HomeMy WebLinkAboutTreetops Unlimited; 1980-02-05;FINANCING AND SEWER
CONNECTION FEE AGREEMENT
THIS AGREEMENT is made and entered into by and between
TREETOPS UNLIMITED, a joint venture composed of Pacific Scene,
Inc. , a California corporation and Financial Scene, Incorporated,
a California corporation (hereinafter "Treetops") and LAKE
CALAVERA HILLS ASSOCIATES, a limited partnership, (hereinafter
"Calavera" ) , with regard to the following facts:
A. Calavera is the owner of a portion of certain unim-
proved real property in the City of Carlsbad commonly known as
Lake Calavera Hills (the "Project"), and more specifically
described on Exhibit "A" attached hereto and by this reference
incorporated herein.
B. Treetops is the owner of a portion of the Project and
has certain agreements to purchase other portions of the Project
from Calavera.
C. In order for the Project to be developed, Calavera has
been in negotiations with the City of Carlsbad to construct a
sewage treatment plant which would provide sewer to the Project
as well as other real, property. Said negotiations have been
successful and Calavera and the City of Carlsbad have entered
into an agreement entitled "Agreement Between City of Carlsbad,
California and Lake Calavera Hills Associates for Construction
of a 1.2 Million Gallon Capacity Sewage Treatment and Wastewater
Reclamation Facility and Necessary Appurtenances and to Provide
for the Financing and Reimbursement for Costs of Oversizing
Thereof" dated December 26, 1979, and which is by this reference
incorporated herein as though set forth in full (hereinafter
said agreement is referred to as the "Sewer Agreement").
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D. Treetops has an interest in obtaining sewer con-
nections for its proposed development of the real properties
which it either owns or will own within the Project.
E. Treetops desires to help Calavera meet its obliga-
tions under the Sewer Agreement because it is in the mutual
interest of both parties.
F. Calavera desires to receive subject to the terms and
conditions provided herein $1,000,000.00 for the sole purpose
of providing funds necessary to construct the sewage treatment
plant required of it in the Sewer Agreement, and Treetops is
desirous of providing such funds under the terms and conditions
of this Agreement.
NOW, THEREFORE, IN CONSIDERATION of the mutual promises
and other good and valuable consideration, the parties agree
as follows:
1. Treetops hereby agrees to make available to Calavera
One Million Dollars ($1,000,000.00) for the sole and exclusive
purpose of constructing the sewage treatment plant as provided
in the Sewer Agreement. All costs, fees or charges of any kind
whatsoever incurred to obtain and provide said One Million
Dollars, including but not limited to standby fees, loan
commitment fees, offsetting deposits or reserves, loan fees,
fund control charges and interest, shall be paid by and be
the sole and exclusive responsibility of Treetops so as to
provide to Calavera the full One Million Dollars.
2. Calavera agrees to use the funds for the follow-
ing purposes only:
Payment of all costs and expenses specifically
provided for in Paragraphs A and B of Section 2 of
the Sewer Agreement including but not limited to the
costs and expenses relating to the development and
acceptance of the plans and specifications for the
"Project" as that term is used in said Agreement,
the construction costs and expenses for the
"Project" as that term is used in said Agreement,
the conducting of percolation tests as required by
that Agreement, and all professional fees, applicable
permit fees, taxes (excluding income taxes) and
other assessments directly related to the "Project"
as that term is used in said Agreement.
3. The payment of the monies provided for herein shall
be in accordance with a Fund Control to be established with
Western Fund Control. The parties hereto agree to execute such
Fund Control Agreement consistent with this Agreement, which
agreement shall be in form and substance of that certain agree-
ment marked Exhibit "B" attached hereto and by this reference
incorporated herein. The parties acknowledge that the Fund
Control Agreement must be executed and the fund control
established thereunder prior to the payment of any monies in
accordance with this Agreement.
4. Calavera hereby agrees that for each $1,000.00
actually provided by Treetops and used by Calavera under
the terms of this Agreement, Calavera shall provide one
sewer connection from its reserved 41.77% of plant capacity in
the completed sewage treatment plant to Treetops without
additional cost or expense on the part of Treetops for such
sewer connection fees as may be charged others at the time of
the request, except as to any fees levied by the City of
Carlsbad pursuant to. Section 7K of the Sewer Agreement.
5. Calavera further agrees that Treetops shall have
the right for up to 457 additional sewer connections to the
completed sewage treatment plant from Calavera's reserved
41.77% of plant capacity provided however Treetops pays to
Calavera an amount equal to the then current connection fees
required by the City of Carlsbad for the number of additional
connections acquired.
6. This Agreement is subject to the following con-
ditions subsequent:
— 3—
a. Calavera agrees to construct and complete the
terms and conditions of the Sewer Agreement on or
before December 31, 1980, provided, however, said
date shall be extended for periods of delay beyond
the control of Calavera including, but not limited
to, delays caused by any discretionary approvals of
governmental agencies, including but not limited to,
the California Coastal Zone Commission; provided
further that Calavera shall use its good faith best
efforts to expedite the construction and minimize
any such delays.
b. Safeco Title Insurance Company escrow Nos.
8-22302-P and 8-22303-P by which Treetops is purchas-
ing certain real property from Calavera shall close in
accordance with their terms and conditions.
In the event either a or b of this Paragraph does not occur,
Calavera hereby agrees to repay the sums actually drawn by
Calavera from fund control in accordance with this Agreement by
executing a promissory note and deed of trust on Safeco Title
Insurance Company's standard form. Said promissory note shall
be in the principal amount equal to the sums actually drawn
by Calavera from Fund Control less $1,000.00 for each sewer
connection to which Treetops in its sole discretion determines
it shall retain the right in accordance with this Agreement.
Said deed of trust shall encumber selected real property then
owned by Calavera within the Project having a fair market value
of $1,000,000.00 or more after deduction of encumbrances, if any,
and shall have a due on sale clause. Subject only to the limita-
tions set forth in the preceding sentence, Calavera shall have
the right in its sole discretion to select the specific real
property to constitute the security. The promissory note shall
bear interest on the unpaid principal amount at the rate of ten
percent (10%) per annum and shall be payable upon the following
terms: interest only payable on the anniversary date of execution
of said note; principal and accrued interest all due and payable
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in five years; Calavera to have privilege to prepay in whole
or in part at any time without penalty.
7. As security for the full performance of Para-
graphs 4 and 5 of this Agreement, Calavera hereby assigns
for security purposes to Treetops its right, title and
interest in and to 1457 sewer connections under its rights
in accordance with Paragraph A of Section 3 of the Sewer
Agreement. Calavera agrees to seek the consent of the City
of Carlsbad to such assignment as required by the Sewer Agree-
ment and agrees to execute in form presented by Treetops a
UCC-1 Financing Statement which shall be filed with the
Secretary of State of California.
8. Calavera and Treetops agree that the rights, duties
and obligations of the Sewer Agreement run with the land owned
by Calavera within the project, that this Agreement is intended
by the parties hereto to be consistent with and authorized by
the covenants and agreements of the Sewer Agreement and that
Calavera1s undertakings herein are subject to all of the
restrictions, covenants and agreements of the Sewer Agreement.
9. Treetops expressly acknowledges Section 9E of the
Sewer Agreement, which in part provides as follows:
"If* prior to the completion of the project
Developer conveys any land located within Calavera
Hills to any person, such conveyance shall expressly
include a provision that the grantee shall assume a
proportionate share of Developer's obligations under
this agreement. Said provision shall be approved by
City prior to the grant."
In addition to assumption of a proportionate share of
Calavera1s obligations pursuant to Section 9E of the Sewer
Agreement, Treetops shall also have, in the event of failure
of Calavera to complete the project in accordance with the
Sewer Agreement, the right, but not the obligation, to
complete the project in accordance with the Sewer Agreement.
10. This Agreement shall become effective upon the close
of that certain escrow held at Safeco Title Insurance Company,
escrow No. 8-22303-P and establishment of the Fund Control
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provided for in Paragraph 3 herein. This Agreement shall
terminate upon fulfillment of its terms or December 31, 1983,
whichever shall first occur. Upon default, Treetops and
Calavera shall, in addition to any other rights and remedies
each may have, have the right to specifically enforce the
terms and obligations of this Agreement.
11. In the event of the bringing of any action or
suit by a party hereto against the other party hereunder by
reason of any breach of any of the covenants, conditions,
agreements or provisions on the part of the other party arising
out of this Agreement, the prevailing party in such action or
suit shall be entitled to have and recover of and from the
other party all costs and expenses of suit, including reason-
able attorney's fees.
12. All notices or other communications required or
permitted hereunder shall be in writing and shall be sent by
registered or certified mail, return receipt requested, and
shall be deemed received seventy-two (72) hours after deposit
in the mail, postage prepaid, addressed to the person to
receive such notice at the following addresses:
To Calavera: Lake Calavera Hills Associates
1207D Elm Avenue
Carlsbad, California 92008
Attention: Roy J. Ward
To Treetops: Mr. Wes Mudge
Pacific Scene, Inc.
2505 Congress
San Diego, California 92110
Notice of change of address shall be given by written notice
in the manner detailed in this Paragraph 12.
13. All of the covenants, agreements, representations
and warranties made by any party to this Agreement or in any
document delivered or to be delivered pursuant hereto or in
connection with the transactions contemplated hereby, if the
context thereof requires or implies, shall survive the term
of this Agreement.
14. This Agreement may not be assigned by either
party without the prior written consent of the other party,
which consent shall not be unreasonably withheld.
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15. This Agreement shall be binding upon and shall inure
to the benefit of the successors and assigns of the parties
hereto.
16. Calavera and Treetops agree to execute all such other
documents and instruments as may be reasonably required in order
to consummate the transaction herein contemplated and shall use
their best efforts to accomplish the purpose of this Agreement in
accordance with the provisions hereof.
17. This Agreement contains the entire agreement between
the parties hereto, and no addition or modification of any term
or provision shall be effective unless set forth in writing and
signed by both parties.
18. Time is of the essence of each and every term, con-
dition, obligation and provision hereof.
19. This Agreement may be executed simultaneously in
counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF the parties hereto have executed
this Agreement on the •-• ~7H day of February, j 1980 at Carlsbad,
California.
LAKE CALAVERA HILLS ASSOCIATES
Roy Jy/Wafid, General Partner
TREETOPS UNLIMITED, a joint venture
By FINANCIAL SCENE, INCORPORATED
By
BY PACIFIC SCENE, INC.
CONSENT
The undersigned, the City of Carlsbad, California, a
municipal corporation, hereby consents to the assignment by
Calavera to Treetops as provided in Paragraph 7 of this
Agreement in accordance with Paragraph E of Section 9 of the
Sewer Agreement.
Dated: Q-flNJ. J21 Ufai
CITY OF CARLSBAD, a municipal
corporation of the State of
California
ATTEST:
A
By
/j&*i~
Daniel S. HentschKfl^Assistant
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EXHIBIT "A"
Calavera Portion of the Project
Legal Description
, X C C
Page 1 of 2
EXHIBIT "A1
Those portions of Lots "D", "E" and "J" 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, 18S6, being more particularly described as
Parcel 1-A, Parcel 1-B and Parcel 2, as follows:
PARCEL 1-A:
Comraencing at the Southeast corner of said Lot "J"; thence along the
Southerly prolongation of the Easterly line of said Lot "J", South
01°42t41" West, 1094.02 feet to the Southeasterly corner of land described
in deed to LAKE CALAVERAS HILLS ASSOCIATES, recorded April 7, 1977 as
File No. 77-128086; thence along the boundary of said land as follows:
North 89°25'10" West, 1769.82 feet; and North 00°34'50" East, 809.80
feet; thence leaving said boundary, continuing North 00°34'50" East,
1049.00 feet to the TRUE P033JT OF BEGINNING; thence North 59009'50"
East, 587.00 feet; thence North 43°29150" East, 339.00 feet; thence
South 85°48I56" East 71.78 feet to a point on the arc of a 1000.00 foot
radius curve, concave Northwesterly; a radial line of said curve bears
South 75°17'40" East to said point; thence Northeasterly along the arc
of said curve through a central angle of 33°19'32" a distance of 581.64 .
feet; thence tangent to said curve North 18°37I12" West, 273.62 feet;
thence continuing North 18°37'12" West, 310.00 feet; thence North 31°37*23'*
West 372.70 feet; thence North 01°04'50" East, 105.00 feet; thence North
79°14'50" East, 650.00 feet; thence South 87°15I10" East, 740.00 feet;
thence South 71°31'39" East, 651.98 feet; thence North 29°40'59" East,
420.00 feet; thence North 59°02'50" West, 373.81 feet; thence North
80°35'00" West, 1240.00 feet; thence North 21°05'00" West, 444.98 feet
to the beginning of a tangent 50.00 foot radius curve, concave Southeasterly;
thence clockwise along the arc of said curve through a central angle of
129°05'00" a distance of 112.65 feet; thence tangent to said curve South
72000'00" East, 88.57 feet to the beginning of a tangent 50.00 foot
radius curve, concave Northerly; thence counter clockwise along the arc
of said curve through a central angle of 72°07T09lf a distance of 62.94
feet to the beginning of a reverse 2000.00 foot radius curve; thence
Northeasterly along the arc of said curve through a central angle of
15°36'44" a distance of 544.97 feet to the Easterly line of said Lot
"J", being also the Southeasterly corner of land described in Parcel 1
in deed to DON N. BOWKER as Trustee of the ANN B. LEWIS TRUST under
Trust Agreement dated June 1, 1970, said deed being recorded September
8, 1976 as File No. 76-294346, and being also a point herein designated
as Point "X"; thence along the Southeasterly line of said land South
70°04'37" West (deed = South 67?00'00" West) 2666.57 feet; thence leaving
said Southeasterly line South 28°37'41" East, 543.34 feet; thence South
02°54I50" West 350.00 feet; thence South 17°25'10" East, 430.00 feet; ;
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Page 2 of 2
thence South 24°25'10" East, 490.00 feet; thence South 10°32'10" West,
257.93 feet; thence South 24°25'10" East 430.00 feet; thence South
4S°05'12" East, 200.00 feet; thence South 24°25'10" East, 300.00 feet to
the TRUE POINT OF BEGINNING.
PARCEL 1-8:
Beginning at said Point "X" being also a point on the Westerly line of
said Lot "D"; thence North 59°51!59" East 804.25 feet; thence North
13°27'33" West 360.00 feet to the Northerly line of land described in
Parcel 1 in deed to DON N. BOWKER as Trustee of the MARTHA KILLEFER
TRUST under Trust Agreement dated February 27, 1962, said deed being
recorded September 8, 1976 as File No. 76-294347; thence along said
Northerly line South 89°19'04" West (deed - South 89°19'35" West) 790.00
feet to the Westerly line of said Lot "D"; thence along said Westerly
line South 13°27'30" East, 765.48 feet to the Point of Beginning.
PARCEL 2: .
Commencing at the Southeast corner of said Lot "J"; thence along the
Southerly prolongation of the Easterly line of said Lot "J"; South .?;
01°42'41" West, 484.02 feet to an angle point in the Northeasterly
boundary of land described in deed to LAKE CALAVERAS HILLS ASSOCIATES,
recorded April 7, 1977 as File No. 77-128086; thence along said Northeasterly
boundary North 23°15'45" West, 720.30 feet to the TRUE POINT OF BEGINNING;
thence continuing along said Northeasterly boundary.as follows: .North .
23°15'45" West, 85.00 feet to an angle point therein; and North 34°33'bo"
West, 692.00 feet to a point on the arc of a non-tangent 680.00 foot
radius curve, concave Northwesterly, a radial line of said curve bears
South 17°20'00" East to said point; thence leaving said Northeasterly
boundary Northeasterly along the arc of said curve through a central
angle of 92°09'20" a distance of 1093.72 feet; thence leaving said
curve, non-tar.gent North 07°27'42" East, 19.63 feet; thence North 69°28'42"
East, 751.12 feet to a point on the arc of a non-tangent 1000.00 foot
radius curve, concave Southeasterly, a radial line of said curve bears
South 83°04'37" West to said point; thence Southerly along the arc of
said curve through a central angle of 17°17"56" a distance of 301.92
feet; thence tangent to said curve South 24°13'39" East, 770.00 feet;
thence South 08°46'21" West 980.00 feet; thence North 81°13'39" West
210.00 feet; thence South 48°/i6'21" West, 250.00 feet; thence North
4B°43'39" Wfsi, 335.00 feet; tlu-nco North 78014'59" West 319.91 feet to
the TRUE POINT OF BEGINNING.
AMENDED
DR:FBD:ba
1-16-80
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EXHIBIT "B"
FUND CONTROL
- WESTERN OF SAN DIEGO FUND CONTROL, INC.
-2745 Tidelonds Ave., National City, CA. 97050
* WESTERN #08367 LA
WESTERN LUMBER OFFICES
P. O. Box H
NATIONAL CITY. CA. 92OSOFUND CONTROL AGREEMENT 474.3341 262-996.
TO: WESTERN OF SAN DIEGO FUND CONTROL. INC., hereinafter referred to as "Control."
In consideration of your services in handling the funds placed with you for (Construction) tfanpr.BreHcneaJ& of
kork«Hg:xoul improvements ^raHtfxsestfsscisciwasjj^ (being built by) La^e Calavera H^lls Assoc, A
Ltd. Partnership. Roy J. Ward, General Partner ______________ ___ Owner'"' '
__ , ____ _ ___
Sewer Plant at Lake Calavera Hills
Lot Block
property legally described as follows:
Add
hereinafter referred to as the "job". Control shall receive as compensation for its services
hereunder the sum of $ fr.99*_99- fo he deducted from the funds as soon as they are placed in the hands of
Control.
The sum of $ 1,000,000.00 will be deposited in accordance with the following schedule:
Monthly Itemized Request by Western Fund Control
The undersigned hereby assign to Control and authorize and instruct Treetops Unlimited, A Jt Venture.
Financial Scene Incorporated and Pacific Scene, Inc. 2505 Congress, San Diego, Ca 92110
' 'to disburse to Control any and all proceeds from any construction or improvement loan relating to the job.
You are instructed to disburse said funds only upon the written order of
Roy J. Ward or Wes Mudge or Wil. Johnson ,
who agrees to order disbursement of funds only in payment of the cost of labor, materials, services, permits, fees,
or other items of expense incurred in performing the job and not otherwise. You are authorized to presume any writ-
ten order executed by the personj(s) authorized herein is given in accordance with the terms of this agreement and
that funds disbursed pursuant to said order are for the purposes stated therein.
Contractor agrees that he shall not assign any of his rights to funds held under this agreement without the written
consent of the Owner and Control.
Any extras or change orders negotiated for by the Owner and the Contractor shall be set forth in writing and shall
set forth a stipulated sum for each such extn or change. Any payment for extras or change orders shall be made into
the Fund Control prior to the performance of the extra work that may be called for. Any deletions that reduce the
contract price to Owner shall be refunded to ihc Owner on Contractor's written order on Control.
It is understood that these instructions cannot be revoked or modified without your consent.
Should any controversy arise between the undersigned, or any person, you shall not be required to take any action,
but may withhold all moneys, without interest, or other things deposited with you until such controversy shall be
determined by agreement of the parties or by proper legal process.
The undersigned, jointly and severally, agree to hold harmless, indemnify and defend Control from any and all
claims, demands, liabilities and suits of every kind and description, including those of the undersigned, made or
brought for, or on account of, or alleged to have resulted from Control's administration or disbursement of the
funds, or any act of Control, or arising out of this agreement, and further agree to pay Control's reasonable attor-
neys' fees and costs incurred with or without suit in connection therewith.
It is further understood and agreed that in accepting this position as Control you are not to be responsible for nor
guarantee that the job shall proceed, that the costs thereof shall be paid, or that the job will be performed in ac-
cordance with plans and specification, nor have any duty to inspect the job or to determine that any labor and
materials used in the job arc in accordant? with the plans and specifications, or to determine that any funds dis-
bursed are for the purposes stated in the written order directing disbursements. '
The Contractor shall have no right, title or interest in any of the funds held under this agreement until Contractor
certifies to Control that all cost of labor, materials, services, permits, fees and other items of expenses incurred in
performing the job have been paid and furnishes to Control an agreement indemnifying Control from any claim*
arising out of this agreement, including Control's reasonable attorneys' fees and costs incurred with or without suit.
However, Contractor shall be entitled to be reimbursed for cost of labor, materials, services, permits, fees and other
items of expenses incurred in performing the job which he certifies he has paid.
In the event of the death or legal disability of the Owner or Contractor, or any of them, you may. at your option
continue to act until completion of the construction contract or return all unexpended funds to the lender and there-
by be discharged of any further liability hereunder.
In the event there is no disbursement from the fund control account tor a continuous period of ninety days, you
may. but are not obligated to. disburse the entire balance thereof, with the consent of the lender, to the Owner
and thereby be discharged of any further liability hereunder.
This agreement is not made for nor intended to be for the benefit of anyone not a party to this agreement, induct
ing those furnishing labor or materials and any lender, but is made for and intended only lor the benefit of the
undersigned.
Dated this 18th day of January
ACCE
19 80 .11 National City
BY
Patrick
Person (s) Authorized to
Order Disbursements:
nderson, Assist. Fund
Control Manager
California
Lake Cal
A Lim
Hills Associa
artnership
Wes
Wil Johnson
la Boise Cascade Company
FIRST AMENDMENT TO
FINANCING AND SEWER CONNECTION
FEE AGREEMENT
THIS FIRST AMENDMENT is made and entered into by and between
TREETOPS UNLIMITED, a joint venture composed of Pacific Scene, Inc.,
a California corporation, and Financial Scene Incorporated, a
California corporation (hereinafter "Treetops"), and LAKE CALAVERA
HILLS ASSOCIATES, a limited partnership (hereinafter "Calavera"),
with regard to the following facts:
REC:TTALS_
A. Treetops and Calavera heretofore entered into that certain
Financing and Sewer Connection Fee Agreement dated February 5, 1980
("Agreement").
B. The Agreement is now in full force and effect in accordance
with its terms.
C. Treetops and Calavera have entered into Escrow No. 27928
at Transamerica Title Insurance Company, San Diego, California
("Escrow") for the acquisition by Treetops from Calavera of that
certain real property located in the City of Carlsbad, California,
more particularly described on Exhibit "A" attached hereto and made
a part hereof ("Property").
D. Treetops and Calavera wish to include the Property within
the Project (as defined in the Agreement) and to make certain other
amendments to the Agreement.
E. As a condition to the acquisition of the Property by Treetops
from Calavera, the City of Carlsbad must give its written consent
thereto, which is attached to this First Amendment.
c
NOW, THEREFORE, in consideration of the mutual promises and
other good and valuable consideration, the parties agree as follows:
1. The Property is added to the Project (as defined in the
Agreement) and Exhibit A to the Agreement is amended by adding
thereto that certain real property located in the City of Carlsbad,
California more particularly described on Exhibit A attached to this
First Amendment.
2. Paragraph 5 of the Agreement is amended by deleting there-
from the numerals "457" and inserting in lieu thereof the numerals
"590."
3. Paragraphs 1 and 2 of this First Amendment shall become
effective upon the close of the Escrow; provided, however, that
should the Escrow not close on or before February 28, 1981, Para-
graphs 1 and 2 of the First Amendment shall thereupon be of no
further force or effect. Paragraph 4 of this First Amendment
shall be effective upon the date hereof.
4. Paragraph 12 of the Agreement is amended by deleting
the name and address to which notices are to be sent "To Treetops"
and by inserting in lieu thereof the following:
"Mr. Russ Richards
Pacific Scene, Inc.
3900 Harney Street
San Diego, California 92110"
5. Except as specifically amended herein, the Agreement
shall remain in full force and effect according to its terms.
IN WITNESS WHEREOF, the parties hereto have executed this
First Amendment on the 3rd day of December, 1980.
LAKE CALAVERA HILLS ASSOCIATES,
a limited partnership
By
Roy ^/f. W&rd, General Partner
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/s
TREETOPS UNLIMITED, a joint venture
By: FINANCIAL SCENE INCORPORATED
By
By: PACIFIC SCENE, INC.
By
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c
EXHIBIT A
The land referred to herein is situated in the State of CALIFORNIA .
County of SAN DIEGO , City of CARLSBAD
and is described as follows:
THOSE PORTIONS OF LOTS "E" AND "J" OF RANCHO AGUA HEDIONDA, IN THE CITY
Or CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE
MAP THEREOF NO. 823, FILED. IN THE OFFICE OF THE COUNTY RECORDER OF SAN
DIEGO COUNTY, NOVEMBER 16, 1896, DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHWEST CORNER OF SAID LOT "J"; THENCE ALONG THE
SOUTHERLY PROLONGATION OF THE EASTERLY LINE OF LOT "J", SOUTH 01.DEGREES
42 MINUTES 41 SECONDS WEST, 1094.02 FEET TO THE SOUTHERLY LINE OF LAND
DESCRIBED IN PARCEL 3 IN DEED TO DON K. BOWKER AS TRUSTEE OF THE MARTHA
KILLEFER TRUST UNDER TRUST AGREEMENT DATED FEBRUARY 27, 1962, SAID DEED
BEING RECORDED SEPTEMBER 8, 1976 AS FILE NO. 76-294345 AND BEING THE
TRUE POINT OF BEGINNING; THENCE ALONG THE BOUNDARY OF SAID PARCEL 3 AS
FOLLOWS: NORTH 89 DEGREES 25 MINUTES 10 SECONDS WEST (DEED-NORTH 89
DEGREES 22 MINUTES 33 SECONDS WEST) 1769.82 FEET TO THE SOUTHWEST CORNER
OF SAID LAND; AND NORTH 00 DEGREES 34 MINUTES 50 SECONDS EAST
(DEED-NORTH 00 DEGREES 37 MINUTES 27 SECONDS EAST) 809.80 FEET; THENCE
LEAVING SAID BOUNDARY NORTH 21 DEGREES 12 MINUTES 30 SECONDS EAST,
455.73 FEET TO THE BEGINNING OF A TANGENT 958.00 FOOT RADIUS CURVE,
CONCAVE SOUTHEASTERLY; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE
THROUGH A CENTRAL ANGLE OF 15 DEGREES 47 MINUTES 30 SECONDS A DISTANCE
OF 264.04 FEET; THENCE TANGENT TO SAID CURVE NORTH 37 DEGREES 00 MINUTES
00 SECONDS EAST. 702.00 FEET TO THE BEGINNING OF A TANGENT 642.00 FOOT
RADIUS CURVE, CONCAVE NORTHWESTERLY; THENCE NOTHEASTERLY ALONG THE ARC
OF SAID CURVE THROUGH A CENTRAL ANGLE OF 10 DEGREES 53 MINUTES 10
SECONDS A DISTANCE OF 121.98 FEET; THENCE LEAVING SAID CURVE, SOUTH 60
DEGREES 37 MINUTES 32 SECONDS EAST, 25O.22 FEET; THENCE SOUTH 34 DEGREES
33 MINUTES 00 SECONDS EAST, 819.12 FEET; THENCE SOUTH 23 DEGREES 15
MINUTES 45 SECONDS EAST, 805.30 FEET TO THE SOUTHERLY PROLONGATION OF
THE EASTERLY LINE OF SAID LOT "J"; THENCE ALONG SAID PROLONGATION SOUTH
01 DEGREES 42 MINUTES 41 SECONDS WEST, 610.00 FEET TO THE TRUE POINT OF
BEGINNING.
EXHIBIT A
CONSENT
The undersigned, the City of Carlsbad/ California, a municipal
corporation, hereby consents (i) to the First Amendment to which
this consent is attached, (ii) to the conveyance of the Property
(described therein) to Treetops Unlimited, and (iii) to the assign-
ment by Calavera to Treetops as provided in Paragraph 7 of the
Agreement (as defined therein) in accordance with Paragraph E of
Section 9 of the "Sewer Agreement" referred to in the Agreement.
Dated:- £~ 0&
ATTEST:
CITY OF CARLSBAD, a municipal
corporation of the State
of California
By
Daniel S. Hemschke, Assistant
w
FIRST AMENDMENT TO
FINANCING AND SEWER CONNECTION
FEE AGREEMENT
THIS FIRST AMENDMENT is made and entered into by and between
TREETOPS UNLIMITED, a joint venture composed of Pacific Scene, Inc.,
a California corporation, and Financial Scene Incorporated, a
California corporation (hereinafter "Treetops"), and LAKE CALAVERA
HILLS ASSOCIATES, a limited partnership (hereinafter "Calavera"),
with regard to the following facts:
RECITALS
A. Treetops and Calavera heretofore entered into that certain
Financing and Sewer Connection Fee Agreement dated February 5, 1980
("Agreement").
B. The Agreement is now in full force and effect in accordance
with its terms.
C. Treetops and Calavera have entered into Escrow No. 27928
at Transamerica Title Insurance Company, San Diego, California
("Escrow") for the acquisition by Treetops from Calavera of that
certain real property located in the City of Carlsbad, California,
more particularly described on Exhibit "A" attached hereto and made
a part hereof ("Property").
D. Treetops and Calavera wish to include the Property within
the Project (as defined in the Agreement) and to make certain other
amendments to the Agreement.
E. As a condition to the acquisition of the Property by Treetops
from Calavera, the City of Carlsbad must give its written consent
thereto, which is attached to this First Amendment.
o
NOW, THEREFORE, in consideration of the mutual promises and
other good and valuable consideration, the parties agree as follows:
1. The Property is added to the Project (as defined in the
Agreement) and Exhibit A to the Agreement is amended by adding
thereto that certain real property located in the City of Carlsbad,
California more particularly described on Exhibit A attached to this
First Amendment.
2. Paragraph 5 of the Agreement is amended by deleting there-
from the numerals "457" and inserting in lieu thereof the numerals
"590."
3. Paragraphs 1 and 2 of this First Amendment shall become
effective upon the close of the Escrow; provided, however, that
should the Escrow not close on or before February 28, 1981, Para-
graphs 1 and 2 of the First Amendment shall thereupon be of no
further force or effect. Paragraph 4 of this First Amendment
shall be effective upon the date hereof.
4. Paragraph 12 of the Agreement is amended by deleting
the name and address to which notices are to be sent "To Treetops"
and by inserting in lieu thereof the following:
"Mr. Russ Richards
Pacific Scene, Inc.
3900 Harney Street
San Diego, California 92110"
5. Except as specifically amended herein, the Agreement
shall remain in full force and effect according to its terms.
IN WITNESS WHEREOF, the parties hereto have executed this
First Amendment on the 3rd day of December, 1980.
LAKE CALAVERA HILLS ASSOCIATES,
a limited partnership
By
Roy J./7WaJrd, General Partner
-2-
D***»
TREETOPS UNLIMITED, a joint venture
By: FINANCIAL SCENE INCORPORATED
By
By: PACIFIC SCENE, INC
By
7
-3-
•*»•*,
EXHIBIT A
The land referred to herein is situated in the State of CALIFORNIA •
County of SAN DIEGO . City of CARLSBAD
and is described as follows:
THOSE PORTIONS OF LOTS "E" AND "J" OF RANCHO AGUA HEDIONDA, IN THE CITY
OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE
MAP THEREOF NO. 823, FILED. IN THE OFFICE OF THE COUNTY RECORDER OF SAN
DIEGO COUNTY, NOVEMBER 16, 1896, DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHWEST CORNER OF SAID LOT "J"; THENCE ALONG THE
SOUTHERLY PROLONGATION OF THE EASTERLY LINE OF LOT "J", SOUTH Ol .DEGREES
42 MINUTES 41 SECONDS WEST, 1094.02 FEET TO THE SOUTHERLY LINE OF LAND
DESCRIBED IN PARCEL 3 IN DEED TO DON K. BOWKER AS TRUSTEE OF THE MARTHA
KILLEFER TRUST UNDER TRUST AGREEMENT DATED FEBRUARY 27, 1962, SAID DEED
BEING RECORDED SEPTEMBER 8, 1976 AS FILE NO. 76-294345 AND BEING THE
TRUE POINT OF BEGINNING; THENCE ALONG THE BOUNDARY OF SAID PARCEL 3 AS
FOLLOWS: NORTH 89 DEGREES 25 MINUTES 1O SECONDS WEST (DEED-NORTH 89
DEGREES 22 MINUTES 33 SECONDS WEST) 1769.82 FEET TO THE SOUTHWEST CORNER
OF SAID LAND; AND NORTH 00 DEGREES 34 MINUTES 50 SECONDS EAST
(DEED-NORTH 00 DEGREES 37 MINUTES 27 SECONDS EAST) 809.80 FEET; THENCE
LEAVING SAID BOUNDARY NORTH 21 DEGREES 12 MINUTES 30 SECONDS EAST,
455.73 FEET TO THE BEGINNING OF A TANGENT 958.00 FOOT RADIUS CURVE,
CONCAVE SOUTHEASTERLY; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE
THROUGH A CENTRAL ANGLE OF 15 DEGREES 47 MINUTES 30 SECONDS A DISTANCE
OF 264.04 FEET; THENCE TANGENT TO SAID CURVE NORTH 37 DEGREES OO MINUTES
00 SECONDS EAST, 702.00 FEET TO THE BEGINNING OF A TANGENT 642.00 FOOT
RADIUS CURVE, CONCAVE NORTHWESTERLY; THENCE NOTHEASTERLY ALONG THE ARC
OF SAID CURVE THROUGH A CENTRAL ANGLE OF 10 DEGREES 53 MINUTES 10
SECONDS A DISTANCE OF 121.98 FEET; THENCE LEAVING SAID CURVE, SOUTH 60
DEGREES 37 MINUTES 32 SECONDS EAST, 250.22 FEET; THENCE SOUTH 34 DEGREES
33 MINUTES 00 SECONDS EAST, 819.12 FEET; THENCE SOUTH 23 DEGREES 15
MINUTES 45 SECONDS EAST, 8O5.30 FEET TO THE SOUTHERLY PROLONGATION OF
THE EASTERLY LINE OF SAID LOT "J"; THENCE ALONG SAID PROLONGATION SOUTH
01 DEGREES 42 MINUTES 41 SECONDS WEST, 610.00 FEET TO THE TRUE POINT OF
BEGINNING.
EXHIBIT A
cTfc,*
CONSENT
The undersigned, the City of Carlsbad, California, a municipal
corporation, hereby consents (i) to the First Amendment to which
this consent is attached, (ii) to the conveyance of the Property
(described therein) to Treetops Unlimited, and (iii) to the assign-
ment by Calavera to Treetops as provided in Paragraph 7 of the
Agreement (as defined therein) in accordance with Paragraph E of
Section 9 of the "Sewer Agreement" referred to in the Agreement.
Dated:
ATTEST:
CITY OF CARLSBAD, a municipal
corporation of the State
of California
By
ke, Assistant