HomeMy WebLinkAboutAviara Land Associates; 1989-06-01;-
PARE AGREEMENT
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THIS PARK AGREEMENT (the "Agreement") IS ENTERED INTO this First day of June , 1989, between the CITY OF CARLSBAD, a municipal corporation of the State of California ("Citytl), and AVIARA LAND ASSOCIATES LIMITED PARTNERSHIP, a Delaware Limited Partnership, (tlOwnerW), which parties agree as follows:
RECITALS
A. On July 1, 1986, the City Council adopted, as Ordinance 9810, a Growth Management Program for the City of Carlsbad. (Chapter 21.40 of the Carlsbad Municipal Code the WProgramW). The purpose of the Program is to insure that an adequate level of public facilities and services will be provided prior to or concurrently with development. The Program is based on a three- tiered planning approach. First, a Citywide Facilities and Improvement Plan identifies buildout public facility needs ("Planll) . Second, a Local Facilities Management Plan for each of the City's twenty-five management zones shows how the development of these zones will comply with the plan ("Zone Plan"). Third, individual project approvals must include the public facilities required by the Plan and the Zone Plan.
B. On September 23, 1986, the City Council adopted, Resolution No. 8797, approving the Plan. The City Council also adopted Resolution No. 8796 which established the specific public facility performance standards to be used in the implementation of the Program.
C. On December 22, 1987, City Council adopted Resolution No. 9322 ‘ approving the Local Facilities Management Plan for Zone 19 ("Zone 19") and Ordinance No. 9839 approving MP 177 for a comprehensive Master Planned Community centered around a hotel, golf course and related uses on 1,402 acres of property generally located north of La Costa Avenue between I-5 and El Camino Real ("Aviara") .
D. Zone 19 identified certain public facilities such as parks which were below the adopted performance standard and could not accommodate any new development. The Program requires that parks conforming to the performance standard be guaranteed before development may occur. Aviara as well as other projects in Zone 19 cannot go forward until park facilities are brought into conformance with the standard. City and Owner have agreed to work together to meet the zone plan standards.
E. Owner will dedicate 3.2 acres of land on behalf of other property owners in Zone 19 (*'Growth Management Park") and will advance the financing for the construction of 15 acres of park to bring Aviara into compliance with the Program and Zone 19 and to give Owner the ability to build (so long as all public facility
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performance standards are met) at an earlier time than otherwise possible under the City's financing program.
F. The City and Owner also intend that this Agreement will satisfy Condition No. 31 of MP-177 relating to park land dedication by the dedication of 21.05 acres of land (**Master Plan Park").
G. The dedication by Owner of the Master Plan Park is based upon an estimated Land Use Density Schedule approved by City and set forth on Page 20 of MP 177 and on the dedication requirement of Chapter 20.44 of the Carlsbad Municipal Code (**Chapter 20.44") as they would apply to subdivisions within Aviara. Chapter 20.44 requires the dedication of land or the payment of fees in lieu thereof for park and recreational purposes as a condition of approval of the subdivision of land. Section 20.44.110 provides an alternate procedure for satisfaction of such obligations for planned communities by the identification of park land on a master plan and its dedication as a part of the City's community planning process, rather than as a condition of any particular subdivision. City and Owner recognize that the development of Aviara will take place over a number of years and intend to arrange for the dedication of the Master Plan Park in advance of actual need in order to ensure that the Aviara community will receive the benefits of a coordinated park program and that the park will be constructed by City so it can be available concurrent with need. Master Plan 177 invokes this alternate procedure, and City and Owner intend to implement it in this Agreement. In order to accomplish these purposes, Owner will make the dedication in advance of the requirements of any individual subdivision. The amount of land so dedicated will be maintained on account by the City to be drawn upon in satisfaction of the park obligations of subsequent subdivisions within Aviara.
NOW, THEREFORE, incorporating the recitals of facts set forth above and in consideration of the mutual covenants herein contained, the parties agree as follows:
1. Asreement to Dedicate. Owner agrees to dedicate to the City, for public park purposes, 24.25 acres of real property more specifically described in Exhibit **All attached hereto and made a part hereof (the **park land**), together with all necessary construction and access easements for the park land as identified in Exhibit lrBs attached hereto and made a part hereof (the **construction access easements"). The dedication of the park land and construction access easements shall occur upon the recordation of the first final map of property owned by Owner in Zone 19. Such property is identified in Exhibit **C** attached hereto and made a part hereof (the *@Property**). Upon notification by City, Owner will also construct an **all weather** graded dirt road to provide access to the park land over the construction access easement. When City advertises for bids to construct the park, Owner will dedicate an easement for public access over and improve to City
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standards a two lane paved road to correspond with the opening of the park as determined by the City Engineer for public access from the park land to a City street (the "public access easement"). Upon Owner's dedication of the public access easement, City will quitclaim to Owner the construction access easement or any portion thereof which is not included within the public access easement. Dedications shall be in a form acceptable to the City Attorney, free of all liens and encumbrances and be delivered with a policy of title insurance at no cost to City.
2. Advance Fundina of Park Imnrovements. Owner agrees to advance to City the sum of One Million Seven Hundred Twenty-Five Thousand Dollars ($1,725,000.00) for the construction of improvements upon 15 acres of the park land by delivering to City a letter of credit in that amount (the "Letter of Credit**). The Letter of Credit in a form acceptable to the City Attorney shall be issued by a financial institution acceptable to City's Finance Director and shall be delivered to City prior to the City Council's approval of this agreement. The obligations under the letter of credit shall be effective upon the City Council's approval of the final map for CT 85-35.
City shall provide Owner with a funding schedule for the construction of park improvements on the park land not later than 90 days prior to the date when City will require funds. Owner shall provide cash to City as required by the funding schedule on the date due. If Owner fails to provide funds as required by said schedule, then City has the right to enforce the obligation against the Letter of Credit. If construction funds are paid out of the Letter of Credit, City shall concurrently give such notices as necessary in order to reduce the Letter of Credit by the amount paid. City agrees not to make any call for funds prior to January 1, 1991.
3. Construction of Park Imnrovements. The City agrees to use its best efforts to construct the park improvements in accordance with the Program, the Plan and Zone 19. In the event Owner advances funds in connection with such construction, City agrees that the letter of credit may be reduced by an amount equivalent to the funds so advanced, and City shall execute any further documents necessary to so reduce the letter of credit.
4. Citv's Resavment of Advance Fundinq. City agrees to reimburse Owner for the advance funding in the amount of $1,725,000. The City shall begin repaying Owner in the amount of $175,250 per year commencing on July 1, 1998 and continuing thereafter in equal installments on July 1 of each year through and including July 1, 2007. No interest shall be due or paid on the City's obligation to reimburse Owner. City will make these payments from public facilities fees collected from developments in the City beginning July 1, 1997. The City's general fund is not obligated for these payments. If the amount of such fees collected
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is not enough to make the payments then the July 1, 2007 date will be extended to complete owner's reimbursement. The City in budgeting Public Facility Fee funds will first cover any long term debt obligations, second other reimbursement agreements outstanding on the date of this agreement and then owners' reimbursement.
5. Park Dedication Credits. Chapter 20.44 provides a formula to calculate the amount of land to be dedicated by a subdivider for park purposes. The existing standard for computing said formula is based on 3.0 acres of land for each projected one thousand (1,000) persons residing in the subdivision. This standard may be adjusted by the City in accordance with the normal procedures for the amendment of the Municipal Code.
The dedication of the Master Plan Park land by Owner, pursuant to this agreement, shall first be credited against the requirement for the subdivision which is the occasion of such dedication in satisfaction of that subdivision's requirement under Chapter 20.44 as it exists at the time of final map approval. The amount of land in excess of said requirement shall constitute a credit in favor of Owner to be held on account by City in reserve to be drawn upon in satisfaction of the park dedication obligation of subsequent subdivisions of the property as hereinafter provided. Owner with the approval of City, may use any available credits to satisfy an equal amount of park dedication requirements, as requires by Chapter 20.44 for other residential subdivisions subsequently approved in Aviara. Said credits shall be on an acre for acre basis, the parties having agreed that each acre in Aviara is equal in value for such purposes.
If the City Council determines that dedication of pubic park land in addition to the site identified on Master Plan MP 177 is necessary, the City Council may, in accordance with Chapter 20.44 require such dedication or, in lieu thereof, require park fees to be paid. If sufficient credit exists in favor of Owner to satisfy the obligation of a subdivision, the City may elect to satisfy it by a deduction from the available credit. In the event there is
no, or insufficient credit available to satisfy the obligation or in the event City determines to reserve such credit for future subdivisions, as a condition of the approval of any tentative map and prior to the approval of the final map, Owner shall satisfy the requirements of Chapter 20.44 for that subdivision by making the required dedication or paying the required fees in lieu thereof as the City Council may determine.
In the event the dedication of land pursuant to this agreement is insufficient to satisfy the requirements of Chapter 20.44 for a future subdivision within Aviara, the City shall require additional dedication or payment of fees to satisfy this condition. If Aviara builds out at a lower density than estimated, the Master Plan Park land dedicated pursuant to this agreement shall remain with the City at no cost.
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Any subdivider within Aviara wanting a credit shall be required to obtain a letter from Owner and present it to City, authorizing the use of the credit equal to the park land dedication or fee requirements of the subdivider pursuant to Chapter 20.44 at the time the final map is being processed. In no case shall City approve a final map within Aviara unless this has occurred and sufficient park land is available to meet the subdividers requirements or the subdivider otherwise satisfies the requirements of Chapter 20.44. City shall be entitled to rely on such a letter and Owner shall defend, indemnify and hold City harmless in any dispute with a subdivider concerning this agreement.
6. Park Obligation Statement. City shall maintain a Park Credit Accounting Ledger which is attached hereto as Exhibit **D*l and it shall be completed and presented to the City Council prior to final map approval of any subdivisions within Aviara in order to provide an accounting of subdivision park obligations, credits, and remaining park acreage. Concurrently with the processing of a final map for a residential subdivision in Aviara, City shall prepare and make available to Owner a statement regarding the parks obligation for that subdivision. The statement shall include: (1) the amount of land required as determined by City in accordance with Chapter 20.44 as it exists at that time; (2) the amount of credit, if any, already on account: (3) the balance due or credit remaining, as the case may be, on account for future subdivisions.
7. Lack of Development. If development within Aviara does not go forward, or approvals for development are revoked, or this agreement otherwise is terminated before buildout of Aviara, title to any land dedicated shall remain in City: provided, however, that City shall not use the property for any purpose other than those permitted in MP 177 or any amendments the City Council through public hearing process may make thereto. The remaining balance of any credits not utilized shall remain on account and shall be available to satisfy the parks requirements, which may apply to any future development of the property within Aviara.
8. Permits and Aoorovals. The City shall obtain, at its sole cost and expense, any necessary permits and approvals pertaining to the construction and improvements upon the park land or associated easements, including without limitation any necessary permits from the California Coastal Commission.
9. Reoavment for Growth Manaaement Park. City agrees to reimburse Owner in the amount of three hundred thirty two thousand five hundred dollars ($332,500) for Owner's dedication of the growth management park. No interest is due or will be paid on City's reimbursement obligation. City will satisfy its obligation by repaying Owner each year commencing on July 1, 1990, the park- in-lieu fees paid by property owners subdividing land outside Aviara within Zone 19 during that year until owner has received a
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total of $332,500. Any fees collected by City in excess of that amount will be retained by City. At build out of Zone 19 if Owner has received less than $332,500 City shall repay Owner up to that amount when the City Council in its sole discretion determines that funds are available in City's capital improvement budget for that purpose.
10. Security Interest. City hereby acknowledges that Owner has assigned all its rights, title and interest in and to this Agreement to First Interstate Bank of California, a California corporation (**Bank**) pursuant to that certain Security Agreement dated December 20, 1988 (*tAssignment**) executed by Owner in favor of Bank. The Assignment was executed in connection with that certain loan from Bank to Owner in the amount of One Hundred Twenty-Five Million Dollars (125,000,000.00) secured by a Deed of Trust recorded in the Office of the County Recorder of San Diego County on December 20, 1988 as Instrument No. 88-661636. If Owner defaults under any of the documents executed by Owner in connection with the Loan, and if Bank forecloses upon the property secured by the above-referenced Deed of Trust, then Bank shall be entitled to all of Owner's rights and benefits under this Agreement provided that Bank is performing all Owner's obligations and duties hereunder. City shall be entitled to rely on written notice from bank that bank is entitled to exercise Owner's rights under this agreement. Owner shall indemnify and hold City harmless from any actions taken by City in response to such notice.
11. Nonliabilitv and Indemnity. Following Owner's dedication of the park land and the easements to the City, Owner shall not be liable for injury to any persons or damage to any property occurring on the park land or the easement, except for injury resulting from the negligence of Owner. City shall indemnify, defend and hold harmless Owner from and against any and all claims arising from or relating to any use of the park land or the easement by any person or party, including without limitation the City, its agents, employees or independent contractors.
12. Entire Aareement. This Agreement shall constitute the entire agreement between the parties with respect to the subject matter hereof, superseding all negotiations, prior discussions, preliminary agreements or understandings, written or oral.
13. Successors and Assisns. This Agreement shall inure to the benefit of, and shall be binding upon, the assigns, successors in interest, personal representatives, heirs and legatees of the parties hereto. Owner shall not assign its rights under this agreement without the prior written approval by City which shall not be unreasonably withheld.
14. Pavments to Owner - Notice. Any payments by the City to Owner hereunder shall be made payable to Aviara Land
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Associates Limited Partnership and shall be forwarded to the following address, or to such other address as Owner specifies in writing to the City Manager: c/o Hillman Properties West, Inc., 2011 Palomar Airport Road, Suite 206, Carlsbad, California, 92009, Attention: Mr. D. L. Clemens. The Owner shall notify the City in writing each year prior to July 1 identifying to whom and where annual payments shall be made and the name of the person authorized to approve use of any credits on behalf of Owner. Any payments due to the Owner from the City shall not be made or credits given unless such notification has been received.
15. Effective Date. This Agreement shall be effective upon its approval by the City Council and executed by the Mayor of City.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written.
AVIARA LAND ASSOCIATES LIMITED PARTNERSHIP, a Delaware Limited Partnership
. Secty .
Vice Pres./Asst. Secty.
(Appropriate notarial acknowledgment must be attached).
CITY OF CARLSBAD, a municipal corporation of the State of California.4
STATE! OF CALIFORNIA
COUNTY OF San Diego
I ; ss.
f
On June 21. 1989 before me, the undersigned, a Notary Public in and for said
State, personally appeared D.L. Clemens, personally known to me or proved to me on
the basis of satisfactory evidence to be the person who executed the within instrument
as the Vice President and Ted L. Hoover personally known to me or proved to me on
the basis of satisfactory evidence to be the person who executed the within instrument as the Vice President/Asst. Sectv. of Aviara Land Company, a Delaware corporation, the corporation that executed the within instrument on behalf of Aviara Land Associates
Limited Partnership, a Delaware Limited Partnership, the partnership that executed the
within instrument, and acknowledged to me that such corporation executed the same as such partner and that such partnership executed the same.
WITNESS my hand and official seal.
(Seal)
/ 6 d&&zi~ / ,’ ’ .
STATE OF CALIFORNIA
COUNTY OF San Diego
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; ss:
I
On June 21. 1989 before me, the undersigned, a Notary Public in and for said
State, personally appeared D.L. Clemens, personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument
as the Vice President, and Ted L. Hoover, personally known to me or proved to me on
the basis of satisfactory evidence to be the person who executed the within instrument as the Vice President/Asst. Sectv. of Republic Development Company, a California corporation, the corporation that executed the within instrument on behalf of Aviara Land Associated Limited Partnership, a Delaware Limited Partnership, the partnership
that executed the within instrument, and acknowledged to me that such corporation
executed the same as such partner and that such partnership executed the same.
WITNESS my hand and official seal.
(Seal)
EXHIBIT “A”
PARCEL “A”
(PARK SITE)
THAT PORTION THE EAST HALF OF THE SOUTHEAST QUARTER OF SECTION
22, ALL IN TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNARDINO
MERIDIAN, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT THEREOF AS SHOWN ON
RECORD OF SURVEY NO. 10774, FILED IN THE OFFICE OF THE COUNTY
RECORDER OCTOBER 30, 1986 AS FILE NO. 86-494180 OF OFFICIAL
RECORDS, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHEAST CORNER OF SAID SECTION 22; THENCE
ALONG THE EAST LINE OF SAID SECTION 22 NORTH OOO33’17” EAST,
1757.20 FEET TO THE TRUE POINT OF BEGINNING; THENCE LEAVING SAID
EAST LINE SOUTH 89O46’56” WEST, 615.45 FEET TO THE BEGINNING OF A
NON-TANGENT 50.00 FOOT RADIUS CURVE CONCAVE TO THE SOUTHEAST,
A RADIAL LINE TO SAID POINT BEARS NORTH 83O58’22” EAST; THENCE
NORTHWESTERLY, WESTERLY AND SOUTHERLY ALONG THE ARC OF SAID
CURVE THROUGH A CENTRAL ANGLE OF 201 OO4’39” A DISTANCE OF
175.47 FEET; THENCE SOUTH 27O49’22” EAST, 46.87 FEET TO THE
BEGINNING OF A TANGENT 90.00 FOOT RADIUS CURVE CONCAVE TO THE
WEST; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A
CENTRAL ANGLE OF 17O14’25” A DISTANCE OF 27.08 FEET, TO THE
BEGINNING OF A COMPOUND 470.00 FOOT RADIUS CURVE CONCAVE TO
THE WEST, A RADIAL LINE TO SAID POINT BEARS NORTH 79O25’03” EAST;
THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A
CENTRAL ANGLE OF 25O59’03” A DISTANCE OF 213.15 FEET; THENCE
SOUTH 15O24’06’WEST, 65.21 FEET TO THE BEGINNING OF A TANGENT
25.00 FOOT RADIUS CURVE CONCAVE TO THE NORTHWEST; THENCE
SOUTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL
ANGLE OF 89O37’40” A DISTANCE OF 39.11 FEET, TO THE BEGINNING OF
A REVERSE 1801 .OO FOOT RADIUS CURVE CONCAVE TO THE SOUTH, A
RADIAL LINE TO SAID POINT BEARS NORTH 15OO1’46’ EAST; THENCE
WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE
OF 11 O56’46” A DISTANCE OF 375.51 FEET; THENCE NORTH 86O55’00’
WEST, 243.11 FEET TO A POINT ON THE WESTERLY LINE OF THE EAST
HALF OF THE SOUTHEAST QUARTER OF SAID SECTION 22; THENCE ALONG
SAID WESTERLY LINE NORTH OO”47’20” WEST, 95.35 FEET; THENCE
LEAVING SAID WESTERLY LINE NORTH 89O 18’06’ EAST, 17.66 FEET TO A
POINT ON THE WESTERLY LINE OF THAT LAND CONVEYED TO THE CITY OF
CARLSBAD (PARK SITE) AS DESCRIBED IN DEED RECORDED JUNE 29, 1989
AS FILE NO. 89-345769 OF OFFICIAL RECORDS; THENCE ALONG THE
WESTERLY AND NORTHERLY LINE OF SAID LAND THE FOLLOWING: NORTH
19O52’40 EAST, 92.87 FEET; THENCE NORTH 45O 10’21” WEST, 54.44 FEET;
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**approved 613197
Res. 897-478
THENCE NORTH 13O28’04” EAST, 60.92 FEET; THENCE NORTH OO”22’40”
WEST, 320.06 FEET; THENCE NORTH 12O18’08” WEST, 92.73 FEET; THENCE
NORTH 5OO59’09” EAST, 201.72 FEET; THENCE NORTH 14OO3’08” WEST,
251.49 FEET; THENCE SOUTH 89O28’38” EAST, 322.56 FEET; THENCE
SOUTH OO”43’OO” EAST, 121.67 FEET; THENCE SOUTH 49O41’33” WEST,
50.16 FEET; THENCE SOUTH loo 13’08” WEST, 45.76 FEET; THENCE SOUTH
34O30’47” EAST, 34.62 FEET; THENCE SOUTH 62O22’17” EAST, 25.68
FEET; THENCE SOUTH 19O35’24” WEST, 109.22 FEET; THENCE NORTH
75O32’32” EAST, 110.78 FEET; THENCE NORTH 35°50’10” EAST, 100.96
FEET; THENCE SOUTH 82O53’54” EAST, 31.50 FEET; THENCE NORTH
56OO1’44” EAST, 225.45 FEET; THENCE NORTH 43O54’35” EAST, 93.91
FEET; THENCE NORTH 73O18’15” EAST, 133.35 FEET THENCE SOUTH
89O28’38” EAST, 136.29 FEET; THENCE SOUTH 52O45’54” EAST, 325.72
FEET TO A POINT ON THE EAST LINE OF SAID SECTION 22; THENCE ALONG
SAID EAST LINE SOUTH OOO33’17” WEST, 539.21 FEET TO THE TRUE POINT
OF BEGINNING.
THE HEREIN ABOVE DESCRIBED PARCEL OF LAND CONTAINS 24.25 ACRES
MORE OR LESS.
Prepared by:
P&D/CTE ENGINEERS
5x847
DALE A. DAVIS *L.S. 5894
LIC. EXPIRES 12-3 l-00
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** approved 613197
PLAT 7iU IL-USTRARE’ LEGAL Di-XR/F?7ON
FOR PARK SUE
PARCEL “AM ~:;~KA%i 21%080-02
L28
R OF S 10774 T72S R4W SBM
LINE DATA TABLE UNE DATA TAME
NO. BEARING DISTANCE
L21 Nl4V3’08”W 251.49’ L22 N50 59 ‘09 “E 201.72’ L.23 N7278’08”W 92.73’ L24 NOO22’4O”W 320.06’ L2.5 N1328fO4 “E 60.92’ L26 N45Y0’27”W 54.44: L27 N79’52’40”E y$f;, LZ8 N8978’06”E .
NO. BEARING DISTANCE
N27’49 ‘22-W 46 87’ f : N1524’06”E 65.21’ L3 N86’55’OO”W 243: II’ NOO’47’20”W 95 35’ t54 NOO’33’17”E 194 i2’ N52’45’54”W 323 72’ t: N89’28’38”W 136’29’ L8 N7378’15”E 133.>5’
:?I0 177 112 113 114
N43’54’35”E 93.91’ N56V1’44 “E 225.45’ N82’53’54”W 31.50’ N35’50’?0-E 100.96’
B m :
0
N75’32’32”E 110.78’ N1935’24”E 709.22’ 115 Ll6 !I7
N62 22’17”W N34 ‘30 ‘4 7”W 25 68;
NIOY3’08”E 4<4>6.,<
N49 ‘41’33”E 5b. 16’ NOO’43’oO”W 121.67’ !I8 ‘19 ‘20 N89 Z’8’38”W 3.2256
P&9 CONSUL TAN725 5-zB-97
401 msr 2 l smr 9Nr 2sm SAN D/Eco. CsfffORNJA 92107 TtlE (619) 2.F4466 FAX 23+-m L.S 5894 12-31-00 **approved
REG. NO. EXP. DATE 613197
0' rn' 600
a?AHfE SWLE r--3&2*
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EXZIBIT "B"
LEGAL DESCRIPTION
Those portions of Sections 22,26 and 27, Township 12 South, Range 4 West, San Bernardino Meridian, in the City of Carlsbad, County of San Diego, State of California, according to official plat thereof as shown on Record of Survey no. 10774, recorded October 30, 1986 as file no. 86-494180, being more particularly described as follows:
PARCEL1aAt* (Access and Public Utility Easement)
Being a strip of land 30.00 feet in width lying 15.00 feet on each side of the following described centerline:
Commencing at the southeast corner of said Section 22; thence along the easterly line of said section 22, North 00'33'25" East,1634.46 feet; thence leaving said easterly line, South 89'46'56" West,678.27 feet; thence South 44'18'06" West,124.45 feet: thence South 89'18'06" West, 67.26 feet to the TRUE POINT OF BEGINNING; thence South 03*50'09" West,891.86 feet to the beginning of tangent 300.00 foot radius curve concave Northeasterly; thence Southeasterly along the arc of said curve through a central angle of 42'53'52" a distance of 224.61 feet: thence South 39'03'43" East,523.58 feet to the beginning of a tangent 500.00 foot radius curve concave Northeasterly; thence Southeasterly along the arc of said curve through a central angle of 08'18'02" a distance of 72.44 feet; thence South 47'21'45" East,373.21 feet to the beginning of a tangent 300.00 foot radius curve concave Southwesterly; thence Southeasterly along the arc of said curve through a central angle of 46'39'23" a distance of 244.29 feet: thence South 00'42'22" East,748.70 feet to the beginning of a tangent 1000.00 foot radius curve concave Westerly; thence Southerly along the arc of said curve through a central angle of 08'59'57" a distance of 157.07 feet; thence South 08'17'35" West,122.59 feet to a point of terminus, said point also being hereinafter referred to as Point"A" .
The sidelines of said 30.00 foot wide strip of land to be shortened or extended so as to terminate in a line that bears South 89'18'06" West through the true point of beginning.
PARCEL"B" (Access and Public Utility Easement)
Beginning at the hereinabove described Point'lA"; thence South 81.42'25" East,15.00 feet; thence South 04'51'52" East,92.78 feet to the beginning of a non-tangent 670.00 foot radius curve concave Easterly, a radial line to said point bears North 89'27'22" West: thence Southerly along the arc of said curve through a central angle of 12'09'59" a distance of 142.27 feet; thence South 11.37'21" East,140.59 feet to the beginning of a tangent 1180.00 foot radius curve concave Westerly; thence Southerly along the arc of said curve through a central angle of 10*54'59" a distance of 224.82 feet: thence South 00*42'22" East,24.22 feet; thence South 89'17'38" West,30.00 feet to a point hereinafter referred to as Point"B"; thence continuing South 89'17'38" West, 15.00
PUD Technologies 401 West “A’ S&eel, Suite 2500 SenDie~~CA92lOl619Q32~68 ~u--d~coror*
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EXHIBIT "B"
LEGAL DESCRIPTION
feet; thence North 00'42'22" West,24.22 feet to the beginning of a tangent 1135.00 foot radius curve concave Westerly: thence Northerly along the arc of said curve through a central angle of 10'54'59" a distance of 216.25 feet; thence North 11'37'21" West,140.59 feet to the beginning of a tangent 715.00 foot radius curve concave Easterly; thence Northerly along the arc of said curve through a central angle of 19'54'56" a distance of 248.53 feet: thence radial to said curve South 81'42'25" East,15.00 feet to the Point of Beginning.
PARCEL"C" (Access and Public Utility Easement)
Being a strip of land 60.00 feet wide lying 30.00 feet on each side of the following described centerline:
Beginning at the hereinabove described Point"B"; thence South 00'42'22" East,179.77 feet to the beginning of a tangent 350.00 foot radius curve concave Northeasterly; thence Southeasterly along the arc of said curve through a central angle of 55'13'38" a distance of 337.36 feet; thence South 55'56'00" East,416.30 feet to the beginning of a tangent 400.00 foot radius curve concave Southwesterly; thence Southeasterly along the arc of said curve through a central angle of 09'46'00" a distance of 68.18 feet; thence South 46'10'00" East,114.83 feet to the point of terminus said point being on the Northerly Right-Of-Way of future Alga Road.
The sidelines of said 60.00 foot wide strip of land to be shortened or extended so as to terminate in the arc of a 1151.00 foot radius curve concave Southeasterly, a radial line to said point of terminus bears North 46'10'00" West.
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P&D 7bchnofoglea 401 West “A” Street, Suite 2500 sm oiegla cA92lol0l9a24466
Mn*lrrrdWO
- EXHIBIT uB” -
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i \q -,‘r r-30’
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9’
RECORI
I PG. 261
7OO’S.D G.&E EASEMENT g’s W6/1954 IN BK 5207j 0 _
SCALE: i”: 500’
DELTA RADiU5 LEtVGT’
‘\ CI 42’53’52” 3oot ZZ4.Gl t 600’ 72.44’ ‘39’22Y 500’ 244.29’ &I c4 uo’59’57* 1000’ / 57.07’
c4 .I! -9 POINT “A *I
PLA7- 7-O ILLus7R44TE
SEE SMEE7- 2 LEGAL DESCRIPT.ION
PARK SITE ACCLSS AND
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P&D lcrchnologles 401 West ‘A” Street, Suite 2500 San Diego, CA 92101 619~2324466
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PARCEL “A”
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RESOLUTION NO. 97-478
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING THE FINAL MAP FOR CARLSBAD TRACT NO. 92-03(A) AVIARA PHASE III - UNIT 1
WHEREAS, Aviara Land Associates, L.P., has submitted a Final Map known as
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6 Carlsbad Tract No. 92-03(A) to the City of Carlsbad for approval; and
7 WHEREAS, the Tentative Map of Carlsbad Tract No. 92-03(A) with conditions, was
a approved by City Council on August 13, 1996, pursuant to Resolution Number 96-273; and
9 WHEREAS, the City Engineer has determined that said map substantially conforms to
10 said conditionally approved tentative map; and
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WHEREAS, the conditions of approval for said Final Map have been completed or
secured; and
WHEREAS, the developer has offered public street and public easements for dedication
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to the City of Carlsbad; and
interest to approve said Final Map; and
WHEREAS, the developer is requesting Council approval of an interim agreement
WHEREAS, the Final Map conforms to the City of Carlsbad General Plan and all
requirements of City Codes and Standards; and
WHEREAS, the City Council of the City of Carlsbad determined it to be in the public
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entitled “Petition, Waiver and Consent to Creation of a Facility Impact Fee Program and
Agreement to Pay Fair Share Cost of Aviara Parkway and Poinsettia Lane” whereby developer
agrees to construct a major segment of Poinsettia Lane and to waive their right to protest the ~
24 establishment of a facility impact fee for the construction of Aviara Parkway and Poinsettia
25 Lane; and
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WHEREAS, the developer is required to exchange a portion of the land within the
subdivision with an equal portion of the land of Aviara Park, and
Exhibit 3 f
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WHEREAS, in order to effect the exchange of lands, grant deeds need to be executed;
and
WHEREAS, the developer has executed the deed granting to the City the land to be
added to the park site; and
WHEREAS, the exchange of land changes the original legal description of the Park
Agreement between the City of Carlsbad and Aviara Land Associates Limited Partnership and
the plat illustrating the legal description for the park site;
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad,
California, as follows:
1. That the above recitations are true and correct.
2. That said Final Map known as Carlsbad Tract No. 92-03(A), which is on file with the
City Engineer and is incorporated herein by reference, is accepted.
3. That the City accepts the dedications shown on the Final Map.
4. That the City Clerk is authorized to sign the Certificate of Acceptance on the Final
Map. f
5. That the City Clerk is authorized to cause the original Final Map to be recorded in
the Office of the County Recorder of San Diego County, State of California.
6. That the City Clerk is authorized to release the map to First American Title Insurance
Company for recording in the Office of the County Recorder.
7. That the Mayor is directed to sign the agreement entitled “Petition, Waiver and
Consent to Creation of a Facility Fee Program and Agreement to Pay Fair Share Cost of Aviara /
Parkway and Poinsettia Lane.”
8. That the Mayor is directed to sign the Grant Deed granting Aviara Land Associates
Limited Partnership, a Delaware Limited Partnership, a portion of the real property within the
Aviara Park site.
9. The City Clerk is authorized to replace Exhibit “A” of the Parks Agreement between
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the City of Car&bad and Aviara Land Associates Limited Partnership and to replace the plat
illustrating the legal description for the park site.
PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City
Council held on the day of 3rd June , 1997 by the following vote, to wit:
AYES: Council Members Lewis, Finnila, Nygaard, Kulchin, and Hall
NOES: None
ABSENT: None
ATTEST:
ALETHA L. RAUTENKRANZ, City Clerk
(SEAL)
July 18, 1989
TO: City Clerk
FROM: City Attorney
AVIARA - $1,725,000 LETTER OF CREDIT ISSUED BY FIRST INTERSTATE BANK ON BEHALF OF AVIARA LAND ASSOCIATES LTD.
Thank you for sending me the original above referenced letter of credit for my review. It is approved as to form and I respectfully request that you keep the original on file in your office until it is called.
Should you have any questions regarding the above, please do not hesitate to contact me.
RONALD R. BALL Assistant City Attorney
attachment
c: Assistant to City Manager (with attachment)
1
CAT. NO. FFOOO38 ES-285 (9-83)
Address: 925 "B" ST., SAN DIEGO, CA 92101 -re@gg& OF &sjg &&j&l
THE CITY OF CARLSBAD DATE Julv 10. 1989 1200 ELM STREET ESCROW No. K1177402
CARLSBAD, CA 92008 LOAN No.
ATTN: LEE RAUTENKRANTZ REFERENCE
In connection with the above transaction, we enclose:
0 Policy of Title Insurance
0 Escrow closing statement
0 Our Check No. in the amount of $
0 Deed from
0 Original-Copy Note for $ in favor of made by
0 Fire Policy No. issued by Amount $ Expiration date.
0 Copy of recorded document which you requested
0 Tax Statement
0 Covenants, Conditions and Restrictions
a Letter of Credit in the amount of $1,750,000.00
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Any recorded documents to which you are entitled will be forwarded.
Thank you for giving us the opportunity of serving you.
TICOR TITLE INSURANCE COMPANY OF CALIFORNIA
‘irst Interstate Bank of California International Division Box 64191 Los Angeles, California 90064
Cable Address: FICALBANK Telex No. 674421
AMEt!CfMEtJT NU!lElE!? : Oi 33 f;rUR IRREVOCABLE .S’l’AMX’f
LETTER OF CREOIT IGiJMESER: 536QQ553
APFLXtXNT: iJEMEFIC1AR’C : .I ,, - ;_ (. I, i. ,>“( i :,. ,’ ,*- $ .; ..-:r,< ‘rjl, ;>
CKCARA LAND iiSSC?CftQTf:5 LIMXTED C ITY i3F CAP.LSB Al3 _ __ _ __ _ -. .
PARTNEHWIF iZ#O ELM GM34ljE
:Li)l!. PlwAMkR kIRPc2F.T RoAr:I S-rE * ZOk C!ARL50 kgD ! ox..IFrSRNIA 9Z(in8
CARL.SEM~~; fcii,XF~RNIA ‘7fQGc3 ATTPi : f~%REfTQR CSF FXNANCE
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THE ABOVE MENTItMiX * CWEDTT I5 AMENCEC~ AS FT)LLDW!S: ,( z:. ‘yt -iz, .’
. . r~$r .I ” : . v ‘vii -5 -“i~~j~~-ji?*‘r’,~;:ljr .- * !‘~~-,r:ifCf~~jS,‘l~rl(rj. :* ;‘l:.i.‘F,ifrti I:.$itb:i>*
CKKUMENT NQ i 2 15 A!lEMC~Efl TC! REkD : ; i> ia :rrr . . ..‘! ‘j’
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SHS)WING SIGNED Eli’ A PERSC)N “(-J-T..; EhIC~INEEF? ” CfR “i:I”f--{ M&ts&.>GER’: ifR “~~1-f-j
fiTTCSHNE’/ ” !L’ERT y-F’\‘~ :kgj Ti+&-f’ TkfE FI.&.jCt.$ &RE F;E@~JIRE~I 8)’ J-HE t:IT’I’ OF
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TtfIS AMENt~t~Et37’ IS TU RE CONSffXRED kS CRECfIT AIW MWC;T EE &TTA!THEC~ TXERETB
.; J ;. I, ,S.j’ .“‘C , -,i 11 x $3, 8 ,I (’
PART QF THE AB#VE MENTlClMED
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ki;REEMEN? CQTELI JUNE i I ~.‘-“.--.r~“r*n~r;-,r.r~iI’~r”i.b-’-~~~~
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.t Interstate Bank -‘oT California Find htet7lt~ ’ Rank
International division Box 54191 Los Angeles, California 90054
Cable Address: FICALBANK Telex No. 674421
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PLKE &d’4D DciTE OF ISSUE : CiciTE Ahif1 PL&ZE OF EXPIRY:
i-05 ANr,ELES I OTdJNB9 #7JUN?(4 AT IS5UING B&biIK
clPPLIr,ANT:
AVXAR& LkND kSSOCTriTES LIMITED
FARTNERSHIP
2W.i PALC)MAR AIRPORT ROAD STE,‘?:Ub
CARL93 isO J CALIFORNS A $?*Q~O9
BE~FICIARV:
CIT’C OF CARLSBAK~
f2f)Q ELM kVENUE
CARLSR kiD J CAL1 FORN I A 92008
riTTlsi : C?IRE;TTC1R OF FINANCE
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UUR WUMBER: S360c)%3
PRREVKAELE STciNt@‘t’ LETTER CfF CREDIT
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riM#liNT : w!m ~~*%*~*1J72fJoQO.#O
ONE MILLION SEVEN HUNDREC) TWENT’1’ FIVE: THOUShiK1 cii\lQ iici/ic)O
ucm ,~ “‘8 -t” 1”
THIS LETTER OF lZREC!IT I5 kVkILAElLE WITH 155 FOR PA’IMENT AGkINST
FRESENTATXON OF THE FilLLQWING EfOZ?JMEWTS AT #UR OFFI!,E LOCkTED riT j.2G-z WEST TTH s”r, J &-T-H FLCQR> L,iE kt413ELEf; I CAiIFijRNfk 90017 :
i* 'iCUR SIGHT DRAFT Cd?riWN C)N US MARKED: “f)FiAWN i INDER -
ITMTERSTciTE BANK .OF ZAL.IFQRNIA LETTER QF CR&T NUMBER
FIRST
S3uoQq53. #a
2, ‘fCIUR ~IGNECI ANCr DATE!2 STISTEMENT? SWClWING SIGNEC! B’i’ k PERS#N WHrKE
T STL..E hEtiC& “r,IT=i ENr, IWEER ” r,lR “CXTY MkNArjE!?” OR “5 I T’i’ ciTTtlRNEY ” CERTIF'c'INC TiikY JtiE FUiKjS ARE REQUIRED B’i’ THE CITY QF fAf?LSBAD l=rfR PURPOSE5 DESrRIEiE!l IN SECTIlnN FZ "ASWANCE I=?1NDING OF PARK
IMPROVEMENTS” #F PARK AGRE?EMENT DkTEtl JldlslE ii i?8?.
THX5 LETTER C?F r:REDIT S#fciL.L RE AUTOMhTICALLY EKTEtdfdD WITHOUT
AMENC~MEMT FOR cjCKiXTXQl\tkL FERTUD iSi OF CltdE ‘r’EciR FROM THE PRESENT
EXPIRATIClN CfkYE AND kN!~UciLLt’ THEREAFTER UNLESS AT LEA5T SIXTY (450)
h.4’1’5 PRIijR Tij THE ‘THEN EXFIRATICjN CuhTE WE NC)-iIF’I’ WWJ ATTENTION
i3F THE 1:: IT’? i”,LERt:: 1 VIA REGISTERED LETTER CtIi CijURIER SERVICEI THAT
WE ELK? NClT TO EXTENIIt TWF5 L,ETTER OF CREDIT Fi3R ANY ACdDfTIQWAL
PERIQD. UPON ‘i’CrUR REi:EfPT OF SUCH N#TIfZEr Yi3.l tiAY tfRA# THE AMCtUNT
AVriILciBL-E UNtER THIS LETTER ilF ~RECILT Bt’ PRESENTtiTION TO US OF
THE ABOVE-MENTIONED CIOCUMENTS,
rjNY ORAWING HEREUNDER MUST BE ASCQMPkNIED B? THE QRIGI!‘dhL LETTER ix KREDIT FOR ENK0RSEMENY QF PAf’MENT l cft-4 ANY FARTIAL DRAWING
PRESENYECt J %dD C)r’iICift&‘~L LETTER ijF I.~REDIT SHALL BE RETURNE~I TO ‘iOW
W ZTH UUR ENDORSEMENT tsF P A?MENT a
WE HEREB’i ISS!.lE: THIS IRREVCKABLE STEiMDB’i LETTER BF l:REDIT IN ‘i’OUR
FAwm t. IT IS SUff.JEiLT ‘i-Cl THE iJt4IFT:RM 0.KYDM kNi.l fiRklZTIcE5 FOR
Di3Pi?MENTkR’i ilREDI T-5 . . -.-... I 1. Y 8 5 REVXSIt34 1 INTERNATI fti4iiiie. 0!.ilMB ER OF COMMERfZE
PkRI5) FRkiJCE FilULIC~TiCd=4 NQ, 900 $442 ENGAGES US lb4 krZCORDANtZE WITH THE
TERMS THEREOF l
\ ._ QRlGlNAb -- __ _-. - ..-.-- --.. --._ ---..
CAT. NO. NNOOOIl TO 77 (7-M) NOTICE OF RETURNED DOCUMENTS
TICOR TITLE INSURANCE
: City Clerk
City of Carlsbad : 120 Elm St,
Carlsbad, CA 92008
We are sending you the items checked below:
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0
0
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0
Our No. K1177402
Your No.
Date 07-19-89
Receipted tax bill which has served our purpose.
Copy of covenants, conditions and restrictions ordered by you.
Escrow Instructions dated
Preliminary Title Report dated as of
Recorded instrument which you sent to us for examination.
Plat to be used with the order number shown above.
Policy of Title Insurance per your instructions.
Ticor Title Insurance Company of California
San Dieso,CA County
-.&
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Ticor Title Insurance Company of California
a TICOR TITLE INSURANCE 6300 Wilshire Boulevard P.O. Box 92792 Los Angeles, CA 90009
Policy of Title Insurance
California Land SUBJECT TO THE EXCLUSIONS FROM
Title Association COVERAGE, THE EXCEPTIONS FROM
Standard Coverage COVERAGE CONTAINED IN SCHEDULE
Policy B AND THE CONDITIONS AND
STIPULATIONS, TICOR TITLE IN-
SURANCE COMPANY OF CALIFORNIA,
a California corporation, herein called the
Company, insures, as of Date of Policy shown
in Schedule A, against loss or damage, not
exceeding the Amount of Insurance stated in
Schedule A, sustained or incurred by the
insured by reason of:
1. Title to the estate or interest described in
Schedule A being vested other than as
stated therein;
2. Any defect in or lien or encumbrance on
the title;
3. Unmarketability of the title;
4. Lack of a right of access to and from the
land;
and in addition, as to an insured lender
only:
5. The invalidity or unenforceability of the
lien of the insured mortgage upon the title;
6. The priority of any lien or encumbrance
over the lien of the insured mortgage, said
mortgage being shown in Schedule B in
the order of its priority;
7. The invalidity or unenforceability of any
assignment of the insured mortgage,
provided the assignment is shown in
Schedule B, or the failure of the
assignment shown in Schedule B to vest
title to the insured mortgage in the named
insured assignee free and clear of all liens.
The Company will also pay the costs,
attorneys’ fees and expenses incurred in
defense of the title or the lien of the insured
mortgage, as insured, but only to the extent
provided in the Conditions and Stipulations.
TICOR TITLE INSURANCE COMPANY OF CALIFORNIA
Attest
President
Secretary
TO 3140 CA(7.88) CLTA Standard Coverage Policy-1988 CAT. NO. NN01441
-a TICOR TITlb INSURANCE
CALIFORNIA LAND TlTLE ASSOCIATION STANDARD COVERAGE POLICY - 1988
SCHEDULE A
POLICY NO. .
AMOUNT OF INSURANCE; 1177402
$2,110,481.00 PREMIUM . $1,350.71 DATE OF POLICY ; JUNE 29, 1989 AT 2:54 P.M.
1. NAME OF INSURED
CITY OF CARLSBAD, A MUNICIPAL CORPORATION
klICH THE ESTATE OR INTEREST IN THE LAND DESCRIBED IN SCHEDULE C AND IS COVERED BY THIS POLICY IS A FEE
3. THE ESTATE OR INTEREST REFERRED TO HEREIN IS AT DATE OF POLICY VESTED IN:
CITY OF CARLSBAD, A MUNICIPAL CORPORATION
SCHEDULE B
THIS POLICY DOES NOT INSURE AGAINST LOSS OR DAMAGE (AND THE COMPANY WILL NOT PAY COSTS, ATTORNEYS’ FEES OR EXPENSES) WHICH ARISE BY REASON OF :
PART I
ALL MATTERS SET FORTH IN PARAGRAPHS NUMBERED 1 (ONE) TO 7 (SEVEN) INCLUSIVE ON THE INSIDE COVER SHEET OF THIS POLICY UNDER THE HEADING OF SCHEDULE B PART I.
PART II
GENERAL AND SPECIAL COUNTY AND CITY TAXES AND SPECIAL ASSESSMENTS,
;F ANY, COLLECTED WITH SAID TAXES.
FOR THE FISCAL YEAR : 1989-90 INCLUDING PERSONAL PROPERTY TAX, IF ANY, A LIEN NOT YET PAYABLE.
THE LIEN OF SUPPLEMENTAL TAXES, IF ANY, ASSESSED PURSUANT TO THE PROVISIONS OF CHAPTER 3.5 (COMMENCING WITH SECTION 75) OF THE REVENUE TAXATION CODE OF THE STATE OF CALIFORNIA.
AN EASEMENT AS REFLECTED IN AN INSTRUMENT CREATING OR REAFFIRMING
&ID EASEMENT AFFECTING THE PORTION OF SAID LAND AND FOR THE PURPOSES STATED HEREIN; AND INCIDENTAL PURPOSES IN FAVOR OF : CARLSBAD MUNICIPAL WATER DISTRICT
1177402 PAGE 1
-a TICOR TITF INSURANCE -
FOR .
RECORDED : PIPE LINE JULY 21, 1958, DOCUMENT NO. 116505 AFFECTS : THAT PORTION OF PARCEL 1 HEREIN DESCRIBED LYING WITHIN A STRIP OF LAND 30 FEET WIDE, THE CENTER LINE BEING DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTH QUARTER CORNER OF SECTION 22, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNARDINO MERIDIAN, ACCORDING TO RECORD OF SURVEY 584, AS FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY,
CALIFORNIA, APRIL 29, 1937; THENCE NORTH 1’51’12” WEST 1056.06 FEET TO THE TRUE POINT OF BEGINNING; THENCE SOUTH 89’55’47” EAST 973.64
FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE NORTHERLY, HAVING A RADIUS OF 500 FEET; THENCE EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE ANGLE OF 34”16’30 AN ARC DISTANCE OF 299.11 FEET; THENCE TANGENT TO SAID CURVE NORTH 55’39’17” EAST 977.95 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE SOUTHERLY, HAVING A RADIUS OF 500 FEET; THENCE EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 27’14’40” AN ARC DISTANCE OF 237.75 FEET; THENCE TANGENT TO SAID CURVE NORTH 82’53’57” EAST 1016.03 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE SOUTHERLY, HAVING A RADIUS OF 500 FEET, THENCE EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 32’46’00” AN ARC DISTANCE OF 285.95 FEET; THENCE TANGENT TO SAID CURVE SOUTH 64’20’03” EAST 609.67 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE NORTHERLY, HAVING A RADIUS OF 600 FEET; THENCE EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 26”lO’OO” AN ARC DISTANCE OF 274.06 FEET; THENCE TANGENT TO SAID CURVE NORTH 89’29’57” EAST 576.92 FEET.
AN AGREEMENT TO WHICH REFERENCE IS HEREBY MADE FOR FULL PARTICULARS FATED .
BY AND BETWEEN i SEPTEMBER 7, 1983 N.B. HUNT AND W.H. HUNT AND THE CITY OF CARLSBAD, A MUNICIPAL CORPORATION REGARDING : AGREEMENT BETWEEN DEVELOPER-OWNER AND THE CITY OF CARLSBAD FOR THE PAYMENT OF A PUBLIC FACILITIES FEE
RECORDED . . OCTOBER 20, 1983, RECORDER’S FILE NO. 83-378945
THE FACT THAT SAID LAND LIES WITHIN THE HP1 REORGANIZATION AS
&CLOSED BY SAN DIEGO COUNTY LOCAL AGENCY FORMATION COMMISSIOrj
CERTIFICATE OF COMPLETION, RECORDED FEBRUARY 14, 1985 AS FILE NO.
85-051430 OF OFFICIAL RECORDS.
REFERENCE IS MADE TO SAID DOCUMENT FOR FULL PARTICULARS.
5. THE FACT SAID LAND LIES WITHIN A “BRIDGE AND THOROUGHFARE DISTRICT NO. 1” ESTABLISHED BY RESOLUTION NO. 8744 BY THE CITY OF CARLSBAD A CERTIFIED COPY OF WHICH WAS RECORDED AUGUST 19, 1986, RECORDER’S FILE NO. 86-356638.
SAID INSTRUMENT, AMONG OTHER THINGS, PROVIDES
FUNDS FOR THE CONSTRUCTION OF THE BRIDGE FACILITIES WILL BE GENERATED BY FEES COLLECTED AS BUILDING PERMITS ARE ISSUED FOR DEVELOPMENT WITHIN THE BOUNDARIES OF THE DISTRICT.
6. AN AGREEMENT TO WHICH REFERENCE IS HEREBY MADE FOR FULL PARTICULARS DATED .
BY AND BETWEEN i AUGUST 29, 1986 W.H. HUNT AND N.B. HUNT AND THE CITY OF CARLSBAD, A MUNICIPAL CORPORATION REGARDING : AGREEMENT BETWEEN DEVELOPER-OWNER AND THE CITY OF
1177402 PAGE 2
-@ TICOR TlTl” INSURANCE -
RECORDED CARLSBAD FOR THE PAYMENT OF A PUBLIC FACILITIES FEE . . NOVEMBER 6, 1986, RECORDER’S FILE NO. 86-509319
AN AGREEMENT TO WHICH REFERENCE IS HEREBY MADE FOR FULL PARTICULARS
FATED .
BY AND BETWEEN i
OCTOBER 16, 1987
W. H. HUNT AND N. B. HUNT AND THE CITY OF CARLSBAD
REGARDING : PAYMENT OF A PUBLIC FACILITIES FEE
RECORDED . . NOVEMBER 19, 1987, RECORDER’S FILE NO. 87-647735
AN AGREEMENT TO WHICH REFERENCE IS HEREBY MADE FOR FULL PARTICULARS
~TED .
BY AND BETWEEN i JUNE 6, 1988 THE STATE OF CALIFORNIA, ACTING BY AND THROUGH THE
STATE LANDS COMMISSION, WITH THE CONCURRENCE OF THE CALIFORNIA ATTORNEY GENERAL; AND PACIFIC RIM LAND ASSOCIATES LIMITED PARTNERSHIP, A DELWARE LIMITED PARTNERSHIP REGARDING : TITLE SETTLEMENT AND EXCHANGE AGREEMENT AND CONVEYANCE OF PUBLIC ACCESS EASEMENT RECORDED . . JUNE 10, 1988, RECORDER’S FILE NO. 88-278452
9. ANY ASSESSMENTS WHICH MAY BE LEVIED AGAINST THE HEREIN DESCRIBED PROPERTY, AS DISCLOSED BY A FILED MAP OF THE ASSESSMENT DISTRICT; PLAT NO.: PROPOSED BOUNDARIES OF COMMUNITY FACILITIES DISTRICT NO. 1 OF THE CARLSBAD UNIFIED SCHOOL DISTRICT CITY OF : CARLSBAD RECORDED : MARCH 14, 1989, RECORDER’S FILE NO. 89-130025
AND AS AMENDED MAY 8, 1989, RECORDER’S FILE NO. 89-242769.
10. AN AGREEMENT TO WHICH REFERENCE IS HEREBY MADE FOR FULL PARTICULARS DATED .
BY AND BETWEEN I MARCH 22, 1989 AVIARA LAND ASSOCIATES LIMITED PARTNERSHIP, A DELAWARE CORPORATION, AND THE CALIFORNIA COASTAL COMMISSION REGARDING : DEED RESTRICTION (OPEN SPACE)
RECORDED . . APRIL 14, 1989, RECORDER’S FILE NO. 89-196176
11. AN AGREEMENT TO WHICH REFERENCE IS HEREBY MADE FOR FULL PARTICULARS
DATED .
BY AND BETWEEN ; MARCH 13, 1989 AVIARA LAND ASSOCIATES LIMITED PARTNERSHIP, A
DELAWARE CORPORATION AND THE CALIFORNIA COASTAL
COMMISSION REGARDING : DEED RESTRICTION (TRAIL) RECORDED . . APRIL 14, 1989, RECORDER’S FILE NO. 89-196178
12. A DOCUMENT ENTITLED “IRREVOCABLE OFFER TO DEDICATE OPEN-SPACE EASEMENT AND DECLARATION OF RESTRICTIONS” DATED MARCH 13, 1989, EXECUTED BY AVIARA LAND ASSOCIATES LIMITED PARTNERSHIP, A DELAWARE
CORPORATION, RECORDED APRIL 14, 1989, RECORDER’S FILE NO. 89-196180.
REFERENCE IS MADE TO SAID DOCUMENT FOR FULL PARTICULARS.
13. AN AGREEMENT TO WHICH REFERENCE IS HEREBY MADE FOR FULL PARTICULARS DATED .
BY AND BETWEEN I MARCH 31, 1989 AVIARA LAND ASSOCIATES, LIMITED PARTNERSHIP, A LIMITED PARTNERSHIP AND THE CITY OF CARLSBAD REGARDING : AGREEMENT BETWEEN DEVELOPER-OWNER AND THE CITY OF
1177402 PAGE 3
TlTl” INSURANCE--
CARLSBAD FOR THE PAYMENT OF A . . JUNE 5, 39, RECORDER’S FILE
PAGE 4
PUBLIC FACILITIES FEE
NO. 89-296176
-g TICOR Tlil? INSURANCE--
SCHEDULE C
THE LAND REFERRED TO IN THIS POLICY IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS:
THAT PORTION OF SECTION 22, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNARDINO MERIDIAN, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO OFFICIAL PLAT THEREOF AS SHOWN ON RECORD OF SURVEY NO. 10774, RECORDED OCTOBER 30, 1986 AS FILE NO. 86-494180, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHEAST CORNER OF SAID SECTION 22; THENCE ALONG THE EASTERLY LINE OF SAID SECTION 22, NORTH 00’33’25” EAST, 1634.46 FEET TO THE TRUE POINT OF BEGINNING; THENCE LEAVING SAID EASTERLY LINE, SOUTH 89”46’56” WEST, 678.27 FEET; THENCE SOUTH 44’18’06” WEST, 124.45 FEET; THENCE SOUTH 89’18’06” WEST, 566.00 FEET; THENCE NORTH 19’52’40” EAST, 92.87 FEET; THENCE NORTH 45’10’21” WEST, 54.44 FEET; THENCE NORTH 13’28’04” EAST, 60.92 FEET; THENCE NORTH 00’22’40” WEST, 320.06 FEET; THENCE NORTH 12’18’08” WEST, 92.73 FEET; THENCE NORTH 50’59’09” EAST, 201.72 FEET; THENCE NORTH 14’03’08” WEST, 251.61 FEET TO A POINT ON THE NORTHERLY LINE OF SAID RECORD OF SURVEY NO. 10774; THENCE SOUTH 89’28’30” EAST, 322.59 FEET; THENCE LEAVING SAID NORTHERLY LINE SOUTH 00’43’00” EAST, 121.77 FEET; THENCE SOUTH
49’41’33” WEST, 50.16 FEET; THENCE SOUTH 10’13’08” WEST, 45.76 FEET;
THENCE SOUTH 34’30’47” EAST, 34.62 FEET; THENCE SOUTH 62’22’17” EAST,
25.68 FEET; THENCE SOUTH 19’35’24” WEST, 109.22 FEET; THENCE NORTH
75’32’32” EAST, 110.78 FEET; THENCE NORTH 35°50’10” EAST, 100.96 FEET;
THENCE SOUTH 82’53’54” EAST, 31.50 FEET; THENCE NORTH 56’01’44” EAST,
225.45 FEET; THENCE NORTH 43”54’35” EAST, 93.91 FEET; THENCE NORTH
73’18’15” EAST, 133.63 FEET TO A POINT ON THE NORTHERLY LINE OF SAID
RECORD OF SURVEY NO. 10774, THENCE ALONG SAID NORTHERLY LINE, SOUTH
89’28’30” EAST, 135.92 FEET; THENCE LEAVING SAID NORTHERLY LINE SOUTH
52’45’54” EAST, 325.96 FEET TO A POINT ON THE EASTERLY LINE OF SAID
SECTION 22; THENCE ALONG SAID EASTERLY LINE, SOUTH OO”33’25” WEST,
661.79 FEET TO THE TRUE POINT OF BEGINNING.
1177402 PAGE 5
Exclusions
from Coverage
The following matters are expressly excluded from the coverage of this
policy and the Company will not pay kxrs or damage, costs, attorneys’
fees or expenses which arise by reason of:
1. (a) Any law, ordinance or governmental regulation (including but not
limited to building or zoning laws, ordinances. or regulations)
restricting, regulating, prohibiting or relating to (i) the occupancy,
use, or enjoyment of the land; (ii) the character, dimensions or
location of any improvement now or hereafter erected on the land;
(iii) a separation in ownership or a change in the dimensions or area
of the land or any parcel of which the land is or was a part; or (ii)
environmental protection, or the effect of any violation of these laws, ordinances or governmental regulations, except to the extent that a notice of the enforcement thereof or a notice of a defect, lien or encumbrance resulting from a violation or alleged
violation affecting the land has been recorded in the public records
at Date of Policy.
(b) Any governmental police power not excluded by (a) above, except
to the extent that a notice of the exercise thereof or a notice of a
defect, lien or encumbrance resulting from a violation or alleged
violation affecting the land has been recorded in thepublicrecords
at Dnte of Policy.
2. Rights of eminent domain unless notice of the exercise thereof has
been, recorded in the public records at Date of Policy, but not
excluding from coverage any taking which has occurred prior to Date
Schedule B Part I
of Policy whiih would be binding on the rights of a purchaser for value
without knowledge.
3. Defects, liens, encumbrances, adverse claims or other matters:
(a) whether or not recorded in the public records at Date of Policy, but
created, suffered, assumed or agreed to by the insured claimant;
(b) not known to the Company, not recorded in the public records at
Date of Policy, but known to the insured claimant and not
disclosed in writing to the Company by the insured claimant prior
to the date the insured claimant became an insured under this
policy:
(c) resulting in no loss or damage to the insured claimant; (d) attaching or created subsequent to Data of Policy; or
(e) resulting in loss or damege which would not have been sustained if the insured claimant had paid value for the insured mortgage or for
the estate or interest insured by this policy.
4. Unenforceabilii of the lien of the insured mortgage because of the
inability or failure of the insured at Date of Policy, or the inability or
failure of any subsequent owner of the indebtedness, to comply with
the applicable doing business laws of the state in which the land is situated.
5. lnvalidii or unenforceability of the lien of the insured mortgage, or claim thereof, which arises out of the transaction evidenced by the
insured mortgage and is based upon usury or any consumer credit protection or truth in lending law.
1. Taxes or assessments which are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on
real property or by the public records.
Proceedings by a public agency which may result in taxes or
assessments, or notices of such proceedings, whether or not shown
by the records of such agency or by the public records.
2. Any facts, rights, interests or claims which are not shown by the
public records but which could be ascccrrtained by an inspection of the
land or which may be asserted by persons in possession thereof.
3. Easements, liens or encumbrances, or claims thereof, which are not
shown by the public records.
4. Discrepancies, conflicts in boundary lines, shortage in erea.
encroachments, or any other facts which a correct survey would
disclose, and which are not shown by the public records. 5. (a) Unpatented mining claims; (b) reservations or exceptions in
patents or in Acts authorizing the issuance thereof; (c) water rights, claims or title to water, whether or not the matters excepted under (a), (b) or (c) are shown by the public records. 6. Any facts, rights, interests or claims which are not shown by the
public records but which could be ascertained by making inquiry of the lessors in the lease or leases described or referred to in Schedule
A.
7. The effect of any failure to comply with the terms, covenants and
condiions of the lease or leases described or referred to in Schedule A.
Conditions
and Stipulations
1. DEFINITION OF TERMS.
The following terms when used in this policy mean: (a) “insured”: the insured named in Schedule A, and, subject to any rights or defenses the Company would have had against the named insured, those who succeed to the interest of the named insured by operation of law
as distinguished from purchase including, but not limited to, heirs, distributees, devisees, survivors, personal representatives, next of kin, or
corporate or fiduciary successors. The term “insured” also includes
(i) the owner of the indebtedness secured by the insured mortgage
and each successor in ownership of the indebtedness except a successor who is an obligor under the provisions of Section 12(c) of these Conditions
and Stipulations (reserving, however, all rights and defenses as to any successor that the Company would have had against any predecessor
insured, unless the successor acquired the indebtedness as a purchaser for value without knowledge of the asserted defect, lien, encumbrance, adverse
claim or other matter insured against by this policy as affecting title to the
estate or interest in the land);
(ii) any governmental agency or governmental instrumentality which is an insurer or guarantor under an insurance contract or guaranty insuring
or guaranteeing the indebtedness secured by the insured mortgage, or any part thereof, whether named as an insured herein or not;
(iii) the parties designated in Section 2(a) of these Cot-&ions and Stipulations. (b) “insured claimant”: an insured claiming loss or damage. (c) “Insured lender”: the owner of an insured mortgage.
(d) “insured mortgage”: a mortgage shown in Schedule B, the owner of which is named as an insured in Schedule A. (e) “knowledge” or “known”: actual knowledge, not constructive knowledge or notice which may be imputed to an insured by reason of the
public records as defined in this policy or any other records which impart constructive notice of matters affecting the land.
(1) “land”: the land described or referred to in Schedule C. and
improvements affixed thereto which by law constitute real property. The
term “land” does not include any property beyond the lines of the area
described or ref,erred to in Schedule C, nor any rir ‘itle, interest, estate or
easement in abuttina streets. roads, avenues. .levs. lanes. wavs or
right of access to and from the land is insured by this policy. (g) “mortgage”: mortgage, deed of trust, trust deed, or other security
instrument. (h) “public records”: records established under state statutes at Date of
Policy for the purpose of imparting constructive notice of matters relating to
real property to purchasers for value and without knowledge. (i) “unmarketability of the title”: an alleged or apparent matter affecting the title to the land. not excluded or excepted from coverage, which would
entitle a purchaser of the estate or interest described in Schedule A or the
insured mortgage to be released from the obligation to purchase by virtue of
a contractual condition requiring the delivery of marketable title.
2. CONTINUATION OF INSURANCE.
(a) After Acquisition of Title by Insured Lender. If this policy insures the
owner of the indebtedness secured by the insured mortgage, the coverageof
this policy shall continue in force as of Date of Policy in favor of (i) such
insured lender who acquires all or any part of the estate or interest in the
land by foreclosure, trustee’s sale, conveyance in lieu of foreclosure, or other
legal manner which discharges the lien of the insured mortgage; (ii) a
transferee of the estate or interest so acquired from an insured corporation,
provided the transferee is the parent or wholly-owned subsidiary of the
insured corporation, and their corporate successors by operation of law and
not by purchase, subject to any rights or defenses the Company may have
against any predecessor insureds; and (iii) any governmental agency or
governmental instrumentality which acquires all or any part of the estate or
interest pursuant to a contract of insurance or guaranty insuring or
guaranteeing the indebtedness secured by the insured mortgage.
(b) After Conveyance of Title by an Insured. The coverage of this policy
shall continue in force as of Date of Policy in favor of an insured only so long
as the insured retains an estate or interest in the land, or holds an
indebtedness secured by a purchase money mortgage given by a purchaser from the insured, or only so long as the insured shall have liability by reason of covenants of warranty made by the insured in any transfer or conveyance
of the estate or interest. This policy shall not continue in force in favor of any
purchaser from an insured bither (i) an estate or interest in the land, or (ii)
an indebtedness secureo, Ia purchase money mortgage given to an
(CONDITIONS AN0 STIPULATIONS CONTINUED FAOM REVERSE SIDE OF POLICY FACE)
(c)Amount of Insurance. The amount of insur”lce after the acq!,tisjtion
or after the conveyance by an insured lender s\
the least of:
j neither event exceed
(i) the Amount of Insurance stated in Schedule A;
(ii) the amount of the principal of the indebtedness secured by the
insured mortgage as of Date of Policy, interest thereon, expenses of
foreclosure, amounts advanced pursuant to the insured mortgage to assure
compliance with laws or to protect the lien of the insured mortgage prior to
the time of acquisition of the estate or interest in the land and secured
thereby and reasonable amounts expended to prevent deterioration of
improvements, but reduced by the amount of all payments made; or
(iii) the amount paid by any governmental agency or governmental
instrumentality, if the agency or the instrumentality is the insured claimant,
in the acquisition of the estate or interest in satisfaction of its insurance
contract or guaranty.
3. NOTlCE OF CLAIM TO SE GIVEN SY INSURED CLAIMANT.
An insured shall notify the Company promptly in writing (i) in case of any
litigation as set forth in Section 4(a) below, (ii) in case knowledge shall come
to an insured hereunder of any claim of title or interest which is adverse to
the title to the estate or interest or the lien of the insured mortgage, as
insured, and which might cause loss or damageforwhich thecompanymay be liable by virtue of this policy, or (iii) if titleto the estate or interest or the lien
of the insured mortgage, as insured, is rejected as unmarketable. lf prompt notice shall not be given to the Company, then as to that insured all liability of
the Company shall terminate with regard to the matter or matters for which prompt notice is required; provided, however, that failure to notify the
Company shall in no case prejudice the rights of any insured under this policy unless the Company shall be prejudiced by the failure and then only to
the extent of the prejudice.
4. DEFENSE AND PROSECUTION OF ACTIONS; DUTY OF
INSURED CLAIMANT TO COOPERATE.
(a) Upon written request by an insured and subject to the options
contained in Section 6 of these Conditions and Stipulations, theCompany,at
its own coat and without unreasonable delay, shall provide for thedefenseof
an insured in litigation in which any third partyassertsa claim adverseto the
title or interest as insured, but only as to those stated causes of action
alleging a defect, lien or encumbrance or other matter insured against by
this policy. The Company shall have the right to select counsel of its choice
(subject to the right of an insured toobjectfor reasonablecause)torepresent
the insured as to those stated causes of action and shall not be liable for and
will not pay the fees of any other counsel. The Company will not payanyfees,
costs or expenses incurred by an insured in the defense of those causes of action which allege matters not insured against by this policy.
(b) The Company shall have the right, at its own cost, to institute and prosecute any action or proceeding or to do any other act which in its opinion
may be necessary or desirable to establish the title to the estate or interest or the lien of the insured mortgage, as insured, or to prevent or reduce loss or
damage to an insured. The Company may take any appropriate action under
the terms of this policy, whether or not it shall be liable hereunder, and shall
not thereby concede liability or waive any provision of this policy. If the
Company shall exercise its rights under this paragraph, it shall do so
diligently.
(c) Whenever the Company shall have brought an action or interposed a
defense as required or permitted by the provisions of this policy, the
Company may pursue any litigation to final determination by a court of
competent jurisdiction and expressly reserves the right, in its solediscretion,
to appeal from any adverse judgment or order.
(d) In all cases where this policy permits or requires the Company to
prosecute or provide for the defense of any action or proceeding, an insured
shall secure to the Company the right to so prosecute or provide defense in
the action or proceeding, and all appeals therein, and permit thecompany to use, at its option, the name of such insured for this purpose. Whenever requested by the Company, an insured, at the Company’s expense, shall give
the Company all reasonable aid (i) in any action or proceeding, securing evidence, obtaining witnesses, prosecuting or defending the action or
proceeding, or effecting settlement, and (ii) in any other lawful act which in
the opinion of the Company may be necessary or desirable to establi& the
title to the estate or interest or the lien of the insured mortgage, as insured. If the Company is prejudiced by the failure of an insured tofurnish the required
cooperation. the Company’s obligations to such insured under the policy
shall terminate, including any liability or obligation to defend, prosecute, or
continue any litigation, with regard to the matter or matters requiring such
cooperation.
5. PROOF OF LOSS OR DAMAGE.
In addition to and after the notices required under Section 3 of these
Conditions and Stipulations have been provided the Company, a proof of loss
or damage signed and sworn to by each iosured claimant shall be furnished
to the Company within 90 days after the insured claimant shall ascertain the
facts giving rise to the loss or damage. The proof of loss or damage shall
describe the defect in, or lien or encumbrance on the title, or other matter
insured against by this pop* yhich constitutes the basis of loss or damage
and shall state, to the exte ‘ssible, the basis of calculating the amount of
the loss or damage. If the Company is prejudiced by the failure of an insured
claimant to provide the required proof of loss or damage, the Company’s
obligations to such insured under the policy shall terminate, including any
liability or obligation to defend, prosecute, or continue any litigation, with
regard to the matter or matters requiring such proof of loss or damage.
In addition, an insured claimant may reasonably be required tosubmitto
examination under oath by any authorized representative of the Company
and shall produce for examination, inspection and copying, at such reasonable times and places as may ba designated by any authorized
representative of the Company, all records, books, ledgers, checks, correspondence and memoranda, whether bearing a date before or after
Date of Policy, which reasonably pertain to the loss or damage. Further, if
requested by any authorized representative of the Company, the insured
claimant shall grant its permission, in writing, for any author&d
representative of the Company to examine, inspect and copy all records,
books, ledgers, checks, correspondence and memoranda in the custody or
control of a third party, which reasonably pertain to the loss or damage. All
information designated as confidential by an insured claimant provided to the Company pursuant to this Section shall not be disclosed to others unless,
in the reasonable judgment of the Company, it is necessary in the administration of the claim. Failure of an insured claimant to submit for
examination under oath, produce other reasonably requestedinformationor grant permission to secure reasonably necessary information from third
parties as required in this paragraph, unless prohibited by law or
governmental regulation, shall terminate any liability of the Company under
this policy as to that insured for that claim.
6. OPTIONS TO PAY OR OTHERWISE SETTLE CLAIMS; TERMINATION OF LIABILITY.
In case of a claim under this policy, the Company shall have the following additional options:
(a) To Pay or Tender Payment of the Amount of Insurance or to Purchase the Indebtedness.
(i) to pay or tender payment of the amount of insurance under this
policy together with any costs, attorneys’ fees and expenses incurred by the
insured claimant, which were authorized by the Company, up to the time of
payment or tender of payment and which the Company is obligated to pay; or
(ii) in case loss or damage is claimed under thispolicybytheowner of
the indebtedness secured by the insured mortgage, to purchase the
indebtedness secured by the insured mortgage for the amount owing
thereon together with any costs, attorneys’ fees and expenses incurred by the insured claimant which were authorized by the Company up to the time
of purchase and which the Company is obligated to pay. If the Company offers to purchase the indebtedness as herein provided,
the owner of the indebtedness shall transfer, assign, and convey the indebtedness and the insured mortgage, together with any collateral
security, to the Company upon payment therefor.
Upon the exercise by the Company of the option provided for in
paragraph a(i), all liability and obligations to the insured under this policy,
other than to make the payment required in that paragraph, shall terminate,
including any liability or obligation to defend, prosecute, or continue any
litigation, and the policy shall be surrendered to the Company for
cancellation. Upon the exercise by the Company of the option provided for in paragraph a(ii) the Company’s obligation to an insured Lender under this policy for the claimed loss or damage, other than the payment requred to be made, shall terminate, including any liability or obligation to defend, prosecute or continue any litigation. (b) To Pay or Otherwise Settle With Parties Other than the Insured or With the Insured Claimant. (i) to pay or otherwise settle with other parties for or in the nameofan insured claimant any claim insured against under this policy, together with any costs, attorneys’ fees and expenses incurred by the insured claimant which were authorized by the Company up to the time of payment and which the Company is obligated to pay; or (ii) to pay or otherwise settle with the insured claimant the loss or damage provided for under this policy, together with any costs, attorneys’ fees and expenses incurred by the insured claimant which were authorized by the Company up to the time of payment and which the Company is obligated to pay.
Upon the exercise by the Company of either of the optionsprovidedfor in paragraphs b(i) or b(ii). the Company’s obligations to the insured under this policy for the claimed loss or damage, other than the payments required to ba made, shall terminate, including any liability or obligation to defend, prosecute or continue any litigation.
7. DETERMINATION AND EXTENT OF UABILIN.
This policy is a contract of indemnity against actual monetary loss or damage sustained or incurred by the insuredclaimant who has suffered loss or damage by reason of matters insured against by this policy andonlyto the extent herein described.
(a) The liability of the Company under this policy to an insured lender shall not exceed the least of: (i) the Amount of Insurance stated in Schedule A, or, if applicable, the amount of insurance as defined in Section 2(c) of these Conditions and Stipulations;
(ii) the amount ot the unpard prmcrpal mdebteoness secured oy tne insured mortgage as limited or provided under Section 8 of theseconditions and Stipulations or as reduced under Section 9 of these Conditions and Stipulations, at the time the loss or damage Linsured against by this policy occurs, together with interest thereon; or
(iii) the difference between the value of the insured estate or interest as insured and the value of the insured estate or interest subject to the defect, lien or encumbrance insured against by this policy.
(b) In the event the insured lender has acquired the estate or interest in the manner described in Section Z(a) of these Conditions and Stipulations or has conveyed the title, then the liability of the Company shall continueasset forth in Section 7(a) of these Conditions and Stipulations,
(c)The liability of the Company under this policy to an insured owner of the estate or interest in the landdescribed in Schedule Ashall not exceed the least of: (i) the Amount of Insurance stated in Schedule A; or, (ii) the difference between the value of the insured estate or interest as insured and the value of the insured estate or interest subject to the defect, lien or encumbrance insured against by this policy. (d) The Company will pay only those costs, attorneys’ fees and expenses incurred in accordance with Section 4 of these Conditions and Stipulations.
8. LIMITATION OF LIABILITY.
(a) If the Company establishes the title, or removes the alleged defect, lien or encumbrance, or cures the lack of a right of accesstoorfrom the land, or cures the claim of unmarketability of title, or otherwise establishes the lien of the insured mortgage, all as insured, in a reasonably diligent manner by any method, including litigation and the completion of any appeals therefrom, it shall have fully performed its obligations with respect to that matter and shall not be liable for any loss or damage caused thereby, (b) In the event of any litigation, including litigation by the Company or with the Company’s consent, the Company shall have no liability for loss or damage until there has been a final determination by a court of competent jurisdiction, and disposition of all appeals therefrom, adverse to the title, or, if applicable, to the lien of the insured mortgage, as insured. (c)The Company shall not be liable for loss or damage to any insured for liability voluntarily assumed by the insured in settling any claim or suit without the prior written consent of the Company. (d) The Company shall not be liable to an insured lender for: (i) any indebtedness created subsequent to Date of Policy except for advances made to protect the lien of the insured mortgage and secured thereby and reasonable amounts expended to prevent deterioration of improvements; or (ii) construction loan advances made subsequent to Date of Policy, except construction loan advances made subsequent to Date of Policy for the purpose of financing in whole or in part the construction of an improvement to the land which at Date of Policy were secured by the insured mortgage and which the insured was and continued to be obligated to advance at and after Date of Policy.
9. REDUCTION OF INSURANCE; REDUCTION OR TERMINATION OF LIABILITY.
(a) All payments under this.policy, except payments made for costs, attorneys’ fees and expenses, shall reduce the amount of insurance pro tanto. However, as to an insured lender, any payments made prior to the acquisition of title to the estate or interest as provided in Section Z(a)of these Conditions and Stipulations shall not reduce pro tanto the amount of insurance afforded under this policy as to any such insured, except to the extent that the payments reduce the amount of the indebtedness secured by the insured mortgage. (b) Payment in part by any person of the principal of the indebtedness, or any other obligation secured by the insured mortgage, or any voluntary partial satisfaction or release of the insured mortgage, to the extent of the payment, satisfaction or release, shall reduce the amount of insurance pro tanto. The amount of insurance may thereafter be increased by accruing interest and advances made to protect the lien of the insured mortgage and secured thereby, with interest thereon, provided in no event shall the amount of insurance be greater than the Amount of Insurance stated in Schedule A. (c) Payment in full by any person or the voluntary satisfaction or release of the insured mortgage shall terminate all liability of the Company to an insured lender except as provided in Section 2(a) of these Conditions and Stipulations.
10. LIABILITY NONCUMULATIVE.
It is expressly understood that the amount of insurance under this policy shall be reduced by any amount the Company may pay under any policy insuring a mortgage to which exception is taken in Schedule B or to which the insured has agreed, assumed, or taken subject, or which is hereafter executed by an insured and which is a charge or lien on the estate or interest described or referred to in Schedule A, and the amount so paid shall be deemed a payment under this policy to the insured owner. The provisions of this Section shall not apply toan insuredlender,unless such insured acquires title to said estate or interest in satisfaction of the indebtedness secured by an insured mortgage.
11. PAYMENT OF LOSS.
(a) No payment shall be made without producing this policy for endorsement of the payment unless the policy has been lost or destroyed, in which case proof of loss or destruction shall be furnished to the satisfaction of the Company. (b) When liebility and the extent of loss or damage has been definitely fixed in accordance with these Conditions and Stipulations, the loss or damage shall b;e payable within 30 days thereafter.
12. SUBRQGk)TlON UPON PAYMENT OR SF .‘\EMENT.
(a) The bonjpany’s Right of Subro9at/on, ‘. -d ..’ I
Whenver the Company shall have settled and paid a claim under this
I
policy, air ngnt or suorogation snarl vest In tne Lompany unarrecteo oy any act of the insured claimant. The Company shall be subrogated to and be entitled to all rights and remedies which the insured claimant would have had against any person or property in respect to the claim had this policy not been issued. If requested by the Company, the insured claimant shall transfer to the Company all rights and remedies against any person or property necessary in order to perfect this right of subrogation. The insured claimant shall permit the Company to sue, compromise or settle in the name of the insured claimant and to use the name of the insured claimant in any transaction or litigation involving these rights or remedies. If a payment on account of a claim does not fully cover the loss of the insured claimant, the Company shall be subrogated (i) as to an insured owner, to all rights and remedies in the proportion which the Company’s payment bears to the whole amount of the loss; and (ii) as to an insured lender, to all rights and remedies of the insured claimant after the insured clai Y-T nt shall have recovered its principal, interest, and costs of collection. loss should result from any act of the insured claimant, as stated above, that act shall not void this policy, but the Company, in that event, shall be required to pay only that part of any losses insured against by this policy which shall exceed the amount, if any, lost to the Company by reason of the impairment by the insured claimant of the Company’s right of subrogation.
(b) The Insured’s Righti and Limitations. Notwithstanding the foregoing, the owner of the indebtedness secured by an insured mortgage, provided the priority of the lien of the insured mortgage or its enforceability is not affected, may release or substitute the personal liability of any debtor or guarantor, or extend or otherwise modify the terms of payment, or release a portion of the estate or interest from the lien of the insured mortgage, or release any collateral security for the indebtedness, When the permitted acts of the insured claimant occur and the insured has knowledge of any claim of titleor interest adverse tothe titleto the estate or interest or the priority or enforceability of the lien of an insured mortgage, as insured, the Company shall be required to pay only that part of any losses insured against by this policy which shall exceed the amount, if any, lost to the Company by reason of the impairment by the insured claimant of the Company’s right of subrogation. (c) The Company’s Rights Against Non-insured Obligors. The Company’s right of subrogation against non-insured obligors shall exist and shall include, without limitation, the rights of the insured to indemnities, guaranties, other policies of insurance or bonds, notwithstanding any terms or conditions contained in those instruments which provide for subrogation rights by reason of this policy. The Company’s right of subrogation shall not be avoided by acquisition of an insured mortgage by an obligor (except an obligor described in Section l(a)(k) of these Conditions and Stipulations) who acquires the insured mortgage as a result of an indemnity, guarantee, other policy of insurance, or bond and the obligor will not be an insured under this policy, notwithstanding Section l(a)(i) of these Conditions and Stipulations.
13. ARBITRATION.
Unless prohibited by applicable law, either the Company or the insured may demand arbitration pursuant to theTitle Insurance Arbitration Rules of the American Arbitration Association. Arbitrablemattersmayinclude. butare not Iimitedto,anycontroversyorclaim betweenthecompanyandtheinsured arising out of or relating to this policy, any service of the Company in connection with its issuance or the breach of a policy provision or other obligation. All arbitrable matters when the Amount of Insurance is S1,OOO,OOD or less shall be arbitrated at the option of either the Company or the insured. All arbitrable matters when the Amount of Insurance is in excess of $1 ,DDD,ODO shall be arbitrated only when agreed to by both the Company and the insured. Arbitration pursuant to this policy and under the Rules in effect on the date the demand for arbitration is made or, at the option of the insured, the Rules in effect at Date of Policy shall be bindmg upon the parties. Theawardmayincludeattorneys’feesonlyifthelawsofthestateinwhichthe land is located permit a court to award attorneys’ fees to a prevailing party. Judgment upon the award rendered by the Arbitrator(s) maybe enteredin any court having jurisdiction thereof. The law of the situs of the land shall apply to an arbitration under the Title Insurance Arbitration Rules. A copy of the Rules may be obtained from the Company upon request.
14. LIABILlTY LIMITED TO THIS POLICY; POLICY ENTIRE CONTRACT.
(a) This policy together with all endorsements, if any, attached hereto by the Company is the entire policy and contract between the insured and the Company. In interpreting any provision of this policy, this policy shall be construed as a whole. (b) Any claim of loss or damage, whether or not based on negligence, and which arisesoutofthestatusofthelienoftheinsuredmortgageorofthetitle to the estate or interest covered hereby or by any action asserting such claim, shall be restricted to this policy. (c) No amendment of or endorsement to this policy can be made except by a writing endorsed hereon or attached heretosigned byeitherthePresident,a Vice President, the Secretary, an Assistant Secretary, or validating officer or authorized signatory of the Company
15. SEVERABILITY.
In the event any provision of the policy is held invalid or unenforceable under applicable law, the policy shall be deemed not to includethat provision and all other provisions shall remain in full force and effect.
16. NOTICES, WHERE SENT.
All notices required to be given the Company and any statement in writing required to be furnished the Company shall includethe number of this policy and shall be add-essed to the Company at its Princi 4 al Office, Claims Department, 63( Angeles, California 9OBCk ‘Vilshire Boulevard. P.O. Box 9 792. Los
(THIS CONCLUDES THE CLTA STA’NDARC) COVERAGE POLICY-1989)
July 21, 1989
TO: City Clerk
FROM: City Attorney
AVIARA PARK SITE ACQUISITION - TITLE INSURANCE POLICY FOR THE PARK SITE DEDICATED BY AVIARA LAND ASSOCIATES LIMITED PARTNERSHIP
Attached to this memorandum, please find the original policy of title insurance in the amount of $2,110,481 insuring the City's title to the park site above referenced. Please make it part of your permanent files since this policy will remain in force during the entire time of the City's ownership.
Should you have any questions regarding the above, please do not hesitate to contact me.
RONALD R. BALL Assistant City Attorney
attachment
November 20, 1997
TO: CITY CLERK
FROM: Finance Director
LETTER OF CREDIT FROM AVIARA LAND ASSOCIATES, LTD.
The City currently holds a letter of credit from Aviara Land Associates, Limited in the amount of
$1,725,000 required by a parks agreement dated June 1, 1989. Aviara is replacing the current
letter of credit with another one drawn on a different bank. The new bank meets with my
approval, and the attorney’s office has approved the form (see letter attached).
Please return the letter of credit drawn on First Interstate Bank, No. 53000953 and replace it with
the new one from PNC Bank (enclosed). Scott Medansky of Aviara would like to pick up the old
one. Please call him when ready. His number is 93 1- 1190, Ext. 107.
Thanks for your assistance.
L
LH:shk
Attachments (2)
a
.t ’ PNC Bank, National Amocia3-‘r Telex: 866533 Letter of Credit Department Swift: PITTUS 3rd Floor Annex Answerback: Firstbank Pgh
4 237 Fifth Avenue Pittsburgh, PA 15222
,7 PNCIEMNW
FL..ACE: AND DATE OF: ISSUE : F 1 TTSBURGH , PA , NOVEMIXL:R 18 Y 189’1 L.ETTER OF CREDIT NO. : A-3OPQZ.O
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* ;/& PNC Bank, National AssociaL-9 Telex: 866533 ?
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r* 237 Fifth Avenue Pittsburgh, PA 15222
F’t..ACE: AND DATE OF ISSUE : Pl’ TTSBURGH 9 PA T NOVEMBER 18 Y 1W’r LKTTEH OF CREDIT NO. : A-:30:3rs520
ASSOC TATION LETTER I-IF: CRUD1 T NO. A- :3(:)9&.2,1:) , DATED N~~‘$l:‘PIf:,rl: :Z IQ y 19’37 , REr’PRE:SENTE FUNDS DUe US AS WE. HAVE BEEN I\KtTIF’~E~) THAT F’NC BANK, NATIONAL. AIS;SOC ;A’]- I ON HAS EL.ECl‘ED Nr:w TI.:I RENEW ‘1-H It; LETTE’t2 OF’ Ct?E.I.) I. -i 9 AND ldI_ HAVE NOT ;;KL;“““E.L’ RV I ARA l...ANB &fSOC I ATtZ I-. LM 1: 3’ I,-:D P~‘~,RTNERs! ,t T F’ FL‘ 1KQ-l ‘I HE I t-2 L I hl3 IL. I ‘TY $4 I Tl-i II
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c I PNC Bank, National Associa+-t Telex: 866533 Letter of Credit Department Swift: PrrTuS33 3rd Floor Annex Answerback: Firstbank Pgh
..a 23 7 Fifth Avenue Pittsburgh, PA 15222
L./C: NO. : A -:f<19&3:)
LI PNCIBANK
NWEMBER 18 , I 997
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ORIGINAL
.
October 3 1,1997
TO: CITY ATTORNEY
FROM: Finance Director
CHANGE IN LETTER OF CREDIT
Aviara would like to change the provider of their letter of credit which secures their parks
agreement. Attached is a draft copy of the new letter of credit and the current (old) letter of
credit. Please review and let me know if you would require any modifications to the draft
version. I have reviewed the new bank (PNC) and I am okay with the change.
Thanks.
c
&- LISA HILDABR4ND
LH:shk
Attachment
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HEI~~iCiAKY: CIT~OFC!ARLSBAD AMuJNL; UYD 1,725.000.00 ATIX DIRECTOROI:F'INAF?CE (ONE! kimL.lON' aivm HUNDW 12OOCARLSBAD VUGLI DRlVE TwENlY m rHou!3AND AND 00/100 c.ART.SRA.T), CMORNIA %?OOS UNITED STATES’ DoLLUS}
BBGLEMEN:
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“‘lXEAMO~JNNT(IF CIlTRDR,9~~RRPRP.SRNTS~~SDTn?.rrS AS A RF,%TT.Tf’t~THRPACrr THAT THE F’LINDS ARE REQUIRED BY THE CITY OF CARLSBAD FCIR PlIRPORR,F DESCRTBED INSECTIONF2 "ADVANCEFWNDINGOF PARKIh4PROVEMEWS" OFPARK At?REEMENT
UA’I’ED JUNB 1,1989.
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DR&FT DRAWN QN US MARKED: “BRkWN UNDER FIRST
F CREDIT NUMBER 53000953. u
STATEMENTI SHCIWING SIGNED BY k PERSON WHOSE
ER” OR “CITY MAN&3ER” UR “CITY ATTURNEY”
5 &RE REQUIRED BY THE CITY QF CARLSBAD
:Fj3q. PURPOSFS DESCRLBEf~ IN SECTICM F2 “ADVANCE FlJNt~ING OF PARK
$;; :: ..IJMPRCWEl-iENTSt :l OF :>PrSRK AGREEMENT DATEB JUNE i I 1989 A
kLL BE AUTUM#-aTIi:ALL’i EXTENDED WITHOUT
PERIOD fSi i3F #NE YEAR FROM THE PRESENT
ALLY THEREAFTER UNLESS AT LEAST SIXTY (44 J XPIRATIUN DATE WE NOTIFY ‘1’01~1 ATTENTICJN
OF THE CITY CLERK, VIA REGISTERED LETTER OR CC)URIER SERVXCE) THCIT
: I. WE ELECT NQT T0 EXTEND THIS LETTER OF CREDIT FOR kM’i’ ~CIC~ITIONAL
i!ERsUCb UP#l’i YOUR RECEIPT OF 5UCH NOTICE1 YOU MAY DRAW THE &jlOUNT
,B’I’ PRE$ENTATION TO US OF
ACCiMYPANI ED BY THE ORIGINAL LETTER
ON CIN’i’ PARTIAL DRAWI!ylG IT SW&CL BE RETURNED TB YQU
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;y;;PQRI!h FRkNCE PUBLICtiTION NO. - 900 klK~ ENGAGES US IN ACCQRCiANCE WITH THE 1. * . .I.,,.‘,,., ,.,I . .
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2. YOUR SIGNED ciNl2 CtRTECs STATEMENTI SMWINC; SPGNECf BY A PER5ClN
WWXE TXTLE REAi.35 "CITY EMGINEER" OR '?X"iY Mtit4kGER" DR "CITY
ATTORi4EY ” CERTIFYXNG THAT THE FUNBS ARE REWIREll R'I' THE CITY OF
CMtLT;gbij FOR PURPQSES DESC’RIBETt XN SlXTIC3N ENTITLED “M~‘.%NIX
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Ct3NSIC~EREt~ AS PART QF THE ABOVE
CHEC1 THERETO
THi~;~AMEN~UJ+..IS TO l3E Ct3NSIC~EREt~ AS PART QF THE ABOVE
C\TTAGlEC~ THERETO
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November 2 1,1997
Mr. Scott Medansky
Aviara Land Associates Ltd.,
2011 Palomar Airport Road, Suite 206
Carlsbad CA 92009
RE: SECURITY RELEASE/REPLACEMENT - PARKS AGREEMENT
Per instructions from our Finance Department, we are hereby releasing the following Letter
of Credit for the above referenced project which has been replaced by another security
agreement:
Parks Agreement Letter of Credit No. 53000953
First Interstate Bank
Amount: $1,725,000
The Letter of Credit issued by First Interstate Bank is enclosed so that you may return it to
your financial institution. *
Sincerely,
CITY OF CARLSBAD
cc: Lisa Hildabrand, Finance Director
First Interstate Bank
Box 54191
Los Angeles CA 90054
1200 Carlsbad Village Drive - Carlsbad, California 92008-l 989 - (619) 434-2808 @
AVIARA
SCOTT M. MCUANSKY
DIRECTOR OF FINANCE
PNC Bank, National Association Telex: LX6533
Trade Service Operations - Swift: PNCCUS33
3rd Floor Annex Answerback: Firstbank Pgh
, 237 Fifth Avenue
I&burgh, PA 15222
OCTOBER 20, 1998
AVIARA LAND ASSOC. . . 2011 PALOMAR AIRPORT RD SUITE 206 CARLSBAD, CA 92009
GENTLEMAN: BENEFICIARY: CITY OF CARL&AD.
WE HEREBY AMEND OUR IRREVOCABLE LETTER OF CREDIT :AS FOLLOWS:
DELETE: LETTER OF CREDIT NO. A-309620: DELETE: LETTER OF CREDIT NO. A-309620:
SUBSTITUTE: SUBSTITUTE: IRREVOCABLE'LETTER OF CREDIT NO. S900414FGH IRREVOCABLE'LETTER OF CREDIT NO. S900414FGH :
DRAFTS MUST NOW BE DRAWN ON PNC BANK, NATIONAL ASSOCIATION, PITTSBURGH, DRAFTS MUST NOW BE DRAWN ON PNC BANK, NATIONAL ASSOCIATION, PITTSBURGH, PA AND BEAR THE CLAUSE: PA AND BEAR THE CLAUSE: "DRAWN UNDER PNC BANK, NATIONAL.ASSOCIATION "DRAWN UNDER PNC BANK, NATIONAL.ASSOCIATION LETTER OF CREDIT NO. S900414PGH LETTER OF CREDIT NO. S900414PGH
THIS LETTER OF CREDIT IS NOW PAYABLE AT THE COUNTERS OF PNC BANK, NATIONAL ASSOCIATION, 237 FIFTH AVENUE, THIRD FLOOR ANNEX BUILDING, PITTSBURGH, PA 15222.
THISISSUANCE DATE REFERRED TO HEREIN 1s INOT THE ISSUANCE DATE 0~ THE LETTER OF CREDIT, -BUT RATHER THE DATE OF THE CONVERSION,
ALL OTHER TERMS AND CONDITIONS OF THE CREDIT REMAIN UNCHANGED.
: $/.sjiLj@+ ;:. _'.. .: .:
I (AUTHORIZED SI~LNATURE)
: :iPNC BANK, NATIONAL ASSOCI&TION TRADE SERVICES OPERATIONS
FORM118849
PNC Bank, National Association Telex: 866533 Trade Service Operations - Swift: PNCCUSSS 3rd. Floor Annex
237 Fifth Avenue
Answerback: Firstbank Pgh
Pittsburgh, PA 15222
OCTOBER 20, 1998 c:. i \" I c‘ ‘i ', (.,",'/ - .-,, _.‘
CITY OF CARL&AD
ATTN: DIR.ECToR- OFrFINANcE 1200 ELM AVENUE :
CARLSBAD,- CA 92008. :
GENTLEMEN :
APPLICANT : AVIARA LAND ASSOC. -
WE HEREBY AMEND OUR IRREVOCABLE LETTER OF CREDIT AS FOLLOWS:
'DELETE: LETTER OF CREDIT NO. A-3&620:
1 -SUBSTITUTE: IRREVOCABLE LETTER OF CREDIT NO. S900414PGH
:DRAFTS MUST NOW BE DRAWN ON PNC BANK,.NATI~NAL ASSOCIATION, PITTSBURGH, PA AND BEAR THE CLAUSE: "DRAWN UNDER PNC BANK, NATIONAL ASSOCIATION LETTER OF CREDIT NO, S900414PGH
THIS LETTER OF CREDIT IS NOW PAYABLE AT THE COUNTERS OF PNC BANK, THIS LETTER OF CREDIT IS NOW PAYABLE AT THE COUNTERS OF PNC BANK,
NATIONAL ASSOCIATION, 237 FIFTH AVENUE, THIRD FLOOR ANNEX BUILDING, NATIONAL ASSOCIATION, 237 FIFTH AVENUE, THIRD FLOOR ANNEX BUILDING,
PITTSBURGH, PA 15222. PITTSBURGH, PA 15222.
THIS ISSUANCE DATE REFERRED TO HEREIN AFTER.IS NOT; THE ISSUANCE DATE OF THIS ISSUANCE DATE REFERRED TO HEREIN AFTER.IS NOT: THE ISSUANCE DATE OF THE: LETTER OF CREDIT, BUT RATHER THE DATE OF THE CONVERSION. :; THE: LETTER OF CREDIT, BUT RATHER THE DATE OF THE CONVERSION. :;
ALL OTHER.TERMS AND CONDITIONS 'OF THE CREDIT;REMAIN UNCHANGED,; ALL OTHER.TERMS AND CONDITIONS 'OF THE CREDIT~REMAIN UNCHANGED,;
:~~J&JY&y .:
(AUTHORIZED S&NATURE) : :
: I FkC BANK, NATIONAL ASSOCIATION : I PNC BANK, NATIONAL ASSOCIATION
:. TRADE SERVICES aPERATIONS :. TRADE SERVICES aPERATIONS
FOfNl116649
c I * PNC Bank, National Associatbn Telex: 866533 . Letter of Credit Department Swift: PITTUS
3rd Floor Annex Answerback: Firstbank Pgh
237 Fifth Avenue Pittsburgh, PA 15222
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3rd Floor Annex Answerback: Firstbank Pgh
237 Fifth Avenue
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PNC Bank, National Associatiw Telex: 866533
Letter of Credit Department Swift: PITITJS33
3rd Floor Annex Answerback: Firstbank Pgh
237 Fifth Avenue Pittsburgh, PA 15222
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FORM641
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ORIGINAL