HomeMy WebLinkAboutCalavera Hills II LLC; 2002-10-08;OPTION AGREEMENT
THIS OPTION AGREEMENT is made on October 8,2002, at Carlsbad,
California, by and among CALAVERA HILLS I1 LLC, a California limited liability company
(“Seller”), the CITY OF CARLSBAD, a municipal corporation (“Buyer”), and the RANCHO
CARLSBAD OWNERS ASSOCIATION INC., a California corporation (“Beneficiary”).
REClTALS
A. Propertv. Seller is the owner of approximately 5.7 acres of real property,
including all improvements located thereon, in the City of Carlsbad, in San Diego County,
California, identified more particularly on Exhibit A hereto and described in the Purchase
Agreement and Escrow Instructions attached hereto as Exhibits B and C (the “Property”).
B. Pumose. Buyer desires to acquire the exclusive right to purchase the
Property, under specified terms and conditions, without becoming obligated to purchase it.
Should Buyer choose not to purchase the Property, Beneficiary desires the exclusive right to
purchase the Property, under specified terms and conditions, without becoming obligated to
purchase it. The Property is intended to be used to provide a relocation site for Beneficiary’s
community garden, RV Parking Lot (which includes, without limitation, parlung for boats, cars,
jet skis, RVs, hay wagons and other personal items), wash area and waste disposal area, subject
to any applicable governmental approvals (collectively referred to herein as the “Intended
Uses”), that will either be replaced by or have the access severed by the construction of Reach A
of College Boulevard and/or installation of Detention Basin “BJ” as part of the Bridge &
Thoroughfare District No. 4 and Detention Basins Project, all of which was analyzed in Final
EIR No. 98-02 (SCH No. 991 11082),’ along with and including the Calavera Hills Master Plan
Phase I1 (collectively referred to herein as the “Project”). Buyer and Beneficiary each
specifically agree that if either of them exercises the option to purchase the Property, they will do
so solely for the purpose of using the Property for the Intended Uses.
C. m. This Agreement is not intended to provide any rights to Buyer or
Beneficiary with respect to the Property or future entitlements for the Robertson Ranch, except
as expressly set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, the parties agree as follows:
1. Grant of Option to Buver. Seller hereby grants to Buyer the exclusive
right to purchase the Property (“Buyer’s Option”) during the term of Buyer’s Option set forth in
Section 3 below, at the price to be determined pursuant to Section 8 below, and according to
I City Council Resolution No. 2002-016, dated January 15,2002.
other terms and conditions to be set forth in a Purchase Agreement and Escrow Instructions
(“Purchase Agreement”), a proposed but non-binding draft of which is attached hereto as
Exhibit B. Nothing in this Agreement is intended to effect the City’s ability to acquire some or
all of the Property through its power of eminent domain.
2. Grant of Option to Beneficiary. Should Buyer not exercise Buyer’s
Option, Seller grants to Beneficiary the exclusive right to purchase the Property (“Beneficiary’s
Option”) during the term of Beneficiary’s Option set forth in Section 4 below, at the price to be
determined pursuant to Section 10 below, and according to the terms and conditions set forth in
the Purchase Agreement and Escrow Instructions (“Purchase Agreement”) attached hereto as
Exhibit C (or as modified in accordance with Section 16 below).
3. Term of Buyer’s Option. The term of Buyer’s Option shall begin upon
date of this Agreement and end on January 1,2009. However, if Buyer provides notice of intent
to exercise Buyer’s Option in accordance with Section 8 below, and the parties either fail to
agree on a purchase price pursuant to Section 8.2 or Buyer fails to exercise Buyer’s Option
pursuant to Section 9, then Buyer’s Option shall terminate as provided in Section 8.2 or Section
9.3, as applicable, or upon January 1,2009, whichever is sooner. Notwithstanding the foregoing,
if at any time prior to January 1,2009, Buyer determines that it does not intend to exercise
Buyer’s Option, Buyer shall send a written notice to Seller and Beneficiary (the “Option
Termination Notice”) stating that Buyer does not intend to exercise its option. In such case,
Buyer’s Option shall terminate upon the date of the Option Termination Notice. If Buyer fails to
provide Option Termination Notice or notice of intent to exercise Buyer’s Option in accordance
with Section 8 below by January 1,2008, Buyer’s Option shall terminate on January 1,2008.
4. Term of Beneficiarv’s Option. If the Option Termination Notice is
provided prior to January 1,2008, then the term of Beneficiary’s Option shall begin on the date
of the Option Termination Notice and end on January 1,2010. If Buyer fails to send an Option
Termination Notice and fails to send notice of intent to exercise Buyer’s Option by January 1,
2008, then the term of Beneficiary’s Option shall begin on January 2,2008 and end on January 1,
2010. If Buyer provides notice of intent to exercise Buyer’s Option in accordance with Section
8 below, but fails to exercise Buyer’s Option pursuant to Section 9, then the term of
Beneficiary’s Option shall begin the day after Buyer’s Option terminates and shall terminate on
January 1,2010. If Beneficiary provides notice of intent to exercise Beneficiary’s Option as
provided in Section 10 below, but fails to exercise Beneficiary’s Option as provided in Section
11, Beneficiary’s Option shall terminate as provided in Section 11.3 or upon expiration of the
term of Beneficiary’s Option as defined herein, whichever is sooner.
5. Consideration for Options. The Buyer’s Option and the Beneficiary’s
Option are granted in consideration of Beneficiary’s agreement to withdraw its opposition to and
to support approval of the Project before the City of Carlsbad and/or any other public entity.
6. Cooperation Regarding Robertson Ranch. Beneficiary agrees that if, at
any time prior to finalization of the permits and entitlements for the Robertson Ranch, any
agency requests or requires the signature of Beneficiary for the processing of any such permits
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and entitlements, Beneficiary will timely provide such signature as is requested or required. In
addition, should Seller apply to move the Property which is currently located within Local
Facilities Management Zone (“LFMZ) 14 to LFMZ 15, Beneficiary agrees to support such
action. Nothing herein shall preclude the Buyer or Beneficiary from exercising their rights of
enforcement of the Conditions of Approval for the Project, set forth on Exhibit D hereto. In the
event there is a conflict between the provisions of this Agreement and such conditions, the
conditions of approval shall control.
7. Right of Entrv. Seller agrees to permit Buyer, Beneficiary and their
respective agents to enter upon the Property, subject to the rights of any tenants, at reasonable
times after at least five (5) days advance notice to Seller to make such surveys, inspections and
tests as may reasonably be necessary in connection with its examination of the Property for
purposes of this Agreement during the term of this option. Buyer hereby agrees to repair any
damage or disturbance it or its agents may cause to the Property, and further agrees to indemnify,
defend and hold Seller harmless from and against any and all claims, losses, damages and
expenses, including reasonable attorneys’ fees, asserted against or suffered by Seller as a result
of Buyer’s or its agents’ entry upon or acts upon the Property for purposes of this Agreement.
Beneficiary hereby agrees to repair any damage or disturbance it or its agents may cause to the
Property, and further agrees to indemnify, defend and hold Seller harmless from and against any
and all claims, losses, damages and expenses, including reasonable attorneys’ fees, asserted
against or suffered by Seller as a result of Beneficiary’s or its agents’ entry upon or acts upon the
Property for purposes of this Agreement. In addition, Buyer and Beneficiary shall each maintain
in full force and effect a comprehensive general liability insurance policy from an insurer
licensed to do business in the State of California having a general policy holders’ rating of “A”
or better and a financial size rating of Class XII or better in the most recent edition of Best’s
Guide to Insurance Companies. Each policy shall afford minimum coverage of $1,000,000 per
occurrence and $2,000,000 aggregate, include broad form contractual liability coverage, name
Seller as an additional insured, be primary and non-contributing with any insurance Seller may
have, contain a waiver of subrogation rights against Seller, and contain a provision that it will not
be modified or terminated without at least ten days’ advance written notice to Seller. Seller
acknowledges that Buyer is self-insured for general liability and that such insurance is sufficient
for purposes of this Section.
8. Notice of Intent To Exercise Buver’s Option.
8.1 Notice. Buyer shall give Seller and Beneficiary written notice of
its non-binding intent to exercise Buyer’s Option not more than fifteen (15) months and not less
than twelve (12) months prior to its exercise of Buyer’s Option. Such notice of intent triggers
the purchase price determinatiodpurchase agreement process set forth in Section 8.2 below,
8.2 Determination of Buver’s Purchase Price And Terms Of Purchase
Agreement. Within sixty (60) days after receiving notification from Buyer of its intention to
exercise Buyer’s Option, Seller shall provide Buyer with an initial appraisal of the fair market
value of the Property and Seller’s proposed purchase price for the Property, such price to be not
more than what Seller believes to be the fair market value of the Property as of the date of the
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notice of intent to exercise Buyer’s Option. If Buyer in good faith, disagrees with or otherwise
disputes Seller’s determination of the proposed purchase price for the Property, it shall so notify
Seller, in writing, within thirty (30) days after receiving Seller’s proposed purchase price.
Thereafter, the parties shall seek to settle the dispute by way of good faith negotiations to be
concluded within ninety (90) days after the date of Buyer’s notice of disagreement with the
proposed purchase price. During this time, the parties shall also negotiate the terms of the
Purchase Agreement, a proposed, non-binding draft of which is attached hereto as Exhibit B, to
be used should Buyer decide to exercise Buyer’s Option and purchase the Property. If, after such
good faith negotiations, the parties are still not able or willing to agree upon the purchase price
for the Property or the terms of the Purchase Agreement, Buyer’s Option shall terminate and
Buyer shall provide Option Termination Notice to Seller and Beneficiary.
8.3 Condition of Title. Within forty-five (45) days after receiving the
written notice provided for in Section 8.1 above, Seller shall deliver to Buyer (i) a current
preliminary title report with respect to the Property (“Preliminary Title Report”), (ii) copies of
the documents referred to therein as exceptions, and (iii) at Buyer’s sole cost and expense, an
ALTA survey of the Property ( “Survey”). Within thirty (30) days after Buyer’s receipt of the
Preliminary Title Report, exceptions and Survey, Buyer shall provide Seller with a written notice
designating those exceptions reported in the Preliminary Title Report andor other items shown
on the Survey that Buyer disapproves, if any. If Buyer disapproves of any item described in the
Preliminary Title Report or shown on the Survey, Seller shall have fifteen (15) days in which to
notify Buyer whether Seller elects to eliminate any item disapproved. Seller shall have no
obligation to eliminate any item disapproved by Buyer. If Buyer’s Option is exercised, title to
the Property shall be conveyed by Seller to Buyer in accordance with the requirements of the
Purchase Agreement negotiated pursuant to Section 8.2 above.
9. Exercise of Option bv Buyer. Buyer may exercise Buyer’s Option during
the term of Buyer’s Option, provided it has provided notice of intent in accordance with Section
8.1 above, by:
9.1 Within thirty (30) days after the purchase price for the Property
and terms of the Purchase Agreement have been agreed upon pursuant to Section 8.2 above,
delivery of written notice to Seller that Buyer’s staff will recommend that Buyer exercise
Buyer’s Option at the purchase price agreed upon and according to the terms of the Purchase
Agreement, and that the administrative approval process has been initiated.
9.1.1 Within 120 days of the written notice provided pursuant to
Section 8.1 above, Buyer’s delivery of written notice to Seller stating that Buyer’s Option is
exercised without condition or qualification. This 120-day period may be extended by mutual
written agreement of Seller and Buyer for a period not to exceed thirty (30) days. Said notice
shall be accompanied by three (3) copies of the Purchase Agreement negotiated pursuant to
Section 8.2 above, each of which shall have been originally executed by Buyer.
9.2 Upon receipt thereof during the term of Buyer’s Option, Seller
shall forthwith originally execute each of the three (3) copies of the Purchase Agreement, and
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shall deliver one (1) copy so executed to Buyer, and one (1) copy so executed to the escrow
holder. Seller and Buyer shall thereafter additionally execute, acknowledge and deliver any and
all other documents necessary or appropriate to carry out the terms and conditions of the
Purchase Agreement.
9.3 If Buyer’s Option is not exercised within the time frames provided
for herein, Buyer’s Option shall terminate and Buyer shall provide Option Termination Notice to
Seller and Beneficiary.
10. Notice of Intent to Exercise Beneficiarv’s Oution.
10.1 Notice. Beneficiary shall give Seller written notice of
Beneficiary’s non-binding intent to exercise Beneficiary’s Option not more than twelve (12)
months and not less than nine (9) months prior to its exercise of Beneficiary’s Option.
Beneficiary’s notice of intent shall trigger the determination of the purchase price, as set forth in
Section 10.3 below.
10.2 Condition of Title. Within forty-five (45) days after receiving
Beneficiary’s notice of intent, Seller shall deliver to Beneficiary (i) a current preliminary title
report with respect to the Property (“Preliminary Title Report”), (ii) copies of the documents
referred to therein as exceptions, and (iii) at Beneficiary’s sole cost and expense, an ALTA
survey of the Property ( “Survey”). Within thirty (30) days after Beneficiary’s receipt of the
Preliminary Title Report, exceptions and Survey, Beneficiary shall provide Seller with a written
notice designating those exceptions reported in the Preliminary Title Report and/or other items
shown on the Survey that Beneficiary disapproves, if any. If Beneficiary disapproves of any
item described in the Preliminary Title Report or the Survey, Seller shall have thirty (30) days in
which to notify Beneficiary whether Seller elects to eliminate any item disapproved. Seller shall
have no obligation to eliminate any item disapproved by Beneficiary. If Beneficiary’s Option is
exercised, title to the Property shall be conveyed by Seller to Beneficiary in accordance with the
requirements of Exhibit C (or as modified in accordance with Section 16 below).
10.3 Determination of Purchase Price. Within sixty (60) days after
receiving notification from Beneficiary of its intention to exercise Beneficiary’s Option, Seller
shall provide Beneficiary with an initial appraisal of the fair market value of the Property and
Seller’s proposed purchase price for the Property, such price to be not more than what Seller
believes to be the fair market value of the Property as of the date of the notice of intent to
exercise Beneficiary’s Option. If an initial appraisal has been prepared for the Property in
accordance with Section 8.2 above within the six (6) months preceding Beneficiary’s notice of
intent, this appraisal shall be used as the initial appraisal. If an initial appraisal has been
prepared for the Property in accordance with Section 8.2 above more than six (6) months
preceding Beneficiary’s notice of intent, Seller may, at its sole discretion, utilize that appraisal as
the initial appraisal. If Beneficiary, in good faith, disagrees with or otherwise disputes Seller’s
determination of the proposed purchase price for the Property, it shall so notify Seller, in writing,
within thirty (30) days after receiving Seller’s proposed purchase price. Thereafter, the parties
shall seek to settle the dispute by way of good faith negotiations to be concluded within thirty
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(30) days after the date of Beneficiary’s notice of disagreement with the proposed purchase
price. If, after such good faith negotiations, the parties are still not able or willing to agree upon
the purchase price for the Property, then the matter shall be settled in accordance with the
following procedures:
10.3.1 Within sixty (60) days of the conclusion of the negotiations
provided for above, Beneficiary shall have a second appraisal of the fair market value of the
Property prepared and shall provide that second appraisal and Beneficiary’s proposed purchase
price for the Property to Seller. The cost of the second appraisal shall be paid solely by
Beneficiary.
10.3.2 If Seller, in good faith, disagrees with or otherwise disputes
Beneficiary’s determination of the proposed purchase price for the Property, it shall so notify
Beneficiary, in writing, within fifteen (15) days after receiving Beneficiary’s proposed purchase
price. Thereafter, the parties shall seek to settle the dispute by way of good faith negotiations to
be concluded within thirty (30) days after the date Seller provides notice of its disagreement with
the proposed purchase price.
10.3.3 If, after such good faith negotiations, the parties are still not
able or willing to agree upon the purchase price for the Property, the two appraisers who
prepared the initial and second appraisals shall designate a third appraiser to appraise the
Property. If the two appraisers cannot agree on the third appraiser within five (5) business days
of being requested to designate the third appraiser, then the matter shall be referred to the
American Arbitration Association (“AAA”), which will choose the third appraiser. The decision
of the AAA selecting the third appraiser shall be final. The parties shall share equally the costs
of the AAA, if any, and the third appraiser.
10.3.4 After soliciting, accepting and reviewing such information
and documentation as he or she may deem necessary and appropriate, including that submitted
by either party, the third appraiser shall arrive at, within thirty (30) days after appointment, a
statement of what he or she considers the fair market value of the Property to be as of the date of
the notification of intent to exercise Beneficiary’s Option, and provide that statement to Seller
and Beneficiary. Then the two (2) closest appraised figures for the fair market value of the
Property shall be averaged (with the third not utilized), and the amount so calculated shall be the
purchase price applicable to the exercise of Beneficiary’s Option. However, if the three
appraised figures of fair market value are in exactly equal increments (for example, 100, 110,
120). then the middle figure shall be utilized as the purchase price applicable to the exercise of
Beneficiary’s Option.
11. Exercise of Option bv Beneficiary.
11.1 Beneficiary may exercise Beneficiary’s Option, during the term of
Beneficiary’s Option, provided Beneficiary has provided notice of intent in accordance with
Section 10.1 above, by:
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11.1.1 Within sixty (60) days after the purchase price for the
Property has been agreed upon or determined pursuant to Section 10.3 above, Beneficiary’s
delivery of written notice to Seller stating that Beneficiary’s Option is exercised without
condition or qualification. Said notice shall be accompanied by three (3) copies of Exhibit C (or
as modified in accordance with Section 16 below), each of which shall have been completed by
Beneficiary as provided in Section 11.2 below and then originally executed by Beneficiary.
11.2 To complete each of the copies of Exhibit C, Beneficiary shall:
11.2.1 Insert the date of Beneficiary’s exercise of Beneficiary’s
Option as the “Date of this Agreement” in paragraph 1.1 thereof;
11.2.2 Insert the name of the Escrow Agent in paragraph 1.3
thereof;
11.2.3 Insert the total purchase price, as determined according to
Section 10.3 of this Agreement, in paragraph 1.5 thereof and the balance of the total purchase
price in paragraph 1.7 thereof;
11.2.4 Insert applicable notice information for the Buyer and
Escrow Agent in paragraphs 1.9 and 1.11 thereof;
11.2.5 Insert the date and order number of the Survey delivered
pursuant to Section 10.2 of this Agreement in paragraph 6.1.3 thereof;
11.2.6 Insert the date and order number of the Preliminary Title
Report delivered pursuant to Section 10.2 of this Agreement in paragraph 6.1.3 thereof; and
11.2.7 Insert those exceptions reported in the Preliminary Title
Report or the Survey which, pursuant to Section 10.2 of this Agreement, (a) Beneficiary has
disapproved, and (b) Seller has agreed to eliminate, in paragraph 6.1.3 thereof.
Upon receipt thereof, Seller shall forthwith insert applicable notice information for Seller in
paragraph 1.10 thereof, originally execute each of the three (3) copies of Exhibit C, and shall
deliver one (1) copy so executed to Beneficiary, and one (1) copy so executed to the escrow
holder. Seller and Beneficiary shall thereafter additionally execute, acknowledge and deliver any
and all other documents necessary or appropriate to carry out the terms and conditions of
Exhibit C.
11.3 If Beneficiary’s Option is not exercised within the time frames
provided for herein, Beneficiary’s Option shall terminate.
12. Fair Market Value/Auuraisals. Fair market value is defined for purposes
of this Agreement as provided in California Code of Civil Procedure section 1263.320, as
amended from time to time. All appraisals provided for under this Agreement shall be prepared
by an M.A.I. appraiser experienced in appraising undeveloped land. The Robertson’s Ranch
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house (defined in Section 16 below) located on the Property shall not be included in any
valuation of the Property.
13. Extension of Time Periods. Notwithstanding Section 14 below and except
as otherwise provided herein, any time period provided in this Agreement may be extended by
the mutual written agreement of all the parties to this Agreement.
14. Automatic Termination.
14.1 w. If Buyer fails to exercise Buyer’s Option in accordance
with the time frames specified in this Agreement, Buyer’s Option and the rights of Buyer shall
automatically and immediately terminate without notice. Thereafter, Buyer agrees that it will
execute, acknowledge and deliver to Seller, within ten (10) days from request therefore, a
quitclaim deed or any other document reasonably requested by Seller or a title insurance
company to verify the termination of the option.
14.2 Beneficiary. If Beneficiary fails to exercise Beneficiary’s Option
in accordance with the time frames specified in this Agreement, Beneficiary’s Option and the
rights of Beneficiary shall automatically and immediately terminate without notice. Thereafter,
Beneficiary agrees that it will execute, acknowledge and deliver to Seller, within ten (10) days
from request therefore, a quitclaim deed or any other document reasonably requested by Seller or
a title insurance company to verify the termination of the option.
14.3 Due to Denial of Permit. If either Buyer or Beneficiary are denied
by any approving governmental agency a requested permit necessary for use of the Property for
the Intended Uses, and the denial becomes final after exhaustion of administrative and judicial
remedies, then both Buyer’s Option and Beneficiary’s Option shall automatically terminate.
Thereafter, Buyer and Beneficiary agree that they will each execute, acknowledge and deliver to
Seller, within ten (10) days from request therefore, a quitclaim deed or any other document
reasonably requested by Seller or a title insurance company to verify the termination of the
options.
15. Reauest for Termination Bv Seller. Prior to the expiration of this
Agreement, Seller may submit to Buyer andor Beneficiary, as applicable, a written request that
Buyer’s Option andor Beneficiary’s Option, as applicable, be terminated. Within 30 days of
receipt of such written request, Buyer andor Beneficiary, as applicable, shall respond in writing
with either an Option Termination Notice, or a statement that Buyer andor Beneficiary, as
applicable, do not wish to terminate the option and an explanation of the reason(s) therefore. If
Buyer’s Option andor Beneficiary’s Option are terminated as a result hereof, thereafter, Buyer
andor Beneficiary, as applicable, agree that they will execute, acknowledge and deliver to
Seller, within ten (10) days from request therefore, a quitclaim deed or any other document
reasonably requested by Seller or a title insurance company to verify the termination of the
options.
16. Robertson’s Ranch House. The parties acknowledge that located on the
Property is a single family home once belonging to the Robertson family (the “Robertson’s
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Ranch House”). If either Buyer’s Option or Beneficiary’s Option is exercised, Seller intends to
transfer ownership of the Robertson’s Ranch House to Beneficiary at no cost (assuming the
house is still located on the Property at the time the option is exercised).
16.1 Because Buyer does not wish to take title to the Robertson’s Ranch
House if it exercises Buyer’s Option, if Buyer exercises Buyer’s Option, Seller shall retain title
to the Robertson’s Ranch House (rather than transfer it with the Property) and (a) Seller, on the
one hand, and Buyer on the other, will enter into a commercially reasonable lease agreement,
leasing to Seller, at no cost (or at the lowest cost permitted by law), the land on which the
Robertson’s Ranch House sits together with an amount of land sufficient to meet City
requirements surrounding the Robertson’s Ranch House, for a period of time equal to the amount
of time Buyer retains ownership of the Property, and (b) Buyer will provide Seller, at Closing,
with an appropriate easement at no cost to Seller (or at the lowest cost permitted by law) for
pedestrian, vehicular and utility access to the Robertson’s Ranch House across a portion of the
Property, for the duration of the lease referred to herein, pursuant to a commercially reasonable
easement document, and such easement shall be subject only to those liens, encumbrances and
similar matters as are shown on the Preliminary Title Report or added by any public agency
approving entitlements for use of the Property, and shall include appropriate indemnification for
Buyer from liability arising out of use of such easement. Seller will then transfer ownership of
the Robertson’s Ranch House to Beneficiary, at no cost (assuming the house is still on the
Property), in a separate transaction and Beneficiary agrees to accept such transfer.
16.2 If Beneficiary exercises Beneficiary’s Option, Seller shall transfer
ownership of the Robertson’s Ranch House to Beneficiary at no cost (assuming the house is still
on the Property at the time the Beneficiary’s Option is exercised), as provided in the Purchase
Agreement attached hereto as Exhibit C.
16.3 The parties agree that prior to transfer of the Robertson’s Ranch
House, Seller retains all rights with respect to the house including, but not limited to, the right to
remove the house from the Property, subject to any necessary governmental approvals. Seller
shall have no obligation as a result of this Agreement to replace or repair the house (including
without limitation the structure itself and any appliances or fixtures), or provide compensation to
Beneficiary for the house (including without limitation the structure itself and any appliances or
fixtures) should it be damaged or destroyed prior to the exercise of Buyer’s Option or
Beneficiary’s Option. Beneficiary shall have the right to refuse to accept transfer of the
Robertson’s Ranch House if it is significantly damaged or is not generally in the same condition
as it is on the date of this Agreement, ordinary wear and tear excepted. Should Beneficiary
believe that circumstances warrant its refusal to accept transfer of the Robertson Ranch House, it
will provide Seller with written notice setting forth the reasons therefore at least thirty (30) days
prior to the exercise of Beneficiary’s Option. Thereafter, Seller will either repair the house to its
prior condition or remove the house, subject to any necessary governmental approvals. Should
the Robertson’s Ranch House no longer exist on the Property at the time Beneficiary’s Option is
exercised, the Purchase Agreement and Declaration of Restrictions attached hereto as Exhibit C
shall be revised to delete reference to the Robertson’s Ranch House. Nothing in this paragraph is
intended to give Beneficiary the right to refuse transfer of the Property from Buyer if Buyer
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exercises Buyer’s Option and Beneficiary is not satisfied with the condition of the Robertson’s
Ranch House. In such instance, Beneficiary will accept transfer of the Property with the
Robertson’s Ranch House, subject to the lease and easements described in paragraph 16.1, and
resolve any dispute over the transfer and condition of the Robertson’s Ranch House in
accordance with this Section 16.3.
16.4 Prior to transfer of the Property, Seller agrees to remove any other
structures located on the Property, other than the Robertson’s Ranch House, and to remove and
remediate, as necessary and required by law, all underground storage tanks located on the
Property.
16.5 If any agency, in connection with an approval related to the
Robertson Ranch project, imposes a condition of approval and/or mitigation measure related to
the Robertson’s Ranch House, Beneficiary agrees to cooperate with Seller in fulfillment of such
condition and/or mitigation measure should performance of such condition and/or mitigation
measure need to occur after transfer of the Robertson’s Ranch House to Beneficiary. The cost of
fulfilling any such condition and/or mitigation measure shall be borne entirely by Seller.
17. Use of Property Prior To Exercise of Optiofluture Entitlements.
17.1 The parties understand and acknowledge that the Property is part
of a larger parcel of land generally known as the Robertson Ranch. Among other things, in order
to transfer the Property to Beneficiary, should Buyer choose not to purchase the Property and
Beneficiary exercise its option to purchase the Property, Seller will need to process and obtain
approval from Buyer of certain entitlements for Robertson Ranch, including but not limited to, a
master plan, specific plan, re-zone, tentative map and/or tentative parcel map. In addition, it is
possible that Buyer or Beneficiary will never exercise their respective options to purchase the
Property. Accordingly, prior to the exercise of either Buyer’s Option or Beneficiary’s Option,
Seller retains all rights with respect to the Property including, without limitation, the right to
entitle, map, re-zone, encumber in any manner, and grade the Property, subject to any required
governmental approvals. However, if Seller grades the Property, it agrees to: (i) salvage and
replace the top two (2) feet of topsoil, (ii) use its best efforts to preserve the grove of eucalyptus
trees on the Property, and (iii) not change the general topography of the Property in such a way
as to make it unusable for the Intended Uses. Seller further agrees to provide Buyer (if not the
approving agency) and Beneficiary with written notice of any entitlement, map, re-zoning,
encumbrance or grading related to Robertson Ranch after final approval of the same. Seller
further agrees to disclose the existence of this Agreement and the potential Intended Uses in any
application or related documents submitted to any governmental agency for approval of any such
entitlement, map, or re-zone for Robertson Ranch to the extent necessary or required by law for
the processing of such approvals. However, nothing in this Agreement shall obligate Seller to
seek or apply for any permit, entitlement or other authorization related to the Intended Uses.
17.2 The parties further understand and acknowledge that because the
Property is intended to be used as a replacement and relocation site should either Buyer or
Beneficiary exercise its option, and the timing of such usage depends upon the development of
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College Boulevard Reach A, the Beneficiary hereunder may need to seek entitlements for the
Property separate and apart from the Robertson Ranch entitlements. Accordingly, except as
otherwise provided herein, Beneficiary shall have the right to apply to the appropriate
governmental agencies for such entitlements as are necessary to use the Property for the Intended
Uses, subject to Seller’s right to review and approve any and all such applications, and Seller’s
right to approve any conditions or other requirements imposed by any approving agency in
connection with approval of such applications. Seller agrees to cooperate with Beneficiary in the
review and approval of such applications provided that such entitlements and processing (1) will
have no adverse effect on the concurrent or future processing of entitlements for Robertson
Ranch, (2) will not preclude any uses of Robertson Ranch, and (3) that Beneficiary and any
applicable governmental agencies agree that any entitlement(s) granted for the Property,
including but not limited to any zone change, permit, or other approval, separate and apart from
the Robertson Ranch entitlements, are expressly conditioned upon the exercise of Buyer’s
Option or Beneficiary’s Option and actual transfer of the Property to either Buyer or Beneficiary
within the timeframes specified in this Agreement. Except for approvals from the City of
Carlsbad to permit the Intended Uses, Beneficiary shall not accept or perfect any permit or
entitlement for the Property unless and until actual transfer of the Property to either Buyer or
Beneficiary. Beneficiary agrees not to assert any deadline provided by the Permit Streamlining
Act, California Government Code sections 65920 et. seq., in connection with any of the permits,
applications or entitlements for the Property referred to herein. At Seller’s election, it may
process the entitlements that are necessary to use the Property for the Intended Uses. If Seller
makes such election, it shall notify Beneficiary in writing at least thirty (30) days prior to
submittal to any governmental agency of any application related to entitlements for the Intended
Uses, provide Beneficiary with a copy of any such application and related documents, and work
cooperatively with Beneficiary to accomplish the goal of obtaining conditional approval of the
entitlements necessary to use the Property for the Intended Uses.
18. Assignment. Neither Buyer nor Beneficiary may assign their rights under
this Agreement without Seller’s prior written consent, which Seller may grant or withhold in the
exercise of its sole and absolute discretion. Notwithstanding the foregoing, upon reasonable
notice to Seller, Buyer may assign its rights under this Agreement to a City of Carlsbad-
controlled governmental entity which will provide funding for the construction of Reach A of
College Boulevard and/or installation of Detention Basin “BJ,” and Beneficiary may assign its
rights under this Agreement to any successor entity to Beneficiary or to a Section 501(C)(3)
entity established by Beneficiary for purposes of holding all or some of the Property. In the
event of such an assignment, neither Buyer nor Beneficiary shall be relieved of its obligations
herein, and if an assignee of Buyer or Beneficiary exercises its corresponding Option, Buyer or
Beneficiary, as the case may be, shall execute a guarantee of the Purchase Agreement that is
acceptable to Seller.
19. Brokers and Finders. Each party represents and warrants to the others that
it has not engaged or dealt with any broker or finder in connection with this Agreement or the
transaction contemplated hereby, and agrees to defend, indemnify and hold the other parties
harmless from all claims, losses, damages, costs and expenses, including reasonable attorneys’
fees, arising from or related to any assertion to the contrary by any such broker or finder.
11
SD-DOCSUO4222.12
20. Notices. Any notice to be given hereunder by any party to any other party
shall be given in writing by personal delivery or by registered or certified mail, postage prepaid,
return receipt requested, and shall be deemed communicated as of the date of personal delivery
or three (3) days after the date of mailing. Mailed notices shall be addressed as set forth below,
but each party may change the address set forth below by written notice to the other parties in
accordance with this paragraph.
To Seller: Brian Milich
Mch4illin Communities, LLC
2727 Hoover Avenue
National City, CA 91950
Phone: (619) 336-3138
Fax: (619) 336-3396
To Buyer: David Hauser
Deputy City Engineer
City of Carlsbad
1635 Faraday Avenue
Carlsbad, CA 92008
Phone: (760) 602-2720
Fax: (760) 602-8562
To Beneficiary: President
Rancho Carlsbad Owners Association
5200 El Camino Real
Carlsbad, California 92008
Phone: (760) 438-0333
Fax: (760) 438-1808
and L. Sue Loftin, Esq.
THE LOFI'IN FIRM
4330 La Jolla Village Dr., Suite 330
San Diego, California 92122
Phone: (858) 535-9380
Fax: (858) 535-9381
21. Time of Essence. Time is of the essence to this Agreement.
22. Entire Ameement. This instrument contains the entire agreement between
the parties related to the options herein granted, and supersedes all prior oral and written
agreements between the parties with respect to the Property, however, it does not affect any of
the conditions of approval for the Project. Any oral representations or modifications concerning
this Agreement shall be of no force or effect. This Agreement may be amended only by a
subsequent agreement in writing signed by all parties.
12
SD-DocSUO4222.12
23. Interpretation and Governing Law. This Agreement and any dispute
arising hereunder shall be governed and interpreted in accordance with the laws of the State of
California. This Agreement shall be construed as a whole according to its fair language and
common meaning to achieve the objectives and purposes of the parties hereto, and the rule of
construction to the effect that ambiguities are to be resolved against the drafting party shall not
be employed in interpreting this Agreement, each party having been represented by counsel in
the negotiation and preparation hereof.
24. Incorporation of Recitals. The recitals set forth at the beginning of this
Agreement are part of this Agreement.
25. Section Headinm. All section headings and subheadings are inserted for
convenience only and shall not affect any construction or interpretation of this Agreement.
26. Counterparts. This Agreement may be executed by the parties in
counterparts, which counterparts shall be construed together and have the same effect as if all of
the parties had executed the same instrument.
[SIGNATURES ON FOLLOWING PAGE]
13
SD-DOCSU04222.12
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
SELLER
CALAVERA HILLS I1 LLC, a California limited
liability company
By its Manager: McMillin Companies, LLC,
By:
Its: "wfl
By:
BUYER
CITY OF CARLSBAD, a municipal colporation
Its:
BENEFICIARY:
RANCHO CARLSBAD OWNERS
ASSOCIATION, INC.
14
SD-DOCSU04222.12
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
SELLER:
CALAVERA HILLS II LLC, a California limited
liability company
a Delaware limited liability company
By its Manager: McMiliin Companies, LLC,
ATTEST:
Its:
Its:
BUYER
BENEFICIARY:
RANCHO CARLSBAD OWNERS
ASSOCIATION. INC.
By:
14
IN WITNESS WHEREOF, &e parties have executed this Agreement as ofthe
date first above written.
SELLER
CALAVERA HILLS II LLC, a California liited
liability company
a Delaware liited liability company
By its Manager McMillin Companies, LLC,
Its:
By:
Its:
BUYER:
CITY OF CARLSBAD, a municipal corporation
By:
BENEFICIARY
RANCHO CARLSBAD OWNERS
ASSOCIATION, INC.
14
SD-DOCS\304222.12
EXHIBIT A
[Legal Description of Property]
15
AUGUST 27, 2002
J.N. : 01-0185
PAGE 1 OF 1
LEGAL DESCRIPTION FOR OPTION PARCEL
THAT PORTION OF PARCEL 3 OF ADJUSTMENT PLAT ADJ 01-13 PER
CERTIFICATE OF COMPLIANCE CE 01-56 IN THE CITY OF CARLSBAD,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, RECORDED AS DOCUMENT
2001-0865066 ON NOVEMBER 28, 2001 IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY, STATE OF CALIFORNIA, DESCRIBED AS
FOLLOWS :
BEGINNING AT ANGLE POINT NO. 19 ON THE SOUTHERLY LINE OF RECORD
OF SURVEY NO. 17111 FILED IN THE OFFICE OF THE COUNTY RECORDER
OF SAID COUNTY ON AUGUST 24, 2001; THENCE NORTH 77'55'34" WEST
(SEE CERTIFICATE OF CORRECTION OF SAID RECORD OF SURVEY RECORDED
NOVEMBER 29, 2001 AS DOC. NO. 2001-0869050 IN THE OFFICE OF SAID
COUNTY RECORDER) ALONG THE SOUTHERLY LINE OF SAID RECORD OF
SURVEY 113.37 FEET; THENCE LEAVING SAID SOUTHERLY LINE NORTH
8O26'47" WEST 86.33 FEET, NORTH 81'33'13'' EAST 49.99 FEET, NORTH
8'26'47'' WEST 85.24 FEET, NORTH 11°57'45" EAST 71.31 FEET, NORTH
8O26'41" WEST 152.55 FEET TO THE SOUTHERLY LINE OF FUTURE CANNON
ROAD; THENCE EASTERLY ALONG THE SOUTHERLY LINE OF FUTURE CANNON
ROAD NORTH 81"33' 13" EAST 335.71 FEET TO THE BEGINNING OF A
TANGENT CURVE CONCAVE TO THE NORTH AND HAVING A RADIUS OF
1451.00 FEET; THENCE EASTERLY ALONG SAID CURVE 429.98 FEET
THROUGH A CENTRAL ANGLE OF 16'58'43''; THENCE LEAVING THE SOUTH
LINE OF FUTURE CANNON ROAD SOUTH 25"25'30" EAST 135.56 FEET TO
THE SOUTHERLY LINE OF SAID RECORD OF SURVEY; THENCE WESTERLY
ALONG SAID SOUTHERLY LINE SOUTH 51'39'15'' WEST 67.24 FEET, SOUTH
48'19'13'' WEST 404.31 FEET, SOUTH 65"09'20" WEST 386.97 FEET TO
THE POINT OF BEGINNING, ALL AS SHOWN ON THE ATTACHED PLAT FOR
CONVENIENCE SAKE.
THE AREA OF ABOVE DESCRIBED PROPERTY IS 248,292 S.F. OR 5.70
ACRES.
EXHIBIT B
[Purchase Agreement and Escrow Instructions for Buyer (City)]
16
SD-DOCSU04222.12
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PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS
BETWEEN
CALAVERA HILLS I1 LLC
AS SELLER
AND
THE CITY OF CARLSBAD
AS BUYER
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TABLE OF CONTENTS
. Article &
ARTICLE 1 . Fundamental Provisions ........................................................................................ 1
ARTICLE 2 - Agreement of Sale ................................................................................................. 2
ARTICLE 3 - Buyer’s Deliveries to Escrow Agent ..................................................................... 2
ARTICLE 4 - Seller’s Deliveries to Escrow Agent ..................................................................... 3
ARTICLE 5 - Conditions Precedent ............................................................................................. 3
ARTICLE 6 - Closing ................................................................................................................... 3
ARTICLE 7 - Prorations, Fees and Costs ..................................................................................... 5
ARTICLE 8 -Distribution of Funds and Documents ................................................................... 6
ARTICLE 9 - Delivery of Documents; Liquidated Damages ...................................................... 6
ARTICLE 10 -No Assignment by Buyer .................................................................................... 7
ARTICLE 11 -Representations and Warranties .......................................................................... 8
ARTICLE 12 - As Is Purchase ..................................................................................................... 9
ARTICLE 13 -Notices ................................................................................................................. 9
ARTICLE 14 - Extent of Escrow Agent’s Responsibilities ......................................................... 9
ARTICLE 15 -Damage and Condemnation .............................................................................. 10
ARTICLE 16 - General Provisions ............................................................................................ 11
TABLE OF EXHIBITS
Exhibit Paragraph
A . Legal Description of the Property ................................................................................. 1.4.1
B . Declaration of Restrictions .................................................................................. 3.2.3, 4.1.2
C . Flood Easement Agreement ................................................................................ 3.2.4, 4.1.3
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D . Underground Facilities Easement Agreement ...................................................... 3.25, 4.1.5
E . LandscapinglSound Wall Easement Agreement ........................................................... 3.2.6
F . Grant Deed .................................................................................................................... 4.1.1
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PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS
IN CONSIDERATION of the mutual covenants set forth in this Agreement,
Calavera Hills II LLC (“Seller”) agrees to sell, and the City of Carlsbad (“Buyer”) agrees to buy,
the property hereafter described, upon the following terms and conditions.
ARTICLE 1 -Fundamental Provisions
1.1 Date of this Agreement. This Agreement is entered into on
1.2 Oution Ameement. This Agreement is made in relation to Buyer’s exercise of an
option to purchase the property described below, as set forth in a certain Option Agreement dated
Carlsbad Owners Association Inc.
,2002 (“Option Agreement”) by and among Seller, Buyer and the Rancho
1.3 Escrow Agent. Upon execution of this Agreement by both parties, Seller shall
establish an escrow (“Escrow”) with as Escrow Agent (“Escrow
Agent”). This Agreement shall be used as the basis for the Escrow Agreement with the Escrow
Agent. Seller and Buyer shall cooperate in the preparation and execution of Escrow instructions.
1.4 Property. The Property to be purchased and sold pursuant to this Agreement shall
be comprised of fee simple title in and to the land more particularly described on Exhibit “A
attached hereto (the “Property”).
1.5
1.6
1.7
1.8
Total Price:
Escrow Time Limit Date: Thirty (30) days from the date of this Agreement.
Address for Notices to Seller:
Attn:
Address for Notices to Buver:
SD-DOCSU06845. I1
DRAFT
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Attn:
1.9 Address for Notices to Escrow Agent:
Attn:
ARTICLE 2 - Aereement of Sale
2.1 Seller is the owner of fee title to the Property specified in Article 1.
2.2 Seller hereby agrees to sell the Property, and Buyer hereby agrees to buy the
Property, for the Total Price specified in Article 1, upon the terms and conditions set forth
herein.
2.3 The Total Price shall be payable in cash at the close of escrow.
ARTICLE 3 -Buyer’s Deliveries to Escrow Agent
3.1 Prior to 3:OO p.m. of the next preceding regular business day before the Closing
Date, Buyer shall deliver to Escrow Agent each of the following:
3.1.1 The Total Price specified in Article 1.
3.1.2 The amount, if any, required of Buyer under Article 7 entitled “Prorations,
Fees and Costs.”
3.1.3 A counterpart original of the Declaration of Restrictions (“Declaration of
Restrictions”), the form of which is attached as Exhibit “B” hereto, duly executed and
acknowledged by Buyer.
3.1.4 A counterpart original of the Flood Easement Agreement, the form of
which is attached as Exhibit “C” hereto, duly executed and acknowledged by Buyer.
3.1.5 A counterpart original of the Underground Facilities Easement
Agreement, the form of which is attached as Exhibit “D’ hereto, duly executed and
acknowledged by Buyer.
3.1.6 A counterpart original of the LandscapingBound Wall Easement
Agreement, the form of which is attached as Exhibit “E’ hereto, duly executed and
acknowledged by Buyer.
3.1.7 A Certificate of Acceptance.
2
SO”33.UO6845.11
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3.2 The failure of Buyer to make any’delivery required above by the date, or within
the time, set forth above shall constitute a material breach hereof by Buyer.
ARTICLE 4 - Seller’s Deliveries to Escrow Agent
4.1 Prior to the Closing Date, Seller shall deliver to Escrow Agent each of the
following:
4.1.1 A grant deed (the “Seller’s Grant Deed”), the form of which is attached as
Exhibit “F hereto, duly executed and acknowledged by Seller, conveying the Property to Buyer.
4.1.2 A counterpart original of the Declaration of Restrictions, the form of
which is attached as Exhibit “B” hereto, duly executed and acknowledged by Seller.
4.1.3 A counterpart original of the Flood Easement Agreement, the form of
which is attached as Exhibit “C” hereto, duly executed and acknowledged by Seller.
4.1.4 A counterpart original of the Underground Facilities Easement
Agreement, the form of which is attached as Exhibit “D’ hereto, duly executed and
acknowledged by Seller.
4.1.5 A counterpart original of the LandscapingBound Wall Easement
Agreement, the form of which is attached as Exhibit “E hereto, duly executed and
acknowledged by Seller.
4.2 The failure of Seller to make any delivery required above by the date, or within
the time, set forth above shall constitute a material breach hereof by Seller.
ARTICLE 5 -Conditions Precedent
5.1 The closing of the escrow is subject to the following condition precedent:
5.1.1 Compliance with the Subdivision Map Act, California Government Code
sections 66410, et seq.
5.2 In the event the foregoing condition is not satisfied, either party, provided it is not
then in default hereunder, may terminate the escrow and this Agreement by giving a written
notice of termination to the other party and Escrow Agent. The giving of such notice shall be
optional, not mandatory. No delay in the giving of such notice shall affect the rights hereunder
of the party giving the same. In the event such notice is given, the provisions of Paragraphs 6.4
and 6.5 shall apply.
ARTICLE 6- Closing
6.1 Escrow Agent shall close the escrow on the Escrow Time Limit Date specified in
Article 1 (the “Closing Date”) by (i) filing for record the Seller’s Grant Deed and such other
3
SD-DocSUO6845.11
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documents as may be necessary to procure the ALTA Title Policy (described below), (ii) filing
for record the Declaration of Restrictions delivered pursuant to Paragraphs 3.2.3 and 4.1.2, (iii)
filing for record the Easement Agreement delivered pursuant to Paragraphs 3.2.4 and 4.1.3, and
(iv) delivering funds and documents as set forth in Article 8 entitled “Distribution of Funds and
Documents,” WHEN AND ONLY WHEN each of the following conditions has been satisfied:
6.1.1 All funds and instruments required by Articles 3 and 4 have been
delivered to Escrow Agent.
6.1.2 The condition precedent set forth in Article 5 has been, or upon such
closing shall be, satisfied or waived.
6.1.3 Escrow Agent has procured, or is satisfied that it can procure, the Title
Company’s ALTA policy of title insurance (the “ALTA Title Policy”) with liability in the
amount of the Total Price, insuring that fee title to the Property vests in Buyer subject only to
(i) nondelinquent county and city, if any, general and special taxes constituting a lien at the close
of escrow, and the lien of supplemental taxes, if any, pursuant to the provisions of Chapter 3.5 of
the California Revenue and Taxation Code, (ii) the matters described in Schedule B, Part I, of the
ALTA Title Policy, (iii) covenants, conditions, reservations, restrictions, easements and other
items appearing as exceptions in the Preliminary Title Report, order number
dated , -, or other items shown on the Survey, order number
dated , -, that Buyer disapproves, other than the matters reported therein
as exceptions
(iv) any other lien voluntarily imposed by Buyer as of the close of the escrow.
of the Preliminary Title Report, and
6.2 If all of the conditions set forth in Subparagraphs 6.1.1 through 6.1.3 become
satisfied at a date earlier than the Closing Date, Escrow Agent shall close the escrow at such
earlier date.
6.3 If Escrow Agent cannot close the escrow on or before the Closing Date, it will,
nevertheless, close the same when all conditions have been satisfied or waived, notwithstanding
that one or more of such conditions has not been timely performed, unless (i) a notice of
termination has already been delivered to Escrow Agent in accordance with the provisions of
Paragraph 5.2, or (ii) after the Closing Date and prior to the close of the escrow, Escrow Agent
receives a written notice to terminate the escrow and this Agreement from a party who, at the
time such notice is delivered, is not in default hereunder. The right to terminate the escrow and
this Agreement under the provisions of clause (ii) of this Paragraph shall be optional, not manda-
tory. No delay in the giving of such notice shall affect the rights hereunder of the party giving
the same.
6.4 Escrow Agent shall have no liability or responsibility for determining whether or
not a party giving a notice of termination is or is not in default hereunder. Within two working
days after receipt of such notice from one party, Escrow Agent shall deliver a copy of such
notice to the other party. Unless written objection to the termination of the escrow is received by
4
SD_DOCSU06845.II
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Escrow Agent within 10 days after Escrow Agent so delivers such notice to the other party,
(i) Escrow Agent shall forthwith terminate the escrow and return all funds, documents and other
items held by it to the party depositing same, except that Escrow Agent may retain such
documents and other items usually retained by escrow agents in accordance with standard
escrow termination procedures and practices, and (ii) each party shall forthwith pay to Escrow
Agent one-half of Escrow Agent’s reasonable escrow termination charges. Notwithstanding the
foregoing provisions of this Paragraph, Escrow Agent may deduct from any cash or other funds
held by it, a sum sufficient to pay its escrow termination charges in full. If written objection to
the termination of the escrow is delivered to Escrow Agent within such 10-day period, Escrow
Agent is authorized to hold all funds, documents and other items delivered to it in connection
with the escrow and may, in Escrow Agent’s sole discretion, take no further action until
otherwise directed, either by the parties’ mutual written instructions or final order of a court of
competent jurisdiction.
6.5 Neither (i) the exercise of such right of termination, (ii) delay in the exercise of
such right, nor (iii) the return of funds, documents or other items, shall affect the right of the
party giving such notice of termination to pursue legal. remedies for the other party’s breach of
this Agreement (including but not limited to damages for the payment of all or any portion of
Escrow Agent’s escrow termination charges). Nor shall (i) the giving of such notice, (ii) the
failure to object to termination of the escrow, or (iii) the return of funds, documents or other
items affect the right of the other party to pursue other legal remedies for the breach of the party
who gives such notice.
ARTICLE 7 -Prorations, Fees and Costs
7.1 Escrow Agent shall prorate (Le., apportion) between the parties, in cash, to the
close of the escrow, only county, city and special district taxes and assessments (if any), based
on the latest information available to Escrow Agent.
7.2 All prorations andor adjustments called for in this Agreement shall be made on
the basis of a 30-day month, unless otherwise specifically instructed in writing.
7.3 Seller shall pay (i) County Documentary Transfer Tax, in the amount Escrow
Agent determines to be required by law, (ii) the premium that the Title Company would have
charged for a CLTA Title Policy (“CLTA Title Policy”) on the Property with liability in the
amount of the Total Price, (iii) one-half of Escrow Agent’s escrow fee or escrow termination
charge, (iv) fees for beneficiaries’ statements, and (v) usual seller’s document drafting and
recording charges.
7.4 Buyer shall pay (i) one-half of Escrow Agent’s escrow fee or escrow termination
charge,, (ii) the cost of obtaining the ALTA Title Policy over the premium charged for a CLTA
Title Policy, and (iii) the usual buyer’s document drafting charges.
5
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84 6/2002
ARTICLE 8 - Distribution of Funds and Documents
8.1 All cash received hereunder by Escrow Agent shall be, until the close of the
escrow, kept on deposit with other escrow funds in Escrow Agent’s general escrow account(s), in
any state or national bank, and may be transferred to any other such general escrow account(s).
8.2 Escrow Agent shall pay no interest on cash received hereunder by it,
8.3 All disbursements by Escrow Agent shall be made by checks or wire transfers of
Escrow Agent.
8.4 Escrow Agent will, at the close of the escrow, pay from funds to which Seller
shall be entitled and from funds, if any, deposited by Seller with Escrow Agent, to the obligees
thereof, all liens and encumbrances other than those permitted hereby to be shown in the ALTA
Title Policy.
8.5 Escrow Agent will cause the County Recorder of San Diego County to mail the
Seller’s Grant Deed (and each other document which is herein expressed to be, or by general
usage is, recorded) after recordation, to the grantee, beneficiary or person (i) acquiring rights
under said document or (ii) for whose benefit said document was acquired.
8.6 Escrow Agent will, at the close of the escrow, deliver by United States mail (or
will hold for personal pickup, if requested) each nonrecorded document received hereunder by
Escrow Agent, to the payee or person (i) acquiring rights under said document or (ii) for whose
benefit said document was acquired.
8.7 Escrow Agent will, at the close of the escrow, deliver by United States mail (or
hold for personal pickup, if requested) (i) to Seller, or order, the cash, plus or minus any
appropriate prorations or other charges, and (ii) to Buyer, or order, any excess funds theretofore
delivered to Escrow Agent by Buyer.
8.8 Escrow Agent will, at the close of the escrow, deliver to Seller a copy of the
Seller’s Grant Deed (conformed to show recording data) and each document recorded to place
title in the condition required by this Agreement.
ARTICLE 9 -Delivery of Documents: Liauidated Damages
9.1 Escrow Agent shall have no concern with, or liability or responsibility for, this
Article.
9.2 If the escrow is terminated for any reason other than a default by Seller, then
forthwith upon such termination, Seller shall have the right to obtain from Buyer copies of (i)
any documents and materials related to the Property previously delivered by Seller to Buyer, and
(ii) all studies, reports, governmental applications, permits, maps, plans, specifications and other
documents in Buyer’s possession or that it has made or contracted to be made respecting the
Property, including without limitation all engineering reports, soil tests, seismic studies,
SD-DOCSU06US.I I
6
DRAFT
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environmental reports, grading, flood control and drainage plans, design renderings, market
analyses, feasibility studies, and all non-privileged correspondence with governmental agencies
and their personnel concerning the same. The foregoing assignment of rights by Buyer shall in
no way be construed to place upon Seller any obligation or liability to any party preparing or
otherwise working on said documents, and Buyer shall take such actions and make such
payments as may be necessary to deliver copies of such documents to Seller, and to preclude any
claim of any nature against Seller or the Property for any sums owing on account of the
preparation or making of such documents.
9.3 If Buyer fails to complete the purchase of the Property and such failure constitutes
a breach of this Agreement, Buyer, by its initials following this Paragraph, and Seller, by its
initials following this Paragraph, agree that: IT WOULD BE IMPRACTICABLE OR
EXTREMELY DIFFICULT TO FIX, PRIOR TO SIGNING THIS AGREEMENT, THE
ACTUAL DAMAGES WHICH WOULD BE SUFFERED BY SELLER IF BUYER FAILS TO
PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT, THEREFORE, A SUM
EQUAL TO 5% OF THE TOTAL PURCHASE PRICE SHALL CONSTITUTE LIQUIDATED
DAMAGES TO SELLER FOR SUCH BREACH BY BUYER. BUYER AND SELLER
AGREE THAT THE AFORESAID SUM IS A REASONABLE AMOUNT FOR LIQUIDATED
DAMAGES FOR SUCH A BREACH UNDER THE CIRCUMSTANCES EXISTING AT THE
TIME THIS AGREEMENT IS ENTERED INTO. FORTHWITH UPON ANY SUCH
BREACH BY BUYER, BUYER SHALL EITHER (i) INSTRUCT ESCROW AGENT, IN
WRITING, TO PAY SUCH SUM TO SELLER OUT OF FUNDS DEPOSITED WITH
ESCROW AGENT BY BUYER AND NOT PREVIOUSLY RELEASED TO SELLER, OR
(ii) PAY SUCH SUM TO SELLER. UPON PAYMENT OF SAID SUM TO SELLER, BUYER
SHALL BE RELEASED FROM ANY FURTHER LIABILITY TO SELLER, AND ESCROW
CANCELLATION FEES AND TITLE COMPANY CHARGES SHALL BE PAID BY
SELLER.
Seller: Buyer:
ARTICLE 10 - No Assignment by Buyer
10.1 Buyer shall have no right to assign its rights hereunder without first having
obtained Seller’s written consent.
10.2 In the event of any assignment approved in writing by Seller, the assignee shall be
and become (i) the grantee of the Seller’s Grant Deed, (ii) the insured owner under the ALTA
Title Policy, and (iii) the person(s) having the rights or obligations to (a) deliver statements,
(b) deliver documents, (c) give approvals, (d) waive conditions, or (e) make demands, all as may
be permitted or required by this Agreement and not then already accomplished by Buyer or
another assignee. Notwithstanding any such assignment approved by Seller, Buyer shall not be
relieved of liability for any prior or subsequent breach hereof by Buyer or any assignee.
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ARTICLE 11 - Reuresentations and Warranties
11.1 Escrow Agent shall have no concern with, or liability or responsibility for, this
Article.
11.2 In addition to any other express agreements of Seller contained herein, the matters
set forth in this Paragraph constitute representations and warranties by Seller which shall be true
and correct as of the close of escrow. In the event that, during the period between the execution
of this Agreement and the close of escrow, Seller learns, or has reason to believe, that any of the
following representations and warranties may cease to be true, Seller hereby covenants to give
notice thereof to Buyer immediately:
11.2.1 Brokers. Seller has not engaged or dealt with any broker or finder in
connection with the sale contemplated by this Agreement.
11.2.2 Authority. Seller has the legal power, right and authority to enter into this
Agreement and to consummate the transaction contemplated hereby.
11.2.3 Condition of Property. During the escrow period and until the close of
escrow, unless otherwise agreed to by the parties, Seller shall maintain the Property in its present
condition, ordinary wear and tear excepted.
11.2.4 w. Except as set forth herein, there are no leases, subleases, or
tenancies in effect related to the Property, or which Seller is aware.
11.3 In addition to any other express agreements of Buyer contained herein, the
matters set forth in this Paragraph constitute representations and warranties by Buyer which shall
be true and correct as of the close of escrow. In the event that, during the period between the
execution of this Agreement and the close of escrow, Buyer learns, or has reason to believe, that
any of the following representations and warranties may cease to be true, Buyer hereby
covenants to give notice thereof to Seller immediately:
11.3.1 Brokers. Buyer has not engaged or dealt with any broker or finder in
connection with the sale contemplated by this Agreement.
11.3.2 Authority. Buyer has the legal power, right and authority to enter into this
Agreement and to consummate the transaction contemplated hereby.
11.3.3 Prouertv Insuection. Buyer has inspected the Property, has analyzed the
feasibility of its acquisition and use, and specifically agrees to take the Property as is. If any
facts, conditions or circumstances change from those presently known to Buyer, Buyer’s
obligations hereunder shall nevertheless remain in full force and effect.
11.3.4 Seller’s Reuresentations and Warranties. Seller has made no
representations or warranties to Buyer, oral or written, except as specifically set forth in this
Agreement or the Option Agreement.
8
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ARTICLE 12 - As Is Purchase
12.1 As Is Purchase. As a material inducement to Seller’s execution and delivery of
this Agreement and performance of its duties under this Agreement, Buyer, by its initials
following this Paragraph, and Seller, by its initials following this Paragraph, agree that: EXCEPT
AS OTHERWISE PROVIDED IN THIS AGREEMENT, BUYER HAS AGREED TO ACCEPT
POSSESSION OF THE PROPERTY ON THE CLOSING DATE ON AN “AS IS” BASIS.
SELLER AND BUYER AGREE THAT THE PROPERTY SHALL BE SOLD “AS IS, WHERE
IS, WITH ALL FAULTS” WITH NO RIGHT OF SET-OFF OR REDUCTION IN THE
PURCHASE PRICE, AND, EXCEPT AS SET FORTH IN ARTICLE 11 HEREIN, SUCH
SALE SHALL BE WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND,
EXPRESS OR IMPLIED (INCLUDING WITHOUT LIMITATION, WARRANTY OF
INCOME POTENTIAL, USES, MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE), AND SELLER DISCLAIMS AND RENOUNCES ANY SUCH
REPRESENTATION OR WARRANTY.
Seller: Buyer:
ARTICLE 13 -Notices
13.1 Unless otherwise specifically provided herein, all notices, demands or other
communications given hereunder shall be in writing and shall be deemed to have been duly
delivered upon personal delivery, or as of the second business day after mailing by United States
mail, postage prepaid, to the Address of the recipient specified in Article 1, or to such other
address or person as any party may designate to the others for such purpose in the manner
hereinabove set forth.
ARTICLE 14 -Extent of Escrow Agent’s Resuonsibilities
14.1 Escrow Agent shall not be liable for any of its acts or omissions unless the same
shall constitute negligence or willful misconduct.
14.2 Escrow Agent shall have no obligation to inform any party of any other
transaction or of facts within Escrow Agent’s knowledge, even though the same concerns the
Property, provided such matters do not prevent Escrow Agent’s compliance with this Agreement.
14.3 Escrow Agent shall not be responsible for (i) the sufficiency or correctness as to
form or the validity of any document deposited with Escrow Agent, (ii) the manner of execution
of any such deposited document, unless such execution occurs in Escrow Agent’s premises and
under its supervision, or (iii) the identity, authority or rights of any person executing any
document deposited with Escrow Agent.
14.4 If Escrow Agent receives or becomes aware of conflicting demands or claims
with respect to the escrow, the rights of any party hereto, or funds, documents or other items
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deposited with Escrow Agent, Escrow Agent shall have the right to discontinue any further acts
until such conflict is resolved to its satisfaction, and it shall have the further right to commence
or defend any action for the determination of such conflict. The parties shall, immediately after
demand therefor by Escrow Agent, reimburse Escrow Agent (in such respective proportions as
Escrow Agent shall determine) any reasonable attorneys’ fees and court costs incurred by
Escrow Agent pursuant to this Paragraph.
14.5 Any commitment made in writing to Escrow Agent by a bank, trust company,
insurance company or savings and loan association, to deliver its check or funds into the escrow
may, in the sole discretion of Escrow Agent, be treated as the equivalent of a deposit herein of
the amount thereof. Recordation of any instruments delivered through the escrow, if necessary
or proper in the issuance of the ALTA Title Policy, is authorized. No examination or insurance
as to the amount or payment of personal property taxes is required unless specifically requested.
If any party obtains a loan on the Property, then, during the pendency of the escrow, Escrow
Agent is authorized to furnish the lender, or anyone acting on its behalf, any information
concerning the escrow, including, but not limited to, a certified copy of this Agreement and any
amendments hereto.
14.6 Escrow Agent shall not be liable for proration of any supplemental tax bills
related to this transaction which may hereafter be issued due to reassessments pursuant to the
provisions of Chapter 3.5 of the California Revenue and Taxation Code.
ARTICLE 15- Damage and Condemnation
15.1 The risk of physical loss to the Property shall be borne by Seller prior to the close
of escrow and by Buyer thereafter. In the event that the Property shall be damaged by fire, flood,
earthquake or other casualty to the extent that the cost to repair or restore such damage will
exceed 5% of the Total Price, Buyer may, at its option, elect not to acquire the Property, by
written notice to Seller within 30 days after the date upon which such damage or other casualty
occurs. If Buyer does not give such notice, Buyer shall be deemed to have elected to proceed
with the purchase and shall close thereon, at which time Seller shall assign to Buyer all of
Seller’s interests in all insurance proceeds (if any) relating to such damage. In the event that
such damage occurs and Buyer elects not to purchase the Property, then the escrow and this
Agreement shall be terminated.
15.2 If the cost to repair any such damage to the Property will not exceed 5% of the
Total Price, then Buyer may not terminate this Agreement by reason thereof, but Seller shall
assign to Buyer at the closing Seller’s interests in all insurance proceeds (if,any) relating to such
damage and Buyer shall accept the Property in its condition existing on the date of closing.
15.3 In the event that, prior to the close of escrow, any governmental agency shall
commence any action in eminent domain to take any material portion of the Property, Buyer
shall have the option either to (i) elect not to acquire the Property, or (ii) complete the acquisition
of the Property in which case Buyer shall be entitled to all of the proceeds of such talung, such
election to be made by written notice to Seller within 30 days after the date upon which Buyer
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receives notice of the commencement of such governmental action. Buyer’s failure to give such
notice shall be deemed to constitute an election by Buyer to complete the acquisition of the
Property.
ARTICLE 16 - General Provisions
16.1 Definitions. Unless the context otherwise indicates, whenever used in this
Agreement:
16.1.1 The word “cash” means (i) currency, (ii) checks currently dated, payable
to Escrow Agent, and honored upon presentation for payment, (iii) amounts credited by wire-
transfer into Escrow Agent’s bank account, or (iv) if monies are deposited with Escrow Agent
within 20 days of the Closing Date, funds in such form as Escrow Agent in its sole discretion
requires.
16.1.2 The word “party” or “parties” means Buyer and/or Seller, as the context
may require.
16.1.3 The word “escrow” means the escrow created by this Agreement.
16.1.4 The phrase “the opening of the escrow” means the date Escrow Agent
signs the “Consent of Escrow Agent” attached hereto.
16.1.5 The phrase “the close of the escrow” means the date and time at which the
Seller’s Grant Deed is filed for record.
16.2 Waiver of Relocation Assistance. Seller is and has been made aware of the
provisions of the Relocation Assistance Act (California Government Code sections 7260 et seq.)
and herein agrees to waive any and all provisions of that act and any companion federal law or
regulation. Seller agrees to this waiver after consulting with its attorneys, and being advised of
the implications of this waiver.
16.3 Cautions. Captions in this Agreement are inserted for convenience of reference
only and do not define, describe or limit the scope or the intent of this Agreement or any of the
terms hereof.
16.4 Exhibits. All exhibits referred to herein and attached hereto are incorporated
herein by reference.
16.5 Entire Aereement. This Agreement contains the entire agreement between the
parties relating to the transaction contemplated hereby, and all prior or contemporaneous
agreements, understandings, representations and statements, oral or written, are merged herein.
16.6 Amendment. No modification, waiver, amendment, discharge or change of this
Agreement shall be valid unless the same is in writing and signed by the party against whom the
enforcement of such modification, waiver, amendment, discharge or change is or may be sought.
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16.7 Auulicable Law. This Agreement shall be construed and enforced in accordance
with the laws of the State of California.
16.8 Counterparts. This Agreement may be executed in counterparts, each of which is
an original and all of which constitute but one agreement.
16.9 Time is of the Essence. Time is of the essence to this Agreement.
16.10 Survival of Obligations. Representations and Warranties. All obligations referred
to herein to be performed at a time or times after the close of the escrow, and all warranties and
representations contained herein, shall survive the close of the escrow and the delivery of
Seller’s Grant Deed.
16.1 1 Tax-deferred Exchange. Seller may use the proceeds from the sale of the
Property to affect one or more tax deferred exchange under Internal Revenue Code 3 1031.
Buyer agrees to accommodate Seller in effecting such tax-deferred exchange. Seller shall have
the right, expressly reserved herein, to elect such tax-deferred exchange at any time prior to the
Closing Date. Seller and Buyer agree, however, that consummation of the purchase and sale of
the Property under this Agreement is not conditioned on such exchange. If Seller elects to make
a tax-deferred exchange, Buyer agrees to execute such additional escrow instructions, deeds,
documents, agreements, or instruments to effect this exchange, provided that Buyer shall incur
no additional costs, expenses, or liabilities in this transaction as a result of or in connection with
this exchange. Seller agrees to hold Buyer harmless of any liability, damages, or costs, including
reasonable attorney fees, that may arise from Buyer’s participation in such exchange.
16.12 Further Instruments. Each party hereto shall execute, acknowledge and deliver to
the other party such further instruments and take such other actions as the other party may
reasonably request in order to effectuate the purposes and provisions of this Agreement.
16.13 Severability. In the event that any term, covenant, condition, provision or
agreement herein contained is held to be invalid, void or otherwise unenforceable by any court of
competent jurisdiction, the fact that such term, covenant, condition, provision or agreement is
invalid, void or otherwise unenforceable shall in no way affect the validity or enforceability of
any other term, covenant, condition, provision or agreement herein contained.
16.14 Successors and Assigns. All terms of this Agreement shall be binding upon, inure
to the benefit of and be enforceable by, the parties hereto and their respective legal
representatives, successors and assigns.
SDDOCSUO6845.11
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
SELLER:
CALAVERA HILLS I1 LLC, a California limited
liability company
a Delaware limited liability company
By:
By its Manager: McMillin Companies, LLC,
By:
BUYER:
CITY OF CARLSBAD, a municipal corporation
SD-DOCSU06845.11
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CONSENT OF ESCROW AGENT
The undersigned Escrow Agent hereby agrees to (i) accept the foregoing
Agreement, (ii) be escrow agent under said Agreement for the fees therein specified, and (iii) be
bound by said Agreement in the performance of its duties as escrow agent; provided, however,
that the undersigned shall have no obligations, liability or responsibility under (i) this Consent or
otherwise, unless and until said Agreement, fully signed by the parties, has been delivered to the
undersigned, or (ii) any amendment to said Agreement unless and until the same shall be
accepted by the undersigned in writing.
ESCROW AGENT:
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EXHIBIT “A”
[Legal Description of Property]
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EXHIBIT “B”
Recording Requested By
and
When Recorded Mail To:
City Clerk
1200 Carlsbad Village Drive
Carlsbad, CA 92008
A: OVE SPACE FOR RECORDER’S USE ONLY
DECLARATION OF RESTRICTIONS
(FACILITIES RELOCATION PARCEL)
THIS DECLARATION OF RESTRICTIONS (FACILITIES RELOCATION
PARCEL) (the “Declaration”) is made on I -I by CALAVERA
HILLS I1 LLC, California limited liability company (“Declarant”).
RECITALS
A. Pursuant to that certain Purchase Agreement and Escrow Instructions
between Declarant and the CITY OF CARLSBAD, a municipal corporation (“Purchaser”), made
as of , 20- (the “Purchase Agreement”), concurrently herewith
Declarant is conveying to Purchaser or its assignee the real property located in the City of
Carlsbad (the ‘‘W’), State of California, more particularly described on Exhibit “1” attached
hereto and incorporated herein by this reference (the “Purchaser Property”).
B. Purchaser intends to develop the Purchaser Property for use as a
community garden, wash area, waste disposal area and RV Parking Lot (which includes, without
limitation, parkng for boats, cars, jet skis, RVs, hay wagons and other personal items, subject to
any applicable governmental approvals) (collectively referred to herein as the “Intended Uses”),
to be used by the Rancho Carlsbad Owners Association and its members.
C. Declarant owns certain real property located in the City adjacent to the
Purchaser Property and more particularly described in Exhibit “2” [Robertson Ranch property]
attached hereto and incorporated herein by this reference (the “Benefited Property”), and
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Declarant intends to develop, or convey a portion of the Benefited Property to certain transferees
who intend to develop, a master planned, mixed use commercial and residential community on
the Benefited Property.
D. In connection with the foregoing and in contemplation of the sale of the
Purchaser Property to Purchaser, it is the desire and intention of Declarant to restrict the
Purchaser Property, so that the Benefited Property will be benefited and each successive owner
of all, or part of the Benefited Property, will be benefited.
DECLARATION
NOW, THEREFORE, Declarant declares that the Purchaser Property, is held and
will be held, transferred, encumbered, used, sold, conveyed, leased, and occupied subject to the
covenants, restrictions, and limitations set forth in this Declaration, which are established and
agreed on for the purpose of enhancing and protecting the value, desirability, and attractiveness
of the Benefited Property and the Purchaser Property and every part of such property. All of the
restrictions, covenants, and limitations will run with the land and will be binding on all parties
having or acquiring any right, title, or interest in the Purchaser Property, or any part thereof, and
will inure to the benefit of all of the Benefited Property and the future owners of such property.
Each grantee of a conveyance or purchaser under a contract or agreement of sale covering any
right, title, or interest in any part of the Purchaser Property, by accepting a deed or a contract of
sale or agreement of purchase, accepts the document subject to, and agrees to be bound by, any
and all of the restrictions, covenants, and limitations set forth in this Declaration.
1. Use of the Purchaser Prooertv. There shall not be developed any use other
than the Intended Uses on the Purchaser Property for the period of the land use approvals issued
by the City of Carlsbad for such uses, or a period of 10 years from and after the date of the
recordation hereof, whichever is longer. In addition, the owner of the Purchaser Property shall
maintain and properly care for the pepper tree located on the Purchaser Property as shown on
Exhibit 3 hereto (“Peuuer Tree”), consistent with generally accepted arboriculture practices, and
no action shall be taken to harm, destroy, or remove the Pepper Tree, for as long as it remains
healthy.
2. Robertson’s Ranch House. The single family home located on the
Purchaser Property (the “Robertson’s Ranch House”) shall neither be used as a residence, nor for
permanent or temporary human habitation, in perpetuity.
3. Enforcement. Enforcement will be by proceedings at law or in equity
against any person or persons violating or attempting to violate any covenant either to restrain
violation or to recover damages. Purchaser acknowledges that Declarant would not be willing to
sell the Purchaser Property to Purchaser if Purchaser were unwilling to agree to the foregoing
restrictions, and that Declarant would not have an adequate remedy in damages if Purchaser were
to breach the foregoing covenant. Declarant and its successors and assigns and any Owner of the
Benefited Property may specifically enforce the foregoing covenants.
17
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4. Severability. Invalidation of any one of these covenants by judgment or
court order will not affect any of the other provisions, which will remain in full force and effect.
5. Covenants to Run With the Land. The Purchaser Property shall be held,
developed, conveyed, hypothecated, encumbered, leased, rented, used and occupied subject to
the covenants, restrictions and other limitations set forth in this Declaration (collectively, the
“Restrictions”). The Restrictions are for the benefit of the Benefited Property. The Restrictions
are intended and shall be construed as covenants and conditions running with the land and
binding the Purchaser Property and equitable servitudes upon the Purchaser Property and every
part thereof. All and each of the Restrictions shall be binding upon and burden all persons
having or acquiring any right, title or interest in the Purchaser Property or any part thereof, and
their successors and assigns, during their respective periods of ownership, and shall inure to the
benefit of the Benefited Property and the fee owners of the Benefited Property, their successors
and assigns and each such person, upon the sale or other transfer of its interest shall be released
from all obligations arising hereunder.
6. Modifications. This Declaration shall not be rescinded or modified without
the prior written consent of the Declarant for as long as it owns any part of the Benefited
Property, and thereafter by the fee owner(s) of the Benefited Property.
IN WITNESS WHEREOF, the Declarant have executed this instrument as of the
date first above written.
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DECLARANT
CALAVERA HILLS I1 LLC, California
limited liability company
Companies, LLC, a Delaware limited
liability company
By its Manager: McMillin
By:
Name:
Title:
By:
Name:
Title:
Agreed and accepted by PURCHASER.
ClTY OF CARLSBAD, a municipal
corporation
By:
Name:
Title:
19
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STATE OF CALIFORNIA )
County of San Diego )
) ss.
On , before me,
Notary Public in and for said County and State, personally appeared
personally known to be (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) islare subscribed to the within instrument and acknowledged to me that
helshdthey executed the same in hislherltheir authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
,a
Witness my hand and official seal.
Notary Public
20
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EXHIBIT "1" TO DECLARATION OF RESTRICTIONS
DESCRIPTION OF PURCHASER PROPERTY
SD-DocSUO6845.11
21
AUGUST 27, 2002
PAGE 1 OF 1
J.N. : 01-0185
LEGAL DESCRIPTION FOR OPTION PARCEL
THAT PORTION OF PARCEL 3 OF ADJUSTMENT PLAT ADJ 01-13 PER
CERTIFICATE OF COMPLIANCE CE 01-56 IN THE CITY OF CARLSBAD,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, RECORDED AS DOCUMENT
2001-0865066 ON NOVEMBER 28, 2001 IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY, STATE OF CALIFORNIA, DESCRIBED AS
FOLLOWS :
BEGINNING AT ANGLE POINT NO. 19 ON THE SOUTHERLY LINE OF RECORD
OF SURVEY NO. 17111 FILED IN THE OFFICE OF THE COUNTY RECORDER
OF SAID COUNTY ON AUGUST 24, 2001; THENCE NORTH 71°55'34" WEST
(SEE CERTIFICATE OF CORRECTION OF SAID RECORD OF SURVEY RECORDED
NOVEMBER 29, 2001 AS DOC. NO. 2001-0869050 IN THE OFFICE OF SAID
COUNTY RECORDER) ALONG THE SOUTHERLY LINE OF SAID RECORD OF
SURVEY 113.37 FEET; THENCE LEAVING SAID SOUTHERLY LINE NORTH
8"26'47" WEST 86.33 FEET, NORTH 81"33'13" EAST 49.99 FEET, NORTH
8'26'47'' WEST 85.24 FEET, NORTH ll"57'45" EAST 71.31 FEET, NORTH
8O26'47" WEST 152.55 FEET TO THE SOUTHERLY LI.NE OF FUTURE CANNON
ROAD; THENCE EASTERLY ALONG THE SOUTHERLY LINE OF FUTURE CANNON
ROAD NORTH 81"33'13" EAST 335.71 FEET TO THE BEGINNING OF A
TANGENT CURVE CONCAVE TO THE NORTH AND HAVING A RADIUS OF
1451.00 FEET; THENCE EASTERLY ALONG SAID CURVE 429.98 FEET
THROUGH A CENTRAL ANGLE OF 16O58'43"; THENCE LEAVING THE SOUTH
LINE OF FUTURE CANNON ROAD SOUTH 25"25'30" EAST 135.56 FEET TO
THE SOUTHERLY LINE OF SAID RECORD OF SURVEY; THENCE WESTERLY
ALONG SAID SOUTHERLY LINE SOUTH 51"39' 15" WEST 67.24 FEET, SOUTH
48'19'13'' WEST 404.31 FEET, SOUTH 65"09'20" WEST 386.97 FEET TO
THE POINT OF BEGINNING, ALL AS SHOWN ON THE ATTACHED PLAT FOR
CONVENIENCE SAKE.
THE AREA OF ABOVE DESCRIBED PROPERTY IS 248,292 S.F. OR 5.70
ACRES.
BASIS OF BEARING: COURSE 8 PER
RECORD OF SURMY 17111 BEING S 65'09'20" W
SD-WCSU06845.11
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EXHIBIT "2" TO DECLARATION OF RESTRICTIONS
BENEFITED PROPERTY
22
ORDER NO. 1285531-6
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY
OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS:
PARCEL 1 :
THAT PORTION OF LOT E OF RANCHO AGUA HEDIONDA, IN THE CITY OF CARLSBAD,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 823, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, NOVEMBER
16, 1896, DESCRIBED AS FOLLOWS:
THE SOUTHEAST CORNER OF CT 76-12 PER MAP 9935 FILED IN THE OFFICE OF THE
BEGINNING AT THE SOUTHWEST CORNER OF RECORD OF SURVEY 16661, BEING ALSO
COUNTY RECORDER OF SAID COUNTY ON JULY 14, 2000 AND DECEMBER 16, 1980
RESPECTIVELY; THENCE, SOUTH 1’42’35’’ WEST 1619.75 FEET, SOUTH 63’42’38” EAST
313.13 FEET, SOUTH 73’19’52” EAST 230.87 FEET, SOUTH 4’56’41’’ EAST 517.19 FEET TO A
POW ON A CURVE CONCAVE TO THE SOUTH AND HAVING A RADIUS OF 1451 .OO FEET, A
RADIAL LINE TO SAID CURVE BEARS SOUTH 28’78’39” EAST; THENCE, NORTHEASTERLY
ALONG SAID CURVE 519.94 FEET THROUGH A CENTRAL ANGLE OF 20”31’52”; THENCE,
TANGENT TO SAID CURVE NORTH 81”33’13” EAST 648.89 FEET TO A TANGENT CURVE
CONCAVE TO THE NORTH AND HAVING A RADIUS OF 1349.00 FEET; THENCE, EASTERLY
ALONG SAID CURVE 666.28 FEET THROUGH A CENTRAL ANGLE OF 28’17’56’’; THENCE,
TANGENT TO SAID CURVE NORTH 53Y5’17” EAST 461.71 FEET TO A TANGENT CURVE
NORTHEASTERLY ALONG SAID CURVE 32.06 FEET THROUGH A CENTRAL ANGLE OF
CONCAVE TO THE NORTH AND HAVING A RADIUS OF 990.00 FEET; THENCE,
1°51’19”; THENCE, TANGENT TO SAID CURVE NORTH 51’23’58” EAST 60.28 FEET TO A
TANGENT CURVE CONCAVE TO THE SOUTH AND HAVING A RADIUS OF 1010.00 FEET;
THENCE, NORTHEASTERLY ALONG SAID CURVE 32.70 FEET THROUGH A CENTRAL
ANGLE OF l”51’19”; THENCE, TANGENT TO SAID CURVE NORTH 53’15’17” EAST 336.29
FEET TO A TANGENT CURVE CONCAVE TO THE WEST AND HAVING A RADIUS OF 25.00
FEET; THENCE, NORTHERLY ALONG SAID CURVE 39.80 FEET THROUGH A CENTRAL
ANGEL OF 91”12’49”, THENCE, TANGENT TO SAID CURVE NORTH 37’57’32” WEST 300.00
FEET TO A TANGENT CURVE CONCAVE TO THE EAST AND HAVING A RADIUS OF 210.00
ANGLE OF 5”42’26“; THENCE, TANGENT TO SAID CURVE NORTH 32”15’06” WEST 80.62
FEET; THENCE, NORTHERLY ALONG SAID CURVE 20.92 FEET THROUGH A CENTRAL
FEET TO A TANGENT CURVE CONCAVE TO THE WEST AND HAVING A RADIUS OF 190.00
FEET; THENCE, NORTHERLY ALONG SAID CURVE 18.93 FEET THROUGH A CENTRAL
ANGLE OF 5’42’26“; THENCE, TANGENT TO SAID CURVE NORTH 37’57’32’’ WEST 310.22 FEET TO A TANGENT CURVE CONCAVE TO THE SOUTHWEST AND HAVING A RADIUS OF
1349.00 FEET; THENCE, NORTHWESTERLY ALONG SAID CURVE 288.52 FEET THROUGH A CENTRAL ANGLE OF 12”15’16”; THENCE, TANGENT TO SAID CURVE NORTH 50’12’48”
RADIUS OF 1451 .OO FEET; THENCE, NORTHWESTERLY ALONG SAID CURVE 480.31 FEET WEST IOO.00 FEET TO A TANGENT CURVE CONCAVE TO THE NORTHEAST AND HAVING A
THROUGH A CENTRAL ANGLE OF 18”57’58” TO A POINT IN THE SOUTH LINE OF SAID
RECORD OF SURVEY 16661, A RADIAL LINE TO SAID CURVE BEARS SOUTH 58’45’10”
WEST; THENCE, NORTH 89”25’37” WEST ALONG THE SOUTH LINE OF SAID RECORD OF
SURVEY 16661 1950.97 FEETTO THE POINTOF BEGINNING.
ORDER NO. 1285531-6
SAID LAND BEING DESCRIBED AS PARCEL 1 ON CERTIFICATE OF COMPLIANCE
RECORDED NOVEMBER 28,2001 AS FILE NO. 2001-0865064 OF OFFICIAL RECORDS.
PARCEL 2:
THAT PORTION OF LOTS D AND E OF RANCHO AGUA HEDIONDA, IN THE CITY OF
CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP
THEREOF NO. 823, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY, NOVEMBER 16,1896, DESCRIBED AS FOLLOWS:
THE SOUTHEAST CORNER ,OF CT 76-12 PER MAP 9935 FILED IN THE OFFICE OF THE
BEGINNING AT THE SOUTHWEST CORNER OF RECORD OF SURVEY 16661, BEING ALSO
COUNTY RECORDER OF SAID COUNTY ON JULY 14, 2000 AND DECEMBER 16, 1980
RESPECTIVELY, THENCE, ALONG THE SOUTHERLY LINE OF SAID RECORD OF SURVEY
CONTINUING ALONG THE SOUTHERLY AND EASTERLY LINE OF SAID RECORD OF SOUTH 89”25’37” EAST 1950.97 FEET TO THE TRUE POINT OF BEGINNING; THENCE,
SURVEY SOUTH 89’25’37” EAST 129.11 FEET, NORTH 13’44’27” EAST 781.66 FEET, NORTH
21O34’15” EAST 189.90 FEET, NORTH 14°47’00” EAST 160.15 FEET, NORTH 11’34’22’’ EAST
65.17 FEET, NORTH 7’12’14’’ EAST 135.30 FEET, NORTH 14’45’08” EAST 57.12 FEET, NORTH
20’50’34” EAST 126.05 FEET, NORTH 9’43’14”EAST 112.86 FEET, NORTH 1°15’18” EAST 150.28
IN THE OFFICE OF THE COUNTY RECORDER ON MARCH 16,1995; THENCE, LEAVING SAID FEET, SOUTH 89”37’14” EAST 355.61 FEET TO A POINT ON RECORD OF SURVEY 14818 FILED
RECORD OF SURVEY 16661 AND CONTINUING SOUTHERLY ALONG THE WEST LINE OF
RECORD OF SURVEY 14818, SOUTH 1O15’25” EAST 304.47 FEET (SOUTH I01l’30” EAST
305.18’ R), SOUTH 18’25’38’’ EAST, 694.08 FEET (SOUTH 18”19’26” EAST 694.27’ R), THENCE,
LEAVING SAID RECORD OF SURVEY 14818 AND CONTINUING SOUTHERLY ALONG THE
FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY ON NOVEMBER 4,
WEST LINE OF THAT 363.14 ACRES PARCEL AS SHOWN ON RECORD OF-SURVEY 6616
1965; THENCE, SOUTH 1’05’41” WEST 1271.23 FEET (SOUTH 1’12’02” WEST 1271.40’ R),
SOUTH 4O13’22” WEST 963.76 FEET (SOUTH 4”20’50” WEST 963.88’ R), SOUTH 51°39’15” WEST
1165.94 FEET 1165.94 FEET (SOUTH 51’47’48” WEST 1165.49’ R), SOUTH 48”19’13” WEST
404.3 I FEET (SOUTH 48”19’2!3” WEST 404.15’ R), SOUTH 65’09’20” WEST 386.97 FEET (SOUTH
635.06’ R),’ SOUTH 65’35’13’’ WEST 494.30 FEET (SOUTH 65”42’27” WEST 494.30’ R), SOUTH
65’14’32” WEST 387.06’ R), NORTH 77’55’34” WEST 635.12 FEET (NORTH 77’48’20” WEST
266.73 FEET (SOUTH 30”46’06” WEST 33 1.55’ TO THE CENTERLINE OF RS 682 R) TO A POINT
39O37‘39” WEST 339.77 FEET (SOUTH 39O44’53” WEST 339.77’ R), SOUTH 30’38’52” WEST
COUNTY ROAD SURVEY NO. 1800-1 (KNOWN AS EL CAMINO REAL) ACCORDING TO
IN A LINE THAT IS PARALLEL TO AND 63.00 FEET NORTHERLY OF THE CENTERLINE OF
OFFICIAL PLAT THEREOF ON FILE IN THE OFFICE OF THE COUNTY ENGINEER OF SAN
DIEGO COUNTY; THENCE, WESTERLY ALONG SAID NORTHERLY LINE, NORTH 66’42’10’’
OF A. CURVE CONCAVE TO THE NORTH AND HAVING A RADIUS OF 6,855.31 FEET, SAID
WEST 13.53 FEET; THENCE, SOUTH 23O17’50” WEST 18.00 FEET ALONG THE RADIAL LINE
ON ROAD SURVEY NO. 1800-1; THENCE, WESTERLY ALONG SAID NORTH LINE, AND
POINT BEING ALSO ON THE NORTH LINE OF THAT 90 FOOT WIDE STRIP OF LAND SHOWN
NORTH LINE, NORTH 32O44.07” EAST 16.78 FEET, SOUTH 82’48’22” EAST 72.17 FEET, NORTH
CURVE THROUGH A CENTRAL ANGLE OF 2“10’51” 260.94 FEET; THENCE, LEAVING SAID
23’31’32” EAST 109.80 FEET, NORTH 25O38’31” EAST 100.08 FEET, NORTH 29’07’38” EAST
77.37 FEET, NORTH 3 l”48’12” EAST 60.19 FEET, NORTH 42’27’1 7” EAST 23.56 FEET, NORTH
37’46’23” EAST 139.56 FEET, NORTH 24”02’16” EAST 40.09 FEET, NORTH 46”32’58” EAST
28 I .65 FEET, NORTH 53O49’59” EAST 24 I .03 FEET, NORTH 67O15’16” EAST 15.60 FEET. SOUTH
ORDERNO. 1285531-6
4’56’41’’ EAST 44.65 FEET TO A POINT ON A CURVE CONCAVE TO THE SOUTH AND
28’58’39’’ EAST; THENCE, NORTHEASTERLY ALONG SAID CURVE 5 19.94 FEET THROUGH A
CENTRAL ANGLE OF 20’31’52’’; THENCE, TANGENT TO SAID CURVE NORTH 81O33’13”
EAST 648.89 FEET TO A TANGENT CURVE CONCAVE TO THE NORTH AND HAVING A
RADIUS OF 1349.00 FEET, THENCE, EASTERLY ALONG SAID CURVE 666.28 FEET THROUGH
A CENTRAL ANGLE OF 28‘17’56’’; THENCE, TANGENT TO SAID CURVE NORTH 53°15’17”
EAST 461.71 FEET TO A TANGENT CURVE CONCAVE TO THE NORTH AND HAVING A
RADIUS OF 990.00 FEET; THENCE, NORTHEASTERLY ALONG SAID CURVE 32.06 FEET
THROUGH A CENTRAL ANGLE OF lo51’19”; THENCE, TANGENT TO SAID CURVE NORTH
51’23’58” EAST 60.28 FEET TO A TANGENT CURVE CONCAVE TO THE SOUTH AND HAVING
THROUGH A CENTR4L ANGLE OF l”51’19”; THENCE, TANGENT TO SAID CURVE NORTH
A RADIUS OF 1010.00 FEET; THENCE, NORTHEASTERLY ALONG SAID CURVE 32.70 FEET
53’15’17” EAST 336.29 FEET TO A TANGENT CURVE CONCAVE TO THE WEST AND HAVING
A RADIUS OF 25.00 FEET; THENCE, NORTHERLY ALONG SAID CURVE 39.80 FEET
THROUGH A CENTRAL ANGLE OF 91O12’49”; THENCE, TANGENT TO SAID CURVE NORTH
37‘57’32’’ WEST 300.00 FEET TO A TANGENT CURVE CONCAVE TO THE EAST AND HAVING
A RADIUS OF 210.00 FEET; THENCE, NORTHERLY ALONG SAID CURVE 20.92 FEET
THROUGH A CENTRAL ANGLE OF 5‘42’26“; THENCE, TANGENT TO SAID CURVE NORTH
32’15’06” WEST 80.62 FEET TO A TANGENT CURVE CONCAVE TO THE WEST AND HAVING
A RADIUS OF 190.00 FEET; THENCE, NORTHERLY ALONG SAID CURVE 18.93 FEET
37”57’32” WEST 310.22 FEET TO A TANGENT CURVE CONCAVE TO THE SOUTHWEST AND
THROUGH A CENTRAL ANGLE OF 5”42’26“, THENCE, TANGENT TO SAID CURVE NORTH
HAVING A RADIUS OF 1349.00 FEET; THENCE, NORTHWESTERLY ALONG SAID CURVE
CURVE NORTH 50’12’48” WEST 100.00 FEET TO A TANGENT CURVE CONCAVE TO THE
288.52 FEET THROUGH A CENTRAL ANGLE OF 12°15’16”; THENCE, TANGENT TO SAID
NORTHEAST AND HAVING A RADIUS OF 145 I .OO FEET; THENCE NORTHWESTERLY ALONG
SAID CURVE 480.31 FEET THROUGH A CENTRAL ANGLE OF 18’57’58’’ TO A.POINT IN THE
SOUTH LINE OF SAID RECORD OF SURVEY 16661, SAID POINT BEING THE TRUE POINT OF
BEGINNING, A RADIAL LINE TO SAID CURVE AT THE TRUE POINT OF BEGMNING BEARS
SOUTH 58O45’10” WEST.
SAID LAND BEING DESCRIBED AS PARCEL 3 ON CERTIFICATE OF COMPLIANCE
RECORDED NOVPMBER 28,2001 AS FILE NO. 2001-0865066 OF OFFICIAL RECORDS.
HAVING A RADIUS OF 1451.00 FEET, A RADIAL LINE TO SAID CURVE BEARS SOUTH
FEBRUARY 05.2002 321 PM MC
SD-wCSUO6845.11
DRAFT
8/16/2002
EXHIBIT "3" TO DECLARATION OF RESTRICTIONS
SHOWING LOCATION OF PEPPER TREE
23
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DRAFT
8/16/2002
EXHIBIT “C”
Recording Requested By
and
When Recorded Mail To:
City Clerk
1200 Carlsbad Village Drive
Carlsbad, CA 92008
A. ;OW SPACE FOR RECORDER’S USE ONLY
FLOOD EASEMENT AGREEMENT
This FLOOD EASEMENT AGREEMENT (“Agreement”) is entered into as of
,- between CALAVERA HILLS I1 LLC, California limited
liability, (“Calavera”), and the CITY OF CARLSBAD, a municipal corporation, (“W’) with
reference to the following facts:
A. Contemporaneously herewith, Owner is purchasing from Calavera the real
property located in the City of Carlsbad, California, more particularly described on Exhibit “1”
attached hereto (“Owner’s Site”).
B. Calavera is the owner of that certain real property located in the City Carlsbad,
California, more particularly described on Exhibit “2” attached hereto (“Robertson Ranch”).
C. Calavera desires to acquire certain rights in Owner’s Site.
AGREEMENT
NOW THEREFORE, for valuable consideration, receipt of which is hereby
acknowledged, it is agreed as follows:
1. Owner hereby grants to Calavera the non-exclusive perpetual easements
hereinafter described (the “Easement”).
2. The Easement is over and across that portion(s) of the Owner’s Site determined
by Owner in the future to be most suitable and convenient, but which generally runs along the
24
SD-WCSUO6845.11
DRAFT
8/16/2002
southern boundary of Robertson Ranch. Said southern boundary is the same as the northern
boundary of the Ranch Carlsbad Mobile Home Park, as shown on parcel one of parcel map No.
17985.
3. The Easement is appurtenant to Robertson Ranch.
4. The Easement consists of the following: A flowage easement for the passage of
surface water flows. No direct outlet of a storm drain will be allowed onto the Owner’s Site
unless approved by Owner.
5. The parties anticipate that at some time in the future there may be constructed on
Robertson Ranch one or more detention basins. The parties contemplate and hereby agree that if
such basin(s) is constructed, the easement described in Paragraph 4 above may be used from time
to time for discharge of water from such basin(s).
6. Calavera shall exercise its rights in connection with the Easement only to the
extent necessary to accomplish the purposes for which the Easement is intended and shall not
exercise its rights in connection with the Easement in such a way as to render the Owner’s Site
unusable for its intended purposes as a community garden, wash area, waste disposal area and
RV Parking Lot (which includes, without limitation, parking for boats, cars, jet skis, RVs, hay
wagons and other personal items, subject to any applicable governmental approvals).
7. The Easement is not exclusive. Owner retains the right to make any use of
Owner’s Site that does not unreasonably interfere with Calavera’s free use and enjoyment of the
Easement.
8. Calavera shall hold harmless, indemnify and defend Owner and any of Owner’s
successors, assigns, employees, agents and occupants of Owner’s Site from and against any and
all obligations, liabilities, claims, liens, demands, losses, damages, causes of action, judgments,
costs and expenses (including reasonable attorneys’ fees and costs) arising out of or relating to
Calavera’s use of the Easement or Calavera’s breach of any covenant or agreement contained in
this instrument, including without limitation, any and all damages to buildings, structures and
landscape improvements located on Owner’s Site arising out of the use of the Easement.
9. All of the provisions, agreements, rights, powers, covenants, conditions and
obligations contained in this Agreement, shall be binding upon and shall inure to the benefit of
the parties hereto, their respective heirs, successors (by merger, consolidation or otherwise) and
assigns, devisees, administrators, representatives, lessees. All provisions of this Agreement shall
be covenants running with the land pursuant to applicable law, including but not limited to
Section 1468 of the Civil Code of the State of California.
10. This Agreement shall become effective and binding upon recordation of this
Agreement in the Office of the County Recorder of San Diego County.
11. This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original and all of which shall constitute one and the same agreement.
25
SD_OOCSU06845.1 I
DRAFT
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IN WITNESS WHEREOF, the parties hereto have executed this instrument on the day
and year first above written.
CALAVERA HILLS II LLC, a California limited
liability company
a Delaware limited liability company
By its Manager: McMillin Companies, LLC,
By:
THE CITY OF CARLSBAD, a municipal
corporation
SD-wCSUO6845.11
26
DRAFT
8/16/2002
STATE OF 1
COUNTY OF )
On , before me, , personally appeared
, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person(s) whose name(s) idare subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said
County and State
STATE OF CALIFORNIA 1
COUNTY OF SAN DIEGO )
On , before me, , personally
appeared , personally known to me (or proved to me
on the basis of satisfactory evidence) to be the person(s) whose name(s) idare subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by hishedtheir signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
[SEAL] Notary Public in and for said
County and State
SD-DOCSUMM5. I1
27
DRAFT
8/16/2002
EXHIBIT “1” TO FLOOD EASEMENT
LEGAL DESCRIPTION OWNER’S SITE
28
AUGUST 27, 2002
J.N.: 01-0185
PAGE 1 OF 1
LEGAL DESCRIPTION FOR OPTION PARCEL
THAT PORTION OF PARCEL 3 OF ADJUSTMENT PLAT ADJ 01-13 PER
CERTIFICATE OF COMPLIANCE CE 01-56 IN THE CITY OF CARLSBAD,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, RECORDED AS DOCUMENT
2001-0865066 ON NOVEMBER 28, 2001 IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY, STATE OF CALIFORNIA, DESCRIBED AS
FOLLOWS :
BEGINNING AT ANGLE POINT NO. 19 ON THE SOUTHERLY LINE OF RECORD
OF SURVEY NO. 17111 FILED IN THE OFFICE OF THE COUNTY RECORDER
OF SAID COUNTY ON AUGUST 24, 2001; THENCE NORTH 77°55'34" WEST
(SEE CERTIFICATE OF CORRECTION OF SAID RECORD OF SURVEY RECORDED
NOVEMBER 29, 2001 AS DOC. NO. 2001-0869050 IN THE OFFICE OF SAID
COUNTY RECORDER) ALONG THE SOUTHERLY LINE OF SAID RECORD OF
SURVEY 113.37 FEET; THENCE LEAVING SAID SOUTHERLY LINE NORTH
8'26'47'' WEST 86.33 FEET, NORTH 81"33'13" EAST 45.99 FEET, NORTH
8'26' 47" WEST 85.24 FEET, NORTH 11'57'45'' EAST 71.37 FEET, NORTH
8'26' 47" WEST 152.55 FEET TO THE SOUTHERLY LINE OF FUTURE CANNON
ROAD: THENCE EASTERLY ALONG THE SOUTHERLY LINE OF FUTURE CANNON
ROAD NORTH 81'33' 13" EAST 335.71 FEET TO THE BEGINNING OF A
TANGENT CURVE CONCAVE TO THE NORTH AND HAVING A RADIUS OF
1451.00 FEET; THENCE EASTERLY ALONG SAID CURVE 429.98 FEET
THROUGH A CENTRAL ANGLE OF 16'58'43''; THENCE LEAVING THE SOUTH
LINE OF FUTURE CANNON ROAD SOUTH 25'25'30'' EAST 135.56 FEET TO
THE SOUTHERLY LINE OF SAID RECORD OF SURVEY; THENCE WESTERLY
ALONG SAID SOUTHERLY LINE SOUTH 51'35'15" WEST 67.24 FEET, SOUTH
48"19'13" WEST 404.31 FEET, SOUTH 65'09'20'' WEST 386.97 FEET TO
THE POINT OF BEGINNING, ALL AS SHOWN ON THE ATTACHED PLAT FOR
CONVENIENCE SAKE.
THE AREA OF ABOVE DESCRIBED PROPERTY IS 248,292 S.F. OR 5.70
ACRES.
l@l DELTA mmNG/ I .GVGW I R2DU.S I BASIS OF BEARING: COURSE 8 PER RECORD OF SURMY 171 11 BEING S 65'09'20" W
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DRAFT
8/16/2002
EXHIBlT “2” TO FLOOD EASEMENT
LEGAL DESCRIPTION OF ROBERTSON RANCH
29
SD-DoCSUO6845.1 I
ORDER NO. 1285531-6
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY
OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS:
PARCEL 1:
THAT PORTION OF LOT E OF RANCHO AGUA HEDIONDA, IN THE CITY OF CARLSBAD,
FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, NOVEMBER
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 823,
16, 1896, DESCRIBED AS FOLLOWS:
THE SOUTHEAST CORNER OF CT 76-12 PER MAP 9935 FILED IN THE OFFICE OF THE
BEGINNING AT THE SOUTHWEST CORNER OF RECORD OF SURVEY 16661, BElNG ALSO
COUNTY RECORDER OF SAID COUNTY ON JULY 14, 2000 AND DECEMBER 16, 1980
313.13 FEET, SOUTH 73’19’52” EAST 230.87 FEET, SOUTH 4’56’41” EAST 517.19 FEET TO A
RESPECTIVELY; THENCE, SOUTH 1’42’35” WEST 1619.75 FEET, SOUTH 63’42’38’’ EAST
POINT ON A CURVE CONCAVE TO THE SOUTH AND HAVING A RADIUS OF I45 1 .OO FEET, A
RADIAL LINE TO SAID CURVE BEARS SOUTH 28O58’39” EAST; THENCE, NORTHEASTERLY
ALONG SAID CURVE 519.94 FEET THROUGH A CENTRAL ANGLE OF 20°31’52”; THENCE,
TANGENT TO SAID CURVE NORTH 81°33’13” EAST 648.89 FEET TO A TANGENT CURVE
CONCAVE TO THE NORTH AND HAVING A RADIUS OF 1349.00 FEET; THENCE, EASTERLY
TANGENT TO SAID CURVE NORTH 53”15’17” EAST 461.71 FEET TO A TANGENT CURVE
ALONG SAID CURVE 666.28 FEET THROUGH A CENTRAL ANGLE OF 28”17’56”; THENCE,
NORTHEASTERLY ALONG SAID CURVE 32.06 FEET THROUGH A CENTRAL ANGLE OF
CONCAVE TO THE NORTH AND HAVING A RADIUS OF 990.00 FEET; THENCE,
lo5l’19”; THENCE, TANGENT TO SAID CURVE NORTH 5Io23’58” EAST 60.28 FEET TO A
TANGENT CURVE CONCAVE TO THE SOUTH AND HAVING A RADIUS OF 1010.00 FEET;
THENCE,’ NORTHEASTERLY ALONG SAID CURVE 32.70 FEET THROUGH A CENTRAL
ANGLE OF 1”51’19”; THENCE, TANGENT TO SAID CURVE NORTH 53’15’17” EAST 336.29
FEET TO A TANGENT CURVE CONCAVE TO THE WEST AND HAVING A RADIUS OF 25.00
FEET; THENCE, NORTHERLY ALONG SAID CURVE 39.80 FEET THROUGH A CENTRAL
ANGEL OF 91”12’49”; THENCE, TANGENT TO SAID CURVE NORTH 37‘57’32’’ WEST 300.00
FEET TO A TANGENT CURVE CONCAVE TO THE EAST AND HAVING A RADIUS OF 210.00
ANGLE OF 5’42’26”; THENCE, TANGENT TO SAID CURVE NORTH 32’15’06” WEST 80.62
FEET; THENCE, NORTHERLY ALONG SAID CURVE 20.92 FEET THROUGH A CENTRAL
FEET TO A TANGENT CURVE CONCAVE TO THE WEST AND HAVING A RADIUS OF 190.00
FEET; THENCE, NORTHERLY ALONG SAID CURVE 18.93 FEET THROUGH A CENTRAL
ANGLE OF 5”42’26”; THENCE, TANGENT TO SAID CURVE NORTH 37”57’32” WEST 310.22
FEET TO A TANGENT CURVE CONCAVE TO THE SOUTHWEST AND HAVING A RADIUS OF
1349.00 FEET; THENCE, NORTHWESTERLY ALONG SAID CURVE 288.52 FEET THROUGH A CENTRAL ANGLE OF 12°15’16”; THENCE, TANGENT TO SAID CURVE NORTH 50’12’48’‘
RADIUS OF 1451.00 FEET; THENCE, NORTHWESTERLY ALONG SAID CURVE 480.3 I FEET
WEST 100.00 FEET TO A TANGENT CURVE CONCAVE TO THE NORTHEAST AND HAVING A
RECORD OF SURVEY 16661, A RADIAL LINE TO SAID CURVE BEARS SOUTH 58’45’10”
THROUGH A CENTRAL ANGLE OF 18°57’58” TO A POINT IN THE SOUTH LINE OF SAID
WEST; THENCE, NORTH 89O25’37” WEST ALONG THE SOUTH LINE OF SAID RECORD OF
SURVEY 16661 1950.97 FEETTOTHE POINT OF BEGN’JING.
.- .
ORDER NO. 1285531-6
SAID LAND BEING DESCRIBED AS PARCEL I ON CERTIFICATE OF COMPLIANCE
RECORDED NOVEMBER 28,2001 AS FILE NO. 2001-0865064 OF OFFICIAL RECORDS.
PARCEL 2:
THAT PORTION OF LOTS D AND E OF RANCHO AGUA HEDIONDA, IN THE CITY OF
CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP
THEREOF NO. 823, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY,’NOVEMBER 16, 1896, DESCRIBED AS FOLLOWS:
THE SOUTHEAST CORNER ,OF CT 76-12 PER MAP 9935 FILED IN THE OFFICE OF THE
BEGMNING AT THE SOUTHWEST CORNER OF RECORD OF SURVEY 16661, BEING ALSO
COUNTY RECORDER OF SAID COUNTY ON JULY 14, 2000 AND DECEMBER 16, 1980
RESPECTIVELY; THENCE, ALONG THE SOUTHERLY LINE OF SAID RECORD OF SURVEY
CONTINUING ALONG THE SOUTHERLY AND EASTERLY LINE OF SAID RECORD OF
SOUTH 89”25’37” EAST 1950.97 FEET TO THE TRUE POINT OF BEGINNING; THENCE,
SURVEY SOUTH 89’25’37’’ EAST 129.11 FEET, NORTH 13”44’27” EAST 781.66 FEET, NORTH
2Io34’15” EAST 189.90 FEET, NORTH 14”47’00” EAST 160.15 FEET, NORTH 11’34’22” EAST
65.17 FEET, NORTH 7’12’14” EAST 135.30 FEET, NORTH 14°45’08” EAST 57.12 FEET, NORTH
20’50’34” EAST 126.05 FEET, NORTH 9’43’14” EAST 112.86 FEET, NORTH 1°15’18” EAST 150.28
FEET, SOUTH 89O37’14” EAST 355.61 FEETTO A POINT ON RECORD OF SURVEY 14818 FILED
RECORD OF SURVEY 16661 AND CONTINUING SOUTHERLY ALONG THE WEST LINE OF
IN THE. OFFICE OF THE COUNTY RECORDER ON MARCH 16,1995; THENCE, LEAVING SAID
RECORD OF SURVEY 14818, SOUTH 1°15’25” EAST 304.47 FEET (SOUTH l”11’30” EAST
305.18’ R), SOUTH 18”25’38” EAST, 694.08 FEET (SOUTH 18O19’26” EAST 694.27’ R), THENCE,
LEAVING SAID RECORD OF SURVEY 14818 AND CONTINUING SOUTHERLY ALONG THE
WEST LINE OF THAT 363.14 ACRES PARCEL AS SHOWN ON RECORD OF. SURVEY 6616
FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY ON NOVEMBER 4,
1965; THENCE, SOUTH 1°05’41” WEST 1271.23 FEET (SOUTH 1°12’02” WEST 1271.40’ R),
SOUTH 4’13’22” WEST 963.76 FEET (SOUTH 4°20’50” WEST 963.88’ R), SOUTH 5 l”39’15” WEST
1165.94 FEET 1165.94 FEET (SOUTH 51’47’48” WEST 1165.49’ R), SOUTH 48O19’13” WEST
404.3 I FEET (SOUTH 48’19’29” WEST 404.15’ R), SOUTH 6Y09’20” WEST 386.97 FEET (SOUTH
65”14’32” WEST 387.06’ R), NORTH 77’55’34” WEST 635.12 FEET (NORTH 77’48’20’’ WEST
635.06’ R),’ SOUTH 65’35’13’’ WEST 494.30 FEET (SOUTH 65‘42’27” WEST 494.30’ R), SOUTH
266.73 FEET (SOUTH 30’46’06” WEST 33 1 .55’ TO THE CENTERLINE OF RS 682 R) TO A POINT
39’37’39” WEST 339.77 FEET (SOUTH 39”44’53” WEST 339.77’ R), SOUTH 30”38’52” WEST
COUNTY ROAD SURVEY NO. 1800-1 (KNOWN AS EL CAMINO REAL) ACCORDING TO
IN A LINE THAT IS PARALLEL TO AND 63.00 FEET NORTHERLY OF THE CENTERLINE OF
OFFICIAL PLAT THEREOF ON FILE IN THE OFFICE OF THE COUNTY ENGINEER OF SAN
DIEGO COUNTY; THENCE, WESTERLY ALONG SAID NORTHERLY LINE, NORTH 66”42’10”
OF A CURVE CONCAVE TO THE NORTH AND HAVING A RADIUS OF 6,855.31 FEET, SAID
WEST 13.53 FEET; THENCE, SOUTH 23”17’50” WEST 18.00 FEET ALONG THE RADIAL LINE
POINT BEING ALSO ON THE NORTH LINE OF THAT 90 FOOT WIDE STRIP OF LAND SHOWN
ON ROAD SURVEY NO. 1800-1; THENCE, WESTERLY ALONG SAID NORTH LINE, AND
CURVE THROUGH A CENTRAL ANGLE OF 2°10’51” 260.94 FEET; THENCE, LEAVING SAID
NORTH LINE, NORTH 32’44’07” EAST 16.78 FEET, SOUTH 82’48’22” EAST 72.17 FEET, NORTH
23”3 1’32” EAST 109.80 FEET, NORTH 25”38’3 I” EAST 100.08 FEET, NORTH 29’07’38’’ EAST
77.37 FEET, NORTH 3 1’48’12’’ EAST 60.19 FEET, NORTH 42’27’17” EAST 23.56 FEET. NORTH
37’46’23’’ EAST 139.56 FEET, NORTH 24’02’16” EAST 40.09 FEET, NORTH 46’32’58” EAST
281.65 FEET, NORTH 53”49’59 EAST 241.03 FEET, NORTH 67”15’16” EAST 15.60 FEET, SOUTH
ORDER NO. 1285531-6
4’56’41’’ EAST 44.65 FEET TO A POINT ON A CURVE CONCAVE TO THE SOUTH AND
2898’39’’ EAST; THENCE, NORTHEASTERLY ALONG SAID CURVE 519.94 FEET THROUGH A
CENTRAL ANGLE OF 20°31’52”; THENCE, TANGENT TO SAID CURVE NORTH 81”33’13”
EAST 648.89 FEET TO A TANGENT CURVE CONCAVE TO THE.NORTH AND HAVING A
RADIUS OF 1349.00 FEET; THENCE, EASTERLY ALONG SAID CURVE 666.28 FEET THROUGH
A CENTRAL ANGLE OF 28’17’56”; THENCE, TANGENT TO SAID CURVE NORTH 53°15’17”
EAST 461.71 FEET TO A TANGENT CURVE CONCAVE TO THE NORTH AND HAVING A
RADIUS OF 990.00 FEET; THENCE, NORTHEASTERLY ALONG SAID CURVE 32.06 FEET THROUGH A CENTRAL ANGLE OF Io51’19”; THENCE, TANGENT TO SAID CURVE NORTH
51‘23’58’’ EAST 60.28 FEET TO A TANGENT CURVE CONCAVE TO THE SOUTH AND HAVING
THROUGH A CENTRAL ANGLE OF l”51’19”; THENCE, TANGENT TO SAID CURVE NORTH
A RADIUS OF 1010.00 FEET; THENCE, NORTHEASTERLY ALONG SAID CURVE 32.70 FEET
53O15’17” EAST 336.29 FEET TO A TANGENT CURVE CONCAVE TO THE WEST AND HAVNG
THROUGH A CENTRAL ANGLE OF 91‘12’49’’; THENCE, TANGENT TO SAID CURVE NORTH
A RADIUS OF 25.00 FEET; THENCE, NORTHERLY ALONG SAID CURVE 39.80 FEET
37’57’32” WEST 300.00 FEET TO A TANGENT CURVE CONCAVE TO THE EAST AND HAVING
THROUGH A CENTRAL ANGLE OF 5’42’26”; THENCE, TANGENT TO SAID CURVE NORTH
A RADIUS OF 210.00 FEET; THENCE, NORTHERLY ALONG SAID CURVE 20.92 FEET
32’15’06” WEST 80.62 FEET TO A TANGENT CURVE CONCAVE TO THE WEST AND HAVING
A RADIUS OF 190.00 FEET; THENCE, NORTHERLY ALONG SAID CURVE 18.93 FEET
THROUGH A CENTRAL ANGLE OF 5”42’26”; THENCE, TANGENT TO SAID CURVE NORTH
3T57’32” WEST 310.22 FEET TO A TANGENT CURVE CONCAVE TO THE SOUTHWEST AND
HAVING A RADIUS OF 1349.00 FEET; THENCE, NORTHWESTERLY ALONG SAID CURVE
288.52 FEET THROUGH A CENTRAL ANGLE OF 12°15’16”; THENCE, TANGENT TO SAID
CURVE NORTH 50O12’48” WEST 100.00 FEET TO A TANGENT CURVE CONCAVE TO THE
NORTHEAST AND HAVING A RADIUS OF 145 I .OO FEET; THENCE NORTHWESTERLY ALONG
SOUTH LINE OF SAID RECORD OF SURVEY 16661, SAID POINT BEING THE TRUE POINT OF
SAID CURVE 480.3 1 FEET THROUGH A CENTRAL ANGLE OF 18’57’58’’ TO A POINT IN THE
BEGINNING, A RADIAL LINE TO SAID CURVE AT THE TRUE POINT OF BEGINNING BEARS
SOUTH 58’45’10” WEST.
SAID LAND BEING DESCRIBED AS PARCEL 3 ON CERTIFICATE OF COMPLIANCE
RECORDED NOVEMBER 28,2001 AS FILENO. 2001-0865066 OF OFFICIAL RECORDS.
-.HAVING A RADIUS OF 1451 .OO FEET, A RADIAL LINE TO SAID CURVE BEARS SOUTH
FEBRUARY 05. 2002 3:21 PM MC
DRAFT
8/16/2002
EXHIBIT “D”
Recording Requested By
and
When Recorded Mail To:
City Clerk
1200 Carlsbad Village Drive
Carlsbad, CA 92008
A ‘OVE SPACE FOR RECORDER’S USE ONLY
UNDERGROUND FACILITIES EASEMENT AGREEMENT
This UNDERGROUND FACILITIES EASEMENT AGREEMENT (“Agreement”) is
entered into as of , __ between CALAVERA HILLS I1 LLC,
California limited liability, (“Calavera”), and the CITY OF CARLSBAD, a municipal
corporation, (“m’) with reference to the following facts:
A. Contemporaneously herewith, Owner is purchasing from Calavera the real
property located in the City of Carlsbad, California, more particularly described on Exhibit “1”
attached hereto (“Owner’s Site”).
B. Calavera is the owner of that certain real property located in the City Carlsbad,
California, more particularly described on Exhibit “2” attached hereto (“Robertson Ranch”).
C. Calavera desires to acquire certain rights in Owner’s Site.
AGREEMENT
NOW THEREFORE, for valuable consideration, receipt of which is hereby
acknowledged, it is agreed as follows:
1. Owner hereby grants to Calavera the non-exclusive perpetual easement
hereinafter described (the “Easement”).
2. The Easement is over and across that portion(s) of the Owner’s Site determined
by Owner in the future to be most suitable and convenient. However, once the location(s) has
30
SD-DOCSU06845. I I
DRAFT
8/16/2002
been determined, the parties hereto agree to amend the Easement to set forth such location(s)
with more specificity.
3. The Easement is in gross.
4. The Easement consists of the following: An easement for the installation,
maintenance andor operation of storm drainage facilities and water lines; and for pedestrian and
vehicular ingress and egress over driveways, roads, sidewalks or other areas as reasonably
necessary to provide access for these purposes.
5. Calavera shall exercise its rights in connection with the Easement only to the
extent necessary to accomplish the purposes for which the Easement is intended and shall not
exercise its rights in connection with the Easement in such a way as to render the Owner’s Site
unusable for its intended purposes as a community garden, wash area, waste disposal area and
RV Parking Lot (which includes, without limitation, parking for boats, cars, jet skis, RVs, hay
wagons and other personal items, subject to any applicable governmental approvals).
6. The Easement is not exclusive. Owner retains the right to make any use of
Owner’s Site that does not unreasonably interfere with Calavera’s free use and enjoyment of the
Easement.
7. Calavera shall hold harmless, indemnify and defend Owner and any of Owner’s
successors, assigns, employees, agents and occupants of Owner’s Site from and against any and
all obligations, liabilities, claims, liens, demands, losses, damages, causes of action, judgments,
costs and expenses (including reasonable attorneys’ fees and costs) arising out of or relating to
Calavera’s use of the Easement or Calavera’s breach of any covenant or agreement contained in
this instrument, including without limitation, any and all damages to buildings, structures and
landscape improvements located on Owner’s Site arising out of the use of the Easement.
8. All of the provisions, agreements, rights, powers, covenants, conditions and
obligations contained in this Agreement, shall be binding upon and shall inure to the benefit of
the parties hereto, their respective heirs, successors (by merger, consolidation or otherwise) and
assigns, devisees, administrators, representatives, lessees. All provisions of this Agreement shall
be covenants running with the land pursuant to applicable law, including but not limited to
Section 1468 of the Civil Code of the State of California.
9. This Agreement shall become effective and binding upon recordation of this
Agreement in the Office of the County Recorder of San Diego County.
10. This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original and all of which shall constitute one and the same agreement.
SD-DOCSU06845.11
31
DRAFT
8/16/2002
IN WITNESS WHEREOF, the parties hereto have executed this instrument on the day
and year first above written.
CALAVERA HILLS II LLC, a California limited
liability company
a Delaware limited liability company
By:
By its Manager: McMillin Companies, LLC,
Its:
THE CITY OF CARLSBAD, a municipal
corporation
By:
32
DRAFT
8/16/2002
STATE OF 1
COUNTY OF 1
On , before me, , personally appeared
, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person(s) whose name@) islare subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said
County and State
STATE OF CALIFORNIA 1
COUNTY OF SAN DIEGO 1
On , before me, , personally
appeared , personally known to me (or proved to me
on the basis of satisfactory evidence) to be the person(s) whose name(s) islare subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in hislherltheir
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said
County and State
33
DRAFT
8/I 6/2002
EXHIBIT “1” TO UNDERGROUND FACILITIES EASEMENT
LEGAL DESCRIPTION OWNER’S SITE
SDUXJCSUO6845.1 I
34
AUGUST 27, 2002
J.N. : 01-0185
PAGE 1 OF 1
LEGAL DESCRIPTION FOR OPTION PARCEL
THAT PORTION OF PARCEL 3 OF ADJUSTMENT PLAT ADJ 01-13 PER
CERTIFICATE OF COMPLIANCE CE 01-56 IN THE CITY OF CARLSBAD,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, RECORDED AS DOCUMENT
2001-0865066 ON NOVEMBER 28, 2001 IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY, STATE OF CALIFORNIA, DESCRIBED AS
FOLLOWS :
BEGINNING AT ANGLE POINT NO. 19 ON THE SOUTHERLY LINE OF RECORD
OF SURVEY NO. 17111 FILED IN THE OFFICE OF THE COUNTY RECORDER
OF SAID COUNTY ON AUGUST 24, 2001: THENCE NORTH 77O55'34" WEST
(SEE CERTIFICATE OF CORRECTION OF SAID RECORD OF SURVEY RECORDED
NOVEMBER 29, 2001 AS DOC. NO. 2001-0869050 IN THE OFFICE OF SAID
COUNTY RECORDER) ALONG THE SOUTHERLY LINE OF SAID RECORD OF
SURVEY 113.37 FEET; THENCE LEAVING SAID SOUTHERLY LINE NORTH
8'26'47'' WEST 86.33 FEET, NORTH 81'33'13'' EAST 49.99 FEET, NORTH
8'26'47'' WEST 85.24 FEET, NORTH 11O57'45" EAST 71.37 FEET, NORTH
8'26'47'' WEST 152.55 FEET TO THE SOUTHERLY LINE OF FUTURE CANNON
ROAD: THENCE EASTERLY ALONG THE SOUTHERLY LINE OF FUTURE CANNON
ROAD NORTH 81'33' 13" EAST 335.71 FEET TO THE BEGINNING OF A
TANGENT CURVE CONCAVE TO THE NORTH AND HAVING A RADIUS OF
1451.00 FEET; THENCE EASTERLY ALONG SAID CURVE 429.98 FEET
THROUGH A CENTRAL ANGLE OF 16"58'43"; THENCE LEAVING THE SOUTH
LINE OF FUTURE CANNON ROAD SOUTH 25'25'30'' EAST 135.56 FEET TO
THE SOUTHERLY LINE OF SAID RECORD OF SURVEY: THENCE WESTERLY
ALONG SAID SOUTHERLY LINE SOUTH 51'39'15" WEST 67.24 FEET, SOUTH
48"19'13" WEST 404.31 FEET, SOUTH 65O09'20" WEST 386.97 FEET TO
THE POINT OF BEGINNING, ALL AS SHOWN ON THE ATTACHED PLAT FOR
CONVENIENCE SAKE.
THE AREA OF ABOVE DESCRIBED PROPERTY IS 248,292 S.F. OR 5.70
ACRES
CONSULT 0279 NTS EXHIBIT
59MI Poltrvr Sult. court 100 Ci",, Eng;-ng PURCHASE PLAT FOR
Callsbod Colifornr 92008
760-9J1-7700
Piannlng Pi.,C..ti".
S"W*Y*". 5.7 ACRE OPTION PARCEL
DRAFT
8/16/2002
EXHIBIT “2” TO UNDERGROUND FACILITIES EASEMENT
LEGAL DESCRIPTION OF ROBERTSON RANCH
35
ORDER NO. 1285531-6
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY
OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS:
PARCEL 1:
THAT PORTION OF LOT E OF RANCHO AGUA HEDIONDA, IN THE CITY OF CARLSBAD,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 823,
FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, NOVEMBER
16, 1896, DESCRlBED AS FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF RECORD OF SURVEY 16661, BEING ALSO
COUNTY RECORDER OF SAID COUNTY ON JULY 14, 2000 AND DECEMBER 16, 1980
313.13 FEET, SOUTH 73”19’52” EAST 230.87 FEET, SOUTH 4’56’41’’ EAST 517.19 FEET TO A
RESPECTIVELY; THENCE, SOUTH IO42’35” WEST 1619.75 FEET, SOUTH 63’42’38” EAST
RADIAL LINE TO SAID CURVE BEARS SOUTH 28O58’39” EAST; THENCE, NORTHEASTERLY
POINT ON A CURVE CONCAVE TO THE SOUTH AND HAVING A RADIUS OF 1451 .OO FEET, A
ALONG SAID CURVE 519.94 FEET THROUGH A CENTRAL ANGLE OF 20’31’52”; THENCE,
TANGENT TO SAID CURVE NORTH 81’33’13’’ EAST 648.89 FEET TO A TANGENT CURVE
CONCAVE TO THE NORTH AND HAVING A RADIUS OF 1349.00 FEET; THENCE, EASTERLY
ALONG SAID CURVE 666.28 FEET THROUGH A CENTRAL ANGLE OF 28‘17’56”; THENCE,
TANGENT TO SAID CURVE NORTH 53°15’17” EAST 461.71 FEET TO A TANGENT CURVE CONCAVE TO THE NORTH AND HAVING A RADIUS OF 990.00 FEET; THENCE,
NORTHEASTERLY ALONG SAID CURVE 32.06 FEET THROUGH A CENTRAL ANGLE OF
Io51’19”; THENCE, TANGENT TO SAID CURVE NORTH 51”23’58 EAST 60.28 FEET TO A
TANGENT CURVE CONCAVE TO THE SOUTH AND HAVING A RADIUS OF 1010.00 FEET;
THENCE, NORTHEASTERLY ALONG SAID CURVE 32.70 FEET THROUGH A CENTRAL
ANGLE OF lo5I’19”; THENCE, TANGENT TO SAID CURVE NORTH 53”15’17” EAST 336.29
FEET TO A TANGENT CURVE CONCAVE TO THE WEST AND HAVING A RADIUS OF 25.00
FEET; THENCE, NORTHERLY ALONG SAID CURVE 39.80 FEET THROUGH A CENTRAL
ANGEL OF 91”12’49”, THENCE, TANGENT TO SAID CURVE NORTH 37‘57’32” WEST 300.00
FEET; THENCE, NORTHERLY ALONG SAID CURVE 20.92 FEET THROUGH A CENTRAL
FEET TO A TANGENT CURVE CONCAVE TO THE EAST AND HAVING A RADIUS OF 210.00
ANGLE OF 5’42’26”; THENCE, TANGENT TO SAID CURVE NORTH 32’15’06” WEST 80.62
FEET TO A TANGENT CURVE CONCAVE TO THE WEST AND HAVING A RADIUS OF 190.00
FEET; THENCE, NORTHERLY ALONG SAID CURVE 18.93 FEET THROUGH A CENTRAL
ANGLE OF 5’42’26”; THENCE, TANGENT TO SAID CURVE NORTH 3797’32” WEST 310.22
FEET TO A TANGENT CURVE CONCAVE TO THE SOUTHWEST AND HAVING A RADIUS OF
CENTRAL ANGLE OF 12°15’16”; THENCE, TANGENT TO SAID CURVE NORTH 50°12’48”
1349.00 FEET; THENCE, NORTHWESTERLY ALONG SAID CURVE 288.52 FEET THROUGH A
WEST 100.00 FEET TO A TANGENT CURVE CONCAVE TO THE NORTHEAST AND HAVING A
THROUGH A CENTRAL ANGLE OF 18’57’58’’ TO A POINT IN THE SOUTH LINE OF SAID
RADIUS OF 1451.00 FEET: THENCE, NORTHWESTERLY ALONG SAID CURVE 480.31 FEET
RECORD OF SURVEY 16661, A RADIAL LINE TO SAID CURVE BEARS SOUTH 58O45’10”
WEST; THENCE, NORTH 89O25’37” WEST ALONG THE SOUTH LINE OF SAID RECORD OF
SURVEY 16661 1950.97 FEET TO THE POINT OF BEGINNING.
THE SOUTHEAST CORNER OF CT 76-12 PER MAP 9935 FILED IN THE OFFICE OF THE
ORDER NO. 1285531-6
SAID LAND BEING DESCRlBED AS PARCEL I ON CERTIFICATE OF COMPLIANCE
RECORDED NOVEMBER 28,2001 AS FILE NO. 2001-0865064 OF OFFICIAL RECORDS,
PARCEL 2:
THAT PORTION OF LOTS D AND E OF RANCHO AGUA HEDIONDA, IN THE CITY OF
CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP
COUNTY, NOVEMBER 16,1896, DESCRIBED AS FOLLOWS:
THEREOF NO. 823, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO
BEGINNING AT THE SOUTHWEST CORNER OF RECORD OF SURVEY 16661, BEING ALSO
COUNTY RECORDER OF SAID COUNTY ON JULY 14, 2000 AND DECEMBER 16, 1980
THE SOUTHEAST CORNER ,OF CT 76-12 PER MAP 9935 FILED IN THE OFFICE OF THE
RESPECTIVELY, THENCE, ALONG THE SOUTHERLY LINE OF SAID RECORD OF SURVEY
CONTINUING ALONG THE SOUTHERLY AND EASTERLY LINE OF SAID RECORD OF
SOUTH 89’25’37’’ EAST 1950.97 FEET TO THE TRUE POINT OF BEGINNING; THENCE,
SURVEY SOUTH 89’25’37’’ EAST 129.11 FEET, NORTH 13”44’27” EAST 781.66 FEET, NORTH
21“34’15” EAST 189.90 FEET, NORTH 14°47’OO” EAST 160.15 FEET, NORTH 1 1’34’22” EAST
20’50’34” EAST 126.05 FEET, NORTH 9’43’14” EAST 112.86 FEET, NORTH 1°15’18” EAST 150.28
65.17 FEET, NORTH 7’12’14” EAST 135.30 FEET, NORTH 14’45’08” EAST 57.12 FEET, NORTH
IN THE OFFICE OF THE COUNTY RECORDER ON MARCH 16, 1995; THENCE, LEAVING SAID
FEET, SOUTH 89O37’14” EAST 355.61 FEETTO A POINT ON RECORD OF SURVEY 14818 FILED
RECORD OF SURVEY 14818, SOUTH 1’15’25’’ EAST 304.47 FEET (SOUTH Io11’3O” EAST RECORD OF SURVEY 16661 AND CONTINUING SOUTHERLY ALONG THE WEST LINE OF
305.18’ R), SOUTH 18‘25’38’’ EAST, 694.08 FEET (SOUTH IS”19’26” EAST 694.27’ R), THENCE,
LEAVING SAID RECORD OF SURVEY 14818 AND CONTINUING SOUTHERLY ALONG THE
FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY ON NOVEMBER 4,
WEST LINE OF THAT 363.14 ACRES PARCEL AS SHOWN ON RECORD 0F.SURVEY 6616
1965; THENCE, SOUTH lo05’41” WEST 1271.23 FEET (SOUTH 1°12’02” WEST 1271.40’ R),
SOUTH 4’13’22” WEST 963.76 FEET (SOUTH 4”20’50” WEST 963.88’ R), SOUTH 5I039’I5”WEST
1165.94 FEET 1165.94 FEET (SOUTH 51”47’48” WEST 1165.49’ R), SOUTH 48’19’13’’ WEST
404.31 FEET (SOUTH 48”19’29” WEST 404.15’ R), SOUTH 65’09’20” WEST 386.97 FEET (SOUTH
635.06’ R),’ SOUTH 65’35’13” WEST 494.30 FEET (SOUTH 65‘42’27” WEST 494.30’ R), SOUTH
65‘14’32’’ WEST 387.06’ R), NORTH 77’55’34’’ WEST 635.12 FEET (NORTH 77”48’20” WEST
266.73 FEET (SOUTH 30”46’06” WEST 33 1.55’ TO THE CENTERLINE OF RS 682 R) TO A POINT
39”37’39” WEST 339.77 FEET (SOUTH 39’44’53’’ WEST 339.77’ R), SOUTH 30’38’52” WEST
COUNTY ROAD SURVEY NO. 1800-1 (KNOWN AS EL CAMINO REAL) ACCORDING TO
IN A LINE THAT IS PARALLEL TO AND 63.00 FEET NORTHERLY OF THE CENTERLINE OF
OFFICIAL PLAT THEREOF ON FILE IN THE OFFICE OF THE COUNTY ENGINEER OF SAN
DIEGO COUNTY; THENCE, WESTERLY ALONG SAID NORTHERLY LINE, NORTH 66’42’10’’
WEST 13.53 FEET; THENCE, SOUTH 23°17’50” WEST 18.00 FEET ALONG THE RADIAL LINE
OF A CURVE CONCAVE TO THE NORTH AND HAVING A RADIUS OF 6,855.31 FEET, SAID
POINT BEING ALSO ON THE NORTH LINE OF THAT 90 FOOT WIDE STRJP OF LAND SHOWN
ON ROAD SURVEY NO. 1800-1; THENCE, WESTERLY ALONG SAID NORTH LINE, AND
CURVE’THROUGH A CENTRAL ANGLE OF 2”10’51” 260.94 FEET; THENCE, LEAVING SAID
NORTH LINE, NORTH 32’44’07” EAST 16.78 FEET, SOUTH 82‘48’22” EAST 72.17 FEET, NORTH
23’3 1’32” EAST 109.80 FEET, NORTH 25”38’3 I” EAST 100.08 FEET, NORTH 29’07’38’’ EAST
77.37 FEET, NORTH 3 I”48’12” EAST 60.19 FEET, NORTH 42’27’ 17” EAST 23.56 FEET, NORTH
37’46’23” EAST 139.56 FEET, NORTH 24”02’16” EAST 40.09 FEET, NORTH 46”32’58” EAST
28 I .65 FEET, NORTH 53”49’59” EAST 24 I .03 FEET, NORTH 67” 15’ 16” EAST 15.60 FEET, SOUTH
ORDER NO. 1285531-6
-.HAVING A RADIUS OF 1451.00 FEET, A RADIAL LINE TO SAID CURVE BEARS SOUTH
4’56’41” EAST 44.65 FEET TO A POINT ON A CURVE CONCAVE TO THE SOUTH AND
28”58’39” EAST; THENCE, NORTHEASTERLY ALONG SAID CURVE 5 19.94 FEET THROUGH A
CENTRAL ANGLE OF 20”31’52”; THENCE, TANGENT TO SAID CURVE NORTH 81O33’13”
EAST 648.89 FEET TO A TANGENT CURVE CONCAVE TO THE NORTH AND HAVING A
RADIUS OF 1349.00 FEET; THENCE, EASTERLY ALONG SAID CURVE 666.28 FEET THROUGH
A CENTRAL ANGLE OF 28‘17’56’’; THENCE, TANGENT TO SAID CURVE NORTH 53”15’17”
EAST 461.71 FEET TO A TANGENT CURVE CONCAVE TO THE NORTH AND HAVING A
RADIUS OF 990.00 FEET; THENCE, NORTHEASTERLY ALONG SAID CURVE 32.06 FEET
THROUGH A CENTRAL ANGLE OF 1”51’19”, THENCE, TANGENT TO SAID CURVE NORTH
51‘23’58” EAST 60.28 FEET TO A TANGENT CURVE CONCAVE TO THE SOUTH AND HAVING
THROUGH A CENTRAL ANGLE OF l”51’19”; THENCE, TANGENT TO SAID CURVE NORTH
A RADIUS OF 1010.00 FEET; THENCE, NORTHEASTERLY ALONG SAID CURVE 32.70 FEET
53O15’17” EAST 336.29 FEET TO A TANGENT CURVE CONCAVE TO THE WEST AND HAVING
THROUGH A CENTRAL ANGLE OF 91”12’49”; THENCE, TANGENT TO SAID CURVE NORTH
A RADIUS OF 25.00 FEET; THENCE, NORTHERLY ALONG SAID CURVE 39.80 FEET
37’57’32’’ WEST 300.00 FEET TO A TANGENT CURVE CONCAVE TO THE EAST AND HAVING
A RADIUS OF 210.00 FEET; THENCE, NORTHERLY ALONG SAID CURVE 20.92 FEET
THROUGH A CENTRAL ANGLE OF 5”42’26”, THENCE, TANGENT TO SAID CURVE NORTH
32O15’06” WEST 80.62 FEET TO A TANGENT CURVE CONCAVE TO THE WEST AND HAVING
A RADIUS OF 190.00 FEET; THENCE, NORTHERLY ALONG SAID CURVE 18.93 FEET
THROUGH A CENTRAL ANGLE OF 5”42’26”; THENCE, TANGENT TO SAID CURVE NORTH
3737’32” WEST 310.22 FEET TO A TANGENT CURVE CONCAVE TO THE SOUTHWEST AND
288.52 FEET THROUGH A CENTRAL ANGLE OF 12”15’16”, THENCE, TANGENT TO SAID
HAVING A RADIUS OF 1349.00 FEET; THENCE, NORTHWESTERLY ALONG SAID CURVE
NORTHEAST AND HAVING A RADIUS OF 145 1 .OO FEET; THENCE NORTHWESTERLY ALONG
CURVE NORTH 50°12’48” WEST 100.00 FEET TO A TANGENT CURVE CONCAVE TO THE
SAID CURVE 480.31 FEET THROUGH A CENTRAL ANGLE OF 18’57’58’’ TO A.POINT IN THE
SOUTH LINE OF SAID RECORD OF SURVEY 16661, SAID POINT BEING THE TRUE POINT OF
BEGINNING, A RADIAL LINE TO SAID CURVE AT THE TRUE POINT OF BEGINNING BEARS
SOUTH 58’45’10” WEST.
SAID LAND BEING DESCRIBED AS PARCEL 3 ON CERTIFICATE OF COMPLIANCE
RECORDED NOVEMBER 28,2001 AS FILENO. 2001-0865066 OF OFFICIAL RECORDS.
FEBRUARY 05.2002 3:21 PM MC
DRAFT
8/16/2002
EXHIBIT “E”
Recording Requested By
and
When Recorded Mail To:
City Clerk
1200 Carlsbad Village Drive
Carlsbad, CA 92008
A: OVE SPACE FOR RECORDER’S USE ONLY
LANDSCAPING/SOUND WALL EASEMENT AGREEMENT
This LANDSCAPING/SOUND WALL EASEMENT AGREEMENT (“Agreement”) is
entered into as of ,- between CALAVERA HILLS I1 LLC,
California limited liability, (“Calavera”), and the CITY OF CARLSBAD, a municipal
corporation, (“w’) with reference to the following facts:
A. Contemporaneously herewith, Owner is purchasing from Calavera the real
property located in the City of Carlsbad, California, more particularly described on Exhibit “1”
attached hereto (“Owner’s Site”).
B. Calavera is the owner of that certain real property located in the City Carlsbad,
California, more particularly described on Exhibit “2” attached hereto (“Robertson Ranch”).
C. Calavera desires to acquire certain rights in Owner’s Site.
AGREEMENT
NOW THEREFORE, for valuable consideration, receipt of which is hereby
acknowledged, it is agreed as follows:
1. Owner hereby grants to Calavera the non-exclusive perpetual easement
hereinafter described (the “Easement”).
2. The Easement is over and across that portion(s) of the Owner’s Site determined
by Owner in the future to be most suitable and convenient. However, once the location(s) has
36
SD-WCSW6845.11
DRAFT
8/16/2002
been determined, the parties hereto agree to amend the Easement to set forth such location(s)
with more specificity.
3. The Easement is in gross.
4. The Easement consists of the following: An easement for the construction,
grading, planting andor maintenance, as applicable, of a berm, sound wall, grass, flowers,
shrubs, trees and irrigation, and other landscaping services paralleling Cannon Road, and for
pedestrian and vehicular ingress and egress over driveways, roads, sidewalks or other areas as
reasonably necessary to provide access for these purposes.
5. Calavera shall exercise its rights in connection with the Easement only to the
extent necessary to accomplish the purposes for which the Easement is intended and shall not
exercise its rights in connection with the Easement in such a way as to render the Owner’s Site
unusable for its intended purposes as a community garden, wash area, waste disposal area and
RV Parking Lot (which includes, without limitation, parking for boats, cars, jet skis, RVs, hay
wagons and other personal items, subject to any applicable governmental approvals).
6. The Easement is not exclusive. Owner retains the right to make any use of
Owner’s Site that does not unreasonably interfere with Calavera’s free use and enjoyment of the
Easement.
7. Calavera shall hold harmless, indemnify and defend Owner and any of Owner’s
successors, assigns, employees, agents andoccupants of Owner’s Site from and against any and
all obligations, liabilities, claims, liens, demands, losses, damages, causes of action, judgments,
costs and expenses (including reasonable attorneys’ fees and costs) arising out of or relating to
Calavera’s use of the Easement or Calavera’s breach of any covenant or agreement contained in
this instrument, including without limitation, any and all damages to buildings, structures and
landscape’improvements located on Owner’s Site arising out of the use of the Easement.
8. All of the provisions, agreements, rights, powers, covenants, conditions and
obligations contained in this Agreement, shall be binding upon and shall inure to the benefit of
the parties hereto, their respective heirs, successors (by merger, consolidation or otherwise) and
assigns, devisees, administrators, representatives, lessees. All provisions of this Agreement shall
be covenants running with the land pursuant to applicable law, including but not limited to
Section 1468 of the Civil Code of the State of California.
9. This Agreement shall become effective and binding upon recordation of this
Agreement in the Office of the County Recorder of San Diego County.
10. This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original and all of which shall constitute one and the same agreement.
SD-OOCSUO6845.11
31
DRAFT
8/16/2002
IN WITNESS WHEREOF, the parties hereto have executed this instrument on the day
and year first above written.
CALAVERA HILLS II LLC, a California limited
liability company
a Delaware limited liability company
By its Manager: McMillin Companies, LLC,
By :
By :
THE CITY OF CARLSBAD, a municipal
corporation
Its:
SD-DOCSUM845.11
38
DRAFT
8/16/2002
STATE OF 1
COUNTY OF )
On , before me, , personally appeared
, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person(s) whose name(s) islare subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said
[SEAL]
County and State
STATE OF CALIFORNIA 1
COUNTY OF SAN DIEGO
On , before me, , personally
appeared , personally known to me (or proved to me
on the basis of satisfactory evidence) to be the person(s) whose name(s) idare subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said
County and State
39
DRAFT
8/16/2002
EXHIBIT “1” TO LANDSCAPING/SOUND WALL EASEMENT
LEGAL DESCRIPTION OWNER’S SITE
40
AUGUST 27, 2002
J.N. : 01-0185
PAGE 1 OF 1
LEGAL DESCRIPTION FOR OPTION PARCEL
THAT PORTION OF PARCEL 3 OF ADJUSTMENT PLAT ADJ 01-13 PER
CERTIFICATE OF COMPLIANCE CE 01-56 IN THE CITY OF CARLSBAD,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, RECORDED AS DOCUMENT
2001-0865066 ON NOVEMBER 28, 2001 IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY, STATE OF CALIFORNIA, DESCRIBED AS
FOLLOWS :
BEGINNING AT ANGLE POINT NO. 19 ON THE SOUTHERLY LINE OF RECORD
OF SURVEY NO. 17111 FILED IN THE OFFICE OF THE COUNTY RECORDER
OF SAID COUNTY ON AUGUST 24, 2001; THENCE NORTH 77O55'34" WEST
(SEE CERTIFICATE OF CORRECTION OF SAID RECORD OF SURVEY RECORDED
NOVEMBER 29, 2001 AS DOC. NO. 2001-0869050 IN THE OFFICE OF SAID
COUNTY RECORDER) ALONG THE SOUTHERLY LINE OF SAID RECORD OF
SURVEY 113.37 FEET; THENCE LEAVING SAID SOUTHERLY LINE NORTH
8'26'47" WEST 86.33 FEET, NORTH 81'33'13'' EAST 49.99 FEET, NORTH
a~6147~~ WEST 85.24 FEET, NORTH 11057'45'~ EAST 71.37 FEET, NORTH
8"26' 47" WEST 152.55 FEET TO THE SOUTHERLY LI.NE OF FUTURE CANNON
ROAD: THENCE EASTERLY ALONG THE SOUTHERLY LINE OF FUTURE CANNON
ROAD NORTH 81"33' 13" EAST 335.71 FEET TO THE BEGINNING OF A
TANGENT CURVE CONCAVE TO THE NORTH AND HAVING A RADIUS OF
1451.00 FEET; THENCE EASTERLY ALONG SAID CURVE 429.98 FEET
THROUGH A CENTRAL ANGLE OF 16'58'43''; THENCE LEAVING THE SOUTH
LINE OF FUTURE CANNON ROAD SOUTH 25'25'30'' EAST 135.56 FEET TO
THE SOUTHERLY LINE OF SAID RECORD OF SURVEY; THENCE WESTERLY
ALONG SAID SOUTHERLY LINE SOUTH 51"39' 15" WEST 67.24 FEET, SOUTH
48O19'13" WEST 404.31 FEET, SOUTH 65°09'20" WEST 386.97 FEET TO
THE POINT OF BEGINNING, ALL AS SHOWN ON THE ATTACHED PLAT FOR
CONVENIENCE SAKE.
THE AREA OF ABOVE DESCRIBED PROPERTY IS 248,292 S.F. OR 5.70
ACRES.
BASIS OF BEARING: COURSE 8 PER RECORD OF SURVEY 17111 BEING S 65'09'20" W
PARCEL 1
r10SERT30N RANCH
ADJ. Pu-r O-J--10
FROi7OiY OF
ADJ ?UT 01-73 RMZ2TSON RANCH
(POINTff9 - R0.S f7111)
DRAFT
8/16/2002
EXHIBIT “2” TO LANDSCAPING/SOUND WALL EASEMENT
LEGAL DESCRIPTION OF ROBERTSON RANCH
41
SD-DOCSU06845.11
LEGAL DESCRIPTION
ORDER NO. 1285531-6
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY
OF SAN DIEGO. AND IS DESCRIBED AS FOLLOWS:
PARCEL 1:
THAT PORTION OF LOT E OF RANCHO AGUA HEDIONDA, IN THE CITY OF CARLSBAD,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 823,
FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, NOVEMBER
16, 1896, DESCRIBED AS FOLLOWS:
THE SOUTHEAST CORNER OF CT 76-12 PER MAP 9935 FILED IN THE OFFICE OF THE
BEGINNING AT THE SOUTHWEST CORNER OF RECORD OF SURVEY 16661, BEING ALSO
COUNTY RECORDER OF SAID COUNTY ON JULY 14, 2000 AND DECEMBER 16, 1980
RESPECTIVELY; THENCE, SOUTH l”42’35” WEST 1519.75 FEET, SOUTH 63’42’38” EAST
313.13 FEET, SOUTH 73’19’52’’ EAST 230.87 FEET, SOUTH 4’56’41” EAST 517.19 FEET TO A
POINT ON A CURVE CONCAVE TO THE SOUTH AND HAVING A RADIUS OF I45 1 .OO FEET, A
ALONG SAID CURVE 519.94 FEET THROUGH A CENTRAL ANGLE OF 20’31’52”; THENCE,
RADIAL LINE TO SAID CURVE BEARS SOUTH 2X058’39” EAST; THENCE, NORTHEASTERLY
TANGENT TO SAID CURVE NORTH 8Io33’13” EAST 648.89 FEET TO A TANGENT CURVE CONCAVE TO THE NORTH AND HAVING A RADIUS OF 1349.00 FEET; THENCE, EASTERLY
TANGENT TO SAID CURVE NORTH 53°15’17” EAST 461.71 FEET TO A TANGENT CURVE
ALONG SAID CURVE 666.28 FEET THROUGH A CENTRAL ANGLE OF 28O17’56”; THENCE,
NORTHEASTERLY ALONG SAID CURVE 32.06 FEET THROUGH A CENTRAL ANGLE OF
CONCAVE TO THE NORTH AND HAVING A RADIUS OF 990.00 FEET; THENCE,
1’51 ’19”; THENCE, TANGENT TO SAID CURVE NORTH 5Io23’58” EAST 60.28 FEET TO A
THENCE, NORTHEASTERLY ALONG SAID CURVE 32.70 FEET THROUGH A CENTRAL
TANGENT CURVE CONCAVE TO THE SOUTH AND HAVING A RADIUS OF 1010.00 FEET;
ANGLE OF 1”51’19”; THENCE, TANGENT TO SAID CURVE NORTH 53”15’17” EAST 336.29
FEET TO A TANGENT CURVE CONCAVE TO THE WEST AND HAVING A RADIUS OF 25.00
ANGEL OF 91’12’49’’; THENCE, TANGENT TO SAID CURVE NORTH 37O57’32” WEST 300.00
FEET; THENCE, NORTHERLY ALONG SAID CURVE 39.80 FEET THROUGH A CENTRAL
FEET TO A TANGENT CURVE CONCAVE TO THE EAST AND HAVING A RADIUS OF 210.00
FEET; THENCE, NORTHERLY ALONG SAID CURVE 20.92 FEET THROUGH A CENTRAL
ANGLE OF S”42’26”; THENCE, TANGENT TO SAID CURVE NORTH 32’15’06” WEST 80.62
FEET TO A TANGENT CURVE CONCAVE TO THE WEST AND HAVING A RADIUS OF 190.00
FEET; THENCE, NORTHERLY ALONG SAID CURVE 18.93 FEET THROUGH A CENTRAL
ANGLE OF S”42’26”; THENCE, TANGENT TO SAID CURVE NORTH 37’57’32” WEST 310.22
FEET TO A TANGENT CURVE CONCAVE TO THE SOUTHWEST AND HAVING A RADIUS OF
CENTRAL ANGLE OF 12°15’16”; THENCE, TANGENT TO SAID CURVE NORTH 50°12’48”
1349.00 FEET; THENCE. NORTHWESTERLY ALONG SAID CURVE 288.52 FEET THROUGH A
RADIUS OF 1451 .OO FEET; THENCE, NORTHWESTERLY ALONG SAID CURVE 480.31 FEET
WEST 100.00 FEET TO A TANGENT CURVE CONCAVE TO THE NORTHEAST AND HAVING A
THROUGH A CENTRAL ANGLE OF 18’57’58’’ TO A POINT IN THE SOUTH LINE OF SAID
WEST; THENCE, NORTH 89“25’37” WEST ALONG THE SOUTH LINE OF SAID RECORD OF
RECORD OF SURVEY 16661, A RADIAL LINE TO SAID CURVE BEARS SOUTH S8°45’10”
SURVEY I666 I 1950.97 FEET TO THE POINT OF BEGINNING.
ORDER NO. 1285531-6
SAID LAND BEING DESCRIBED AS PARCEL 1 ON CERTIFICATE OF COMPLIANCE
RECORDED NOVEMBER 28,2001 AS FILE NO. 2001-0865064 OF OFFICIAL RECORDS,
PARCEL 2:
THAT PORTION OF LOTS D AND E OF RANCHO AGUA HEDIONDA, IN THE CITY OF
CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP
COUNTY, NOVEMBER 16,1896, DESCRIBED AS FOLLOWS:
THEREOF NO. 823, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO
THE SOUTHEAST CORNER ,OF CT 76-12 PER MAP 9935 FILED IN THE OFFICE OF THE
BEGINNING AT THE SOUTHWEST CORNER OF RECORD OF SURVEY 16661, BEING ALSO
RESPECTIVELY; THENCE, ALONG THE SOUTHERLY LINE OF SAID RECORD OF SURVEY
COUNTY RECORDER OF SAID COUNTY ON JULY 14, 2000 AND DECEMBER 16, 1980
SOUTH 89’25’37’’ EAST 1950.97 FEET TO THE TRUE POINT OF BEGINNING; THENCE,
CONTINUING ALONG THE SOUTHERLY AND EASTERLY LINE OF SAID RECORD OF
SURVEY SOUTH 89’25’37” EAST 129.11 FEET, NORTH 13’44’27” EAST 781.66 FEET, NORTH
21”34’15” EAST 189.90 FEET, NORTH 14°47’00” EAST 160.15 FEET, NORTH 1174’22” EAST
65.17 FEET, NORTH 7O12’14” EAST 135.30 FEET, NORTH 14’45’08” EAST 57.12 FEET, NORTH
20’50’34” EAST 126.05 FEET, NORTH 9’43’14” EAST 112.86 FEET, NORTH 1°15’18” EAST 150.28
FEET, SOUTH 89’37’14” EAST 355.61 FEETTO A POINT ON RECORD OF SURVEY 14818 FILED
RECORD OF SURVEY 16661 AND CONTINUING SOUTHERLY ALONG THE WEST LINE OF
IN THE OFFICE OF THE COUNTY RECORDER ON MARCH 16,1995; THENCE, LEAVING SAID
RECORD OF SURVEY 14818, SOUTH Io15’25” EAST 304.47 FEET (SOUTH 1°11’30” EAST
LEAVING SAID RECORD OF SURVEY 14818 AND CONTMUING SOUTHERLY ALONG THE
305.18’ R), SOUTH 18O25’38” EAST, 694.08 FEET (SOUTH 18’19’26” EAST 694.27’ R), THENCE,
FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY ON NOVEMBER 4,
WEST LINE OF THAT 363.14 ACRES PARCEL AS SHOWN ON RECORD OF. SURVEY 6616
1965; THENCE, SOUTH 1°05’41” WEST 1271.23 FEET (SOUTH 1°12’02” WEST 1271.40’ R),
SOUTH 4“13’22” WEST 963.76 FEET (SOUTH 4”20’50” WEST 963.88’ R), SOUTH 51”39’15” WEST
1165.94 FEET 1165.94 FEET (SOUTH 51’47’48” WEST 1165.49’ R), SOUTH 48O19’13” WEST
404.31 FEET (SOUTH 48’19’29” WEST 404.15’ R), SOUTH 65”09’20” WEST 386.97 FEET (SOUTH
65’14’32” WEST 387.06’ R), NORTH 77”55’34” WEST 635.12 FEET (NORTH 77’48’20” WEST
635.06’ R),’ SOUTH 65O35’13” WEST 494.30 FEET (SOUTH 65’42’27” WEST 494.30’ R), SOUTH
266.73 FEET (SOUTH 30O46’06” WEST 33 1 .55’ TO THE CENTERLINE OF RS 682 R) TO A POINT
39”37’39” WEST 339.77 FEET (SOUTH 39”44’53” WEST 339.77’ R), SOUTH 30”38’52” WEST
COUNTY ROAD SURVEY NO. 1800-1 (KNOWN AS EL CAMINO REAL) ACCORDING TO
IN A LINE THAT IS PARALLEL TO AND 63.00 FEET NORTHERLY OF THE CENTERLINE OF
OFFICIAL PLAT THEREOF ON FILE IN THE OFFICE OF THE COUNTY ENGINEER OF SAN
DIEGO COUNTY; THENCE, WESTERLY ALONG SAID NORTHERLY LINE, NORTH 66”42’10”
OF A CURVE CONCAVE TO THE NORTH AND HAVING A RADIUS OF 6,855.31 FEET, SAID
WEST 13.53 FEET; THENCE, SOUTH 23”17’50” WEST 18.00 FEET ALONG THE RADIAL LINE
ON ROAD SURVEY NO. 1800-1; THENCE, WESTERLY ALONG SAID NORTH LINE, AND
POINT BEING ALSO ON THE NORTH LINE OF THAT 90 FOOT WIDE STRIP OF LAND SHOW
CURVE THROUGH A CENTRAL ANGLE OF 2”lO’Sl” 260.94 FEET; THENCE, LEAVING SAID
NORTH LINE, NORTH 32’44’07” EAST 16.78 FEET, SOUTH 82’48’22” EAST 72.17 FEET, NORTH
23’31’32” EAST 109.80 FEET, NORTH 25”38’3 I” EAST 100.08 FEET, NORTH 29’07’38” EAST
77.37 FEET, NORTH 31’48’12’’ EAST 60.19 FEET, NORTH 42’27’17’’ EAST 23.56 FEET, NORTH
37’46’23” EAST 139.56 FEET, NORTH 24”02’16” EAST 40.09 FEET, NORTH 46”32’58” EAST
28 1.65 FEET, NORTH 53”49’59” EAST 24 I .03 FEET, NORTH 67“15’ 16” EAST 15.60 FEET. SOUTH
.. ..
ORDER NO. 1285531-6
4’56’41’’ EAST 44.65 FEET TO A POINT ON A CURVE CONCAVE TO THE SOUTH AND
28”58’39” EAST; THENCE, NORTHEASTERLY ALONG SAID CURVE 5 19.94 FEET THROUGH A
CENTRAL ANGLE OF 20’31’52’’; THENCE, TANGENT TO SAID CURVE NORTH 81O33’13”
EAST 648.89 FEET TO A TANGENT CURVE CONCAVE TO THE NORTH AND HAVING A
RADIUS OF 1349.00 FEET; THENCE, EASTERLY ALONG SAID CURVE 666.28 FEET THROUGH
A CENTRAL ANGLE OF 28’17’56“, THENCE, TANGENT TO SAID CURVE NORTH 53”15’17”
EAST 461.71 FEET TO A TANGENT CURVE CONCAVE TO THE NORTH AND HAVING A
RADIUS OF 990.00 FEET; THENCE, NORTHEASTERLY ALONG SAID CURVE 32.06 FEET
THROUGH A CENTRAL ANGLE OF 1‘5 1’19”; THENCE, TANGENT TO SAID CURVE NORTH
5I023’58”EAST 60.28 FEET TO A TANGENT CURVE CONCAVE TO THE SOUTH AND HAVING
THROUGH A CENTRAL ANGLE OF 1°51’19”, THENCE, TANGENT TO SAID CURVE NORTH A RADIUS OF 1010.00 FEET; THENCE, NORTHEASTERLY ALONG SAID CURVE 32.70 FEET
53”15’17” EAST 336.29 FEET TO A TANGENT CURVE CONCAVE TO THE WEST AND HAVING
THROUGH A CENTRAL ANGLE OF 9 I “I 2’49”; THENCE, TANGENT TO SAID CURVE NORTH
A RADIUS OF 25.00 FEET; THENCE, NORTHERLY ALONG SAID CURVE 39.80 FEET
37’57’32” WEST 300.00 FEET TO A TANGENT CURVE CONCAVE TO THE EAST AND HAVING
THROUGH A CENTRAL ANGLE OF 5‘42’26“; THENCE, TANGENT TO SAlD CURVE NORTH
A RADIUS OF 210.00 FEET; THENCE, NORTHERLY ALONG SAID CURVE 20.92 FEET
A RADIUS OF 190.00 FEET; THENCE, NORTHERLY ALONG SAID CURVE 18.93 FEET
32’15’06” WEST 80.62 FEET TO A TANGENT CURVE CONCAVE TO THE WEST AND HAVING
THROUGH A CENTRAL ANGLE OF 5’42’26”; THENCE, TANGENT TO SAID CURVE NORTH
37”57’32” WEST 310.22 FEET TO A TANGENT CURVE CONCAVE TO THE SOUTHWEST AND
HAVING A RADIUS OF 1349.00 FEET; THENCE, NORTHWESTERLY ALONG SAID CURVE
CURVE NORTH 50’12’48” WEST 100.00 FEET TO A TANGENT CURVE CONCAVE TO THE
288.52 FEET THROUGH A CENTRAL ANGLE OF 12’lS’l6”; THENCE, TANGENT TO SAID
NORTHEAST AND HAVING A RADIUS OF 1451.00 FEET; THENCE NORTHWESTERLY ALONG
SOUTH LINE OF SAID RECORD OF SURVEY 16661, SAID POINT BEING THE TRUE POINT OF
SAID CURVE 480.31 FEET THROUGH A CENTRAL ANGLE OF 18°57’58” TO A.POINT IN THE
BEGINNING, A RADIAL LINE TO SAID CURVE AT THE TRUE POINT OF BEGMNING BEARS
SOUTH 58’45’10” WEST.
SAID LAND BEING DESCRIBED AS PARCEL 3 ON CERTIFICATE OF COMPLIANCE
-HAVING A RADIUS OF 1451.00 FEET, A RADIAL LINE TO SAID CURVE BEARS SOUTH
RECORDED NOVEMBER 28.2001 AS FILENO. 2001-0865066 OF OFFICIAL RECORDS.
FEBRUARY 05.2002 3:21 PM MC
DRAFT
8/16/2002
EXHIBIT “F”
Recording Requested By
and
When Recorded Mail To:
City Clerk
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Mail Tax Statements To:
A OVE SPACE FOR RECORDER’S USE ONLY
GRANT DEED
A.P.N.
FOR VALUABLE CONSIDERATION, receipt and adequacy of which is hereby achowleged
CALAVERA HILLS 11 LLC, a California limited liability company (“Grantor”), hereby grants
to the CITY OF CARLSBAD, a municipal corporation (“Grantee”), the real property located in
the City of Carlsbad, State of California, more particularly described on Exhibit “1” attached
hereto and incorporated herein by this reference, together with all of Grantor’s interest in all
rights, privileges, easements and rights-of-way appurtenant to such property (the “Prouerty”).
Grantee accepts title to the Property subject to all easements, convanents, conditions, restrictions,
reservations, rights-of-way and any other matters approved by Grantee at or before the transfer
SD-WCSU06845.11
42
DRAFT
8/16/2002
of the Property, including but not limited to the:. Flood Easement Agreement,
LandscapingBound Wall Easement Agreement, and Underground Facilities Easement
Agreement, between Grantor and Grantee, recorded contemporaneously herewith.
Dated:
CALAVERA HILLS II LLC, a California limited
liability company
a Delaware limited liability company
By its Manager: McMillin Companies, LLC,
43
DRAFT
8/16/2002
STATE OF CALIFORNIA )
County of San Diego 1 ) ss.
On , before me,
Notary Public in and for said County and State, personally appeared
personally known to be (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) islare subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
,a
Witness my hand and official seal.
Notary Public
44
AUGUST 27, 2002
PAGE 1 OF 1
J.N. : 01-0185
LEGAL DESCRIPTION FOR OPTION PARCEL
THAT PORTION OF PARCEL 3 OF ADJUSTMENT PLAT ADJ 01-13 PER
CERTIFICATE OF COMPLIANCE CE 01-56 IN THE CITY OF CARLSBAD,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, RECORDED AS DOCUMENT
2001-0865066 ON NOVEMBER 28, 2001 IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY, STATE OF CALIFORNIA, DESCRIBED AS
FOLLOWS :
BEGINNING AT ANGLE POINT NO. 19 ON THE SOUTHERLY LINE OF RECORD
OF SURVEY NO. 17111 FILED IN THE OFFICE OF THE COUNTY RECORDER
OF SAID COUNTY ON AUGUST 24, 2001; THENCE NORTH 77O55'34" WEST
(SEE CERTIFICATE OF CORRECTION OF SAID RECORD OF SURVEY RECORDED
NOVEMBER 29, 2001 AS DOC. NO. 2001-0869050 IN THE OFFICE OF SAID
COUNTY RECORDER) ALONG THE SOUTHERLY LINE OF SAID RECORD OF
SURVEY 113.37 FEET; THENCE LEAVING SAID SOUTHERLY LINE NORTH
8'26'47" WEST 86.33 FEET, NORTH 81'33'13'' EAST 49.99 FEET, NORTH
8'26'47'' WEST 85.24 FEET, NORTH 11O57'45" EAST 71.37 FEET, NORTH
8"26'47" WEST 152.55 FEET TO THE SOUTHERLY LINE OF FUTURE CANNON
ROAD; THENCE EASTERLY ALONG THE SOUTHERLY LINE OF FUTURE CANNON
ROAD NORTH 81'33'13'' EAST 335.71 FEET TO THE BEGINNING OF A
TANGENT CURVE CONCAVE TO THE NORTH AND HAVING A RADIUS OF
1451.00 FEET; THENCE EASTERLY ALONG SAID CURVE 429.98 FEET
THROUGH A CENTRAL ANGLE OF 16'58'43''; THENCE LEAVING THE SOUTH
LINE OF FUTURE CANNON ROAD SOUTH 25'25' 30" EAST 135.56 FEET TO
THE SOUTHERLY LINE OF SAID RECORD OF SURVEY; THENCE WESTERLY
ALONG SAID SOUTHERLY LINE SOUTH 51°39'15" WEST 67.24 FEET, SOUTH
48O19'13" WEST 404.31 FEET, SOUTH 65O09'20" WEST 386.97 FEET TO
THE POINT OF BEGINNING, ALL AS SHOWN ON THE ATTACHED PLAT FOR
CONVENIENCE SAKE.
THE AREA OF ABOVE DESCRIBED PROPERTY IS 248,292 S.F. OR 5.70
ACRES.
I I I
10 SSItr9'IS' W 6Z24'
BASIS OF BEARING: COURSE 8 PER RECORD OF SURVEY 171 11 BEING S 65'09'20" W
1
EXHIBIT C
[Purchase Agreement and Escrow Instructions for Beneficiary (RCOA)]
17
SD-DOCSUM222.12
PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS
BETWEEN
CALAVERA HKLLS 11 LLC
AS SELLER
AND
THE RANCHO CARLSBAD OWNERS ASSOCIATION INC.
AS BUYER
SD'308449.9
TABLE OF CONTENTS
Article
ARTICLE 1 . Fundamental Provisions ........................................................................................ 1
ARTICLE 2 . Agreement of Sale ................................................................................................. 2
ARTICLE 3 -Buyer’s Deliveries to Escrow Agent ..................................................................... 2
ARTICLE 4 . Seller’s Deliveries to Escrow Agent ..................................................................... 3
ARTICLE 5 . Conditions Precedent ............................................................................................. 3
ARTICLE 6 . Closing ................................................................................................................... 4
ARTICLE 7 - Prorations, Fees and Costs ..................................................................................... 5
ARTICLE 8 -Distribution of Funds and Documents ................................................................... 6
ARTICLE 9 - Delivery of Documents; Liquidated Damages ...................................................... 6
ARTICLE 10 -No Assignment by Buyer .................................................................................... 8
ARTICLE 11 - Representations and Warranties .......................................................................... 8
ARTICLE 12 - As Is Purchase ..................................................................................................... 9
ARTICLE 13 - Notices ................................................................................................................. 9
ARTICLE 14 -Extent of Escrow Agent’s Responsibilities ....................................................... 10
ARTICLE 15 - Damage and Condemnation .............................................................................. 11
ARTICLE 16 - General Provisions ............................................................................................ 11
TABLE OF EXHIBITS
Exhibit Paragraph
A . Legal Description of the Property 1.4.1 .................................................................................
B . Covenants. Conditions and Restrictions ............................................................. 3.2.3, 4.1.2
................................................................................ C . Flood Easement Agreement 3.2.4, 4.1.3
SDU08449.9
1
D. Underground Facilities Easement Agreement ..................................................... 3.2.5, 4.1.4
E. LandscapingBound Wall Easement Agreement ........................................................... 4.1.5
F. Grant Deed .................................................................................................................... 4.1.1
SDU08449.9
11 ..
PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS
IN CONSIDERATION of the mutual covenants set forth in this Agreement,
Calavera Hills II LLC (“Seller”) agrees to sell, and the Rancho Carlsbad Owners Association
Inc. (“Buyer”) agrees to buy, the property hereafter described, upon the following terms and
conditions.
ARTICLE 1 -Fundamental Provisions
1.1 Date of this Ameement. This Agreement is entered into on
-.
1.2 Option Ameement. This Agreement is made in relation to Buyer’s exercise of an
option to purchase the property described below, as set forth in a certain Option Agreement dated
Carlsbad.
,2002 (“Option Agreement”) by and among Seller, Buyer and the City of
1.3 Escrow Agent. Upon execution of this Agreement by both parties, Seller shall
establish an escrow (“Escrow”) with as Escrow Agent (“Escrow
Agent”). This Agreement shall be used as the basis for the Escrow Agreement with the Escrow
Agent. Seller and Buyer shall cooperate in the preparation and execution of Escrow instructions.
1.4 Prouerty. The Property to be purchased and sold pursuant to this Agreement shall
be comprised of fee simple title in and to the land more particularly described on Exhibit “A”
attached hereto, including the Robertson’s Ranch House located thereon (the “Property”).
1.5 Total Price:
1.6 Cash DeDosit: Buyer shall deposit $25,000 with the Escrow Agent as provided in
Article 3 below.
1.7 Balance of the Total Price:
1.8 Escrow Time Limit Date: Thirty (30) days from the date of this Agreement.
1.9 Address for Notices to Seller:
Attn:
SDL308449.9
1.10 Address for Notices to Buver:
Attn:
1.11 Address for Notices to Escrow Aeent:
Attn:
~
ARTICLE 2 - Agreement of Sale
2.1 Seller is the owner of fee title to the Property specified in Article 1.
2.2 Seller hereby agrees to sell the Property, and Buyer hereby agrees to buy the
Property, for the Total Price specified in Article 1, upon the terms and conditions set forth
herein.
2.3 The Total Price shall be payable in cash at the close of escrow.
ARTICLE 3 - Buver’s Deliveries to Escrow Aeent
3.1 Concurrently with the execution and delivery hereof, Buyer shall deliver to
Escrow Agent the Cash Deposit specified in Article 1.
3.2 Prior to 3:OO p.m. of the next preceding regular business day before the Closing
Date, Buyer shall deliver to Escrow Agent each of the following:
3.2.1 The Balance of the Total Price specified in Article 1.
3.2.2 The amount, if any, required of Buyer under Article 7 entitled “Prorations,
Fees and Costs.”
3.2.3 A counterpart original of the Declaration of Restrictions (“Declaration of
Restrictions”), the form of which is attached as Exhibit “B” hereto, duly executed and
acknowledged by Buyer.
3.2.4 A counterpart original of the Flood Easement Agreement, the form of
which is attached as Exhibit “C hereto, duly executed and acknowledged by Buyer.
SDU084l9.9
2
3.2.5 A counterpart original of the Underground Facilities Easement
Agreement, the form of which is attached as Exhibit “D hereto, duly executed and
acknowledged by Buyer.
3.2.6 A counterpart original of the LandscapindSound Wall Easement
Agreement, the form of which is attached as Exhibit “E’ hereto, duly executed and
acknowledged by Buyer.
3.3 The failure of Buyer to make any delivery required above by the date, or within
the time, set forth above shall constitute a material breach hereof by Buyer.
ARTICLE 4 - Seller’s Deliveries to Escrow Agent
4.1 Prior to the Closing Date, Seller shall deliver to Escrow Agent each of the
following:
4.1.1 A grant deed (the “Seller’s Grant Deed”), the form of which is attached as
Exhibit “F” hereto, duly executed and acknowledged by Seller, conveying the Property to Buyer.
4.1.2 A counterpart original of the Declaration of Restrictions, the form of
which is attached as Exhibit “B” hereto, duly executed and acknowledged by Seller.
4.1.3 A counterpart original of the Flood Easement Agreement, the form of
which is attached as Exhibit “C” hereto, duly executed and acknowledged by Seller.
4.1.4 A counterpart original of the Underground Facilities Easement
Agreement, the form of which is attached as Exhibit “D’ hereto, duly executed and
acknowledged by Seller.
4.1.5 A counterpart original of the LandscapinglSound Wall Easement
Agreement, the form of which is attached as Exhibit “E” hereto, duly executed and
acknowledged by Seller.
4.2 The failure of Seller to make any delivery required above by the date, or within
the time, set forth above shall constitute a material breach hereof by Seller.
ARTICLE 5 - Conditions Precedent
5.1 The closing of the escrow is subject to the following condition precedent:
5.1.1 The approval and filing of a final subdivision map or parcel map, as
required by the Subdivision Map Act, California Government Code sections 66410, et seq., or
such other governmental approval required to create a legal lot for transfer.
5.2 In the event the foregoing condition is not satisfied, either party, provided it is not
then in default hereunder, may terminate the escrow and this Agreement by giving a written
notice of termination to the other party and Escrow Agent. The giving of such notice shall be
optional, not mandatory. No delay in the giving of such notice shall affect the rights hereunder
3
SDU08449.9
of the party giving the same. In the event such notice is given, the provisions of Paragraphs 6.4
and 6.5 shall apply. Notwithstanding the forgoing, if the above condition is not satisfied within
the Escrow Time Limit due to delays in the processing of entitlements for Robertson Ranch, the
Escrow Time Limit shall automatically be extended until the conclusion of the processing of
such entitlements.
ARTICLE 6- Closing
6.1 Escrow Agent shall close the escrow on the Escrow Time Limit Date specified in
Article 1 (the “Closing Date”) by (i) filing for record the Seller’s Grant Deed and such other
documents as may be necessary to procure the ALTA Title Policy (described below), (ii) filing
for record the Declaration of Restrictions delivered pursuant to Paragraphs 3.2.3 and 4.1.2, (iii)
filing for record the Easement Agreement delivered pursuant to Paragraphs 3.2.4 and 4.1.3, and
(iv) delivering funds and documents as set forth in Article 8 entitled “Distribution of Funds and
Documents,” WHEN AND ONLY WHEN each of the following conditions has been satisfied
6.1.1 All funds and instruments required by Articles 3 and 4 have been
delivered to Escrow Agent.
6.1.2 The condition precedent set forth in Article 5 has been, or upon such
closing shall be, satisfied or waived.
6.1.3 Escrow Agent has procured, or is satisfied that it can procure, the Title
Company’s ALTA policy of title insurance (the “ALTA Title Policy”) with liability in the
amount of the Total Price, insuring that fee title to the Property vests in Buyer subject only to
(i) nondelinquent county and city, if any, general and special taxes constituting a lien at the close
of escrow, and the lien of supplemental taxes, if any, pursuant to the provisions of Chapter 3.5 of
the California Revenue and Taxation Code, (ii j the matters described in Schedule B, Part I, of the
ALTA Title Policy, (iii) covenants, conditions, reservations, restrictions, easements and other
items appearing as exceptions in the Preliminary Title Report, order number
dated , -, or other items shown on the Survey, order number
dated , -, that Buyer disapproves, other than the matters reported therein
as exceptions
(iv) any other lien voluntarily imposed by Buyer as of the close of the escrow.
of the Preliminary Title Report, and
6.2 If all of the conditions set forth in Subparagraphs 6.1.1 through 6.1.3 become
satisfied at a date earlier than the Closing Date, Escrow Agent shall close the escrow at such
earlier date.
6.3 If Escrow Agent cannot close the escrow on or before the Closing Date, it will,
nevertheless, close the same when all conditions have been satisfied or waived, notwithstanding
that one or more of such conditions has not been timely performed, unless (i) a notice of
termination has already been delivered to Escrow Agent in accordance with the provisions of
Paragraph 5.2, or (ii) after the Closing Date and prior to the close of the escrow, Escrow Agent
receives a written notice to terminate the escrow and this Agreement from a party who, at the
time such notice is delivered, is not in default hereunder. The right to terminate the escrow and
4
SDU08449.9
this Agreement under the provisions of clause (ii) of this Paragraph shall be optional, not manda-
tory. No delay in the giving of such notice shall affect the rights hereunder of the party giving
the same.
6.4 Escrow Agent shall have no liability or responsibility for determining whether or
not a party giving a notice of termination is or is not in default hereunder. Within two working
days after receipt of such notice from one party, Escrow Agent shall deliver a copy of such
notice to the other party. Unless written objection to the termination of the escrow is received by
Escrow Agent within 10 days after Escrow Agent so delivers such notice to the other party,
(i) Escrow Agent shall forthwith terminate the escrow and return all funds, documents and other
items held by it to the party depositing same, except that Escrow Agent may retain such
documents and other items usually retained by escrow agents in accordance with standard
escrow termination procedures and practices, and (ii) each party shall forthwith pay to Escrow
Agent one-half of Escrow Agent’s reasonable escrow termination charges. Notwithstanding the
foregoing provisions of this Paragraph, Escrow Agent may deduct from any cash or other funds
held by it, a sum sufficient to pay its escrow termination charges in full. If written objection to
the termination of the escrow is delivered to Escrow Agent within such 10-day period, Escrow
Agent is authorized to hold all funds, documents and other items delivered to it in connection
with the escrow and may, in Escrow Agent’s sole discretion, take no further action until
otherwise directed, either by the parties’ mutual written instructions or final order of a court of
competent jurisdiction.
6.5 Neither (i) the exercise of such right of termination, (ii) delay in the exercise of
such right, nor (iii) the return of funds, documents or other items, shall affect the right of the
party giving such notice of termination to pursue legal remedies for the other party’s breach of
this Agreement (including but not limited to damages for the payment of all or any portion of
Escrow Agent’s escrow termination charges). Nor shall (i) the giving of such notice, (ii) the
failure to object to termination of the escrow, or (iii) the return of funds, documents or other
items affect the right of the other party to pursue other legal remedies for the breach of the party
who gives such notice. This Paragraph is subject to the provisions of Paragraph 9.3.
ARTICLE 7 - Prorations. Fees and Costs
7.1 Escrow Agent shall prorate k, apportion) between the parties, in cash, to the
close of the escrow, only county, city and special district taxes and assessments (if any), based
on the latest information available to Escrow Agent.
7.2 All prorations andor adjustments called for in this Agreement shall be made on
the basis of a 30-day month, unless otherwise specifically instructed in writing.
7.3 Seller shall pay (i) County Documentary Transfer Tax, in the amount Escrow
Agent determines to be required by law, (ii) the premium that the Title Company would have
charged for a CLTA Title Policy (“CLTA Title Policy”) on the Property with liability in the
amount of the Total Price, (iii) one-half of Escrow Agent’s escrow fee or escrow termination
charge, (iv) fees for beneficiaries’ statements, and (v) usual seller’s document drafting and
recording charges.
5 SDU08449.9
7.4 Buyer shall pay (i) one-half of Escrow Agent’s escrow fee or escrow termination
charge, (ii) the cost of obtaining the ALTA Title Policy over the premium charged for a CLTA
Title Policy, (iii) usual buyer’s document drafting and recording charges, and (iv) a $20.00 fee
for additional recording charges, if necessary, as provided in Paragraph 14.7.
ARTICLE 8 - Distribution of Funds and Documents
8.1 All cash received hereunder by Escrow Agent shall be, until the close of the
escrow, kept on deposit with other escrow funds in Escrow Agent’s general escrow account(s), in
any state or national bank, and may be transferred to any other such general escrow account(s).
8.2 Escrow Agent shall pay no interest on cash received hereunder by it.
8.3 All disbursements by Escrow Agent shall be made by checks or wire transfers of
Escrow Agent.
8.4 Escrow Agent will, at the close of the escrow, pay from funds to which Seller
shall be entitled and from funds, if any, deposited by Seller with Escrow Agent, to the obligees
thereof, all liens and encumbrances other than those permitted hereby to be shown in the ALTA
Title Policy.
8.5 Escrow Agent will cause the County Recorder of San Diego County to mail the
Seller’s Grant Deed (and each other document which is herein expressed to be, or by general
usage is, recorded) after recordation, to the grantee, beneficiary or person (i) acquiring.rights
under said document or (ii) for whose benefit said document was acquired.
8.6 Escrow Agent will, at the close of the escrow, deliver by United States mail (or
will hold for personal pickup, if requested) each nonrecorded document received hereunder by
Escrow Agent, to the payee or person (i) acquiring rights under said document or (ii) for whose
benefit said document was acquired.
8.7 Escrow Agent will, at the close of the escrow, deliver by United States mail (or
hold for personal pickup, if requested) (i) to Seller, or order, the cash, plus or minus any
appropriate prorations or other charges, and (ii) to Buyer, or order, any excess funds theretofore
delivered to Escrow Agent by Buyer.
8.8 Escrow Agent will, at the close of the escrow, deliver to Seller a copy of the
Seller’s Grant Deed (conformed to show recording data) and each document recorded to place
title in the condition required by this Agreement.
ARTICLE 9 -Delivery of Documents; Liauidated Damages
9.1 Escrow Agent shall have no concern with, or liability or responsibility for, this
Article.
9.2 If the escrow is terminated for any reason other than a default by Seller, then
forthwith upon such termination, (i) Buyer shall deliver to Seller any documents and materials
related to the Property previously delivered by Seller to Buyer, and (ii) Buyer shall deliver to
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SD’J08449.9
Seller, and shall be deemed to have assigned to Seller, without the execution of any additional
documents, all of Buyer’s right, title and interest in all studies, reports, governmental
applications, permits, maps, plans, specifications and other documents in Buyer’s possession or
that it has made or contracted to be made respecting the Property, including without limitation all
engineering reports, soil tests, seismic studies, environmental reports, grading, flood control and
drainage plans, design renderings, market analyses, feasibility studies, and all correspondence
with governmental agencies and their personnel concerning the same. The foregoing assignment
of rights by Buyer shall in no way be construed to place upon Seller any obligation or liability to
any party preparing or otherwise working on said documents, and Buyer shall take such actions
and make such payments as may be necessary to deliver clear title to such documents to Seller,
and to preclude any claim of any nature against Seller or the Property for any sums owing on
account of the preparation or making of such documents.
9.3 If Buyer fails to complete the purchase of the Property and such failure constitutes
a breach of this Agreement, Buyer, by its initials following this Paragraph, and Seller, by its
initials following this Paragraph, agree that: IT WOULD BE IMPRACTICABLE OR
EXTREMELY DIFFICULT TO FIX, PRIOR TO SIGNING THIS AGREEMENT, THE
ACTUAL DAMAGES WHICH WOULD BE SUFFERED BY SELLER IF BUYER FAILS TO
PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT, THEREFORE, THE SUM OF
THE ORIGINAL CASH DEPOSIT SHALL CONSTITUTE LIQUIDATED DAMAGES TO
SELLER FOR SUCH BREACH BY BUYER. BUYER AND SELLER AGREE THAT THE
AFORESAID SUM IS A REASONABLE AMOUNT FOR LIQUIDATED DAMAGES FOR
SUCH A BREACH UNDER THE CIRCUMSTANCES EXISTING AT THE TIME THIS
AGREEMENT IS ENTERED INTO. FORTHWITH UPON ANY SUCH BREACH BY
BUYER, BUYER SHALL EITHER (i) INSTRUCT ESCROW AGENT, IN WRITING, TO
PAY SUCH SUM TO SELLER OUT OF FUNDS DEPOSmD WITH ESCROW AGENT BY
BUYER AND NOT PREVIOUSLY RELEASED TO SELLER, OR (ii) PAY SUCH SUM TO
SELLER. UPON PAYMENT OF SAID SUM TO SELLER, BUYER SHALL BE RELEASED
SDU08449.9
FROM ANY FURTHER LIABILITY TO SELLER, AND ESCROW CANCELLATION FEES
AND TITLE COMPANY CHARGES SHALL BE PAID BY SELLER.
Seller: Buyer:
ARTICLE 10 -No Assignment bv Buver
10.1 Buyer shall have no right to assign its rights hereunder without first having
obtained Seller’s written consent.
10.2 In the event of any assignment approved in writing by Seller, the assignee shall be
and become (i) the grantee of the Seller’s Grant Deed, (ii) the insured owner under the ALTA
Title Policy, and (iii) the person(s) having the rights or obligations to (a) deliver statements,
(b) deliver documents, (c) give approvals, (d) waive conditions, or (e) make demands, all as may
be permitted or required by this Agreement and not then already accomplished by Buyer or
another assignee. Notwithstanding any such assignment approved by Seller, Buyer shall not be
relieved of liability for any prior or subsequent breach hereof by Buyer or any assignee.
ARTICLE 11 - Representations and Warranties
11.1 Escrow Agent shall have no concern with, or liability or responsibility for, this
Article.
11.2 In addition to any other express agreements of Seller contained herein, the matters
set forth in this Paragraph constitute representations and warranties by Seller which shall be true
and correct as of the close of escrow. In the event that, during the period between the execution
of this Agreement and the close of escrow, Seller learns, or has reason to believe, that any of the
following representations and warranties may cease to be true, Seller hereby covenants to give
notice thereof to Buyer immediately:
11.2.1 Brokers. Seller has not engaged or dealt with any broker or finder in
connection with the sale contemplated by this Agreement.
11.2.2 Authority. Seller has the legal power, right and authority to enter into this
Agreement and to consummate the transaction contemplated hereby.
11.2.3 Condition of Property. During the escrow period and until the close of
escrow, unless otherwise agreed to by the parties, Seller shall maintain the Property in its present
condition, ordinary wear and tear excepted.
11.2.4 m. Except as set forth herein, there are no leases, subleases, or
tenancies in effect related to the Property, or which Seller is aware.
11.3 In addition to any other express agreements of Buyer contained herein, the
matters set forth in this Paragraph constitute representations and warranties by Buyer which shall
be true and correct as of the close of escrow. In the event that, during the period between the
8
SDU08449.9
execution of this Agreement and the close of escrow, Buyer learns, or has reason to believe, that
any of the following representations and warranties may cease to be true, Buyer hereby
covenants to give notice thereof to Seller immediately:
11.3.1 Brokers. Buyer has not engaged or dealt with any broker or finder in
connection with the sale contemplated by this Agreement.
11.3.2 Authority. Buyer has the legal power, right and authority to enter into this
Agreement and to consummate the transaction contemplated hereby.
11.3.3 Propertv Insuection. Buyer has inspected the Property, has analyzed the
feasibility of its acquisition and use, and specifically agrees to take the Property as is. If any
facts, conditions or circumstances change from those presently known to Buyer, Buyer’s
obligations hereunder shall nevertheless remain in full force and effect.
11.3.4 Waiver of Residential Disclosures. Because the Robertson’s Ranch House
located on the Property will be restricted from use as a residence, in perpetuity, Buyer knowingly
and specifically waives any and all rights to and benefits from the disclosures applicable to the
transfer of residential property as provided by California Civil Code sections 1102, s.
11.3.5 Seller’s Representations and Warranties. Seller has made no
representations or warranties to Buyer, oral or written, except as specifically set forth in this
Agreement or the Option Agreement.
ARTICLE 12 - As Is Purchase
12.1 As Is Purchase. As a material inducement to Seller’s execution and delivery of
this Agreement and performance of its duties under this Agreement, Buyer, by its initials
following this Paragraph, and Seller, by its initials following this Paragraph, agree that: EXCEPT
AS OTHERWISE PROVIDED IN THIS AGREEMENT, BUYER HAS AGREED TO ACCEPT
POSSESSION OF THE PROPERTY ON THE CLOSING DATE ON AN “AS IS” BASIS.
SELLER AND BUYER AGREE THAT THE PROPERTY SHALL BE SOLD “AS IS, WHERE
IS, WITH ALL FAULTS” WITH NO RIGHT OF SET-OFF OR REDUCTION IN THE
PURCHASE PRICE, AND, EXCEPT AS SET FORTH IN ARTICLE 11 HEREIN, SUCH
SALE SHALL BE WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND,
EXPRESS OR IMPLIED (INCLUDING WITHOUT LIMITATION, WARRANTY OF
INCOm POTENTIAL, USES, MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE), AND SELLER DISCLAIMS AND RENOUNCES ANY SUCH
REPRESENTATION OR WARRANTY.
Seller: Buyer:
ARTICLE 13 -Notices
13.1 Unless otherwise specifically provided herein, all notices, demands or other
communications given hereunder shall be in writing and shall be deemed to have been duly
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SDU08449.9
delivered upon personal delivery, or as of the second business day after mailing by United States
mail, postage prepaid, to the Address of the recipient specified in Article 1, or to such other
address or person as any party may designate to the others for such purpose in the manner
hereinabove set forth.
ARTICLE 14 -Extent of Escrow Agent’s Resuonsibilities
14.1 Escrow Agent shall not be liable for any of its acts or omissions unless the same
shall constitute negligence or willful misconduct.
14.2 Escrow Agent shall have no obligation to inform any party of any other
transaction or of facts within Escrow Agent’s knowledge, even though the same concerns the
Property, provided such matters do not prevent Escrow Agent’s compliance with this Agreement.
14.3 Escrow Agent shall not be responsible for (i) the sufficiency or correctness as to
form or the validity of any document deposited with Escrow Agent, (ii) the manner of execution
of any such deposited document, unless such execution occurs in Escrow Agent’s premises and
under its supervision, or (iii) the identity, authority or rights of any person executing any
document deposited with Escrow Agent.
14.4 If Escrow Agent receives or becomes aware of conflicting demands or claims
with respect to the escrow, the rights of any party hereto, or funds, documents or other items
deposited with Escrow Agent, Escrow Agent shall have the right to discontinue any further acts
until such conflict is resolved,to its satisfaction, and it shall have the further right to commence
or defend any action for the determination of such conflict. The parties shall, immediately after
demand therefor by Escrow Agent, reimburse Escrow Agent (in such respective proportions as
Escrow Agent shall determine) any reasonable attorneys’ fees and court costs incurred by
Escrow Agent pursuant to this Paragraph.
14.5 Any commitment made in writing to Escrow Agent by a bank, trust company,
insurance company or savings and loan association, to deliver its check or funds into the escrow
may, in the sole discretion of Escrow Agent, be treated as the equivalent of a deposit herein of
the amount thereof. Recordation of any instruments delivered through the escrow, if necessary
or proper in the issuance of the ALTA Title Policy, is authorized. No examination or insurance
as to the amount or payment of personal property taxes is required unless specifically requested.
If any party obtains a loan on the Property, then, during the pendency of the escrow, Escrow
Agent is authorized to furnish the lender, or anyone acting on its behalf, any information
concerning the escrow, including, but not limited to, a certified copy of this Agreement and any
amendments hereto.
14.6 Escrow Agent shall not be liable for proration of any supplemental tax bills
related to this transaction which may hereafter be issued due to reassessments pursuant to the
provisions of Chapter 3.5 of the California Revenue and Taxation Code.
14.7 Escrow holder is authorized and directed to charge Buyer the additional sum of
$20.00 for recording fees, in the event that Escrow Agent has not been presented with a
SDU08449.9
10
Preliminary Change of Ownership report form prior to the close of escrow, adequate to satisfy
the requirements of California Revenue and Taxation Code Sections 480.3 and 480.4.
ARTICLE 15 -Damage and Condemnation
15.1 The risk of physical loss to the Property shall be borne by Seller prior to the close
of escrow and by Buyer thereafter. In the event that the Property shall be damaged by fire, flood,
earthquake or other casualty to the extent that the cost to repair or restore such damage will
exceed 5% of the Total Price, Buyer may, at its option, elect not to acquire the Property, by
written notice to Seller within 30 days after the date upon which such damage or other casualty
occurs. If Buyer does not give such notice, Buyer shall be deemed to have elected to proceed
with the purchase and shall close thereon, at which time Seller shall assign to Buyer all of
Seller’s interests in all insurance proceeds (if any) relating to such damage. In the event that
such damage occurs and Buyer elects not to purchase the Property, then the escrow and this
Agreement shall be terminated.
15.2 If the cost to repair any such damage to the Property will not exceed 5% of the
Total Price, then Buyer may not terminate this Agreement by reason thereof, but Seller shall
assign to Buyer at the closing Seller’s interests in all insurance proceeds (if any) relating to such
damage and Buyer shall accept the Property in its condition existing on the date of closing.
15.3 In the event that, prior to the close of escrow, any governmental agency shall
commence any action in eminent domain to take any material portion of the Property, Buyer
shall have the option either to (i) elect not to acquire the Property, or (ii) complete the acquisition
of the Property in which case Buyer shall be entitled to all of the proceeds of such taking, such
election to be made by written notice to Seller within 30 days after the date upon which Buyer
receives notice of the commencement of such governmental action. Buyer’s failure to give such
notice shall be deemed to constitute an election by Buyer to complete the acquisition of the
Property.
ARTICLE 16 - General Provisions
16.1 Definitions. Unless the context otherwise indicates, whenever used in this
Agreement:
16.1.1 The word “cash” means (i) currency, (ii) checks currently dated, payable
to Escrow Agent, and honored upon presentation for payment, (iii) amounts credited by wire-
transfer into Escrow Agent’s bank account, or (iv) if monies are deposited with Escrow Agent
within 20 days of the Closing Date, funds in such form as Escrow Agent in its sole discretion
requires.
16.1.2 The word “party” or “parties” means Buyer andor Seller, as the context
may require.
16.1.3 The word “escrow” means the escrow created by this Agreement.
16.1.4 The phrase “the opening of the escrow” means the date Escrow Agent
signs the “Consent of Escrow Agent” attached hereto.
11
SOU08449.9
16.1.5 The phrase “the close of the escrow” means the date and time at which the
Seller’s Grant Deed is filed for record.
16.2 Cautions. Captions in this Agreement are inserted for convenience of reference
only and do not define, describe or limit the scope or the intent of this Agreement or any of the
terms hereof.
16.3 Exhibits. All exhibits referred to herein and attached hereto are incorporated
herein by reference.
16.4 Entire Agreement. This Agreement contains the entire agreement between the
parties relating to the transaction contemplated hereby, and all prior or contemporaneous
agreements, understandings, representations and statements, oral or written, are merged herein.
16.5 Amendment. No modification, waiver, amendment, discharge or change of this
Agreement shall be valid unless the same is in writing and signed by the party against whom the
enforcement of such modification, waiver, amendment, discharge or change is or may be sought.
16.6 Enforcement. In the event that either party commences litigation for the judicial
interpretation, enforcement, termination, cancellation or rescission hereof, or for damages for the
breach hereof, the prevailing party shall be entitled to its reasonable attorneys’ fees and court and
other costs incurred. This Agreement shall be construed and enforced in accordance with the
laws of the State of California.
16.7 Counterparts. This Agreement may be executed in counterparts, each of which is
an original and all of which constitute but one agreement.
16.8 Time is of the Essence. Time is of the essence to this Agreement.
16.9 Survival of Obligations, Representations and Warranties. All obligations referred
to herein to be performed at a time or times after the close of the escrow, and all warranties and
representations contained herein, shall survive the close of the escrow and the delivery of
Seller’s Grant Deed.
16.10 Tax-deferred Exchange. Seller may use the proceeds from the sale of the
Property to affect one or more tax deferred exchange under Internal Revenue Code 5 1031.
Buyer agrees to accommodate Seller in effecting such tax-deferred exchange. Seller shall have
the right, expressly reserved herein, to elect such tax-deferred exchange at any time prior to the
Closing Date. Seller and Buyer agree, however, that consummation of the purchase and sale of
the Property under this Agreement is not conditioned on such exchange. If Seller elects to make
a tax-deferred exchange, Buyer agrees to execute such additional escrow instructions, deeds,
documents, agreements, or instruments to effect this exchange, provided that Buyer shall incur
no additional costs, expenses, or liabilities in this transaction as a result of or in connection with
this exchange. Seller agrees to hold Buyer harmless of any liability, damages, or costs, including
reasonable attorney fees, that may arise from Buyer’s participation in such exchange.
16.11 Further Instruments. Each party hereto shall execute, acknowledge and deliver to
the other party such further instruments and take such other actions as the other party may
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SDU08449.9
reasonably request in order to effectuate the purposes and provisions of this Agreement.
16.12 Severability. In the event that any term, covenant, condition, provision or
agreement herein contained is held to be invalid, void or otherwise unenforceable by any court of
competent jurisdiction, the fact that such term, covenant, condition, provision or agreement is
invalid, void or otherwise unenforceable shall in no way affect the validity or enforceability of
any other term, covenant, condition, provision or agreement herein contained.
16.13 Successors and Assims. All terms of this Agreement shall be binding upon, inure
to the benefit of and be enforceable by, the parties hereto and their respective legal
representatives, successors and assigns.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
SELLER
CALAVERA HILLS I1 LLC, a California limited
liability company
a Delaware limited liability company
By its Manager: McMillin Companies, LLC,
BUYER:
RANCHO CARLSBAD OWNERS
ASSOCIATION INC., a California corporation
By:
SDU08449.9 13
CONSENT OF ESCROW AGENT
The undersigned Escrow Agent hereby agrees to (i) accept the foregoing
Agreement, (ii) be escrow agent under said Agreement for the fees therein specified, and (iii) be
bound by said Agreement in the performance of its duties as escrow agent; provided, however,
that the undersigned shall have no obligations, liability or responsibility under (i) this Consent or
otherwise, unless and until said Agreement, fully signed by the parties, has been delivered to the
undersigned, or (ii) any amendment to said Agreement unless and until the same shall be
accepted by the undersigned in writing.
ESCROW AGENT:
By :
14 SDL308449.9
EXHIBIT “A”
[Legal Description of Property]
SDU08449.9
AUGUST 27, 2002
J.N. : 01-0185
PAGE 1 OF 1
LEGAL DESCRIPTION FOR OPTION PARCEL
THAT PORTION OF PARCEL 3 OF ADJUSTMENT PLAT ADJ 01-13 PER
CERTIFICATE OF COMPLIANCE CE 01-56 IN THE CITY OF CARLSBAD,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, RECORDED AS DOCUMENT
2001-0865066 ON NOVEMBER 28, 2001 IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY, STATE OF CALIFORNIA, DESCRIBED AS
FOLLOWS :
BEGINNING AT ANGLE POINT NO. 19 ON THE SOUTHERLY LINE OF RECORD
OF SURVEY NO. 17111 FILED IN THE OFFICE OF THE COUNTY RECORDER
OF SAID COUNTY ON AUGUST 24, 2001; THENCE NORTH 77'55'34'' WEST
(SEE CERTIFICATE OF CORRECTION OF SAID RECORD OF SURVEY RECORDED
NOVEMBER 29, 2001 AS DOC. NO. 2001-0869050 IN THE OFFICE OF SAID
COUNTY RECORDER) ALONG THE SOUTHERLY LINE OF SAID RECORD OF
SURVEY 113.37 FEET; THENCE LEAVING SAID SOUTHERLY LINE NORTH
8"26'47" WEST 86.33 FEET, NORTH 81O33'13" EAST 49.99 FEET, NORTH
8"26'47" WEST 85.24 FEET, NORTH 11°5.7'45" EAST 71.37 FEET, NORTH
8'26'47" WEST 152.55 FEET TO THE SOUTHERLY LINE OF FUTURE CANNON
ROAD; THENCE EASTERLY ALONG THE SOUTHERLY LINE OF FUTURE CANNON
ROAD NORTH 81'33' 13" EAST 335.71 FEET TO THE BEGINNING OF A
TANGENT CURVE CONCAVE TO THE NORTH AND HAVING A RADIUS OF
1451.00 FEET; THENCE EASTERLY ALONG SAID CURVE 429.98 FEET
THROUGH A CENTRAL ANGLE OF 16O58'43"; THENCE LEAVING THE SOUTH
LINE OF FUTURE CANNON ROAD SOUTH 25'25' 30" EAST 135.56 FEET TO
THE SOUTHERLY LINE OF SAID RECORD OF SURVEY; THENCE WESTERLY
ALONG SAID SOUTHERLY LINE SOUTH 51'39' 15" WEST 67.24 FEET, SOUTH
48"19'13" WEST 404.31 FEET, SOUTH 65"09'20" WEST 386.97 FEET TO
THE POINT OF BEGINNING, ALL AS SHOWN ON THE ATTACHED PLAT FOR
CONVENIENCE SAKE.
THE AREA OF ABOVE DESCRIBED PROPERTY IS 248,292 S.F. OR 5.70
ACRES.
I I I
ADJ. O-J--JO PARCEL -1
BASIS OF BEARING: COURSE 8 PER RECORD OF SURVEY 171 11 BEING S 65'09'20' W
EXHIBIT “B”
Recording Requested By
and
When Recorded Mail To:
Latham & Watkins
701 “B” Street, Suite 2100
San Diego, California 92101
Attn: Amy G. Nefouse
A: nOVE SPACE FOR RECORDER’S USE ONLY
DECLARATION OF RESTRICTIONS
(FACILITIES RELOCATION PARCEL)
THIS DECLARATION OF RESTRICTIONS (FACILITIES RELOCATION
PARCEL) (the “Declaration”) is made on. , -7 by CALAVERA
HILLS I1 LLC, California limited liability company (“Declarant”).
RECITALS
A. Pursuant to that certain Purchase Agreement and Escrow Instructions
between Declarant and the RANCHO CARLSBAD OWNERS ASSOCIATION INC., a
California corporation (“Purchaser”), made as of , 20- (the
“Purchase Agreement”), concurrently herewith Declarant is conveying to Purchaser or its
assignee the real property located in the City of Carlsbad (the “w), State of California, more
particularly described on Exhibit “1” attached hereto and incorporated herein by this reference
(the “Purchaser Prouerty”).
B. Purchaser intends to develop the Purchaser Property for use as a
community garden, wash area, waste disposal area and RV Parking Lot (which includes, without
limitation, parking for boats, cars, jet skis, RVs, hay wagons and other personal items, subject to
any applicable governmental approvals) (collectively referred to herein as the “Intended Uses’’),
to be used by the Rancho Carlsbad Owners Association and its members.
C. Declarant owns certain real property located in the City adjacent to the
Purchaser Property and more particularly described in Exhibit “2” [Robertson Ranch property]
SDU08449.9
attached hereto and incorporated herein by this reference (the “Benefited Property”), and
Declarant intends to develop, or convey a portion of the Benefited Property to certain transferees
who intend to develop, a master planned, mixed use commercial and residential community on
the Benefited Property.
D. In connection with the foregoing and in contemplation of the sale of the
Purchaser Property to Purchaser, it is the desire and intention of Declarant to restrict the
Purchaser Property, so that the Benefited Property will be benefited and each successive owner
of all, or part of the Benefited Property, will be benefited.
DECLARATION
NOW, THEREFORE, Declarant declares that the Purchaser Property, is held and
will be held, transferred, encumbered, used, sold, conveyed, leased, and occupied subject to the
covenants, restrictions, and limitations set forth in this Declaration, which are established and
agreed on for the purpose of enhancing and protecting the value, desirability, and attractiveness
of the Benefited Property and the Purchaser Property and every part of such property. All of the
restrictions, covenants, and limitations will run with the land and will be binding on all parties
having or acquiring any right, title, or interest in the Purchaser Property, or any part thereof, and
will inure to the benefit of all of the Benefited Property and the future owners of such property.
Each grantee of a conveyance or purchaser under a contract or agreement of sale covering any
right, title, or interest in any part of the Purchaser Property, by accepting a deed or a contract of
sale or agreement of purchase, accepts the document subject to, and agrees to be bound by, any
and all of the restrictions, covenants, and limitations set forth in this Declaration.
1. Use of the Purchaser Prouerty. There shall not be developed any use other
than the Intended Uses on the Purchaser Property for the period of the land use approvals issued
by the City of Carlsbad for such uses, or a period of 10 years from and after the date of the
recordation hereof, whichever is longer. In addition, the owner of the Purchaser Property shall
maintain and properly care for the pepper tree located on the Purchaser Property as shown on
Exhibit 3 hereto (“Peuuer Tree”), consistent with generally accepted arboriculture practices, and
no action shall be taken to harm, destroy, or remove the Pepper Tree, for as long as it remains
healthy.
2. Robertson’s Ranch House. The single family home located on the
Purchaser Property (the “Robertson’s Ranch House”) shall neither be used as a residence, nor for
permanent or temporary human habitation, in perpetuity.
3. Enforcement. Enforcement will be by proceedings at law or in equity
against any person or persons violating or attempting to violate any covenant either to restrain
violation or to recover damages. Purchaser acknowledges that Declarant would not be willing to
sell the Purchaser Property to Purchaser if Purchaser were unwilling to agree to the foregoing
restrictions, and that Declarant would not have an adequate remedy in damages if Purchaser were
to breach the foregoing covenant. Declarant and its successors and assigns and any Owner of the
Benefited Property may specifically enforce the foregoing covenants.
SDY308449.9
17
4. Severability. Invalidation of any one of these covenants by judgment or
court order will not affect any of the other provisions, which will remain in full force and effect.
5. Covenants to Run With the Land. The Purchaser Property shall be held,
developed, conveyed, hypothecated, encumbered, leased, rented, used and occupied subject to
the covenants, restrictions and other limitations set forth in this Declaration (collectively, the
“Restrictions”). The Restrictions are for the benefit of the Benefited Property. The Restrictions
are intended and shall be construed as covenants and conditions running with the land and
binding the Purchaser Property and equitable servitudes upon the Purchaser Property and every
part thereof. All and each of the Restrictions shall be binding upon and burden all persons
having or acquiring any right, title or interest in the Purchaser Property or any part thereof, and
their successors and assigns, during their respective periods of ownership, and shall inure to the
benefit of the Benefited Property and the fee owners of the Benefited Property, their successors
and assigns and each such person, upon the sale or other transfer of its interest shall be released
from all obligations arising hereunder.
6. Conditions. Covenants and Restrictions of Purchaser. The parties hereto
agree and acknowledge that Purchaser currently owns property neighboring the Purchaser
Property which is subject to that certain Enabling Declaration, as amended from time to time,
originally recorded on February 19, 1998 as Document # 98-0085695 in the Office of the County
Recorder for San Diego County (collectively inclusive of amendments whenever made the
“CC&Rs”) and that the CC&Rs will be recorded against the Purchaser Property by Purchaser. In
the event of a conflict between the CC&Rs and this Deed Restriction, the CC&Rs shall prevail.
I. Modifications. This Declaration shall not be rescinded or modified
without the prior written consent of the Declarant for as long as it owns any part of the Benefited
Property, and thereafter by the fee owner(s) of the Benefited Property.
[SIGNATURES ON FOLLOWING PAGE]
SDU08449.9
18
IN WITNESS WHEREOF, the Declarant have executed this instrument as of the
date first above written.
DECLARANT
CALAVERA HILLS II LLC, California
limited liability company
By its Manager: McMllin
Companies, LLC, a Delaware limited
liability company
By:
Name:
Title:
By:
Name:
Title:
Agreed and accepted by PURCHASER.
RANCHO CARLSBAD OWNERS ASSOCIATION INC.,
a California corporation
By :
Name:
Title:
SDU08449.9
19
STATE OF CALIFORNIA 1
County of San Diego )
) ss.
On , before me,
Notary Public in and for said County and State, personally appeared
personally known to be (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) idare subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s)
acted. executed the instrument. '
,a
Witness my hand and official seal.
Notary Public
SDU08449.9 20
SDU08449.9
EXHIBIT "1" TO DECLARATION OF RESTRICTIONS
DESCRIPTION OF PURCHASER PROPERTY
21
AUGUST 27, 2002
PAGE 1 OF 1
J.N. : 01-0185
LEGAL DESCRIPTION FOR OPTION PARCEL
THAT PORTION OF PARCEL 3 OF ADJUSTMENT PLAT ADJ 01-13 ' PER
CERTIFICATE OF COMPLIANCE CE 01-56 IN THE CITY OF CARLSBAD,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, RECORDED AS DOCUMENT
2001-0865066 ON NOVEMBER 28, 2001 IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY, STATE OF CALIFORNIA, DESCRIBED AS
FOLLOWS :
BEGINNING AT ANGLE POINT NO. 19 ON THE SOUTHERLY LINE OF RECORD
OF SURVEY NO. 17111 FILED IN THE OFFICE OF THE COUNTY RECORDER
OF SAID COUNTY ON AUGUST 24, 2001; THENCE NORTH 77O55'34" WEST
(SEE CERTIFICATE OF CORRECTION OF SAID RECORD OF SURVEY RECORDED
NOVEMBER 29, 2001 AS DOC. NO. 2001-0869050 IN THE OFFICE OF SAID
COUNTY RECORDER) ALONG THE SOUTHERLY LINE OF SAID RECORD OF
SURVEY 113.37 FEET: THENCE LEAVING SAID SOUTHERLY LINE NORTH
8"26'47" WEST 86.33 FEET, NORTH 81O33'13" EAST 49.99 FEET, NORTH
8'26'47'' WEST 85.24 FEET, NORTH 11O57'45" EAST 71.37 FEET, NORTH
8'26'47" WEST 152.55 FEET TO THE SOUTHERLY LINE OF FUTURE CANNON
ROAD: THENCE EASTERLY ALONG THE SOUTHERLY LINE OF FUTURE CANNON
ROAD NORTH 81"33' 13" EAST 335.71 FEET TO THE BEGINNING OF A
TANGENT CURVE CONCAVE TO THE NORTH AND HAVING A RADIUS OF
1451.00 FEET; THENCE EASTERLY ALONG SAID CURVE 429.98 FEET
THROUGH A CENTRAL ANGLE OF 16"58'43"; THENCE LEAVING THE SOUTH
LINE OF FUTURE CANNON ROAD SOUTH 25'25'30'' EAST 135.56 FEET TO
THE SOUTHERLY LINE OF SAID RECORD OF SURVEY; THENCE WESTERLY
ALONG SAID SOUTHERLY LINE SOUTH 51'39'15" WEST 67.24 FEET, SOUTH
48'19'13'' WEST 404.31 FEET, SOUTH 65'09'20'' WEST 386.97 FEET TO
THE POINT OF BEGINNING, ALL AS SHOWN ON THE ATTACHED PLAT FOR
CONVENIENCE SAKE.
THE AREA OF ABOVE DESCRIBED PROPERTY IS 248,292 S.F. OR 5.70
ACRES
9 S2525'3O'E 13.556'
IO S5139'fS'W 6Z24'
1 BASIS OF BEARING: COURSE 8 PER RECORD OF SURVEY 171 11 BEING S 65'09'20' W
EXHIBIT "2" TO DECLARATION OF RESTRICTIONS
BENEFITED PROPERTY
SDU08449.9
22
ORDER NO. 1283531-6
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN IS SITUATED M THE STATE OF CALIFORNIA, COUNTY
OF SAN DIEGO. AND IS DESCRIBED AS FOLLOWS:
PARCEL 1 :
THAT PORTION OF LOT E OF RANCHO AGUA HEDIONDA, IN THE CITY OF CARLSBAD,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 823,
FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, NOVEMBER
16, 1896, DESCRIBED AS FOLLOWS:
THE SOUTHEAST CORNER OF CT 76-12 PER MAP 9935 FILED IN THE OFFICE OF THE BEGINNING AT THE SOUTHWEST CORNER OF RECORD OF SURVEY 16661, BEING ALSO
COUNTY RECORDER OF SAID COUNTY ON JULY 14, 2000 AND DECEMBER 16, 1980
RESPECTIVELY; THENCE, SOUTH 1’42’35’’ WEST 1619.75 FEET, SOUTH 63’42’38” EAST
313.13 FEET, SOUTH 73O19’52” EAST 230.87 FEET, SOUTH 4‘56’41” EAST 517.19 FEET TO A
POINT ON A CURVE CONCAVE TO THE SOUTH AND HAVING A RADIUS OF I45 1 .OO FEET, A
RADIAL LINE TO SAID CURVE BEARS SOUTH 2898’39” EAST; THENCE, NORTHEASTERLY
ALONG SAID CURVE 519.94 FEET THROUGH A CENTRAL ANGLE OF 20°31’52”; THENCE,
TANGENT TO SAID CURVE NORTH 81’33’13” EAST 648.89 FEET TO A TANGENT CURVE
CONCAVE TO THE NORTH AND HAVING A RADIUS OF 1349.00 FEET; THENCE, EASTERLY
TANGENT TO SAID CURVE NORTH 53O15’17” EAST 461.71 FEET TO A TANGENT CURVE
ALONG SAID CURVE 666.28 FEET THROUGH A CENTRAL ANGLE OF 28’17’56’’; THENCE,
NORTHEASTERLY ALONG SAID CURVE 32.06 FEET THROUGH A CENTRAL ANGLE OF
CONCAVE TO THE NORTH AND HAVING A RADIUS OF 990.00 FEET; THENCE,
Io51’19”, THENCE, TANGENT TO SAID CURVE NORTH SI”23’58” EAST 60.28 FEET TO A
TANGENT CURVE CONCAVE TO THE SOUTH AND HAVING A RADIUS OF 1010.00 FEET;
THENCE, NORTHEASTERLY ALONG SAID CURVE 32.70 FEET THROUGH A CENTRAL
ANGLE OF lo51’I9”; THENCE, TANGENT TO SAID CURVE NORTH 53’15’17” EAST 336.29
FEET TO A TANGENT CURVE CONCAVE TO THE WEST AND HAVING A RADIUS OF 25.00
FEET; THENCE, NORTHERLY ALONG SAID CURVE 39.80 FEET THROUGH A CENTRAL
ANGEL OF 91’12’49”; THENCE, TANGENT TO SAID CURVE NORTH 37’57’32’’ WEST 300.00
FEET TO A TANGENT CURVE CONCAVE TO THE EAST AND HAVING A RADIUS OF 210.00
ANGLE OF 5’42’26’’; THENCE, TANGENT TO SAID CURVE NORTH 32°15’06” WEST 80.62
FEET; THENCE, NORTHERLY ALONG SAID CURVE 20.92 FEET THROUGH A CENTRAL
FEET; THENCE, NORTHERLY ALONG SAID CURVE 18.93 FEET THROUGH A CENTRAL
FEET TO A TANGENT CURVE CONCAVE TO THE WEST AND HAVING A RADIUS OF 190.00
ANGLE OF 5’42’26”; THENCE, TANGENT TO SAID CURVE NORTH 37”57’32” WEST 310.22
FEET TO A TANGENT CURVE CONCAVE TO THE SOUTHWEST AND HAVING A RADIUS OF
1349.00 FEET; THENCE, NORTHWESTERLY ALONG SAID CURVE 288.52 FEET THROUGH A
CENTRAL ANGLE OF 12”15’16”; THENCE, TANGENT TO SAID CURVE NORTH SO”12’48”
WEST 100.00 FEET TO A TANGENT CURVE CONCAVE TO THE NORTHEAST AND HAVING A
RADIUS OF 1451.00 FEET; THENCE, NORTHWESTERLY ALONG SAID CURVE 480.31 FEET
THROUGH A CENTRAL ANGLE OF 18’57’58’’ TO A POINT IN THE SOUTH LINE OF SAID
RECORD OF SURVEY 16661, A RADIAL LINE TO SAID CURVE BEARS SOUTH 58O45’10”
WEST; THENCE, NORTH 89O25’37” WEST ALONG THE SOUTH LINE OF SAID RECORD OF
SURVEY I666 I 1950.97 FEET TO THE POINT OF BEGINNING.
ORDER NO. 1285531-6
SAID LAND BEING DESCRIBED AS PARCEL I ON CERTIFICATE OF COMPLIANCE
RECORDED NOVEMBER 28,2001 AS FILE NO. 2001-0865064 OF OFFICIAL RECORDS.
PARCEL 2:
THAT PORTION OF LOTS D AND E OF RANCHO AGUA HEDIONDA, IN THE CITY OF
CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP
THEREOF NO. 823, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY, NOVEMBER 16,1896, DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF RECORD OF SURVEY 16661, BEING ALSO
THE SOUTHEAST CORNER .OF CT 76-12 PER MAP 9935 FILED IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY ON JULY 14, 2000 AND DECEMBER 16, 1980
RESPECTIVELY; THENCE, ALONG THE SOUTHERLY LINE OF SAID RECORD OF SURVEY
CONTINUING ALONG THE SOUTHERLY AND EASTERLY LINE OF SAID RECORD OF
SOUTH 8955’37” EAST 1950.97 FEET TO THE TRUE POINT OF BEGINNING; THENCE,
SURVEY SOUTH 89”25’37” EAST 129.1 I FEET, NORTH 13O44’27” EAST 781.66 FEET, NORTH
21”34’15” EAST 189.90 FEET, NORTH 14°47’00” EAST 160.15 FEET, NORTH 11’34’22’’ EAST
20’50’34”EAST 126.05FEET,NORTH9°43’14”EAST112.86FEET,NORTH I015’18”EAST 150.28
65.17 FEET, NORTH 7’12’14’’ EAST 135.30 FEET, NORTH 14°.45’08” EAST 57.12 FEET, NORTH
IN THE OFFICE OF THE COUNTY RECORDER ON MARCH 16, 1995; THENCE, LEAVING SAID
FEET, SOUTH 89’37’14” EAST 355.61 FEETTO A POINT ON RECORD OF SURVEY 14818 FILED
RECORD OF SURVEY 16661 AND CONTINUING SOUTHERLY ALONG THE WEST LINE OF
305.18’ R), SOUTH 18’25’38’’ EAST, 694.08 FEET (SOUTH 18”19’26” EAST 694.27’ R), THENCE,
RECORD OF SURVEY 14818, SOUTH l”15’25” EAST 304.47 FEET (SOUTH 1°11’30” EAST
LEAVING SAID RECORD OF SURVEY 148 18 AND CONTMUING SOUTHERLY ALONG THE
FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY ON NOVEMBER 4,
WEST LINE OF THAT 363.14 ACRES PARCEL AS SHOWN ON RECORD 0F.SURVEY 6616
1965; THENCE, SOUTH l“05’41” WEST 1271.23 FEET (SOUTH l012’O2” WEST 1271.40’ R),
SOUTH 4’13’22” WEST 963.76 FEET(S0UTH 4”20’50” WEST963.88’ R), SOUTH 51”39’15”WEST
1165.94 FEET 1165.94 FEET (SOUTH 51”47’48” WEST 1165.49’ R), SOUTH 48O19’13” WEST
404.31 FEET (SOUTH 48”19’29” WEST 404.15’ R), SOUTH 65O09’20” WEST 386.97 FEET (SOUTH
65’14’32’’ WEST 387.06’ R), NORTH 77”55’34” WEST 635.12 FEET (NORTH 77’48’20’’ WEST
635.06’ R),’ SOUTH 65’35’13” WEST 494.30 FEET (SOUTH 65”42’27” WEST 494.30’ R), SOUTH
266.73 FEET (SOUTH 30O46’06” WEST 331.55’ TO THE CENTERLINE OF RS 682 R) TO A POINT
39”37’39” WEST 339.77 FEET (SOUTH 39’44’53’’ WEST 339.77’ R), SOUTH 30”38’52” WEST
IN A LINE THAT IS PARALLEL TO AND 63.00 FEET NORTHERLY OF THE CENTERLINE OF
COUNTY ROAD SURVEY NO. 1800-1 (KNOWN AS EL CAMINO REAL) ACCORDING TO
OFFICIAL PLAT THEREOF ON FILE IN THE OFFICE OF THE COUNTY ENGINEER OF SAN
DIEGO COUNTY; THENCE, WESTERLY ALONG SAID NORTHERLY LINE, NORTH 66O42’10”
OF A CURVE CONCAVE TO THE NORTH AND HAVING A RADIUS OF 6,855.31 FEET, SAID
WEST 13.53 FEET; THENCE, SOUTH 23”17’50” WEST 18.00 FEET ALONG THE RADIAL LINE
POINT BEING ALSO ON THE NORTH LINE OF THAT 90 FOOT WIDE STRJP OF LAND SHOWN
ON ROAD SURVEY NO. 1800-1; THENCE, WESTERLY ALONG SAID NORTH LINE, AND
NORTH LINE, NORTH 32’44’07” EAST 16.78 FEET, SOUTH 82’48’22’’ EAST 72.17 FEET, NORTH
CURVE THROUGH A CENTRAL ANGLE OF 2”10’51” 260.94 FEET; THENCE, LEAVING SAID
23”31’32” EAST 109.80 FEET, NORTH 25”38’31” EAST 100.08 FEET, NORTH 29O07’38” EAST
77.37 FEET, NORTH 31°48’12” EAST 60.19 FEET, NORTH 42’27’17’’ EAST 23.56 FEET, NORTH
37”46’23” EAST 139.56 FEET, NORTH 24”02’16” EAST 40.09 FEET, NORTH 46”32’58” EAST
28 I .65 FEET, NORTH 53”49’59” EAST 24 I .03 FEET, NORTH 67” 15’ 16’’ EAST 15.60 FEET, SOUTH
ORDER NO. 1285531-6
4’56’41” EAST 44.65 FEET TO A POINT ON A CURVE CONCAVE TO THE SOUTH AND
--HAVING A RADIUS OF 1451.00 FEET, A RADIAL LINE TO SAID CURVE BEARS SOUTH
2838’35”’ EAST; THENCE, NORTHEASTERLY ALONG SAID CURVE 519.94 FEET THROUGH A
CENTRAL ANGLE OF 20°31’52”; THENCE, TANGENT TO SAID CURVE NORTH 81’33’13’’
EAST 648.89 FEET TO A TANGENT CURVE CONCAVE TO THE NORTH AND HAVING A
RADIUS OF 1349.00 FEET; THENCE, EASTERLY ALONG SAID CURVE 666.28 FEET THROUGH
A CENTRAL ANGLE OF 28O17’56”; THENCE, TANGENT TO SAID CURVE NORTH 53”15’17”
EAST 461.71 FEET TO A TANGENT CURVE CONCAVE TO THE NORTH AND HAVING A
RADIUS OF 990.00 FEET; THENCE, NORTHEASTERLY ALONG SAID CURVE 32.06 FEET
THROUGH A CENTRAL ANGLE OF 1”s 1’19”; THENCE, TANGENT TO SAID CURVE NORTH
5 1 O23’58” EAST 60.28 FEET TO A TANGENT CURVE CONCAVE TO THE SOUTH AND HAVING
THROUGH A CENTRAL ANGLE OF lo51’19”; THENCE, TANGENT TO SAID CURVE NORTH A RADIUS OF 1010.00 FEET; THENCE, NORTHEASTERLY ALONG SAID CURVE 32.70 FEET
53O15’17” EAST 336.29 FEET TO A TANGENT CURVE CONCAVE TO THE WEST AND HAVING
A RADIUS OF 25.00 FEET; THENCE, NORTHERLY ALONG SAID CURVE 39.80 FEET
THROUGH A CENTRAL ANGLE OF 91”12’49”; THENCE, TANGENT TO SAID CURVE NORTH
37’57’32’’ WEST 300.00 FEET TO A TANGENT CURVE CONCAVE TO THE EAST AND HAVING
THROUGH A CENTRAL ANGLE OF 5’42’26”; THENCE, TANGENT TO SAID CURVE NORTH
A RADIUS OF 210.00 FEET; THENCE, NORTHERLY ALONG SAID CURVE 20.92 FEET
A RADIUS OF 190.00 FEET; THENCE, NORTHERLY ALONG SAID CURVE 18.93 FEET
32’15’06” WEST 80.62 FEET TO A TANGENT CURVE CONCAVE TO THE WEST AND HAVING
THROUGH A CENTRAL ANGLE OF 5’42’26”; THENCE, TANGENT TO SAID CURVE NORTH
37’57’32” WEST 310.22 FEET TO A TANGENT CURVE CONCAVE TO THE SOUTHWEST AND
HAVING A RADIUS OF 1349.00 FEET THENCE, NORTHWESTERLY ALONG SAID CURVE
288.52 FEET THROUGH A CENTRAL ANGLE OF 12°15’16”; THENCE, TANGENT TO SAID
CURVE NORTH 50’12’48” WEST 100.00 FEET TO A TANGENT CURVE CONCAVE TO THE
NORTHEAST AND HAVING A RADIUS OF 145 1 .OO FEET, THENCE NORTHWESTERLY ALONG
SAID CURVE 480.31 FEET THROUGH A CENTRAL ANGLE OF 18’57’58’’ TO A.POINT IN THE
SOUTH LINE OF SAID RECORD OF SURVEY 16661, SAID POINT BEING THE TRUE POINT OF
BEGINNING, A RADIAL LINE TO SAID CURVE AT THE TRUE POINT OF BEGINNING BEARS
SOUTH 58’45’10” WEST.
SAID LAND BEING DESCRIBED AS PARCEL 3 ON CERTIFICATE OF COMPLIANCE
RECORDED NOVEMBER 28,2001 AS FILENO. 2001-0865066 OF OFFICIAL RECORDS.
FEBRUARY OS. 20023:21 PM MC
EXHIBIT "3" TO DECLARATION OF RESTRICTIONS
SHOWING LOCATION OF PEPPER TREE
23
SDU08449.9
0' 10' 40' - 5' 20' 80'
SCALE: 1' = 40'
02002 O'Doy Consultants, Inc.
I 1
CONSULT 0'229 NTS
59W Pasteur Court Civil Engineering
Suite 100 Planning
Corkbod. Colitornia 92008
760-931 -7700
Processing I
EXHIBIT “C”
Recording Requested By
and
When Recorded Mail To:
Latham & Watkins
701 “B” Street, Suite 2100
San Diego, California 92101
Attn: Amy G. Nefouse
A OVE SPACE FOR RECORDER’S USE ONLY
FLOOD EASEMENT AGREEMENT
This FLOOD EASEMENT AGREEMENT (“Ameement”) is entered into as of
I- between CALAVERA HILLS I1 LLC, California limited
liability, (“Calavera”), and the RANCHO CARLSBAD OWNERS ASSOCIATION INC., a
California corporation, (‘‘Owner”) with reference to the following facts:
A. Contemporaneously herewith, Owner is purchasing from Calavera the real
property located in the City of Carlsbad, California, more particularly described on Exhibit “1”
attached hereto (“Owner’s Site”).
B. Calavera is the owner of that certain real property located in the City Carlsbad,
California, more particularly described on Exhibit “2” attached hereto (“Robertson Ranch”).
C. Calavera desires to acquire certain rights in Owner’s Site.
AGREEMENT
NOW THEREFORE, for valuable consideration, receipt of which is hereby
acknowledged, it is agreed as follows:
1. Owner hereby grants to Calavera the non-exclusive perpetual easements
2. The Easement is over and across that portion(s) of the Owner’s Site
hereinafter described (the “Easement”).
determined by Calavera in the future to be most suitable and convenient, but which generally
runs along the southern boundary of Robertson Ranch. Said southern boundary is the same as
24
SDU08449.9
the northern boundary of the Ranch Carlsbad Mobile Home Park, as shown on parcel one of
parcel map No. 17985.
3. The Easement is appurtenant to Robertson Ranch.
4. The Easement consists of the following: A flowage easement for the passage
of surface water flows. No direct outlet of a storm drain will be allowed onto the Owner’s Site
unless approved by Owner.
5. The parties anticipate that at some time in the future there may be constructed
on Robertson Ranch one or more detention basins. The parties contemplate and hereby agree
that if such basin(s) is constructed, the easement described in Paragraph 4 above may be used
from time to time for discharge of water from such basin(s).
6. Calavera shall exercise its rights in connection with the Easement only to the
extent necessary to accomplish the purposes for which the Easement is intended and shall not
exercise its rights in connection with the Easement in such a way as to render the Owner’s Site
unusable for its intended purposes as a community garden, wash area, waste disposal area and
RV Parking Lot (which includes, without limitation, parking for boats, cars, jet skis, RVs, hay
wagons and other personal items, subject to any applicable governmental approvals).
7. The Easement is not exclusive. Owner retains the right to make any use of
Owner’s Site that does not unreasonably interfere with Calavera’s free use and enjoyment of the
Easement.
8. Calavera shall hold harmless, indemnify and defend Owner and any of
Owner’s successors, assigns, employees, agents and occupants of Owner’s Site from and against
any and all obligations, liabilities, claims, liens, demands, losses, damages, causes of action,
judgments, costs and expenses (including reasonable attorneys’ fees and costs) arising out of or
relating to Calavera’s use of the Easement or Calavera’s breach of any covenant or agreement
contained in this instrument, including without limitation, any and all damages to buildings,
structures and landscape improvements located on Owner’s Site arising out of the use of the
Easement.
9. In the event of any controversy, claim or dispute relating to this instrument or
the breach hereof, the prevailing party shall be entitled to recover from the losing party its
reasonable costs, expenses and attorneys’ fees.
10. All of the provisions, agreements, rights, powers, covenants, conditions and
obligations contained in this Agreement, shall be binding upon and shall inure to the benefit of
the parties hereto, their respective heirs, successors (by merger, consolidation or otherwise) and
assigns, devisees, administrators, representatives, lessees. All provisions of this Agreement shall
be covenants running with the land pursuant to applicable law, including but not limited to
Section 1468 of the Civil Code of the State of California.
11. This Agreement shall become effective and binding upon recordation of this
Agreement in the Office of the County Recorder of San Diego County.
25
SD’308449.9
12. This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original and all of which shall constitute one and the same
agreement.
IN WITNESS WHEREOF, the parties hereto have executed this instrument on the day
and year first above written.
CALAVERA HILLS I1 LLC, a California limited
liability company
a Delaware limited liability company
By its Manager: McMillin Companies, LLC,
By :
Its:
RANCHO CARLSBAD OWNERS
ASSOCIATION INC., a California corporation
SDU08449.9
26
STATE OF )
COUNTY OF )
On , before me, , personally appeared
, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person(s) whose name(s) idare subscribed to the within
instrument and acknowledged to me that. he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal,
[SEAL1 Notary Public in and for said
County and State
STATE OF CALIFORNIA 1
COUNTY OF SAN DIEGO 1
On , before me, , personally
appeared , personally known to me (or proved to me
on the basis of satisfactory evidence) to be the person(s) whose name(s) idare subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in hislherltheir
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said
County and State
SDU08449.9
21
SDU08449.9
EXHIBIT “1” TO FLOOD EASEMENT
LEGAL DESCRIPTION OWNER’S SITE
28
AUGUST 27, 2002
J.N. : 01-0185
PAGE 1 OF 1
LEGAL DESCRIPTION FOR OPTION PARCEL
THAT PORTION OF PARCEL 3 OF ADJUSTMENT PLAT ADJ 01-13 PER
CERTIFICATE OF COMPLIANCE CE 01-56 IN THE CITY OF CARLSBAD,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, RECORDED AS DOCUMENT
2001-0865066 ON NOVEMBER 28, 2001 IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY, STATE OF CALIFORNIA, DESCRIBED AS
FOLLOWS :
BEGINNING AT ANGLE POINT NO. 19 ON THE SOUTHERLY LINE OF RECORD
OF SURVEY NO. 17111 FILED IN THE OFFICE OF THE COUNTY RECORDER
OF SAID COUNTY ON AUGUST 24, 2001; THENCE NORTH 71°55' 34" WEST
(SEE CERTIFICATE OF CORRECTION OF SAID RECORD OF SURVEY RECORDED
NOVEMBER 29, 2001 AS DOC. NO. 2001-0869050 IN THE OFFICE OF SAID
COUNTY RECORDER) ALONG THE SOUTHERLY LINE OF SAID RECORD OF
SURVEY 113.37 FEET; THENCE LEAVING SAID SOUTHERLY LINE NORTH
8'26'47'' WEST 86.33 FEET, NORTH 81O33'13" EAST 49.99 FEET, NORTH
8'26'47" WEST 85.24 FEET, NORTH 11O57'45" EAST 71.31 FEET, NORTH
8'26'47" WEST 152.55 FEET TO THE SOUTHERLY LINE OF FUTURE CANNON
ROAD; THENCE EASTERLY ALONG THE SOUTHERLY LINE OF FUTURE CANNON
ROAD NORTH 81'33'13'' EAST 335.71 FEET TO THE BEGINNING OF A
TANGENT CURVE CONCAVE TO THE NORTH AND HAVING A RADIUS OF
1451.00 FEET; THENCE EASTERLY ALONG SAID CURVE 429.98 FEET
THROUGH A CENTRAL ANGLE OF 16O58'43"; THENCE LEAVING THE SOUTH
LINE OF FUTURE CANNON ROAD SOUTH 25°25'30" EAST 135.56 FEET TO
THE SOUTHERLY LINE OF SAID RECORD OF SURVEY; THENCE WESTERLY
ALONG SAID SOUTHERLY LINE SOUTH 51'39'15" WEST 67.24 FEET, SOUTH
48"19'13" WEST 404.31 FEET, SOUTH 65°09'20" WEST 386.97 FEET TO
THE POINT OF BEGINNING, ALL AS SHOWN ON THE ATTACHED PLAT FOR
CONVENIENCE SAKE.
THE AREA OF ABOVE DESCRIBED PROPERTY IS 248.292 S.F. DR 5.70
ACRES.
BASIS OF BEARING: COURSE 8 PER RECORD OF SURVEY 171 11 BEING S 65'09'20' W
EXHIBIT PURCHASE PLAT FOR
SDU08449.9
EXHIBIT “2” TO FLOOD EASEMENT
LEGAL DESCRIPTION OF ROBERTSON RANCH
29
ORDER NO. 1285531-6
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY
OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS:
PARCEL 1 :
THAT PORTION OF LOT E OF RANCHO AGUA HEDIONDA, IN THE CITY OF CARLSBAD,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 823,
FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, NOVEMBER
16,1896, DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF RECORD OF SURVEY 16661, BEING ALSO
THE SOUTHEAST CORNER OF CT 76-12 PER MAP 9935 FILED IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY ON JULY 14, 2000 AND DECEMBER 16, 1980
RESPECTIVELY; THENCE, SOUTH 1’42’35’’ WEST 1619.75 FEET, SOUTH 63”42’38” EAST
313.13 FEET, SOUTH 73’19’52’’ EAST 230.87 FEET, SOUTH 4’56’41’’ EAST 517.19 FEET TO A
POINT ON A CURVE CONCAVE TO THE SOUTH AND HAVING A RADIUS OF I45 1 .OO FEET, A
ALONG SAID CURVE 519.94 FEET THROUGH A CENTRAL ANGLE OF ZOO3 1’52”; THENCE,
RADIAL LINE TO SAID CURVE BEARS SOUTH 28O58.39” EAST; THENCE, NORTHEASTERLY
TANGENT TO SAID CURVE NORTH 81O33’13” EAST 648.89 FEET TO A TANGENT CURVE
CONCAVE TO THE NORTH AND HAVING A RADIUS OF 1349.00 FEET; THENCE, EASTERLY
TANGENT TO SAID CURVE NORTH 53”15’17” EAST 461.71 FEET TO A TANGENT CURVE
ALONG SAID CURVE 666.28 FEET THROUGH A CENTRAL ANGLE OF 28’17’56“; THENCE,
NORTHEASTERLY ALONG SAID CURVE 32.06 FEET THROUGH A CENTRAL ANGLE OF
CONCAVE TO THE NORTH AND HAVING A RADIUS OF 990.00 FEET; THENCE,
1°51’19”; THENCE, TANGENT TO SAID CURVE NORTH 51O23’58” EAST 60.28 FEET TO A
TANGENT CURVE CONCAVE TO THE SOUTH AND HAVING A RADIUS OF 1010.00 FEET;
THENCE, NORTHEASTERLY ALONG SAID CURVE 32.70 FEET THROUGH A CENTRAL
ANGLE OF Io51’19”; THENCE, TANGENT TO SAID CURVE NORTH 53”15’17” EAST 336.29
FEET TO A TANGENT CURVE CONCAVE TO THE WEST AND HAVING A RADIUS OF 25.00
FEET; THENCE, NORTHERLY ALONG SAID CURVE 39.80 FEET THROUGH A CENTRAL
ANGEL OF 91‘12’49”; THENCE, TANGENT TO SAID CURVE NORTH 37’57’32’’ WEST 300.00
FEET TO A TANGENT CURVE CONCAVE TO THE EAST AND HAVING A RADIUS OF 210.00
ANGLE OF 5’42’26”; THENCE, TANGENT TO SAID CURVE NOR.TH 32’15’06” WEST 80.62
FEET; THENCE, NORTHERLY ALONG SAID CURVE 20.92 FEET THROUGH A CENTRAL
FEET; THENCE, NORTHERLY ALONG SAID CURVE 18.93 FEET THROUGH A CENTRAL
FEET TO A TANGENT CURVE CONCAVE TO THE WEST AND HAVING A RADIUS OF 190.00
ANGLE OF 5’42’26”; THENCE, TANGENT TO SAID CURVE NORTH 37’57’32” WEST 310.22
FEET TO A TANGENT CURVE CONCAVE TO THE SOUTHWEST AND HAVING A RADIUS OF
1349.00 FEET; THENCE, NORTHWESTERLY ALONG SAID CURVE 288.52 FEET THROUGH A
CENTRAL ANGLE OF 12°15’16”; THENCE, TANGENT TO SAID CURVE NORTH 50’12’48’‘
WEST 100.00 FEET TO A TANGENT CURVE CONCAVE TO THE NORTHEAST AND HAVING A
RADIUS OF 1451.00 FEET; THENCE, NORTHWESTERLY ALONG SAID CURVE 480.31 FEET
THROUGH A CENTRAL ANGLE OF 38”57’58” TO A POINT IN THE SOUTH LINE OF SAID
RECORD OF SURVEY 16661, A RADIAL LINE TO SAID CURVE BEARS SOUTH 58O45’10”
WEST; THENCE, NORTH 89”25’37” WEST ALONG THE SOUTH LINE OF SAID RECORD OF
SURVEY I666 I 1950.97 FEET TO THE POINT OF BEGINNING.
ORDERNO. 1285531-6
SAID LAND BEING DESCRIBED AS PARCEL I ON CERTIFICATE OF COMPLIANCE
RECORDED NOVEMBER 28,2001 AS FILE NO. 2001-0865064 OF OFFICIAL RECORDS.
PARCEL 2:
THAT PORTION OF LOTS D AND E OF RANCHO AGUA HEDIONDA, IN THE CITY OF
CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP
THEREOF NO. 823, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY, NOVEMBER 16,1896, DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF RECORD OF SURVEY 16661, BEING ALSO
THE SOUTHEAST CORNER ,OF CT 76-12 PER MAP 9935 FILED IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY ON JULY 14, 2000 AND DECEMBER 16, 1980
RESPECTIVELY; THENCE, ALONG THE SOUTHERLY LINE OF SAID RECORD OF SURVEY
CONTINUMG ALONG THE SOUTHERLY AND EASTERLY LINE OF SAID RECORD OF SOUTH 89’25’37” EAST 1950.97 FEET TO THE TRUE POINT OF BEGINNING; THENCE,
SURVEY SOUTH 89”25’37” EAST 129.11 FEET, NORTH 13’44’27” EAST 781.66 FEET, NORTH
2 I O34.15” EAST 189.90 FEET, NORTH 14O47’00” EAST 160.15 FEET, NORTH 1 1’34’22’’ EAST
65.17 FEET, NORTH 7”12’14” EAST 135.30 FEET, NORTH 14°45’08” EAST 57.12 FEET, NORTH
20’50’34”EAST 126.05 FEET, NORTH 9O43.14” EAST 112.86 FEET, NORTH Io15’18” EAST 150.28
IN THE OFFICE OF THE COUNTY RECORDER ON MARCH 16,1995; THENCE, LEAVING SAID
FEET, SOUTH 89’37’14’’ EAST 355.61 FEET TO A POINT ON RECORD OF SURVEY 14818 FILED
RECORD OF SURVEY 14818, SOUTH Io15’25” EAST 304.47 FEET (SOUTH Io11’30” EAST
RECORD OF SURVEY 16661 AND CONTINUING SOUTHERLY ALONG THE WEST LINE OF
305.18’ R), SOUTH 18’25’38’’ EAST, 694.08 FEET (SOUTH 18”19’26” EAST 694.27’ R), THENCE,
LEAVING SAID RECORD OF SURVEY 14818 AND CONTINUING SOUTHERLY ALONG THE
WEST LINE OF THAT 363.14 ACRES PARCEL AS SHOWN ON RECORD 0F.SURVEY 6616
FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY ON NOVEMBER 4,
1965; THENCE, SOUTH I”O5’41” WEST 1271.23 FEET (SOUTH l”12’02” WEST 1271.40’ R),
SOUTH 4”13’22” WEST 963.76 FEET (SOUTH 4”20’50” WEST 963.88’ R), SOUTH 51”39’15” WEST
1165.94 FEET 1165.94 FEET (SOUTH 51”47’48” WEST 1165.49’ R), SOUTH 48’19’13” WEST
404.31 FEET (SOUTH 48”19’29” WEST 404.15’ R), SOUTH 65”09’20” WEST 386.97 FEET (SOUTH
65’14’32’’ WEST 387.06’ R), NORTH 77O55’34” WEST 635.12 FEET (NORTH 77’48’20’’ WEST
635.06’ R),’ SOUTH 65’35’13” WEST 494.30 FEET (SOUTH 65‘42’27” WEST 494.30’ R), SOUTH
266.73 FEET (SOUTH 30O46’06” WEST 33 I .55’ TO THE CENTERLINE OF RS 682 R) TO A POINT
39”37’39” WEST 339.77 FEET (SOUTH 39”44’53” WEST 339.77’ R), SOUTH 30”38’52” WEST
COUNTY ROAD SURVEY NO. 1800-1 (KNOWN AS EL CAMINO REAL) ACCORDING TO
IN A LINE THAT IS PARALLEL TO AND 63.00 FEET NORTHERLY OF THE CENTERLINE OF
OFFICIAL PLAT THEREOF ON FILE IN THE OFFICE OF THE COUNTY ENGINEER OF SAN
DIEGO COUNTY; THENCE, WESTERLY ALONG SAID NORTHERLY LINE, NORTH 66’42’10”
WEST 13.53 FEET; THENCE, SOUTH 23”17’50” WEST 18.00 FEET ALONG THE RADIAL LNE
OF A CURVE CONCAVE TO THE NORTH AND HAVING A RADIUS OF 6,855.31 FEET, SAID
POINT BEMG ALSO ON THE NORTH LINE OF THAT 90 FOOT WIDE STRIP OF LAND SHOWN
ON ROAD SURVEY NO. 1800-1; THENCE, WESTERLY ALONG SAID NORTH LINE, AND
CURVE THROUGH A CENTRAL ANGLE OF 2°10’51” 260.94 FEET; THENCE, LEAVING SAID
NORTH LINE, NORTH 32O44’07” EAST 16.78 FEET, SOUTH 82’48’22” EAST 72.17 FEET, NORTH
23”31’32” EAST 109.80 FEET, NORTH 25O38’31” EAST 100.08 FEET, NORTH 29”07!38” EAST
77.37 FEET, NORTH 31°48’1?” EAST 60.19 FEE,T, NORTH 42’27’17” EAST 23.56 FEET, NORTH
37’46’23” EAST 139.56 FEET, NORTH 24O02’16” EAST 40.09 FEET, NORTH 46’32’58” EAST
28 I .65 FEET, NORTH 53O49’59’‘ EAST 24 I .03 FEET, NORTH 67”15’ 16” EAST 15.60 FEET, SOUTH
ORDER NO. 1285531-6
4O56’41” EAST 44.65 FEET TO A POINT ON A CURVE CONCAVE TO THE SOUTH AND
-.HAVING A RADIUS OF 1451.00 FEET, A RADIAL LINE TO SAID CURVE BEARS SOUTH
2838’39” EAST; THENCE, NORTHEASTERLY ALONG SAID CURVE 519.94 FEET THROUGH A
CENTRAL ANGLE OF 20”31’52”; THENCE, TANGENT TO SAID CURVE NORTH 8173’13’’
EAST 648.89 FEET TO A TANGENT CURVE CONCAVE TO THE.NORTH AND HAVING A
A CENTRAL ANGLE OF 28’17’56”; THENCE, TANGENT TO SAID CURVE NORTH 53°15’17”
RADIUS OF 1349.00 FEET; THENCE, EASTERLY ALONG SAID CURVE 666.28 FEET THROUGH
RADIUS OF 990.00 FEET; THENCE, NORTHEASTERLY ALONG SAID CURVE 32.06 FEET
EAST 461.71 FEET TO A TANGENT CURVE CONCAVE TO THE NORTH AND HAVING A
51’23’58’’ EAST 60.28 FEET TO A TANGENT CURVE CONCAVE TO THE SOUTH AND HAVING
THROUGH A CENTRAL ANGLE OF 1°51’19”; THENCE, TANGENT TO SAID CURVE NORTH
A RADIUS OF 1010.00 FEET; THENCE, NORTHEASTERLY ALONG SAID CURVE 32.70 FEET
THROUGH A CENTRAL ANGLE OF 1”51’19”; THENCE, TANGENT TO SAID CURVE NORTH
53°15’17” EAST 336.29 FEET TO A TANGENT CURVE CONCAVE TO THE WEST AND HAVING
A RADIUS OF 25.00 FEET; THENCE, NORTHERLY ALONG SAID CURVE 39.80 FEET
THROUGH A CENTRAL ANGLE OF 91”12’49”; THENCE, TANGENT TO SAID CURVE NORTH
37’57’32” WEST 300.00 FEET TO A TANGENT CURVE CONCAVE TO THE EAST AND HAVING
A RADIUS OF 210.00 FEET; THENCE, NORTHERLY ALONG SAID CURVE 20.92 FEET
THROUGH A CENTRAL ANGLE OF S”42’26”; THENCE, TANGENT TO SAID CURVE NORTH
32”15’06” WEST 80.62 FEET TO A TANGENT CURVE CONCAVE TO THE WEST AND HAVING
THROUGH A CENTRAL ANGLE OF 5’42’26”; THENCE, TANGENT TO SAID CURVE NORTH
A RADIUS OF 190.00 FEET; THENCE, NORTHERLY ALONG SAID CURVE 18.93 FEET
37’57’32” WEST 310.22 FEET TO A TANGENT CURVE CONCAVE TO THE SOUTHWEST AND
HAVING A RADIUS OF 1349.00 FEET; THENCE, NORTHWESTERLY ALONG SAID CURVE
CURVE NORTH 50’12’48” WEST 100.00 FEET TO A TANGENT CURVE CONCAVE TO THE
288.52 FEET THROUGH A CENTRAL ANGLE OF 12°15’16”; THENCE, TANGENT TO SAID
NORTHEAST AND HAVING A RADIUS OF 145 1 .OO FEET; THENCE NORTHWESTERLY ALONG
SAID CURVE 480.31 FEET THROUGH A CENTRAL ANGLE OF 18’57’58’’ TO A.POINT IN THE
SOUTH LINE OF SAID RECORD OF SURVEY 16661. SAID POINT BEING THE TRUE POINT OF
SAID LAND BEING DESCRIBED AS PARCEL 3 ON CERTIFICATE OF COMPLIANCE
RECORDED NOVEMBER 28,2001 AS FILE NO. 2001 -0865066 OF OFFICIAL RECORDS.
FEBRUARY 05. 2002 3:2 I PM MC
EXHIBIT “D”
Recording Requested By
and
When Recorded Mail To:
Latham & Watkins
701 “B” Street, Suite 2100
San Diego, California 92101
Attn: Amy G. Nefouse
Al OW SPACE FOR RECORDER’S USE ONLY
UNDERGROUND FACILITIES EASEMENT AGREEMENT
This UNDERGROUND FACILITIES EASEMENT AGREEMENT (“Agreement”) is
entered into as of ,- between CALAVERA HILLS I1 LLC,
California limited liability, (“Calavera”), and the RANCHO CARLSBAD OWNERS
ASSOCIATION INC., a California corporation, (“w’) with reference to the following facts:
A. Contemporaneously herewith, Owner is purchasing from Calavera the real
property located in the City of Carlsbad, California, more particularly described on Exhibit “1”
attached hereto (“Owner’s Site”).
B. I Calavera is the owner of that certain real property located in the City Carlsbad,
California, more particularly described on Exhibit “2” attached hereto (“Robertson Ranch”).
C. Calavera desires to acquire certain rights in Owner’s Site.
AGREEMENT
NOW THEREFORE, for valuable consideration, receipt of which is hereby
acknowledged, it is agreed as follows:
1. Owner hereby grants to Calavera the non-exclusive perpetual easement
hereinafter described (the “Easement”).
2. The Easement is over and across that portion(s) of the Owner’s Site determined
by Calavera in the future to be most suitable and convenient. However, once the location(s) has
SDU08449.9
30
been determined, the parties hereto agree to amend the Easement to set forth such location(s)
with more specificity.
3. The Easement is in gross.
4. The Easement consists of the following: An easement for the installation,
maintenance and/or operation of storm drainage facilities and water lines; and for pedestrian and
vehicular ingress and egress over dnveways, roads, sidewalks or other areas as reasonably
necessary to provide access for these purposes.
5. Calavera shall exercise its rights in connection with the Easement, including but
not limited to its determination of the location of the Easement, only to the extent necessary to
accomplish the purposes for which the Easement is intended and shall not exercise its rights in
connection with the Easement in such a way as to render the Owner’s Site unusable for its
intended purposes as a community garden, wash area, waste disposal area and RV Parking Lot
(which includes, without limitation, parking for boats, cars, jet skis, RVs, hay wagons and other
personal items, subject to any applicable governmental approvals).
6. The Easement is not exclusive. Owner retains the right to make any use of
Owner’s Site that does not unreasonably interfere with Calavera’s free use and enjoyment of the
Easement.
7. In the event of any controversy, claim or dispute relating to this instrument or the
breach hereof, the prevailing party shall be entitled to recover from the losing party its
reasonable costs, expenses and attorneys’ fees.
8. Calavera shall hold harmless, indemnify and defend Owner and any of Owner’s
successors, assigns, employees, agents and occupants of Owner’s Site from and against any and
all obligations, liabilities, claims, liens, demands, losses, damages, causes of action, judgments,
costs and expenses (including reasonable attorneys’ fees and costs) arising out of or relating to
Calavera’s use of the Easement or Calavera’s breach of any covenant or agreement contained in
this instrument, including without limitation, any and all damages to buildings, structures and
landscape improvements located on Owner’s Site arising out of the use of the Easement.
9. All of the provisions, agreements, rights, powers, covenants, conditions and
obligations contained in this Agreement, shall be binding upon and shall inure to the benefit of
the parties hereto, their respective heirs, successors (by merger, consolidation or otherwise) and
assigns, devisees, administrators, representatives, lessees. All provisions of this Agreement shall
be covenants running with the land pursuant to applicable law, including but not limited to
Section 1468 of the Civil Code of the State of California.
10. ’ This Agreement shall become effective and binding upon recordation of this
Agreement in the Office of the County Recorder of San Diego County.
11. This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original and all of which shall constitute one and the same agreement.
SOU08449.9
31
IN WITNESS WHEREOF, the parties hereto have executed this instrument on the day
and year first above written.
CALAVERA HaLS I1 LLC, a California limited
liability company
a Delaware limited liability company
By its Manager: McMillin Companies, LLC,
I3 y :
By:
RANCHO CARLSBAD OWNERS
ASSOCIATION INC., a California corporation
Its:
SDU08449.9
32
STATE OF )
COUNTY OF 1
On , before me, , personally appeared
, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person(s) whose name(s) idare subscribed to the within
instrument and acknowledged to me that helshelthey executed the same in hishedtheir
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
[SEAL1 Notary Public in and for said
County and State
STATE OF CALIFORNIA 1
COUNTY OF SAN DIEGO )
On , before me, , personally
appeared , personally known to me (or proved to me
on the basis of satisfactory evidence) to be the person(s) whose name(s) idare subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said
County and State
SDU08449.9
33
EXHIBIT “1” TO UNDERGROUND FACILITIES EASEMENT
LEGAL DESCRIPTION OWNER’S SITE
SDU08449.9
34
AUGUST 27, 2002
J.N. : 01-0185
PAGE 1 OF 1
LEGAL DESCRIPTION FOR OPTION PARCEL
THAT PORTION OF PARCEL 3 OF ADJUSTMENT PLAT ADJ 01-13 PER
CERTIFICATE OF COMPLIANCE CE 01-56 IN THE CITY OF CARLSBAD,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, RECORDED AS DOCUMENT
2001-0865066 ON NOVEMBER 28, 2001 IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY, STATE OF CALIFORNIA, DESCRIBED AS
FOLLOWS :
OF SURVEY NO. 17111 FILED IN THE OFFICE OF THE COUNTY RECORDER
BEGINNING AT ANGLE POINT NO. 19 ON THE SOUTHERLY LINE OF RECORD
OF SAID COUNTY ON AUGUST 24, 2001; THENCE NORTH 77O55'34" WEST
(SEE CERTIFICATE OF CORRECTION OF SAID RECORD OF SURVEY RECORDED
NOVEMBER 29, 2001 AS DOC. NO. 2001-0869050 IN THE OFFICE OF SAID
COUNTY RECORDER) ALONG THE SOUTHERLY LINE OF SAID RECORD OF
SURVEY 113.37 FEET; THENCE LEAVING SAID SOUTHERLY LINE NORTH
8O26'47" WEST 86.33 FEET, NORTH 81O33'13" EAST 49.99 FEET, NORTH
8'26'47" WEST 85.24 FEET, NORTH 11'57'45'' EAST 71.37 FEET, NORTH
8'26'47'' WEST 152.55 FEET TO THE SOUTHERLY LINE OF FUTURE CANNON
ROAD; THENCE EASTERLY ALONG THE SOUTHERLY LINE OF FUTURE CANNON
ROAD NORTH 81'33'13'' EAST 335.71 FEET TO THE BEGINNING OF A
TANGENT CURVE CONCAVE TO THE NORTH AND HAVING A RADIUS OF
1451.00 FEET; THENCE EASTERLY ALONG SAID CURVE 429.98 FEET
THROUGH A CENTRAL ANGLE OF .16'58'43"; THENCE LEAVING THE SOUTH
LINE OF FUTURE CANNON ROAD SOUTH 25"25'30" EAST 135.56 FEET TO
THE SOUTHERLY LINE OF SAID RECORD OF SURVEY; THENCE WESTERLY
ALONG SAID SOUTHERLY LINE SOUTH 51'39'15" WEST 67.24 FEET, SOUTH
48'19'13'' WEST 404.31 FEET, SOUTH 65'09'20'' WEST 386.97 FEET TO
THE POINT OF BEGINNING, ALL AS SHOWN ON THE ATTACHED PLAT FOR
CONVENIENCE SAKE.
THE AREA OF ABOVE DESCRIBED PROPERTY IS 248,292 S.F. OR 5.70
ACRES.
I 101 DELTA mRNG/ UNGW RNXUS BASIS OF BEARING: COURSE 8 PER RECORD OF SURVEY 171 11 BEING S 65'09'20" W
0
570 AG
SDU08449.9
EXHIBIT “2” TO UNDERGROUND FACILITIES EASEMENT
LEGAL DESCRIPTION OF ROBERTSON RANCH
35
ORDER NO. 1285531-6
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY
OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS:
PARCEL 1 :
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 823,
THAT PORTION OF LOT E OF RANCHO AGUA HEDIONDA, IN THE CITY OF CARLSBAD,
FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, NOVEMBER
16, 1896, DESCRIBED AS FOLLOWS:
THE SOUTHEAST CORNER OF CT 76-12 PER MAP 9935 FILED IN THE OFFICE OF THE
BEGINNING AT THE SOUTHWEST CORNER OF RECORD OF SURVEY 16661, BEING ALSO
RESPECTIVELY; THENCE, SOUTH 1O42’35” WEST 1619.75 FEET, SOUTH 63”42’38” EAST
COUNTY RECORDER OF SAID COUNTY ON JULY 14, 2000 AND DECEMBER 16, 1980
313.13 FEET, SOUTH 73O19’52” EAST 230.87 FEET, SOUTH 4’56’41” EAST 517.19 FEET TO A
POINT ON A CURVE CONCAVE TO THE SOUTH AND .HAVING A RADIUS OF I45 1 .OO FEET, A
ALONG SAID CURVE 519.94 FEET THROUGH A CENTRAL ANGLE OF 20’3 1’52”; THENCE,
RADIAL LINE TO SAID CURVE BEARS SOUTH 28O58’39” EAST; THENCE, NORTHEASTERLY
TANGENT TO SAID CURVE NORTH 81‘33’13’’ EAST 648.89 FEET TO A TANGENT CURVE
CONCAVE TO THE NORTH AND HAVING A RADIUS OF 1349.00 FEET; THENCE, EASTERLY
TANGENT TO SAID CURVE NORTH 53”15’17” EAST 461.71 FEET TO A TANGENT CURVE
ALONG SAID CURVE 666.28 FEET THROUGH A CENTRAL ANGLE OF 28’17’56“; THENCE,
NORTHEASTERLY ALONG SAID CURVE 32.06 FEET THROUGH A CENTRAL ANGLE OF
CONCAVE TO THE NORTH AND HAVING A RADIUS OF 990.00 FEET; THENCE,
TANGENT CURVE CONCAVE TO THE SOUTH AND HAVING A RADIUS OF 1010.00 FEET;
Io51’19”; THENCE, TANGENT TO SAID CURVE NORTH 5Io23’58” EAST 60.28 FEET TO A
THENCE, NORTHEASTERLY ALONG SAID CURVE 32.70 FEET THROUGH A CENTRAL
ANGLE OF lo51’I9”; THENCE, TANGENT TO SAID CURVE NORTH 53°15’17” EAST 336.29 FEET TO A TANGENT CURVE CONCAVE TO THE WEST AND HAVING A RADIUS OF 25.00
FEET; THENCE, NORTHERLY ALONG SAID CURVE 39.80 FEET THROUGH A CENTRAL
ANGEL OF 91’12’49”; THENCE, TANGENT TO SAID CURVE NORTH 37O57’32” WEST 300.00
FEET TO A TANGENT CURVE CONCAVE TO THE EAST AND HAVING A RADIUS OF 210.00
FEET; THENCE, NORTHERLY ALONG SAID CURVE 20.92 FEET THROUGH A CENTRAL
ANGLE OF 5’42’26”; THENCE, TANGENT TO SAID CURVE NORTH 32O15’06” WEST 80.62
FEET; THENCE, NORTHERLY ALONG SAID CURVE 18.93 FEET THROUGH A CENTRAL
FEET TO A TANGENT CURVE CONCAVE TO THE WEST AND HAVING A RADIUS OF 190.00
ANGLE OF 5”42’26“; THENCE, TANGENT TO SAID CURVE NORTH 37Y7’32” WEST 310.22 FEET TO A TANGENT CURVE CONCAVE TO THE SOUTHWEST AND HAVING A RADIUS OF
1349.00 FEET; THENCE, NORTHWESTERLY ALONG SAID CURVE 288.52 FEET THROUGH A
CENTRAL ANGLE OF 12°15’16”; THENCE, TANGENT TO SAID CURVE NORTH 50’12’48
WEST 100.00 FEET TO A TANGENT CURVE CONCAVE TO THE NORTHEAST AND HAVING A
RADIUS OF 1451.00 FEET: THENCE, NORTHWESTERLY ALONG SAID CURVE 480.31 FEET
THROUGH A CENTRAL ANGLE OF 18’57’58” TO A POINT IN THE SOUTH LINE OF SAID
RECORD OF SURVEY 16661, A RADIAL LINE TO SAID CURVE BEARS SOUTH 58’45’10”
WEST; THENCE, NORTH 89’25’37” WEST ALONG THE SOUTH LINE OF SAID RECORD OF
SURVEY 16661 1950.97 FEET TO THE POINT OF BEGINNING.
ORDER NO. 1285533-6
SAID LAND BEING DESCRIBED AS PARCEL I ON CERTIFICATE OF COMPLIANCE
RECORDED NOVEMBER 28,2001 AS FILE NO. 2001-0865064 OF OFFICIAL RECORDS.
PARCEL 2:
THAT PORTION OF LOTS D AND E OF RANCHO AGUA HEDIONDA, IN THE CITY OF
CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP
THEREOF NO. 823, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY, NOVEMBER 16,1896, DESCRIBED AS FOLLOWS:
THE SOUTHEAST CORNER .OF CT 76-12 PER MAP 9935 FILED IN THE OFFICE OF THE
BEGINNING AT THE SOUTHWEST CORNER OF RECORD OF SURVEY 16661, BEING ALSO
COUNTY RECORDER OF SAID COUNTY ON JULY 14, 2000 AND DECEMBER 16, 1980
RESPECTIVELY; THENCE, ALONG THE SOUTHERLY Lh‘E OF SAID RECORD OF SURVEY
CONTINUING ALONG THE SOUTHERLY AND EASTERLY LINE OF SAID RECORD OF
SOUTH 89O25’37” EAST 1950.97 FEET TO THE TRUE POINT OF BEGINNING; THENCE,
SURVEY SOUTH 89’25’37” EAST 129.1 I FEET, NORTH 13’44’27” EAST 781.66 FEET, NORTH
21O34’15” EAST 189.90 FEET, NORTH 14O47’00” EAST 160.15 FEET, NORTH 11’34’22’’ EAST
65.17 FEET, NORTH 7O12’14” EAST 135.30 FEET, NORTH 14’45’08’’ EAST 57.12 FEET, NORTH
20’50’34”EAST 126.05 FEET, NORTH 9O43.14” EAST 112.86 FEET, NORTH 1°1S’18” EAST 150.28
FEET, SOUTH 89O37’14” EAST 355.61 FEETTO A POINT ON RECORD OF SURVEY 14818 FILED
IN THE OFFICE OF THE COUNTY RECORDER ON MARCH 16, 1995; THENCE, LEAVING SAID
RECORD OF SURVEY 16661 AND CONTINUING SOUTHERLY ALONG THE WEST LINE OF
RECORD OF SURVEY 14818, SOUTH l”15’25” EAST 304.47 FEET (SOUTH Io11’30” EAST
305.1 8’ R), SOUTH 18’25’38” EAST, 694.08 FEET (SOUTH 18”19’26” EAST 694.27’ R), THENCE,
LEAVING SAID RECORD OF SURVEY 14818 AND CONTMUING SOUTHERLY ALONG THE
FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY ON NOVEMBER 4,
WEST LINE OF THAT 363.14 ACRES PARCEL AS SHOWN ON RECORD 0F.SURVEY 6616
1965; THENCE, SOUTH 1°05’41” WEST 1271.23 FEET (SOUTH l”12’02” WEST 1271.40’ R),
SOUTH 4O13’22” WEST 963.76 FEET (SOUTH 4’20’50” WEST 963.88’ R), SOUTH 5lo39’IS” WEST
1165.94 FEET 1165.94 FEET (SOUTH 51’47’48” WEST 1165.49’ R), SOUTH 48’19’13’’ WEST
404.3 I FEET (SOUTH 48’19’29” WEST 404.15’ R), SOUTH 65’09’20” WEST 386.97 FEET (SOUTH
65’14’32’’ WEST 387.06’ R), NORTH 77”55’34“ WEST 635.12 FEET (NORTH 77’48’20” WEST
635.06’ R),’ SOUTH 65’35’13” WEST 494.30 FEET (SOUTH 65”42’27” WEST 494.30’ R), SOUTH
266.73 FEET (SOUTH 30O46’06” WEST 33 1.55’ TO THE CENTERLINE OF RS 682 R) TO A POINT
39O37.39” WEST 339.77 FEET (SOUTH 39”44’53” WEST 339.77’ R), SOUTH 30’38’52” WEST
COUNTY ROAD SURVEY NO. 1800-1 (KNOWN AS EL CAMINO REAL) ACCORDING TO
IN A LINE THAT IS PARALLEL TO AND 63.00 FEET NORTHERLY OF THE CENTERLINE OF
OFFICIAL PLAT THEREOF ON FILE fK THE OFFICE OF THE COUNTY ENGINEER OF SAN
DIEGO COUNTY; THENCE, WESTERLY ALONG SAID NORTHERLY LINE, NORTH 66O42’10”
OF A CURVE CONCAVE TO THE NORTH AND HAVING A RADIUS OF 6,855.31 FEET, SAID
WEST 13.53 FEET; THENCE, SOUTH 23”17’50” WEST 18.00 FEET ALONG THE RADIAL LINE
ON ROAD SURVEY NO. 1800-1; THENCE, WESTERLY ALONG SAID NORTH LINE, AND
POINT BEING ALSO ON THE NORTH LINE OF THAT 90 FOOT WIDE STRIP OF LAND SHOWN
CURVE THROUGH A CENTRAL ANGLE OF 2”10’51” 260.94 FEET; THENCE, LEAVING SAID
NORTH LINE, NORTH 32’44’07” EAST 16.78 FEET, SOUTH 82’48’22’’ EAST 72.17 FEET, NORTH
23’31’32” EAST 109.80 FEET, NORTH 25’38’31’’ EAST 100.08 FEET, NORTH 29’07’38” EAST
77.37 FEET, NORTH 3I048’l?” EAST 60.19 FEET, NORTH 42’27’17’’ EAST 23.56 FEET, NORTH
37”46’23” EAST 139.56 FEET, NORTH 24”02’16” EAST 40.09 FEET, NORTH 46”32’58” EAST
28 1.65 FEET, NORTH 53”49’59” EAST 24 I .03 FEET, NORTH 67” IS’ 16” EAST 15.60 FEET, SOUTH
ORDER NO. 1285531-6
4O56’41” EAST 44.65 FEET TO A POINT ON A CURVE CONCAVE TO THE SOUTH AND
HAVING A RADIUS OF 1451.00 FEET, A RADIAL LINE TO SAID CURVE BEARS SOUTH
28”58’39” EAST; THENCE, NORTHEASTERLY ALONG SAID CURVE 519.94 FEET THROUGH A
CENTRAL ANGLE OF 20”31’52”; THENCE, TANGENT TO SAID CURVE NORTH 81”33’13”
EAST 648.89 FEET TO A TANGENT CURVE CONCAVE TO THE NORTH AND HAVING A
RADIUS OF 1349.00 FEET; THENCE, EASTERLY ALONG SAID CURVE 666.28 FEET THROUGH
A CENTRAL ANGLE OF 28O17’56”; THENCE, TANGENT TO SAID CURVE NORTH 53”15’17”
EAST 461.71 FEET TO A TANGENT CURVE CONCAVE TO THE NORTH AND HAVING A
RADIUS OF 990.00 FEET; THENCE, NORTHEASTERLY ALONG SAID CURVE 32.06 FEET
THROUGH A CENTRAL ANGLE OF Io51’19”; THENCE, TANGENT TO SAID CURVE NORTH
51O23’58” EAST 60.28 FEET TO A TANGENT CURVE CONCAVE TO THE SOUTH AND HAVING
THROUGH A CENTRAL ANGLE OF 1°51’19”; THENCE, TANGENT TO SAID CURVE NORTH
A RADIUS OF 1010.00 FEET; THENCE, NORTHEASTERLY ALONG SAID CURVE 32.70 FEET
53”15’17” EAST 336.29 FEET TO A TANGENT CURVE CONCAVE TO THE WEST AND HAVING
THROUGH A CENTRAL ANGLE OF 91O12’49”; THENCE, TANGENT TO SAID CURVE NORTH
A RADIUS OF 25.00 FEET; THENCE, NORTHERLY ALONG SAID CURVE 39.80 FEET
37O57.32” WEST 300.00 FEET TO A TANGENT CURVE CONCAVE TO THE EAST AND HAVING
A RADIUS OF 210.00 FEET; THENCE, NORTHERLY ALONG SAID CURVE 20.92 FEET
THROUGH A CENTRAL ANGLE OF 5-42’26”; THENCE, TANGENT TO SAID CURVE NORTH
32”15’06” WEST 80.62 FEET TO A TANGENT CURVE CONCAVE TO THE WEST AND HAVING
THROUGH A CENTRAL ANGLE OF 5’42’26”; THENCE, TANGENT TO SAID CURVE NORTH
A RADIUS OF 190.00 FEET; THENCE, NORTHERLY ALONG SAID CURVE 18.93 FEET
37”57’32” WEST 3 10.22 FEET TO A TANGENT CURVE CONCAVE TO THE SOUTHWEST AND
HAVING A RADIUS OF 1349.00 FEET; THENCE, NORTHWESTERLY ALONG SAID CURVE
288.52 FEET THROUGH A CENTRAL ANGLE OF 12°15’16”; THENCE, TANGENT TO SAID
NORTHEAST AND HAVING A RADIUS OF 145 1 .OO FEET; THENCE NORTHWESTERLY ALONG
CURVE NORTH 50’12’48” WEST 100.00 FEET TO A TANGENT CURVE CONCAVE TO THE
SAID CURVE 480.3 1 FEET THROUGH A CENTRAL ANGLE OF 1 897’58” TO A.POINT IN THE
SOUTH LINE OF SAID RECORD OF SURVEY 16661, SAID POINT BEING THE TRUE POINT OF
BEGINNING, A RADIAL LINE TO SAID CURVE AT THE TRUE POINT OF BEGINNING BEARS
SOUTH 58’45’1 0” WEST.
RECORDED NOVEMBER 28,2001 AS FILE NO. 2001-0865066 OF OFFICIAL RECORDS.
SAID LAND BEING DESCRIBED AS PARCEL 3 ON CERTIFICATE OF COMPLIANCE
FEBRUARY 05. 2002 3:21 PM MC
EXHIBIT “E”
Recording Requested By
and
When Recorded Mail To:
Latham & Watkins
701 “B” Street, Suite 2100
San Diego, California 92101
Attn: Amy G. Nefouse
A OVE SPACE FOR RECORDER’S USE ONLY
LANDSCAPING/SOUND WALL EASEMENT AGREEMENT
This LANDSCAPING/SOUND WALL EASEMENT AGREEMENT (“Agreement”) is
entered into as of ,- between CALAVERA HILLS I1 LLC,
California limited liability, (“Calavera”), and the RANCHO CARLSBAD OWNERS
ASSOCIATION INC., a California corporation, (“Owner“) with reference to the following facts:
A. Contemporaneously herewith, Owner is purchasing from Calavera the real
property located in the City of Carlsbad, California, more particularly described on Exhibit “1”
attached hereto (“Owner’s Site”).
B. Calavera is the owner of that certain real property located in the City Carlsbad,
California, more particularly described on Exhibit “2” attached hereto (“Robertson Ranch”).
C. Calavera desires to acquire certain rights in Owner’s Site.
AGREEMENT
NOW THEREFORE, for valuable consideration, receipt of which is hereby
acknowledged, it is agreed as follows:
1. Owner hereby grants to Calavera the non-exclusive perpetual easement
hereinafter described (the “Easement”).
2. The Easement is over and across that portion@) of the Owner’s Site determined
by Calavera in the future to be most suitable and convenient. However, once the location(s) has
36
SDU08449.9
been determined, the parties hereto agree to amend the Easement to set forth such location(s)
with more specificity.
3. The Easement is in gross.
4. The Easement consists of the following: An easement for the construction,
grading, planting andor maintenance, as applicable, of a berm, sound wall, grass, flowers,
shrubs, trees and irrigation, and other landscaping services paralleling Cannon Road, and for
pedestrian and vehicular ingress and egress over dnveways, roads, sidewalks or other areas as
reasonably necessary to provide access for these purposes.
5. Calavera shall exercise its rights in connection with the Easement, including but
not limited to its determination of the location of the Easement, only to the extent necessary to
accomplish the purposes for which the Easement is intended and shall not exercise its rights in
connection with the Easement in such a way as to render the Owner’s Site unusable for its
intended purposes as a community garden, wash area, waste disposal area and RV Parking Lot
(which includes, without limitation, parking for boats, cars, jet skis, RVs, hay wagons and other
personal items, subject to any applicable governmental approvals).
6. The Easement is not exclusive. Owner retains the right to make any use of
Owner’s Site that does not unreasonably interfere with Calavera’s free use and enjoyment of the
Easement.
7. In the event of any controversy, claim or dispute relating to this instrument or the
breach hereof, the prevailing party shall be entitled to recover from the losing party its
reasonable costs, expenses and attorneys’ fees.
8. Calavera shall hold harmless, indemnify and defend Owner and any of Owner’s
successors, assigns, employees, agents and occupants of Owner’s Site from and against any and
all obligations, liabilities, claims, liens, demands, losses, damages, causes of action, judgments,
costs and expenses (including reasonable attorneys’ fees and costs) arising out of or relating to
Calavera’s use of the Easement or Calavera’s breach of any covenant or agreement contained in
this instrument, including without limitation, any and all damages to buildings, structures and
landscape improvements located on Owner’s Site arising out of the use of the Easement.
9. All of the provisions, agreements, rights, powers, covenants, conditions and
obligations contained in this Agreement, shall be binding upon and shall inure to the benefit of
the parties hereto, their respective heirs, successors (by merger, consolidation or otherwise) and
assigns, devisees, administrators, representatives, lessees. All provisions of this Agreement shall
be covenants running with the land pursuant to applicable law, including but not limited to
Section 1468 of the Civil Code of the State of California.
10. This Agreement shall become effective and binding upon recordation of this
Agreement in the Office of the County Recorder of San Diego County.
11. This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original and all of which shall constitute one and the same agreement.
37
SDL308449.9
IN WITNESS WHEREOF, the parties hereto have executed this instrument on the day
and year first above written.
CALAVERA HILLS 11 LLC, a California limited
liability company
a Delaware limited liability company
By its Manager: McMiliin Companies, LLC,
Its:
By:
RANCHO CARLSBAD OWNERS
ASSOCIATION INC., a California corporation
By:
Its:
SDU08449.9 38
STATE OF )
COUNTY OF )
On , before me, , personally appeared
, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person(s) whose name(s) islare subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in hislherltheir
authorized capacity(ies), and that by hislhedtheir signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
[SEAL1
Notary Public in and for said
County and State
STATE OF CALIFORNIA 1
COUNTY OF SAN DIEGO
On , before me, , personally
appeared , personally known to me (or proved to me
on the basis of satisfactory evidence) to be the person(s) whose name(?,) islare subscribed to the
within instrument and acknowledged to me that helshelthey executed the same in hislherltheir
authorized capacity(ies), and that by hidherltheir signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
[SEAL1 Notary Public in and for said
County and State
SDUOW9.9
39
EXHIBIT “1” TO LANDSCAPING/SOUND WALL EASEMENT
LEGAL DESCRIPTION OWNER’S SITE
SDU08449.9 40
AUGUST 27, 2002
PAGE 1 OF 1
J.N. : 01-0185
LEGAL DESCRIPTION FOR OPTION PARCEL
~. ..
THAT PORTION OF PARCEL 3 OF ADJUSTMENT PLAT ADJ 01-13 PER
CERTIFICATE OF COMPLIANCE CE 01-56 IN THE CITY OF CARLSBAD,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, RECORDED AS DOCUMENT
2001-0865066 ON NOVEMBER 28, 2001 IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY, STATE OF CALIFORNIA, DESCRIBED AS
FOLLOWS :
OF SURVEY NO. 17111 FILED IN THE OFFICE OF THE COUNTY RECORDER
BEGINNING AT ANGLE POINT NO. 19 ON THE SOUTHERLY LINE OF RECORD
OF SAID COUNTY ON AUGUST 24, 2001; THENCE NORTH 77"55'34" WEST
(SEE CERTIFICATE OF CORRECTION OF SAID RECORD OF SURVEY RECORDED
NOVEMBER 29, 2001 AS DOC. NO. 2001-0869050 IN THE OFFICE OF SAID
COUNTY RECORDER) ALONG THE SOUTHERLY LINE OF SAID RECORD OF
SURVEY 113.37 FEET; THENCE LEAVING SAID SOUTHERLY LINE NORTH
8'26'47''. WEST 86.33 FEET, NORTH 81"33'13" EAST 49.99 FEET, NORTH
E"26'47" WEST 85.24 FEET, NORTH ll"57'45" EAST 71.37 FEET, NORTH
E"26'47" WEST 152.55 FEET TO THE SOUTHERLY LINE OF FUTURE CANNON
ROAD; THENCE EASTERLY ALONG THE SOUTHERLY LINE OF FUTURE CANNON
ROAD NORTH 81'33'13" EAST 335.71 FEET TO THE BEGINNING OF A
TANGENT CURVE CONCAVE TO THE NORTH AND HAVING A RADIUS OF
1451.00 FEET; THENCE EASTERLY ALONG SAID CURVE 429.98 FEET
THROUGH A CENTRAL ANGLE OF 16°58'43"; THENCE LEAVING THE SOUTH
LINE OF FUTURE CANNON ROAD SOUTH 25'25'30'' EAST 135.56 FEET TO
THE SOUTHERLY LINE OF SAID RECORD OF SURVEY; THENCE WESTERLY
ALONG SAID SOUTHERLY LINE SOUTH 51O39'15" WEST 67.24 FEET, SOUTH
48'19'13'' WEST 404.31 FEET, SOUTH 65'09'20'' WEST 386.97 FEET TO
THE POINT OF BEGINNING, ALL AS SHOWN ON THE ATTACHED PLAT FOR
CONVENIENCE SAKE.
THE AREA OF ABOVE DESCRIBED PROPERTY IS 248,292 S.F. OR 5.70
ACRES.
I N 775534'W
3 N BI'JJ'N'E 49.99' I
BASIS OF BEARING COURSE 8 PER RECORD OF SURMY 171 11 BEING S 65'09'20' W
/
SDU08449.9
EXHIBIT “2” TO LANDSCAPING/SOUND WALL EASEMENT
LEGAL DESCRIPTION OF ROBERTSON RANCH
41
ORDER NO. 1285531-6
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY
OF SAN DIEGO. AND IS DESCRIBED AS FOLLOWS:
PARCEL 1 :
THAT PORTION OF LOT E OF RANCHO AGUA HEDIONDA, IN THE CITY OF CARLSBAD,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 823,
FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, NOVEMBER
16, 1896, DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF RECORD OF SURVEY 16661, BEING ALSO THE SOUTHEAST CORNER OF CT 76-12 PER MAP 9935 FILED IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY ON JULY 14, 2000 AND DECEMBER 16, 1980
RESPECTIVELY; THENCE, SOUTH IO42’35” WEST 1619.75 FEET, SOUTH 63”42’38” EAST
POINT ON A CURVE CONCAVE TO THE SOUTH AND HAVING A RADIUS OF I45 1 .OO FEET, A
313.13 FEET, SOUTH 73’19’52” EAST 230.87 FEET, SOUTH 4’56’41” EAST 517.19 FEET TO A
RADIAL LINE TO SAID CURVE BEARS SOUTH 2898’39” EAST; THENCE, NORTHEASTERLY
ALONG SAID CURVE 519.94 FEET THROUGH A CENTRAL ANGLE OF 20O31’52”; THENCE,
TANGENT TO SAID CURVE NORTH 81”33’13” EAST 648.89 FEET TO A TANGENT CURVE
CONCAVE TO THE NORTH AND HAVING A RADIUS OF 1349.00 FEET; THENCE, EASTERLY
TANGENT TO SAID CURVE NORTH 53°15’17” EAST 461.71 FEET TO A TANGENT CURVE
ALONG SAID CURVE 666.28 FEET THROUGH A CENTRAL ANGLE OF 28’17’56’’; THENCE,
NORTHEASTERLY ALONG SAID CURVE 32.06 FEET THROUGH A CENTRAL ANGLE OF
CONCAVE TO THE NORTH AND HAVING A RADIUS OF 990.00 FEET; THENCE,
1°51’19”; THENCE, TANGENT TO SAID CURVE NORTH 51’23’58” EAST 60.28 FEET TO A
TANGENT CURVE CONCAVE TO THE SOUTH AND HAVING A RADIUS OF 1010.00 FEET;
ANGLE OF I”51’19”; THENCE, TANGENT TO SAID CURVE NORTH 53’15’17” EAST 336.29
THENCE, NORTHEASTERLY ALONG SAID CURVE 32.70 FEET THROUGH A CENTRAL
FEET; THENCE, NORTHERLY ALONG SAID CURVE 39.80 FEET THROUGH A CENTRAL
FEET TO A TANGENT CURVE CONCAVE TO THE WEST AND HAVING A RADIUS OF 25.00
ANGEL OF 91O12’49”; THENCE, TANGENT TO SAID CURVE NORTH 37’57’32’’ WEST 300.00
FEET TO A TANGENT CURVE CONCAVE TO THE EAST AND HAVING A RADIUS OF 210.00
FEET; THENCE, NORTHERLY ALONG SAID CURVE 20.92 FEET THROUGH A CENTRAL
ANGLE OF 5’42’26”; THENCE, TANGENT TO SAID CURVE NORTH 32”15’06“ WEST 80.62
FEET; THENCE, NORTHERLY ALONG SAID CURVE 18.93 FEET THROUGH A CENTRAL
FEET TO A TANGENT CURVE CONCAVE TO THE WEST AND HAVING A RADIUS OF 190.00
ANGLE OF 5’42’26”; THENCE, TANGENT TO SAID CURVE NORTH 37’37’32’’ WEST 310.22
FEET TO A TANGENT CURVE CONCAVE TO THE SOUTHWEST AND HAVING A RADIUS OF
1349.00 FEET; THENCE, NORTHWESTERLY ALONG SAID CLJRVE 288.52 FEET THROUGH A
CENTRAL ANGLE OF 12”15’16”; THENCE, TANGENT TO SAID CURVE NORTH 50’12’48’’
WEST 100.00 FEET TO A TANGENT CURVE CONCAVE TO THE NORTHEAST AND HAVING A
RADIUS OF 1451.00 FEET: THENCE, NORTHWESTERLY ALONG SAID CURVE 480.31 FEET
THROUGH A CENTRAL ANGLE OF 18’57’58’’ TO A POINT PJ THE SOUTH LINE OF SAID
RECORD OF SURVEY 16661, A RADIAL LINE TO SAID CURVE BEARS SOUTH 58’45’10”
WESC THENCE, NORTH 89’25’37” WEST ALONG THE SOUTH LlNE OF SAID RECORD OF
SURVEY 16661 1950.97 FEETTO THE POINT OF BEGMNING.
ORDER NO. 1285531-6
SAID LAND BEING DESCRIBED AS PARCEL I ON CERTIFICATE OF COMPLIANCE
RECORDED NOVEMBER 28,2001 AS FILE NO. 2001-0865064 OF OFFICIAL RECORDS.
PARCEL 2:
THAT PORTION OF LOTS D AND E OF RANCHO AGUA HEDIONDA, IN THE CITY OF
CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP
THEREOF NO. 823, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY, NOVEMBER 16,1896, DESCRIBED AS FOLLOWS:
THE SOUTHEAST CORNER ,OF CT 76-12 PER MAP 9935 FILED IN THE OFFICE OF THE
BEGMNING AT THE SOUTHWEST CORNER OF RECORD OF SURVEY 16661, BEING ALSO
COUNTY RECORDER OF SAID COUNTY ON JULY 14, 2000 AND DECEMBER 16, 1980
RESPECTIVELY; THENCE, ALONG THE SOUTHERLY LINE OF SAID RECORD OF SURVEY
SOUTH 89O25’37” EAST 1950.97 FEET TO THE TRUE POINT OF BEGINNING; THENCE,
CONTINUING ALONG THE SOUTHERLY AND EASTERLY LINE OF SAID RECORD OF
21O34’15” EAST 189.90 FEET, NORTH 14”47’00” EAST 160.15 FEET, NORTH 11’34’22’’ EAST
SURVEY SOUTH 89’25’37’’ EAST 129.1 I FEET, NORTH 13’44’27” EAST 781.66 FEET, NORTH
65.17 FEET, NORTH 7’12’14’’ EAST 135.30 FEET, NORTH 14°45’08” EAST 57.12 FEET, NORTH
20’50’34”EAST 126.05 FEET, NORTH 9“43’14” EAST 112.86 FEET, NORTH 1“15’18” EAST 150.28
IN THE OFFICE OF THE COUNTY RECORDER ON MARCH 16,1995; THENCE, LEAVING SAID
FEET, SOUTH 89”37’14” EAST 355.61 FEETTO A POINT ON RECORD OF SURVEY 14818 FILED
RECORD OF SURVEY 14818, SOUTH l”15’25” EAST 304.47 FEET (SOUTH Io11’3O” EAST RECORD OF SURVEY 16661 AND CONTINUING SOUTHERLY ALONG THE WEST LINE OF
305.18’ R), SOUTH 18’25’38’’ EAST, 694.08 FEET (SOUTH 18”19’26” EAST 694.27’ R), THENCE,
LEAVING SAID RECORD OF SURVEY 14818 AND CONTINUING SOUTHERLY ALONG THE
WEST LINE OF THAT 363.14 ACRES PARCEL AS SHOWN ON RECORD 0F.SURVEY 6616
FILED M THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY ON NOVEMBER 4,
1965; THENCE, SOUTH 1°05’41” WEST 1271.23 FEET (SOUTH 1°12’02” WEST 1271.40’ R),
SOUTH 4”13’22” WEST 963.76 FEET (SOUTH 4’20’50” WEST 963.88’ R), SOUTH 5lo39’I5”WEST
1165.94 FEET 1165.94 FEET (SOUTH 51”47’48” WEST 1165.49’ R), SOUTH 48O19’13” WEST
404.3 I FEET (SOUTH 48”19’29” WEST 404.15’ R), SOUTH 65O09’20” WEST 386.97 FEET (SOUTH
65’14’32’’ WEST 387.06’ R), NORTH 77’35’34’’ WEST 635.12 FEET (NORTH 77’48’20” WEST
635.06’ R), SOUTH 65‘35’13” WEST 494.30 FEET (SOUTH 65’42’27” WEST 494.30’ R), SOUTH
266.73 FEET (SOUTH 30O46’06” WEST 33 1.55’ TO THE CENTERLINE OF RS 682 R) TO A POINT
39’37’39” WEST 339.77 FEET (SOUTH 39’44’53’’ WEST 339.77’ R), SOUTH 30”38’52” WEST
IN A LINE THAT IS PARALLEL TO AND 63.00 FEET NORTHERLY OF THE CENTERLINE OF
OFFICIAL PLAT THEREOF ON FILE IN THE OFFICE OF THE COUNTY ENGINEER OF SAN
DIEGO COUNTY; THENCE, WESTERLY ALONG SAID NORTHERLY LINE, NORTH 66O42’10”
WEST 13.53 FEET; THENCE, SOUTH 23O17’50” WEST 18.00 FEET ALONG THE RADIAL LINE
OF A CURVE CONCAVE TO THE NORTH AND HAVING A RADIUS OF 6,855.31 FEET, SAID
POINT BEING ALSO ON THE NORTH LINE OF THAT 90 FOOT WIDE STRJP OF LAND SHOWN
CURVE THROUGH A CENTRAL ANGLE OF 2°10’51” 260.94 FEET; THENCE, LEAVING SAID
NORTH LINE, NORTH 32’44’07” EAST 16.78 FEET, SOUTH 82O48’22” EAST 72.17 FEET, NORTH
23”31’32” EAST 109.80 FEET, NORTH 25’38’31’’ EAST 100.08 FEET, NORTH 29”07’38” EAST
17.37 FEET, NORTH 31O48’12” EAST 60.19 FEET, NORTH 42’27’17” EAST 23.56 FEET, NORTH
37’46’23” EAST 139.56 FEET, NORTH 24”02’16” EAST 40.09 FEET, NORTH 46’32’58” EAST
28 1.65 FEET, NORTH 53”49’59” EAST 24 I .03 FEET, NORTH 67” 15’ 16” EAST 15.60 FEET. SOUTH
COUNTY ROAD SURVEY NO. 1800-1 (KNOWN AS EL CAMINO REAL) ACCORDING TO
ON ROAD SURVEY NO. 1800-1; THENCE, WESTERLY ALONG SAID NORTH LINE, AND
ORDER NO. 1285531-6
4O56’41” EAST 44.65 FEET TO A POINT ON A CURVE CONCAVE TO THE SOUTH AND
-.HAVING A RADIUS OF 1451 .OO FEET, A RADIAL LINE TO SAID CURVE BEARS SOUTH
28’38’39” EAST; THENCE, NORTHEASTERLY ALONG SAID CURVE 5 19.94 FEET THROUGH A
CENTRAL ANGLE OF 2071’52’’; THENCE, TANGENT TO SAID CURVE NORTH 81’33’13’’
EAST 648.89 FEET TO A TANGENT CURVE CONCAVE TO THE.NORTH AND HAVING A
RADIUS OF 1349.00 FEET; THENCE, EASTERLY ALONG SAID CURVE 666.28 FEET THROUGH
A CENTRAL ANGLE OF 28”17’56”; THENCE, TANGENT TO SAID CURVE NORTH 53°15’17”
EAST 461.71 FEET TO A TANGENT CURVE CONCAVE TO THE NORTH AND HAVING A
RADIUS OF 990.00 FEET; THENCE, NORTHEASTERLY ALONG SAID CURVE 32.06 FEET
THROUGH A CENTRAL ANGLE OF Io51’19”, THENCE, TANGENT TO SAID CURVE NORTH
5 1’23’58’’ EAST 60.28 FEET TO A TANGENT CURVE CONCAVE TO THE SOUTH AND HAVING
THROUGH A CENTRAL ANGLE OF Io51’19”, THENCE, TANGENT TO SAID CURVE NORTH
A RADIUS OF 1010.00 FEET; THENCE, NORTHEASTERLY ALONG SAID CURVE 32.70 FEET
53”15’17” EAST 336.29 FEET TO A TANGENT CURVE CONCAVE TO THE WEST AND HAVING
THROUGH A CENTRAL ANGLE OF 91O12’49”; THENCE, TANGENT TO SAID CURVE NORTH
A RADIUS OF 25.00 FEET; THENCE, NORTHERLY ALONG SAID CURVE 39.80 FEET
37’57’32’’ WEST 300.00 FEET TO A TANGENT CURVE CONCAVE TO THE EAST AND HAVING
A RADIUS OF 210.00 FEET; THENCE, NORTHERLY ALONG SAID CURVE 20.92 FEET
THROUGH A CENTRAL ANGLE OF 5’42’26’’; THENCE, TANGENT TO SAID CURVE NORTH
32’15’06” WEST 80.62 FEET TO A TANGENT CURVE CONCAVE TO THE WEST AND HAVING
A RADIUS OF 190.00 FEET; THENCE, NORTHERLY ALONG SAID CURVE 18.93 FEET
THROUGH A CENTRAL ANGLE OF 5’42’26”; THENCE, TANGENT TO SAID CURVE NORTH
37T7’32” WEST 3 10.22 FEET TO A TANGENT CURVE CONCAVE TO THE SOUTHWEST AND
288.52 FEET THROUGH A CENTRAL ANGLE OF 12°15’16”; THENCE, TANGENT TO SAID
HAVING A RADIUS OF 1349.00 FEET; THENCE, NORTHWESTERLY ALONG SAID CURVE
NORTHEAST AND HAVING A RADIUS OF 145 I .OO FEET; THENCE NORTHWESTERLY ALONG
CURVE NORTH 50’12’48” WEST 100.00 FEET TO A TANGENT CURVE CONCAVE TO THE
SAID CURVE 480.31 FEET THROUGH A CENTRAL ANGLE OF 18’57’58’’ TO A.POINT IN THE
SOUTH LINE OF SAID RECORD OF SURVEY 16661, SAID POINT BEING THE TRUE POINT OF BEGINNING, A RADIAL LINE TO SAID CURVE AT THE TRUE POINT OF BEGINNING BEARS
SOUTH 58’45’10’’ WEST.
SAID LAND BEING DESCRIBED AS PARCEL 3 ON CERTIFICATE OF COMPLIANCE
RECORDED NOVEMBER 28,2001 AS FILE NO. 2001-0865066 OF OFFICIAL RECORDS.
FEBRUARY 05.2002 3:21 PM MC
EXHIBIT ‘‘F”
Recording Requested By
and
When Recorded Mail To:
Latham & Watkins
701 “B” Street, Suite 2100
San Diego, California 92101
Attn: Amy G. Nefouse
Mail Tax Statements To:
GRANT DEED
A.P.N.
FOR VALUABLE CONSIDERATION, receipt and adequacy of which is hereby acknowleged:
CALAVERA HILLS I1 LLC, a California limited liability company (“Grantor”), hereby grants
to the RANCHO CARLSBAD OWNERS ASSOCIATION INC., a California corporation
(“Grantee”), the real property located in the City of Carlsbad, State of California, more
particularly described on Exhibit “1” attached hereto and incorporated herein by this reference,
together with all of Grantor’s interest in all rights, privileges, easements and rights-of-way
appurtenant to such property (the “Prowrty”).
Grantee accepts title to the Property subject to all easements, convanents, conditions, restrictions,
reservations, rights-of-way and any other matters approved by Grantee at or before the transfer
SDU08449.9
42
of the Property, including but not limited to the: Flood Easement Agreement,
LandscapinglSound Wall Easement Agreement, and Underground Facilities Easement
Agreement, between Grantor and Grantee, recorded contemporaneously herewith.
Dated:
CALAVERA HILLS I1 LLC, a California limited
liability company
a Delaware limited liability company
By its Manager: McMillin Companies, LLC,
SDU08449.9
43
STATE OF CALIFORNIA )
County of San Diego 1 ) ss.
On , before me,
Notary Public in and for said County and State, personally appeared
,a
personally known to be (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(?.) idare subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in hishedtheir authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
Witness my hand and official seal.
Notary Public
SDU08449.9
44
AUGUST 27, 2002
PAGE 1 OF 1
J.N. : 01-0185
LEGAL DESCRIPTION FOR OPTION PARCEL
THAT PORTION OF PARCEL 3 OF ADJUSTMENT PLAT ADJ 01-13 PER
CERTIFICATE OF COMPLIANCE CE 01-56 IN THE CITY OF CARLSBAD,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, RECORDED AS DOCUMENT
2001-0865066 ON NOVEMBER 28, 2001 IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY, STATE OF CALIFORNIA, DESCRIBED AS
FOLLOWS :
BEGINNING AT ANGLE POINT NO. 19 ON THE SOUTHERLY LINE OF RECORD
OF SURVEY NO. 17111 FILED IN THE OFFICE OF THE COUNTY RECORDER
OF SAID COUNTY ON AUGUST 24, 2001; THENCE NORTH 77O55'34" WEST
(SEE CERTIFICATE OF CORRECTION OF SAID RECORD OF SURVEY RECORDED
NOVEMBER 29, 2001 AS DOC. NO. 2001-0869050 IN THE OFFICE OF SAID
COUNTY RECORDER) ALONG THE SOUTHERLY LINE OF SAID RECORD OF
SURVEY 113.37 FEET; THENCE LEAVING SAID SOUTHERLY LINE NORTH
8'26'47" WEST 86.33 FEET, NORTH 81O33'13" EAST 49.99 FEET, NORTH
8'26'47'' WEST 85.24 FEET, NORTH ll"57'45" EAST 71.31 FEET, NORTH
8"26'41" WEST 152.55 FEET TO THE SOUTHERLY LINE OF FUTURE CANNON
ROAD; THENCE EASTERLY ALONG THE SOUTHERLY LINE OF FUTURE CANNON
ROAD NORTH 81"33'13" EAST 335.71 FEET TO THE BEGINNING OF A
TANGENT CURVE CONCAVE TO THE NORTH AND HAVING A RADIUS OF
1451.00 FEET; THENCE EASTERLY ALONG SAID CURVE 429.98 FEET
THROUGH A CENTRAL ANGLE OF .16"58'43"; THENCE LEAVING THE SOUTH
LINE OF FUTURE CANNON ROAD SOUTH 25'25'30'' EAST 135.56 FEET TO
THE SOUTHERLY LINE OF SAID RECORD OF SURVEY; THENCE WESTERLY
ALONG SAID SOUTHERLY LINE SOUTH 51'39'15" WEST 67.24 FEET, SOUTH
48O19'13" WEST 404.31 FEET, SOUTH 65"09'20" WEST 386.97 FEET TO
THE POINT OF BEGINNING, ALL AS SHOWN ON THE ATTACHED PLAT FOR
CONVENIENCE SAKE.
THE AREA OF ABOVE DESCRIBED PROPERTY IS 248,292 S.F. OR 5.70
ACRES.
EXHIBIT D
[Conditions of Approval referred to in Section 61
SD-DOCSU04222.12
II
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follows:
RESOLUTION NO. 2002-016
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, CERTIFYING AN ENVIRONMENTAL
OF OVERRiDlNG CONSIDERATIONS, A MITIGATION
IMPACT REPORT, CEQA FINDINGS OF FACT, STATEMENTS
A GENERAL PIAN AMENDMENT, MASTER PLAN
MONITORING AND REPORTING PROGRAM, AND APPROVING
AMENDMENT, ZONE 7 LOCAL FACILITIES MANAGEMENT
PLAN AMENDMENT, ZONE CHANGE, MASTER TENTATIVE
CAIAVERA HILLS MASTER PIAN ON PROPERTY MAP AND HILLSIDE DEVELOPMENT PERMIT WITHIN THE
AND WEST OF LAKE CALAVERA IN THE NORHTEAST
GENERALLY LOCATED SOUTH OF THE ClTY OF OCEANSIDE
QUADRANT OF THE CITY. CASE NAME CALAVERA HILLS PHASE Iimm M AND BASINS CASENO.: EIR 98-02/GPA 99-03hIP 1501HULFMP 87-
071AVZC Ol-OI/CT 0&02/HDP 00-02
The Cily Council of the City of Carlsbad, Califomla, does hereby resolve as
WHEREAS, the Planning Cornmission did on December 19,2001, and Januar)
2,2002 hold duly noticed public hearings as pmsaibed by law to consider the land use actions
and entitlements outlined above to facilitate the buildout of the Calavera Hills Master Plan and
the environmental review for the master plan as well as the mads and basins to be covered by
Bridge and Thoroughfare District #4 or similar financing mechanism. The Planning Commission
adopted Planning Commission Resolutions No. 51 12 through 51 18, recommending to the City
Councll that the above listed Items be approved; and
WHEREAS. the City Council did on the 15th day of January, 2002 hold a duly
noticed public hearing as prescn'bed by law to consider the EIR, Statement of Overriding
Considerations, CEQA Findings of Fact and Mitigation Monltorlng and Reparling Program,
General Pian Amendment, Master Plan Amendment, Zone 7 Local Facilities Management Plan
Amendment. Zone Change, Master Tentative Map and Hillside Development Permit and;
WHEREAS, at said public hearing. upon hearing and considering all testimony
and arguments, if any, of all persons desiring to be heard, the City Council considered all factors
relating to the above described project;
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The City Council of the City of Carlsbad, California does hereby resolve a!
follows:
1. That the above recitations are true and correct.
2. That the findings of the Planning Commission in Planning Commissior
Resolutions No. 5112, 5113. 5114, 5115, 5116, 5117 and 5118 constitute the findings of thf
City Council in this matter.
3. That the conditions imposed by the Planning Commission in Planning
Commission Resolutions No. 5112, 5113, 5114, 5115, 5116, 5117 and 5118 constitute thr
conditions of the City Council in this matter. Except that condition numbers 31, 36 and 3E
imposed by the Planning Commission in Planning Commission Resolution No. 5117 be revisec
to read as follows:
'31. Prior to issuance of the first building permit for the Calavera Hills Phase I1
with the City of Carlsbad and the Rancho Carlsbad Owners Association offering the City the project ('Project"), the applicant shall cause Owner to enter into a purchase option agreemeni
option to purchase, at not more than fair market value, an approximately 5.7 acre parcel of land,
to provide a relocation site for facilities that will either be replaced by or have the access severed by the construction of College Boulevard Reach A or Detention Basis BJ (the 'Facilities
Replacement Area"). The general location of the Facilities Replacement Area is shown on the Rancho Carisbad Exhibit as the location of the Rancho Carlsbad Owners Association facliities,
including the community garden, RV parking lot, wash area and waste disposal area. The
by January I. 2010, the Rancho Carlsbad Owners Association may exercise the option and purchase option agreement shall provide that if the City does not exercise its option to purchase
purchase the parcel. The agreement shall also provide that the Rancho Carlsbad Owners
Association, with agreement of Owner, may process any and all permits and applications with the appropriate governmental agencies required for the implementation of these provisions
provided any such permits issued are amdltioned upon the transfer of the parcel. Alternately, the Owner may elect to process the necessv permits and applications to implement these
provisions itself.
"The agreement shall provlde that if either the Owner or Ran,cho Carlsbad Owners Association are denied by any approving governmental agency a requested permit necessary for use of the 5.7 acre parcel for a wmmunlty garden, RV parking lot, wash area and
waste disposal area, then the purchase option agreement shall automatically terminate. The City shall provide the mechanism whereby the purchase by the Assodation shall be eligible for credit and repayment from the appropriate funding source or sources established by the City which indude this purpose. Any such credit and repayment mechanism shall be Implemented
prior to or concurrent with the transfer to the City by the Rancho Carlsbad Owners Association of the property rights required to install Basin BJ. If the Rancho Carlsbad Owners Association and Owner are unable to reach agreement with respect to the terms of the purchase option
agreement by May 1, 2002, the Rancho Carlsbad Owners Assodation and Owner shall enter
to resolve the terms of the agreement, subject to concurrence by the City to the extent the terms into binding arbitration to resolve the terms of the agreement, subject to concurrence by the City
RsPol~ti~ No. 2002-016 page 1 of 4
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impact the City's obligations under the agreement. Such arbitration to be paid for by Ownel The City Manager and City Attorney, or their designees, shall be authorized to negotiate anc enter into the purchase option agreement on behalf of the City, provided it complies with thc terms of this condition, without further review of the City Coundl. The actual purchase o
acquisition of the property which is the subject of the option agreement will require City bund
review and approval.'
berm to run along the south side of Reach 3 of Cannon Road between El Camino Real and thl
'38. The applicant shall constfuCt a five-foot sound wall atop a three-foot earthel
intersection with College Boulevard (the 'Berm'). The Berm and the slope shall be full!
facing the Rancho Carlsbad Mobile home Pak The landscaping plans shall be approved prio
landscaped, as shown on the Rancho Carlsbad Exhibit, on that portion of he Berm and slopt
days prior to the opening of Cannon Road to public traffic. The sound wall shall be located i
to the approval of the final map for CT 00-02 and such landscaping shall be installed at least 3(
wetlands or other sensitive habitats do not interfere.'
minimum of 20 feet from the edge of the southern right-of-way of Cannon Road Reach 3, whert
'39. The applicant shall cause the Owner to plant eucalyptus trees, or such othe,
trees as are comparable in price and availability, and native hydroseeding on an approximatel)
the intersection of College Boulevard and Cannon Road, as shown on the Rancho Carlsbac 2.51 acre parcel of land generally located between Cannon Road Station 150 plus 80 feet anc
Exhibit as the grove parcel. Approximately 2.25 acre of this parcel of land, generally locatec between Cannon Road Station 151 and the intersection of College Boulevard and Cannor
Association at no cost. Deeding or granting of the easement, and planting and irrigation of thf
Road, shall be deeded or provided by permanent easement to the Rancho Carlsbad Ownen
grove parcel shall occur at least 30 days prior to the opening of Cannon Road Reach 3.'
4. The recommendation of the Planning Commission for a General Plar
Amendment, GPA 99-03, as shown in Planning Commission Resolution No. 5113, is hereb)
accepted, approved in concept and shall be formally approved in connection with General Plan
Amendments GPA 01-08 and GPA 01-15.
5. The City Coundl shall retain jurisdiction over uses proposed for Village H and
shall act as the final decision maker on such uses following a recornendation from the
Planning Commission.'
EFFECTIVE DATE: This resolution shall be effective upon its adoption, except as
to the General Plan Amendment, which shall be effective thirty (30) days following its adoption.
Ill
Ill
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PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Carlsbad on the 15th day of JANUARY 2002, by the following vote, to wit
AYES: Council Members Lewis, Kulchin, Finnila, Nygaard, Hall
NOES: None
AlTEST: 1
BOSTON
ERUSSELS
CHICAGO
FRANKFURT
HAMBURG
HONG KONG
LOS ANGELES
LONDON
MILAN
MOSCOW
NEW JERSEY
Latham & Watkins
ATTORNEYS AT LAW
WWW,LW.COM
October 8,2002
Cindie McMahon, Esq.
Assistant City Attorney
City Attorney, City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, CA 92008
NEW YORK
NORTHERN VIRGINIA
ORANGE COUNTY
PARIS
SAN DIEOO NORTH COUNTY
SAN FRANCISCO
SILICON VALLEY
SINGAPORE
WASHINGTON, D.C.
TOKYO
Re: Original Legal DescriDtion of ODtion Parcel for Option Aaeement
Dear Cindie:
Enclosed is the original legal description of the 5.7 acre option parcel for use with
the City's original of the Option Agreement. A copy of this legal description had earlier been
sent to you and counsel for the Rancho Carlsbad Owners Association by email dated August 30,
2002. k Truly ours,
Amy G. Nefou
of LATHAM & WATKINS
Enclosure
cc: L. Sue Loftin, Esq. (w/encl.)
Mr. Brian Milich (w/encl.)
701 E STRLEr. SUITE 2100 * SAN DNEOO, CALIFORNIA 92101-8197
TELEPHONE: I6191 235-1234 . FAX I6191 696-7419
SDU54399.1
AUGUST 27, 2002
J.N. : 01-0185
PAGE 1 OF 1
LEGAL DESCRIPTION FOR OPTION PARCEL
THAT PORTION OF PARCEL 3 OF ADJUSTMENT PLAT ADJ 01-13 PER
CERTIFICATE OF COMPLIANCE CE 01-56 IN THE CITY OF CARLSBAD,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, RECORDED AS DOCUMENT
2001-0865066 ON NOVEMBER 28, 2001 IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY, STATE OF CALIFORNIA, DESCRIBED AS
FOLLOWS :
BEGINNING AT ANGLE POINT NO. 19 ON THE SOUTHERLY LINE OF RECORD
OF SURVEY NO. 17111 FILED IN THE OFFICE OF THE COUNTY RECORDER
OF SAID COUNTY ON AUGUST 24, 2001; THENCE NORTH 71O55'34" WEST
(SEE CERTIFICATE OF CORRECTION OF SAID RECORD OF SURVEY RECORDED
NOVEMBER 29, 2001 AS DOC. NO. 2001-0869050 IN THE OFFICE OF SAID
COUNTY RECORDER) ALONG THE SOUTHERLY LINE OF SAID RECORD OF
SURVEY 113.37 FEET; THENCE LEAVING SAID SOUTHERLY LINE NORTH
8O26'47" WEST 86.33 FEET, NORTH 81O33'13" EAST 49.99 FEET, NORTH
8O26'47" WEST 85.24 FEET, NORTH 11O57'45" EAST 71.31 FEET, NORTH
8O26'47" WEST 152.55 FEET TO THE SOUTHERLY LINE OF FUTURE CANNON
ROAD; THENCE EASTERLY ALONG THE SOUTHERLY LINE OF FUTURE CANNON
ROAD NORTH 81O33'13" EAST 335.71 FEET TO THE BEGINNING OF A
TANGENT CURVE CONCAVE TO THE NORTH AND HAVING A RADIUS OF
1451.00 FEET; THENCE EASTERLY ALONG SAID CURVE 429.98 FEET
THROUGH A CENTRAL ANGLE OF 16"58'43"; THENCE LEAVING THE SOUTH
LINE OF FUTURE CANNON ROAD SOUTH 25'25'30'' EAST 135.56 FEET TO
THE SOUTHERLY LINE OF SAID RECORD OF SURVEY; THENCE WESTERLY
ALONG SAID SOUTHERLY LINE SOUTH 51'39'15'' WEST 67.24 FEET, SOUTH
48'19'13'' WEST 404.31 FEET, SOUTH 65"09'20" WEST 386.97 FEET TO
THE POINT OF BEGINNING, ALL AS SHOWN ON THE ATTACHED PLAT FOR
CONVENIENCE SAKE.
THE AREA OF ABOVE DESCRIBED PROPERTY IS 248,292 S.F. OR 5.70
ACRES.
W:\MSOFFICE\WINWORD\981020\ADJ 01-13.I.GL.doc:
BASIS OF BEARING: COURSE 8 PER RECORD OF SURVEY 171 11 BEING S 65'09'20" W
/