HomeMy WebLinkAbout1989-06-20; City Council; 10073; Accept Grant Deedn >w iz 0. 2
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CIT”OF CARLSBAD - AGEND-BILL “i5
RB# /0@3 TITLE:
MTG.?.&?& ACCEPTANCE OF A GRANT DEED
DEPT.ENC. FOR WATERLINE PURPOSES, MI1 PARTNERSHIP
PR 3.5.40/PD 311
RECOMMENDED ACTION:
CITY MGi&$&
Adopt Resolution No.
purposes.
accepting a Grant Deed for waterline
ITEM EXPLANATION
As a condition of approval of Private Development No. 311 the owner, MI1
Partnership, a California General Partnership, is required to offer dedication
of an easement for waterline purposes across a portion of Lot 20 of Map No.
11287. Said easement is located adjacent to the south side of Dryden Place.
FISCAL IMPACT:
Requiring dedications as a condition of development will save the City expenses
in the future right-of-way acquisitions.
EXHIBITS:
1. Location Map.
2. Grant Deed from MI1 Partnership, dated January 26, 1989.
3. Subordination agreement from MI1 Partnership, dated January 12, 1989.
4. Resolution No. 2w--~W accepting a Grant Deed for waterline
purposes.
LOCATION MAP
.
@sBtw CONSULTANTS
CW,. ENGINEERING v 17JO2” EL CAWNO SEAL. IUKHO LA COSTA ,uNN,NG.,~OCESSING CAIILSBAD. tALIFO*NI* 9m9
9”l”EYlNG wKlNE 619~IO~D
PROJECT NAME: M/A7Z?4/fl &-i4SWW7 PROJ. ~EXHIBIT
/N LOT 20 Of Lih?e?3mD 7xwCT m-46 NO.
MAP /via ?!437 p/q 3.5.40 f
PP 3f/ 4
RECORDING REQUESTED BY -
City of Carlsbad
A)(D WHEW RECbRDEDWAlL TD
r 1
Name City of Carlsbad
Street 1200 Elm Avenue Address Carlsbad, CA 92008
city & State L Attn: City Clerk J
MAIL TAX STATEMENTS TO r 1
Name MI1 Partners
Street P.O. Box 9000-266 Address Carlsbad, CA 92008
City 81 State L J
The undersigned grantor(s) declare(s): Documentary transfer tax is -0- Easement tad
( ) computed on full value of property conveyed, or ( ) computed on fullvaluelessvalue of liens and encumbrancesremainingattime of sale.
( ) Unincorporated area: ( X ) City of Carlsbad ,and
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, MI1 Partnership
General
hereby GRANTS to
partnership organized under the laws of the State of California
the City of Carlsbad, a Municipal Corporation, an easement for waterline purposes
and appurtenances over, under and across.
tbefollowingdescribedrealpropertyin the City of Carlsbad
County of San Diego , State of California.
See Exhibit “A” consisting of one page, for legal description incorporated herein and
as shown on Exhibit “B” attached hereto consisting of one page for reference only.
SPACE ABOVE THIS LINE FOR RECORDER’S USE
CAT. NO. NN00586
TO 1925 CA (2-83)
Partnership Grant Deed A.P.N. 212-091-06
THIS FORM FURNISHED BY TICOR TITLE IN8URERS PR 3.5.4O/PD 311
Dated: .January .26 9 19%9 MI1 Partnership. a Caljfornia Gene_
STATE OF CALIFORNIA
COUNTY OF SAN DIEGO ss.
On January 26, 1989 before
me, the undersigned, a Notary Public in and for said
State, personally appeared DONOV~ E l WESTERE’ELD & GEORGE M . CULLm
personally known to me or proved to me on the basis of satisfactory evidence to be the person& who exe- cutedthewithin instrument as twn of the partners of the partnership that executed the within instrument, and acknowledged to me that such partnership executed the same.
WITNESS my h+qd and officialseal.
Signature kil&L A5leAcL
&
ership
Dono~~.&We~erf~d/GeneralPartner
General Pa*ner
By Benchmark Pacific, LTD.,III,
a California Limited Partnershi:
General Partner
BY
BY
Benchms.:k Pacific, Inc., a California Corporation, General Partner
,4i%%J4 L ,i;
siden
(This area for official notarial Seal)
.t
Title Order No. Escrow or Loan No.
al
I
MAIL TAX STATEMENTS AS DIRECTED ABOVE
EXHIBIT "A" WATER EASEMENT IN IXT 20, MAP NO. 11287
87-6017-3 11/18/88 PD 311 PR 3.5.40 CMWD 88-C.273
AN EASEMENT FOR WATER MAIN AND APPURTENANCES UNDER, OVER, ALONG AND ACROSS THAT PORTION OF LOT 20 OF CARLSBAD TRACT NO. 81-46 UNIT NO. 1, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 11287, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, SAID EASEMENT BEING 15.00 FEET WIDE, LYING 7.50 FEET ON EACH SIDE AND PARALLEL WITH THE CENTERLINE MORE PARTICULARLY DESCRIBED AS FOLLOWS:
PARCELA:
COMMENCING AT THE MOST NORTHERLY CORNER OF SAID LOT 20, BEING A POINT ON THE SOUTHEASTERLY RIGHT-OF-WAY LINE OF DRYDEN PLACE, SAID CORNER BEING A POINT IN THE ARC OF A 636 FOOT RADIUS CURVE, CONCAVE NORTHWESTERLY, A RADIAL TO SAID POINT BEARS SOUTH 12' 46' 29" EAST: THENCE SOUTHWESTERLY ALONG SAID SOUTHEASTERLY RIGHT-OF- WAY LINE ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 2' 19' 07' A DISTANCE OF 25.74 FEET TO THE TRUE POINT OF BEGINNING OF THE HEREIN DESCRIBED CENTERLINE A RADIAL TO SAID POINT BEARS SOUTH 10" 27' 22' EAST; THENCE SOUTH 26" 18' 19' EAST A DISTANCE OF 347.56 FEET; THENCE SOUTH 71' 18' 19" EAST A DISTANCE OF 17.25 FEET TO THE POINT OF TERMINUS.
THE SIDE LINES OF SAID PARCEL 'A", SHALL BE LENGTHENED AND/OR SHORTENED AT THE ANGLE POINT AND THE SIDE LINES SHALL BEGIN IN THE ARC OF SAID 636 FOOT RADIUS CURVE, SAID CURVE ALSO BEING THE SOUTHEASTERLY RIGHT-OF-WAY LINE OF DRYDEN PLACE AND SHALL TERMINATE IN A LINE WHICH BEARS NORTH 18' 41' 41" EAST THROUGH SAID POINT OF TERMINUS.
PARCEL B:
COMMENCING AT THE MOST NORTHERLY CORNER OF SAID LOT 20, BEING A POINT ON THE SOUTHEASTERLY RIGHT-OF-WAY LINE OF DRYDEN PLACE, SAID CORNER BEING A POINT IN THE ARC OF A 636 FOOT RADIUS CURVE, CONCAVE NORTHWESTERLY, A RADIAL TO SAID POINT BEARS SOUTH 12' 46' 29" EAST; THENCE SOUTHWESTERLY ALONG SAID RIGHT-OF-WAY LINE THROUGH A CENTRAL ANGLE OF 7" 46' 29" A DISTANCE OF 86.30 FEET; THENCE TANGENT TO SAID CURVE SOUTH 85" 00' 00' WEST A DISTANCE OF 62.70 FEET TO THE TRUE POINT OF BEGINNING OF THE HEREIN DESCRIBED CENTERLINE; THENCE LEAVING SAID RIGHT-OF-WAY LINE SOUTH 5" 00' 00' EAST A DISTANCE OF 30.00 FEET TO THE POINT OF TERMINUS.
THE SIDE LINES OF SAID PARCEL "B", SHALL BE LENGTHENED AND/OR SHORTENED SO THAT SAID SIDE LINES SHALL BE CONTINUOUS AND SHALL BEGIN IN SAID SOUTHEASTERLY RIGHT-OF-WAY LINE OF DRYDEN PLACE AND SHALL TERMINATE ON A LINE WHICH BEARS NORTH 85' 00' 00' EAST THROUGH SAID POINT OF TERM
!M i4u.l a2 -c. 273 CJTY OF CX%zX&9~ SHT. / OF / SHTS.
EQUESTED BY:
tzz pAR7MEB A-RN. ti- 631-66 aeoxm -zs /b-27- 88
das9mJ. lx. =m9L O’DAY cm?zsQdizJsv73 RC& Js.34 DATE -&if-‘-“%!
.
STATE OF CALIFORNIA
COUNTY OF SAN DIEGO 1 ss.
)
On January 26, 1989 , before me, the undersigned, a Notary Public in and for said State, personally appeared DOUGLAS M. AVIS, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed the within instrument as President on behalf of BENCHMARK PACIFIC, INC., the corporation therein named as General Partner of BENCHMARK PACIFIC, LTD. III, a California Limited Partnership, and acknowledged to me that siad Corporation executed the within instrument pursuant to its by-laws or a resolution of its Board of Directors, as General Partner on behalf of said Limited Partnership, said Limited Partnership .being known to me as one of the General Partners of M.I.I. PARTNERS, the General Partnership that executed the witin instrument, and acknowledged to me that such Limited Partnership executed the same as General Partner and that such General Partnership executed the same.
WITNESS my hand and official seal.
SAN DIEGO COUNTY
CERTIFICATION FOR ACCEPTANCE OF DEED
This is to certify that the interest in real property
conveyed by the deed or grant dated ~anuarv
from MI1 PartnershiD
to the City of Carlsbad, California, a municipal corporation,
is hereby accepted by the City Council of the City of Carlsbad,
California pursuant to resolution No. 89-184 , adopted
on June 20, 1989 I and the grantee consents to the
recordation thereof by its duly authorized officer.
DATED: June 21, 1989
By: ALETHA L. RAUTENRRANZ, City Cjlerk
RECORDING REQUESTED BY AND ) WHEN RECORDED MAIL TO: i CITY OF CARLSBAD ) 1200 Elm Avenue 1 Carlsbad. CA 92008 Space above this line for Recorder's use. APN 212-091-06 PR 3.5.40/PD 311
NOTICE: THIS SUBORDINATION AGREEMENT RESULTS IN YOUR SECURITY INTEREST I# TEE PROPERTY BECOMING SUBJECT TO A# ESTATE II THE REAL PROPERTY TO WHICH YOUR SECURITY INSTRUXRNTATTACRESANDRAS
THE POTENTIAL EFFECT OB REDUCING TEE VALUE OF YOUR SECURITY INTEREST. I' +h THIS AGREEMENT, made this 6 day of April, 1989 by MI1
Partnership owner of the land hereinafter described and hereinafter .
referred to as fi@Owner,N and Lomas Mortgage USA, Inc. (formerly
known as The Lomas 61 Nettleton Company), present owner and holder
of the deed of trust hereinafter described and hereinafter referred
to as "Beneficiary";
WITNESSETE
TBAT WHEREAS, Owner did execute a deed of trust, dated
December 8, 1987, to John F. Sexton as trustee, covering Lot 20 of
Map No. 11287, to secure a note in the sum of THREE MILLION SIX
HUNDRED FORTY-FIVE THOUSAND DOLLARS ($3,645,000) dated December 8,
1987, in favor of Beneficiary recordedJanuary 6, 1988, as File No.
88-005545 of Official Records of said county: and
WHEREAS, Owner has executed, or is about to execute, as
grantor, a grant of EASEMENT dated Januarv 26. 1989, in favor of
the City of Carlsbad as grantee, herein referred to as "Easement
Grantee," creating an EASEMENT more particularly described in
EXHIBITS "A@* AND "Bn attached hereto; and
WHEREAS, it is a condition precedent to obtaining said
EASEMENT that said grant of EASEMENT above mentioned shall
unconditionally be and remain at all times a charge upon the land
hereinbefore described, prior and superior to the lien or charge
of the deed of trust above mentioned; and
WHEREAS, Easement Grantee is willing to accept said EASEMENT
provided the grant of EASEMENT is a charge upon the above described
property prior and superior to the lien or charge of the deed of
trust above mentioned and provided that Beneficiary will
specifically and unconditionally subordinate the lien or charge of
the deed of trust above mentioned to the lien or charge of the
EASEMENT created in favor of Easement Grantee; and
WHEREAS, it is to the mutual benefit of the parties hereto
that Easement Grantee accept said EASEMENT and Beneficiary is
willing that the grant of EASEMENT shall, when recorded, constitute
a charge upon said land which is unconditionally prior and superior
to the lien or charge of the deed of trust above mentioned.
NOW, THEREFORE, in consideration of the mutual benefits
accruing to the parties hereto and other valuable consideration,
the receipt and sufficiency. of which consideration is hereby
acknowledged, and in order to induce Easement Grantee to accept
.
said EASEMENT above referred to, it is hereby declared, understood
and agreed as follows:
1. That said EASEMENT in favor of Easement Grantee shall
unconditionally be and remain at all times a charge on the property
therein described, prior and superior to the lien or charge of the
deed of trust above mentioned.
2. That Easement Grantee would not accept said EASEMENT
above described without this subordination agreement.
3. That this agreement shall be the whole and only agreement
with regard to the subordination of the lien or charge of the deed
of trust above mentioned to the EASEMENT in favor of Easement
Grantee above referred to and shall supersede and cancel, but only
insofar as would affect the priority between the deed of trust and
EASEMENT hereinbefore specifically described, any prior agreement
as to such subordination including, but not limited, those
provisions, if any, contained in the deed of trust above mentioned,
which provide for the subordination of the lien or charge thereof
to another interest in the real property therein described.
BENEFICIARY declares, agrees and acknowledges that:
1. It consents to and approves (to the extent required in
the deed of trust above mentioned) the grant of EASEMENT in favor
of the Easement Grantee.
2. It intentionally andunconditionallywaives, relinquishes
and subordinates the lien or charge of the deed of trust above
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mentioned to the EASEMENT in favor of Easement Grantee above
referred to and understands that in reliance upon, and in
consideration of, this waiver, relinquishment and subordination of
the grant of EASEMENT is being executed and delivered, the EASEMENT
is being created, and that specific monetary and other obligations
are being and will be entered into by the Easement Grantee, other
lenders and title insurance companies which would not be made or
entered into but for said reliance upon the waiver, relinquishment
and subordination: and
3. An endorsement has been placed upon the note secured
the deed of trust above mentioned that said deed of trust has
this instrument been subordinated to the charge of the EASEMENT
favor of Easement Grantee above referred to.
BENEFICIARY: OWNER:
Lomas Mortgage USA, Inc. (formerly known as The Lomas &I Nettleton Company), a Connecticut Corporation
By:mt%%&& ~r30a A- SW/r/f Authorized Officer
By: See Next Page 8 Signature
MI1 Partnership
for
by
by
in
IT IS RECOMMENDED THAT, PRIOR TO THE EXECUTION OF THIS SUBORDINATION AGREEMENT, THE PARTIES CONSULT WITH THEIR ATTORNEYS WITH RESPECT THERETO.
. L
MII PARTNERHSIP, a California General Partnership
BENCHMARK PACIFIC, LTD., III ‘.~mbJ&n t L!iLLz&/
A California Limited Partnership Donovan E. Westerfield/
BY: BENCHMARK PACIFIC, INC.
A California Corporation
Its General PartneL,. ,,
BY:
as M. Avis, President
STATE OF CALIFORN
z COUNTY OF m g On
DIEGO Iss. i
, before me, the undersigned, a Notary Public in and for
3 said State, personally appeared 9, ;: F d .o
; z personally known to me (or proved to me on the basis of satis-
.L L factory evidence) to be the person that executed the within
3 instrument asOneartner(s), r 2
-
-63
2 on behalf of MI1 PARTNERSHIP
c , the partnership
!iY
6i therein named and acknowledged to me “at the partnership
r? executed it. *n
WITNESS my ha
Signature (This area for official notarial seal)
I Jss. I On JANUARY 16, 1989 , before me, the undersigned, a Notary Public in and for
said State, personally appeared DONOVAN E. WESTERFELD
PersonallY known to me (or proved to me on the basis of satis- factory evidence) to be the person that executed the within
instrument as~N~*nertsl,
on behalf of
, the partnership
therein named and acknowledged to me that the partnership executed it.
WITNESS my ha nd official seal.
Signature (This area for official notarial seal)
STATE OF CALIFORNIA 1 ss. COUNTY OF SAN DIEGO >
On January 13, 1989 , before me, the undersigned, a Notary Public in and for said State, personally appeared DOUGLAS M. AVIS, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed the within instrument as President on behalf of BENCHMARK PACIFIC, INC., the corporation therein named as General Partner of BENCHMARK PACIFIC, LTD. III, a California Limited Partnership, and acknowledged to me that siad Corporation executed the within instrument pursuant to its by-laws or a resolution of its Board of Directors, as General Partner on behalf of said Limited Partnership, said Limited Partnership being known to me as one of the General Partners of M.I.I. PARTNERS, the General Partnership that executed the witin instrument, and acknowledged to me that such Limited Partnership executed the same as General Partner and that such General Partnership executed the same.
WITNESS my hand and official seal.
STATE OF TEXAS 8
COUNTY OF TEXAS t
On Aprilb&, 1989 before me, the undersigned, a Notary Public in and for said state, personally appeared TODD/P- c&/TM known to me to be an Authorized Officer of u)MAS MORTGAGE USA, INC., a Connecticut corporation, the corporation that executed the within instrument, known to me to be the person who executed the within instrument on behalf of such corporation, and acknowledged to me that such corporation executed the within instrument pursuant to its bylaws or a resolution of its board of directors.
(S E A L)
the State of Texas
~~ My Conunis~~~: Print Name of Notary:
-70 Much 31, 1989 9:3owll
EXHIBIT "A" WATER EASEMENT IN IDT 20, MAE' NO. 11287
87-6017-3 11/18/88 PD 311 PR 3.5.40 CMWD 88-C.273
AN EASEMENT FOR WATER MAIN AND APPURTENANCES UNDER, OVER, ALONG AND ACROSS THAT PORTION OF LOT 20 OF CARLSBAD TRACT NO. 81-46
UNIT NO. 1, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE
OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 11287, FILED IN THE OFFICE OF THE COUNTY'RECORDER OF SAN DIEGO COUNTY, SAID EASEMENT BEING 15.00 FEET WIDE, LYING 7.50 FEET ON EACH SIDE AND PARALLEL WITH THE CENTERLINE MORE PARTICULARLY DESCRIBED AS FOLLOWS:
PARCEL A: .
COMMENCING AT THE MOST NORTHERLY CORNER OF SAID LOT 20, BEING A POINT ON THE SOUTHEASTERLY RIGHT-OF-WAY LINE OF DRYDEN PLACE, SAID CORNER BEING A POINT IN THE ARC OF A 636 FOOT RADIUS CURVE, CONCAVE NORTHWESTERLY, A RADIAL TO SAID POINT BEARS SOUTH 12' 46' 29" EAST: THENCE SOUTHWESTERLY ALONG SAID SOUTHEASTERLY RIGHT-OF- WAY LINE ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 2' 19' 07' A DISTANCE OF 25.74 FEET TO THE TRUE POINT OF BEGINNING OF THE HEREIN DESCRIBED CENTERLINE A RADIAL TO SAID POINT BEARS SOUTH 10' 27' 22" EAST: THENCE SOUTH 26' 18' 19" EAST A DISTANCE OF 347.56 FEET; THENCE SOUTH 71' 18' 19" EAST A DISTANCE OF 17.25 FEET TO THE POINT OF TERMINUS.
THE SIDE LINES OF SAID PARCEL "A", SHALL BE LENGTHENED AND/OR SHORTENED AT THE ANGLE POINT AND THE SIDE LINES SHALL BEGIN IN THE ARC OF SAID 636 FOOT RADIUS CURVE, SOUTHEASTERLY RIGHT-OF-WAY LINE OF TERMINATE IN A LINE WHICH BEARS NORTH SAID POINT OF TERMINUS.
SAID CURVE ALSO BEING THE DRYDEN PLACE AND SHALL 18' 41' 41" EAST THROUGH
PARCEL B:
COMMENCING AT THE MOST NORTHERLY CORNER OF SAID LOT 20, BEING A POINT ON THE SOUTHEASTERLY RIGHT-OF-WAY LINE OF DRYDEN PLACE, SAID CORNER BEING A POINT IN THE ARC OF A 636 FOOT RADIUS CURVE,
CONCAVE NORTHWESTERLY, A RADIAL TO SAID POINT BEARS SOUTH 12' 46' 29" EAST: THENCE SOUTHWESTERLY ALONG SAID RIGHT-OF-WAY LINE THROUGH A CENTRAL ANGLE OF 7' 46' 29" A DISTANCE OF 86.30 FEET: THENCE TANGENT TO SAID CURVE SOUTH 85' 00' 00' WEST A DISTANCE OF 62.70 FEET TO THE TRUE POINT OF BEGINNING OF THE HEREIN DESCRIBED CENTERLINE; THENCE LEAVING SAID RIGHT-OF-WAY LINE SOUTH 5' 00' 00" EAST A DISTANCE OF 30.00 FEET TO THE POINT OF
TERMINUS.
THE SIDE LINES OF SAID PARCEL "B", SHALL BE LENGTHENED AND/OR SHORTENED SO THAT SAID SIDE LINES SHALL BE CONTINUOUS AND SHALL BEGIN IN SAID SOUTHEASTERLY RIGHT-OF-WAY LINE OF DRYDEN PLACE AND SHALL TERMINATE ON A LINE WHICH BEARS NORTH 85' 00' 00" EAST THROUGH SAID POINT OF TERM1
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1 L-M. W.U. m -c. 273 I CITY OF CXk”&9D
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RESOLUTION ADOPTED BY UNANIMOUS WRITTEN CONSENT OF DIRECTORS OF
BENCHMARK PACIFIC, INC.
A California Corporation
January 26, 1989
The undersigned, being all of the directors of BENCHMARK PACIFIC, INC., a corporation organized under the General Corporation Law of California, do by this writing consent to the following action and adopt the following resoltuions:
RESOLVED, that DOUGLAS M. AVIS (D.M. AVIS), President of this Corporation, is authorized, empowered and directed to execute on behalf of this Corporation as general partner of Benchmark Pacific, Ltd., III, a California limited partnership as the sole signatory thereon on behalf of said Corporation, a Partnership Grant Deed from MI1 Partnership to the City of Carlsbad as an for an easement for waterline purposes.
January 26, 1989
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MI1 PARTNERSHIP AGREEMENT
THIS AGREEMENT is entered into as of this 23rd day of June,
1987, at Carlsbad, California, between BENCHMARK PACIFIC, LTD., a
California Limited Partnership, whose address fs 11300 Sorrento Valley
Lid, Suite 101, San Diego, California, 92121, DONOVAN E. WESTERFELD,
whose address is 6120 Paseo De1 Norte, Suite Ql;Carlsbad, California
92008 and GEORGE M. CULLINAN, whose address is 6120 Paseo De1 Norte,
Suite Ql, Carlsbad, California 92008, hereinafter for.convenience
referred to collectively as “the partners". I
l
RECITALS
WHEREAS, each of’the parties desire to enter into a partnership *
agreement upon the terms and conditions set forth herein.
IT IS MUTUALLY AGREED AND'UNDERSTOOD AS FOLLOWS:
1. NAME. The name of this partnership shall be: MI1 PARTNERSHIP.
I'
L, 2, PRINCIPAL PLACE OF BUSINESS. The principal place of business
of the partnership shall be at 11300 dorrento Valley Road, Suite 101,
San Diego, California, 92121.
3, PURPOSE: The purpose of this partnership shall be the
purchase, construction and development of an industrial building,
located on Lot 20, Carlsbad Airport Center, Carlsbad, California.
4. TERM: The partnership shall commence as of the date of this
! agreement and shall continue until'the property is sold by the part-
ners.
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5. FISCAL YEAR; The fiscal year of the partnership shall com-
mence on January 1 of each year and shall extend to December 31 of the
same year l
6. BASIS OF PARTNERSHIP ACCOUNTING8 The partnership books shall
be kept on a cash basis.
7. YEARLY ACCOUNTING: A yearly accounting, made as soon as
bracticable after the close of the. fiscal year, shall be available to
the partners. This accounting shall be conclusive on the partners and
shall not be modified except for some manifest error discovered and
protested within one (1) year from %he date of the accounting. For
accounting and tax reporting purposes, the net taxable profits or .
losses shall be allocated to the partners pro rata acceding to their
percentage of ownership.
8. DIVISION OF PROFITS AND LOSSES8 The profits and losses of the
partnership shall be presently divided between the partners as I
follows8
BENCHMARK PACIFIC, INC. 33 l/3%
c
DONOVAN E. WESTERFELD 33 l/3% I
GEORGE M. CULLINAN \ 33 l/3%
Distribution of profits and losses shall be made monthly or at such
convenient times as shall be unanimously agreed upon by the partners.
This profit percentdge shall be adjusted pursuant to any additional
capital contributions by the partners that are unequal pursuant to .
Earagraph 10 of this agreement. : *
L 1 9. ORIGINAL CAPITAL CONTRIBUTION: The parties have contributed I
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the following original capital contributions to the partnershipr
DENCHMARK PACIFIC, ‘LTD. $ e,333.33
DONOVAN Ee WESTERFELD $ 8,333.33
GEORGE M. CULLINAN , ' $ 8,333.33
10. ADDITIONAL CAPITAL CONTRIBUTIONSt It may be necessary from
&ime to time to make additional capital contributions to the part-
Warship. In the event that two (2) or more of the partners decide
that an additional capital contribution is necessary, a written hotice
shall go out to all partners, specifying the amount of the additional
capital contribution. This notice shall be delivered to ihe partners
within ten (10) days of the decision to make the additional capital
contribution and shall be in writing. Each of the partners shall have
thirty (30) days after the delivery of this notice to make the addi-
tional contributions required by the notice. In the event any partner
fails to make the contribution as called for by the notice within the
thirty (30) day period specified, then the remaining partners may, at
their option, (a) make the capital contribution on behalf of the non-
Mntributing partner, in which event an adjustment shall be made in
L re capital accounts (10 days after personal service of a notice of .
said contribution) reflecting the additional contributions made by the
contributing partners, or (b) dissolve this agreement pursuant to its
terms or the California Corporations Code.
11. MANAGEMENTt Control of the partnership shall vest in a
majority as determined by the capital accounts of the partners as they -
.iat at the time oE the vote in question. The partners hereby
appoint DOUG AVIS as the managing partner. This appointment may be
rescinded by the vote of a majority of the partners.
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12. SALARIES AND MANAGEMENT FEESt No partner shall be entitled
to salaries or management fees under this agreement unless the part-
ners shall otherwise unanimously agree in writing.
13: DISSOLUTIONt Upon the consent of a majority of the partners
Y- determined by their capital contributions, the partnership may be L
dissolved and the assets liquidated fokthwith. The partnership shall
engage in no further business thereafter other than that necessary to
wind up the business and distribute the assets.
14. AMENDMENT OF PARTNERSHIP AGREEMENT: These articles may be
amended by an agreement of a majority of the partners, as determined
by their capital accounts as they exist at the time oE the proposed
amendment, at any time during the continuance of the partnership. The -
agreement may be amended or modif ied in whole or in part, but any
amendment or modification shall be in writing and signed by all of the
partners. Any amendment or modificaton of this agreement shall be
dated, and where a conflict arises between the provisions of said -
(,-3ndment or modification and provisions incorporated in earlier docu-
ments, the most recent provisions shall be controlling.
15a PROUIBITED *ACTS: No partner shall engage in any of the
followfng acts without the written consent of all of the other
pzlrtnersr
(a) Assipn , pledge, hypothecate or mortgage any asset
“Longing to the firm or execute any bond or lease in the firm name)
i- (b) Pledge the credit of the firm in any way except in the
ordinary course of the partnership business1
(c) Releaee, assign, or transfer a partnership claim,
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security, commodity, or any other asset belonging to the firm;
(d) Release, assign, or transfer a partnership claim,
security, commodity, or any other asset belonging to the firm1
(e) Borrow money in the name of the firm or lend any money
b@onging to the firm1
L (f) Submit a partnershi p claim or liability or arbitration or .
reference or confess a judgment against the partnershipI or
(g) Sell, mortgage, hypothecate, or assign his share in the .
partnership or in profits or capital, other than to the other
partners.
16, PARTNERSflIP INTEREST ON DEATH, INSANITY OR DISABLEMENT. Upon
the death, insanity or disablement of 7 partner, the remaining part- .
ners shall have the right either to dissolve and liquidate the part-
nership or to continue the partnership business under its present
name. IJpon the death, insanity or disablement of a partner, that
partner’s interest in the partnership shall revert to his spouse or
(-- ate. The spouse or estate shall have the same right as the partner
\ ~8s entitled to in the partnership.
17, RIGHT OF FIRST REFUSALS Each of the partners hereby grants to
the other partner the exclusive option of the first refusal to
purchase that partner’s share of th? partnership for the same price
and upon the same terms as the same may be oEfered to any other person0
p_ersons, firm or corporation, so long as any of them are record owners
5 the property owned by the partnership or the partnership itself. \ ‘._ Each party agrees that he will not sell or convey his interest or
agree to do so without Eirst giving the other parties thirty (30) days
written notice of the opportunity to exercise this option of first
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reEusa1 to purchase said property. In the event the majority of the
partners as determined by their capital accounts desires to accept an .
oEEer to purchase the real property owned by the partnership, the non-
consenting partner shall have thirty (30) days to purchase the entire
partnership on the same terms and conditions as set forth in the ori-
ginal offer to the partners. In the event that the non-consenting i
c rtner does not desire to purchase the interest oE the consenting
partners, he shall be required to sell his interest in the partnership
and the entire partnership and the property owned by it shall be sold
in accordance with the terms of the original offer recyived by the
parties.
18. EXECUTION OF DOCUMENTS AND CHECKS, All checks in excess of
$ 5,000.00, except the normal mortgage and property tax payments shall
require the signature oE two partners, Checks for lesser amounts
shall only require one (1) partner’s signature.
19, INSPECTION OF PARTNERSHIP RECORDS, The partnership shall
maintain Eull, complete and accurate books at its principal officer,
. and all partners shall have the right to inspect and examine such
L oks at reasonable times upon reasonable notice. The books shall be
kept on a cash basis in accordance wit’h generally accepted accounting
principles consistently,applied. A separate income and capital
account shall be maintained for -each pzirCina.r. A compiled and/or
reviewed financial statement shall be. prepared annually and distri-
buted to the partners.
20. ARBITRATION8 In the event of any disagreement between any of
c trae partners and the partnership, or with reference to any oE the
.
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activities of the partners that cannot properly be settled or adjudi-
cated by the partners under the general authority as created herein,
such dispute or disagreement shall be arbitrated pursuant to the rules
and regulations of the American Arbitration Association then in
effect. Each of the disputant parties shall appoint one arbitrator,
-d in the event the number of arbitrators so appointed shall be even
\ ’ number, then the said arbitrators so appointed shall thereupon elect
an additional arbitrator, and the arbitrator appointed shall hear and
adjudicate the matter pursuant to’said rules and regulations.
21, CONSTRUCTION LOAN AND RELATED FINANCING8 The partners realfze
that they will have to obligate themselves personally for the
construction loan to build the building on the partnership property.
The partners,agree to execute any and all documents including, but not
limited to, personal guarantees to enable the partnership to obtain
siad financing.
IN WITNESS WHEREOF, the partner8 have executed .this amendment to
e_artnership agreement this 23rd day of 0
BENCHMARK PACIFIC, LTD. A California Limit d Parqership
. BY88 * ’
fi corporation, General Partner a
CONSENT OF SPOkES
We certify thatr
1, We are the spouses oE the persons who signed the foregoing .
Partnership Agreement arid who constitute the members of the part-
nership described in that Agreement, .-
2. We have read and approve the provisions of that Partnership
Agreement.
3. We agree to be bound by and accept those provlsiolrs of that
Partnership Agreement in lieu of all other interests we, or any of us1
have iri that partnership, whether the interest may be community pro- .
perty or otherwise.
Executed on this 16th day of December , 1987, at ---
Carlsbad , California,
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FIRST AMENDMENT To
MI1 PARTN~HIP AGREEMENT
Reference is made to the MI1 Partnership Agreement dated
June 23 I 1987, among BENCHMARK PACIFIC, LTD., DONOVAN E.
WESTERFELD and GEORGE M. CULLINAN (the Partners).
The Partners make this First Amendment to said Agreement to
correct a clerical error in the name of one of the Partners,
BENCHMARK PACIFIC, LTD., and to change the address of said partner
-x/c as well as the principal place of business of the Partnership.
The Partners therefore agree that the MI1 Partnership
Agreement is amended as follows:
1. The partners are BENCHMARK PACIFIC, LTD. III, a California
Limited Partnership, DONOVAN E. WESTERFELD and GEORGE M.
CULLINAN. The address of BENCHMARK PACIFIC, LTD. III is 6670,
El Camino Real, P.O. Box 9000-266, Carlsbad, California,
92009.
2. Paragraph 2 of the MI1 Partnership Agreement is amended to
state the principal place of business of the Partnership as
6670 El Camino Real. P.O. Box 9000-266, Carlsbad, California,
3. In all other respects the MI1 Partnership Agreement remains
L’
unmodified and in full force and effect.
Dated: December 1 , 1987.
BENCHMARK PACIFIC, LTD. III, A California Limited Partnership
By: BENCHMARK PACIFIC, INC. A California Corporation Its General Partner DONOVAN E. WESTEkFELD
v President
SECOND AMENDMENT TO
MI1 PARTNERSHIP AGREEMENT
Reference is made to the MI1 PARTNERSHIP AGREEMENT dated June 23 1987, and the First Amendment to Partnership Agreement dated December 1, 1987, among BENCHMARK PACIFIC, LTD., III, DONOVAN E. WESTERFELD and-GEORGE b!.(lCULLINAN (the Partners).
The partners make this Second Amendment to the Partnership Agreement to revise paragraph 11, Management, as follows:
1. The sentence "The partners hereby appoint DOUG AVIS as the managing partner." is deleted and the following substituted in its place'::
"The partners hereby appoint DOUG AVIS as the managing agent for the Partnership."
_. ,. -- 2.
L
In all other respects, the MI1 PARTNERSHIP AGREEMENT as amended remains unmodified and in full force and effect.
DATED: December 8, 1987
BENCHMARK PACIFIC, LTD., III A California Limited Partnership
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Recording Requested By: .
William N. Sauer, Jr.
When recorded, mail to!
William N. Sauer, Jr. .2910 Jefferson Street, Suite 200
Post Office Box 1185 Carlsbad, California 92008
STATEMENT OF PARTNERSHIP
-: ~~-h15075 I -
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i 1981 JUL 23 i’fi 3: 52
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MI1 PARTNERSHIP declares that:
(a) It is a partnership;
(b) The name of the partnership is MI1 PARTNERSHIP;
(c) The names of the partners are BENCHMARK,PACIFIC, LTD., a
L ,lifornfa Limited Partnership, DONOVAN E. WESTERFELD, and GEORGE M.
CULLINAN;
(d) The partners named in this statement are all the partners.
(e) BENCHMARK PACIFIC, LTD., DONOVAN E. WESTERFELD, and GEORGE M.
CULLINAN may convey (as defined in section 15010.5(2) of the
California Corporations Code) title to real property standing in the
partnership name by a conveyance executed in the partnership name.
This statement was executed on
, California.
3 , 1967, at
MI1 PARTNERSHIP .
BY; BENCHMARK PACIFIC, LTD. A California Limited Partnership
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The undersigned, each for himself, declares that:
I am a partner in the partnership named in the above statement of
partnership, and that statement of partnership is true of my own
knowledge.
I declare under penalty of perjury that the above is true and
correct and that this declaration was executed on L/23& I
1987, at y@%me , California.
_. --MI1 PARTNERSHIP
i
BY: BENCHMARK PACIFIC, LTD. A California Limited Partnership
BENCHMARK PACIFIC, INC. iypmpartner
State of California )
1 County of San Diego )
On this 23 JUNE 1987, before met the undersigned, a Notary Public, personally appeared DONOVAN E. WESTERFELD, known to me/proved to me on the oath of , to be one of the partners of the partnership that executed the withIn instrument, and - acknowledged to me that such partnership executed the same.
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OFFICIAl $ti ANNA C. WtLLM8
7i4$giGw
&mn&bn E&drw.tk~t?, f#n
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&&j&&J ua& Notary Public for the State of California ANNA C WILLIAMS
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State of California ) 1 County of San Diego )
On this 23 JUNE 1987, before me, the undersigned, a
Notary Public, personally appeared GEORGE. Ma CULLINAN, known to me/proved to me on the oath of ti& E mm r to be one of the ’ partners of the partnership that executed the within instrument, and
me that such partnership executed the same. 0
&‘& 6. (.&&a& Notary Public for the State of California
!+'y ~""ssb Expires 0~ (1, ,gaT
\ ANNA C HILLLAMS
-----S~WOO~,,,~
State of California ) 1
\ 7rnty of San Diego )
>--./’ On this the 23 day of JUNE , 1987, before
me, the undersigned, a State, personally appeared
n qnd for said County and proved
to me on the basis of e the President of the
corporation that executed the within instrument on behalf of the cor- poration therein named, and acknowledged to me that such corporation executed the within instrument pursuant to its by-laws or a resolution of it’s board of directors.
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California
ANNA C WILLIAMS
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Recording Requested By:
William N. Sauer, Jr.
When recorded, mail to:
William N. Sauer, Jr. 2910 Jefferson Street, Suite 200 Post Office Box 1185 Carlsbad, California 92008 I
STATEMENT OF PARTNERSHIP
MI1 PARTNERSHIP declares that:
ta) It is a partnership;
(b) The name of the partnership is MI1 Partnership;
,.-. (c) The name of the partners are BENCHMARK PACIFIC, LTD.
L- III, a California Limited Partnership, DONOVAN E. WESTERFELD, and
GEORGE M. CULLINAN;
(d) The partners named in this statement are all the
partners.
(e) BENCHMARK PACIFIC, LTD. III, DONOVAN E. WESTERFELD, and
GEORGE M. CULLINAN may convey (as defined in section 15010.5(2)
of the California Corporations Code) title to real property
standing in the partnership name by a conveyance executed in the
partnership name.
(f) This Statement of Partnership supercedes that certain
Statement of Partnership dated June 23, 1987, and recorded July
,- 23, 1987 at file/page no. 87-415075, official records, San Diego
i County, California.
This statement was executed on December 1 , 1987, at
Carlsbad , California.
eMI1 PARTNERSHIP
BY: BENCHMARK PACIFIC, LTD. III A California Limited Partnership
.I
,-' BENCHMARK PACIFIC, INC.
A corporation, general partner
By: -: &resident
DONOVAN E. WESTE
M. CULLINAN
.
.VERIFICATION
The undersigned, each for himself, declares that:
I am a partner in the partnership named in the above
statement of partnership, and that statement of partnership is
true of my own knowledge.
I declare under penalty of perjury that the above is true
and correct and that this declaration was executed on December 1,
1987, at Carlsbad , California.
-MI1 PARTNERSHIP
BY: BENCHMARK PACIFIC, LTD. III A California Limited Partnership
BENCHMARK PACIFIC, INC.
State of California)
1 County of San Diego)
On this 1st of Dec. 1987, before me, the undersigned, a
Notary Public, personally appeared DONOVAN E. WESTERFELD, known to me/gFe~e~=~e-me-en-~he-ea~h-e~-----------------------, to be one of the partners of the partnership that executed the within instrument, and acknowledged to me that such partnership executed' the same.
(seal)
NOTARY PUBLIC
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State of California) 1 County of San Diego)
On this 1st of Dec. 1987, before me, the undersigned, a Notary public, personally appeared GEORGE M. CULLINAN, known to me/p~~ne--on-~te-~r~---------------------- , t-0 be one of the partners of the partnership that executed the within in-
strument, and acknowledged to me that such partnership executed the same.
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NOTARY PUBLIC
NOTARY I’IJ~LIC .
State of California ) 1 County of San Diego )
On this the 1st day of December 1987, before me,
the undersigned, a Notary Public, in and foi said County and
State, personally appeared D. M. AVIS proved to me on
the basis of satisfactory evidence to be the President of the cor- poration that executed the within instrument on behalf of the cor- poration therein named, and acknowledged to me that such
corporation executed the within instrument pursuant to its by-laws or a resolution of its board of directors.
L
. CALIFORNIA SAN DIEGO COUNrY
k) 29-x & * NOTARY PUBLIC
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0 6. . a 6 . 81 1 1 : 3QALb.d r* LOMAE MALNACS!M.SNT
LOMAsmNAG&MGw . AMmberdtbr: Lomu Fiiciai Cmup
2mBtyy!‘Ibrua part cmcr Bo!c e5me DaUas.'Rxas?52659696 Tebphone: G!4174HlU
IMPOZWAN'S MESSAGE
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Telecopier # (214) 746-7585
PLEASE DELLrV=R TLtE P4fLOWING MESSAGE To:
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Canf irmtion I zm#-7&-73 td s
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Total ?W?ber Of Pages (inchding this cwfcr page)
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SECRETARY’S CEWIFICATE
I, Ar,geh Karta t a duly elacted, qualifiec? incumbent and
E&Zing Assistant S+crekety Of Lams MortgaQe USA, Inc,, fOr!W?rly
Thr Lamas s Nettlczcn Company (the ~~C~rnpany~~), n Connsctiout
cwp0fzitldn, da hereby certify ~a followa:
1. That the m~pp sf the reaolutiane attached hereto as Exhibit A (the “Enabling Resolution”) Is a true, correct and co~ple9.s copy of reoalutione adopted by Unsnimoue Witten Conewk of khe Board of Glrectors of the Company on February I, 19a5 I
2. mat t?~e ccxw OC the Dssignatian o? Ailthorized Officete attached hereto as Exhibrc B {the “Designation”) ia a trlie, CQrt0Ct and 0omple te deaignatisn exacilked by tess Hag, Chief &%~t~v”~ O?ficer of the csmpany: and
3- That the Enabling Rssolu’;ion and the Cesiqnation are unamanderl and in f?l:L force anb effect on the date hereof.
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AljsiBtanr Secretary
‘3s. 23. 6s 1; :aSAM - LOMAS MANA,CtfMLNT A .
Operat.ing 3.esol:;t ions
RWX,VED, that the Chairman cf the Baarc! OT the CMel Executive Officer be, and he hereby ie, authorized tb designate as Authcrized Officers sucl? officers of the Compn~y (or any subsidiary of the Co&any) as 11~1, in his sole discretion, may fr3m tim, 0 to time deem aclvfsable;
FURTHER RESOLV9D, I-hat any Authatizad Office:, cgeratinc wit!tir: tLf limits -pseseribed frcn: tiine to time by the Chairman of the EDard, may execute for an one behalf 0,’
the Cc;ntpany corrxit,?l.cnta to make loana or iavestrnents in the ordinary curse cf the Cax?any’s business and to execute, for &f!8 bl: bch&lf of %? Coml;any, ;li other documents relrtE!e thereeD, and subsequexztly tc execute any and ail *
) anendxients, releases or other doctimenta rolatsd thereto;
P','RT!iSR 3ESGLVED, that zny Auti?orixsd Officer’, operatizq within limits prescrrbe? frorr, tfme to time by the C!-mi;mn of the Board, may execute, for and on benalf of the Cmpany , aqreenents, ccnr:Tacta ot undertakings in any form r,a Jell, trlnsfcf, a8sign a& convey any asset: owned by the Company an6 be13 by th; CcmpaI?y in the ordinary coutse of :he Corrymy’s business and to execute, for and an benal,’ of the Cx~paq, all czhet dccumenrs related thereto, and subse- quently tc execute any end sll amendnents, regrasentatfann or 9ther 3oxmenrLs related thereto;
FUA?EE.S BESOLVED, tt?at tke Secretsry or any Assistant Secretary 3e, jnd each hereby is, authotLsmd to certify to approgrbta :esolLtions as requirad by any part (with whom the C0mpar.y may he :ransocting any business) to evidoncs the authority 3: any Authorized Officer to act in accordance wi:n the fsrng cing ccso:utions: prcvided, the Secretary shalL ratc;in witk tkc minutes cf this Board, copies of any resoluttons zectificd to’pzrsuent ta thie authcxization tagetker wlt!~ evidence of’ the Chairman’s approval thereof.
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EXHDxT “B’
LOMU MQRTGAGX USA, IN!.,
f OYmet ly THE LadA8 I 24JzTz’LETuEJ comm
DESIGNATION OF AUTSQRIBED OIPICEREI
Pur suani ta the authority granted by the Board of Directors
thrcugt: the xeaalutlor! adcpted by Unaaimous Written Consent of
the Board cf ~ir&ctors In Lieu cf a Meeting dated Bebtuary 1,
1985, the undersigned, JESS BAY, Chief Executive Offfaor of LOMAS
MGRTCaCE CGA, Ir+ic., foraerly The Lcz.as 4 Nettl0ton Company, a
Csmacticut cor~mzzian (the “Campany”), doee hereby dsgigmte
and appknt the following individuals OS Authorised Officor?a,gf
the iZormpany, tc wit:
DcEaid K. Adam Deborah Ann Baaon Rcn Cowar! Karen Dcr.ahua aiyne Farguson Mark Qregot-Pearae Rick C, Eawk James I?. Hill TinxiTy c. Kay Michael Lrr Herr Step!x3l %. xi?lg William Ligon Watt Maborzy Leigh Martin 6. Ronald McCleod Diane C. Mullinax 3'. Rusz Nicholsan Rhcnda E, Parker .San03:. Far.?ier Jamca K, O’Aeilly
Ben Phillip Paul Pi:ok Tatrlck Reed-Reimer Rnndall 3, Reid Joseeh C. Woos ,+-Todd %ith Sheri Statbuck Robert W, Talkington Angeli;, Venicor Reagan K, Vidal Jeff l4hitlatch .. Yvcnne WiLktraon Carey B. Wickland J-- Qfcgory Winchester .
Eeh sach Authorized Officer is hereby specifically authorised to ..‘-.;
execute for and on bahaif of the Cmparny conmitmcnts te make
loans 0: inveotnanto in the Ordinary course of the Cmpany’s
business, to sxcrcuto for anll on beharf of the Campany all other ..
&xxm.ents reiat-ed thereto, in~ludlr~g but not limited to, dseda
and relefAaes of lAens, and te exercise ~ueh additioeal dutlee aa
_-
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may be properly delegated te men Authorized Officer subaecwnt
to the date hereof by the Chi@f Elxecutlve Q~fl,ces of the Cbmpany,
This designation oh131 expire and terminate on October 26,
1989.
Jess tfay ’ cnief Executive OCficer
DATED: October 28, 1988
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Partnership has submitted a Grant Deed conveying an easement
lsbad for water1 ine purposes over a portion of Lot 20 of Map
WHEREAS, MI1
to the City of Car
11287; and
WHEREAS, MI1 Partnership has submitted a Subordination Agreement causing
said easements to be prior and superior to the lien or charge of the deed of
trust on the property; and
RESOLUTION NO. 89-184
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, ACCEPTING A GRANT DEED FOR WATERLINE EASEMENT PURPOSES ON LOT 20 OF AIRPORT BUSINESS CENTER (PD 311).
WHEREAS, the City Council of the City of Carlsbad has determined it to be
in the public interest to accept said Deed;
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 Grant Deed from MI1 Partnership dated January 26, 1989,
conveying an easement for waterline purposes over a portion of Lot 20 of Map
11287, Airport Business Center, to the City of Carlsbad which is on file with the
City Clerk and is incorporated herein by reference, is accepted.
3. That the Subordination Agreement from MI1 Partnership, dated April
6, 1989 causing easements to be prior and superior to the lien or charge of the
deed of trust on the property which is on file with the City Clerk and is
incorporated herein by reference, is acepted.
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ATTEST:
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4. That the City Clerk is authorized to cause the original Deed and
Subordinaton Agreement to be recorded in the Office of the County Recorder of San
Diego County, State of California, with the appropriate Certificate of Acceptance
attached.
PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City
Council held on the 20th day of June , 1989 by the following vote, to
wit:
AYES: Council Members Lewis, Mamaux & Pettine
NOES: None
ABSENT:
Counci1 Members C&g&&
(SEAL)