HomeMy WebLinkAbout1989-05-23; City Council; 10053; Purchase Land For New Carlsbad LibraryCf- OF CARLSBAD - AGENI~A BILL qi4 3 0 /fL
AB#/o. TITLE: DEPT. HD.
MTG. 5123189 PURCHASE OF LAND FOR lzz CITY All-Y
DEPT.LIB THE NEW CARLSBAD LIBRARY CITY MGR.~
RECOMMENDED ACTION:
Adopt Resolution No. m-/g approving purchase and sale agreement for
real property with Carlsbad Retail Associates and approving declaration
and reservation of access and reciprocal parking easements.
ITEM EXPLANATION
City staff has completed negotiations with Carlsbad Retail Associates for
the purchase of the library site that will be created as part of the Plaza
Paseo Real shopping center. The shopping center is being developed by
Carlsbad Retail Associates at the northwest corner of El Camino Real and
Alga Road. The 28 acre shopping center site will include a shopping
center of approximately 16.8 acres, a branch Post Office on 3.7 acres and
a City library on 6.8 acres. The project has received Planning Commission
and City Council approval and is scheduled to go before the Coastal
Commission in June. The purchase agreement contemplates Carlsbad Retail
Associates developing a finished, rough-graded lot for the City library.
Pursuant to the agreement, the City would take title to the property upon
completion of grading and installation of basic site improvements. Escrow
would not close until the City obtains a buildable lot with improved
access and utilities stubbed out to the property line. The site is
anticipated to be completed by March of 1990, at which time it is expected
that the City would take title to the property.
The agreement specifies a land purchase price of $1,253,221 for
approximately 6.85 acres. In addition to the basic land costs, the
agreement provides that the City will pay carrying costs and a
proportionate share of site development costs. It is estimated that the
total purchase price will be approximately $2 million. The final purchase
price will depend upon the actual site improvement costs, interest rates
and the final escrow closing date. All of these factors are subject to
review, audit and approval by the City prior to close of escrow.
In addition to approving the purchase agreement, Council is being asked to
approve a reciprocal parking agreement. The reciprocal parking agreement
will allow the users of the shopping center and the library to use certain
parking areas without concern of ownership. There are controls in the
agreement that would allow the library to restrict parking on city-owned
property at certain peak use periods so as not to interfere with library
use. Technically, the reciprocal parking agreement defines those areas
where library users can legally park on the shopping center parcel and
vice-versa. As a practical matter, it is contemplated that users of the
shopping center, post office and library will park wherever they find
convenient, and that the plan for this center provides adequate parking to
serve all uses. City staff is satisfied that the center is adequately
Page 2 of Agenda Bill No./0;033
parked and that there should be few parking conflicts. However, if
conflicts do arise, the City is in position to protect its library use
during those periods of time that provision of parking is critical to the
adequate functioning of the library facility.
The purchase has been reviewed for General Plan consistency, compliance
with the California Environmental Quality Act and is exempt from a
Proposition H vote since development fees are being used to fund the
purchase.
FISCAL IMPACT
A total of $2 million has been appropriated in the Capital Improvement
Budget for the acquisition of this property. The anticipated acquisition
costs of the property is $2 million. However, this is an estimate at this
time and the ultimate acquisition price could vary slightly from this
estimate.
EXHIBITS
1. Resolution No. FT-113 approving and acquisition agreement and
reciprocal parking easements.
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RESOLUTION NO. 89-173
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD,
CALIFORNIA, APPROVING A PURCHASE AND SALE AGREEMENT FOR REAL
PROPERTY AS THE SITE FOR THE CARLSBAD CITY LIBRARY, AND APPROVING
RECIPROCAL PARKING EASEMENTS WITH CARLSBAD RETAIL ASSOCIATES.
WHEREAS, the City of Carlsbad and Carlsbad Retail Associates have
prepared an agreement for the purchase and sale of real property on which
the city intends to construct the Carlsbad City Library from Carlsbad
Retail Associates; and
WHEREAS, the City Council of the City of Carlsbad desires to
acquire a parcel of property on which to construct a new city library; and
WHEREAS, the library master plan and the Growth Management Program
of the City of Carlsbad require the construction of a library to meet the
needs of the community.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
Carlsbad, California as follows:
1. That the above recitations are true and correct.
2. That the agreement between the City of Carlsbad and Carlsbad
Retail Associates which is attached hereto as Exhibit A is hereby
approved.
3. That the Declaration and Reservation of Access and Reciprocal
Parking Easements which is attached hereto as Exhibit B is hereby
approved.
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4. That the Mayor of the City of Carlsbad is hereby authorized
and directed to sign the agreement and easements on behalf of the City.
PASSED, APPROVED AND ADOPTED at a regular meeting of the City
Council of the City of Carlsbad, California on the 23rd day of May ,
1989, by the following vote to wit:
AYES: Council Members Lewis, Kulchin, Pettine, Mamaux and Larson
NOES: None
ABSENT: None
ATTEST:
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AGREEMENT
FOR
PURCHASE AND SALE OF REAL PROPERTY
JOINT ESCROW INSTRUCTIONS
BY AND BETWEEN
CARISBAD RETAIL ASSOCIATES
AND
THE CITY OF CARLSBAD, CALIFORNIA
EXHIBIT A
2588D:SHS 032189
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TABLE OF CONTENTS
I. RECITALS ...........................................
II. TERMS AND CONDITIONS ...............................
1. Purchase and Sale ............................
2. Purchase Price ...............................
3. Payment of Purchase Price ....................
4. Conditions Precedent to Close of Escrow ......
5. Approved Master Site Improvement Costs .......
6. Escrow Instructions ..........................
7. Closing ......................................
8. Conveyance and Condition of Title ............
9. Items to be Delivered at or Prior to Closing .
10. The City's Warranties ........................
11. Seller's Warranties ..........................
12. Prorations; Costs and Expenses ...............
13. Broker's Commissions .........................
14. Imdemnification ..............................
1s. Additional Assurances .........................
16. -Attorney's Fees ...............................
17. Entire Agreement ..............................
18. Notices .......................................
19. Counterparts ..................................
20. Captions ......................................
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21. Assignability .l.I.....I............II,.,.,...I a
22. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . 8
23. Time of the Essence ........................... 9
24. Escrow Holder’s Standard Provision ............ a
2s. Survival of Warranties ........................ 9
26. Reasonable Approvals .......................... 9
27. Section 1445 Certificate ...................... 9
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AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY AND JOINT ESCROW INSTRUCTIONS
This Agreement for Purchase and Sale and Joint Escrow Instructions (the "Agreement") is made and entered into this day of Joint 1989, by and between
CARLSEAD RETAIL ASSOCIATES, a Venture (hereinafter referred to as "Seller"), and THE CITY OF CARLSBAD, CALIFORNIA, (hereinafter referred to as the "City").
I RECITALS
A. Seller is the owner of certain real property located at the northwest corner of Alga Road and El Camino Real in Carlsbad, California consisting of approximately 28.57 acres (the "Master Parcel").
8. Seller is in the process of obtaining the necessary governmental approvals to record a parcel map over- the Master Parcel that will subdivide the Master Parcel into four parcels (sometimes hereinafter referred to as "Parcel l", "Parcel 2", "Parcel 3" and "Parcel 4")'. The location and approximate configuration (subject to governmental approval) of Parcel 1, Parcel 2, Parcel 3 and Parcel 4 is illustrated in the attached Exhibit "A".
Seller intends to construct on Parcel 3 a high quality rettil shopping center containing approximately 146,200 square feet of retail space.
D. The City desires to purchase Parcel 2 and construct a building on the site (the "Library Building") and operate a public library on the site. Parcel 2 shall hereinafter be referred to as the "Property".
-E. Seller believes that the construction and operation of a public library within the Master Parcel will enhance the attractiveness and usefulness of the Master Parcel
to the residents of Carlsbad.
F. The City believes that locating a public library within such a high quality shoppinq center complex will provide the citizens of the City with a convenient and pleasant environment for a library facility and will maximize the accessibility of the library to the community.
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G. Seller intends to deliver the Property to the City in a prepared condition as more particularly set forth in Section 5 below.
II TERMS AND CONDITIONS
NOW, THEREFORE, for valuable consideration, the sufficiency of which is hereby acknowledged, Seller and the City hereby agree as follows:
1. Purchase and Sale. Subject to the terms and conditions set forth herein, Seller hereby agrees to sell the Property to the City, and the City hereby agrees to purchase the Property from Seller.
2. Purchase Price. The purchase price for the Property (the "Purchase Price") shall be an amount equal to the sum of the following:
Cost"); plus (a) $1,253,221.20 (the "Basic Property
(b) The sum of amounts calculated each month for the period September 30, 1988, to the date of Close of Escrow for the sale of the Property to the City, which calculations shall be according to the following formula:
W The product of the Basic Property Cost and the interest rate actually charged to Seller (the "Actual Interest Rate") for the months being calculated for funds borrowed by Seller to purchase that portion of the Master Parcel which included the Property; plus
(ii) Property taxes assessed on the Property for said period; plus
(cl the product of (i) the Approved Master Site Improvement Cost (as such term is defined in section 5 below) and (ii) the result obtained by dividing the total amount of gross square feet in Parcel 2 by the total amount of gross square feet in the Master Parcel.
At the time of execution of this Agreement, the Actual Interest Rate is the Prime Rate of the Bank of Montreal
pius 318%. Seller anticipates obtaining a new loan in the near future under which the Actual Interest Rate may change in which case Seller shall notify the City of such change.
3. Payment of Purchase Price. The Purchase Price shall be paid all cash at Close of Escrow.
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4. Conditions Precedent to Close of Escrow. The obligation of the City to Close Escrow is subject to the satisfaction of the following special conditions:
(a) Seller shall obtain all entitlements to use for the -Master Parcel. Seller shall obtain necessary zoning and development approvals for the Master Parcel from the City and the California Coastal Commission.
(b) Seller agrees to construct certain on-site and off-site improvements (the “Master Site Improvements” 1 on the Master Parcel. The Master Site Improvements are more particularly shown on and described in the attached Exhibit "B". The City shall accept delivery of the Property upon close of escrow and upon substantial completion of the Master Site Improvements as shown on and described in Exhibit “B”.
,,substantially c~;~let~~ Master Site Improvements must be (as such term is defined below) within the time schedule set forth in the completion schedule attached hereto as Exhibit "C!" (the "Preliminary Site- Completion Schedule"). Completion dates set forth in the Preliminary Site Completion Schedule shall be extended for- labor strikes, material shortages, rain and other acts of God and other circumstances beyond the control of the City or Seller. In the event Seller fails to complete any of the Master Site Improvements on a timely basis, the City may deliver to Seller a written notice ("Notice of Failure to Timely Complete" 1 requesting that Seller complete said improvement within sixty (60) days of the date of delivery of the Notice of Failure to Timely Complete. In the event said improvement is not completed by the expiration of said sixty (60) day period, the City, at its option, may terminate this Agreement and cancel Escrow.
(d) For purposes of this Paragraph 6 the Master Site Improvements shall be deemed "substantially completed" at such time as the project civil-engineer and qualified inspectors from the City ("City Inspectors") so determine;- provided, however, in the event the project civil-engineer determines that the Master Site Improvements are "substantially completed" but the City Inspectors disagree, Seller may, at its option, request that the issue of - “substantial completion” be arbitrated by and under the rules of the American Arbitration Association which arbitration decision shall be binding on the parties.
5. Approved Master Site Improvement Costs.
(a) As stated in section 2(c) above, as part of the Purchase Price, the City shall pay to Seller a prorata portion of the "Approved Master Site Improvements" (as such
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term is defined below) said prorata portion being determined pursuant to the formula set forth in section 2(c) above.
(b) The “Approved Master Site Improvement cost “ is hereby defined as the lesser of (i) the actual cost of construction of the Master Site Improvements (as defined in the attached Exhibit “B”) or (ii) the amount of the “Ceiling Master Site Improvement Cost” (as defined below).
The Ceiling Master Site Improvement Cost shall be determined as follows:
Seller’s general contractor shall submit a guaranteed maximum cost for the cost of construction of the Master Site Improvements (as defined in the attached Exhibit “B”) based upon final engineering designs prepared by the Seller’s civil engineer in accordance with City approved plans and specifications. All plans, specifications and contractor pricing shall be approved by the City Engineer. The approved cost shall be the Ceiling Master Site Improvement cost. Increases in costs associated with changes in plans requested by the City shall increase the Ceiling Master Site Improvement Cost proportionately.
6. Escrow Instructions. To effectuate the terms and conditions of this Agreement, an escrow ("Escrow") shall be opened with Transamerica Title Insurance Company, 3033 5th Avenue, Suite 100, San Diego, California 92103 ( “Escrow Holder”) within two (2) business days from the execution hereof. Opening of escrow shall be deemed to have occurred when a fully executed copy of this Agreement has been delivered to Escrow Holder by Seller, and this Agreement shall serve as escrow instructions.
7. Closinq. The closing (the “Close of Escrow” 1 means the completion of the purchase, exchange of money and documents , recording of the Grant Deed and delivery of i;lffssion of the Property to the City. The Close of Escrow take place on or before the thirtieth (30th) day following the acknowledgment by the City that all conditions precedent set forth in paragraph 4 above have been waived or satisfied.
a. Conveyance and Condition of Title. Conveyance of the Property by Seller to the City shall be by a standard form Grant Deed in use in the State of California, in recordable form, duly executed and acknowledged by Seller, conveying to the City good and marketable title in fee simple to the Property, free and clear of any and all liens, encumbrances, conditions, easements, assessments, restrictions and other conditions, subject only to ( i) those except ions which are set forth in the attached Exhibit “D” (the “Agreed
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. Except ions” ) and, (ii) any additional exceptions approved in writing by the City (such additional exceptions sometimes hereinafter be collectively referred to as the “Permitted Exceptions” > .
9. Items to be Delivered at or Prior to Closinq.
(a) Seller shall deliver to Escrow Holder at or prior to the Close of Escrow, in a form and substance reasonably satisfactory to the City, a duly executed and acknowledged Grant Deed in recordable form customarily acceptable in similar transactions for conveying fee title to the Property.
(b) The City shall deliver to Escrow Holder not less than one (1) business day prior to the Close of Escrow (i) a cashier's check or wired funds in the amount of the Purchase Price less the amount of all reductions, adjustments and prorations in accordance with this Agreement.
Escrow Holder shall deliver (or commit to deliver) to th?)City at the Closing, a CLTA owner's title- insurance policy (the "insurance Policy") in the full amount of the Purchase Price payable hereunder, issued by the Escrow Holder, containing no exceptions other than the Agreed Exceptions and the Permitted Exceptions and insuring title to the Property.
10, The City's Warranties. The City has the full legal power, authority and right to execute and deliver, and to perform the City's obligations under this Agreement, and the City's performance hereunder and the transaction contemplated hereby have been duly authorized by all requisite action on the part of the City and no remaining action is required to make this Agreement binding upon the City.
11. Seller's Representations,
(a) The City shall rely solely upon the title policy referred to above as being the City's assurance regarding -the state of title. Seller's only representations with regard to the Property or the condition of plans, specifications, drawings, or government approvals regarding improvements heretofore made or proposed hereafter to be made to the Property are as set forth herein.
(b) Seller and the respective parties signing this Agreement on its behalf, have the full legal power, authority and right to execute and deliver, and to perform their obligations under this Agreement, and Seller's performance hereunder and the transactions contemplated hereby have been duly authorized by all requisite action on the part
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of Seller and no remaining action Agreement binding upon Seller. is required to make this
(cl No representation, warranty or statement of Seller in this Agreement or in any document, certificate or schedule furnished or to be furnished to the City pursuant hereto, or in connection with the transaction contemplated hereby, contains any untrue statement of a material fact or omits any fact which is necessary to make such statements not misleading.
(d) Seller is not aware in its search and inquiry of any defects to the Property (including the existence of toxic waste or toxic substances on or beneath the surface of the Property), of any pending or threatened litigation, claims or causes of action or other matters that would materially or adversely affect the Property, or any facts that would form the basis of any litigation, claim or cause of action that would materially or adversely affect the Property.
12. Closing Costs and Expenses. At the Closing, the following items shall be allocated in the manner specified: - .
taxes through tl$’ Taxes, Seller shall pay real property Close of Escrow; provided, however, if Seller has made a tax payment for periods that extend beyond the Close of Escrow, Seller shall be reimbursed for such excess payment.
(b) Escrow Fees. Seller and the City shall each pay one-half (l/2) of the usual escrow fees, and Seller shall pay the usual recording fees. Seller shall Pay documentary transfer taxes.
(cl Title Insurance. Seller shall pay the cost of a standard coverage CLTA owner’s policy of title insurance.
(d) Disbursements. All costs and expenses payable hereunder shall be disbursed by Escrow Holder to the ;f;~;; payee (including itself) from funds deposited into 1
13. Brokers ’ Commissions. Each party represents and warrants to the other that it has not engaged or employed or otherwise incurred any other obligation to any agent, broker or finder with respect to this Agreement or the purchase and sale of the Property. The City and Seller will each indemnify the other against and hold it harmless from any claim for any fee, commission or other compensation made by any person or entity claiming to have been employed, engaged or otherwise retained by the indemnifying party.
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14. Indemnification. indemnify The City and Seller shall and hold harmless against any loss, the other non-breaching party liability and damage, including reasonable attorneys ’ fees and other expenses, arising out of or in connection with any breach CL representation, warranty, covenant or agreement contained herein. The City shall indemnify Seller against any loss, liability and damage, including reasonable attorneys’ fees, arising out of claims/lawsuits by future owners of all or a portion of the Property; notwithstanding the foregoing, the City shall not indemnify Seller from any loss, liability and damage, including reasonable attorneys’ fees, arising out of claims/lawsuits by future owners of all or a portion of the Property in connection with any alleged existence of toxic waste and/or toxic substances on or beneath the surface of the Property prior to the close of Escrow and/or relating to actions, events or occurrences occurring prior to the close of Escrow.
15. Additional Assurances. The City and Seller agree to execute such other documents as may be reasonably necessary to perform the terms of this Agreement.
16. Attorneys’ Fees, In any action between the City and Seller seeking interpretation or enforcement of any of- the terms and provisions of this Agreement or in connection with the Property, the prevailing party in such action shall be awarded, in addition to any other award, its reasonable costs and expenses, including reasonable attorneys’ fees.
17. Entire Aqreement. This instrument contains the entire agreement between the parties relating to the transactions contemplated hereby, and all prior or contemporane- ous agreements, understandings, representations and statements, oral or written, are merged herein. This Agreement may only be modified by an agreement in writing executed by all of the parties hereto. All representations and warranties made by the City and Seller and indemnifications contained in this Agreement shall survive the Close of Escrow.
ia. Notices. All notices, consents or other communications to be given hereunder shall be in writing and shall be delivered in person or sent by certified or registered mail, return receipt requested, postage prepaid, as follows:
To Seller: CARLSBAD RETAIL ASSOCIATES 3151 Airway Avenue Suite L-l Costa Mesa, California 92626 Attn: Michael Ferensowicz
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With a copy to:
With an additional copy
to:
To the City:
or such other party and
Steven H. Sunshine, Esq. Layman, Jones & Dye 2600 Michelson Suite 1000 Irvine, California 92715
Johnson Wax Development Corporation 3150 Bristol Street Suite 250 Costa Mesa, California 92626 Attn: Eugene Spindler
City Manager City of Carlsbad 1250 Elm Street Carlsbad, California 92008 Attn: Frank Mannen
or address as any of such parties hereto may designate in a written notice served upon the other parties in the manner provided herein. All notices, consents or other communications to be given hereunder shall be deemed- duly given and received on the date of delivery, if delivered in person, or two days after the date of mailing, if sent by certified or registered mail.
19. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
20. Captions. The captions in this Agreement are inserted for convenience of reference only and in no way define, describe or limit the scope or intent of this Agreement or any of the provisions hereof.
21. Assiqnabilitv. The City may not assign its rights under this Agreement without the express written consent of Seller, which consent shall not be unreasonably withheld. Seller may not assign its rights and obligations under this Agreement -without the expressed prior written consent of the City, which consent will not be unreasonably withheld.
22. Successors and Assiqns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors and assigns. Seller agrees that in the event Seller desires to transfer its ownership of the Property prior to the Close of Escrow, Seller shall advise the intended transferee (the "Transferee") of Seller's obligations under this Agreement and prior to the transfer of ownership Seller shall deliver to the City a statement from the Transferee in which the Transferee agrees to perform all obligations under this Agreement..
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23. Time of the Essence. Time is of the essence in this Agreement.
24, Escrow Holder’s Standard Provision. Seller and the City agree to be bound by the Standard General Provisions of. Escrow Holder to the extent they are not inconsistent with the terms hereof.
25. Survival of Warranties. The representat ions and warranties of the City and Seller contained herein are true as of the close of Escrow and shall survive the Closing.
26, Reasonable Approvals. Except as otherwise expressly provided herein, whenever in this Agreement either the City’s or Seller’s consent or approval is required, the parties hereby agree that said consent or approval shall not be unreasonably withheld or delayed.
27 Section 1445 Certificate. Seller shall place into escrow a Certification that Seller is not a foreign person in the form attached hereto as Exhibit “E”.
SELLER:
CARLSBAD RETAIL ASSOCIATES, a Joint Venture
By: JDCR Ltd, Partnership, a Wisconsin limited partnership, joint venture partner
By: Johnson Wax Properties, Inc., a California corporation, its sole general partner
By:
By: The F.T. VON DER AHE COMPANY, a Sole Proprietorship, joint venture partner
By: % L L
Frederick T. Von der Ahe
CITY:
THE CITY OF CARLSBAD, CALIFORNIA,
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TRANSAMERICA TITLE INSURANCE COMPANY 825 North Broadway Santa Ana, California 92701
We -are in receipt of that certain Agreement for Purchase and Sale of Real Property and Joint Escrow Instructions by and between CARLSBAD RETAIL ASSOCIATES, a joint venture, and the CITY OF CARLSBAD, CALIFORNIA. Transamerica Title Insurance Company, as Escrow Holder, assigns Escrow No. to this transaction,
TRANSAMERICA TITLE INSURANCE COMFVWY
Dated: February -, 1989 By: , Escrow Officer
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EXHIBIT "B"
PLAZA PASEO REAL
MASTERs1TEIMPR0vEMENTs SCOPE OF WORK
April 14, 1989
A. GRADING AND DEMOLITION
1. Gradina and Earthwork
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Clearing, grubbing Grade ungraded portion of site and remedial grading on previously graded areas including:
l 90% relative compaction, certified
l removal and recompaction of topsoil average 2.5' deep
l trenching of all gullies, removal and recompaction
l removal and recompaction of loose fills
l keying and benching of fill slopes
Subdrains Brow ditches Permanent slope planting and irrigation on perimeter slopes Temporary erosion control during/after rough grading
l desiltation basins 0 sandbags
l hydroseeding and irrigation
Maintenance of all weather access Crib walls (price rear slope crib wall as separate item) Retaining wall8
2. Demolition and Removal of Existincr Structures and Facilities
ii: Removal of a.c. pavement, concrete curb and gutter Removal of 8" water and sewer mains and associate appurtenance c. Removal of fire hydrants d. Demolition of retaining walls 8. Demolition of brow ditches f. Demolition of desiltation basin spillways
it: Demolition of 3 storm drain inlet headwalls Removal of 30" r.c.p.
i. Demolition of tops of deep cleanouts - bottoms to be filled
j. Demolition of storm drain inlets and portions of pipes at two Alga entrances k. Removal of all gas, electric, telephone, CATV facilities 1. Demolition of curb and gutter along northerly side of Alga Road m. Utilities relocation, if necessary
B. OFFSITE IKPROQEMENTS
1. El C&o Rea&
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Median relocation/removal Restriping, signing, pavement markers Transition north of property Remove exist a.c. berm and driveway opening Pavement widening and construction of curb, gutter and sidewalk Upgrade Dove/E.C.R. traffic signalization and intersection per L.F.M.P. Street lights Street trees Guardrail Handicap ramps Utilities relocation, if needed
2. Alaa Road
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Median construction Restriping, signing, pavement markers Transition at west boundary Pavement widening Construct curb, gutter and sidewalk Street trees Street lights Traffic signal at main entrance at Manzanita Handicap ramps Utilities relocation, if needed
Plaza Paseo Master Site Page 3
Real Improvements. (Cont'd.)
3. Dove Lane
it: A.C. pavement per City standard Curb and gutter
;: Sidewalks Street trees e. Street lights f. Monuments
:: Barricades at end of improvements Striping and pavement markings
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Guardrail Traffic signal at north entrance
1: A.C. berm or redwood header for l/2 at. pavement edge Utilities coordination
. C TER ON-SITE IRPROVEKEZWS
1. Portion of Loon Street (between Alaa/Manzanita Entrv and Dove Lane Entrv)
a. A.C. pavement per City standard b. Curb, gutter and sidewalks (as per plan) c. Landscaped parkway strip planters and median islands with irrigation d. Lighting 8. Enhanced paving at pedestrian crossings and entries f. Striping and pavement markings
g* Directional signage
2. Storm Drainaae Imnrovements
a. b. c. d. 8. f.
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F type catch basins - west slope Various sizes r.c.p. culvert per plan (main lines only) Curb inlets (loop street only) Cleanouts Headwalls Temporary culvert - rough grading Deep connection at 38'+ deep cleanout at south entrance Offsite siltation (Levatino) Detention basin including:
0 outlet structure 0 spillway
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l headwalls, catch basins
l fence around perimeter
l landscaping
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l rip-rap at 36"/42 " inlet north side of Dove
Offsite detention basin cleanout above lagoon
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. Plaza Paseo Real Master Site Improvements (Cont'd.) Page 4
3. Sewer Imnrovements
it: Mains (backbone system only) Manholes (backbone system only)
:: Connection to existing stub at south entrance Cleanouts 8. Offsite repairs to Ayres Trunk Line (pro-rata)
4. Water Imnrovements
a. Hot tap existing main at ECR/Dove b. Connect to stub ECR 200'2 south of Dove
:: Connect to stub south entrance Mains (backbone system only) including:
0 valves .
l blowoffs 0 air release valves/assemblies
l thrust blocks
l fire hydrants
8. Reclaimed water lines for perimeter slopes f. Relocate pressure reducing station/vault at Dove/ECR
5. Utilities
:: Electric (backbone system only) Gas (backbone system only)
2 Cable TV (backbone system only) Telephone (backbone system only)
D. SOFT COST6
1. Engineering/Design 2. Construction Interest 3. Contingency
E. BLES (cost to be naid in total bv librarv) SPECIA L RE B IM URSA
1. Parking area on Parcel 2 south of future library building to be built "up-front" as part of Parcel 3 on-site contract
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EXHIBIT "C!"
PRELIMINARY SITE IMPROVEMENT COMPLETION SCHEDULE
April - July, 1989
August - October, 1989
Final engineering design and issuance of grading permit
Demolition, rough grading and erosion control completion/issuance of site improvement permits
October 1989 - March, 1990 Installation of on-site backbone infrastructure, perimeter landscaping and offsite improvements
March - April 1990 Inspections and punchlist/library site ready for close of escrow
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2.
3.
4.
5.
6.
7.
8.
9.
10.
EXHIBIT "D"
A&REED EXCEPTIONS TO TITLE
General and special County and/or City Taxes for current fiscal year.
Easement(s) for drainage and access to maintain drainage facilities in favor of San Diego County Flood Control District (Zone 81).
Easement(s) in favor of San Diego Gas & Electric Company for on-site distribution of electricity and/or natural gas.
Easement(s) in favor of the City of Carlsbad for on-site roads and other public utilities.
Easement(s) in favor of the City of Carlsbad for portions of Dove Lane.
Agreements by current and previous owners for the payment of public facilities fees.
Any performance bonds for on going erosion control and/or off-site improvements.
A Declaration and Reservation of Access and Reciprocal Parking Easements.
Any additional easements shown on Parcel Map No. MS764A.
Any other exceptions which are included prior to the close of escrow which have been reviewed and approved by the City Attorney.
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TRANSFEROR’S CERTIFICATION OF NON-FOREIGN STATUS
To inform the City of Carlsbad (the “Transferee”), that withholding of tax under Section 1445 of the Internal Revenue Code of 1954, as amended (“Code”) will not be required of the Transferee upon the transfer of certain real property by CARLSBAD RETAIL ASSOCIATES (the “Transferor” ) , the undersigned hereby certifies the following on behalf of the Transferor:
1. The Transferor is not a foreign corporation, foreign partnership, foreign trust or foreign estate (as those terms are defined in the Code and the Income Tax Regulations promulgated thereunder);
2. The Transferor's U.S. employer identification number is ; and
3. The Transferor's office address is:
Carlsbad Retail Associates 3150 Bristol Street Suite 250 . Costa Mesa, California 92626
The Transferor understands that this Certification may be disclosed to the Internal Revenue Service by the Transferee and that any false statement contained herein could be punished by fine, imprisonment, or both.
Under penalty of perjury I declare that I have examined this Certification and to the best of my knowledge and belief it is true, correct and complete, and I further declare that I have authority to sign this document on behalf of the Transferor.
Dated: , 1989 CARLSBAD RETAIL ASSOCIATES
By: JDCR Ltd, Partnership, a Wisconsin limited partnership, a joint venture partner
By: Johnson Wax Properties, Inc., a California corporation, its sole general partner
By: Eugene A. Spindler, its Vice President EXHIBIT "E"
RECORDINQ REQUESTED BY AND WHEN RECORDED RETURN TO:
Steven H. Sunshine, Esq. LAYHAN, JONES 6, DYE 2600 Michelson Drive Suite 1000 Irvine, California 92715
PARCEL MAP NO. 764-A DECLARATIONANDRFSERVATIONOF ACCESS ANDRECIPROCALPARKINGEASEMENTS
This Declaration and Reservation of Access and Reciprocal Parking Easements for Parcel Map No. 764-A is made by CARLSBAD RETAIL ASSOCIATES, JDCR Ltd. Partnership, a joint venture comprised of
Frederick T. a Wisconsin limited partnership, and
(“Declarant”). Von der Ahe. dba The F.T. Von der Ahe Company
Declarant is the sole owner of certain real property lo!&ted in the City of Carlsbad County of San Diego State of California, more particularly discribed on Exhibit “A:’ attached hereto and made a part hereof (the “Property”).
8. It is the desire and intention of Declarant to develop all of the Property pursuant to a general plan for all of the Property and subject the Property to certain protective covenants, conditions, restrictions, rights, reservations, easements, and equitable servitudes, aa hereinafter set forth. all running with the land
C. Declarant hereby declarer that all the Property shall be held, sold, conveyed, hypothecated, encumbered, leased, rented, used, occupied and improved subject to the following covenants, conditions, restrictions, rights, reservations, easements, and equitable servitudes, all of which are declared and agreed to be for the purpose of uniformly enhanc inq and protecting the value, attractiveness and desirability of the Property, in furtherance of a master plan for the protection, subdivision, maintenance, improvement, sale and leasing of the Property or any portion thereof, including all improvements thereon. The covenants, conditions, restrictions, rights, reservations, easements and equitable servitudes set forth herein shall run with the land, shall be binding upon all persona having or acquiring any right, title or interest in the Property, or any portion thereof, their heirs, successors and assigns; shall inure to the benefit of and burden every portion of the Property and any interest therein; and shall inure to the benefit of, be binding upon. and may be enforced by Declarant, each Owner (as herein defined) and their respective heirs, executors, administrators, and successive owners and assigns.
Article I DEFINITIONS
Unless otherwise expressly provided, the following words and phrases when used in this Declaration shall have the meanings hereinafter specified.
2557D:SHS 051769
1.01 DeClarant. “Dee 1 ar ant ” shall mean Carlsbad Retail Associates, a joint venture ComDrised of JDCR Ltd. Partnership, a Wisconsin limited partnership, and Frederick 1. Von der Ahe, dba The F.T. Von der Ahe Company, its successors, and any Person to whom it shall have assigned any of its rights hereunder by an express written assignment.
1.02 Declaration. “Declaration” shall mean the within Declaration and Reservation of Access and Reciprocal Parking Easements for Parcel Map No. 764-A, as it may be amended from time to time as provided herein.
1.03 Improvements. “Improvements” shall mean all structures and appurtenances thereto of every type and kind, including, but not limited to, buildings, walkways, sprinkler pipes, roads, driveways , parking areas, fences, screening walls, block walls, retaining walls, stairs, landscaping hedges, windbreaks, plantings, planted trees and shrubs, poles and signs.
1.04 Mortsaqe. "Mortgage" ‘shall mean any recorded mortgage or deed of trust or other hypothecation or conveyance of a Parcel or other portion of the Property to secure the performance of an obligation, which conveyance shall be reconveyed upon the completion of such performance. The term “Deed of Trust” shall be synonymous with the term “Mortgage.”
1.05 Mortqaqee. “Mortgagee” shall mean a Person to whom a Mortgage is made and shall include the beneficiary of a Deed of Trust. The term “Beneficiary” shall be synonymous with the term "Mortgagee. ”
1.06 Owner. “Owner ” shall mean the record owner, whether one or more Persona, of a fee simple interest in a Parcel, including Declarant with respect to each Parcel owned by Declarant. The term “Owner” shall include a seller under an executory contract of sale but shall exclude Mortgagees.
1.07 Parcel. “Parcel” shall mean any of Parcels 1. 2 or 3 of the Property as set forth on Exhibit “A” attached hereto.
1.08 Permittees. Declarant, any other Owner or Person entitled to occupy on an exclusive basis any portion of a building within the Property, and their respective partners, officers, directors, employees, agent a, patrons, guests, invitees, contractors, visitors, lessees, 1 icensees and representatives.
1.09 Person. “Person” shall mean a natural individual or any other entity with the legal right to hold title to r’eal property.
1.10 Recordation. “Recordation” shall mean, with respect to any document, the recordation or filing of such document in the Office of the San Diego County, California Recorder,
1.11 Site Plan. “Site Plan” shall mean the site plan for the Property attached hereto as Exhibit “B” and made a part hereof.
1.12 Street. That portion of the Property which is designated on the “Site Plan” (Exhibit “8”) as the “Loop Driveway” .
Article II EAsptENTs
2.01 Creation of Easements to Benefit Owners I Subject to all other provisions of this Declaration, Declarant hereby establishes and reserves the following easements:
(a) Access. For the benefit of the Owners of Parcel 1 and Parcel 2, nonexclusive surface easements for access, ingress and egress over the Street and ad j acent walkways located on Parcel 3 ( “Access Easement Area”). The easement may be used by each such Owner and each such Owner’s Permittees for walkways, vehicular access and egress, and such other purposes as are reasonably necessary for the use and enjoyment of such Owner’s Parcel provided that such easements shall only be exercisable over such portions of the Access Easement Area whose construction or reconstruction (in the event of damage) has been completed.
(b) Maintenance and Repair of Street. The Owner of Parcel 3 shall promptly repair, restore, and clean all damaged, unsafe or unattractive -portions of the sidewalk, walkway and Street , including, but not limited to, those portions of the sidewalk, walkway and Street containing potholes or broken glass. The sidewalk, walkway and Street on Parcel 3 shall be maintained by the owner of Parcel 3 in a manner consistent with maintenance of sidewalks, walkways and streets on similar first class comnercial/retail projects in north San Diego County. Such Owner shall have a nonexclusive easement over Parcel 1 and Parcel 2 for access to facilitate such Owner’s performance of its duties or exercise of its rights with respect to its maintenance obligations set forth in this Subparagraph (b) of Section 2.01, provided that (a) such Owner’s exercise of such easement shall not unreasonably obstruct or restrict access to the Parcels, (b) adequate measurea are taken to ensure the safety and convenience of Persons using the Parcels, (c) the Improvements on the Parcels are replaced or restored to their condition in which they existed ifmnediately prior to the exercise of such Owner’s rights under such easements (except as duly maintained or repaired), (d) such Owner’s exercise of its rights under such easement does not unreasonably interfere with the use and enjoyment of the Parcels by the Owners or their Permittees, and (e) all governmental requirements applicable thereto are satisfied.
(cl Slone Area. The Owner of Parcel 2 shall have a nonexclusive easement for slone maintenance and repair over those portions of Parcel 3 Improved with slopes- as described on the site Plan (the “Slope Area” 1 . All landrcaping on the Slope Area shall be maintained at a level consistent with the detailed landscape and irrigation plan approved bywi~~ city. Such level of maintenance shall be consistent slope maintenance on similar first class commercial/retail projects in north San Diego County and shall include the frequent removal of weeds and deteriorating plants and trees. The Owner of Parcel 2 shall ensure that the automatic sprinkler system installed in all Slope Areas on Parcel 2 and Parcel 3 is maintained in good operating order and repair with all leaks and stoppages promptly corrected. The
Owner of Parcel 2 shall also have a nonexclusive easement over Parcel 3 for access to facilitate such Owner’s performance of its duties or exercise of its rights with respect to its maintenance obligations set forth in this Subparagraph (c) of this Section 2.01, provided that (a) such Owner’s exercise of such easement shall not unreasonably obstruct or restrict
access to the Parcels, (b) adequate measures are taken to ensure the safety and convenience of Persons using the Parcels, (c) the Improvements on the Parcels are replaced or restored to their condition in which they existed immediately prior to the exercise of such Owner’s rights under such easement (except as
duly maintained or repaired) and (d) such owner’s exercise of its rights under such easement does not unreasonably interfere with the use and enjoyment of the Parcels by the Owners of their Permittees.
(d) Reciprocal Parking Easements for Parcels 2 and 3. Nonexclusive surface easements over the parking areas on Parcels 2 and 3 of the Property identified on the Site Plan within Parcels 2 and 3 as “Reciprocal Parking Areas” for parking purposes provided that such parking easements shall only be exercisable over those parking areas whose construction or reconstruction (in the event of damage) has been completed. If Parcel 2 of the Property is being used as a public library, and that said Public library may from time to time hold special events, then the following special restrictions shall apply:
For special events on weeknights (Monday-Thursday), the Owner of Parcel 2 may, with three (3) days prior notice to the Owner of Parcel 3 or its designee, control up to a maximum of 350 parking stalls within Parcel 2 for the exclusive use of the Permittees of the Owner of Parcel 2. Such parking controls may be operated between the hours of 6:00 p.m. and 8:OO p.m. and shall be terminated immediately upon the scheduled start time of the event noticed above. No special parking controls shall be allowed Friday, Saturday or Sunday.
(e) Parkinq Easement Benefittinq Parcel 1. The Owner of Parcel 1 shall have a nonexclusive surface easement for parking purposes ‘over those striped parking spaces located on Parcel 3 of the Property and designated on the Site Plan as the “Post Off ice Parking Easement Area. ” Such parking easements shall only be effective if, when and as long as a United States Post Off ice is being operated on Parcel 1 of the Property, and only during the hours when such Post Office is open for business to the public. Such parking easements shall only be exercisable over those parking areas whose construction or reconstruction (in the event of damage) has been completed.
(f) Drainase. Nonexclusive surf ace and undercfround easements for drainaqe from all Parcels in the Property onto or into the draindge swales, storm drains and sanitary sewers located in the Property and over the other surface portions of the Property that are traversed by such drainage as it flows into such drainage swales, storm drains and sanitary sewers. There shall be no interference with, or modification of, the established drainage pattern over any portion of the Property without the prior written consent of all Owners. For the purposes hereof, “established drainage pattern” is defined as the drainage which exists at the time of completion of the improvements as contemplated by the Site Plan.
(9) Damage of the Easement Area bv an Owner. Each Owner who by reason of such Owner’s or its partners, officers, directors, employees, agents, contractors, lessees, licensees and representatives; negligence or willful misconduct damages any portion of, or any Improvement on. another Owner’s Parcel shall be obligated to reimburse the other Owner for the cost of repairing or replacing any such damage or Improvement.
2.02 Improvements. Except for replacement of such Improvements as depicted on the Site Plan and subsequent amendments of the Site Plan as approved by all Owners, whose approvals shall not be unreasonably withheld, no Improvements shall be constructed, installed or modified on any portion of an Owner’s Parcel in a manner that unreasonably interferes with (i) the use and enjoyment of the easement areas on the PrOperFY by the intended beneficiaries of the easements established lh this Declaration, or (ii) the use and enjoyment of each Parcel by its Owner and such Owner’s employees, agents , tenants a
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guests and invitees, other Owners. without the prior written consent of the Furthermore, any Owner exercising any easements established or reserved hereunder for the benefit of such Owner shall indemnify the Owners of the other Parcels against any and all claims, losses, and (including reasonable attorneys’ fees) arising dire~?~~s indirectly by reason of the exercise of the established or reserved easements over such other Parcels.
2.03 Failure of Reswnsible Party to Perform Maintenance. If any Owner fails to perform the maintenance required under Section 2.01 above on such defaulting Owner’s Parcel, any other Owner (the “Objecting Owner”) shall have the right, after thirty (30) days’ written notice to the defaulting Owner, to enter upon the Parcel not being properly maintained and to perform reguired maintenance on such Parcel and to be promptly reimbursed for all expenses incurred therein plus ten percent (10%); provided, however, in the event the defaulting Owner commences to cure within said thirty (30) day period and diligently and continuously performs such maintenance as the defaulting Owner determines in its reasonable judgment is appropriate, but the Objecting Owner believes that further maintenance is required, the Objecting Owner, at its option, may request that the issue of whether the maintenance performed is satisfactory be arbitrated by and under the rules of the American Arbitration Association which arbitration decision shall be binding on the parties.
2.04 Maintenance by Owner of Its Parcel. Except for those maintenance responsibilities set forth in Section
2.01 above, each Owner -shall maintain its Parcel in an attractive condition consistent with the level and quality of maintenance found in similar fire class comnercial/retail projects in north San Diego County. If any Owner fails to perform the maintenance required hereunder, any other Owner (“Objecting Owner”) shall have the right, after thirty (30) days ’ written notice, to the defaulting Owner, to enter onto the Parcel and perform required maintenance and to be reimbursed for all expenses incurred therein plus ten percent (101); provided, however, in the event defaulting Owner cousnences to cure within said thirty (30) day period and diligently and continuourly performs such maintenance as the defaulting Owner determines in its reasonable judgment is appropriate, and in the event the Objecting Owner believes that further maintenance is required, the Objecting Owner, at its option, may request that the issue of whether the maintenance performed is satisfactory be arbitrated by and under the rules of the American Arbitration Association which arbitration decision shall be binding on the parties.
Article III GENERAL PROVISIONS
3.01 Riqhts of Wortcrasees. Notwithstanding any other provision of this Declaration, no amendment or violation of this Declaration shall operate to defeat or render invalid the rights of a Beneficiary under any Deed of Trust upon any Parcel made in good faith and for value, provided that after the foreclosure of any such Deed of Trust such Parcel shall remain subject to thi.8 Declaration, as the same may be amended from time to time.
3.02 Amendment. No amendments to this Declaration shall be permitted without the prior written consent of the Owner or Cwners whose Parcels are affected by such amendment.
3.03 Easements Appurtenant. All easements reserved herein shall be appurtenant to and binding upon, and shall Pass with title to, the Parcel for the benefit of which such easements were reserved.
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any remaining provisions of this Declaration. All of such remaining provisions shall remain in full force and effect.
This Declaration is dated identification purposes only. , 1989, for
CARLSBAD RETAIL ASSOCIATES, a joint venture
By: JDCR Ltd. Partnership, a Wisconsin limited partnership, joint venture partner
By: Johnson Wax Properties, Inc., a California corporation, general partner
By: Eugene A. Spindler, Vice President
By:
Frederick T. Von der Ahe, dba The F.T. Von der Ahe Company, joint venture partner
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STATE OF CALIFORNIA
COUNTY OF i ss:
On 1909, before me, the undersigned, a Notary Public in and fok said State, personally appeared EUGENE A. SPINDLER, personally known to me or proved to me on the basis of satisfactory evidence to be the person that executed the within instrument as Vice President of Johnson Wax Properties, Inc., a California corporation, the corporation that executed the within instrument as the general partner of JDCR Ltd. Partnership, a Wisconsin limited partnership, the partnership that executed the within instrument as a joint venture partner of Carlsbad Retail Associates, a joint venture, and acknowledged to me that such corporation executed the same as such partner pursuant to its bylaws or a resolution of its board of directors and that such partnership executed the same both for itself and as a joint venture partner of said joint venture and that such joint venture executed the same.
WITNESS my hand and official’seal.
Notary Public in and for said State
[Seal]
STATE OF CALIFORNIA 1 ) ss: COUNTY OF )
on 1989, before me, the undersigned, a Notary Pub1.c in and fo; said State, personally appeared Frederick T. Von der Ahe, personally known to me or proved to me on the- basis of satisfactory evidence to be the person that executed the within instrument as a joint venture partner of Carlsbad Retail Associates, a joint venture, and acknowledged to me that he executed the same both individually and as a joint venture partner of such joint venture and that such joint venture executed the same.
WITNESS my hand and official seal.
Notary Public in and for said State
[Seal I
C
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SUBORDINATION
The undersigned, interest in and under as Beneficiary of the beneficial that certain Deed of Trust dated 19 ’ 19 and as Instr&ent No. recorded on in Official Records oi the& Diego Country Recorder (th;! “Deed of Trust” I, which Deed of Between Trust is by and as Trustor, as Beneficiary, hereby expressly idordinates corporation. said Deed of Trust and its beneficial interest thereunder to the foregoing Declaration and Reservation of Access and Reciprocal Parking Easements.
Dated : ,19-m
a corporation
ay:
Its:
STATE OF CALIFORNIA
COUNTY OF i 81.
on 19 before me, the undersigned, appeared a Notary Public in and form State, personally and personally known to me or proved to me on the basis of satisfactory evidence to be the persons who executed the within instrument as and respectively, or behalf 0; the corporation therein named and’&knowledqed to me that such corporation executed the within instrument pursuant to its bylaws or a resolution of its board of directors.
WITNESS my hand and official seal.
Notary public in and for said State
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