person or persons or damage to any property of any kind whatsoever and to whomsoever belonging, including Agent, and including attorneys‘ fees) arising out of or in connection with (i)
any material breach of this Agreement by Agent or (ii) the grossly
negligent acts or omissions, wilful misconduct, fraudulent or
criminal acts of Agent or Agent’s agents, employees and
3.2
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contractors; but specifically excluding Owner's gross negligence,
willful misconduct, fraudulent or criminal acts.
IV. REIMBURSEMENT OF AGENT'S MAINTENANCE AND REPAIR EXPENSES
Owner shall remit to Agent on the first day of every calendar
year of the term hereof the payment under the Budget and at the end
of each calendar year, there shall be an appropriate adjustment of
Owner's payments to Agent based upon the actual expenses incurred
during such calendar year. With respect to extraordinary services
performed by Agent pursuant to Section 2.3, Agent shall submit
invoices or other reasonable evidence of payment for performance of
such work and Owner agrees to reimburse Agent within thirty (30) days after receipt of such invoices or other reasonable ev'idence. Except as otherwise provided herein, no management or other fee shall be paid to Agent for performance of its duties hereunder, as
Agent acknowledges that as partial consideration for entering into
this Agreement, Owner has constructed a recreational facility
adjacent to the R.V. Site for the use and enjoyment by the
residents of the La Terraza Project. In the event Owner fails to pay either the annual budgeted amount or such sum for the performance of an extraordinary service within the time periods set forth herein, interest shall accrue from and after the due date at
a rate equal to the lesser of ten percent (10%) per annum, or the maximum rate allowed by law at the time the sum became due.
V . TERMINATION.
5.1 Default bv Owner. If Owner defaults in the performance of any of its obligations hereunder at any time during the term of
this Agreement, Agent shall provide written notice to Owner describing the default which Owner shall cure within twenty (20) days after service of such notice; provided, however, if the default is incapable of being cured within such period, Owner shall
not be in default provided Owner commences to cure the same during .such twenty (20) day period and thereafter diligently prosecutes the cure to completion within ninety (90) days after service of such notice. If Owner fails to cure such default within the time periods set forth herein, Agent, in addition to any other rights or
remedies it may have, shall have the right to (a) prohibit the
further use and enjoyment of the R.V. Site by Owner and its
invitees until such default is cured or (b) terminate this
Agreement by serving notice on Owner.
5.2 Default bv Agent. If Agent defaults in the performance of any of its obligations hereunder at any time during the terms of this Agreement, Owner shall provide written notice to Agent describing the default which Agent shall cure within twenty (20)
days after service of such notice; provided, however, if the
default is incapable of being cured within such period, Agent shall not be in default provided Agent commences to cure the same during such twenty (20) day period and thereafter diligently prosecutes
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the cure to completion within ninety (90) days after service of
such notice. If Agent fails to cure such default within the time
periods set forth herein, (i) Owner may, at its option, rectify or
cure such default and Agent shall reimburse Owner for all reasonable sums expended by Owner, to the extent such obligations
were to be paid by Agent and not reimbursed by Owner, or (ii) Owner
may initiate an action against Agent as provided in Section 5.6
below, but Owner shall not be entitled to terminate this Agreement
and Owner's remedy shall be limited to damages or equitable relief ,
including without limitation the right to seek specific performance or injunctive relief.
5.3 Voluntary Risht of Termination. Agent shall have the right to voluntarily terminate this Agreement upon sixty (60) days prior written notice to Owner.
5.4 Duties UDon Termination of Agreement. On the effective date of termination of this Agreement, Agent shall turn over to Owner all books and records relating to the R.V. Site (copies of which may be made and retained by Agent at Agent's cost and expense), and Agent shall cooperate with Owner in the transfer of management responsibilities to Owner or its designee. Owner and Agent agree that notwithstanding the termination of this Agreement, Owner's right to continue to use the access easement granted pursuant to the terms of the R.V. Agreement shall remain unhindered
so long as the Owner causes the R.V. Site to be maintained in a clean and sightly condition consistent with the La Terraza Project
and maintains rules and regulations for the use of the R.V. Site substantially in the form attached hereto as Exhibit IIA".
5.5 Riqhts - and Remedies Cumulative. The rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party.
5.6 Lesal Action. In addition to any other rights or remedies, either party may take legal action, in law or in equity,
to cure, correct or remedy any default, to recover damages for any
default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement.
VI. MISCELLANEOUS
6.1 Assiqnment. The experience, knowledge, capability and
reputation of Agent, its principals and employees were a substantial inducement for the Owner to enter into this Agreement.
For this reason, neither this Agreement nor any interest herein may be assigned or transferred, voluntarily or by operation of law, by Agent (excluding the assignment of this Agreement by Agent to the beneficiary of the first deed of trust on the La Terraza Project
FS2\267\@50324-0039\2155498.11 n05/03/96 -6-
0 0
[the "First Mortgagee"] ) without the prior written approval of
Owner. Owner agrees that upon the formation of a homeowners' association for the Carlsbad Project, the rights, obligations and
duties of Owner hereunder shall be assigned to and assumed by the
homeowners' association. In the event the First Mortgagee shall
have foreclosed upon or otherwise taken title to the La Terraza Project, this Agreement shall be deemed automatically assigned to
First Mortgagee, and First Mortgagee shall be bound by and shall
receive the benefit of the terms of this Agreement to the same extent as Agent.
6.2 Entire Aqreement. This Agreement, together with the
R.V. Agreement, the terms of which are incorporated herein, contain
the entire agreement between the parties hereto, and any agreement
hereafter made shall be ineffective to modify or terminate this
Agreement or constitute a waiver of any of the provisions hereof
unless such agreement is in writing and signed by the party against whom enforcement of the modification, termination or waiver is sought.
6.3 CaDtions. The captions in this Agreement are included for convenience only and are not intended to and shall not be deemed to modify or explain any of the terms of this Agreement.
6.4 Aqreement Bindins on Successors. Subject to Section
6.1 above, the covenants and agreements herein contained shall bind and inure to the benefit of Owner and Agent, and each of their
heirs, personal representatives, successors and assigns.
6.5 Attorneys' Fees. In the event that legal proceedings are brought to interpret or to enforce the terms of this Agreement, the prevailing party shall be entitled to recover from the other party all costs and expenses of such proceedings, including
reasonable attorneys' fees, whether or not such proceedings are
prosecuted to judgment.
Governins Law. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of California.
6.7 Relationship of the Parties. The relationship of the parties hereto shall be that of principal and agent, it being expressly understood and agreed that Agent does not in any way nor for any purpose become a partner of Owner in the conduct of the operation of the R.V. Site, or otherwise, or a joint venturer with Owner.
6.8 Neqotiated Transaction., The provisions or this Agreement were negotiated by all of the parties hereto and said Agreement shall be deemed to have been drafted by all of the parties hereto.
6.9 Notices. Notices given under this Agreement shall be in writing and shall either be served personally, delivered by first class registered or certified, return receipt requested U.S.
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6.6
/
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0 a
.# mail , postage prepaid, or delivered by reputable overnight delivery service. Notices may also effectively be given by transmittal over electronic transmitting devices such as Telex, facsimile or telecopy machine, if the party to whom the notice is being sent has such a device in its office, provided a complete copy of any notice so transmitted shall also be mailed in the same manner as required for a mailed notice. Notices shall be deemed received at the earliest of (i) actual receipt; (ii) three (3) days following deposit in U.S. mail, postage prepaid; or (iii) twenty-four (24) hours after timely deposit with a reputable overnight delivery
service. Notices shall be directed to the parties at the addresses show below, provided that a party may change its address for notice by giving written notice to all other Partners in accordance with this Section.
If to Owner: Carlsbad I c/o Mr. Steve Nishimura 2255 India Street Los Angeles, CA 90039 Telephone: (213) 660-8563 Facsimile: (213) 665-4011
23 Corporate Plaza, Suite 139 Newport Beach, CA 92660 Attn: Dwight W. Spiers Telephone: (714) 644-5719 Facsimile: (714) 644-5714
611 Anton Boulevard, Suite 1400 Costa Mesa, CA 92626 Attn: Adam N. Volkert, Esq. Telephone: (714) 641-5100 Facsimile: (714) 546-9035
If to Agent: Bridge Housing Corporation One Hawthorne Street, Suite 400 San Francisco, CA 94105 Attn: Lydia Tan Telephone: (415) 989-1111 Facsimile: (415) 495-4898
Goldfarb & Lipman One Montgomery Street, 23rd Floor San Francisco, CA 94104 Attn: Thomas H. Webber, Esq. Telephone: (415) 788-6336 Facsimile: (415) 788-0999
With copy to: Great Western Bank 9451 Corbin Avenue Northridge, CA 91324 Attn: Major Loan Services Loan No. 1-424815-9 Telephone: Facsimile:
With copy to: Spiers Enterprises
With copy to: Rutan & Tucker
With copy to:
C
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6.10 Exhibits. Exhibits 'IA" and rtBll attached hereto is
IN WITNESS WHEREOF, this Property Management Agreement has
CARLSBAD I, a California general
partner ' p
BY
incorporated herein by this reference.
been executed as of the day and year first above written.
--
&L
Its: 6iWrnAL fP&UkX
By :
Its:
It Owner II
LA TERRAZA ASSOCIATES, a California
limited partnership
By: BRIDGE HOUSING CORPORATION, a California non profit public
benefit corporation, managing neral partner
By : i Its: ?<es,-d d-
"Agent II
FSZ\Z67\060324-0039\2 155498.1 1 n05103/96 -9-
*.
--
4v
. ..
D[rmIT "A " __-.-
0 EXHIBIT "Bn
RULES AND REGULATIONS FOR R.V. SITE
e
L.
1. Access hours to the premises are from 9:00 a.m. to 6:OO
p.m. daily. Access at any other time is strictly
prohibited unless prior arrangements with the property manager are made. All vehicles must be parked only in the permitted spaces and vehicles are subject to tow at the owner's expense for parking anywhere other than in
the properly designated space.
2. The speed limit on the premises and all entryways and
driveways is 5 miles per hour.
3. As children or others may be using the recreation area
immediately adjacent to the premises , extra caution must be exercised when entering and exiting the premises.
4. Do not block driveways at any time.
5. You are responsible for any loss, damage or injury and
for the actions of you and your guests while on the
premises.
Do not dispose of any trash anywhere on the premises.
There is no lodging on the premises at any time and the premises may be used for no purpose other then for the storage of campers, trailers, motor homes, boats, and other recreational vehicles.
8, As the premises are located adjacent to a residential
6.
7.
project, noise at all times must be kept to a minimum.
9. Additional rules and regulations may be promulgated by
the property manager or homeowners' association as may be
necessary for the safety, care and cleanliness of the
premises and for the preservation of good order therein.
Each occupant agrees to abide by all such rules and regulations herein stated and any additional rules and regulations which may be hereafter adopted.
condition and must not leak oil or other fluids. 10. All vehicles parked at the premises must be in running
11. All vehicles must be registered and insured.
12. Any material violation of the foregoing rules and regulations will result in the towing of your vehicle at your expense and/or the termination of your use of the
premises.
EXHIBIT "B" TO PROPERTY MANAGEMENT AGREEMENT 4
FS2\267\060324-0039\2168486. I a05/03/96
. CALIFORNIA ALL-PURPO e ACKNOWLEDGMENT e
c
personally appeared 4 personally known to me - OR - 0 proved to me on the basis of satisfactory evidence
to be the persono whose name($) is/*
subscribed to the within instrument and ac-
knowledged to me that kefsheHkep( executed
the same in k/her/tkeic authorized
capacity(ps), and that by -kfs/herNke+r
signature(@ on the instrument the personm,
or the entity upon behalf of which the
persono acted, executed the instrument.
WITNESS my hand and official seal.
NAME(S) OF SIGNER(S)
Though the data below IS not required by law, it may prove valuable to persons relying on the document and could preven
fraudulent reattachment of this form
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
TITLE(S)
NUMBER OF PAGES
CA'f\dC& I-
SIGNER(S) OTHER THAN NAMED ABOVE
01 993 NATIONAL NOTARY ASSOCIATION 8236 Rernrnet Ave , P 0 Box 71 84 Canoga Park, CA 91 30'