HomeMy WebLinkAboutCarlsbad Unified School District; 2003-02-19;AGREEMENT FOR TRANSFER OF REAL PROPERTY
INTERESTS NECESSARY FOR ROAD CONSTRUCTION
By and Between
THE CARLSBAD UNIFIED SCHOOL DISTRICT,
THE CITY OF CARLSBAD
And
CALA VERA HILLS II, LLC
This Agreement for Transfer of Real Property Interests Necessary for Road Construction
(“Agreement”) is made at Carlsbad, California, as of the 19 day of F&= ,2003, by and
between the Carlsbad Unified School District (“District”), a public school district organized and
existing under the laws of the State of California (“State”), the City of Carlsbad (“City”), a
California general-law municipal corporation, and Calavera Hills 11, LLC (“Developer”), a
California limited liability company. The District, the City and the Developer may hereinafter
be referred to individually as “Party” and collectively as “Parties.”
RECITALS
A. The District is the owner of certain real property located within the City and
identified on Exhibit “A” attached hereto as AP# 168-050-19 (42.633 acres) and AP# 168-050-
46 (15.0 acres) (collectively, “School Site”). The Developer has obtained approvals (“Land Use
Entitlements”) from the City for development of real property located adjacent to and generally
to the west of the School Site (“Developer Property”). In connection with granting the Land Use
Entitlements for development of the Developer Property, the City is requiring that the Developer
construct portions of College Boulevard (Reach B) and Cannon Road (Reach 3) as partially
depicted in Exhibit “B” hereto. As illustrated on Exhibit B, the Land Use Entitlements approved
by the City anticipate that the Developer shall construct the hture intersection of College
Boulevard and Cannon Road (“Future Intersection”) and a portion of a storm-water detention
basin, Detention Basin BJB (“Detention Basin”) on a portion of the School Site. The Parties
anticipate that, in exchange for such construction and as partial consideration for entering into
this Agreement, the Developer will receive credit from the City to offset obligations arising from
development of the Developer Property to provide regional transportation infrastructure.
B. Construction of the Future Intersection and a portion of the Detention Basin will
result in a reduction of the area of the School Site. However, the Parties acknowledge that
construction of the portions of College Boulevard and Cannon Road described in Recital A will
facilitate better planning and coordination of development occurring in the area of the Developer
Property and the School Site, and so will be of benefit to the Parties and the public generally.
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For this reason, the Parties agree and acknowledge that the public benefit will be served by
entering into this Agreement to facilitate construction of the Future Intersection and the
Detention Basin, rather than the City undertaking an action in eminent domain to condemn the
necessary interests in the School Site. Each Party hereby acknowledges and agrees that entering
into this Agreement will best serve not only the public generally, but their own respective
interests as well.
C. In anticipation of the cooperation of the Parties in such regard, the Board of
Trustees of the District (“Board”) held a public hearing during its meeting on October 9,2002,
on the question of granting the necessary real property interests to the City. After receiving no
objections during the October 9,2002, hearing, the Board adopted Resolution No. 11-0203
authorizing the grant of such real property interests to the City, subject to the terms and
conditions of a written agreement therefor.
D. The Parties desire to enter into this Agreement in order to facilitate construction
of the Future Intersection and a portion of the Detention Basin, and to set forth each Parties’
rights and obligations in that regard, including the rights and obligations of the District with
respect to transfer of real property interests to the City.
AGREEMENT
In Consideration of The Foregoing, and in consideration of the other terms, covenants
and conditions set forth herein, the Parties agree that:
Section 1. Conveyance of Interests in School Site. Subject to the terms and
conditions set forth in this Agreement, the District hereby agrees to convey, and the City hereby
agrees to accept, the real-property interests described in this Section. The District shall sign and
deliver to the City the grant deeds for such real-property interests, in the forms attached as the
Exhibits referenced in this Section, within five calendar days after receipt of the Developer
Payment (defined in Section 3).
(a) Fee Interests. The District shall transfer to the City in fee simple title all
that real property depicted and legally-described in the grant deed attached as Exhibit “Cy’ hereto rJb 6‘
(“Fee Area”). All portions of the School Site, less the Fee Area, shall be referred to herein
“Remaining District Property.” All of the Fee Area described in Exhibit C as “Parcel A” fldf%4 shall be
subject to the District’s reserved easement rights over, under and across such property for the
following purposes: (i) access, utilities and drainage facilities to serve the Remaining District R
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Property; (ii) maintenance of the Remaining District Property; (iii) construction activities in
connection with construction on the Remaining District Property; (iv) with respect to property
lying outside the existing access easements underlying the (pre-transfer) westerly thirty (30) feet
of the School Site, any slopes or grading in connection with construction on the Remaining
District Property; and (v) with respect to property subject to the existing access easements
underlying the (pre-transfer) westerly thirty (30) feet of the School Site, if such easements
become no longer necessary to serve the real property currently benefitting therefrom, any slopes
or grading in connection with construction on the Remaining District Property. The District
shall not exercise such reserved rights in any manner that unreasonably interferes with the
construction, operation or maintenance of College Boulevard, Cannon Road, the Future
Intersection, the Detention Basin or any other improvements constructed by the Developer or the
City in the Fee Area (collectively, “Fee Area Improvements”).
(b) Inundation Easement. The District shall transfer to the City an inundation
easement over all that real property depicted and legally described in the deed of easement
attached as Exhibit “D” hereto (“Inundation Easement”). The Inundation Easement shall permit
flood-water resulting from natural precipitation to back up or flow onto the Remaining District
Property within the area subject to the Inundation Easement (“Inundation Easement Area”). The
Inundation Easement shall provide that the District retains all other rights with respect to the
Inundation Easement Area, including the rights, in its discretion, to grade and fill, and to
construct on, all or any portion of the Inundation Easement Area. The grant deed for the
Inundation Easement provides that the grant and easement will terminate automatically, without
further action of the Parties, as to any portion of the Inundation Easement Area that has been
graded to an elevation of 76 feet or higher. The intent of such language shall be to effect an
“adjustment” of the area subject to the Inundation Easement if and when all or any portion of the
Inundation Easement Area is graded and filled to an elevation of 76 feet or higher. In any such
event, the City shall not unreasonably refuse or delay taking such action as is necessary to record
documents evidencing the termination of the grant and easement (including, without limitation,
duly authorizing, signing and delivering to District one or more quitclaim deeds) with respect to
any such portion of the Inundation Easement Area that has been filled to an elevation of 76 feet
or greater.
Section 2. Condition of Title/Condition of Property. Developer’s obligation to pay
the Developer Payment shall be subject to the condition that title to all of the real-property
interests to be conveyed to the City from the District pursuant to Section 1 shall be subject to
only (i) those exceptions to title set forth in Schedule B of the preliminary title report order no.
1173041-6, issued by First American Title Insurance Company, dated as of November 25,2002,
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and attached hereto as Exhibit “E,” and (ii) a license for temporary water lines granted or to be
granted to Pacific Southwest Biological Surveys, Inc., in the form of Exhibit “F” attached hereto
(collectively, the “Permitted Exceptions). The District in no event shall be construed as or
deemed to be a guarantor of the title to the real-property to be conveyed to the City, and the City
may, if it desires, obtain a policy of title insurance from a title insurance company. The
District’s only obligation pursuant to this Section is that, prior to conveyance of same to the
City, the District shall not impose any new liens or encumbrances of any nature on the real
property interests to be so conveyed to the City, other than the Permitted Exceptions. The
District shall transfer all real property and real-property interests as described in Section 1 to the
City in an “as is” condition. The District does not make, and hereby expressly disclaims,
without limitation, any and all representations and warranties as to the environmental,
geological, physical or other condition of such property and property interests, whether express
or implied. Not later than fifteen (1 5) calendar days after signature and delivery of this
Agreement by all Parties, the District shall: (i) cause all leases or other occupancy agreements
affecting the real-property interests to be conveyed to the City from the District pursuant to
Section 1 , if any, to be effectively terminated with respect to such property; and (ii) cause the
barn, packing shed or other similar structures located in the Fee Area to be removed from such
area. The foregoing shall not be construed to require that the District remove any improvements
from such area other than above-ground buildings, if any such other improvements exist,
including, but not limited to, any pipelines, drainage facilities, other underground conduits or
facilities, and above-ground electrical or other facilities, whether known or unknown to the
District.
Section 3. Payment to District. Within ten (10) calendar days of the signature and
delivery of this Agreement by all of the Parties, the Developer shall pay to the District, in cash or
by cashier’s check, the sum of two hundred ninety-five thousand three hundred and sixty dollars
($295,360.00) (“Developer Payment”). Receipt of the Developer Payment shall constitute full
and final payment to the District in the amount of two hundred seventy-five thousand three
hundred and sixty dollars ($275,360.00) for the real property interests granted pursuant to
Section 1. Receipt of the Developer Payment shall also constitute full and final payment to the
District in the amount of twenty thousand dollars ($20,000.00) for costs incurred by the District
related to entering into this transaction. In no event (other than a failure in the delivery of title to
real property interests in the condition required under Section 2 above, which failure is
discovered on or before the conveyance of such title) shall the Developer or the City be entitled
to reimbursement of any portion of the amount paid to the District in exchange for such real-
property interests, including, without limitation, in the event of a termination of all or any
portion of the Inundation Easement. In no event shall the Developer or the City be entitled to
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reimbursement of any portion of the amount paid to the District to cover its costs of entering into
this transaction. Except for any other amounts for which the Developer and/or the City may
become liable pursuant to this Agreement, the Developer Payment shall constitute the full
payment of all monetary amounts due to the District in connection with this transaction.
Section 4. No Further District Obligation. Subject to satisfaction by the District of
its obligations pursuant to Section 1 of this Agreement, the District shall be deemed to have fully
satisfied any and all obligations to the City, if any, related to fkding of all portions of College
Boulevard and Cannon Road (including, without limitation, construction, land acquisition and
utilities) other than any future extension of Cannon Road along the southerly boundary of the
School Site from the Future Intersection generally toward the north-east (“North-East Cannon
Extension”). With respect to all portions of College Boulevard and Cannon Road other than the
North-East Cannon Extension, the City shall not hereafter require any fee, exaction, assessment
or other charge, however characterized, in connection with development of or construction on
the Remaining District Property. Nothing in this Section shall be construed or deemed to be an
admission by the District that it is, or would have been, obligated in the foregoing manner.
Developer is not a party to the provisions of this Section 4, and nothing in this Section shall be
construed to impose on the Developer any obligation or liability to the District, or to impose on
the District any obligation or liability to the Developer.
Section 5. Utility Connections. The Parties acknowledge that sewer utility facilities
are presently located along the westerly boundary of the School Site (“Sewer Lines”). The plans
and specifications for construction of the Future Intersection and the other portions of College
Boulevard and Cannon Road, as described above, provide that the Developer will construct
water utility facilities therein, as depicted in Exhibit “G” attached hereto (“Water Lines”). The
City acknowledges and agrees that the District, upon undertaking construction on the Remaining
District Property, shall as appropriate be able to connect to and use the Sewer Lines and Water
Lines at some point(s) along, as applicable, the boundary or frontage of the Remaining District
Property. The City and the Developer agree that they shall not take any unreasonable action to
deviate from current plans, as set forth in Exhibit G, for construction of the Water Lines
(including, but not limited to, any unreasonable delay in construction) that will unreasonably
impair the District’s right to connect to and use the Water Lines at some point(s) along, as
applicable the boundary or frontage of the Remaining District Property.
Section 6. Access and Access Gate. If, at any time prior to completion of
construction of the Fee Area Improvements, the Developer blocks or prevents use of any existing
access routes (ingress and egress) to the Remaining District Property by the District or any
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tenants or lessees of the Remaining District Property, and there is no reasonably-equivalent
alternative access route available, then the Developer shall provide an alternative access route
over and across some portion of the real property subject to the interests granted to the City
pursuant to Section 1. The Developer shall not unreasonably restrict access by Holly Springs,
Ltd., owner of real property lying generally south of the School Site (“Holly Springs Property”),
which is entitled to access over and across a portion of the School Site pursuant to a temporary
easement recorded on August 26, 1998, as document number 1998-0543266. The Developer
shall install a gate in the location depicted on Exhibit B, in order to provide access to the
Remaining District Property and the Holly Springs Property after completion of the Future
Intersection. Unless a different standard is mandated by the City, such gate shall be constructed
of large-diameter (minimum 3 inches) heavy-gauge steel pipe, with underground vertical
support-members embedded in concrete, and shall be capable of being locked by means of
interlocking padlocks of various parties. Thereafter, such access shall remain available for use
by the District, Holly Springs and others until such time as completion of the extension of
Cannon Road toward the northeast from the intersection of Cannon Road and College Boulevard
provides public access to the Remaining District Property and the Holly Springs Property.
Section 7. Notice and Observation of Work. The Developer shall provide written
notice to the District: (i) prior to the initial commencement of construction of the Fee Area
Improvements by the Developer or any contractor, subcontractor, or other party acting on behalf
of the Developer (all such contractors, subcontractors, and other parties acting on behalf of the
Developer shall herein be referred to as the “Developer Representatives”); and (ii) promptly
following the completion of construction of the Fee Area Improvements.
Section 8. Condition of Remaining District Properg.
(a) No Entv on Remaining District Property. Neither the Developer nor any
other party shall enter the Remaining District Property, or conduct any construction or other
activities thereon, unless otherwise agreed to in writing by District. If, for any reason, Developer
or any Developer Representatives enters onto the Remaining District Property prior to the
completion of the Fee Area Improvements, then Developer shall repair and correct any damage
or disturbance to the Remaining District Property resulting from such entry.
(b) Removal of Construction Materials and Trashfiom Remaining District
Property. If any trash or construction materials relating to the construction of the Fee Area
Improvements are placed or become located on the Remaining District Property, then Developer,
at its sole cost, promptly shall remove such trash and construction materials from the Remaining
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District Property. Nothing herein shall be construed to permit Developer or any other party to
place or store any trash, materials or equipment on the Remaining District Property, even on a
temporary basis.
Improvements, the Developer shall not introduce or release any Hazardous Materials in, to,
from, under or on any portion of the Remaining District Property, or bring any Hazardous
Materials onto or across any portion of the Remaining District Property. For the purposes of this
Agreement, “Hazardous Materials” means any hazardous, explosive, radioactive or toxic
substance, material or waste that is regulated by any federal, State or local governmental
authority, including, without limitation, any material or substance that is regulated, defined or
listed as (i) a “hazardous waste,” “extremely hazardous waste,” “restricted hazardous waste,”
“hazardous substance,” “hazardous material,” “pollutant” or “contaminant” under any law, rule,
regulation, ordinance or court or administrative ruling, notice, order or decision, (ii) a petroleum
or a petroleum derivative, (iii) a flammable explosive, (iv) a radioactive material, (v) a
polychlorinated biphenyl, or (vi) asbestos, an asbestos derivative or an asbestos containing
material.
(c) Hazardous Materials. During the construction of the Fee Area
Section 9. Indemnification of District By Developer. All persons who, for any
reason whatsoever, enter in and upon any portion of the Remaining District Property do so at
their own risk, and shall comply with all necessary and reasonable instructions and directions of
the District with respect to use of the Remaining District Property. As a material part of the
consideration for this Agreement, the Developer hereby agrees to indemnify, defend and hold the
District harmless (except to the extent of the negligence or willhl misconduct of the District or
any District Representatives) from and against any loss, damage, injury, accident, fire or other
casualty, liability, claim, lawsuit, cost or expense (including but not limited to attorneys’ fees
and costs) of any kind or character to any person or property arising or resulting from, or caused
by, the entry or presence on any portion of the Remaining District Property of the Developer or
any of the Developer Representatives prior to the completion of the Fee Area Improvements.
The Developer acknowledges and agrees that the District has no responsibility for loss of any
property belonging to the Developer or any of the Developer Representatives, by theft or
otherwise, except to the extent that such loss is caused by the District, and the District has no
obligation to provide any security with respect to any property belonging to the Developer or any
of the Developer Representatives. The rights and obligations set forth herein shall not be
deemed or construed to be limited by any insurance obtained or maintained by any of the Parties,
or by the coverage limits thereof. The rights and obligations set forth in this provision shall
survive expiration or termination of this Agreement.
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Section 10. Indemnification of City By Developer. The Developer hereby confirms to
City that the obligations of Developer to City pursuant to the Subdivision Improvement
Agreement CT 00-02, executed by Developer as of October 4,2002, remain in effect and
binding upon Developer, and Developer specifically acknowledges and agrees that its
obligations to indemnify the City pursuant to Paragraph 17 of the Subdivision Improvement
Agreement are applicable to acts or omissions by the Developer pursuant to this Agreement.
Section 11. Indemnification of City By District. As a material part of the
consideration for this Agreement, the District hereby agrees to indemnify, defend and hold the
City harmless, except to the extent of the negligence or willful misconduct of the City, or any
employee, agent, contractor, subcontractor, or other party acting on behalf of the City
(collectively, “City Representatives”), from and against any loss, damage, injury, accident, fire
or other casualty, liability, claim, lawsuit, cost or expense (including but not limited to attorneys’
fees and costs) of any kind or character to any person or property arising or resulting from, or
caused by, the entry or presence on any portion of the Fee Area of the District or any of the
District Representatives prior to the completion of the Fee Area Improvements. The District
acknowledges and agrees that the City has no responsibility for loss of any property located in
the Fee Area belonging to the District or any of the District Representatives, by theft or
otherwise, except to the extent that such loss is caused by the City, and the City has no
obligation to provide any security with respect to any property belonging to the District or any of
the District Representatives. The rights and obligations set forth herein shall not be deemed or
construed to be limited by any insurance obtained or maintained by any of the Parties, or by the
coverage limits thereof. The rights and obligations set forth in this provision shall survive
expiration or termination of this Agreement.
Section 12. Incorporation of Recitals and Exhibits. Each Recital stated herein, and
each Exhibit referenced herein or attached hereto, is incorporated into and is an effective and
operative part of this Agreement.
Section 13. Interpretation Guides. In interpreting this Agreement, it shall be deemed
to have been prepared by the Parties jointly, and no ambiguity shall be resolved against a Party
based on the premise that such Party or its attorneys were responsible for drafting this
Agreement or any provision hereof. The captions or headings set forth in this Agreement are for
reference purposes only and in no way define, limit, or describe the scope or intent or any
Sections, Subsections, or other provisions of this Agreement. Any reference in this Agreement
to a Section or Subsection, unless specified otherwise, shall be a reference to a Section or
Subsection of this Agreement.
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Section 14. Amendments Must Be In Writing. This Agreement may not be modified
except by means of a duly authorized, signed and delivered written document.
Section 15. Entire Agreement. This Agreement contains the entire agreement and
understanding concerning the subject matter set forth herein, and this Agreement supersedes and
replaces all prior negotiations and proposed agreements, written or oral, except as they are
included in this Agreement. Each Party acknowledges that neither the other Parties nor their
agents or attorneys have made any promise, representation, or warranty whatsoever, express or
implied, not contained herein to induce the execution of this Agreement and that this Agreement
has not been executed in reliance upon any promise, representation, or warranty not contained
herein.
Section 16. Representation by Independent Counsel. The Parties agree and
acknowledge that each Party has been represented by independent legal counsel of its own
choice throughout all negotiations preceding the signing and delivery of this Agreement, and that
each Party has signed and delivered this Agreement with the consent of, and upon the advice of,
its own legal counsel.
Section 17. No Third Party Beneficiaries. This Agreement is entered into solely for
the benefit of the Parties, and no other person or entity shall be entitled, directly or indirectly, to
base any claim or to have any right arising from, or related to, this Agreement.
Section 18. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the duly authorized successors and assigns of the Parties.
Section 19. Severability. If any part of this Agreement is held to be void, illegal or
unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be
given effect to the fullest extent reasonably possible.
Section 20. Venue for Resolving Disputes. Any arbitration, litigation or other
proceeding arising out of this Agreement shall be conducted only in the County of San Diego.
Section 21. Caluornia Law Governs. This Agreement and all rights and obligations
arising out of it shall be construed in accordance with the laws of the State.
Section 22. Notices. All notices, demands, and communications between the Parties
shall be duly addressed as indicated below and delivered via: (i) personal delivery (delivery
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receipt requested); (ii) registered or certified mail (postage prepaid and return receipt requested);
(iii) Federal Express or other reliable private express delivery; or (iv) facsimile transmission
(with original sent via first-class U.S. mail within twenty-four (24) hours). Such notices,
demands, or communications shall be deemed given only upon receipt by the addressee. Any
Party to this Agreement may change its below-specified name, address, facsimile number, or
person to whom attention should be directed by giving notice as specified in this Section. A
copy of any notice, demand, or communication sent to a Party shall also be sent to that Party’s
legal counsel. Notices, demands, and communications shall be addressed as follows:
To District: To District’s Legal Counsel:
Carlsbad Unified School District Bowie, Arneson, Wiles & Giannone
Attn: Gaylen Freeman, Asst. Superintendent Attn: Brian W. Smith
801 Pine Avenue 4920 Campus Drive
Carlsbad, CA 92008-2439 Newport Beach, CA 92660
Fax No. (760) 729-9685 Fax No. (949) 851-2014
To City: To City’s Legal Counsel:
City of Carlsbad Office of the City Attorney
Attn: Glenn Pruim, Deputy Public Works Director Attn: Ronald R. Ball
163 5 Faraday Avenue 1200 Carlsbad Village Drive
Carlsbad, CA 92008 Carlsbad, CA 92008
Fax No. (760) 602-8562 Fax No. (760) 434-8367
To Develouer:
Calavera Hills 11, LLC
Attn: Brian Milich
2727 Hoover Avenue
National City, CA 91950
Fax No. (619) 336-3596
To Develouer’s Legal Counsel:
Hogan, Guiney, Dick
Attn: W. Terrance Guiney
225 Broadway, Suite 1900
San Diego, CA 92101
Fax No. (619) 234-6466
Section 23. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which shall constitute one and the same instrument.
Section 24. Effective Date. This Agreement shall be effective as of the date noted on
page one (1) of this Agreement.
Section 25. Term. This Agreement shall terminate upon the earlier of: (i) three years
from the Effective Date; or (ii) the recording of a notice of completion for construction of the
Fee Area Improvements. However, in no event shall termination of this Agreement be deemed
or construed to terminate or obviate any obligations or provisions herein that logically should
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I5
survive termination of this Agreement (e.g., indemnification for matters occurring within the
period an indemnification provision is applicable, access to the Remaining District Property and
Holly Springs Property, and District rights to utility connections).
Section 26. Due Authority of Signatories. Each individual signing this Agreement
warrants and represents that he or she has been duly authorized by appropriate action of the Party
that he or she represents to enter into this Agreement on behalf of such Party.
In Witness Whereof, the undersigned execute this Agreement on behalf of the Parties.
Carlsbad Unified School District
By:
Print Title: fi L/~R
I
Approved as to Form:
Bowie, Ameson, Wiles & Giannone
By:
Approved as to Form:
Ronald R. Ball, Carlsbad City Attorney
By: +h4&2&m
Brian W. Smith, Attorneys for eputy City Attorney
the Carlsbad Unified School District
Calavera Hills 11, LLC
a California Limited Liability Company
By:
By:
By:
Its Manager, McMillin Companies, L.L.C.
Print Title: 5 u,p
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Print Na
Print Tit
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McMillin Land Development A Corky McMlllln Company
1 STATE OF CALIFORNIA }ss.
COUNTY OF SAN DIEGO 1
On Feb. 28,2003 , before me, Brenda N. Henderson, Notarv Public
personally appeared Brian Milich & Don Mitchell, personally known to me to be the persons
whose names are subscribed to the within instrument and acknowledged to me that they
executed the same in their authorized capacities, and that by their signatures on the instrument
the persons or the entity upon behalf of which the persons acted, executed the instrument.
WITNESS my hand and official seal.
Signatur
This area for Maal notarial seal
Calavera Hills II. LLC Agreement for Transfer of Real ProDertv Interests for Road Construction bv and
between The Carlsbad Unified School District and the Citv of Carlsbad
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At4 A\ A bt\ At\
McMillin Rdty McMillin Mortgage McMillin Land Development McMillh Homes McMillin Commercial
CORPORATE OFFICE 2727 HOOVERAVENUE NATIONAL CITY, CA 91950 TEL (619) 4774117 FA% (619) 336-3112 W.mmillin Mm
Notary Form2 McMillin Companies