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Home My WebLink About1995-11-14; City Council; 13384 Exhibit 3; Encina Wastewater Land Acquisition- ~ _-- SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS FROM COVERAGE CONTAINED IN SCHEDULE B AND THE CONDITIONS AND STIPULATIONS, FIRST AMERICAN TITLE INSURANCE COMPANY, a California corporation, herein called the Company, insures, as of Date of Policy shown in Schedule A, against loss or damage, not exceeding the Amount of Insurance stated in Schedule A, sustained or incurred by the insured by reason of: 1 Title to the estate or interest described in Schedule A being vested other than as stated therein; 2. Any defect in or lien or encumbrance on the title; 3. Unmarketability of the title, 4. Lack of a right of access to and from the land. The Company will also pay the costs, attorneys’ fees and expenses incurred in defense of the title, as insured, but only to the extent provided in the Conditions and Stipulations. f%Kican Etle Insurance Cc*mpafly I’RI.:SIDWN7 ‘i CC‘RE? 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JO :IJEd e SEM JO s! puel ayi tp!y~ JO la3JEd hue JO puel ayl~o eaie JO suo!suau!p ayl u! afiuey3 e JO d!qSJaUMO u! UO!ieJEdaS e ( ayi uo papala ialjEaJay JO MOU luawaAoJdw! hue 40 UO!~E!IOI JO suo!suaqp 'Jai3eiey3 ayi (11) fpuq ayi io ltiauho(ua JO 'asn 'A3uednmo a41 (!) 01 6i fiu!g!q!yo~d 'bu!ielnba~ '6u!i3plsa~ (suo!lelnfia~ JO 'saweu!pJo 'SMEI Gu!uoz put 6u!pl!nq 01 pai!ur!l ioti Inq GuIpnpu!) uo!ielnba~ ~'e~uawu~anofi JO a3u~u!pio :io 1 q3Iy~ sasuadxa .IO saaj ,sAauiouE 'slso3 'a6ewep JO ssol kd IOU II!M hueduo3 ayl pue hqod s!yl 40 a6e~a~o3 ayl uci~ papnpxa hlssaidxa are srage 33Vt13A03 mouj SNOISnl3X3 I 4 w 0 FORM NO. 1402.92 ORDER NO. 112213! (10/17/92) ALTA OWNER'S POLICY WESTERN REGIONAL EXCEPTIONS JLC SCHEDULE A POLICY NO. 1122135 PREMIUM $5,571 AMOUNT OF INSURANCE $4,456,450.00 DATE OF POLICY: DECEMBER 21, 1995 AT 9:43 P.M. 1. NAME OF INSURED: THE CITY OF CARSLBAD, A MUNICIPAL CORPOFGlTION 2. THE ESTATE OR INTEREST IN THE LAND WHICH IS COVERED BY T POLICY IS : FEE 3. TITLE TO THE ESTATE OR INTEREST IN THE LAND IS VESTED IN: THE CITY OF CARSLBAD, A MUNICIPAL CORPORATION 4. THE LAND REFERRED TO IN THIS POLICY IS DESCRIBED AS FOLLO SEE EXHIBIT "1" ATTACHED HERETO PAGE 1 , w w FORM NO. 1402.92 ORDER NO. 1122135 (10/17/92) ALTA OWNER'S POLICY WESTERN REGIONAL EXCEPTIONS SCHEDULE B THIS POLICY DOES NOT INSURE AGAINST LOSS OR DAMAGE (AND THE COME WILL NOT PAY COSTS, ATTORNEYS' FEES OR EXPENSES) WHICH ARISE REASON OF: PART ONE: 1. TAXES OR ASSESSMENTS WHICH ARE NOT SHOWN AS EXISTING LIEN: THE RECORDS OF ANY TAXING AUTHORITY THAT LEVIES TAXES ASSESSMENTS ON REAL PROPERTY OR BY THE PUBLIC RECORDS. 2. ANY FACTS, RIGHTS, INTEREST, OR CLAIMS WHICH ARE NOT SHOWP. THE PUBLIC RECORDS BUT WHICH COULD BE ASCERTAINED BY INSPECTION OF SAID LAND OR BY MAKING INQUIRY OF PERSONS POSSESSION THEREOF. 3. EASEMENTS, CLAIMS OF EASEMENT OR ENCUMBRANCES WHICH ARE SHOWN BY THE PUBLIC RECORDS. 4. DISCREPANCIES, CONFLICTS IN BOUNDARY LINES, SHORTAGE IN AR ENCROACHMENTS, OR ANY OTHER FACTS WHICH A CORRECT SURVEY WC DISCLOSE, AND WHICH ARE NOT SHOWN BY PUBLIC RECORDS. 5. (A) UNPATENTED MINING CLAIMS; (B) RESERVATIONS OR EXCEPT1 IN PATENTS OR IN ACTS AUTHORIZING THE ISSUANCE THEREOF; WATER RIGHTS, CLAIMS OR TITLE TO WATER, WHETHER OR NOT MATTERS EXCEPTED UNDER (A) , (B) OR (C) ARE SHOWN BY THE PUE RECORDS. 6. ANY LIEN, OR RIGHT TO A LIEN, FOR SERVICES, LABOR OR MATER THERETOFORE OR HEREAFTER FURNISHED, IMPOSED BY LAW AND; SHOWN BY THE PUBLIC RECORDS. PART TWO: 1. THE RECITAL CONTAINED ON THE MAP OF SAID LAND WHICH AGREES ALLOW THE CROSSARMS OF POLES OR SIMILAR STRUCTURES PLA ALONG THE RIGHT OF WAY OF CERTAIN HIGHWAYS TO HANG OVER ABUTTING LAND. 2. RIGHTS OF THE PUBLIC IN AND TO ANY PORTION OF THE HER DESCRIBED PROPERTY LYING WITHIN ROADS, STREETS OR HIGHWAY PAGE 2 0 FORM NO. 1402.92 ORDER NO. 1122135 (10/17/92) ALTA OWNER’S POLICY WESTERN REGIONAL EXCEPTIONS 3. AN EASEMENT FOR PUBLIC UTILITIES AND INCIDENTAL PURPOSES DELINEATED AND DESIGNATED ON MAP NO. 2013, SUBJECT TO TERMS AND CONDITIONS CONTAINED THEREIN. AFFECTS: AS SHOWN AND DELINEATED ON THAT PORTION OF HEREIN DESCRIBED PROPERTY LYING WITHIN BLOCKS THROUGH 31 OF SAID LA COSTA DOWNS UNIT NO. 1, NO. 2013. 4. AN EASEMENT FOR EITHER OR BOTH POLE LINES, UNDERGRC CONDUITS AND INCIDENTAL PURPOSES TOGETHER WITH THE RIGHT INGRESS AND EGRESS IN FAVOR OF PACIFIC TELEPHONE AND TELEGR COMPANY BY INSTRUMENT RECORDED JUNE 4, 1941 IN BOOK 1191, F 36 OF OFFICIAL RECORDS, LOCATED WITHIN THAT OF LOT 6 IN BL 21 OF LA COSTA DOWNS UNIT NO. 1, IN THE CITY OF CARLSE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THEREOF NO. 2013, FILED IN THE OFFICE OF THE COUNTY RECOR OF SAN DIEGO COUNTY, APRIL 26, 1927, HEREIN DESCRIB DESCRIBED AS FOLLOWS: BEGINNING AT A POINT ON THE NORTH LOT LINE OF SAID LOT APPROXIMATELY 25 FEET EAST OF THE WEST PROPERTY LINE, RUNNING SOUTH TO A POINT ON THE SOUTH PROPERTY LINE, A TO DISTANCE OF 60 FEET. 5. AN EASEMENT FOR EITHER OR BOTH POLE LINES, UNDERGRO CONDUITS AND INCIDENTAL PURPOSES TOGETHER WITH THE RIGHT INGRESS AND EGRESS IN FAVOR OF PACIFIC TELEPHONE AND TELEGR COMPANY BY INSTRUMENT RECORDED SEPTEMBER 4, 1941 IN BOOK 12 PAGE 258 OF OFFICIAL RECORDS, LOCATED WITHIN A STRIP OF L 15 FEET WIDE, ACROSS THE FOLLOWING DESCRIBED PREMISES IN COUNTY OF SAN DIEGO, STATE OF CALIFORNIA: LOT 9 IN BLOCK 21 OF LA COSTA DOWNS UNIT NO. 1, IN THE COU OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THER NO. 2013, FILED IN THE OFFICE OF THE COUNTY RECORDER OF DIEGO COUNTY, APRIL 6, 1927. THE CENTER LINE OF SAID 15 FOOT STRIP IS DESCRIBED AS FOLLO BEGINNING AT A POINT ON THE NORTH LOT LINE APPROXIMATELY FEET EAST OF THE EAST BOUNDARY OF THE ATCHISON, TOPEKA SANTA FE RAILWAY COMPANY RIGHT OF WAY; THENCE PARALLELING EAST BOUNDARY OF THE ATCHISON, TOPEKA AND SANTA FE RAIL COMPANY RIGHT OF WAY TO A POINT ON THE SOUTH LOT LINE. PAGE 3 W FORM NO. 1402.92 ORDER NO. 1122139 (10/17/92) ALTA OWNER'S POLICY WESTERN REGIONAL EXCEPTIONS AMONG OTHER THINGS, SAID DOCUMENT PROVIDES FOR: "GRANTORS RESERVE THE RIGHT TO CONSTRUCT UPON SAID RIGHT WAY A DRIVEWAY AND/OR A SINGLE GARAGE. GRANTORS RESERVE THE RIGHT TO USE THE SAID LAND AGRICULTURAL PURPOSES NOT INCONSISTENT WITH THE USES HEE GRANTED. I' 6. AN EASEMENT FOR UNDERGROUND TELEPHONE STRUCTURES APPURTENANCES AND INCIDENTAL PURPOSES IN FAVOR OF SOUTE CALIFORNIA TELEPHONE COMPANY, A CORPORATION, RECOE SEPTEMBER 26, 1941 IN BOOK 1255, PAGE 72 OF OFFICIAL RECOE LOCATED WITHIN A STRIP OF LAND 15 FEET WIDE, ACROSS FOLLOWING DESCRIBED PREMISES IN THE COUNTY OF SAN DIEGO, ST OF CALIFORNIA: THAT PORTION OF LOTS 1 AND 2 IN SECTION 20, TOWNSHIP 12 SOL RANGE 4 WEST, SAN BERNARDINO BASE AND MERIDIAN EAST OF EAST LINE OF THE RIGHT OF WAY OF THE ATCHISON, TOPEKA SANTA FE RAILROAD COMPANY AND SOUTH OF THE SOUTH BOUNDARY THE RANCHO AGUA HEDIONDA AS SAID SOUTH LINE WAS ESTABLIS MAY 5, 1913 BY DECREE OF THE SUPERIOR COURT OF THE STATE CALIFORNIA IN AND FOR THE COUNTY OF SAN DIEGO IN THAT CERT ACTION NO. 16830 ENTITLED KELLY INVESTMENT COMPANY, CORPORATION, VERSUS CLARENCE DAYTON HILLMAN AND BESSIE OL HILLMAN. EXCEPTING FROM THE ABOVE-DESCRIBED PROPERTY ANY PORTION . LYING WITHIN LA COSTA DOWNS, UNIT NO. 1, AS SHOWN ON MAP 2013, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SA" DI COUNTY, APRIL 6, 1927. LOTS 1 TO 5 INCLUSIVE, 7, 8, 10, 11, AND 12 TO 19, INCLUSI IN BLOCK 21 OF LA COSTA DOWNS UNIT NO. 1, IN THE COUNTY OF DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP NO. 2013, FI IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUN APRIL 6, 1927. NOTE: LOTS 12 TO 19, INCLUSIVE, ABOVE REFERRED TO, INCLUDED WITHIN THAT PORTION OF SAID MAP THAT WAS VACATEC SUPERIOR COURT ACTION NO. 87499. THE CENTER LINE OF SAID 15 FOOT STRIP IS DESCRIBED AS FOLLC PAGE 4 0 w FORM NO. 1402.92 ORDER NO. 1122135 (10/17/92) ALTA OWNER'S POLICY WESTERN REGIONAL EXCEPTIONS BEGINNING AT A POINT ON THE NORTHERLY PROPERTY LINE OF LO7 SECTION 20, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNARL BASE AND MERIDIAN AND FROM SAID POINT OF BEGINNING INTERSECTION OF THE WESTERLY RIGHT OF WAY LINE OF ATCHISON, TOPEKA AND SANTA FE RAILROAD RIGHT OF WAY IN LO7 RANCHO AGUA HEDIONDA, AND THE NORTHERLY LINE OF LOT 1, SECT 20, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNARDINO BASE MERIDIAN, BEARS SOUTH 89O59'47" WEST 185.40 FEET; THENCE SC 19O18'41" EAST 1198.22 FEET TO A POINT ON THE NORTHERLY L OF LOT 19, BLOCK 21, LA COSTA DOWNS, UNIT NO. 1; THENCE SC 19O06'40" EAST 224.19 FEET TO A POINT; THENCE ON THE ARC C CIRCLE CONCAVE TO THE WEST WHOSE DELTA ANGLE IS 2O AND LE& IS 196.14 FEET; THENCE SOUTH 21O06'40" EAST 179.45 FEET 'I POINT ON THE SOUTH LINE OF LOT 10, BLOCK 21, LA COSTA DOW UNIT NO. 1; WHICH POINT BEARS NORTH 68O53'20" EAST 25 F FROM THE SOUTHWEST CORNER OF LOT 10; THENCE BEGINNING A POINT ON THE NORTHERLY LINE OF LOT 5, BLOCK 21, LA CC DOWNS, UNIT NO. 1, SAID POINT BEARING NORTH 68O53'20' EAST FEET FROM THE NORTHWEST CORNER OF LOT 5; THENCE SC 21O06'40' EAST 288.87 FEET TO A POINT ON THE SOUTH LINE OF 1, BLOCK 21, LA COSTA DOWNS, UNIT NO. 1, FROM WHICH SAID PC SOUTHWEST CORNER OF LOT 1 BEARS SOUTH 89O58'20" WEST 26 FEET. BEGINNING AT A POINT ON THE NORTH PROPERTY LINE OF LOT BLOCK 21, LA COSTA DOWNS, UNIT NO. 1, FROM WHICH SAID PO THE NORTHWEST CORNER OF LOT 8 BEARS SOUTH 68O53'20" WEST FEET; THENCE SOUTH 21°06'40" EAST 120 FEET TO THE POINT TERMINATION, FROM WHICH SAID POINT SOUTHWEST CORNER OF LO BEARS SOUTH 68O53'20" WEST 25 FEET. 7. AN EASEMENT FOR EITHER OR BOTH POLE LINES, UNDERGRO CONDUITS AND INCIDENTAL PURPOSES TOGETHER WITH THE RIGHT INGRESS AND EGRESS IN FAVOR OF PACIFIC TELEPHONE AND TELEGR COMPANY BY INSTRUMENT RECORDED MARCH 1, 1954 IN BOOK 51 PAGE 241 OF OFFICIAL RECORDS, DESCRIBED AS FOLLOWS: THAT PORTION OF LOTS 1 AND 2 IN SECTION 20, TOWNSHIP 12 SOU RANGE 4 WEST, SAN BERNARDINO BASE AND MERIDIAN, EAST OF EAST LINE OF THE RIGHT OF WAY OF THE ATCHISON, TOPEKA SANTA FE RAILROAD COMPANY AND SOUTH OF THE SOUTH BOUNDARY THE RANCHO AGUA HEDIONDA AS SAID SOUTH LINE WAS ESTABLIS MAY 5, 1913 BY DECREE OF THE SUPERIOR COURT OF THE STATE CALIFORNIA IN AND FOR THE COUNTY OF SAN DIEGO IN THAT CERT ACTION NO. 16830 ENTITLED KELLY INVESTMENT COMPANY, CORPORATION, VERSUS CLARENCE DAYTON HILLMAN AND BESSIE OL HILLMAN. PAGE 5 w w FORM NO. 1402.92 ORDER NO. 1122135 (10/17/92) ALTA OWNER'S POLICY WESTERN REGIONAL EXCEPTIONS EXCEPTING FROM THE ABOVE-DESCRIBED PROPERTY ANY PORTION Lk WITHIN LA COSTA DOWNS, UNIT NO. 1, AS SHOWN ON MAP NO. 2C FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DI COUNTY, APRIL 6, 1927. LOTS 1 TO 19, BLOCK 21, LA COSTA DOWNS, UNIT NO. 1, IN COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THEREOF NO. 2013, FILED IN THE OFFICE OF THE COUNTY RECOE OF SAID SAN DIEGO COUNTY, APRIL 6, 1927. THE CENTER LINE OF SAID 15 FOOT STRIP IS DESCRIBED AS FOLLC BEGINNING AT A POINT ON THE NORTHERLY PROPERTY LINE OF LO? SECTION 20, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNARC BASE AND MERIDIAN, AND FROM SAID POINT OF BEGINNING INTERSECTION OF THE WESTERLY RIGHT OF WAY LINE OF ATCHISON, TOPEKA AND SANTA FE RAILROAD RIGHT OF WAY IN LO? RANCHO AGUA HEDIONDA AND THE NORTHERLY LINE OF LOT 1 SECT 20, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNARDINO BASE MERIDIAN, BEARS SOUTH 89O49'47" WEST 185.40 FEET; THENCE SC 19O18'41" EAST 1198.22 FEET TO A POINT ON THE NORTHERLY L OF LOT 19, BLOCK 21, LA COSTA DOWNS, UNIT NO. 1; THENCE SO 19O06'40" EAST 224.19 FEET TO A POINT; THENCE ON THE ARC C CIRCLE CONCAVE TO THE WEST WHOSE DELTA ANGLE IS 2O AND LEN IS 196.14 FEET; THENCE SOUTH 21°06'40" EAST 708.32 FEET T POINT ON THE SOUTH LINE OF LOT 1, BLOCK 21, LA COSTA DOW UNIT NO. 1, FROM WHICH SAID POINT THE SOUTHWEST CORNER OF S LOT 1 BEARS SOUTH 89O58'20" WEST 26.79 FEET. 8. AN EASEMENT FOR EITHER OR BOTH POLE LINES, UNDERGRO CONDUITS AND INCIDENTAL PURPOSES TOGETHER WITH THE RIGHT INGRESS AND EGRESS IN FAVOR OF PACIFIC TELEPHONE AND TELEGR COMPANY BY INSTRUMENT RECORDED SEPTEMBER 28, 1954 IN B 5378, PAGE 496 OF OFFICIAL RECORDS, LOCATED WITHIN SOUTHWESTERLY 10 FEET OF LOTS 1 TO 19 INCLUSIVE, IN BLOCK MAP NO. 2013. 9. THE FACT THAT THE OWNERSHIP OF SAID LAND DOES NOT INCLUDE RIGHTS OF INGRESS OR EGRESS TO OR FROM STATE HIGHWAY (11SD ADJACENT THERETO, SAID RIGHTS HAVING BEEN RELINQUISHED BY D RECORDED FEBRUARY 16, 1966 AS FILE NO. 27424 OF OFFIC RECORDS. 10. THE FACT THAT THE OWNERSHIP OF SAID LAND DOES NOT INCLUDE RIGHTS OF INGRESS OR EGRESS TO OR FROM STATE HIGHWAY (11SD ADJACENT THERETO, SAID RIGHTS HAVING BEEN RELINQUISHED BY D RECORDED MARCH 3, 1966 AS FILE NO. 37199 OF OFFICIAL RECOR PAGE 6 w w FORM NO. 1402.92 ORDER NO. 1122135 (10/17/92) ALTA OWNER'S POLICY WESTERN REGIONAL EXCEPTIONS 11. AN EASEMENT FOR SEWER PURPOSES AND INCIDENTAL PURPOSES FAVOR OF CITY OF CARLSBAD, RECORDED JUNE 19, 1972 AS FILE 156152 OF OFFICIAL RECORDS, DESCRIBED AS FOLLOWS: A NON-EXCLUSIVE EASEMENT FOR SANITARY SEWER PURPOSES 30 E IN WIDTH BEING PORTIONS OF LOTS 10 THROUGH 19 INCLUSIVE, I 7 AND 8, AND LOTS 1 THROUGH 5 INCLUSIVE, ALL IN BLOCK 21 01 COSTA DOWNS UNIT 1, IN THE COUNTY OF SAN DIEGO, STATE CALIFORNIA, ACCORDING TO MAP THEREOF NO. 2013, FILED IN OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, APRIL 6, 14 AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: THE NORTHEASTERLY 30 FEET OF THE SOUTHWESTERLY 62.50 F LYING PARALLEL OR CONCENTRIC WITH THE SOUTHWESTERLY LINES SAID LOTS, AS SHOWN ON THE MAP ATTACHMENT "A" INCLUDED HEE AND MADE A PART HEREOF. 12. AN EASEMENT FOR SEWER PIPELINE OR PIPELINES AND INCIDEN PURPOSES IN FAVOR OF LEUCADIA COUNTY WATER DISTRICT AND ENCINITAS SANITARY DISTRICT, RECORDED OCTOBER 12, 1972 AS F NO. 273391 OF OFFICIAL RECORDS, DESCRIBED AS FOLLOWS: THE NORTHEASTERLY 30 FEET OF THE SOUTHWESTERLY 62.50 FEET LOTS 10 THROUGH 19 INCLUSIVE , LOTS 7 AND 8 , AND LOTS 1 THRC 5 INCLUSIVE, ALL IN BLOCK 21, OF LA COSTA DOWNS UNIT NO. 1, THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THEREOF NO. 2013, FILED IN THE OFFICE OF THE COUNTY RECOR OF SAN DIEGO COUNTY, APRIL 6, 1927. SAID EASEMENT L PARALLEL WITH THE SOUTHWESTERLY LINE OF SAID LOTS 10 THRO 19, LOTS 7 AND 8 AND LOTS 1 THROUGH 5. 13. AN EASEMENT FOR SEWER PIPELINE OR PIPELINES AND INCIDEN PURPOSES IN FAVOR OF LEUCADIA COUNTY WATER DISTRICT AND ENCINITAS SANITARY DISTRICT, RECORDED FEBRUARY 8, 1973 AS F NO. 73-034372 OF OFFICIAL RECORDS, DESCRIBED AS FOLLOWS: THE NORTHEASTERLY 30 FEET OF THE SOUTHWESTERLY 62.50 FEET LOT 9 IN BLOCK 21 OF LA COSTA DOWNS UNIT NO. 1, IN THE COU OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THER NO. 2013, FILED IN THE OFFICE OF THE COUNTY RECORDER OF DIEGO COUNTY, APRIL 6, 1927. SAID EASEMENT LIES PARALLEL W THE SOUTHWESTERLY LINE OF SAID LOT 9. 14. AN EASEMENT FOR SANITARY SEWER PURPOSES AND INCIDEN PURPOSES IN FAVOR OF CITY OF CARLSBAD, RECORDED MARCH 1, 1 FOLLOWS : AS FILE NO. 73-054482 OF OFFICIAL RECORDS, DESCRIBED PAGE 7 w w FORM NO. 1402.92 ORDER NO. 1122135 (10/17/92) ALTA OWNER'S POLICY WESTERN REGIONAL EXCEPTIONS A NON-EXCLUSIVE EASEMENT FOR SANITARY SEWER PURPOSES 3C FEET IN WIDTH BEING A PORTION OF LOT 9 IN BLOCK 21 OF LA CC DOWNS UNIT NO. 1, IN THE COUNTY OF SAN DIEGO, STATE CALIFORNIA, ACCORDING TO MAP THEREOF NO. 2013, FILED IN OFFICE OF THE COUNTY RECORDER OF SAID COUNTY APRIL 6, 1s AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: THE NORTHEASTERLY 30.00 FEET OF THE SOUTHWESTERLY 62.50 F LYING PARALLEL WITH SOUTHWESTERLY LINE OF SAID LOT, AS SE ON ATTACHMENT "A" MAP INCLUDED HEREIN AND MADE A PART HERE 15. AN EASEMENT FOR SANITARY SEWER PURPOSES AND INCIDEb PURPOSES IN FAVOR OF CITY OF CARLSBAD, RECORDED MARCH 1, 1 FOLLOWS : A NON-EXCLUSIVE EASEMENT FOR SANITARY SEWER PURPOSES 3C FEET IN WIDTH BEING A PORTION OF LOT 6 IN BLOCK 21 OF LA CC DOWNS UNIT NO. 1, IN THE COUNTY OF SAN DIEGO, STATE CALIFORNIA, ACCORDING TO MAP THEREOF NO. 2013, FILED IN OFFICE OF THE COUNTY RECORDER OF SAID COUNTY APRIL 6, 15 AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: THE NORTHEASTERLY 30.00 FEET OF THE SOUTHWESTERLY 62.50 F LYING PARALLEL WITH SOUTHWESTERLY LINE OF SAID LOT, AS SF ON ATTACHMENT "A" MAP INCLUDED HEREIN AND MADE A PART HERE 16. AN EASEMENT FOR SEWER PIPELINE AND PIPELINES AND INCIDEh PURPOSES IN FAVOR OF LEUCADIA COUNTY WATER DISTRICT ENCINITAS SANITARY DISTRICT, RECORDED APRIL 6, 1973 AS F AS FILE NO. 73-054483 OF OFFICIAL RECORDS, DESCRIBED NO. 73-090068 OF OFFICIAL RECORDS, DESCRIBED AS FOLLOWS: THE NORTHEASTERLY 30.00 FEET OF THE SOUTHWESTERLY 62.50 F OF LOT 6 IN BLOCK 21 OF LA COSTA DOWNS UNIT 1, IN THE COL OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEE NO. 2013, FILED IN THE OFFICE OF THE COUNTY RECORDER OF DIEGO COUNTY, APRIL 6, 1927. SAID EASEMENT LIES PARALLEL h THE SOUTHWESTERLY LINE OF SAID LOT 6. 17. AN EASEMENT FOR UNDERGROUND WATER PIPELINE AND INCIDEb PURPOSES IN FAVOR OF COSTA REAL MUNICIPAL WATER DISTRICT MUNICIPAL WATER DISTRICT, RECORDED JANUARY 29, 1982 AS E NO. 82-027068 OF OFFICIAL RECORDS, DESCRIBED AS FOLLOWS: PAGE 8 W w FORM NO. 1402.92 ORDER NO. 1122135 (10/17/92) ALTA OWNER'S POLICY WESTERN REGIONAL EXCEPTIONS ALL THOSE PORTIONS OF LOTS 1 THROUGH 11, INCLUSIVE, AND L 12 THROUGH 19, INCLUSIVE (AS SAID LOTS 12 THROUGH 19 h VACATED AND EXCLUDED ON FEBRUARY 19, 1937, IN BOOK 620, E 213, OF OFFICIAL RECORDS) ALL BEING IN BLOCK 21 OF LA CC DOWNS UNIT NO. 1, IN THE CITY OF CARLSBAD, COUNTY OF DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 2C FILED IN THE OFFICE OF SAID COUNTY RECORDER ON APRIL 6, 15 MORE PARTICULARLY DESCRIBED AS FOLLOWS: ALL THOSE PORTIONS OF SAID LOTS 1 THROUGH 19 LYING BETWEEN MOST NORTHEASTERLY LINE OF SAID BLOCK 21 AND A LINE PARA1 WITH AND 62.50 FEET NORTHEAST OF THE MOST SOUTHWESTERLY I OF SAID BLOCK 21; ALL AS SHOWN ON THE PLAT ATTACHED HERETC EXHIBIT A (THE "EASEMENT"). 18. THE FACT THAT SAID LAND LIES WITHIN THE CITY OF CARLS COMMUNITY FACILITIES DISTRICT NO. 1, AS DISCLOSED INSTRUMENT RECORDED DECEMBER 19, 1990 AS FILE NO. 90-67411t OFFICIAL RECORDS. NOTICE OF SPECIAL TAX LIEN, RELATIVE TO SAID CITY OF CARLS COMMUNITY FACILITIES DISTRICT NO. 1, RECORDED MAY 20, 1991 FILE NO. 91-0236959 OF OFFICIAL RECORDS 19. AN EASEMENT FOR ROADWAYS AND INCIDENTAL PURPOSES IN FAVOF THE CITY ' OF CARLSBAD, A MUNICIPAL CORPORATION RECOF FEBRUARY 23, 1994 AS FILE NO. 1994-0121630 OF OFFIC RECORDS, DESCRIBED AS FOLLOWS: THAT PORTION OF SECTION 20, TOWNSHIP 12 SOUTH, RANGE 4 WE SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF CARLSE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO OFFICIAL PLAT THEREOF AND THAT PORTION OF LA COSTA DOWNS I. NO. 1, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE CALIFORNIA, ACCORDING TO MAP THEREOF NO. 2013, FILED IN OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, APRIL 1927, DESCRIBED IN DEED TO SAMMIS CARLSBAD ASSOCIATES CALIFORNIA GENERAL PARTNERSHIP, DATED NOVEMBER 11, 15 RECORDED NOVEMBER 14, 1986 AS FILE NO. 86-524055 OF OFFIC RECORDS, ALL THAT PORTION LYING SOUTHERLY, SOUTHWESTERLY WESTERLY OF COURSES (1) THROUGH (5) DESCRIBED BELOW FOLLOWS : PAGE 9 m 0 FORM NO. 1402.92 ORDER NO. 112213: (10/17/92) ALTA OWNER'S POLICY WESTERN REGIONAL EXCEPTIONS COMMENCING AT A STANDARD M-10 WELL MONUMENT WITH BRASS I STAMPED R.C.E. 27732 LOCATED ON THE CENTERLINE OF AVEP ENCINAS AT THE NORTHERLY END OF A CURVE CONCAVE TO THE 1 HAVING A RADIUS OF 1700 FEET AS SHOWN ON CARLSBAD TRACT 81-5 ACCORDING TO MAP THEREOF NO. 10899 FILED IN THE OFFICI SAID COUNTY RECORDER; THENCE NORTHWESTERLY ALONG : CENTERLINE PER MAP NO. 10899 NORTH 26O09'36" WEST 389.26 I (NORTH 26O50'59 WEST RECORD); THENCE LEAVING SAID CENTER1 NORTH 63O50'24" EAST 42.00 FEET TO THE TRUE POINT OF BEGIN? CONCAVE SOUTHWESTERLY A RADIAL LINE TO SAID POINT BEARS N( 63O50'24" EAST; THENCE (1) NORTHWESTERLY ALONG THE ARC OF L CURVE THROUGH A CENTRAL ANGLE OF 63O11'24" A DISTANCE 708.05 FEET; THENCE (2) NORTH 89°21'01" WEST 180.83 FEET ' TANGENT CURVE CONCAVE NORTHEASTERLY HAVING A RADIUS OF 55t FEET; THENCE (3) NORTHWESTERLY ALONG THE ARC OF SAID CI THROUGH A CENTRAL ANGLE OF 68O56'09" A DISTANCE OF 67: FEET; THENCE (4) NORTH 20°24"52" WEST 728.31 FEET TO A TAN( CURVE CONCAVE NORTHEASTERLY; THENCE ( 5 ) NORTHWESTERLY AI THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF OO58'3; DISTANCE OF 9.50 FEET TO THE MOST NORTHERLY LINE OF BLOC1 OF SAID MAP 2013, SAID POINT BEING THE POINT OF TERMINUS. TOGETHER WITH THE PRIVILEGE AND RIGHT TO EXTEND, EXCAVAl AND EMBANKMENT SLOPES 10 FEET BEYOND THE LIMITS OF HE€ DESCRIBED ROAD EASEMENT, WHERE REQUIRED FOR CONSTRUCTION, $ PRIVILEGE TO EXTEND SLOPES AND CONSTRUCTION EASEMENT P TERMINATE UPON FILING OF NOTICE OF COMPLETION. SAID INSTRUMENT ALSO GRANTS THE PRIVILEGE AND RIGHT TO EX1 AND MAINTAIN DRAINAGE STRUCTURES AND EXCAVATION AND EMBANKD SLOPES BEYOND THE LIMITS OF SAID RIGHT OF WAY WHERE REQUl FOR THE CONSTRUCTION AND MAINTENANCE THEREOF. AND THE BEGINNING OF A NON-TANGENT 642.00 FOOT RADIUS CT 20. THE FACT THAT SAID LAND LIES WITHIN THE ANNEXATION MAP NC OF COMMUNITY FACILITIES DISTRICT NO. 3 OF CARLSBAD UNIE SCHOOL DISTRICT, AS DISCLOSED BY INSTRUMENT RECORDED MAY 1995 AS FILE NO. 1995-0205176 OF OFFICIAL RECORDS. AN AMENDED ANNEXATION MAP NO. 1 TO BOUNDARIES OF COMMm FACILITIES DISTRICT NO. 3 WAS RECORDED JUNE 16, 1995 AS E NO. 1995-0254037 OF OFFICIAL RECORDS. PAGE 10 e 0 FORM NO. 1402.92 ORDER NO. 1122139 (10/17/92) ALTA OWNER'S POLICY WESTERN REGIONAL EXCEPTIONS EXHIBIT II 1 I! THAT PORTION OF SECTION 20, TOWNSHIP 12 SOUTH, RANGE 4 WEST, BERNARDINO BASE AND MERIDIAN, IN THE CITY OF CARLSBAD, COUNT? SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO OFFICIAL PLAT THE1 AND THAT PORTION OF LA COSTA DOWNS UNIT NO. 1, IN THE CIT' CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDIN1 MAP THEREOF NO. 2013, FILED IN THE OFFICE OF THE COUNTY RECORDE SAN DIEGO COUNTY, APRIL 26, 1927, DESCRIBED AS A WHOLE AS FOLLO BEGINNING AT THE INTERSECTION OF THE SOUTH LINE OF SAID SECT10 WITH THE EASTERLY LINE OF THE 200 FOOT RIGHT OF WAY OF THE SAN'I RAILROAD, AS SHOWN ON SAID MAP NO. 2013; THENCE ALONG THE S LINE OF LA COSTA DOWNS UNIT NO. 1, SOUTH 89O21' EAST (Pj 89O58'20" EAST PER MAP NO. 2013) TO THE SOUTHWEST CORNER OF DESCRIBED IN DEED TO THE STATE OF CALIFORNIA, RECORDED FEBRUARJ 1966 AS FILE NO. 27424 OF OFFICIAL RECORDS; THENCE ALONG SOUTHWEST LINE OF SAID LAND, NORTH 26O10' WEST, 1462.07 FEET Y ANGLE POINT, NORTH 29O01'45" WEST, 300.38 FEET TO AN ANGLE I AND NORTH 27O14' 24" WEST, 85.05 FEET TO THE MOST EASTERLY CORN1 THE LAND DESCRIBED AS PARCEL I'B" IN FINAL ORDER OF CONDEMNATI( SUPERIOR COURT CASE NO. 25812, A COPY OF WHICH WAS FILED IC OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, MARCH 15, AS FILE NO. 44080 OF OFFICIAL RECORDS; THENCE ALONG THE SOUT: LINE OF SAID PARCEL "B", AS FOLLOWS: SOUTH 61O51' WEST, 292.78 FEET TO THE EASTERLY TERMINUS OF TH FOOT RADIUS CURVE, CONCAVE SOUTHEASTERLY IN THE NORTHERLY LII LA LOMA BOULEVARD, AS SHOWN ON SAID MAP NO. 2013, WESTERLI SOUTHWESTERLY ALONG SAID CURVE, 60.31 FEET THROUGH AN ANG: 57°05'50" SOUTH 61°51'00" WEST, 484.04 FEET; SOUTH 18'24'35" TO AN ANGLE POINT IN THE NORTHERLY LINE OF SAN LUIS BOULEVA SHOWN ON SAID MAP NO. 2013, SOUTH 51°00'55" WEST (SOUTH 50°2 WEST PER MAP NO. 2013), A DISTANCE OF 42.19 FEET; AND 69O33'55I1 WEST, 69.29 FEET (SOUTH 68°53'201t WEST, 68.75 FEE MAP 2013) TO THE MOST WESTERLY CORNER OF LOT 19, BLOC1 ACCORDING TO SAID MAP NO. 2013; THENCE ALONG THE EASTERLY LI SAID 200 FOOT RIGHT OF WAY OF THE SANTA FE RAILROAD ACCORD1 BEARINGS AND DISTANCES SHOWN ON SAID MAP NO. 2013, SOUTH 19OC EAST, 224.19 FEET TO THE BEGINNING OF A TANGENT 5629.65 FOOT F CURVE, CONCAVE EASTERLY ALONG SAID CURVE SOUTHERLY, 196.51 THROUGH AN ANGLE OF 2OOO' AND TANGENT TO SAID CURVE, 21°06'4011 EAST, 730.84 FEET TO THE POINT OF BEGINNING. PAGE 11 0 0 FORM NO. 1402.92 ORDER NO. 1122135 (10/17/92) ALTA OWNER'S POLICY WESTERN REGIONAL EXCEPTIONS NOTE: THE FOLLOWING PORTION OF THE ABOVE DESCRIBED REAL PROPI SHOWN ON MAP NO. 2013, WAS EXCLUDED FROM SAID SUBDIVISION BY 01 ENTERED FEBRUARY 19, 1937 IN CASE NO. 87499 IN THE SUPERIOR CO' SAN DIEGO COUNTY, STATE OF CALIFORNIA, A CERTIFIED COPY OF W WAS RECORDED FEBRUARY 19, 1937, IN BOOK 620, PAGE 213 OF OFF1 RECORDS: ALL OF SAID LAND LYING WITHIN BLOCKS 15 THROUGH INCLUDING THE ADJOINING STREETS. SAID ORDER DID NOT INCLUDE A NEW MAP OR PLAT SHOWING THE BOUND? OF SAID LAND AS THEY APPEAR AFTER THE EXCLUSION AS REQUIRE SECTION 11703 OF THE BUSINESS AND PROFESSIONS CODE. PAGE 12 - w .* E -4 - 9 0 LA LOMA BLVQ - I__- ---- op/ __ - // 0 W 0 70 I- O -i va - d I w - - -. - w E@’ 0 - + m 0 0 0 0 c X + 4 P v) v) m v) VI 1L rn -u W = N B - ____ ~ _____ *--------- I c m 0 0 03 4 P v) c P P 4 8 v) w -. @' w > 'r f C (P, rn e SF!,, 20 '91 12 5.,$ Ft.4'kY ROAD .- -..I. -.-- _.- -. a ksONnclT0 RD. . __.__. _____________._- ----- d D - x w w 0 m 0 - =u 0 n e c X -4 4 z ul v) pl ul v) 0 a Ln E, T cm I 6 e T 0 0 0, - E .a - - 1 3 0 Ln m 0 an Yl u1 m c I z 3 2 P 0 in 1 m 3 r 4 - --. - -c -- - zc * -0 A c9 I -Or OB 70 0 Wc4 cv, 7?4 mp. WO 00 E 'P z 03 w - CZ z --& z 0 w m c F v, R) 4 I \ CllUIYI ,,, "I 1 "4ILLLC ....- __ - .. . ..., I,lc)UIG" "IaIIiiwlII. d remedies against any person or property n8 (i) to pay or otherwise settle with other parties for w rder to perfect this right of subrogation. Tt claimant shall permit the Company to sue, comi settle in the name ofthe insured claimant and to us of the insured claimant in any transaction 0 involving these rights or remedies. If a payment on account of a claim does not the loss of the insured claimant, the Compan subrogated to these rights and remedies in the which the Company's payment bears to the whr of the loss. If loss should result from any act of tl claimant, as stated above, that act shall not void but the Company, in that event, shall be required 1 that part of any losses insured against by this pc shall exceed the amount, if any, lost to the Cc reason of the impairment by the insured clair Company's right of subrogation. (b) The Company's Rights Against no Obligors. The Company's right of subrogation ag: insured obligors shall exist and shall include limitation, the rights of the insured to indemnities, g other policies of insurance or bonds, notwithsta terms or conditions contained in those instrume provide for subrogation rights by reaSOn of this l q- r in the name Of an insured claimant any claim insured against under this policy, together with any Costs, attorneys' fees and expenses incurred by the insured claimant which were authorized by the Company UP to the time Of Payment and which the Company is obligated to pay; or (ii) to pay or otherwise settle with the insured clah-iant the loss 01 damage Provided for under this PolicY, together with any costs, attorneys' fees and expenses incurred by the insured chimantwhich wereauthorized by the company UP to the time of Payment and which the Company is obligated tO Pay. Upon the exercise by the Company of either of the options provided for in Paragraphs (b)(i) Or (ii), the Corn- PanY's obligations to the insured under this Policy for the chimed loss 01 damage, 0th than the Payments required to be made, shall terminate, including any liability 01 obligation to defend, Prosecute 01 Continue any litigation. 7. DETERMINATION, EXTENT OF LbWLlTY ~ ~~,l--- or interest irT the land, 6r (ii) an indebtedness secured by a purchase money mortgage given to the insured. 3. N0T;ICE OF CLAIM TO BE GIVEN BY INSLIRED CLAIMANT. The insured shall notify the Company promptly in writing (i) in case of any litigation as set forth in Section 4(a) below, (ii) in case knowledge shall come to an insured hereunder of any claim of title or interest which is adverse to the title to the estate or interest, as insured, and which might cause loss or damage for which the Company may be liable by virtue of this policy, or (iii) if title to the estate or interest, as insured, is rejected as unmarketable. If prompt notice shall not be given to the Company, then as to the insured all liability of the Company shall terminate with regard to the matter or matters for which prompt notice is required; provided, however. that failure to notify the Company shall in no case prejudice the rights of any insured under this policy unless the Company shall be prejudiced by the failure and ?hen only to the extent of the prejudice. AND COINSURANCE. This policy is a contract of indemnity against actual 4. DEFENSE AND PROSECUTION OF ACTIONS; DUTY OF INSURED CLAIMANT TO COOPERATE. monetary loss or damage sustained or incurred by the insured claimant who has suffered loss or damage by reason (a) Upon written request by the Insured and subjectto Of matkrs insured against by this policy and Onlyto the extent the options contained in Section 6 of these Conditions and herein described. 14. ARBITRATION. Stipulations, the Company, at its own cost and without (a) The liability of the Company under this policy shall unreasonable delay, shall provide for the defense of an not exceed the least of: insured in litigation in which any third party asserts a claim (i) the Amount of Insurance stated in Schedule A; adverse to the title or interest as insured, but only as to those or stated causes of action alleging a defect. lien or en- (ii) the difference between the Value Of the insured cumbrance or other matter insured against by this policy. The estate or interest as insured and the value of the insured estate Company shall have the right to Select COUnSe/ Of its choice or interest subject to the defect, lien or encumbrance insured (subject to the right of the insured to object for reasonable against by this policy. cause) to represent the insured as to those stated causes of (b) In the event the Amount of Insurance stated in action and shall not be liable for and will not pay the fees Of Schedule A at the Date of Policy is less than 80 percent of any Other counsel. The ComPany wi1l not pay any fees, costs the value of the insured estate or interest or the full Or expenses incurred by the insured in the defense of those consideration paid for the land, whichever is less, or if cauSeS Of action which allege matters not insured against by subsequent to the Date of Policy an improvement is erected this policy. on the land which increases the value of the insured estate (b) The Company shall have the right, at its own cost, or interest by at least 20 percent over the Amount of to institute and PrOSeCUte any action or proceeding or to do Insurance stated in Schedule A, then this Policy is subject to any other act which in its opinion may be necessary or the following: desirable to establish the title to the estate or interest, as (i) where no subsequent improvement has been insured, or to prevent or reduce loss or damage to the made, as to any partial loss, the Company shall only pay the insured. The Company may take any appropriate action under loss pro rata in the proportion that the Amount of Insurance the terms 01 this policy, whether or not it shall be liable at Date of Policy bears to the total value of the insured estate hereunder, aiid shall not thereby concede liability or waive or interest at Date of Policy; or (ii) where a subsequent any provision of this policy. If the Company shall exercise its improvement has been made, as to any partial loss, the rights under this paragraph, it shall do so diligently. Company shall only pay the loss pro rata in the proportion that (e) Whenever the company shall have brought an 120 percent of the Amount of Insurance stated in Schedule action or interposed a defense as required or permitted by the A bears to the sum of the Amount of Insurance stated in provisions of this policy, the Company may pursue any Schedule A and the amount expended for the improvement. litigation to .linal determination by a court of competent The provisions of this paragraph shall not apply to jurisdiction and expressly reserves the right, in its Sole costs, attorneys' fees and expenses for which the Company discretion, to appeal from any adverse judgment or order. 1s liable under this Policy, and shall only apply to that portion the Company to prosecute or provide for the defense of any the Amount Of insurance stated in Schedule A. action or proceeding, the insured shall secure to the (c) The Company will pay only those costs, attorneys' Company the right to so prosecute or provide defense in the fees and expenses incurred in accordance with Section 4 of action or proceeding, and all appeals therein, and permit the these Conditions and Stipulations. Company to use, at its option, the name of the insured for this purpose. Whenever requested by the Company, the insured, 8. APPORTIONMENT. at the Company's expense, shall give the Company all reasonable aid (i) in any action or proceeding, securing evidence, obtaining witnesses, prosecuting or defending the action or proceeding, or effecting settlement, and (ii) in any other lawful act which in the opinion of the Company may be necessary or desirable to establish the title to the estate or interest as insured. If the Company is prejudiced by the failure of the insured to furnish the required cooperation, the Company's obligations to the insured under the policy shall terminate, including any liability or obligation to defend, prosecute, or continue any litigation, with regard to the matter or matters requiring such cooperation. 5. PROOF OF LOSS OR DAMAGE. In addition to and after the notices required under Section 3 of these Conditions and Stipulations have been provided the Company, a proof of loss or damage signed and sworn to by tile insured claimant shall be furnished to the Company within 90 days after the insured claimant shall ascertain the facts giving rise to the loss or damage. The proof of loss or damage shall describe the defect in, or lien or encumbrance on the title, or other matter insured against Unless prohibited by applicable law, either pany or the insured may demand arbitration purst Title Insurance Arbitration Rules of the American J Association, Arbitrable matters may include, bt limited to, any controversy or claim between the and the Insured arising out of or relating to this i: service of the Company in connection with its is the breach of a policy provision or other oblig arbitrable matters when the Amount of lnsu $1,000,000 or less shall be arbitrated at the optior the Company or the insured. All arbitrable matters Amount of Insurance is in excess of $1,000,000 arbitrated only when agreed to by both the Compan insured. Arbitration pursuant to this policy and i Rules in effect on the date the demand for arbitratioi or, at the option of the insured, the Rules in effect i Policy shall be binding upon the parties. The au include attorneys' fees only if the laws of the state the land is located permit a court to award attorney a prevailing party. Judgment upon the award render Arbitrator@) may be entered in any court having ju thereof. The law of the situs of the land shall apl arbitration under the Title Insurance Arbitration RL A copy of the Rules may be obtained Company upon request. 15. LIABILITY LIMITED TO THIS POLICY; POLICY ENTIRE CONTRACT. (a) This policy together with all endorsement attached hereto by the Company is the entire PO contract between the insured and the Company. In i ing any provision of this policy, this policy shall be cr as a whole. (b) Any claim of loss or damage, whether based on negligence, and which arises out of the : the title to the estate or interest covered hereby 01 action asserting such claim, shall be restricted to thi (c) No amendment of or endorsement to thi can be made except by a writrng endorsed hereon or i hereto slgned by either the President, a Vice Presic Secretary, an Assistant Secretary, or validating 0 authorized signatory of the Company. 16. SEVERABILITY. In the event any provision of the policy is held or unenforceable under applicable law, the policy I deemed not to include that provision and all other pro shall remain in full force and effect. 17, NOTICES, WHERE SENT, All notices required to be given the Company a statement in writing required to be furnished the Co shall include the number of this policy and shall be adc to the Company at 114 East Fifth Street, Santa Ana, Ca 92701, or to the office which issued this policy. (d) In all cases where this poiicy permits or requires Of any loss which exceeds, in the aggregate, 10 percent of If the land described in Schedule (A)(C) consists of two or more parcels which are not used as a single site. and a loss is established affecting one or more of the parcels but not all, the loss shall be computed and settled on a Pro rata basis as if the Amount of kwrance under this Policy was divided Pro rata as to the value on Date of policy of each separate Parcel to the whole, excluSive of any improvements made sub- sequent to Date Of Policy, unless a liability or value has otherwise been agreed upon as to each parcel by the COmPaflY and the insured at the time of the issuance of this policy and shown by an express statement or by an endorsement attached to this policy. 9. LIMITATION OF LIABILITY. (a) If the Company establishes the title, or removes the alleged defect, lien or encumbrance, or cures the lack of a right Of access to Or from the land, or cures the claim of unmarketabib of title, all as insured, in a reasonably diligent fnanner by any method, including litigation and the ComPle- tion of any appeals therefrom, it shall have fully Performed its obligations with respect to that matter and shall not be liable 0 0 ENCINA WASTEWATER AUTHORITY A Public Agency 6200 Avenida En( Carlsbad, CA 92( Telephone (61 9) FAX (61 9) 438-3e December 21, 1995 (619) 431-74 Ref: 1 TO : Encina Wastewater Authority (EWA) Board of Director!: SUBJECT: Adjacent 37 Acres Escrow closed on the 37 acres on December 21, 1995. Title to property is now held by the City of Carlsbad in _- trust for Member Agencies (City of Vista, City of EnciniEas, vailecitos W< District, Leucadia County Water District, Buena Sanitation Dist and City of Carlsbad). Maintenance of the property will be included in the Fiscal 1996/97 Budget. Very truly yours, Cchardy 7 ,/- General Man er RWG : am cc: Technical Advisory Committee Frank Mannen, City of Carlsbad SERVING THE CITY OF VISTA, CITY OF CARLSBAD, BUENA SANITATION DISTRICT, VALLECITOS WATER DISTRICT. LEUCADIA COUNTY WATER DISTRICT AND ENClNlTAS SANITARY DISTRICT F ’. 0 0 First American Title Insurance Compai 411 IVY STREET + SAN DIEGO, CALIFORNIA 92101 + (619) 238-1776 : December 21, 199 THE CITY OF CARLSBAD Date Frank Mannen, Assist. City Mgr 1200 Carlsbad Village Drive Carlsbad, CA 92008 RE: Vacant Land, Carlsbad, CA Dear Frank: We are pleased to inform your above referenced escrow was closed on December 21, 1995 and we enclose the follc your records: Escrow No. : 1124540LG Closing Statement. Our Check in the amount of $1,387.00 representing your refund. Certifications of Non-Foreign Status Any recorded documents which you are entitled to will be forwarded to you directly from the County Reco It has been a pleasure handling your escrow. We look forward to servicing your future real estate transactions. First American Title Insurance Co. ,r Lynn Graham Certified Senior Escrow Officer * e ?- Escrow No. 1124540LG Closing Date: Decemb Reference: Vacant Land Page 1 Carlsbad, CA Bu er CLOSING S~ATEMENT BUYER : THE CITY OF CARLSBAD 1200 Carlsbad Village Drive Carlsbad, CA 92008 -- - - DEBITS - - Consideration: Deposits: Total Consideration 4,456,450.00 Deposit By: THE CITY OF CARLSBAD Escrow Fees: 1,320.50 Escrow Fees Check Herewith $ 1,387.00 Totals $ 4,459,157.50 $ SAVE FOR INCOME TAX PURPOSES Second installment 1995-96 taxes will be due February 1, 1996 and delinquent April 10, 1996. If you do not receive a tax bill from either the tax collector or forwarded to you by the seller, it is your responsibility to contact the tax collector's office for a duplicate bill. -. e 0 TRANSFEROR'S CERTIFICATION OF NON-FOREIGN STATUS A. Federal FIRPTA Certificate To inform The City of Carlsbad, a Municipal corporation (the "Transferee") withholding of tax under Section 1445 of the Internal Revenue Code of 1986, as amended ("Code") will not be required upon the transfer by John S. Hagestad, an individual ("Transfc of certain interests in real property to the Transferee, the undersigned hereby certifies the following on behalf of the Transferor: 1. The Transferor is not a foreign corporation, foreign partnership, fore: trust, foreign estate or foreign person (as those terms are defined in the Code and the Incon Regulations promulgated thereunder); and 2. The Transferor's U. S. employer or tax (social security) identification number is 571-68-4256. The Transferor understands that this Certification may be disclosed to the In Revenue Service by the Transferee and that any false statement contained herein could be punished by fine, imprisonment, or both. B . California Revenue and Taxation Code Section 18805 requires that any selle is not a California resident must authorize Escrowholder to forward three and one-third of 1 sales price of the California real property conveyed to the Franchise Tax Board unless the E the property is less than One Hundred Thousand Dollars ($100,000.00). State of California - California Residentmon-Resident Aflidavit Transferor hereby certifies that Transferor is a California resident and is not to the above-mentioned withholding, and that its California resident address is 23 Hernitagl Newport Beach, California 92660. Transferor understands that this Certificate may be disclosed to the Franchit Board of California by Transferee and any false statement contained herein could be punish fine, imprisonment, or both. Under penalty of perjury I declare that I have examined this Certification an the best of my knowledge and belief it is true, correct and complete, and I firther declare t have authority to sign this documents on behalf of the Transferor. "TRANSFEROR" By: Q-5- John S. Hagestad Dated: December 15, 1995 9535202A.OC1/RES/S7335-001/12-19-95/kJm 0 e TRANSFEROR'S CERTIFICATION OF NON-FOREIGN STATUS A. Federal FIRPTA Certificate To inform The City of Carlsbad, a Municipal corporation (the "Transferee") t withholding of tax under Section 1445 of the Internal Revenue Code of 1986, as amended ("Codell) will not be required upon the transfer by Carl F. Willgeroth, an individual ("Transf of certain interests in real property to the Transferee, the undersigned hereby certifies the following on behalf of the Transferor: 1. The Transferor is not a foreign corporation, foreign partnership, forei trust, foreign estate or foreign person (as those terms are defined in the Code and the Incom Regulations promulgated thereunder); and 2. The Transferor's U.S. employer or tax (social security) identification number is 572-60-5412. The Transferor understands that this Certification may be disclosed to the In Revenue Service by the Transferee and that any false statement contained herein could be punished by fine, imprisonment, or both. B. California Revenue and Taxation Code Section 18805 requires that any selle is not a California resident must authorize Escrowholder to forward three and one-third oft sales price of the California real property conveyed to the Franchise Tax Board unless the s the property is less than One Hundred Thousand Dollars ($100,000.00). State of California - California Residentmon-Resident Affidavit Transferor hereby certifies that Transferor is a California resident and is not to the above-mentioned withholding, and that its California resident address is 40 Rocking1 Drive, Newport Beach, California 92660. Transferor understands that this Certificate may be disclosed to the Franchis Board of California by Transferee and any false statement contained herein could be punish fine, imprisonment, or both. Under penalty of perjury I declare that I have examined this Certification ar the best of my knowledge and belief it is true, correct and complete, and I fhrther declare t have authority to sign this documents on behalf of the Transferor. w Carl F. Killgeroth &dJ-Qy- "TRANSFEROR" By: Dated: December 15, 1995 95352020.0C1/RES/S7335-001/12-19-95/kjm a 0 TRANSFEROR'S CERTIFICATION OF NON-FOREIGN STATUS A. Federal FIRPTA Certificate To inform The City of Carlsbad, a Municipal corporation (the "Transferee") t1 withholding of tax under Section 1445 of the Internal Revenue Code of 1986, as amended (Tode'l) will not be required upon the transfer by William J. Thormahlen, an individual ("Transferor") of certain interests in real property to the Transferee, the undersigned hereby certifies the following on behalf of the Transferor: 1. The Transferor is not a foreign corporation, foreign partnership, forei trust, foreign estate or foreign person (as those terms are defined in the Code and the Incom Regulations promulgated thereunder); and 2. The Transferor's U. S. employer or tax (social security) identification number is 557-76-2150. The Transferor understands that this Certification may be disclosed to the Int Revenue Service by the Transferee and that any false statement contained herein could be punished by fine, imprisonment, or both. B. California Revenue and Taxation Code Section 18805 requires that any selle is not a California resident must authorize Escrowholder to forward three and one-third oft sales price of the California real property conveyed to the Franchise Tax Board unless the si the property is less than One Hundred Thousand Dollars ($lOO,OOO.OO). State of California - California Residentmon-Resident Midavit Transferor hereby certifies that Transferor is a California resident and is not I to the above-mentioned withholding, and that its California resident address is 22712 Bar101 Mission Viejo, California 92692. Transferor understands that this Certificate may be disclosed to the Franchis Board of California by Transferee and any false statement contained herein could be punish fine, imprisonment, or both. Under penalty of perjury I declare that I have examined this Certification anc the best of my knowledge and belief it is true, correct and complete, and I fbrther declare tk have authority to sign this documents on behalf of the Transferor. "TRANSFEROR" By: Dated: December 15, 1995 9535202c.0c1/REs/s7335-001/12-19-95/kJm P 0 e TRANSFEROR'S CERTIFICATION OF NON-FOREIGN STATUS A. Federal FIRPTA Certificate To inform The City of Carlsbad, a Municipal corporation (the "Transferee'') tl withholding of tax under Section 1445 of the Internal Revenue Code of 1986, as amended ("Code") will not be required upon the transfer by AVENIDA ENCINAS ASSOCIATES, a California general partnership ("Transferor") of certain interests in real property to the Trans the undersigned hereby certifies the following on behalf of the Transferor: 1. The Transferor is not a foreign corporation, foreign partnership, foreii trust, foreign estate or foreign person (as those terms are defined in the Code and the Incomi Regulations promulgated thereunder); and 2. The Transferor's U.S. employer or tax (social security) identification number is 330-20-8602. The Transferor understands that this Certification may be disclosed to the In1 Revenue Service by the Transferee and that any false statement contained herein could be punished by fine, imprisonment, or both. B. California Revenue and Taxation Code Section 18805 requires that any sellei is not a California resident must authorize Escrowholder to forward three and one-third oft sales price of the California real property conveyed to the Franchise Tax Board unless the s; the property is less than One Hundred Thousand Dollars ($lOO,OOO.OO). State of California - California Residentmon-Resident Af€idavit Transferor hereby certifies that it is a partnership as determined in accordanc Subchapter K of Chapter I of Subtitle A of the Internal Revenue Code, and is not therefore subject to the above-mentioned withholding requirements. Transferor understands that this Certificate may be disclosed to the Franchis Board of California by Transferee and any false statement contained herein could be punishi fine, imprisonment, or both. 9535202E.OC 1/RES/S7335-001/12-19-95/kJm . 1.. rc e a Under penalty of perjury I declare that I have examined this Certification and the best of my knowledge and belief it is true, correct and complete, and I hrther declare tk have authority to sign this documents on behalf of the Transferor. Dated: December 15, 1995 "TRANSFEROR' AVENIDA ENCINAS ASSOCIATES, a Calif general partnership By: L25- John S, Hagestad Its: Partner By: &*@ Carl F. Willgeroth Its: Partner -2- 9535202E.OC1/RES/S7335-001/12-19-95/kjrn RECORDED &QUEST OF GixiiaiuLBw1- FIRST AMERICAN TIT .i Sffr//a=1/3cl’b70 RECORDING REQUESTED BY THE CITY OF CARLSBAD f,; 1442 GREGORY SMTH I COUNTY 1200 Carkbad Village Drive FEES: Carlsbad, CA 92008 I Attention: Frank Mannen, Asst City Manager AND WHEN RECORDED MAIL TO: OFFICI~L RECORI \ SAH DIEGO COUNTY RECORD1 MAIL TAX STATEMENTS AS DIRECTED TO: 9, I-, 6- THE CITY OF CARLSRAD 1200 Carlsbad Village Drive Carlsbad, CA 92008 Attention: Frank Mannen, Ass’t City Manager & 1 ,i tj ,$ ) APN 214-010-09 WOP (Space Above For Recoi DOC~W~~ TRANSFER Ta $ -0- Municipal transfer .X. .Computed on the consideration or value of property conveyed; OR .. ..Computed on the consideration or value less liens or encumbrances remaining at e of sale &&+x?+ Signature of Declarant or Agent deten tax-FirmName GRANT DEED FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, AVENIDA ENCINAS ASSOCIATES, a California general partnership, hei GRANT(S) to THE CITY OF CARLSBAD, a hlunicipal Corporation, a fiRy and forty-fou hundredths percent (50.44%) undivided interest in that certain real property in the City of Carlsbad, County of San Diego, State of California, described on Exhibit “A” attached here incorporated herein by reference. DATED: December 15, 1995 AVENDA ENCINAS ASSOCIATES California general partnership By: xhn S. Hagestad Its. Partner 95346021, OC I/MI,M/S7335-00 1/12-1 5-95kjni 1443 I JLwm.Qztykavl 0 ss. a ,;/ jl+Fb ' p +? .+ 1 t STATE OF CALIF0 COUNTYOF GW 1 On December 142 1995, before me, - , a Notary Public for said state, personally appeared &4.&qs. wm ea% personally known to me (0 proved to me on the basis of satisfactory evidence) to bzthe person whose name is subscrib the within instrument and acknowledged to me that he/she executed the same in hisher autk capacity, and that by hisher signature on the instrument, the person, or the entity upon beha which the person acted, executed the instrument. WITNESS my hand and official seal. blic in and for said State (This area for official notarial seal) STATE OF CALIFORNIA 1 W 1 ) ss. COUNTY OF On December B 1995, before me,- , a Notary Pub and for said state, personally appeared w 6 w;u&, personally known to m proved to me on the basis of satisfactory evidence) to be tse person whose name is subscribc the within instrument and acknowledged to me that he/she executed the same in hisher auth capacity, and that by hidher signature on the instrument, the person, or the entity upon beha which the person acted, executed the instrument. WITNESS my hand and official seal. (This area for official notarial seal) -2- 95346021, OC llMI,M/S7335-00 I/I 2- I S-'9S/hjm .:A 3 1444 (rl e m LEG& DESCRIPTlON THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFOR1 COUNTY OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS: THAT PORTION OF SECTION 20, TOWNSHIP 12 SOUTH, RANGE 4 WEST, BERNARDINO BASE AND MERIDIAN, IN THE CITY OF CARLSBAD, COUNTY OF DIEGO, STATE OF CALIFORNIA, ACCORDING TO OFFICIAL PLAT THEREOF THAT PORTION OF LA COSTA DOWNS UNIT NO. 1, IN THE CITY OF CARLSl COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF 2013, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUl APRIL 26, 1927, DESCRIBED AS A WHOLE AS FOLLOWS:. BEGINNINQ AT THE INTERSECTION OF THE SOUTH LINE OF SAID SECT101 WITH THE EASTERLY LINE OF THE 200 FOOT RIGHT OF WAY OF THE SANT RAILROAD, AS SHOWN ON SAID MAP NO. 2013; TRENCE ALONG THE SOUTH OF LA COSTA DOWNS UNIT NO. I, SOUTH 89O21' EAST (NORTH 89O58'20" PER MAP NO. 2013) TO THE SOUTHWEST CORNER OF LiAND DESCRIBED IN DEE THE STATE OF CALIFORNIA, RECORDED FEBRUARY 16, 1966 AS FILE NO. 2 OF OFFICIAL RECORDS; THENCE ALONG THE SOUTHWEST LINE OF SAID L NORTH 26O10' WEST, 1462.07 FEET TO AN ANGLE POINT, NORTH 29'01 WEST, 300.38 FEET TO AN ANGLE POINT AND NORTH 27O14'24" WEST, 8 FEET TO THE MOST EASTERLY CORNER OF THE LAND DESCRIBED AS PARCEI IN FINAL ORDER OF CONDEMNATION IN SUPERIOR COURT CASE NO. 2581 COPY OF WHICH WAS FILED IN THE OFFICE OF THE COUNTY RECORDER OF DIEGO COUNTY, MARCH 15, 1968 AS FILE NO. 44080 OF OFFICIAL RECC THENCE ALONG THE SOUTHEAST LINE OF SAID PARCEL "B", AS FOLLOWS: SOUTH 61 O51' WEST, 292.78 FEET TO THE EASTERLY TERMINUS OF TW FOOT RADIUS CURVE, CONCAVE SOUTHEASTERLY IN THE NORTHERLY LINE C LOMA BOULEVARD, AS SHOW ON SAID MAP NO. 2013, WESTERLY SOUTHWESTERLY ALONG SAID CURVE, 60.31 FEET THROUGH AN ANGL 57°05'S0J1 SOUTH 61°51'00" WEST, 484.04 FEET; SOUTH 1.8"24'35" ElLC AN ANGLE! POINT IN THE NORTHERLY LINE OF SAN LUIS BOULEVARD AS SHO SAID MAP NO. 2013, SOUTH 51°00'551f WEST (SOUTH SO02O'20" WEST PE NO. 2013), A DISTANCE OF 42.19 FEET; AND SOUTH 69O33'55" WEST, FEET (SOUTH 68°53'20f' mST, 68.75 FEET PER MAP 2013) TO THE WESTEFGY CORNER OF LOT 19, BLOCX 21, ACCORDING TO SAID MAP NO. THENCE ALONG THE EASTERLY LINE OF SAID 200 FOOT RIQHT OF WAY 0 SANTA FE RAILROAD ACCORDING TO BEARINGS AND DISTANCES SHOWN ON MAP NO. 2013, SOUTH 19°06'40" EAST, 224.19 FEET TO THE BEGINNING TANGENT 5629.65 FOOT RADIUS CURVE, CONCAVE EASTERLY ALONG SAID SOUTHERLY, 196.51 FEET THROUGH AN ANGLE OF 2OOO' PJl73 TANGENT TO CURVE, SOUTH 21O06'40" EAST, 730.84 FEET TO THE POINT OF BEGIN" NOTE: THE FOLLOWING PORTION OF THE ABOVE DESCRIBED RWU PRC SHOWN ON MAP NO. 2013, WAS EXCLUDED FROM SAID SUBDIVISION BY ENTERED FEBRUARY 19, 1937 IN CASE NO. 87499 IN THE SUPERIOR COUR? DIEGO COUNTY, STATE OF CALIFORNIA, A CERTIFIED COPY OF WIC RECORDED FEBRUARY 19, 1937, IN BOOK 620, PAGE 213 OF OFFICIAL REC ALL OF SAID LAND LYING WITHIN BLOCKS 15 THROUGH 21, INCLUDIN ADJOINING STREETS. SAID ORDER DID NOT INCLUDE A mw MAP OR PLAT SHOWING THE BOWAR. SAID LAND AS THEY APPEAR AFTER THE EXCLUSION As REQUIRED BY SE 11703 OF THE BUSINESS AND PROFESSIONS CODE. ExHruIT' ll~J1 *% .) 1' ,( a * 0 .d I I CERTIFICATION FOR ACCEPTANCE OF DEED This is to certify that the interest in real propc conveyed by the deed or grant dated December 15, 1995 from Avenida Encinas Associates .................................. to the City of Carlsbad, California, a municipal corporat is hereby accepted by the City Council of the City of Car California pursuant to resolution No. 95-212 , adopted on July 18, 1995 , and the grantee consents to tf recordation thereof by its duly authorized officer. DATED: December 20, 1995 I By : RECO.RDED RCQIl"3T 0.F BmF 4 olJBdB%w- YP $ RECORDED REQUEST 01: * FIRST AMERICAN TITL RECORDING REQUESTED BY #//w37-a AND WHEN RECORDED UCUL TO: 2f OFFICIAL REI 1 SAN OIEGO CMW RECl GREGORY %IN 1 CoU' %46 FEE THE CITY 0F.CARLSBAD 1200 Carlsbad Village Drive ' Carlsbad, CA 92008 Attention: Frank Mannen, Ass't City Manager MAIL TAX STATF?ME"S AS DIRECTED TO: THE CITY OF CARLSBAD 1200 Carlsbad Village Drive Attention: Frank Mannen, Ass't City Manager I j Carlsbad, CA 92008 (: fit- (Space Above For R APN 214-010-09 WOP DOCJMF,JT~Y~SFERT~$ -0- Municipal transfer .X..Computed on the consideration or value of property conveyed, OR ..... Computed on the consideration or value less liens or encumbrances remamg Signature if Declarant o/Agent dt tax - Firm Name GRANT DEED FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, JOHN S. HAGESTAD, a married man as to his sole and separate proper hereby GRANT(S) to THE CITY OF CARLSBAD, a Municipal Corporation, a twenty- thirty-eight one-hundredths percent (22.3 8%) undivided interest in that certain real prop1 City of Carlsbad, County of San Diego, State of California, described on Exhibit "A" atta hereto and incorporated herein by reference. DATED: December 15, 1995 &==LU JOHN S. HAGESTAD 95 34 7072 OC 1 /MACK 300 5 -02 1 / 1 2- 1 5-95k~ in .rT * RIa 0 1 +*o$ ? ,< ' STATE OF CALIF0 COUNTY OF Dm"c 1 is. c \ 4 , dm w. (%Chml \ On December 14, 199Lbefore me,- , a Notary Public for said state, personally appeared J 81.tvl 5. I-trna personally known to me (c proved to me on the basis of satisfactory evidence) to bd the person whose name is subscrit the within instrument and acknowledged to me that hdshe executed the same in hisher aut1 capacity, and that by hidher signature on the instrument, the person, or the entity upon beh which the person acted, executed the instrument. WITNESS my hand and official seal. D- in and for said State (This area for oBcial notarial sed) -2- 95 3470 12 oc 1 /MAC/mm-O2 1 / 1 2- 1 5-95kJm *..* 4 0 0 LEG& DESCRIPTION I THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORh COUNTY OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS: THAT PORTION OF SECTION 20, TOWNSHIP 12 SOUTH, RANGE 4 WEST, BERNARDINO BASE AND MERIDIAN, IN THE CITY OF CARLSBAD, COUNTY OF DIEGO, STATE OF CALIFORNIA, ACCORDING TO OFFICIAL PLAT THEREOF THAT PORTION OF LA COSTA DOWNS UNIT NO. 1, IN THE CITY OF CARLSl COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF 2013, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COU] APRIL 26, 1927, DESCRIBED AS A WHOLE AS FOLLOWS:. BEGINNING AT THE: INTERSECTION OF THE SOUTH LINE OF SAID SECT101 WITH THE EASTERLY LINE OF THE 200 FOOT RIGHT OF WAY OF THE SAW. R.Armorn, AS SHOWN ON SAID MAP NO, 2013; THENCE ALONG THE SOUTH OF LA COSTA DOWNS UNIT NO. 1, SOUTH ~02~ EAST (NORTH 890sa'20" PER MAP NO. 2013) TO THE SOUTKWEST CORNER OF LAMI DESCRIBED IN DEE THE STATE OF CALIFORNIA, RECORDED FEBRUARY 16, 1966 AS FILE NO. 2 OF OFFICIAL, RECORDS; THENCE ALONG THE SOUTHWEST LINE OF SAID L NORTH 26O10' WEST, 1462.07 FEET TO AN ANGLE POINT, NORTH 29'01 WEST, 300.38 FEET TO AN ANGLE POINT AND NORTH 27O14'24" WEST, f FEET TO THE MOST EASTERLY CORNER OF THE LAND DESCRIBED AS PAROX IN FINAL ORDER OF CONDEMNATION IN SUPERIOR COURT CASE NO. 2581 COPY OF WHICH WAS FILED IN THE OFFICE OF THE COUNTY RECORDER OE DIEGO COUNTY, MARCH 15, 1968 AS FILE NO. 44080 OF OFFICIAL REC( THENCE ALONG THE SOUTHEAST LINE OF SAID PARCEL 'IB", AS FOLLOWS: SOUTH 61'51' WEST, 292,78 FEET TO THE EASTERLY TERMINUS OF THE FOOT RADIUS CURVE, CONCAVE SOUTHEASTERLY IN THE NORTHERLY LINE r LOMA BOULEVARD, AS SHOW ON SAID MAP NO. 2013, WESTERLY SOUTHWESTERLY ALONG SAID CURVE, 60.31 FEET THROUGH AN ANGL 57'05'50" SOUTH 6l051'0O" WEST, 484.04 FEET; SOUTH 18'24'35'' E& AN ANGLE POINT IN THE NORTHERLY LINE OF SAN LUIS BOULEVARD AS SHO SAID MAP NO. 2013, SOUTH 5lo0O'55" WEST (SOUTH 50°20'20" WEST PE NO. 20131, A DISTANCE OF 42-19 FEET; AND SOUTH 69O33'55" WEST, FEET (SOUTH 68O53'20" WEST, 68-75 FEET PER MAP 2013) TO THE WESTERLY CORNER OF LOT 19, BLOCK 21, ACCORDING TO SAID MAP NO. THENCE ALONG THE EASTERLY LINE OF SAID 200 FOOT RIQIHT OF WAY C SANTA FE RAILROAD ACCORDING TO BEARINGS AND DISTANCES SHOWN ON MAP NO. 2013, SOUTH 19°06'40" EAST, 224.19 FEET TO THE BEGINNINC TANGENT 5629.65 FOOT RADIUS CURVE, CONCAVE EASTERLY ALONG SAID SOUTHERLY, 196.51 FEET THROUGH AN ANGLE OF 2OOO' AND TANGENT TC CURVE, SOUTH 21°06'40" EAST, 730.84 FEET TO THE POINT OF BEOIHI NOTE: THE FOLLOWING PORTION OF THE ABOVE DESCRIBED REAL PR( SHOWN ON MAP NO. 2013, WAS EXCLUDED FROM SAID SUBDIVISION BY ENTERED FEBRUARY 19, 1937 IN CASE NO. 87499 IN THE SUPERIOR COUR' DIEGO COUNTY, STATE OF CALIFORNIA, A CERTIFIED COPY OF WHI( RECORDED FEBRUARY 19, 1937, IN BOOK 620, PAGE 213 OF OFFICIAL RE ALL OF SAID LAND LYING WITHIN BLOCKS 15 THROUGH 21, INCLUDII ADJOINING STREETS. SAID ORDER DID NOT INCLUDE A NEW MAP OR PLAT SHOWING THE BoUNDM SAID LAND AS THEY APPEAR AFTER THE EXCLUSION As REQUIRED BY S 11703 OF THE BUSINESS AND PROFESSIONS CODE. YXliI BJT "A" ~, .\ . s t e 0 I I 7' \ I CERTIFICATIOP FOR ACCEPTANCE OF DEED 1 This is to certify that the interest in real propert conveyed by the deed or grant dated December 15, 1995 from John S. Hagestad -------_--__________--_---------------------- to the City of Carlsbad, California, a municipal corporatio is hereby accepted by the City Council of the City of Carl: California pursuant to resolution No. 95-212 , adopted on July 18, 1995 , and the grantee consents to the recordation thereof by its duly authorized officer. DATED: December 20, 1995 By : RECORDED REQUEST 0 FIRST AMERICAN TIT BEcoWD RBQm OF FI.'RST 61 5' J3inmaua \ J 7/m@7 Q RECORDING REQUESTED BY AND WHEN RECORDED MAL TO: THE CITY OF CARLSBAD fc 1 4 5 4 GREGORY SflITHv COUNT 1200 Carlsbad Village Drive FEES: Carlsbad, CA 92008 Attention: Frank Mannen, Ass? City Manager \ SAH DIEGO COUNTY RECORl MADL TAX STATEME?NTS AS DIRECTED TO: LLLP THE CITY OF CARLSBAD 1200 Carlsbad Village Drive Carlsbad, CA 92008 Attention: Frank Mannen, Ass't City Manager APN 214-010-09 WOP DOCUMENTARY TRANSFER TAX $ -0- Municipal Transfer .X..Computed on the consideration or value of property conveyed, OR ..... Computed on the consideration or value less liens or encumbrances \ crt. -I (Space Above For Rec tax - Firm Name GRANT DEED FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, WILLIAM J. THORMAHLEN, a married man as to his sole and separate property, hereby GRANT(S) to THE CITY OF CARLSBAD, a Municipal Corporation, a and eighty one-hundredths percent (4.80%) undivided interest in that certain real property City of Carlsbad, County of San Diego, State o d on &&bit "A" attacl hereto and incorporated herein by reference. DATED: December 15, 1995 WILLI~ JI THORMAHLEN 95347034 OC I /MACIS77 7 5 -00 1 / 1 2- 1 5-9 5k~n1 ** *J t 0 - 9 STATEOFCALIFORNIA SS. , , Notar: On December 14, 1995, before me, > x- ersodly kt Public in and for said state, personally appeared bhm to me (or proved to me on the basis of satisfactory evidence) to be the person whose name subscribed to the within instrument and acknowledged to me that hehhe executed the same hisher authorized capacity, and that by hisher signature on the instrument, the person, or t' entity upon behalf of which the person acted, executed the instrument. 4w w*ow .Q 21 ,t Ir, I COUNTY OF WITNESS my hand and official seal. c2LwLwJ- ublic in and for said State (This area for official notarial seal) -2 - 95347074 OC I/MAC/S7775-00 111 2- I 5-95kjm 0 0 V" LEGAL DESCRIPTION THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIF0 COUNTY OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS: THAT PORTION OF SECTION 20, TOWNSHIP 12 SOUTH, RANGE 4 WEST, BERNARDINO BASE ANz> MERIDIAN, IN THE CITY OF CARLSW, C0U"I'Y C DIEGO, STATE OF CALIFORNIA, ACCORDING TO OFFICZAL PLAT THERE0 THAT PORTION OF LA COSTA DOWNS UNIT NO. 1, IN THE CITY OF CARL COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREC 2013, FILED IN THE OFFICE OF THE COUNTY WCORDER OF SAN DIEGO cc APRIL 26, 1927, DESCRIBED AS A WHOLE AS FOLLOWS:. BEGINNING AT THE INTERSECTION OF THE SOUTH LINE OF SAID SECT1 WITH THE EASTERLY LINE OF THE 200 FOOT RIGHT OF WAY OF THE Sm RAILROAD, AS SHOWN ON SAID MAP NO. 2013; TfiENCE AMNG THE SOUTI OF LA COSTA DOWNS UNIT NO. 1, SOUTH 89O21' EAST (NORTH 89'58'20' PER MAP NO. 2013) TO THE SOUTHWEST CORNER OF LAND DESCRIBED IN DI THE STATE OF CALIFORNIA, RECORDED FEBRUARY 16, 1966 AS FILE NO. OF OFFICIAL RECORDS; THENCE ALONG THE SOUTHWEST LINE OF SAID NORTH 26O10' WEST, 1462.07 FEET TO AN ANGLE POINT, NORTH 29"r FEET TO THE MOST EASTERLY CORNER OF THE LAM, DESCRIBED AS PARcl IN FINAL ORDER OF CONDEMNATION IN SUPERIOR COURT CASE NO. 25E COPY OF WHICH WAS FILED IN THE OFFICE OF THE COUNTY RECORDER ( DIEGO COUNTY, MARCH 15, 1968 AS FILE NO. 44090 OF OFFICIAL REI THENCE ALONG THE SOUTHEAST LINE OF SAID PARCEL 18B", AS FOLLOWS SOUTH 61'51' WEST, 292.78 FEET TO THE EASTERLY TERMINUS OF TI FOOT RADIUS CURVE, CONCAVE SOUTHEASTERLY IN THE NORTHERLY LINE LOMA BOULEVARD, AS SHOWN ON SAID MAP NO. 2013, WESTERL SOUTHWESTERLY ALONG SAID CURVE, 60.31 FEET THROUGH AN ANC 57°05'50" SOUTH 6l051'0O" WEST, 484.04 FEET; SOUTH 18"24'35" E AN ANGLE POINT IN THE NORTHERLY LINE OF SAN LUIS BOULEVARD AS SH SAID MAP NO. 2013, SOUTH Sl0O0'55" WEST (SOUTH SO"20'20" NEST P NO. 2013)' A DISTANCE OF 42-19 FEET; AND SOUTH 69O33'55" WEST, FEET (SOUTH 68'53'20" 'WEST, 68.75 FEET PER MAP 2013) TO TH WESTERLY CORNER OF LOT 19, BLOCK 21, ACCORDING TO SAID MAP NO. THENCE ALONG THE EASTERLY LINE OF SAID 200 FOOT RIGHT OF WAY SANTA FE RAlLROAD ACCORDING TO BEARINGS AND DISTANCES SHOWN 0 MAP No. 2013, SOUTH 19O06'40" EAST, 224.19 FEET TO THE BEGINNIh TANGENT 5629.65 FOOT RADIUS CURVE, CONCAVE EASTERLY ALONG SAIP SOUTHERLY, 196.51 FEET THROUGH AN ANGLE OF 2OOO' AND TANGENT 'I CURVE, SOUTH 21°06'40" EAST, 730.84 FEET TO THE POINT OF BEQIb NOTE: THE FOLLOWINQ PORTION OF THE ABOVE DESCRIBED REAL PI SHOWN ON MAP NO. 2013, WAS EXCLUDED FROM SAID SUBDIVISION BJ DIEGO COUNTY, STATE OF CALIFORNIA, A CERTIFIED COPY OF WHI RECORDED FEBRUARY 19, 1937, IN BOOK 620, PAGE 213 OF OFFICIAL Ri ALL OF SAID LAND LYING WITHIN BLOCKS 15 THROUQH 21, INnUDl ADJOINING STREETS. SAID ORDER DID NOT INCLUDE A NEW MAP OR PLAT SHOWING THE BOUNDR SAID LAND As THEY APPEAR AFTER THE EXCLUSION AS REQUIRED BY 11703 OF THE BUSINESS AND PROFESSIONS CODE. WEST, 300.38 FEET TO AN ANGLE POINT AND NORTH 27'14'24'' WEST, ENTERED FEBRUARY 19, 1937 m CASE NO. 87499 IN THE SUPERIOR cow KXH I J3 1 T "A" 1 1 e 0 ?J d' + 0 PI I I 1 CERTIFICATION FOR ACCEPTANCE OF DEED This is to certify that the interest in real propert conveyed by the deed or grant dated December 15, 1995 from william J. Thormahlen ---------___________------------------- to the City of Carlsbad, California, a municipal corporatit is hereby accepted by the City Council of the City of Carl California pursuant to resolution No. 95-212 , adopted on July 18, 1995 , and the grantee consents to the recordation thereof by its duly authorized officer. ' DATED: December 20, 1995 By : RECORDED REQ"EsT OF B&GkJ,-U JamaWDQ~ w. E-L -= v 8s- dm- mB~3lrrs-u b 7/%22/39-a"qW DEC-1995 FFICIFtL RECORE GREGORY SUITHI M]uNTy 1.00 FEI 1 ac FIRST AMERICAN TITL f. RECORDING REQUESTED BY I \ SM DIE60 Co"lY RECORN AND WHEN RECORDED MAIL TO: "HE CITY OF CARLSBAD 1200 Carlsbad Village Drive Carlsbad, CA 92008 Attention: Frank Mannen, Ass't City Manager h4AL TAX STATEMENI"T AS DIRECTED TO: THE CITY OF CARLSBAD 1200 Carlsbad Village Drive I Carlsbad, CA 92008 RFt i,,,,* 4, t' : ,? I- i Attention: Frank Mannen, Ass't City Manager 1' (Space Above For Recc APN 214-010-09 WOP -0- Municipal transfer DOCUMENTARY TRANSFER TAX .$ .X..Computed on the consideration or value of property conveyed, OR ..... Computed on the consideration or value less liens or encumbrances remaining tax - Firm Name GRANT DEED FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, CARL F. WILLGEROTH, a married man as to his sole and separate propi hereby GRANT(S) to THE CITY OF CARLSBAD, a Municipal Corporation, a twenty-tx thirty-eight one-hundredths percent (22.3 8%) undivided interest in that certain real proper City of Carlsbad, County of San Diego, State of C ria, described on Exhibit "A" attac hereto and incorporated herein by reference. DATED: December 15, 1995 E&f-!Q- CARL F. WILLG&OTH 9534 703 5 OC 1 MACIS73 35-00 1 / 1 2- 1 5-95kj1n 0 / 0 p i ' STATE OF CALIFORNIA ss. COUNTY OF u, a Notary Pt On December fi 1995, before me,- and for said state, personally appeared @d F .\ &j 'km , personally known to proved to me on the basis of satisfactory evidence) to be &e person whose name is subscri the within instrument and acknowledged to me that hdshe executed the same in hisher au capacity, and that by hisher signature on the instrument, the person, or the entity upon bel which the person acted, executed the instrument. JcwQytl.m WITNESS my hand and official seal. Not* blic in and for said State Comm. #955823 ORANGE COUNW NOTARY w8Lc wLfmRN' (This area for official notarial seal) -2- 95347035 OC I/MAC/S7335-00 1 /I 2- 15-95k~m b * e 'e \ LEGAL DESCRIPTION THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFOR COUNTY OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS: THAT PORTION OF SECTION 20, TOWNSHIP 12 SOUTH, RANGE 4 WEST, BERNARDINO BASE AND MERIDIAN, IN THE CITY OF CARLSBAD, COUNTY OF DIEGO, STATE OF CALIFORPIIA, ACCORDING TO OFFICIAL PLAT THEREOE THAT PORTION OF LA COSTA DOWNS UNXT NO. 1, IN THE CITY OF CARL! COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THERE0 2013, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COl APRIL 26, 1927, DESCRIBED AS A WHOLE AS FOLLOWS:. BEGINNING AT TWE INTERSECTION OF THE SOUTH LINE OF SAID SECTI( WITH THE EASTERLY LINE OF THE 200 FOOT RIGHT OF WAY OF THE SA" RAILROAD, As SHOW ON SAID MAP NO. 2013; TIIENCE ALONG THE SOU"H OF LA COSTA DOWNS UNIT NO. 1, SOUTH 89O21' EAST (NORTH 89O58'20" PER MAP NO. 2013) TO THE SOUTHWEST CORNER OF LAND DESCRIBED IN DE THE STATE OF CALIFORNIA, RECORDED FEBRUARY 16, 1966 AS FILE NO. OF OFFICIAL FiECORIlS; THENCE ALONG THE SOUTHWEST LINE OF SAID NORTH 26O10' WEST, 1462.07 FEET TO AN ANGLE POINT, NORTH 29OC WEST, 300.38 FEET TO AB ANGLE POINT AM3 NORTH 27O14'24" WEST, FEET TO THE MOST EASTERLY CORNER OF THE LAND DESCRIBED AS PARCZ IN FIN& ORDER OF CONDEMNATION IN SUPERIOR COURT CASE NO. 25E COPY OF WHXCH WAS FILED IN THE OFFICE OF THE COUNTY RECORDER ( DIEGO COUNTY, MARCH 15, 1968 AS FILE NO. 44080 OF OFFICIAL RE( THENCE ALONG THE SOUTHEAST LINE OF SAID PARCEL "B", AS FOLLOWS SOUTH 61051' WEST, 292. ?e FEET TO THE EASTERLY TERMINUS OF TI FOOT MIUS CURVE, CONCAVE SOUTHEASTERLY IN THE NORTHERLY LINE LOMA BOULEVARD, AS SHOW ON SAID MAP NO. 2013, WESTERL SOUTE-IWESTERLY ALONG SAID CURVE, 60.31 FEET THROUGH AN ANC 57°05'501' SOUTH 6l051'00" WEST, 484.04 FEET; SOUTH 18O24'35" E AN ANGLE POINT IN THE NORTHERLY LINE OF SAN LUIS BOULEVARD AS SH SAID MAP NO. 2013, SOUTH Sb000'55t1 WEST (SOUTH 50°20'20" WEST P NO. 2013), A DISTANCE OF 42.19 FEET; AND SOUTH 69O33'55" WEST, FEET (SOUTH 68O53'20" WEST, 68.75 FEET PER MAP 2013) TO TH WESTERLY CORNER OF LOT 19, BLOCK 21, ACCORDING TO SAID MAP NO. THENCE ALONG THE EASTERLY LINE OF SAID 200 FOOT RIQHT OF WAY SANTA FE RAILROAD ACCORDING TO BEARINGS AND DISTANCES SHOWN C MAP NO. 2013, SOUTH 19°06'40" EAST, 224.19 FEET TO THE BEGINNII: TANGENT 5629.65 FOOT RADIUS CURVE, CONCAVE EASTERLY ALONG SA11 SOUTHERLY, 196.51 FEET THROUGH AN ANGLE OF 2OOO' AND TANGENT 1 cmm, SOUTH 2l0O6'4O" EAST, 730.84 FEET TO THE POINT OF BEGIF NOTE: THE FOLLOWING PORTION OF THE ABOVE DESCRIBED REAL P SHOW ON MAP NO. 2013, WAS EXCLUDED FROM SAID SUBDIVISION 8' ENTERED FEBRUARY 19, 1937 IN CASE NO. 87499 IN THE SUPERIOR COU DIEGO COUNTY, STATE OF CALIFORNIA, A CERTXFIED COPY OF WH- RECORDED FEBRUARY 19, 1937, IN BOOK 620, PAGE 213 OF OFFICIAL R ALL OF SAID LAND LYING WITHIN BLOCKS 15 THROUQH 21, INCLUD ADJOINING STREETS. SAID ORDER DID NOT INCLUDE A NEW MAP OR PLAT SHOWING TKE BOUND$ SAID LAND As THEY APPEAR AFI"I'R THE EXCLU9ION As REQUIRED BY 11703 OF THE BUSXNESS AND PROFESSIONS CODE. 5x11 I IJTT "A" c, 8) ”, T * a p: I, \ K‘ 1 rv I 1 CERTIFICATION FOR ACCEPTANCE OF DEED This is to certify that the interest in real proper conveyed by the deed or grant dated December 15, 1995 from Carl F. Willgeroth ...................................... to the City of Carlsbad, California, a municipal corporati is hereby accepted by the City Council of the City of Carl California pursuant to resolution No. 95-212 , adopted on July 18, 1995 , and the grantee consents to the recordation thereof by its duly authorized officer. DATED: December 20, 1995 -- By : 0 e ENCINA ENCINA WASTEWATER AUTHORITY WASTEWATER AUTHORITY A Public Agency 6200 Avenida Enc Carlsbad, CA 920 Count” Telephone (61 9) 2 Plant Fax (61 9) 43 Administrative Of Fax (61 9) 43 1 -74c North San Diego Q LETTER OF TRANSMITTAL To: City of Carlsbad Project No. 1200 Carlsbad Village Drive Carlsbad, California 92008 Date. December 1d Sub,ect: Purchase ai Agreement a Attn: Mr. Frank Mannen Instructioi The following items are transmitted a Herewith 0 Under Separate Cover Via U. S. Mail Number of Copies Description 1 Copy of Purchase and Sale Agreement and Escrow Instructions 0 For your review 0 At your request 0 For your approval 0 For your action 0 Per contract dated & For your files @ For your information The above items are submitted General remarks Fn a/@+- - F.fc&G& ON&? &cc@c4 7&b L 2, LOYo/@d, Richard W. Gr General / Ma Copies to & Transmitted by e- RWG : am Forward reply to Encina Water Pollution Control Facility SERVING THE CITY OF VISTA, CITY OF CARLSBAD, BUENA SANITATION DISTRICT VALLECITOS WATER DISTRICT LEUCADIA COUNTY WATER DISTRICT AND ENClNlTAS SANITARY DISTRICT * 0 63 Fist American Title Insurance Cumpa 411 IW STREET + SAN DIEGO, CALIFORNIA 92101 + (619) 238-1776 AMENDED ESCROW INSTRUCTIONS NO.- Escrow No: 1124540LG Re: VacantLand Escrow Officer: Date: December 14, 1995 Carlsbad, CA LYNN GRAHAM TO: FIRST AMERICAN TITLE INSURANCE COMPANY My previous instructions in the above numbered escrow are hereby amended and/or supplemented in the particuIars only: It is acknowledged that the "Opening of Escrow" pursuant to Section 3.1 of the Agreement is December 14, 199 The close of escrow date is hereby extended to "on or before December 19, 1995." Otherwise, the original escrow instructions and amendments thereto, as amended herein, are to remain in and effect. SELLER(S): SAMMIS CARLSBAD ASSOCIATES, a California General Partnership *** SEE SIGNATURE PAGE ATTACHED BUYER( S) : THE CITY OF CARLSBAD, a Municipal Corporation * 9 Escrow No. 1124540LG Estimated Close Date: Dece Reference: Vacant Land Report Print Date: Dece Page 1 Carlsbad, CA Bu er ESTIMATED CZOSING STATEMENT BUYER : THE CITY OF CARLSBAD 1200 Carlsbad Village Drive Carlsbad, CA 92008 - - DEBITS - - - Consideration: Title Charges: Total Consideration 4,456,450.00 Extended Coverage 857.00 Record Grant Deed 30.00 Escrow Fees: Escrow Fees 1,320.50 Padding 500.00 Balance Due Escrow Totals $ 4,459,157.50 $ NOTICE: This estimated closing statement is subject to changes, corrections or additions at the time of final computation of closing escrow statement. THE CITY OF CARLSBAD 0 0 +.. J *- PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS Sel I er: Sammis Carlsbad Associates, A California General Partnership Buyer: The City of Carlsbad A Municipal Corporation First American Title Insurance Company Escrow No. 1 124540-LG Escrow: AGG9502KF4 November 13,1995 0 0 1. TABLE OF CONTENTS ARTICLE 1 Definitions ............................................. 1.1 City ............................................. 1.2 Close of Escrow, Closing Date. ........................ 1.3 Effective Date ...................................... 1.4 Environmental Laws. ................................ 1.5 Escrow Agent. ..................................... 1.6 Grant Deed. ....................................... 1.7 Hazardous Materials. ................................ 1.8 Permitted Exceptions ................................ 1.9 PR ............................................... 1.10 Property .......................................... 1.1 1 Purchase Price. .................................... 1.12 Title Insurer. ....................................... ARTICLE2 .................................................. 2.1 Purchase Agreement. ................................ 2.2 Purchase Price. .................................... ARTICLE3 .................................................. 3.1 Opening of Escrow. ................................. 3.2 Escrow Instructions. ................................. 3.3 Close of Escrow. ................................... 3.4 Deliveries to Escrow. ................................ 3.5 Prorations. ........................................ 3.6 Escrow Charges. ................................... 3.7 Recordation of Documents. ........................... 3.8 Distribution of Funds. ................................ 3.9 Conformed Copies. ................................. 3.10 Tax Reporting. ..................................... ARTICLE4 .................................................. 4.1 Title Report. ....................................... 4.2 Entitlements. ...................................... 4.3 Approval ......................................... 4.5 Title Insurance. .................................... 4.6 Extended Title Coverage. ............................. 4.7 Grant Deed. ....................................... AGG95026.F4 November 13,1995 0 0 ARTICLE5 ................................................... 5.1 Condition of the Property ............................. 5.2 Buyer’s Representations and Warranties. ................. 5.3 Seller’s Representations and Warranties. ................. 5.4 Real Estate Commissions. ............................ 5.5 Survival of Warranties and Obligations. .................. 5.6 Limitation on Seller’s Liability ......................... 6.1 Buyer’s Access to Property. ........................... 6.2 Damage or Destruction. .............................. 6.3 Condemnation. ..................................... 6.4 Possession. ....................................... ARTICLE7 .................................................. ARTICLE6 .................................................. 7.1 Assignment. ....................................... 7.2 Attorneys’ Fees. .................................... 7.3 Computation of Time Periods. ......................... 7.4 Conflict of Interest. ................................. 7.5 Construction. ...................................... 7.6 Counterparts. ...................................... 7.7 Entire Agreement. .................................. 7.8 Exhibits. .......................................... 7.9 Further Assurances. ................................. 7.10 Gender, Number. ................................... 7.1 1 Governing Law. .................................... 7.1 2 Modification, Waiver. ................................ 7.13 Mutual Covenants. .................................. 7.14 No Other Inducement. ............................... 7.15 Notice. ........................................... 7.16 Severability. ....................................... 7.17 Successors. ....................................... 7.18 Time. ............................................ 7.19 1031 Exchange ..................................... CONSENT OF ESCROW AGENT ................................. AGG95026.F4 November 13.1995 ,. 0 0 PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS THIS PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS ("Agreement"), effective as ofP/z~ /i*m aglL- /+= , 1995 ("Effective Date"), by t between SAMMIS CARLSBAD ASSOCIATES a California General Partnership (Sei and the CITY OF CARLSBAD, a Municipal Corporation ("Buyer"), in trust for the member agencies of the Encina Wastewater Authority (City of Carlsbad, City of Encinitas, City of Vista, Buena Sanitation District, Leucadia Water District, and Vallecitos Water District) constitutes an agreement to purchase and sell real prop€ and escrow instructions directed to the Escrow Agent identified herein. ARTICLE 1 Definitions For purposes of this Agreement, the following defined terms shall be indicated bl initial capital letters and shall have the meanings set forth below: 1.1 1.2 1.3 City The City of Carlsbad, California Close of Escrow, Closing Date. As defined in Section 3.3(a). Effective Date. The date first set forth above, which shall be the date this Agreement has been executed (a) by Buyer, pursuant to a resolution of thc City Council authorizing such execution, and (b) by Seller. Buyer shall exec this Agreement within three (3) business days after adoption of the City Council's resolution of approval. Environmental Laws. Any law or regulation applicable to the physical condition of the Property, or the presence of any substance thereon, incluc without limitation, the Comprehensive Environmental Response, Compensz and Liability Act of 1980, as amended (42 U.S.C. Sections 9601, et seq.), tt- Resources Conservation and Recovery Act of 1976 (42 U.S.C. Sections 69 seq.) the Clean Water Act (33 U.S.C. Sections 466, et seq.), the Safe Drinkin Water Act (1 4 U.S.C. Sections 1401 -1 450) , the Hazardous Materials Transportation Act (49 U.S.C. Sections 1801 , et seq.), the Toxic Substance Control Act (15 U.S.C. Sections 2601-2629), the California Hazardous Was Control Law (California Health and Safety Code Sections 25100-25600), ar the Porter-Cologne Water Quality Control Act (California Health and Safety Code Sections 13000, et seq.), as any of the foregoing may be amended fi time to time, and all regulations and publications implementing or promul! pursuant to the foregoing. 1.4 AGG95026.F4 November 13, 1995 1 0 0 1.5 Escrow Agent. First American Title Insurance Company, Att: Lynn Graham 41 1 Ivy Street, San Diego, California 92101 , Box 808, San Diego, California 921 12, Telephone (800) 451-1776. Grant Deed. The Grant Deed conveying the Property to Buyer in the form Exhibit "A' attached hereto, executed and acknowledged by Seller and Bu! Hazardous Materials. Hazardous Materials shall include, but are not limit€ substances which are flammable, explosive, corrosive, radioactive, or toxic any substances defined as hazardous substances, hazardous materials, to substances or hazardous wastes in any of the Environmental Laws, and al amendments to the Environmental Laws. Hazardous Materials shall also include those asbestos-containing materials defined and described in Environmental Protection Agency Report No. 56/5-85-024 (June 1985) or a related or successor report other applicable government regulations definii describing such materials. Permitted Exceptions. As defined in Section 4.3. PR. The preliminary title report identified in Section 4.1. Property. That certain real property described as that portion of Section 2 Township 12 South, Range 4 West, San Bernardino Base and Meridian, in City of Carlsbad, County of San Diego, State of California, according to thc official plat thereof and that portion of La Costa Downs Unit No. 1, in the C Carlsbad, County of San Diego, State of California, according to map then No. 2013, filed in the office of the County Recorder of San Diego County, i 26, 1927. More fully described in Exhibit A. Purchase Price. The aggregate consideration to be paid by Buyer to Sell1 the purchase of the Property] as set forth in Section 2.2. 1.12 Title Insurer. First American Title Insurance Company, Attn: Skip Santy, T Officer, 41 1 Ivy Street, San Diego, California 921 12. Telephone (800) 451-C ARTICLE 2 1.6 1.7 1.8 1.9 1.10 1.1 1 Purchase Agreement; Purchase Price 2.1 Purchase Agreement. Seller agrees to sell the Property to Buyer and BUS agrees to purchase the Property from Seller, on the terms and conditions forth herein. Purchase Price. Buyer agrees to pay to Seller the amount of Four Million 2.2 AGGQ5026.F4 November 13,1895 2 I. 0 e Hundred Fifty-Six Thousand Four Hundred Fifty Dollars ($4,456,450). Deposit. Buyer shall deposit the sum of One Hundred Thousand ($100,00( Dollars into escrow within three (3) business days of the opening of escrov be applied towards the purchase price upon close of escrow. The balance the Purchase Price shall be payable in cash and shall be delivered to Escr Agent, in the form of a cashier's or certified check drawn on a California b: payable to Escrow Agent or funds by federal wire, a sufficient time in adva of the scheduled closing date to permit disbursement of such funds on thc Closing Date under applicable law and Escrow Agent's standard practice. ARTICLE 3 2.3 Escrow 3.1 Opening of Escrow. An escrow ("Escrow") shall be opened with Escrow I First American Title Insurance Company, to consummate the sale of the Property pursuant to this Agreement, identified as Escrow No. 1 12540-LG. Within three (3) business days after the Effective Date, Seller and Buyer SF cause a fully executed copy of this Agreement to be deposited with Escro Agent. The date Escrow Agent has received an executed copy of this Agreement is referred to herein as the "Opening of Escrow." Escrow Ageni acknowledge the Opening of Escrow and its agreement to act as the Escr Agent hereunder by: (a) executing the Consent of Escrow Agent attached hereto; and (b) promptly delivering a copy of the executed Consent to Se' and Buyer. Escrow Instructions. This Agreement shall constitute initial escrow instrul to Escrow Agent. Escrow Agent's general provisions are attached hereto i Exhibit "B" and made a part hereof, to the extent they are consistent with provisions of this Agreement. The parties shall execute any additional instructions reasonably required by Escrow Agent to consummate the transaction provided for herein; provided, however, such additional Escroi Instructions shall not modify the provisions of this Agreement, unless suct instructions (a) state the modification in full and (b) are signed by both p; 3.2 3.3 Close of Escrow. (a) Closina Date. "Close of Escrow" or "Closing Date" means the date Grant Deed is recorded in the Official Records of San Diego Counl California and the Purchase Price is paid to Seller. The Close of E: shall occur on December 15, 1995 or within ten (10) days of final k approval by all member agencies of the Encina Wastewater Authoi that occurs sooner than December 15, 1995. AGG95026.F4 November 13,1995 3 ,. 0 e (b) Material Term. Buyer will endeavor to make a good faith effort to expedite member agency approvals. If escrow does not close on tl- Closing Date, and the Closing Date is not extended by mutual instructions of the parties, the closing shall occur as soon after the Closing Date as it is in a condition to close unless a party not then i default under this Contract notifies the other party and Escrow Agen writing that unless the closing occurs within five business days folloi the date of the notice, the escrow and this Contract shall be deemec terminated. If the closing has not occurred during the five day peric this Contract and escrow shall be deemed terminated and Escrow E shall return all monies and documents to the party depositing them Deliveries to Escrow. Prior to the Closing Date, each party shall timely dc to Escrow all funds and documents required to complete the Closing purs to this Agreement, including, but not limited to, prorated amounts and 0th payments required under Sections 3.5 and 3.6. Failure to make any such delivery shall constitute a material default hereunder. Prorations. Escrow Agent shall prorate all real property taxes and installm of assessments payable prior to the Closing Date (collectively, “taxes”) wh are a lien upon the Property, based on the most recent official information available from the appropriate City or County office; provided, however, th Seller shall pay all penalties and interest resulting from late payment of SUI taxes and assessments. All prorations shall be made to the Closing Date I upon a thirty (30) day month. If actual tax bills for the Property for the curr tax year are not available as of the Close of Escrow, Buyer and Seller sha reprorate said taxes outside of Escrow following Close of Escrow upon rel of said tax bills by either Buyer or Seller. It shall be the responsibility of th Seller to obtain a refund of any taxes prepaid by Seller which are refundal upon close of escrow due to the tax exempt status of Buyer. 3.4 3.5 3.6 Escrow Charges. (a) Seller’s Payments. Seller shall pay: (1) one-half of Escrow Agent’s 1 cancellation charge; (2) the cost of a standard ALTA owner’s title insurance policy and preliminary title report; (3) the documentary tr tax which Escrow Agent determines is required by law; and (4) 0th charges and expenses customarily charged by Escrow Agent to se Buyer’s Payments. Buyer shall pay: (1) one-half of Escrow Agent’s cancellation charge; (2) the additional cost for extended ALTA title insurance coverage; (3) the cost of recording the Grant Deed; and other charges and expenses customarily charged by Escrow Agen buyers. (b) AGG95026.F4 November 13, 1995 4 1. e 0 (c) Default. Notwithstanding the foregoing, in the event of a default by @ or Seller hereunder, all cancellation and other escrow charges shall I paid by the defaulting party. 3.7 Recordation of Documents. Escrow Agent is authorized to record any instrument delivered through Escrow if necessary or proper for issuance of Title Policy described in Section 4.3. At Close of Escrow, Escrow Agent sh, submit the Grant Deed to the County Recorder for recordation and instruct County Recorder to return the original Grant Deed to Buyer and a conform copy of the Grant Deed to Seller. At Seller’s or Buyer’s request, the documentary transfer tax shall be set forth in a statement separate from thc Grant Deed and shall not be reflected in any recorded documents. Distribution of Funds. Upon Close of Escrow, Escrow Agent shall distribL pursuant to unilateral instructions provided to Escrow Agent by the recipiei (a) to Seller, or order, the Purchase Price, adjusted for prorations, charges other credits and debits provided for herein; and (b) to Buyer or order, an excess funds delivered by Buyer to Escrow Agent. Conformed Copies. Upon Close of Escrow, Escrow Agent shall deliver to Seller and Buyer: (a) an accounting and final closing statement for this transaction; and (b) copies of all recorded documents, conformed to shov recording date and file number. 3.10 Tax Reporting. Any returns, statements or reports required to be filed unc Section 6045(e) of the Internal Revenue Code of 1986 and Sections 1880: 26131 of the California Revenue and Taxation Code (and any similar repo required by federal, state or local law) relating to the Property shall be file Escrow Agent. In no event shall this Agreement be construed so as to rec that such returns, reports or statements be filed by Buyer, Buyer‘s counsE Seller or Seller‘s counsel. Within five (5) days after Escrow Agent’s receipl written request from Seller and/or Buyer, Escrow Agent shall provide evid( to Seller and/or Buyer of its compliance with the provisions of this Sectior ARTICLE 4 3.8 3.9 Conditions Precedent 4.1 Title Report. (a) Approval: Buyer’s written approval of a preliminary title report to I issued by First American Title Insurance Company, as well as the underlying documents referred to therein, within ten (10) days of tk receipt, shall be a condition precedent to consummation of this SE AGG95026.F4 November 13,1995 5 0 e 4.2 Entitlements. Seller shall provide Buyer with copies of all governmental permits, approva other entitlements issued in connection with the subdivision, development improvement of the Property and the terms and conditions thereof, excludi those issued by the City of Carlsbad, for approval by Buyer. Approval . If Buyer shall fail to approve or disapprove the matters referred Paragraph 4.1 and 4.2 hereof, in writing, ten (10) days after receipt thereof, shall be conclusively presumed that Buyer has approved said matters. If E shall disapprove or conditionally approve the PR, or any part thereof, or ar the items referred to in Paragraphs 4.1 or 4.2 hereof, then for a period of t (1 0) days after written notice by Buyer to Seller of said disapproval or conditional approval, Seller shall have the right to cure said disapproval or conditionally approved items, prior to the close of escrow, or elect not to c said disapproved items. Notice of Seller's written election shall be given tc Buyer. If Seller shall elect not to cure all of said items, then for a period of days after said written notice to Buyer, Buyer shall have the right to either accept title to the Property subject to said items or to terminate this transa Buyer shall give written notice to Seller of Buyer's election within ten days the expiration of the time in which Seller shall have been required to respc to Buyer's notice of disapproval or conditional approval. If Buyer shall fail give Seller such written notice of Buyer's election within the time specified, shall be conclusively presumed that Buyer has elected to terminate this transaction. If Buyer elects to terminate this transaction, thereafter neither Buyer nor Seller shall have any further liability hereunder, (except for any liabilities of Buyer pursuant to Section 6.1) and Buyer shall be entitled to t prompt return of all funds deposited by Buyer with Escrow Holder, less or share of escrow cancellation fees and costs and title company charges Board Approval. Consummation of this sale is contingent upon final bud! approval by all member agencies of the Encina Wastewater Authority. If t condition is not satisfied as to each and every member agency, Buyer ma terminate this transaction by giving Seller written notice and Buyer shall bi entitled to the prompt return of all funds deposited by Buyer with Escrow Holder, less only its share of escrow cancellation fees and costs and title company charges. Title Insurance. As of Close of Escrow, First American Title Insurance Company shall issue, or be committed to issue, at Seller's sole cost, a standard form ALTA owner's title insurance policy ("Title Policy"), insuring Buyer's title to the Property in the amount of the Purchase Price. (a) 4.3 4.4 4.5 Buyer and Seller agree that monetary encumbrances are disapproj AGG95026.F4 November 13,1995 6 0 m I. and that Seller shall have the obligation, at Seller's expense, to satis and remove monetary encumbrances at or before closing date. Seller warrants that, except as disclosed in the Preliminary Title Rep( delivered to Buyer, to Seller's "Actual Knowledge", as defined below, property is not within any special assessment districts. At Closing, Seller agrees to convey good and marketable title by gr: deed free and clear of all liens and encumbrances of record or knov Seller other than current property taxes not yet due and exceptions contained in the PR not objected to by Buyer ("Permitted Exception: Extended Title Coverage. Buyer has elected to obtain ALTA extended titlc insurance coverage, subject to the following conditions: Buyer shall, in a timely manner, (1) order any required survey, (2) deliver tl survey to the Title Insurer for review, (3) order an inspection of the Propert the Title Insurer, (4) order the Title Insurer to update the PR if necessary tc identify additional exceptions (if any) resulting from Title Insurer's review ol survey and inspection, and (5) review and approve any such additional exceptions prior to the Closing Date described in Section 3.3. Grant Deed. Prior to Close of Escrow, Seller shall execute, acknowledge i deliver the Grant Deed to Escrow. (b) (c) 4.6 4.7 ARTICLE 5 Representations, Warranties 5.1 Condition of the Property (a) Buver's Due Diliqence Review. Buyer acknowledges that, prior to tt Effective Date, Buyer has reviewed and approved the following asp of the Property, after such examination, inspection, investigation an review as Buyer considered it appropriate to undertake, at Buyer's expense. (1) All applicable zoning, subdivision, land use, environmental, building and other governmental laws, ordinances, rules, regulations and requirements applicable to the Property. The physical and environmental conditions of the Property, including hydrology, soils, geotechnical and hazardous matt conditions; and (2) AGG95026.F4 November 13, 1995 7 ,A e e (3) All matters relating to the condition, value, fitness, or suitabilio for its intended use. (b) Disclaimers. Except as expressly provided in Section 5.3: (1) Seller makes no representation or warranty as to any operativ proposed governmental laws, regulations and requirements (including but not limited to zoning, environmental and land L laws, regulations and requirements) to which the Property ma subject . Buyer acknowledges that the purchase of the Property will be the basis of Buyer's own investigation of: (i) the physical conditions of the Property, including the soils, subsurface anc environmental conditions thereof; (ii) the operative or propose governmental laws, regulations and requirements affecting or applicable to the Property and the terms and conditions of al applicable governmental permits and approvals; and (iii) the economic value, marketability, merchantability, feasibility, suitability or use of the Property. Except for matters arising from or attributable to a material fit of which Seller has Actual Knowledge and not disclosed to E and subject to satisfaction or waiver of the conditions preced to Close of Escrow, Buyer will acquire the Property in an "AS condition. Buyer assumes the risk that adverse physical conditions or the applicability and effect of such governmenl laws, regulations and requirements may not have been revei by Buyer's investigation. As used herein, "material" shall me: substantive findings that would influence or tend to influence Buyer's decision to acquire the Property. Seller shall have no obligation to correct any conditions or a defects discovered by Buyer during the course of its investi!: or thereafter. If Buyer discovers, subsequent to the Effective hereof but prior to Close of Escrow, a material defect in the Property which could not have been discovered by a reasor and diligent investigation undertaken by Buyer prior to the Effective Date hereof, then Buyer shall have the right to term this Agreement and the Escrow by delivering written notice * Seller and Escrow Agent, unless Seller agrees in writing to c such default. In the event of such termination, neither party have any further rights or obligations hereunder (except for liabilities of Buyer pursuant to Section 6.1). (2) (3) (4) AGG95026.F4 November 13. 1995 8 0 e (c) Hazardous Materials. If Buyer should discover during its investigatio the Property any Hazardous Material or other environmental conditic subject to legal requirements for corrective or remedial action, Buye shall, within a reasonable time, notify Seller in writing of the same. Ii such discovery is made after the Close of Escrow, Seller shall have liability to Buyer arising out of such discovery unless Buyer can estz that Seller had Actual Knowledge that Hazardous Material was pres on the Property prior to the Close of Escrow, and that Seller failed tl disclose the existence of such Hazardous Material to Buyer. Acknowledsements The term "Actual Knowledge" of Seller, or simili phrases as used in this Agreement, means the actual present know of Joseph Sweeney, Investment Manager of Developmental Proper Account and William J. Thormahlen, General Partner of Avenida En( Associates, without any duty of investigation or inquiry of any kind c nature whatsoever other than to obtain: (i) the Preliminary Site Assessment dated March 21, 1994, prepared by GeoCon Environm Consultants, Inc. ("GeoCon"), (ii) the Limited Soils Sampling Report dated May 9, 1995 prepared by GeoCon, and (iii) the Risk Assessn Report dated April 21. 1995 prepared by GeoCon (collectively, the "Environmental Reports"). Seller acknowledges Actual Knowledge o above referenced reports and Buyer acknowledges receipt of abovc referenced rep0 rts. (d) 5.2 Buyer's Representations and Warranties. Buyer agrees, represents and warrants, as of the date of execution of this Agreement and as of Close oi Escrow, as follows: (a) Buyer is a municipal corporation, duly formed, existing and in gooc standing under the Saws of the State of California; Buyer has full legal right, power and authority to execute and fully perform its obligations under this Agreement pursuant to its govern instruments and state and local laws, with prior final budget appro\ all member agencies of the Encina Wastewater Authority. Buyer acknowledges that one of the general partners of Seller is N England Mutual Life Insurance Company, a Massachusetts corporz on behalf of its Developmental Properties Account ('IDPA'), the ass which have been deemed to be "plan assets", as that term is definl under ERISA. Buyer hereby represents and warrants for the benefil Seller that Buyer is familiar with ERISA and that Buyer is not a "par interest" as defined in ERISA, in respect to any relevant plan. Buye indemnify Seller against all claims, demands, liabilities, costs and (b) (c) AGG95026.F4 November 13, 1995 9 0 0 expenses incurred by Seller if this transaction is determined to be i "prohibited transaction" under ERISA as a result of Buyer being a p in interest in respect to any plan. 5.3 Seller's Representations and Warranties. Seller agrees, represents and warrants, as of the date of execution of this Agreement and as of Close o Escrow, as follows: (a) Authoritv. Seller is a California General Partnership duly formed, exi and in good standing under the laws of the State of California; Sell full legal right, power and authority to execute and fully perform its obligations under this Agreement pursuant to its governing instrum without the need for any further action; and the persons executing Agreement and other documents required hereunder on behalf of $ are the duly designated agents of Seller and are authorized to do 5 Non-Foreiqn Affidavit- Seller is not a foreign person and is a United States person as defined in Section 7701(a)(30) of the Internal Rev Code, as amended ('Codel'). Prior to Close of Escrow, Seller shall deliver to Escrow (with a copy to Buyer) an affidavit, executed and sworn to under penalty of perjury, substantially in the form attache( hereto as Exhibit "C". Seller is a General Partnership qualified to do business and maintains an office in the State of California. Seller w instruct Escrow Agent to disburse any proceeds due to Seller upor Close of Escrow to an address outside the boundaries of the Unite States, and will not use a financial intermediary as defined in Califo Revenue and Taxation Code Section 48805(d) for the receipt of proceeds from this transaction. Hazardous Materials. Seller has no Actual Knowledge, except as otherwise disclosed to Buyer in writing, of any release of any Haza Materials onto the Property. To Seller's Actual Knowledge, no sum1 citation, directive, order or other communication has been issued tc Seller arising out of or relating to the presence of Hazardous Mater on the Property. Bankruptcv. Seller has not: (1) made a general assignment for the benefit of creditors; (2) filed any voluntary petition in bankruptcy or subject to the filing of an involuntary petition by Seller's creditors; ( had a receiver appointed to take possession of all or substantially l Seller's assets; (4) suffered the attachment or other judicial seizure or substantially all of Seller's assets; (5) admitted in writing its inab pay its debts as they come due; or (6) made an offer of settlement extension or composition to its creditors generally. (b) (c) (d) AGG95026.F4 November 13, I995 10 e e 5.4 Real Estate Commissions. Seller agrees to pay any and all commissions d to brokers that have been employed by Seller or are entitled to a commissio or compensation in connection with this transaction as a result of the action agreement of the Seller. Seller agrees to indemnify, hold harmless, protect i defend the Buyer from and against any obligation or liability to pay any sucl commission or compensation arising from the act or agreement of the Selle Buyer is not represented by a broker in this transaction. Survival of Warranties and Obligations. The representations and warrantic given by Buyer and Seller in this Article 5, and all obligations under this Agreement to be performed after Close of Escrow, shall survive the Close c Escrow and delivery of the Grant Deed to Buyer. Limitation on Seller’s Liability. Buyer agrees that any recovery against SE for the breach for Seller’s obligations hereunder shall be strictly limited to tl Purchase Price received by Seller from the sale of the Property, and such recovery shall further be limited to Buyer’s actual damages. In no event sht Buyer be entitled to seek or obtain any other damages of any kind, includi without limitation, consequential, indirect, or punitive damages. Subject to limitations set forth in this Section 5.6, Buyer shall be entitled to seek or attempt to obtain any recovery or judgment against the Seller’s assets or against any of the assets of Seller’s partners, provided, that, to the extent 1 New England Mutual Life Insurance Company, a partner of Seller, shall ha any liability under this Agreement, such liability shall be satisfied solely fro the assets and properties of its Development Properties Account, a separz investment account established and maintained by New England Mutual L Insurance Company under applicable law, and in no event shall recourse I had to any assets or properties held by New England Mutual Life Insuranc Company in its general investment or in any of its other separate investmc accounts, or to any officers, directors, policyholders or employees of New England Mutual Life Insurance Company or its affiliates. 5.5 5.6 ARTICLE 6 Additional Obligations 6.1 Buyer’s Access to Property. (a) Terms of Entry. Seller has allowed prior to the Effective Date, and shall continue to allow between the Effective Date and the Close o Escrow or earlier termination of this Agreement, reasonable acces: the Property by Buyer (and its employees, agents, representatives contractors), during normal business hours, upon reasonable notic Seller, in order to inspect, conduct reasonable soils tests, environi AGG95026.F4 November 13, 1995 11 I. 0 0 assessment work, engineering studies and surveys and other investigation required by Buyer, at Buyer’s sole cost. In connection w any such entry, Buyer: (1) shall perform all work in a safe manner; (21 shall not permit any hazardous condition to remain on the Property; ( shall repair any damage or disturbance to the Property; (4) shall keel the Property free and clear of all mechanics’ or materialmen’s liens arising out of Buyer’s activities; and (5) shall comply with all Environmental Laws, all other governmental laws, ordinances and requirements, and the conditions of all permits applicable to such wc Invasive Testinq Notwithstanding the foregoing, if Buyer wishes to engage in a Phase II environmental study or any other environmenta other testing or sampling of any kind with respect to soils or groundwater or other studies which would require test boring of or o intrusions into the Property or which testing would otherwise damagf disturb any portion of the Property, Buyer shall obtain Seller‘s prior consent thereto, which consent may be withheld in Seller’s sole discretion. To the extent Seller approves any such testing, Buyer shz be responsible for, and shall dispose of, all such test samples in accordance with applicable law at no cost or liability to Seller. (See attached letter submitted by Seller to Buyer dated November 1, 199! and the reply submitted by Buyer to Seller dated November 2, 1995 Indemnitv. Buyer shall indemnify protect, hold harmless and defend Seller (and its partners, officers, directors, shareholders, employees agents, contractors, successors and assigns) and Seller’s property and against any and all liabilities, liens, claims, damages, costs, expenses, suits or judgments (including attorneys’ fees and court c’ for labor or services performed or materials furnished to or for Buy€ for personal injury, death or property damage, arising out of entry L the Property, or any adjacent land owned by any affiliate of Seller, t Buyer or its employees, agents, representatives or contractors, or a breach of the provisions of this Section 6.1 by Buyer. (b) (c) 6.2 Damage or Destruction. If, prior to the Closing Date any part of the Prop damaged or destroyed by fire or other casualty, Seller shall promptly give notice thereof to Buyer. If such casualty materially, adversely affects the v of the Property or its suitability for Buyer’s intended purpose, as reasonak determined by Buyer, Buyer may elect, by delivering written notice to Sell within ten (10) days after receipt of Seller’s notice, to terminate this Agree and the Escrow, unless Seller agrees, within five‘(5) days after Seller’s re1 of such termination notice, to cure the damage on or before the Closing In the event of such termination, neither party shall have any further right! obligations hereunder (except for any liabilities of Buyer pursuant to Sect AGG95026.F4 November 13, 1995 12 0 e 6.1). If Buyer does not deliver written notice of termination within said 10-dz period, then the parties shall continue performance under this Agreement a the Escrow, without modification of any of its terms and without any reduct in the Purchase Price. Seller shall have no obligation to repair or restore thc Property and no liabilities or obligations to Buyer, and Buyer shall have no claims for damages or other remedies against Seller, as a result of such damage or destruction of the Property. Condemnation. If, prior to the Closing Date, Seller receives actual notice t condemnation or eminent domain action is filed against the Property or an part thereof (or that a taking is pending or contemplated), but excluding ai condemnation or taking by Buyer, Seller shall promptly give notice thereof Buyer. If such taking is of all or a significant portion of the Property, Buyer elect, by delivering written notice to Seller within ten (IO) days after receipt Seller's notice, to terminate this Agreement and the Escrow. In the event o such termination, neither party shall have any further rights or obligations hereunder (except for any liabilities of Buyer pursuant to Section 6.1). For purposes of this Section 6.4, the taking of a "significant portion" means a 1 such that the value of the Property is materially impaired or reduced. If Bu does not deliver written notice of termination within said 10-day period, or other than a significant portion of the Property as described above is takei then: (a) the parties shall continue performance under this Agreement and Escrow, without modification of any of its terms and without any reduction the Purchase Price; and (b) Seller shall assign and deliver to Buyer, subje and effective upon the Closing Date, all of Seller's interest in the award fom such taking. Buyer shall have no other remedies against Seller as a result such condemnation except as set forth in this Section. Possession. Possession of the Property shall be delivered by Seller to Bi on the Closing Date after recordation of the Grant Deed. AI1 risk of loss ar damage to the Property from whatever source shall be the sole responsib Seller prior to Close of Escrow. 6.3 6.4 ARTICLE 7 General Provisions 7.1 Assignment. (a) & Buver. Prior to the Close of Escrow, Buyer may assign its rights delegate its duties hereunder to the Encina Wastewater Authority c of its member agencies with the prior written consent of Seller, whi consent may not be unreasonably withheld. Any permitted assignf shall specifically assume all obligations, representations and warri? AGG95026.F4 November 13,1995 13 .. 0 0 of Buyer under this Agreement and under any additional escrow instructions executed pursuant hereto, shall be bound by all appro\ previously given (or deemed given) by Buyer hereunder, and shall provide a warranty of authority comparable to Section 5.2. Subject foregoing, the terms, covenants and conditions herein contained SI be binding upon and inure to the benefit of the successors and as: of Seller and Buyer. 7.2 Attorneys’ Fees. If either party commences legal proceedings for any reli against the other party arising out of this Agreement, the losing party shal the prevailing party’s legal costs and expenses, including, but not limited reasonable attorneys’ fees and costs as determined by the court. Computation of Time Periods. All periods of time referred to in this Agreement shall include all Saturdays, Sundays and state or national holic unless the period of time specifies business days. The term “business da! means days other than Saturdays, Sundays and state or national holidays the date or last date to perform any act or give any notice or approval sh: on a Saturday, Sunday or state or national holiday such act or notice sha deemed to have been timely performed or given if performed or given on 7.3 a next business day. 7.4 Conflict of Interest. Conflicts of interest relating to this Agreement are str prohibited. Except as otherwise expressly provided herein, neither Buyer I any director, employee or agent of Buyer shall give to or receive from an) director, employee or agent of Seller any gift, entertainment or other favor significant value, or any commission, fee or rebate. Likewise, neither Buy€ any director, employee or agent of Buyer shall enter into any business relationship with any director, employee or agent of Seller (or of any affilis Seller), unless such person is acting for and on behalf of Seller, without p written notification thereof to Seller. Construction. The captions and paragraph headings used in this Agreerr are inserted for convenience of reference only and are not intended to de limit or affect the construction or interpretation of any term or provision he This Agreement shall not be construed as if it had been prepared by only Buyer or Seller, but rather as if both Buyer and Seller had prepared the si Counterparts. This Agreement or any escrow instructions pursuant to thi: Agreement may be executed in multiple copies, each of which shall be deemed an original, but all of which shall constitute one Agreement after party has signed such a counterpart. Entire Agreement. This Agreement, together with all exhibits attached he 7.5 7.6 7.7 AGG95026.F4 November 13, 1995 14 0 0 and other agreements expressly referred to herein, constitutes the entire agreement between the parties with respect to the purchase and sale of the Property. All prior or contemporaneous agreements, understandings, representations, warranties and statements, oral or written, are superseded. subsequent agreement, representation, or promise made by either party hereto, or by or to an employee, officer, agent or representative of either ps shall be of any effect unless it is in writing and executed by the party to be bound thereby. This Agreement supersedes the offer to purchase submittec Buyer to Seller dated September 1, 1995 and the counteroffer submitted b) Seller to Buyer dated September 12, 1995. Exhibits. All exhibits referred to herein are attached hereto and incorporate herein by reference. Further Assurances. The parties agree to perform such further acts and tc execute and deliver such additional documents and instruments as may be reasonably required in order to carry out the provisions of this Agreement i the intentions of the parties. 7.10 Gender, Number. As used herein, the singular shall include the plural ana masculine shall include the feminine, wherever the context so requires. Governing Law. This Agreement shall be governed, interpreted, construec enforced in accordance with the laws of the State of California. 7.12 Modification, Waiver. No modification, waiver, amendment or discharge ( Agreement shall be valid unless the same is in writing and signed by botP Buyer and Seller. The escrow instructions shall be considered a part of thi Agreement, and no provision in said escrow instructions shall supersede ( contradict the provisions of this Agreement, unless the parties agree in wrl to such change. The exercise of any remedy provided by the provisions o Agreement or at law or in equity shall not exclude any other remedy, unle. is expressly excluded. 7.13 Mutual Covenants. In consideration of the mutual promises of the parties hereto, and of the execution of this Agreement by the parties, each party hereby agrees in good faith to utilize commercially reasonable efforts in connection with the performance of all obligations and satisfaction of conditions hereunder, and in connection with the taking of any and all ac’ necessary with respect to any investigation, review, or other procedure re in order to enable such party to grant or withhold its consent or approval provided for herein, it being the intention of each party that such covenar good faith and utilization of commercially reasonable efforts shall be deer sufficient and valid consideration for the promises of each party Rereundc 7.8 7.9 7.1 1 AGG95026.F4 November 13, lOQ5 15 0 a Absent an express statement to the contrary, wherever any consent or apt of a party is required hereunder, such party shall not unreasonably withho delay such consent or approval. 7.14 No Other Inducement. The making, execution and delivery of this Agreen by the parties hereto has been induced by no representations, statements warranties or agreements other than those expressed herein. 7.15 Notice. Notice to either party shall be in writing and either personally deliv or sent by an overnight courier service such as Airborne, Federal Express Purolator, or by first-class mail, registered or certified mail, postage prepaic return receipt requested, addressed to the party to be notified at the addre specified herein. Any such notice shall be deemed received on the date of receipt if personally delivered or sent by overnight courier to the party (or : party’s authorized representative) or three (3) business days after deposit i U.S. Mail, as the case may be. SELLER: Sammis Carlsbad Associates, a California General Partnership Attention: Joe Sweeney 399 Boylston Street Boston, Massachusetts 021 16 With a copy to: Bill Thormahlen 18802 Bardeen Avenue Irvine, CA 92714 Allen, Matkins, Gamble & Mallor-y Attorneys at Law Orange County Office Attention: Richard E. Stinehart 18400 Von Karman, Fourth Floor lrvine, CA 9271 5-1 597 BUYER: The City of Carlsbad Attn: Frank Mannen, Assistant City Manager 1200 Carlsbad Village Drive Carlsbad CA 92008 Either party may change its address for notice by delivering written notice to the o party as provided herein. Buyer and Seller, and their respective counsel, hereby a! AGG9502RF4 November 13, 1995 16 e 0 that notices from Buyer or Seller may be given by their respective counsel and tb for the purpose of giving such notice, either party's counsel may communicate directly with the other party. 7.16 Severability. If any term, provision, covenant or condition of this Agreeme held to be invalid, void or otherwise unenforceable, to any extent, by any c of competent jurisdiction, the remainder of this Agreement shall not be affc thereby, and each term, provision, covenant or condition of this Agreemen shall be valid and enforceable to the fullest extent permitted by law. 7.17 Successors. Subject to the restriction on assignment contained herein, all terms of this Agreement shall be binding upon, inure to the benefit of, and enforceable by the parties hereto and their respective heirs, legal representatives, successors, and assigns. 7.18 Time. Time is of the essence of each provision of this Agreement includini without limitation all time deadlines for satisfying conditions and Close of Escrow. 7.19 1031 Exchange. Buyer acknowledges that Seller or certain partners of Sell (each such person or entity hereinafter referred to as an "Exchanging Partn may engage in a tax deferred exchange ("Exchange") pursuant to the Sectil 1031 of the Internal Revenue Code. To effect an Exchange, Seller may distribute undivided interests in the Property to an Exchanging Party, andjo the Exchanging Partner may assign its rights in, and delegate its duties unc this Agreement, so long as it remains obligated under this Agreement, as w as transfer its interests in the Property to any exchange accommodator selected by the Exchanging Party. As an accommodation to the Exchangir Party, Buyer agrees to cooperate with Exchanging Party in connection with Exchange, including the execution of documents therefor, provided that the following terms and conditions are satisfied: (a) There shall be no liability to Buyer, Buyer shall have no obligal to take title to any property in connection with the Exchange; Buyer shall in no way be obligated to pay any escrow costs, brokerage commissions, title charges, survey costs, recording costs or other charges incurred with respect to any exchange property and/or an Exchange; In no way shall the Close of Escrow be contingent or otherwisc be subject to the consummation to the Exchange, Escrow shal timely close in connection with the terms of this Agreement notwithstanding any failure, for any reason, of the patties to thc (b) (c) AGG95026.F4 November 13,1995 17 a 0 Exchange to effect the same; and Buyer shall not be required to make any representation or warranties nor assume any obligations, or spend any sum or incur any personal liability whatsoever in connection with an Exchange. (d) [Remainder of this Page Intentionally Left Blank.] AGG95026.F4 November 13,1995 18 e 0 _- [Signature Page Attached to Purchase and Sale Agreement and Escrow Instructic Agreement to be effective as of the date first above written: IN WITNESS WHEREOF, the parties have executed and delivered this Seller: SAMMIS CARLSBAD ASSOCIATES, a California General Partners hip By: New England Mutual Life Insurance Company, a Massachusetts Corpora Partner on behalf of its Developmeni Properties Account By: Copley Real Estate Advisors, 11 Massachusetts Corporation, its asset manager and advisor thereunder duly authorized. By: * I ,//+ i' /I +/ By:/& R-L+! I I , I Its! Ak., e..+ t ?3 r"t? c A/- /- Its: !,ilLf<d+W&A P<<-.,.&K -- I- By: Avenida Encinas Associates, a Cat ifornia General Partners hip, Partner By: c&zaL B 5 uyer: Its: &YO& By: Its: AGGQ5028.F4 November 13, lQQ5 19 a e CONSENT OF ESCROW AGENT SELLER: Sammis Carlsbad Associates A California General Partnership BUYER: The City of Carlsbad A Municipal Corporation ESCROW NO.: 1 124540-LG Q The undersigned ("Escrow Agent") hereby: (1) acknowledges delivery of a Purcha and Sale Agreement and Escrow Instructions ("Agreement") dated 9 1995 between the Seller and Buyer identified above, on 1 which shall constitute the "Opening of Escrow" pursuant to Section 3.1 of the Agreement; and (2) agrees to act as the Escrow Agent in accordance with the provisions of the Agreement. ESCROW AGENT: FIRST AMERICAN TITLE INSURANCE COMF By: Escrow Officer AGG95026F4 November 13,1995 20 0 EXHIBIT A 0 THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE QF CALIFORNI COUNTY OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS: THAT PORYION OF SECTION 20, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF CARLSBAD, COUNTY OF DIEGO, STATE OF CALIFORNIA, ACCORDING TO OFFICIAL PLAT THEREOF AN PORTION OF LA COSTA DOWNS UNIT NO. 1, IN THE CITY OF CARLSBAD, CO SAN DIEGO. STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 2013 IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, APRIL 26, 1927, DESCRIBED AS A WHOLE AS FOLLOWS: BEGINNING AT THE INTERSECTION OF THE SOUTH LINE OF SAID SECTION 2 THE EASTERLY LINE OF THE 200 FOOT RIGHT OF WAY OF THE SANTA FE RA AS SHOWN ON SAID MAP NO. 2013; THENCE ALONG THE SOUTH LINE OF LA ( DOWNS UNIT NO. 1, SOUTH 84'21' EAST (NORTH 89'58'20" EAST PER MAP 2013) TO THE SOUTHWEST CORNER OF LAND DESCRIBED IN DEED TO THE ST, CALIFORNIA, RECORDED FEBRUARY 16, 1966 AS FILE NO. 27424 OF OFFIC RECORDS; THENCE ALONG THE SOUTHWEST LINE OF SAID LAND, NORTH 26"V 1462.07 FEET TO AN ANGLE POINT, NORTH 29'01'45" WEST, 300.38 FEET CORNER OF THE LAND D€SCRIBED AS PARCEL "B" IN FINAL ORDER OF CONDE IN SUPERIOR COURT CASE NO. 25812, A COPY OF WHICH WAS FILED IN THE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, MARCH 15, 1968 AS FILE 44080 OF OFFICIAL RECORDS; THENCE ALONG THE SOUTHEAST LINE OF SA31 "B", AS FOLLOWS: SOUTH 61'51' WEST, 292.78 FEET TO THE EASTERLY TERMINUS OF THAT 6[ RADIUS CURVE, CONCAVE SOUTHEASTERLY IN THE NORTHERLY LINE OF LA LC BOULEVARD, AS SHOWN ON SAID MAP NO. 2013, WESTERLY AND SOUTHWESTEF SAID CURVE, 60.31 FEET THROUGH AN ANGLE OF 57O05'50" SOUTH 61'51'1 484.04 FEET; SOUTH 18'24'35" EAST TO AN ANGLE POINT IN THE NORTHEF OF SAN LUIS BOULEVARD AS SHOWN ON SAID MAP NO. 2013, SOUTH 51'00'E (SOUTH 50'20'20'' WEST PER MAP NO. 2013), A DISTANCE OF 42.19 FEET; SOUTH 69"33'55" WEST, 69.29 FEET (SOUTH 68'53'20" WEST, 66.75 FEET 2013) TO THE MOST WESTERLY CORNER OF LOT 19, BLOCK 21, ACCORDING 7 MAP NO. 2013; THENCE ALONG THE EASTERLY LINE OF SAID 200 FOOT RIGI- WAY OF THE SANTA FE RAILROAD ACCORDING TO BEARINGS AND DISTANCES I SAID MAP NO. 2013, SOUTH 19'06'40" EAST, 224.19 FEET TO THE BEGINh TANGENT 5629.65 FOOT RADIUS CURVE, CONCAVE EASTERLY ALONG SAID CUR SOUTHERLY, 196.51 FEET THROUGH AN ANGLE OF 2'00' AND TANGENT TO SA CURVE, SOUTH 21'06'40'' EAST, 730.84 FEET TO THE POINT OF BEGINNINE EXCEPTING THEREFROM ALL MINERAL RIGHTS, RESERVED BY WARING H. ELL1 IN DEEDS RECORDED DECEMBER 22, 1927, DOCUMENT NO. 73212 IN BOOK 1 PAGE 446 OF DEEDS AND JUNE 15, 1928, DOCUMENT NO. 35146 IN BOOK 1 PAGE 70 OF DEEDS AND UANUARY 20, 1928, DOCUMENT NO. 3982, IN BOOK PAGE 386 OF DEEDS, AND SEPTEMBER 13, 1928, DOCUMENT NO. 53033 IN BOOK 1529, PAGE 51 OF DEEDS AND SEPTEMBER 27, 1928, IN BOOK 1528, 187 OF DEEDS AND FEBRLIARY 1, 1929, DOCUMENT NO. 6317 IN BOOK 1589 30 OF DEEDS. ANGlE POINT AND NORTH 27" 14'24" WEST, 85.05 FEET TO THE MOST EAST, 1529, PAGE 48 OF DEEDS, AND SEPTEMBER 13, 1928, DOCUMENT NO. 5303 NOTE: A PORTION OF TtlE ABOVE DESCRIBED REAL PROPERTY SHOWN ON MAP 2013, WAS EXCLUDED FRCIM SAID SUBDIVISION BY ORDER ENTERED Exhibit "A" Page 1 of 2 rn m e FEBRUARY 19, 1937 IN CkE NO. 87499 IN THE SUPERIOR COURT, SAN DIE COUNTY, STATE OF CALIFORNIA, A CERTIFIED COPY OF WHICH WAS RECORDE FEBRUARY 19, 1937, IN BODK 620, PAGE 213 OF OFFICIAL RECORDS. OF SAID LAND AS THEY AIPPEAR AFTER THE EXCLUSXON AS REQUIRED BY SECTION 11703 OF THE BlllSINESS AND PROFESSIONS CODE. SAID ORDER DID NOT INCL'UDE A NEW MAP OR PLAT SHOWING THE BOUNDARIE Exhibit "A" Page 2 of 2 -Y711-. 0 0 ASSIGNMENT OF PURCHASE AMI) SALE AGICEEMENT ANn, ESCROW INSTRUCTlONS THIS ASS1-W OF PURCHASE AND SALE AGREEMENT AND ESCROW NSTRUCTXONS ("Assimwent") is made and entered ht.o effective as of December 15,1995, by and among AVEWAENCINAS ASSOCIATES, a Calikbrnia genen partnership (" Averrida Ench Associiaks"), in its individual capacity and its capacity as the liquidating venturer on bW of Sammis Carlsbad Associates, a California genmaI partnership ("S-is Carlsbad Associates"), JOHN S. €€AGESTAD, an individual ("Hagestad"), CARL F WILLGEROTH, &tl individual ("Will~eroW), and WILLIAM J. THORMA€3UZN, m individu ("ThomahlP;n")). Hagestad? WiIlgeroth andl ThormahIen are each hereinafter in&viddIy r&er to as B ''Principal'' and ~olle~ti~dy as the "?rinciDaI.$'. This Assignment is made with rderencx the following hts: RECITALS: A. Samrnis Carlsbad Associates, as seller, and The City of Cdsbad, a MuniGipd Corporation ("Buvertl), in trust for the member agencies of the Encina Wastewater Authority, (City of Carlsbd, City of EnCinitas, City of Vista, Buena Sanitation District, Leucad Water District and Vdecitos Water DistTiGt), entered into that certain Purchase ad Sde Agreement and Escrow InstnzcGons (the "Purchase Aereement") dated effective as of December ----7 1995, for the sale ofthat wrtain unimproved real property located in the City of Carlsbad, State of California, which is more particuIarly descxibed in Exhibit "A" attiwhed to the Purchase Agreement (the "Property"). Encinas Associates and New England Mutua1 Life Insurance Company, a Massachusetts corporation, for and on behdf of its Deueloprnmtd Properties Account (the "EA''). Pursuant that certain Dissolution Agreement for S&s Carlsbad A$ssociates entered into effitive as of December 15,1995, by and between the bPA and Avenida Encinas Associates, (i) Sammis Carlsbad Associates was dissolved, (ii) Avenida Enbs Associates was appoiated a the liquidating venturer responsible or dissolving and winding up the affairs of S&s Carlsbad Associates and (iii) the Property was distributed to Avenida Eminas Associates. Such dissolutio of$& Carlsbad Associates has in no way released the IlPA andfor Aveaida Encinas Associates from any and all their respective obligations and liabilities under the Purchase Agreement, as suck obIigatiom and liabilities are limited by Sectiotr 5.6 of the Purchase Agreement. B. The sole general partners of Samnis Carhbad Associates are Avmida C. Pursuant to that c;&n Redamption Agreement entered into as of Decc;mber 15, 1995 (the "Redernmion Agreement"), by md among Avenida EnGinas Assaciates, on the one hand, and the PrincipaIs, on the other hand, au undivided intercst in the Property {based on the percentages set forth below) was distributed to each of the Principals in hll and 3534 SOZN.OC1 /REWS733 5-00 1/12-15-35/17~1~ .__- e 0 completc redemption and liquidation oftheir respective partnership interests in Avenida Encin Associates: Undivided Interest Brinc4pa.l Granted in Prorerty Hagestad 22.38% willgeroth 22.3 8% Th0mdm 4.300/0 D. Sammis Cadsbad Associates now desires to assign the Purchase Ageerr to Aveaida Emhas Asso&tes, and Avenida ?&ciw Associates, in turn, desires to assign an undivided interest in the Purchase Ageanent to each of the Principals in proportion to such Principal's undivided interest in the Property, and Avenida Eihcinas Associates and th0 Principal desire to assume all of Sammis Carkbad Assoc.iatps' obligations and liabilities under the Pur& Agreement in accordance with the terms of this Assigutnmt. NOW, ?XIEWZFORE, in consideration afthe Recitals set fvrth above, and for other good and valuable ccjmideraticsq the receipt and mffiuency of wKGh are hereby acknowledged, the parties hereby a,qee as follows; -----_)--- A G R E EM E N T: L. ASS~~TEIBX& Sammis Carlsbad Associates hereby assip all ofits right, title and interest in nnd to the Purchase Agreement to Aveaida Encinas Associates eEeetive as Q December 15, 1 995. Avenida Enciaas Associates hereby assigoS to eaGh Principal &ctive as 01 December 15, 1995, m undivided interest in the Purchase Agrement kt accordance with such Principal's undivided interest in the Property as described in Recital C above. The DPA agrees that none of&e foregoing assignments shall ia any way release the DPA &om my of its obligations or liabilities under the Purchase Agreemest, 3s such obhgatiom and liabiIities are limited by Section 5.6 of the Purchase Agreement. Av&da hchas Associates and the Principa each hereby agree to assume my anrf all obligations and liabilkks ofSammis Calsbad Associate! undm the Purchase Agreement, subject to the IimitatioItt; on such ob\ligations and liabilities set fbrth in Section 5.6 of the Purchase Agreement. Counterparts. This Assignment my be executed in multiple counterparts, each of which shall be deemed ~s1 original, but all ofwhi~h, together, shall constitute but one (1) and the same instrument, 2. 3. Attorneys' Pees. Should any litigation or arbitra.tion be commenced between or among the parties or their representatives cxmcerning any provision of this Assignmerj or the righ and duties of any petson or entity in relation thereto, the party prevailing in such litigation, whether by out-of-court settlement or final judgment, shall be entitled, in addition to -2- 9534502N.OC 1 lRESIs7335-00 1/12-15-95/~~ e e such other relief as may be granted, to a reasonable ,sum as and for attorneys' fees reasonably incurred in such litigation or arbitration. Any judgment or order mtered in any fmdjudpent arbitration shall contain a specific provbbn providing for the recovery of dl costs and expcnsi suit or arbitration, including without limitation, amal attorneys' fees, costs and expenses incu in ~om-ion with (i) doming, perfieriting and executing such judgment; (ii) post-judgment motions; (i) contempt proceedings; (iv) &araishment, levy, and debtor and third-party examinations; (v) discovery; and (vi) bankruptcy litigatioa 4. Miscellaaeous. The Paragraph headings used in this Assignment we for reference purposes only, and are not intended to be used itl con- this Assignment. The provision$ of this Assignment shall be conshed and enfbrced in accordance with the laws of tl Stale of California. Each party hereto aekrzowledges, represents, md warraprts that 6) each pal hereto is of equal bargaining strength, (ii) eaiih such party has advely participated in the negotiaticm of this Assipmen% (ii) each .such party hereto and yuch party's independent cow has reviewed and/or had the oppodty to review this Assignment; and (iv) my rule of oomhction to the e&ct that ambiguities are tu be resolved against the dratling pa^-& shall noi apply in the interpretation of this Assignment, any portion, hereof Or my mmbts hereto. "Sam& Carlsbad Associates" SAMMfS CABLSBAT;) ASSOCIATES, a California general pmr&ip By; Avenida Encitlas Associates, a California general partnership Its: Liquidating Venturer By; John S. Hagestad 'Its: Partner By: Carl F. Wilfgeroth Its: Partner [SIGNATURES CONTINUED] -3 - 9534502N.OCI ~~/S73354~1/12-15-95imme a 1. P 1 avu-rddje) c e By: FEW ENGW McTruAI, LEE INSWCE COMPANY, a Massachu corporatian, fir and 011 behalf of its DavaZopmentd PI'opdes Account By: Copley Real Estate Advisors, Inc Massachusetts corporation, its as manager and advisor thereunder c autlhonlzed Its: Managing General Partner By: Name: Its: AVENIDAENCINAS ASSOCIATES, a Ca,Wo~a gwal paztrtmhip By: "Avenida Encims AzsoCiates" John S. Hagestad Its: Pmer By: Carl F. WIllgeroth Its: Pma "DPA" NEW ENGLAND MUTUAL LIFE INSURANCE COMPANY, B Massachusetts corporation, for and on behalf of its Developmental' Properties Ac~ount By: Copley Red Estate Advisors, Inc., a Massachusetts corporation, its asset tnanagr atld advisor. thereunder duly authorized By: Nml?: Its: [SIGNATURES CONTlNuED] -4- 9534~2Nnc~~S/s733~-001112-15-95/rmnt: ~ - - 1.2cl&J-PuL--u I e "Hagestad" JOHN S. HAGESTAD "Wfflgeroth" CARlLF. IVILLGEROTH "Tbormahlezl" WILLXAM: J. THORMAWLBN The City of Cwlsbad, a mupliGipal corporati04 in trust fbr the. rnembw agencies of the Encina Wastewater Authority, hereby consent to the foregoing assignments of the Pur~hase Agrement as set forth in this Assignment. Twe CITY OF CARLSBA13, a Municipal Corporation By; -5- 9534502N.OC l~Sls7335anl/l2-lrsWnlmc w w 5- 3- &55c/ e 0 CERTIFICATION FOR ACCEPTANCE OF DEED This is to certify that the interest in real proper' conveyed by the deed or grant dated December 15, 1995 from Avenida Encinas Associates .................................... to the City of Carlsbad, California, a municipal corporatic is hereby accepted by the City Council of the City of Carl California pursuant to resolution No. 95-212 , adopted on July 18, 1995 , and the grantee consents to the recordation thereof by its duly authorized officer. DATED: December 20, 1995 By : e 0 - -- RECORDED REQ~JEST OF FIRST ARIERJcAN TITLE RECORDING FEQUESTED BY AND WHEN RECORDED MAIL To THE CITY OF CARLSBAD 1200 Carlsbad Villagc Drive Carlsbad, CA 92008 Atienbon. Frank Mannen, Ass't City .?.4anager MAIL TAX STATEMENTS AS DIRECTED TO: THE CKY OF CARLSBAD 1200 Carlsbad Village Drive Carlsbad CA 92008 Attauon- Frank Mannen, Ass't City Manager DOCUMENTARY TRANSFER TAX S X Computed on the consideration or value of propq conveyed, OR ,. ..Ccmputcd on the conslderatron or value less liens or cncumbrmccs remamg a1 tune of sale. Signature of Declarant or Agent detcmmng tax - Firm Name GRANT DEED FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, AVENDA ENCNAS ASSOCIATES, a Califorma general partnership, hereby GRAlTT(S) to THE CITY OF CARLSBAD, a Murucipal Corporation, a fifty and forty-four on hundredths percent (50.44%) undivided interest in that certain real property in the City of Carlsbad, County of San Diego, State of California, described on Exhibit "A' attached hereto a incorporated herein by reference. DATED December 15, 1995 AVEMDA ENCbTAS ASSOCIATES, a California general partnership Carl F. Willgerothw Its Partner 9j30602L OCl/?~fLMIS7335-OO1/12-l~-95k~m - ____ __ ~ ~ , __ --- - .- -c- - - e 0 STATE OF CALIFORNIA 1 - ) ss. COWTYOF UW+ 1 Jlwem.- On December & 1995, before me, - , a Notary Public in a proved to me on the basis of satisfactory evidence) to bgthe person whose name is subscribed tc the within instrument and acknowledged to me that hdshe executed the same in hidher authoriz capacity, and that by hidher signature on the instrument, the person, or the entity upon behalf oj which the person acted, executed the instrument. for said state, personally appeared r &S. Has cstad, personally known to me (or WITNESS my hand and oficiai seal. (This area for official notarial seal) STATE OF CALIFORNIA 1 COUNTYOF w 1 On December & 1995, before me,- a Notary Public 1 and for said state, personally appeared &d F u;u&, persondry known to me (( proved to me on the basis of satisfactory evidence) to be &e person whose name is subscribed t the within instrument and acknowledged to me thar hehhe executed the game in hisher authorii capacity, and that by hidher signature on the instrument, the person, or the entity upon behalf o which the person acted, executed the instrument. ) ss. WITNESS my hand and official seal. (This area for official notarial sed) -2- 9534601L.OCllMLM/S7~3S-OOl/12-15-95&1m - -- ._._ - __. ---- - - - - -__ ___ .- e-. 0 - -_ LEGAL DESCRIPTION TKE LAND AEFERRED TO HERGXN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF SW DIEGO, AND IS DESCRIBED AS FOLLOWS: THAT PORTION OF SECTION 20, TOWNSHIP 12 SOW, RANGE 4 WEST, SAS BERNARDZNO BASE AM, MERIDIAN, IN THE CITY OF CARLSW, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO OFFICIAL PLAT THEREOF rwP THAT PORTION OF LA COSTA DOWNS UNIT NO. 3, IN THE CITY OF CARSBAD, COUNTY OF SA?? PXEGO, STATE OF CALIFORNIA, ACCORDING TO MAP TWEmOF NO. 2013, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DZEGO COUNTY, APRSL 26, 3937, DESCRIBED AS A WHOLE AS FOLLOWS:. HEGXNNINO AT THE INTERSECTION OF THE SOUTH LIm OF SAID SECTION 20 WITH TEE EABTERLY LINE OF THE 200 FOOT RfaHT OF WAY OF THE SANTA FE OF LA COSTA WWHS UNIT NO, 1, SOUTH 89O21' EAST {NORTH 69°58'20" EAS? PER MAP NO. 2013) TO THE SOUTXWEST COWR OF LAND DESCRIBED SN DEED Tr WE STATE OF CALIFORNIA, RECORbED FEBRUARY 16, 1966 A6 FILE NO. 27424 OF OFFXCIAL RECORDS; THENCE ALONG THE SOUTHWEST LINE OF SAID LWD NORTH 26O10' WEST, 1461.07 FEET TO AN RNcL$ POSHT, NORTH 29'01'45 WEST, 300.38 FEET TO AN ANGLE POINT AND NORTH 27°14'24" WEST, 85.0 FEET TO THE MO8T EASTERLY COWER OF TXE L?W DEXRXBED AS PARCEL '!E IN FINAL ORDER OF CONDEMNATION IN SUPERIOR COURT CASE NO. 25812, COPY OF WHICH WAS FILED IN THE OFFICE OF THE Corn RECORDER OF SB DIEGO COUNTY, MARCH 15, 1966 AS FILE NO. 44080 OP OFFICIAL RECORD$ THENCE ALONG THE SOUTHEAST LINE OF SAID PARCEL 'IB", AS FOLLQWS: SOUTH 6165f' WEST, 292.7B FEET TO TXE EASTERLY TERMINUS OF THAT 1 FOOT RADIUS CURVE, CONCAVE SOUTHEASTERLY IN' THE NORTHERLY LINE OF ' SOUT~ST~RLY ALONG SArD CURVE, 60.31 FEET THROUGH AN ANGLE f7*05'50" SOUTH 6lo51'0On WEST, 484.04 FEET; SOUTH 18O24'35" EAST SAID MAP NO. 2013, SOUTH 51000'55" WEST (SOUTH 50°20'20" WEST PER 1 NO, 2013), A DISTANCE OF 42.19 FEET; AND SOOTH 69O33'55" WEST, 69 FEET (SOVTH 68O53'20" WEST, 68.75 FEET PER MAP 2013) TO THE MC WESTERLY CORNER OF LOT 19, 3LtQGEc 21, ACCORDING TO SAID MAP NO, 20 THENCE ALONG THE EASTERLY LINE OF SAID 200 FOOT RIGHT OF WAY OF ' SANTA FE IZAXLROAD ACCORDING TO BEARINGS AND DISTANCES SHOW ON s MAP NO. 2013, SOWS 19906'40" EAST, 224.19 FEET TO THE BEGINNING 0 TANGENT 5629.65 FDOT RADSUS CURVE, CONCAVE EASTERLY AWNG SAXD 0.' SOUTXERLY, 196.51 FEET THROWGH AN ANQtE OF 2OOO' ?U?D TANGEHT TO S CURVE, SOTJTH 21OO6'40q EAST, 730.84 FEET TO THE POXNT OF BEGINNT3 I NOTE: m FOLLOWING PORTION OF THE ABOVE DESCRIBBD FWbL PROP ENTERED PEBRUMY 19, 1937 IN CASE NO, 87499 IN THE SUPERIOR COURT, DIEGO COUNTY, STATE OF WIKIIWfA, A CERTIFIED COPY OF WHICH RECORDED FEBRUARY 19, 1937, IN BOOK 620, PAGE 213 OF OFFICIAL RECC ALL OF SAXD LAND LYING WITHLN BLOCXS 15 THROUOW 21, INCLUDING ADJOINXNG STREETS. SAID ORDER DID NOT INCLWE A NEW MAP OR PLAT SHOWING THE BOUNDAfZf SAID LAND As THEY APPEAR AFTER THE EXCLUSION AS REQUIRED BY SE' 11703 OF THE BUSINESS RW PROFESSIONS CODE. xArumm, as sxow)~ ON SAID w NO. 2013: ~ENCE ALONG THE BO^ LXNF LQMA BOULEVARD, AS SHOWN ON SAID MAP NO. 2013, WESTERLY A rn ANGLE POXNT ni THE NORTHERLY LINE OF SAN LUIS BOULEVARD AS SHOWN maw OH MAP NO. 2013, we EXCLUDED FROM SAID SUBDIVISION BY o ZXHXBIT "A" - - _-_. - - --_ - LI e 0 0 CERTIFICATION FOR ACCEPTANCE OF DEED This is to certify that the interest in real propert conveyed by the deed or grant dated December 15, 1995 from John S. Hagestad ............................................. to the City of Carlsbad, California, a municipal corporatio is hereby accepted by the City Council of the City of Carls California pursuant to resolution No. 95-212 , adopted on July 18, 1995 , and the grantee consents to the recordation thereof by its duly authorized officer. DATED: December 20, 1995 By : RECORDED REQUEST OF 0 0 FIRST .A>IERICAN TITLE ECORDIKG REQUESTED BY ,W WHEN RECORDED MAR TO: rxe c~n OF CARLSBAD 1200 Carlsbad Village Drive Carlsbad, CA 92008 Attention: Frank Mannen, Ass't City Manager MAIL TAX STATEMENTS AS DlRECTED TO: THE CITY OF CARLSBAD 1200 CarLsbad VilIage Dnve Carlsbad, CA 92008 Attenhon: Frank Mannen, Ass't City Manager - APN 214-010-09 wOp (Space Above For Recorder's DOCuMENTARY WSFER TAX S .X..Coquted on the consideration or value of property convqed, OR . ..Computed on the consideration or value less liens ox encumbrafices remamg at tune of sale. - Signature of Declarant or Agent detumhhj us - Finn Name GMNT DEED FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, JOHN S. HAGESTAD, a married man as to his sole and separate property, hereby GRANT(S) to THE CITY OF CARLSBAD. a Municipal Corporation, a twenty-two am +drty-eight one-hundredths percent (22.3 8%) undivided interest in that certain real property in I City of Carlsbad, County of San Diego, State of California, described on Exhibit "A' attached hereto and incorporated herein by reference. DATED: December 15, 1995 *=w JOHN S. HAGESTAD 95347032 OC ~/MAC/C~OO~-O~! /12-15-95k1m _.---. - .' __ - - .___. _,-._ ~ ~---._-- _". 0 0 STATE OF CALIFORNIA COUNTY OF rCJYlWW 1 ss. e On December B 1995. before me, , a Notary Public in an1 for said state, personally appeared proved to me on the basis of satisfactory evidence) to &? the person whose name is subscribed to the within instrument and acknowledged to me that hdshe executed the same in hidher authorize capacity, and that by hidher signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument. 7%~ 5. I-fcLtd personally known to me (or W'I'NESS my hand and oi3cja.I sed. D- in and for said State (This area for oficid notarid sed) -1- 95?47032,0c 1/~~~/C3005-021/12-15-9j&im -_ #,__-___-.. ----- - ----.-.- ___ - -. #- e a LEGAL DESCRI PTLQN THE LAND REFERRED TO HEREIN IS SITUATED fN THE STATE OF CALIFORNIA, COUNTY OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS: THAT PORTION OF SECTION 20, TOWSHIP 12 SOUTH, RANGE 4 WEST, SAT BERNARDINO BASE AND MERIDIAN, IN THE CITY OF CARLSBAD, COUNTY OF SA? DIEGO, STATE OF CALIFORNIA, ACCORDING TO OFFICIAL PUT THEREOF AM TmT PORTION OF WI COSTA WWNS UNIT NO. 1, IN Tm CITY OF CARLSBAD COUNTY OF SAN DIEGO, STATE QF CALIFORNIA, ACCURDZNO TO MAP THEREOF NO 2013, PILED IN THE OFFLCE OF THE COUNTY RECORDER OF $AN DIEGO COUNTY APRSL 26, 1337, DESCRIBED A3 A WHOLE AS FOLLOWS:. BECIINNINQ AT TEE INTEWECI'ION OF THE SsWTK LINB OF SAID SECTXON 2 WITH THE EASTERLY LINE OF THE 200 FOOT RIGm OF WAY OF THE SANTA F OF LA COSTA DOWHB WIT NO, 1, SOtrrW 89O21' EAST (NORTH 89°S8'20u EM THE STATB OF CALIFORNIA, RECORDED FEBRUARY 16, 1966 As FSLE NO. 2741 OF OFFICIAT RECORDS; THENCE ALONG TXE SOUTHWEST LINE OF SAID IAN NORTH 26O10' WEST, 1462.07 FEET TO AN ANGLE POINT, NORTH 29*01'4! WEST, 300.36 FEET TO AN ANGLE POZNT AND NORTH 27O14'24" -ST, 85.( FEET TO THE MOST EASTERLY CORNER OF THE LAND DESCRIBED AS PARCEL '' IN FINAL ORDER OF CONDBMNATION IN SUPERrOR COURT CASE NO, 25612, COPY OF WICH WAS FILED IN THE OFFICE OF THE C0V"IT RECORDER OF Sd DIEGO COUNTY, MARCH IS, 1968 AS PILE NO. 44080 OF OFFICLAL RECORD THENCIS ALONG TNE SOUTHEAST LINE OF SAID PARCEL 18Bn, AS FOLLOWS: SOUTH ~511 WEST, 292.78 FEET TO THE EASTERLY TERMISUS OF THAT RAILROAD, AS SHOWN ON SAID MAP NO. 2013; THENCE mm TWE somn LIN PER MAP NO. zois) TO THE SOUTHWEST CORNER OF WIND DESCRIBED rN DEED 7 FOOT WIWS CURVE, CONCAVE SOUTREASTERLY IN TKE NORTHERLY LINE OF SOUTHWESTLRLY AILING SAID CURVE, 60.31 FEET TKROUOH AN ANGLE 57°05150a SOUTH 61051'00" WEST, 484.04 FEET; SOUTH 18'24'35" EAST AN ANGLE POXNT IN THE NORTIJERLY LINE OF' SAN LUI9 BOULEVARD AS SHOWN SAID MAP NO. 2013, SOUTH S1°00'551' WEBT (SOUTH 50°20r20" WEST PER ? NO. 20131, A DISTANCE OF 42.19 FEET; AND SOW 69O33'55" WEST, 69 FEET ISOUTH 68a53'20" WEST, 68.75 FEET PER MA0 20131 TO THE MI WESTERLY CORNER OF LOT 19, BLOCK 22, ACCORDING TO SAID MAP NO. 20 TWENCE ALONG THE EASTERLY LINE OF SAID 200 FOOT RXQHT OF WAY OF MAP NO. 2013, SOUTH 1SV06'40" EAST, 224.19 FEET TO THE BEGINNING 0 SOUTHERLY, 196.51 FEET THKdVGH AN ANGLE OF 2000' AHD TANGENT TO S CURVE, SOUTH 3L006'409 EAST, 730.84 FEET TO THE POINT OF BEGTWIN NOTE: THE FOLLOWXNG PORTION OF TEE ABOVE DEBCRXBED FuUL PROP1 SHOW24 ON MAP NO. 2013, WAS EXCLUDED FROM SAID SUBDIVISION BY 61 SXfERED FEaRUaY 19, 1937 TN CASa NO. 87499 IN THE SUPERIOR COURT, DIEGO COVNTY, STATE OF CALIFORNIA, A CERTIFIED COPY OF MUCH ALL OF SAID LAN23 LYING WITHIN BLOCXS 15 THROUQH 21, INCLUDING ADJOINING STREETS. SAID OR5ER DID NOT INCLWDE A NEW MAP OR PLAT SHOWIN0 THE BOmMZE SAZD LAND AS THEY APPEAR AFTER TH8 EXCLUSION AS REQUIRED BY SEC 11703 OF THE BUSXNEBS AND PROFESSIONS CODE. LOMA BOULEVARD, AS $HOW ON SAID MAP NO. 2013r WESTEUY A SANTA FE RAILROAD ACCORDING TO BEARXNGS LVD DISTANCES snow ON s TI~NGENT 5629.65 FOOT maus CURVE, CONCAVP, EASTERLY ALONG SAID cc RECORDED PEBRUAE~Y $9, 1937, m BOOK 620, PAQE 213 OF OFFXCIAL RECQ YXHLBIT "A" ''P-mtlLT *mv- , ... -..- ------ --__- II ,_ 0 0 , CERTIFICATION FOR ACCEPTANCE OF DEED This is to certify that the interest in real proper conveyed by the deed or grant dated December 15, 1995 from William J. Thormahlen ----_______-__________________________L to the City of Carlsbad, California, a municipal corporatic is hereby accepted by the City Council of the City of Carl California pursuant to resolution No. 95-212 , adopted on July 18, 1995 , and the grantee consents to the recordation thereof by its duly authorized officer. DATED: December 20, 1995 By : RECORDED REQUEST a 0 FIRST AMERICAN TITLE RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO THE CITY OF CARLSBAD 1200 Carlsbad Village Drive Carlsbad, CA 92008 Attentlon: Frank Mannen, Ass't Ciry Manager MAIL TAX STATEMENR AS DIRECTED TO- THE CITY OF CARLSBALI 1200 Carlsbad Village Drive Caskbad, CA 92008 Atttntion: Frank Mmen, Asst City Manager AI" 214-010-09 wop DOCUMENTARY TRANSFER TAX S .X..Computcd on the conaderetion or value of propcrty canvepd; OR ... Computed on tht canslderatlon or vdue less liens or encumbrances remauung at tune of sale. (Space Above For Recorder's I. Signature of Declarant or Agent deturmning tax - Firm Name GRANT DEED FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, WLLIAM J. THORMAHLEN, a married man as to his sole and separate property, hereby GRANT(S) to THE CITY OF CARLSBAD. a Municipal Corporation, a four and eighty one-hundredths percent (4.80%) undivided interest in that certain real property in the City of Carlsbad, County of $an Diego, State o hereto and incorporated herein by reference. ed on Exhibit "A" attached DATED: December 15, 1995 LLL WTLL~khh 1 THORMAHZEN 95347034.OCllMAUS7~35-OOl/lZ-l~-95~1m ,._ . .__, , -- - -I.-. 8 .. --* ~ -..... - I ,, -- --+__..- _.I I II e ) STATE OF CALIFOFWIA ) ss. COLJNTYOF 0- 1 On December fi 1995, before me, & Notary Public in and for said state, personally appeared to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that hehe executed the Same in kidher authorized capacity, and that by hidher signature on the insuument, the person, or the entity upon behalf ofwhich the person acted, executed the instrument. e 4w rn4wYWm I$iUiam x- ersonalry know WITNESS my hand and official seal, (This area for official notarial sed) -2- 95347034 OCllMAC/573.75-00 1112-1 5-95n;lm ___-_ __ __--- __..I---.--- ~ --- - ~--~ __ ___ rl b e 0 LEGAL DESCRX PTION TNE LAND REFERRED TO WEREIN IS SXTUATED IN THE STATE OF CALIFORNIA, CO- OF SAN DIEGO, AND IS DESCRIBED AS F'OLLQWS: THAT PORTION OF SECTION 20, TOWSHIP 12 SOUTFI, RANGE 4 WEST, SAN DXEGO, STATE OF CALIFORNIA, ACCORDING TO OFFICIAL PLAT THEREOF AND THAT PORTION OF LA COSTA DOWNS UNIT NO. I, IN TNE CXTY OF CARLSEAD, CODNTY OF SAN DIEGO, STATE OP CALIFORNIA, ACCORDING TO HAP THEREOF NO. 2013, FILED IN THE OFFICE OF "RE COIMm RECORDER OF SAN DIEGO COUNTY, BERNARDLNO BASE AND MERIDIAN, IN "HE CITY OF CARLSBAD, COUNTY OF SAN APRXL 26, 1927, DESCRIBED AS A WOLE AS FOLLOWS: BEGZNNINQ AT !lXE INTERSECTION OF THE SOVTH LINE OF SAID SECTXON 20 WITH TH6 EASTERLY LINE OF THE 200 FOOT RXQHT OF WAY OF TNE SANTA FE RAILROAD, A3 SHOWN ON SAID MAP NO. 2013; TRENCE ALONG THE SOVTW LlpJE QF LA CDSTA DOWS UNIT NO, 1, SOW3 8S021' EAsT (NORTH 89°S8'20" W1 PER MAP NO, 2023) TO THE SOUTHWEST CORNER QP LAND DESCRIBED IN DEED TC THE STAT? OF CUXFORNIA, RECORDED FEBRUARY 16, 1966 AS FILE NO. 27424 OF OFFICIAL IUCORDS; THENCE AUING THE SOUTHWEST LINE OF SAID LAND NORTH 26010' WEST, 1462.07 FEET TO AN ANGLE POINT, NORTH 29*01'45 WEST, 300.38 FEET TO AN ANGLE POINT AND NORTH a70ww WEST, 85.0 PEET TO TWE MOST EASTERLY CORNER OF m~ LAND DESCRIBED AS PARCEL "a IN PINU ORbE% OF CONDEMNATION IN SUPERIOR COURT CASE NO. 25512, 1 COPY OF WKSCH WAS FILED IN THE OFFICE OF THE COWTY RECORDER OF SA DXEGCl COUNTY, MARCH 35, 1968 AS FILE NO. 44080 OF OFFICIAL RECORDS WNCE ALONG THS GOUTHEAST LINE OF SAID PARCEL "B", AS FOLLOWS: SOUTH 61eS1' WEST, 292.78 FEET TO THE EASTERLY TERMINUS OF THAT E LOXA BOULEVARD, AS SHOWN ON SAID MAP NO. 2013, WESTERLY Al SOUTHWESTERLY ALONG SAID CURVE, 60.31 FEET TWROUGH AN ANGLE ( FOOT RADXUS CURVE, CON~VE SOUTHEASTERLY m THE NORTHERLY LINE OF r 57a~5~50~~ SOUTX 610~00~ WEST, 484.04 FEET; SOUTH za~ww EAST p AN ANGLE POXNT m TIE NORTHERLY LINE OF SAN LUIS BOULEVARD AS SHOWN 1 SAID MAP NO. 2013, SOUTH 51060'55'' WEST (SOUTH 5O020'20" WEST PER M NO. 2013), A DISTANCE OF 42.19 FEET; AND SOVTK 69O33'55" WEST, 69. FEE* (SOUTH 68O53'20" HEST, 68.75 FEET PER MAP 2613) TO THE MO WESTERLY CORNER OF LOT 19, BLOCX 21, ACCORDING TO SAXD MAP NO. 201 TKENCE &ON@ THE EASTERLY LINE OF SAID 200 FOOT RIGHT OF WAY OF 'I SANTA FE 'RRXLROAD ACCORPXNQ TO BEARXNGS AND DISTANCES SHOWN ON SP MAP NO, 3013, SOUTH L9°06'401' EAST, 224.19 FEET TO T2E aBGSNNLNG OF TANGENT 5629.65 FOOT RADIOS CURVE, CONCAVE EASTERLY ALONG SAID CVI SOUTHERLY, 296.51 FEET THROUGH AN ANQLG OF 2OOO' AM) TANGENT TO SI CURVE, SOUTH 21v06'40" FAST, 730.84 FkET TO THE POINT OF BEGINNIN( NOTE: THE POLfjOtQINO PORTION OF THE ABOVE DESCRIBED REAL PROPE SHOWN ON MAP NO. 2013, WAS EXCLUbED FROM SAID SUBDIVISION BY OR ENTIZRED FEBRUARY 19, 1337 IN Wl3 NO. 87499 IN THE SUPERIOR COURT, DIEM COUNTY, STATE OF CALIFORNIA, A CERTIFIED COPY OF WHICH RECORDED FESRUARY 19, 1937, XN BOOK 620, PAGE 213 OF OFFTCIAL RECOR ADJOINING STREETS. SA'ID ORDER DID NOT XNCLVbE A NEW hAP OR PLAT SHOWING TWE BOUNDARIE SAID wu1113 AS THEY APPEAR AFTER TZIE EXCLUSION As REQUIRED BY SEC' 11703 OF THE BUSINESS AND PROFESSXONS CODE, ALL OF SAID um LYING WITHIN BLOCKS is TnRoum ai. INCLUDING EXHIBIT If A" --__ - -. - c -.-.-- --- - _-_ -- - - -- -- -- .~__ - I 0 0 CERTIFICATION FOR ACCEPTANCE OF DEED This is to certify that the interest in real propert conveyed by the deed or grant dated December 15, 1995 frorn Car- F. Willgeroth --___-_--_____________________________ to the City of Carlsbad, California, a municipal corporatic is hereby accepted by the City Council of the City of Carl: California pursuant to resolution No. 95-212 , adopted on July 18, 1995 , and the grantee consents to the recordation thereof by its duly authorized officer. DATED: December 20, 1995 By : stinr City Clc RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: "HE CITY OF CARLSBAD rom ~fifikt~firwp, co. CO. c Fmxl ?a -qqb 1 Phone # Fax # DWl. 0 ) 0 STATE OF CALIFORNIA COUNTYOF DY2bN& 1 ss On December 14, 1995, before me,- , a Notary Public and for said state, personally appeared _c?d E le, 1 ‘kc- I( personally known to me 1 proved to me on the basls of satisfactory evidence) to be tee person whose name is subscribed the within instrument and acknowledged to me that hdshe executed the same in hidher author capacity, and that by hidher signature on the instrument, the person, or the entity upon behalf ( which the person acted, executed the instrument. &a rn, WW WITNESS my hand and official seal. Notar@ biic in and for said State (This area for oficial notarial seal) -2- 95347035.0C 1/MACiS7335-00 1112-1 5-95fkirn __ - _- .___ ._ .__ - . ___ --c__--.---- - ~ - ___ - 1 e I) . LEGAL DESCRIPTION THE WD RGFERRED TO HEREIN IS SITUATED IN TWE STATE OF CALIFORNIA. COW OF SAN DIEGO, AND IS DESCRIBHD AS FOLLOWS: THAT PORTION OF SECTION 20, TOWNSHXP 13 SOW, RANGE 4 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF (XRbSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO OFFXCZAL PLAT THEREOF AM) THAT PORTION OF LA COSTA DOWNS WIT NO. 1, SN THE CrTY OF CARLSBAD, COVNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO, 2013, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COVNTY, APRIL 26, 1927, DESCRIBED AS A WXOLE AS FOLLOWS:. BECXNNINQ AT THE INTERSECTION OF THE SOWS LINE OF SAID SECTLON 20 WITH THE WTERLY LINB OF THE 200 FOOT RIGHT OF WAY OF THE SANTA FE RAILROAD, AS SHOWN ON SAID MAP NO, 2013; THESC33 At(3NQ TKE GOUTH LINH OF LA COSTA DOWNS WIT NO. 1, 6OmH 89O21' EAST (NORTH 8Sa58'20'' EAST PER MAP NO. 2013) TO THE SOUTIWEST CORNER GP LANP DESCRIBED IN DEED TO OF OFFICSAL RECORDS; THENCE ALONG THE SOUTHWEST LINE OF SAXD LAND, NORTH 26O10' WEST, 1462.07 FEET TO AN ANGLE POINT, NORTH 23°01'45'' WEST, 300.38 FEET TO AN ANGLE POXNT ANb NORTII 27O14'24" WEST, 85.05 FEET TO THE MOST EASTERLY CORNER OF THE LAND DBSCRIBED AS PARCEL "Bn IN FINAL ORDER OF CONDEMlJATION IN SUPERIOR COURT CASE NO. 25812, A COPY OF WHICH WAS FILED XN T)IE OFFICE OF "HE CoVNTy RECORDER OF SAN DIEGO COUNTY, MARCH 15, 1968 AS FILE NO. 44080 OF OFFICIAL RECORbSi THENCE ALONG THE SOUTHEAST LINE OF SAID PARCEL "B", AS FOLMWS: SOUTH 61* 51' WEST, 292.78 FEET TO THE EASTERLY TERMINUS OF THAT 60 FOOT RADIUS CURVE, CONCAVE SOUTHEASTERLY IN THE NORTHERLY LXNE OF LA LOMA EOUTAEVARD, AS SHOWN ON SAID MAP NO. 2013, WESTERLY AND SOUTHWESTERLY ALONG SAZb CURVE, 60.31 FEET THROUGH M ANGLE OF 57005'5O1' SOm 61Q51'OOfl WEST, 484.64 FEGT; SOTXIZ 18O24'35" EAST M AN ANGLE POINT IN THE PORTHERLY LINE OF SAN LUIS BOULEV- AS SHOWN ON SAXD MAP NO, 2013, SOUTH 51°00'5S't WEST (SOUTH S0*20'26" WEST PER MAP NO. 2013), A DISTANCE OF 42.29 FEET; AND SOW 69°33'55" WEST, 69.29 FEET (S?IOW 61u53'20" WEST, 68.75 FEET PER MAP 2013) TO THE MOST WESTERLY CORNER OF LOT 19, BLOCK 21, ACCORDING TO SAID MAP NO. 2013; THENCE ALONG TKE EASTERLY LLNE OF SAID 200 FOOT RIGHT OF WAY OF TIIE SANTA FE RAfLROAD ACCORDING TO k32ARlRGS AND DISTANCES SHOWN ON SAX MAP NO. 2013, Sam 19Q06'40" EAST, 224,L9 FEET TO THE BEGIWXNG OF 3 TANGENT 5629.65 FUUT RADIUS CUWE, CONCAVE EASTERLY ALONG SALD CURVE SOUTHERLY, 196.51 FEET THROUGH AN ANGLE OF 2OOO' ANP TANGENT TO SAXE CURVE, SOUTH 21*O6'4On EJUT, 730.84 FEET TO TKE POINT OF BEOfNNXNG. NOTE: TKE: FOLLOWSNQ PORTfON OF THE ABOm DE$CRIB&0 m PROpmT' SHOWN OP MAP NO. 2013, WAS EXCLUDED FROM SAID SWBDXVISION BY ORDEI ENTERED FEBRUARY 19, 1937 IN CASE NO. 87439 IN THI SUPERIOR COURT, SAI RECORDED FEBRUARY 19, 1937, IN BQOX 620, PAGE 213 OP OFFICIAL RECORDS ALL OF BAXD LAND LYSMG WITHIN BLOCKS 1S THROUGH 21, INCLUDING 7" AOJOZNTNG STREETS. SAID ORDER DID NOT INCLUDE A NEW MAP OR PLAT SHOWING THE BOVNDARXES 0 SAID LAND AS THEY APPEm AFI"TR THE EXCLUSION As REQUIRED BY SECTZ~ 11703 OF THE BUSINESg AM) PROFESSXONS CODE. THE STATE OF CRLIFORNIA, RSCORDED FEBRUARY 16, 1966 A8 FILE NO. 27424 DIEGO COUNTY, STATE OF CUIFORNIA, A CERTIFIED COPY OP WHICH WA! ZXXI B I T "A" - .'? . -.-__ __ - b ---- -- - ____. ___ -_I-- ___- bd Rb=j-E g= -lDQHy=J= S/&? JTj ___- Date - 0 Reply Wanted 3No Reply Necesssry - __~__ - - - - . - ___ - .- - .. __ - ___ -~______ To From __ - - - __ - - ._______..__ ~ _.______ ____ __ _____ . . - - d$d+ z w - -- _-.__ _----_------------ USE THISAIRBILL FOR SHlPMENTS WITHIN THE CONTTlENlAL US A PLkSXA AND HAW! L’SE THE INTERAfATIONAL AIR Y/AYB,LL FOR SHlPMENrS TO PUERTO RlCO AND ALL NON US LOCATIONS QUESTIOQIS? CALL 800-238-5355 TOLL FREE. -- tree1 Address (WLCan’not Deher fO PO 60XeS Oi Po ZIP 0 Stale e____-.----. -7; &a -7===- I=?= -e \s d ? E;i - - Caw )z- -/f- C Repy Wanzed Chio ~eply Necessary TO FwA---. __-- ____ _-- -- - - - - - - - I u 16 13434836 t 0 0 Allen, Matkins, Leek, Gamble h M~OI-Y LLP ATTORNEYS AT LAW ORANGE COUNW OFFICE 18400 VON KARMAN, FOUFtTH FLQOR TELEPHONE (714) 553-1 31 3 FACSIMILE (714) 553-8354 IRVINE, CALlFQRNlA 92715-1597 T~P;COR~ Transmit;tal Date: December 19, 1995 Time: 239 PM File No: S7335-001 TO: Telecopg Number: Telephone Number: Jane Mabaldi, Esq. (619) 434-8367 (619) 434-2891 From: RichardE. Stinehart 'FOTAL NUMElER OF PAGES INcI;uT).WG THZS FORM N m IastructiuidDiscrip~on Of Docmien$ i?am&ed: 4B~GmAL~LBEsmvIA: M.4l-L FEDERAL EXPRESS R1ZESSENGrn El WILL NOT BJ3 SENT Plm ~~~conlainsdmthis~~docrvdt4tip~~atldicr~cdalgtbrlbsusaaftlaiudiv;~~aamrxlstbclvc. Tfaa rcadcr ofthis lnas~nge js nath intmdcd rccipicnf yon am hmby ml&dthtany dkM011, &Mm or cop& &this cmimnniafimL ictricdyprohiited. ryou hrwercceivcdthis cnmnwniostimi~arar,p~~a hmed~ydfp~~ byt&pbd-#!&@ doauncrrttou atthe ihvvrndrfrwavia U.6. Md. W~willzeimbursty~~f~rpwta&e. Thiiyou. r I u 1 b 1 Y43463b t 0 0 ALLEN, MATK~S, LECK, GAMBLE & MALLORY LLP ATTORNEYS AT LAW h LlvlTEP LIhBsLITV CI(*TdERIIHIP IndiVPllP PHOFElldlOHCI 46RPlRAll0rC - YIHGENT Y. WIGMU lR-R PAHRWN uan E. wcnm YIUPAEL J. WR?W CRIIO L. aWIN1aN ITXDLRICK I =EN JWI C. WllS emawe. LFCU NCHIRB CI MACWRY iiWL L. MA7KINL manu c. IOIM 18400 VOEI KARMAN, FOURTH FLOOR IRVINI. CAl.IPURY(A PZ715.1547 TELEPWOME (7VI) 6x3-1318 SY5 SOUTH FIQUEROA STREET. BEUE LO5 ANBELES. CALIFDRHIA BOO7 WLIPHONE (21W UPZ-D5ll FACSIMILE (113) ttO-bbld %&Fi%.%E&F AWN 1. QORIIR UAnu IL YI- CIUEU L AN0.s REPECCA u. OUNDnK ww Y. nvmt 4&Y Y. OAPRIEC BBk,C,:Pdi&D Mmnan. qwr !J&nIIr3 w. UVRr;. ~ANICL L auamw XCmT.. SCIOmER YLSYLFvLLm DClR6RSA. SLILUVAH LWLII WWCR FICFHER MICH*EL J, XISLY uwn n winci mriw LWI PA~RYUI A. YItPTfwii FLaII) RWSPTA. bU4K mmol A *dm IIIUIUIL h ALVAIUQO i~2~w2, &A%alk:;E: napiirm J, CATIIWT FAC8tMltE (714) 553-8511 - SO1 WEST BROA5WAI. SUITE l'RWfi* We H61pllNO CATRICK E. WEEN L*WU&iSl? 0. b*vllF ccance 7. YcoDnnEk mcnaur. er'Ipwu 8AN OtEab, CALIFORNIA $3 I TELEPHOME (61s) 233.ii61 PAS$IMIL@ (ell31 ZJa-ltas OaWO A. Il. Ilyllllllp YDMGL OLEQU mmm L G5.B Ycwm c sLUm DWIW L u\y1ln~~(L CWL P. D*tCLNNC)R ta L6E HAWQQM MY10 L. OW'Ui mum n mn*.cm nmaa mnnn YII~ Amnu IL Uhmo QErUIOC J. PcMrJI WlCtlCW. c, CPUlwt LIICHAK H. CERRlHl .Ium I. *CUI DMA L IEHIFFFUAR snmmwm M. ).IICI! December 19,1995 - brw A mW*RR Loa ANOELCS, QMIFORNIA sooo %!rnYPE%%R 3895 IVI?UUE OF TWE STARS, SUI1 TELEPHONE t310) 788-2401 FAGSfMILh (3TOl 788.2410 matmL n. CRECEII !rn&k*rniW AW G. KLI)KOW xwn M~SN NEIL H PLVCK LIhW ERIC 4. KAY RICLEY RVM S7335-001 DAVID W. WCWLW ulpls. uew~ntm rmwu .I. c.unr m~.!.nARNu PAYL CIJIICII lxruam 8. mourn CUIRUI LL IIEYYIQIYTYI 9535302A.UGI -AWO T. m'thiwbr OLNI L (notlc WISIIOIUUG. LUNG YICIUSLV. ROWRE bmUIyE L. ZlT3alym UARK J. W1TTSY at\!4kL2&Qik+m ggp#$~*, ,~ uulu L. reMmDr4 TMI 8. PAWUQU (714) 851-5437 RSON na:wumnau SALLY 1. CURCUaO RDSXRT M. U8WILIDN JAUn L WINMICW ROPERT R. MRUm JIHN 0 DhVIEJ (IF COUU*EL JOE Y. OAWPtOk. OF tBVMlEL V lAW GQh~OneillVl( uawn n zhnu WA FACSIMJLE Jane Mob- Esq. City Attormy City of Cwkbad 1200 Caxlsbad viu;age Drive Carlsbad, Califbmiit 92008 Re: Pmcbase and Sale Agreement by and betwem Sds Carlsbad Associates and the City 6fCwlsbad Dew Jane: Enclosed aye the following documnts whkh med to be executed by the City of Cdsbad in connection with the closing on the aboverefereuced sale; and exchange: 1, Assignmaat of Purchase and Sale Agreement and Escrow Insmctions by and among Avenida Encjnas Associates, John S. WBgpstad, W&am J. Thormahlen ruad Carl F. Wdlgeroth (the "Assiaaflueat ofPurcbass Am nt"); by William J. Thormahkq the Ci of Carlsbad and We3te.m Ametican Exchange CorporatiOn (fhe "Th&en Sur$emental InsEsuc~onstr); Assignment md Supplemental Es~row b&ons to be executed by Carl F. Willgeroth, the City of Carlsbad aad Western American E.xchar\ge Corporation (the "Warzeroth SuuplemeLltat liutmm 'ons"); and 2. Assignment and Supplmttutd Esmaw Irrstructi~n~ to be emmted 3. 4 I b 194343367 0 LAW OFFICES ALLEN, MATKINS, LECK, GAMBLE & MALLORY LLP * LlMlTEO LIALIILII r YAUIRCR~llV IYrLUULUG PROCCSSl4Uht SODSO9hT.T)O#P Jane Mobaldi, Esq. December 19, 1995 Page 2 4. AssiBflment asld Supplemental Escrow Iustxmtiom to be executed by Jahn S. Hagestad, &e City of Culsbad and Western Amermm ' Exchange Corporation (the "ELzgestad 1pugplemental Instma -0LlS''). Would you please mange to have the Assignment of Purchase Agremant exemtd by the City and deliver the same to Lynu omham at Fist American Title Insuraece via fixsimile and messenger. Lym Graham's frrcsimile number and address are as follows: First AmeriGan Title Insum Compady 41 1 Ivy Street San Diego, CA 92101 (619) 231-4687 @< c -?3/ c Gyb &mtialK LpGraham Wos1 you also please anrange to have the City of Carlsbd execute the Thormablen Suppleme4ltal &txu~ons, the Hagestad Supple- hstmctions and the Willgeroth Suppletplental Itlstructiorts, and return such executed om to me via facsimile and Fdwd Express. Tf you have any que&ons, please feel free to give me a call. I appreciate all of your cooperation and effort with respect to this closing. Sincerdy yours, p P/ .d dL& RichardE. Stinebart WSkjm Ernclosures oc: Pad I). O'Connor (w/o encls.) DATE: /2 -2u - 95 TIME SENT: No. of pages being transmitted (includin fax transmittal /3 I b 1 Y434Udh I 3 0 ir ULL LJ dd i-l-ci~ tK i MS1G"T AND SUPPLEMENTAL ESCROW INSTRUCT LO^ TO: First American Title Insurance FIL;E NO.: 1124540 LG Company ("Escrow Holder") ~EsMow'~) THlS ASSIGNMENT AND SUPPLEMENTAZ. ESCROW INSTRUCTIONS ("Assimentll) is entered into effkctive as of Dwernber 15,1995, by and among CARL P, WLLGEROTH (T€!), THE ClTY OF CARLSBAD, a Municipal Corporation ("Buver"), in .trust far the member@ agencies ofthe Encitla Wastewater Authority (City of Carlsbad, City of Encinitas, City of Vlta, Buem Sanitation District, Leu~adia Wats District a Vstllecitos Water District), and WESTERN AMERICAN EXCIUNGE CORPORATION, a Califorma corporation ("Oualified Lntmediary"), with respect to the follOwit3g: BEGIITBLS: A Pursuant to that certain Purchase and Sde Agreement and Escrow hstnrctions entered into eMwe as of December, 1995 (the "Purchase Anre- "), Buyer agreed to purcfiase unimproved red property located in the City of Cadsbad, State of Catifomi which is more partiduLy described in Exhibit "A" attached to the Purcb Agreement (the "Prooerty"). €3- Pursuant to that certain aSsignmetlt of Purcbase and Sale &reement o~nr Escrow Instructions entered into effective as of December 15,1995, Exchmga asumed the dl and obligation to convey an undivided twenly-two and thirty-eight one-hundredths percent (22.38?41) interest in the Property to Buyer (the "Undivided Inter&'), C. Exchadger desires to transfer the Undivided Interest in a manner that wil quah@ as a tax deferred exchange (the "Exchanpre") witbin the meaning of Sdcm 1031 of the hW Revenue Code of 1986, is amended (the "Code"). In order to effectuate the Exdmge, Exchanger has entered into an Exchuge Agreement dated December 15, 1995 (the "w keement"), with Qualdied Intermediacy. D. In accordance with the tern of the Exchange Agreement, Earchanger desires to assign to Qualified 'Intermediav the interest of Exchanger as seller under the purchast Agreement and the Escrow, and Qualified intermediary desires to accept such txanskr, all as mr: particularly set forth beiow. NOW, THEREYORE, with reference to the foregoing recitals, and in consideration of the mutual covenants hereinafter set forth and for other good and valuable Gonsideratioq the receipt and sufffciency af which are hereby acIamwkdged, the parties hereto hereby agree that the Purchase Agreement and previous insmctions itl this Escrow are hereby modified and supplemented as follows. 9405603E.OC1~D#S7335-001~~-~5-9S/mmc . 0 6 1 6 1 94348367 -,LL -3 :a 13.~3 rK i AGBEEMEHE 1. Subject to Paragraph 2 below, Exchanger kby assigns to Quatisled hmediary the mterest of Exchanger as ''Seller" under the Purchase Agreemem and the Escr and Qualified Intermediary hereby acquires the interest of Exchanpr as Seller ofthe Undivida Interest. Qualified Intermediary is hereby substituted in phe of Exhauger Mder tk Purcbs Agreement and the Escrow solely for the purpose of conveying the Undivided Interat to Buyt order to faditate the effectuation of the Exchange. Buyer heby consents to swh assignmcnl upon the terms and condition6 set forth herein. 2. Buyer agrees to cooperate with Exchanger asd Qudiiied Intenmediary ti effect the Exchange, and Buyer acknowledges and agrees that: (a) Pursuant to this Assignment and Supplemental Escrow Instructk Qualified Intermediary will pyrchase the Undivided Interest firom Emhanger in order to effectuate the Exchange. Qualified bterwedislly, as Sella in th.k fi~m ofthe Undivil Interest and pursuaut to this Assigment and Supplemental Escr~w Instruction$, hebj jnmucts Esceow Holder to prepare and record a grant deed conveying the Undivided Werest at the ciose of Escrow directly from Exclxmga to Buyer. The transfer of tfie Undivided Interest directly from Exchanger to Buyer shall not in any way detract &om t kt, acknowledged by all parties hereto, that Qualified Intermedia,ry hi, pursuant to this Assignment, the seller of the Undivided Interest to Buyer- Acxmd@y, all closing documents re€aenced in the Purchase Agreement and/or the Esmw documents shall bc executed by Exdmger for the direct benefit of Buyer. QuaISed Werm- ha$ not made or assumed, nor shall QuaM~ed Intermediary make, assume M be liable for, any covenant, duty or obIigation of Exchanger under the Purchase Agreement which my remaJn in effect aRer the close ofthis Escrow, and Buyer hereby redeases and discharges Qualified Intermediary from and against any cIaim, demand, liability or e-xpenm wising fiom or in any way connected to any such continuing covenant, duty or obligation of Exchanger, Buyer hereby agrees that Buyer shall be and remain solely respon&ie and liable to Exchanger for the perionmace of each and every warranty and obligation of Buyer with respect to the Undivided Interest aud that Exchanger shall bok solely to By relating to the foregoing. @) Buyer shd have no recow against Qua%ed Intermwfiary with respect to any claim or allegation of Buyer concerning the Undivided Interest or any performance, agreement, or obligation arising from ar in Godan with the transfer of the Undivided Interest. Exchanger hereby agrees that Exchanger MI be and remain solely responsible and liable to Buyer for the performance of each and way warranty m obligation of Exchanger with respect to Buyer's purchfise dEhe Und;videa IXI~~CWL (c) ?'his Assignment shrtll not afkct, limit, mrlifv or impair in any w~ the representations, warranties, covenants or indemnifications made by Exchanger (or aq covenants and indemnifications made by Exchanger (or any other party) under the other party) under the Purchase Ageemant add all such representations, warranti a, -2- MOS403E.OC I PDO/8733S-001 I1 2-1 5-9S/DC . 0 i3 1 6 ' 94348367 UCL iY'Y3 1>:3d tK i Purchase Agrement shall inure to ttre benefit of hyer md shall not be af€ected in any Supplemental Escrow Instructions shall not in any way release Excaaget (or any othe party) from any of Exchanger's (or any other party's) obligation8 or liabilities mda the, Purchase Agrement or any escrow instructions for the Ben& of Buyer thereunder, OT executed in corndon with the consununation of the trmdon contemplated by the Purchase Agreement for the benefit of Buyer thermde, pmvided, however, the phstic acknowledge that Buyer shall acquire title to the Undivided Interest in rhe met set forth in Paragraph 2(a) above. way by the assignmat set forth in Paragraph 1 hereof. This - and (6) This Assignment SW mt &&t, limit, ~~~difil or impair in any w the representations, warranties, covenants or indem&cations made by Buyer under thc Purchase Agreement and all such representations, wmantkt, covenants and indemnifications made by Buyer under the Purcha~ Agreement shall h to the benefi of Exchanger (and the other sellers thermder) and shall not Be affec;ted in any way by assigdment set forth in Paragraph 1 hereof. "his Assignment and Supplemental Escrou Lnstnrctions shall not in any way relmse 3uyer &om any &Buyer's obligations or Mi der the Purchase Agreement or any escrow instruh for the b& ofExcW {and the other sellers thereunder), or executed in ~onnecfon with the consummation of fransaction contemp&& by the Purchase Agreement for the baefit of Exchanget (or a other setler thereunder); provided, however, the parties acknowledge that 0) the Undivided Interest shall be transferred by Qualified Intermeday to Buyer in accardancc with Paragraph Z(a) above, and (ii) the purchase price far the Undivided Interest shaii b paid by Buyer to Qualified Intermediary. 3 The acknowledpe.nts and agreements ofExchanger, Buyer and Qualift Intermediary set forth herein sixdl survive the cIose of Escrow and the recordation of any grant deed or other itkstnun& in connection therewith 4. This Assignment and Supplemexxtai Escrow Instructions my be executec in me (1) or more counterparts, each of whkh shall be deemed an or&taL, but all of which, wh taken together, shdl constitute but one (I) and the sm~ instrument. Neither this Assignment ar Supplemental Escrow Instructions, nor my existing escrow instruCtions rr3fbred to herein., shalt supersede, amenci -T mow the Exchange Agreement. h addition, the Undemigned hereby agn that the Purchase Agreement shall remain in full force and effect, as modihed by this Assignmea and Supplemental Escrow Instructions. 5. This Assignment and Suppiemerval Escrow lnstruccions may be exenrted by any or all of the parties hereto and delivered to the Escrow Hulder by f8cde md Escrow Holder is hereby authorized to act upon dl mch facsimile copies 86 ifthey were originata -3 - 9405603EOCI/PDWS7335001~2-15-95/~ne 0 e 1 6 1 94348367 U~L i~ YS !5:34 FR t EXCEPT AS EXPRESSLY MODlFlED OR AMENDED HE!”, ALL TERMS AND CONDrrxONS OF THlS ESCROW SHAU REMAWUNCHANGED. IN WITNESS WHEREQF, the parties hereto have ae.cuted this instrument eEitive as of the date first set forth above. “Exchanger” CARLF.WIUGEROTH “3uyer” ThoeClTYOFCARLsBAD, aMhkdpal Corporation By: / By: Name:. Its: “Qualified Intermediary” WSTERNAMERICANEXCHANGE CORPORATION, a Cali&& Cmpcnation By: Name: Its: 4- 94O5603E. OC I@DO/S733S.OO 1 /I 2-15-95lmme 0 6 16194348367 IJLL id -’-I I3:CY t-K P ASG1G”T AND SUPPLEMENTAL E smow msmm TO: First American Title Insurance FILE NO.: 1124540 LG Company (“Escrow Holder”) (“krmy“) I TltnS ASSIGNMENT AND SUPPLEMENTAL ESCROW INSTRUCTIONS (‘,Mi ‘I) is entered into effective as ofDecember 15, 1995, by and among WZLLWM J. TtIORMATXEN (‘I-), THE CITY OF CARLSBAD, alMunicipal Corporation (“Buyer”), in trust for the membership agencies of the Enciilla Wastewater Autharity (City of Calsbad, City of Enbitas, City of Vista, Buena Sanitation District, Leucadia Water District 8: Vdlecitos Water District), and WESWW AMERICAN EXCHANGE CORPORATION, a CaKiirnia corporation (“OUaIiiied Intermediary’), with respect to the fbllowing: ---I*---- RECITALS a A Pursuant to that certain Purchase and Sale Agreement and Escrow lhstructim entered into effective as of December, I995 (&E ‘T’uPurbe Amment”), Buyer agreed to purchase unimproved rd property located itl the City af Carlsbad, St~te of calif0116 which is more particuiarly described h~ Exhibit t’A” attached to the PurGhw &eement (the “Proper@). E. Pursuant to that certain Assignment of Purchase and SaIc Agreement an( Escrow Instructiom entered into ef&ctive cfs of December 15,1995, Exchanger assuMed the du and obligation to convey tin undivided four and eighty one-hundredths percent (4.800A) interest the Pruperty to Buyer (the “Undivided Interest”). Excharzger desires to transfer the Undivided Interest ia a manner that will qua@ as a tax deferred exchange (the “Exchan&’) within the meaning of Section 1031 of the Internal Revenue Code of 1986, as amended (the “Code”). In order to effectuate the Exchqe: Excwer has entered into an Exchange Agreement dated December 15, 1995 (the “Exchange Ameement”), with Qualified ht8media1y. desires to assign to Qualified Itltemediary tbe mterest of Exchanger as seller under the Purchase Agreement and the Escrow, and QuiJified Intermediary desires to accept such transfer, all as ma particularly set forth below. consideration of the mwtud covenants hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency ofwhich are hereby acknowkdged, the parties hereto hereby agree that the Purchase Agreement and previous instructions in this Escrow are hereby nrodified and supplemented as follows: C. D. In accordance with the tenns of the Exchange Agreement, Exchanger NOW, THBREFORE, with reference to the foregoing recitals, and in 3405603E 0C1/PD0IS7335-001~2-15-95/~~ 0 @ 1 6 ' 94348367 ~EL-,!Y'Y~ 12~2~ FR --------- AGREEMENT 1. Subject to Paragraph 2 below, Exchanges hereby assigns to Qualised Intermediary the interest of Exchanger as "Seller" under the purchass Ageanent and the Esm and Qualified Interme- hereby acquires the interest ofF,xi%nm as Sder of the Undivider Interest. Qualified Intermediary is hereby substituted in place of Exchanger under the Purchasi Agreement and the Escrow solely for the putpose of conyeybg the Undivided Interest to Buye order to faciIitate the &wWm of the J3xchange. Buyer hereby consents to such assignment upon the terms and conditions set forth herein. Buyer agrees to cooperate with Excbmger and Qualised Int- tc (a) Purm to this Assignmeut and Suppiemad Escrow hsmctia Qualised Intermediary will purchase the Undivided IntW fiomExchaagerin order to efFhtuate the Exchange. Qualified Intermediary, as SeJler in this Escrow of the Undivk Interest and pursuant to this Assignment and Supplemental Escrow Inst.mctions, hereby instructs Escrow Holder to prepare and record a grant deed conveying the Undivided Interest at the close of&craw directly fiom Fixchanger to Buyer. The transfer of the Undivided Interest directly Born Exchanger to Buyer shall nat in any way detract from tl hct, acknowledged by all parties hereto, that Qualifed In#rmediary is, pursuant to this Assignment, the seller ofthe U~divided Interest to Buyer. &cord.ingly, all dosing documents refwenced in the Purche Agreement andor the EsGmw documents shall be executed by Exchanger for the direct benefit of Buyer. Qualltied Intamdiary hae not made or assumed, nor &all Qualified Interndiary make, assume or be liable fa, any covemat, duty or obligation of Exchanger under the pllrchase Agreement which may remain in efFwt after the close of this Escrow, and Buyer hereby releases ad discharges Qualitled Intermediary hm and against any daim, demand, liability or expense arising fiom or in any way Gonneated to any such continuing COV- duty or obl.i@ion of bchmger. Buyer hereby agrees that Buyer shall be d re& solely responsible and liable to Exchanget far the pedomauce of each and every warranty am? obligation of hyer with respect to the Undivided Interest and that Fwhanpp shall look mMy to Bu3 r&@ to the foregoing. Buyer shall have no recome against QuaIifbd Intermediary with respect to any dab or allegation o€Buyer concerning the Undivided Intenst or my pe~omance, agrement, or obligation arising from or in connection with the transfer of the &divided bterest. &changer hereby agrees that Exchanger shall be and remain solely responsible and liable to Buyer for the pdormance of each and every warranty ant obligation ofExcbimge.r with respect to Buyex's purchase of the Undivided Infer&. This Assignment shaU uot &ea%, knit, modi& (YT impair in any waj the representations, warrauties, covenatlts or hdemnifications rnade by Exchanger (or as) other party) under the Purchase Agreement and aR such representatiow warranties, covenants and indemnifications made by Emhanger (or any other party) wder the 2. &ect the Ex~ha,nge, and Buyer acknowledges and agrees thar @> (c) -2- 9~5603E.OCllPDOIS7335-001112-15-95/mrne 0 a 1 l3 ' 94348367 ULC ,Y YD 13:~i r~ .. 4 Purchase Agreement shall inure to ?he benefit of Buyer and shall not be affected in aq way by the assignntent set forth in Paragraph 1 Bereof. This Assipmcntt and Sqpfemental Escrow Lnstructions shaU not in any way release Exchanges (M any othe party) from any of EhAmger's (or any other pajzs) obligstions or liabilities undex the Purchase Agreement or any escrow bsl~uctions for the bene& of hyer thereander, 01 executed in connection with the consummatiOn of the trmwcti -on contemplated by the Purchase Agreement for the benefit of Buyer thereunder, provided, howevtr, the partit acknowledge that Buyer shall acquire title to the Undivided Interest in the manner set forth in Paragraph 2fa) above. (d) This Assignment shallnot affect, limit, modi@ or hpakh any^ the representations, warranties, covenants or indemdbitions de by Buyer under. thi Purchase Agreemar and alI such representations, warmtieti, covenants and indemnifications made by Buyer under the Purchase Agreement shall inure to the bend of Exchanger (and the other sellers thereunder) and shall not be afiktted in any way by assignment set forth ia Paragraph 1 hereof. This As&pnmt and Supplemental Esmv ?&&ructions shall not in any way release Buyer &om any of Buyes's 04zQations or Wli under the Purchase Agreement or any escrow insaUdons fbr the bene& of EKEhanger (and the other sellers thereunder), or executed in ConncCtion with the cansnmnation of transaction contemplated by the Purchase Agreement for the befit of Exchangsr (or a other seller thereunder); provided, however, the parties asrctlbwredge that (i) the Undivided Interest W be transferred by Qualified Intermediary to 3qer in accordanc with Paragraph Zfa} above, and (3) the purchase price for the Undivided Merest shall b paid by Buyer to Qualified Intermediary. 3. The aGknow1edgment.s and agreements of E.x&mger, mer and Qualitit htermedhy set forth herein shatt sunrive the close of Escrow and the recordation of any ganl deed or other instrument in connection therewith. 4. This Assignment and Supplcmmtal Escrow Instructions may be executed in one (1) or more counterparts, each of which shall be deemed an origin& but afl of which, wh taken together, shall constitute but one (1) and &e same instrument. Neither this Assignment a Supplemental Escrow Tstructions, nar any existing escrow msbilctione r&rred to herein, shaIl supersede, amend ar mod@ the Bxchange Agrement In addition, the undersigned hereby agn that the Purchase Agreement shall remi.n in fill force and effect, as modified by this Assignma and Supplemental Escrow Iastructians. 5. This Assignment and Supplemental Escrow Instructions may be executed by any or aU of the parties hereto and delivered to the Escrow Holder by f%Simite and Escrow Hoider is hereby authorized to act upon dl such famimile copies as if they were originals. -3 I 9405603EQC llpD019733540 1/12-15-95/me a a 1 6 1 94348367 U!=L iYl'Y3 13:dl tK *. EXCEPT AS EXPRESSLY M0DIEE.D OR AMEMlED IIEREIN, AIL TERMS AND CONDITIONS OF THIS ESCROW SHALL REMAIN UNCHANGED. IN wI"ESS WHEREOF, the parties keto have executfd tfiis instrument effective as of the date &st set forth above. "Exchanger" TVlUJAM J. THO- "Buyer" THE CITY OF CARLSBAD, a Municipal corporation By: Name: PWK 4V 4.dU FA rts:--&&%=P. /&" - BY' Name: Its: "Quaiified Intermediary" 'IrlvEsTERNAMERTcANEXCIEANGE CQRPOMRON, a catifomia corporatian By: Name; Its: -4- ~56O3~,OCl~~OIS~3S~Ol/lZ-~S-95hnma ii) 16 1 Y434tl;Jb I > ,I a JI=- LZI ZI~ 13):dS tK ASSIGNMENT AND 'SWXJPJX~NTAL ESCROW INSTRUCTIONS TO: First AmeriCan Title Insurance m rm.; I 124~40 LG Company ("Escrow Hdda '7 ( 'qm,$l) THIS GsSIGm AND SUPPmAL ESCROW 'INSTRUCTIONS ("Assienment 'I) is entered into effective as of December 15,1995, by and among JOHN S. HAGESTAD ("Exchanw"), TEE CITY OF CIARLSBAD, a Muniupd Corporatbn ("l3uper" in trust for the membership agencies ofthe Encitla Wastewater Authority (City of Carl&@ Ci of bcm City of Vista, Buena Sanitation District, LeuGadia Water District and Vallecitos Water District), aid WESTERN AMERICAN EXCmoE CORPORATION, a California corporation ("C&alifi- 'ad'), with respect tn the following; RECITALS: A Pursuant to that mainPurGhase and Sale Agreement andEs<raw Tnstructions entered into eflkctive as ofDecember - 2995 (the "purchase Aa-ccment '3, BUYE agreed to purchase unimproved real property Iocated in the City of Carlsbad, State nfCali.forni which is more partidarly described in Exhibit "A* attached to the Purchase Agreement (the " Prormty"). €3. Pursuant to that certai~ AsSivm of Purchase and Sale Agreement am Escrow Instsuctions entered htu efbctive as of December 15,1995, EXchaaker asmed the ch atxi obligation to convey an undivided twentytwo and thirtJ-eiight onshundredtlts percent (22.3 8%) interest in the Property to Buyer (the "Undivided Interest"). C. Exchanger desires to transfer the Undivided Interest in EL xmmm that wil ~LW.I.@ as a tax def" exchange (the "Exchangp") within the meaning &Section 1031 of tha Intarnal Revenue Code of 1986> as amended (the "Code"). h order to &-e the &&age Exchanger has awed into an Exchange Agreement dattd Dec.Rmber 15,1995 (the "Excnam Agreement"), with QuaUkd Intermediary. D. In accordance with the tern of the bhge Agecaneut, Ek&mger desires to as^@ to Qualified Internediary the interest of Exchanger as seller under the Purchasl Agreement and the Escrow, and Qualified Intermediary desirea to wwpt snch transfer, all as LKU particularly set forth below. NOW, TEERESORE, with reference to the foregoing recitals, and in consideration ofthe mutud covenants hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, ttre parties hereto hereby agree that the Purchase Agreement and previous instructions in this Escrow are hertby modSed and supplemented ag follows: ~~5G03E.0C~/PD0/~7335~01~12-15-95/~~ a 16 194348wi r' e ut-. ~3'33 1'3:dZ i-K AGREEMEMT: I. Subject to Paragraph 2 below, Exchanger hereby assigns to Qdified Intarmediary the interest of Exhanger as "Seller" under the Purchase Agreement an8 the Escr and QuaiXed Intermediary hereby ac+s the interest ofExchanger as Seller of the Undivide Interest. Qualified Intermediary is hereby substituted in place of Exchanger uoder the Purchw Agreement and the Esaaw solely for the purpose of conveying the Undivided Interest to Buy( order to facilitate the effectuation of the Ex~hang~. Buyer bereby cotlsents to such assigmaem upon tbs tarma and conditions set forth herein- Buyer agrees to cooperate with Exchane;et and Qualifies Intermediary t eet the Exchaage, and Buyer aclarowledges and agrees that Pursuant to thb Assignmant aad Supplemental Escrow lhstrudd Qualised Iatermediary will PUTG~S~ the Undivided Interest kmExdmger in order to effectuate the Cxchangc. Qualified Interme-, as SeJk h'th ESGTOW afthe Undivi lnterest and pursuant to tbis AsSigrment and Supplementat Esww Instnrctirms, kehj instructs Escrow Holdex to prepare and record a grant deed coweyina the Undivided Interest at the dose of Escrow directly from Ekhaqer to Buyer. The traudkr of the Undivided Interest directly from Exchanger to Buyer shall not in any way deU&t &om 1 fact, acknowledged by all parties hereto, that Qualified Intermediary is, pumuant to this Asgignment, the der of the Undivided Interest to Buyer. ~~, dl dosing documents referenced in the Purchase Agree& andlor the Esmow doclnents shall bc executed by Exchanger fir the direct bendit ofBuyer- Qualified Intezmchq has not made or assumed, nor shd Qualified Intermdaq make, assume or be liable for, auy covenant, duty or obligalion of Exchanger under the Purchase A@eem# which may remain in e8t' &er the close of this Escrow, and Buyer hereby releases and discharges Qualified htermediary &om and against any claim, demand, liability M expense arisikig fiom or in any way conneded to any such continuing covenant, duty or obligation of Exchanger. Buyer hereby agrees that Buyer shall be auci remain solely responsible and liable to Exchanger for the performatlce: of each and every warmmy and obligation of Buyer with respect to the Undivided Interest and tht F3cchaager shall look solely to Bu! relating to the firegoing. Buyer sball have no recourse against Qualified Lntermediaty with respect to any claim or allegation ofBuyer conceraing the Udvidcd htercst or any performance, agreement, or obligation mising ~WU or in tmmem 'on with the transfkr of the Undivided Interest. Exchanger hereby agrees that Exchngur shau be ad nmah solely responsible and liable to Buyer for the perfonnanGe of each aad every warranty an obligation of Esmhatlger With respect to Buyer's purchase of the Undivided Intarest. This Assignment shall not &bct, limit, mow 01- impair in any vm the representatioq warranties, covenants or indemnifications made by Exchanger (or aa: other party) under thc Purchase Agreement and aU such represantationg Wamtntics, wveaa~fts and indemniilcaiions made by ExGhanger (or any other patty) under the 2. (a) (b) (c) -2- 34056U3E,OCl~/S733S-001 f 12-1 5-9T\Immt: IaIJ-bclvQ~uI 0 @ - -- -- -- Purchase Agreemerrt shall iwre to the bene& ofE3uya and shall not be afbted in an~ Supplemental Escrow Instrnctiom shall not in any way release Exchasgcr (or any 0th party) fiom any of lkhgex's (or any oh party's) obligations or liabilities under the Purchase Agreement or any esmw hstructions fir thr? benefit of Buyw therder, 01 executed in connection with the comdan of tbe transaction contemplated by the Purchase 4eement for the benefit of Buyer thereunder, provided, however, the parti{ acknowledge that Buyer shall acquire title ta the Undividd Interest in the mama set forth in Paragraph Z(a) above. "his Assignment shallnot afk& hit, modi@ orimptkh curyv the representations, warranties, covenants or indemnifications made by Buyer under tht Purchase Agreement and all SUG~ rcpresentations, warrant@ co- and indemnifiwtiom made by Buyer under the Purche Iqpemed shall inure to the bend of Exchanger (and the other sellers thereunder) and shatl not be aflkted in any way by assignment set forth in Paragraph 1 hereof. This Assignment and Sup@- Escm Instnrctions shall not in any way release Buyer from any of Buyets oblightions or r$b& under the Purchase Agreement or any escrow instnrGtions for the beuefit ofEx&mger (and the other sellers thmder), or executed in co&on with the GO- 'on of transacfion contemplated by the Purchase Agnxmat for the benefit of Exchanger (or a other s&er keundw); provided, homer, the parties a&uowMge that (i) the Undivided Interest shall be wansfwed by Qualised Intern- to Buyer in accordant witb Paragraph 2Ca) above, and (3) the purchase price for the Undivided Interest shall br paid by Buyer to QuaBed Intermediary. way by thc assignment set firth in Paragraph 1 hm€ Thi~ Asagmmt and (d) 3 The acknowledgments and agreercxmb of Ercchanger, Buyer and QuaMe Intermediary set forth herein shall survive the close OfEscrow and the recordation of any gntnt deed or other instrumin connection therewith. This Assipma and Suppiemad &crow Instructions may be executed in one (1) or more couoterpartg each of wbich shall be deemed an onginirl, but all of whb, wh *en together, shall canstitute but one (1) and the time instrUmenL Neither this Assignment a Supplemeatal Escrow Instructions, nor any existing escrow instrudom referred to hereiq shall supersede, amend or modi@ the Exchange Agreement. In addition, the undersigned hereby agrs hat the Purchase Agreement shall remain in full force and effect, as modified by this Assignmen and SuppLemental Escrow Instructions. This Assignment and Supplemental Escrow Instructions may be executed by any or all of the parties hereto and delivered to the Esmw Halder by f&Ie and Escrow HoIder is hereby authorized to act upon all such facsimile copies as ifthey wme origin&. 4. 5. -3 - 9405603E.GCl &'DOIS733440 1112-1 5-95IW~ @ 16194348367 * y__ __ -- IJ-JI TIT EXCEPT AS EXPRESSLY MOD- OR AMENDED HEREIN, ALL TERMS AND CBNDITIONS OF THlS ESCROW SHALL RFMA-lN UNCWm. KN WITNESS WHEREOP, the part& hereto have cxecl[ted ttriS hstsument effie as of the date &st set forth above. "Exchanger" JOHN S. HAGESTAD "Buyer" THE CXIY OF CARLSBAD, a Municipal Corporation By: Name: F /zczhr/c m& /L/#t-d Its: / By: Name: Its: "wd Intermediary" WESTERNMRICN EXCELW~ COWOMTION, a Ce* corporation By: Name: Its: -4- 9405603EOCl mo/s7335oa 1112-15-95/mc .. -..- *x TOTRL PRGE.EI2 .- " . 0 T AMERIC \ 6$ -f $ First American Title Insurance Compai 411 IVY STREET SAN DIEGO, CALIFORNIA 92101 (619) 238-1776 THE CITY OF CARLSBAD Date : December 6, 1995 Frank Mannen, Assist. City Mgr Escrow No. : 1124540LG 1200 Carlsbad Village Drive Carlsbad, CA 92008 RE: Vacant Land, Carlsbad, CA Dear Dear City of Carlsbad: Thank you for selecting First American Title Insurance Co. to process your escrow. The enclosed items are requir escrow, please review and comply with our instructions and return as soon as possible. Sign and Return the enclosed items, retain the copy for your records: Cover Escrow Instructions Complete in full, sign and return the enclosed items: Preliminary Change of Ownership Report PLEASE SEND TO US THE FOLLOWING: Certificate of Acceptance to the Grant Deed We appreciate the opportunity to be of service to you in this transaction. Should you have any questions, please c telephone number(s) referenced above. LYNN GRAHAM Certified Sr. Escrow Officer PRELIMINARY C GE OF OWNERSHIP REPORT p"o be completed by transferee (buyer) prior to transfer of subject property in accordance with Section 480.3 of the Revenue and Taxation code.] A Preliminary Change of Ownership Report must be filed with each convey- ance in the County Recorder's office for the county where the property is located; this particular form may be used in all 58 counties of California. THIS REPORT IS NOT A PUBLIC DOCUMENT SELLERTTAANSFEROR: SANNIS CARLSBAD ASSOCIATES THE CITY OF CARLSBAD BUYERFRANSFEREE: ASSESSOR'S PARCEL NUMBER(S): PERN ADDRESS OR LOCATION: ,c;t~de rnwuE4 -0 CRaLsm A-+G€- Address &qasJcpA, c4/4 PzomE IL TAX INFORMATION TO: Name C)=,=.,S~M- cm &MAL* r SEE-tS2 AM 502-1 BACK E81 8 @ PRELIMINARY CHANGE OF OW SHIP REPORT RT Ill: PURCHASE PRICE AND TERMS OF SALE A. CASH DOWN PAYMENT OR Value of Trade or Exchange (excluding closing costs) Amc B. FIRST DEED OF TRUST 8 % Interest for years. Pymts./Mo. - $ (Prin. & lnt. only) Amc 0 FHA 0 Fixed Rate Q NewLoan 3 Conventional 0 Variable Rate 0 AssumedExistingLoa Cl VA 0 All inclusive D.T. ($ Wrapped) 0 Bank c-r Savings & Loc 3 Cal-Vet 0 Loan Carried by Seller Balloon Payment 3 Yes 0 No Due Date Please answer, to the best of your knowledge, all applicable questions, sign and date. If a question does not apply, indicate w 0 Finance Company Amount $ C. SECOND DEED OF TRUST 8 % interest for years. Pymts./Mo. - $ (Prin. 8 Int. only) An 0 Bank or Savings 8 Loan 0 Loan Carried by Seller 0 Variable Rate 0 Assumed Existing Loan Balance Balloon Payment Q Yes 0 No Due Date Amount $ OTHER FINANCING: Is other financing involved not covered in (b) or (c) above? Ar Type 0 Fixed Rate 0 NewLoan D. o Yes Ho Q % interest for years. Pymts/Mo. - $ (Prln. & lnt. only) 0 Fixed Rate 0 NewLoan 0 Variable Rate P AssumedExistinghosnBalanw E. IMPROVEMENT BOND 0 Yes d' No Outstanding Wance: AI F. 0 Bank or Savings & Loan 0 Loan Carried by Seller Balloon Payment P Yes 0 No Due Date Amount $ TOTAL PURCHASE PRICE (or acquisition price, if traded or exchanged, include real estate commission if paid.) , .. TOW Items A through E ..- G. PROPERTY PURCHASED dhrough a broker CI) Direct from seller 0 Other (explain) 1:' If purchased through a broker, provide broker's name and phone number: mm w#&k t3 4 3s mi%. Please explain any special terms or financing and any other information that would help the Assessor understand the purchase F: sale. .I',/ZS/( 344ET ART IV: PROPERTY INFORMATION A. IS PERSONAL PROPERTY INCLUDED IN PURCHASE PRICE (other than a mobilehome subject to local property tax)? Q Yes @&I If yes, enter the value of the personal property included in the purchase price $ (Attach itemized list of pc B. IS THIS PROPERTY INTENDED AS YOUR PRINCIPAL RESIDENCE? a Yes or intended occupancy I ,is- If yes, enter date of occupancy / $19 MO MONTH DAY MONTH DAY C. TYPE OF PROPERN TRANSFERRED: 4ricolhrral 0 Times' 3 Single-family residence 2 Commercial/lndustriaI 0 Condominium 0 Unimr Ci Other (Description: 1 IF THE ANSWER TO QUESTION D IS YES, IS THE INCOME FROM: Q Lease/Rent 3 Contract Q Mineral Rights 0 Other - Explain: WH T WAS THE CONDITION OF PROPERTY AT THE TIME OF SALE? dood B Average Q Fair Cl Poor Enter here, or on an attached sheet, any other information that would assist the Assessor in determining the value of the F c1 ultiple-family residence (no. of units: 1 a Co-op/Om-yaur-own P Mobllc D. DOES THE PROPERTY PRODUCE INCOME? R Yes rfiG E. F. physical condition of the property, restrictions, etc. Signed Please Print Name of New Owner/Corporate Officer/ c/rr OK c;4rctsa*q3 Phone Number where you are available from 8:OO a.m. - 5:OO p.m. d Y 3 Y - zsz3 (NOTE: The Assessor may contact you for further informstlon) change of ownership report, the recorder may charge an additional recording fee of twenty dollars ($20). If a document evidencing a change of ownership is presented to the recorder for recordation without the concurrent filing 0' @ e Charles 1. McNary II _._-_ -_I_--- Senior Marketing Director Commercial Real Est Services Since I898 2386 Faraday Avenue, Su Carlsbad. California 92DC Tel 619 438 8950 Fax 61 November 2 1 , 1995 Frank Mannen Assistant City Manager City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008 RE: PURCHASE AND SALE AGREEMENT BY AND BETWEEN SAMMIS CARLSBAD ASSOCIATES AND THE CITY OF CARLSBAD Dear Frank: Attached are Mr. Stinehart's cover letter and three (3) copies of the above referenced Purchast Agreement, which have been executed by Sammis Carlsbad Associates. I look forward to hearing from you when there is M approval and execution of the documents by Carlsbad. Please don't hesitate to call me with any questions. Sincerely, COLLIERS ILIFF THORN L'/ p"sl !+J& Charles J. McNary, TI Senior Marketing Director CJM:kt msv lndri idua~ Mtmhmbii, niid (I@< Ikdion Colliers ll~P Thorn IS a member of the Colllers Macaulay Nicolls group of companies More than 180 offices throughout the Americas. Europe and Asia Pacific i0'2'ry of li'du,.,ial e e ALLEN, MATKINS, LECK, GAMBLE & MALLORY LLp ATTORNEYS AT LAW A L~M~TED L~ABPL~TI PARTNEUS~IP IUCLUOING PROFESSIONAL CORDORATIONS VINCENT M. COSCIMO JEFFREY R. PATTERSON CHERYL S. RIVERS MICHAEL J. MUR?HY CRAIG D. SWANSON BRADLEY N. SCHWEITZER GREOORY G. GORMAN ALAN J. GOROEE MARK R. HARTNEY PAMELA L. ANDES REBECCA G. CUNDnK JOHN M. TIPTON JAY M. GABRIEL AOELA CARRASCO MELISSA K. GERARD MARTHA K. GUY GEORGE W. KUNEY DANIEL L. GOODKIN CATHERINE M. PAGE SCOTT P. SCHOYER NELLI L. FULLER 1890 AVENUE OF THE ST DEIRDRE A. SULLIVAN LESLIE TUCKER FIlCHER LOS ANGELES. CALIFOR MICHAEL J. KIELY DAVID A. SWART2 TELEPHONE (310 UICHAEL S. GREGER STACY LYN FAIERYAN FACSIMILE (310) A. KRISTINE FLOYD ROBERT A. LURIE DAVID A. TWIBELL STEPHEN J. UEPLER CYNTHIA A. EDER MICHAEL A. ALVARAOO HAOAR GONEN MARYKAYRUCK ERIC J. SHELBY DAVID T. HAWAWAY DANA R. STONE CHRISTOPHER 0. LUND MICHAEL V. RDVERE LORAINE L. PEOOWZ MARK J. HATTAY MICHAEL R. FARRELL STEVEN C. WELLINOTON LAURA I.. PETERSON TANOI S. PANUSKA SALLY S. COSTANZO REON ROSKI-AMENDOLA LO5 ANGELES Q 515 SOUTH FIGUEROA STREE LOS ANGELES. CALIFORt FREDERICK L. ALLEN JOHN C. GAMBLE BRIAN C. LECK RICHARD C. MALLORY MICHAEL L. MATKINS MARVIN E. GARRETT MICHAEL E. GLEASON' THOMAS C. FOSTER ROBERT J. CATHCART R. MICHAEL JOYCE GERBEN HOEKSMA THOMAS W. HENNING PATRICK E. BREEN LAWRENCE 0. LEWIS' GEORGE T. MCOONNELL MICHAEL F. SFREGOLA DAVID A. 0. BURTON. MONICA OLSON THOMAS E. GlBBS VERNON C. GAUNTT DWIGHT L. ARMSTRONO PAUL 0. O'CONNOR S. LEE HANCOCK DAVID L. OSIAS WILLIAU R. HARMSEN DEBRA OlSON HALL ANTON N. NATSIS GEORGE 1. BERGER MICHAEL C. PRUTER MICHAEL H. CERRINA RICHARD E. STINEHART STEPHEN R. THAMEI JOHN K. MCKAY DANA I. SCHIFFMAN ANNE E. KLOKOW NEIL N. GLUCU OAVIO W. WENSLEY OARY 5. MCKITTERICK PATRICK J. GRAOY WILLIAM J. HARRIS RAY 0. GLINER ANTHONY 5. BOUZA CHARLES N. KENWORTHY ANTHONY J. OLIVA JEREMY 0. GLASER KENNETH L. PERKINS. JR. ROBERT M. HAMILTON DAVID R. ZARO JANET A. WINNICK ROBERT R. BARNES JOHN G. DAVIES. OF COUNSEL JOE M. DAVIOSON. OF COUNSEL *A LAW CORPORATION 18400 VON KARMAN. FOURTH FLOOR IRVINE, CALIFORNIA 92715-1597 TELEPHONE (714) 553-1313 FACSIMILE (714) 553-8354 TELEPHONE (213) FACSIMILE (213) ' $AN DIEGO or 501 WEST BROADWA SAN DIEGO. CALIF0 TELEPHONE (819) FACSIMILE (819) November 20, 1995 WEST LOS ANGFL RALPH n. WINTER 9VR FILE NU W8870- 95324039 WRITER'S DIRE= (714) 851 VIA FEDERAL EXPRESS Mr. ChuckMcNary The City of Carlsbad 2386 Faraday Avenue Suite 100 Carlsbad, California 92008 Re: Purchase and Sale Agreement by and between Sammis Cadsbad Ass and The City of Carlsbad Dear Chuck: Enclosed are three copies of the above-referenced Purchase Agreement w have been executed by Sammis Carlsbad Associates. Once the City of Carlsbad has exec enclosed, would you please arrange to have two fully-executed sets returned to my attes You should note that the grant deed still needs to be attached as an exhibit to the enclose The form of grant deed still needs to be submitted to us for approval. If you have any questions, please feel free to give me a call. Sincerely yours, / ,p /fi7 ./y,/ _,,, /' . J+ JL- ,,<' Richard E. Stinehart WESkjm Enclosures cc: Mr. Joseph Sweeney Mr. William J. Thormahlen 0 0 Emcrow No. 1134540LU Eetiarahad clO#S date: December Refarenoar Vacant Land Report Print Data: December Carlsbad, CA Page 1 Bu er ESTIMATED CZOSING STATEMENT BVYXR I THE CITY OF CARLSBAD -- DgBXT8 - - " - CRI Considertitiox: Prorations: Total Caneideration 4,456,450.00 w County Taxf38 1,870.09 at $ 19800.92 per 6 months From 12/15/45 to 01/01/96 Title Charges: Escrow Fees: Extended Coverage 857.00 Record Grant Deed 30.00 Escrow Fees 1,320.50 500.00 Padding BRliurCa bu. BBar6W 4,46 Fotalr $ 4r461,027,59 $ 4,46 NOTICE: This estimated closing statement is subject to changes, corrections or additions at the time of final computation-of cloaing c~crow statement. , THE CITY OF eaRLBBAD 3 A- -7 - - _-.- ---- I 1 -7 -- -7 - --- .- ---' ._->- - --).- -,._-. ____c- ~ ." - e *-.Lor-(- - .. .. I i .. i .> First American Title Insurance Compa 411 IW STREET 4 SAN DIEGO, CALIFORNIA 92101 (619) 238-1776 1 7 3 FIRST AMERICAN TITLE INSURANCE COMPANY CONDUCTS ESCROW BUSINESS UNDER CERTIFI( AUTHORITY NO. 2787 ISSUED BY TEH STATE OF CALIFORNIA DEPARTMENT OF INSURANCE. d 5 COVER ESCROW INSTRUCTIONS f, 7 Escrow No: 1124540LG Date: December 6, 1995 8 Re: Vacant Land Escrow Officer: 9 Carisbad, CA LYNN GRAHAM 10 11 TO: FIRST AMERICAN TITLE INSURANCE COMPANY 12 13 Id r3 (1 '. 4 'i 21 ;I ;: i 1 ;,l :'. of their General Provisions. il Escrow Holder is instructed to complete the above referenced escrow pursuant to instructions in that certain PI AND SALE AGREEMENT AND ESCROW INSTRUCTIONS ("Agreement") by and between SAMMIS <I/ ASSOCIATES, a California general partnership ("Seller") and THE CITY OF CARLSBAD, a municipal c ("Buyer"), an original of which will be executed by all parties and deposited into escrow prior to close, for use h the following additions and/or clarifications. Upon receipt of the executed Agreement, Escrow Holder will ex Consent of Escrow Agent in accordance with the date said Agreement is executed by all parties. Escrow Holder he concerned with those items which are to be complied with through escrow, the remainder of said Agree1 between the parties with which Escrow Holder shall not be concerned andlor liable. General Provisions of First Title Insurance Company, attached hereto, are hereby incorporated in said Agreement. To the extent that the contains any provision inconsistent with or contrary to the provisions of the General Provisions attached he Agreement shall remain the Agreement of the parties thereto but First American Title Insurance shall be guided b: '1 78 A. Parties acknowledge Exhibit "A" which is the legal description for subjec ;(I property. is not attached to the Agreement. Parties have reviewed the legal 30 description for subject propert which is attached hereto and made a part, here' 31 Exhibit "A" and parties approve of same. Escrow Holder is instructed to atta 32 Exhibit "A" to the Agreement. 34 B. Parties acknowledge Exhibit "B" which was to reflect Escrow tiolder's Gene it. Provisions is not attached to the Agreement. Any and all reference to an Exh v "B" t.o the Aqreement is hw+v deleted in its entirety as said provisions are 3'1 C. In accordance with Section 4.1 of the Agreement entitled Title Report, Bu /it ackriowl edges receipt 0.f prel imi nary report dated October 18, 1995 under Order 41 1122139-20 and approves of items 1 (second half 1995-1996), 2. 4 through 21. 1: 24. to appear in the policy of title insurance to be issued at the close of e 1f1 0. In accordance with Section 4.4 of the Agreement entitled, Board AcDroval. (15 understood and approved by and between the undersigned, Escrow Holder's recei /~r, Buyer's deposit of final funds needed to close and Buyer's certificate of acc I/ to Grant, Deed shall satisfy this contingency in its entirety. nri E. It is acknowledged that the policy of title insurance to be issued at thE rln of escrow. will be in t,he cf 3 standdar.1, *LT*,IWRE (!&!ester9 Regi mal Exce;. !,i 0wnrr.s policy. in lieu of owner ' s title i nsurance pol icy, unless Buyer r 3 3 3; incorporated herein. Iri 12 48 ADDITIONAL INSTaUCTIONS ATTACHED HERETO AND MADE A PART HEREOF My initials below represent my agreement and acknowledgment of fhe foregoing. ! I I Page 1 * 0 e 1 extended coverage as provided for under 4.6 of the Agreement. 4 ESCROW HOLDER GENERAL PROVISIONS rn 1. 3 '. r, DEPOSIT OF FUNDS: 7 P You shall deposit all funds received in this escrow in any bank insured by an agency of the United States Government, including your i Firct American Trust Company, in one or more of your general escrow demand accounts. These funds may be transferred 10 any other g demand account or accounts. including those maintained in your affiliated bank. All disbursements shall be made by your check. or at the party entitled to a dirhursen~ent. hy wire transfer. provided that such party provides appropriate instructions to you and pays your wirc t cnnncction therewith. You are authorized riot to close escrnw or dishurse until good funds have been cnnfirmed in escrow. I ;I I 1 1 ;? 13 ALITITIIORIZATION TO FURNISH COPIFS. 14 15 You are to furnish a copy of these instructions, amendments thereto, closing statement andlor any other documents deposited in this escroH or Ientlers. tlie real ewte hroker andlor the attorney or attorneys involved in this transaction upon request of the lenders, hrokers or attonlc 1 c) 17 RIGHT OF CANCELLATION: 18 1q %(I ;1 ii ;3 court of competent jurisdiction. 7 /l 75 ACTION IN INTERPLEADER: >6 ? 7 ?? 7'9 ?(I %? 1 7: 33 TERMINATION OF AGENCY OBLIGATIONS: 31 3s 36 depositing the same. 31 ?8 1') cpecifically). 4 0 4 1 CONFLICTING INSI'RUCTIONS: 47 h 2 (1 t 4q 46 4 7 '18 !I3 r, o I! 1 Any party instructing you to cancel this escrow will file notice of cancellation in your office, in writing. You will. within a reasonable t mail. by certified mail, one copy of the notice to each of the other parties at the addresses stated in this escrow. Unless written objection ic filed in your office by a party within ten (IO) days after the date of mailing. you are authorized, at your option, to comply with the notics payment of your cancellation charges as provided in this agreement. If written objection is filed, you are authorized, at your option, to 11, and instniments in this escrow and take no further action until otherwise directed, either by the parties mutual written instructions, or fir -- The parties hereto expressly agree that you, as Escrow IIolder. have the absolute right, at your option, to file an action in interpleadel parties to answer and litigate their several claims and rights among themselves and you are authorized to deposit with the clerk of the court and funds held in this escrow. In the event such action is filed. the parties jointly and severally agree to pay your cancellation charg enpensec and reawnahle attorney's fees which you are required to expend or incur in the interpleader action, the amount thereof to he lixec jiitlpenient therefor to he rendered by the court. Upon the filing of the action, you shall thereupon he fully released antl tliscliargcil from al further perform any tlritiec or ohligations otherwise imposed hy the terms of this escrow. If there is no action taken on this escrow within six (6) months after the "close of escrow" date as set forth in the escrow instnictions nr wri thereof. your agency ohlipatiori shall terminate, at your option, and all documents, monies and other items held by you shall he returnecl In the event of cancellation of this escrow, whether it he at the request of any of the parties or otherwise, the fees and charges due First 1 Insurance Company. including expenditures incurred and/or authorized will he borne equally by the parties hereto (unless otherwise agreec Should you hefore or after the "close of escrow" receive or become aware of any conflicting demands or claims with respect to this escroa of any of the parties hereto, or any money or property deposited herein or affected hereby. you shall have the right to discontinue any or : on your part until the conflict is resolved to your satisfaction. and you shall have the further right to commence or defend any actiw or p the determination of the conflict as provided in paragraphs 7 and 8 of these General Provisions. INDEMNITY FOR ATTORNEY FEES: In the event suit is brought by any party to this escrow. including the escrow and title company, or other party, as against each other or otli the ercrow and title company. claiming any right they may have as against each other or against the escrow and title company, then in t parties hereto apree that the losing party shall pay to the prevailing party any attorney's fees antl costs incurred by the prevailing party, ADDITIONAL INSIXUCTIONS ATTACHED HERETO AND MADE A PART HEREOF My initials below represent my agreement and acknowledgmenf of the foregoing. I 1 q Page 2 I 0 1 AMENDMENTS TO ESCROW INSRUCTIONS: 2 3 n 5 GOOD FUNDS LAW: 6 7 8 r7 10 11 FAX TRANSMI7TAL.5 ! 2 13 14 15 "FAX" material. Any amendment or supplement to these escrow instructions must be in writing. These escrow instructions constitute the entire agreement Escrow Holder and the parties hereto. The parties understand that ALL funds to close escrow must be deposited into escrow prior to the date of closing to allow sufficient time for such funds prior to disbursement. In the event such funds are not in the form of a wire, cashier's, certified or teller check drawn on a finan' institution. sufficient time must be allowed for clearance to comply with Section 12413.1 of the California Insurance Code. Funds may he 1 to First American's depository bank account to avoid waiting for clearance. .The undersigned parties instruct Escrow Holtler and agree that First American Title Insurance Company may, during the course of this cs "FAX" transmittals from or on behalf of the parties herein for informational purposes only. The parties further agree and acknowledge Escrow Holder's close or cancellation of this file or release of any funds held herein that Escrow Holder will require the original hard copy 16 1 7 i 8 19 20 2 1 22 12 7.1 ,'? >(> ,'; ?q i? THEREIN, IN THEIR ENTIRETY. 3 0 ?1 37 72 3.1 complete this transaction. 35 36 37 Buyer's Signature: 38 40 a Municipal Corporation 41 42 BY: 43 44 BY: 4 5 46 Address: 1200 Carlsbad Village Drive, Carlsbad, CA 92008 47 48 49 AGREEMENT REGARDING CANCELLATION INSTRUCTIONS: Prior agreement, if any, notwithstanding, in the event either party has the right of cancellation, the parties agree to sign such instnictior necessary to effect the cancellation of this escrow. TIME IS OF THE ESSENCE OF THESE INSIllUCTIONS If this escrow is not in condition to close by the closing date referred to in the body of these instructions, and demand for cancellation is ret from any party to this escrow after said date, you will act in accordance with the cancellation instructions contained in the general prov demand for cancellation is made, you will proceed to close this escrow when the principals have complied with the escrow instructions. WE, JOINTLY AND SEVERALLY, ACKNOWLEDGE RECEIPT OF A COMPLETE COPY OF 1'111 KSCROW INSTRUCTIONS AND BY OUR SIGNATURES SET FORTH BELOW, ACKNOWLEDGE 1 HAVE READ, UNDERSTAND AND AGREE TO BE ROUND BY THE TERMS AND CONDITIONS CC The undersigned Buyer will pay, on demand, the Buyer's customary charges (including, by way of example, but to. one-half escrow fee, charges for preparing and recording documents, premium for new or additional hazarc lender's charges, lender's impounds and prepaid interest demand, if any, and applicable title company charges) r I fIAVE RECEIVED A COPY OF THESE INSTRUCTIONS. 39 THE crry OF CARLSBAI), .--- ADDITIONAL INSI'RUCTIONS ATTACHED HERETO AND MADE A PART HEREOF My initials below represent my agreement and acknowledgment of the foregoing. Page 3 The undersigned Seller(s) approve when you can issue your policy of title insurance as set forth above. I agree to pay any personal property taxf chargeable to me. You are instructed to use the money and record the instruments, to comply with said instructic pay all encumbrances of record necessary without further approval including prepayment penalties to show title provided. I agree to pay one-half of the escrow fee, drawing of documents and such other charges which are ad my account regardless of the consummation of this escrow. I also agree to pay the policy of title insurance prc recording fees which are properly chargeable to me and documentary transfer tax which you are instructed to en deed and affix your signature thereto, if required. In the event this amount is incorrect you are instructed tc correct amount on the deed and deduct the additional therefore from funds accruing to my account. In the event 4 amount is entered on the deed and said deed is recorded, I hereby hold you harmless and agree to reimburse you you may sustain by said amount being incorrect. You are further instructed to pay commission, if any, as st separate commission instructions made a part hereof. I HAVE RECEIVED A COPY OF THESE INSTRUCTIONS. Seller Signature(s): SAMMIS CARLSBAD ASSOCIATES, a California General Partnership BY: NEW ENGLAND MUTUAL LIFE INSURANCE, e foregoing instructions and agree to sell will deliver to you papers, - arid/or funds required from me (wi dp the "close of escrow date" specified herein), which you are authorized a Massachusetts corporation, partner on behalf of its Developmental Properties Account BY: COPLEY REAL ESTATE ADVISORS, INC., a Massachusetts corporation, its asset manager and advisor thereunder duly authorized BY: Irs: BY: Its: BY: AVENIDA ENCINAS ASSOCIATES, a Callifornia general partnership, partner BY: BY: Its: General Partner Its: General Partner Address: 399 Boylston Street, Boston, Massachusetts 02116 - - END OF INSTRUCTIONS - - I _. m ORDER NO. 1122135 a EXH I B IT "A" LEGAL DESCRIPTION THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFC COUNTY OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS: THAT PORTION OF SECTION 20, TOWNSHIP 12 SOUTH, RANGE 4 WESl BERNARDINO BASE AND MERIDIAN, IN THE CITY OF CARLSBAD, COUNTY I DIEGO, STATE OF CALIFORNIA, ACCORDING TO OFFICIAL PLAT THERE( THAT PORTION OF LA COSTA DOWNS UNIT NO. 1, IN THE CITY OF CAR COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THERE 2013, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO CI APRIL 26, 1927, DESCRIBED AS A WHOLE AS FOLLOWS:. BEGINNING AT THE INTERSECTION OF THE SOUTH LINE OF SAID SECT WITH THE EASTERLY LINE OF THE 200 FOOT RIGHT OF WAY OF THE SA RAILROAD, AS SHOWN ON SAID MAP NO. 2013; THENCE ALONG THE SOUT OF LA COSTA DOWNS UNIT NO. 1, SOUTH 89O21' EAST (NORTH 89O58'2C PER MAP NO. 2013) TO THE SOUTHWEST CORNER OF LAND DESCRIBED IN X THE STATE OF CALIFORNIA, RECORDED FEBRUARY 16, 1966 AS FILE NO. OF OFFICIAL RECORDS; THENCE ALONG THE SOUTHWEST LINE OF SAID NORTH 26O10' WEST, 1462.07 FEET TO AN ANGLE POINT, NORTH 29' WEST, 300.38 FEET TO AN ANGLE POINT AND NORTH 27O14'24" WEST, FEET TO THE MOST EASTERLY CORNER OF THE LAND DESCRIBED AS PAR( IN FINAL ORDER OF CONDEMNATION IN SUPERIOR COURT CASE NO. 25 COPY OF WHICH WAS FILED IN THE OFFICE OF THE COUNTY RECORDER DIEGO COUNTY, MARCH 15, 1968 AS FILE NO. 44080 OF OFFICIAL RI THENCE ALONG THE SOUTHEAST LINE OF SAID PARCEL "B", AS FOLLOW: SOUTH 61O51' WEST, 292.78 FEET TO THE EASTERLY TERMINUS OF 'I FOOT RADIUS CURVE, CONCAVE SOUTHEASTERLY IN THE NORTHERLY LIN LOMA BOULEVARD, AS SHOWN ON SAID MAP NO. 2013, WESTER SOUTHWESTERLY ALONG SAID CURVE, 60.31 FEET THROUGH AN A5 57'05'50" SOUTH 61°51'00" WEST, 484.04 FEET; SOUTH 18O24'35" AN ANGLE POINT IN THE NORTHERLY LINE OF SAN LUIS BOULEVARD AS S SAID MAP NO. 2013, SOUTH 51°00'5511 WEST (SOUTH 50°20'20" WEST NO. 20131, A DISTANCE OF 42.19 FEET; AND SOUTH 69O33'55" WEST FEET (SOUTH 68O53'20" WEST, 68.75 FEET PER MAP 2013) TO TI WESTERLY CORNER OF LOT 19, BLOCK 21, ACCORDING TO SAID MAP NO THENCE ALONG THE EASTERLY LINE OF SAID 200 FOOT RIGHT OF WAY SANTA FE RAILROAD ACCORDING TO BEARINGS AND DISTANCES SHOWN MAP NO. 2013, SOUTH 19O06'40" EAST, 224.19 FEET TO THE BEGINNI TANGENT 5629.65 FOOT RADIUS CURVE, CONCAVE EASTERLY ALONG SA1 SOUTHERLY, 196.51 FEET THROUGH AN ANGLE OF 2OOO' AND TANGENT CURVE, SOUTH 21O06'40" EAST, 730.84 FEET TO THE POINT OF BEG1 NOTE: THE FOLLOWING PORTION OF THE ABOVE DESCRIBED REAL I SHOWN ON MAP NO. 2013, WAS EXCLUDED FROM SAID SUBDIVISION E ENTERED FEBRUARY 19, 1937 IN CASE NO. 87499 IN THE SUPERIOR COT DIEGO COUNTY, STATE OF CALIFORNIA, A CERTIFIED COPY OF Wl RECORDED FEBRUARY 19, 1937, IN BOOK 620, PAGE 213 OF OFFICIAL 1 ALL OF SAID LAND LYING WITHIN BLOCKS 15 THROUGH 21, INCLUI ADJOINING STREETS. SAID ORDER DID NOT INCLUDE A NEW MAP OR PLAT SHOWING THE BOUND SAID LAND AS THEY APPEAR AFTER THE EXCLUSION AS REQUIRED BY 11703 OF THE BUSINESS AND PROFESSIONS CODE. 1 L /I@ % * 0 a 63 First American Title Insurance Cornpa, 411 IVY STREET SAN DIEGO, CALIFORNIA 92101 (619) 238-1776 1 2 3 FIRST AMERICAN TITLE INSURANCE COMPANY CONDUCTS ESCROW BUSINESS UNDER CERTIFIC AUTHORITY NO. 2787 ISSUED BY TEH STATE OF CALIFORNIA DEPARTMENT OF INSURANCE. A 5 COVER ESCROW INSTRUCTIONS 6 7 Escrow No: 1 124540LG Date: December 6, 1995 8 Re: VacantLand Escrow Officer: 9 Carls0ad, CA LYNN GRAHAM 10 11 TO: FIRST AMERICAN TITLE INSURANCE COMPANY 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of their General Provisions. 25 27 Escrow Holder is instructed to complete the above referenced escrow pursuant to instructions in that certain PI AND SALE AGREEMENT AND ESCROW INSTRUCTIONS ("Agreement") by and between SAMMIS CP ASSOCIATES, a California general partnership ("Seller") and THE CITY OF CARLSBAD, a municipal cc ("Buyer"), an original of which will be executed by all parties and deposited into escrow prior to close, for use ht the following additions and/or clarifications. Upon receipt of the executed Agreement, Escrow Holder will ex1 Consent of Escrow Agent in accordance with the date said Agreement is executed by all parties. Escrow Holder be Concerned with those items which are to be complied with through escrow, the remainder of said Agreen between the parties with which Escrow Holder shall not be concerned and/or liable. General Provisions of First Title Insurance Company, attached hereto, are hereby incorporated in said Agreement. To the extent that the I contains any provision inconsistent with or contrary to the provisions of the General Provisions attached her Agreement shall remain the Agreement of the parties thereto but First American Title Insurance shall be guided bq 28 A. Parties acknowledge Exhibit "A" which is the legal description for subject 29 property, is not attached to the Agreement. Parties have reviewed the legal 30 description for subject propert which is attached hereto and made a part herec 31 Exhibit "A" and parties approve of same. Escrow Holder is instructed to attac 32 Exhi bit "A" to the Agreement. 34 B. Parties acknowledge Exhibit "B" which was to reflect Escrow Holder's Gener 35 Provisions is not attached to the Agreement. Any and all reference to an Exhi 35 "B" to the Aqreement is hereby deleted in its entirety as said provisions are 39 C. In accordance with Section 4.1 of the Agreement entitled Title Report, Bu) 40 acknowledges receipt of preliminary report dated October 18, 1995 under Order 41 1122139-20 and approves of items 1 (second half 199549961, 2, 4 through 21. : 42 24, to appear in the policy of title insurance to be issued at the close of e: 44 D. In accordance with Section 4.4 of the Agreement entitled, Board ADproval , 45 understood and approved by and between the undersigned, Escrow Holder's recei 46 Buyer's deposit of final funds needed to close and Buyer's certificate of acc 47 to Grant Deed shall satisfy this contingency in its entirety. 49 E. It is acknowledged that the policy of title insurance to be issued at the 50 of escrow, will be in the form of a standard ALTA/WRE (Western Regional Excep 51 Owners policy, in lieu of ALTA owner's title insurance policy, unless Buyer r 33 37 incorporated herein. 38 43 48 ADDITIONAL INSTRUCTIONS ATTACHED HERETO ARD MADE A PART HEREOF My iniriaIs below represent my agreement and acknowledgment of the foregoing. Page 1 @ 0 1 extended coverage as provided for under 4.6 of the Agreement. 4 ESCROW HOLDER GENERAL PROVISIONS 2 3 5 6 DEPOSIT OF FUNDS 7 8 9 10 11 12 13 AUTHORIZATION TO FURNISH COPIES: 14 15 16 17 RIGHT OF CANCELLATION: 18 19 20 21 22 23 court of competent jurisdiction. 24 25 ACTION IN INTERPLEADER: 26 27 28 29 30 31 32 33 TERMINATION OF AGENCY OBLIGATIONS: 34 35 36 depositing the same. 37 38 39 specifically). 40 4 1 CONFLICTING INSTRUCTIONS 42 43 44 45 46 47 DWEMNITY FOR ATTORNEY FEES: 48 49 50 51 You shall deposit all funds received in this escrow in any bank insured by an agency of the United States Government, including your aff First American Trust Company, in one or more of your general escrow demand accounts. These funds may be transferred to any other gel demand account or accounts, including those maintained in your affiliated bank. All disbursements shall be made by your check, or at the re party entitled t0 a disbursement, by wire transfer, provided that such party provides appropriate instructions to you and pays your wire tra connection therewith. You are authorized not to close escrow or disburse until good funds have been confirmed in escrow. You are to furnish a copy of these instructions, amendments thereto, closing statement and/or any other documents deposited in this escrow t or lenders, the real estate broker and/or the attorney or attorneys involved in this transaction upon request of the lenders, brokers or attorney: Any party instructing you to cancel this escrow will file notice of cancellation in your office. in writing. You will, within a reasonable tin mail, by certified mail, one copy of the notice to each of the other parties at the addresses stated in this escrow. Unless written objection to is filed in your office by a party within ten (10) days after the date of mailing, you are authorized, at your option, to comply with the notice payment of your cancellation charges as provided in this agreement. If written objection is filed, you are authorized, at your option, to holi and instruments in this escrow and take no further action until otherwise directed, either by the parties mutual written instructions, or final The parties hereto expressly agree that you, as Escrow Holder, have the absolute right, at your option, to file an action in interpleader parties to answer and litigate their several claims and rights among themselves and you are authorized to deposit with the clerk of the court a and funds held in this escrow. In the event such action is filed, the parties jointly and severally agree to pay your cancellation charge expenses and reasonable attorney's fees which you are required to expend or incur in the interpleader action, the amount thereof to be fixed judgement therefor to be rendered by the court. Upon the filing of the action, you shall thereupon be fully released and discharged from all further perform any duties or obligations otherwise imposed by the terms of this escrow. If there is no action taken on this escrow within six (6) months after the "close of escrow" date as set forth in the escrow instructions or writ1 thereof, your agency obligation shall terminate, at your option. and all documents, monies and other items held by you shall be returned t In the event of cancellation of this escrow, whether it be at the request of any of the parties or otherwise, the fees and charges due First AI Insurance Company, including expenditures incurred and/or authorized will be borne equally by the parties hereto (unless otherwise agreed ' Should you before or after the "close of escrow" receive or become aware of any conflicting demands or claims with respect to this escrow of any of the parties hereto, or any money or property deposited herein or affected hereby, you shall have the right to discontinue any or a1 on your part until the conflict is resolved to your satisfaction, and you shall have the further right to commence or defend any action or prc the determination of the conflict as provided in paragraphs 7 and 8 of these General Provisions. In the event suit is brought by any party to this escrow, including the escrow and title company, or other party, as against each other or othe the escrow and title company, claiming any right they may have as against each other or against the escrow and title company, then in ti- parties hereto agree that the losing party shall pay to the prevailing party any attorney's fees and costs incurred by the prevailing party. ADDITIONAL INSTRUCTptX9 ATI'ACHEG XERET'O AXD 14"1ADX A PAXT EEREOP My initials below represent my agreement and acknowledgment of the foregoing. Page 2 - 0 0 1 AMENDMENTS TO ESCROW INSRUCTIONS 2 3 4 5 GOOD WS LAW: 6 7 a 9 Any amendment or supplement to these escrow instructions must be in writing. These escrow instructions constitute the entire agreement Escrow Holder and the parties hereto. The parties understand that ALL funds to close escrow must be deposited into escrow prior to the date of closing to allow sufficient time for I such funds prior to disbursement. In the event such funds are not in the form of a wire, cashier's, certified or teller check drawn on a financ institution, sufficient time must be allowed for clearance to comply with Section 12413.1 of the California Insurance Code. Funds may be w to First American's depository bank account to avoid waiting for clearance. 10 11 FAXTRANSMITTALS 12 13 14 15 "FAX" material. 16 17 AGREEMENT REGARDING CANCELLATION INSTRUCTIONS: 18 19 20 2 1 22 23 24 25 26 27 28 29 THEREIN, IN THEIR ENTIRETY. 30 31 32 33 34 complete this transaction. 35 36 37 Buyer's Signature: 38 39 THE CITY OF CARLSBAD, 40 a Municipal Corporation 41 42 BY: 43 44 BY: 45 46 47 48 49 The undersigned parties instruct Escrow Holder and agree that First American Title Insurance Company may, during the course of this esc "FAX" transmittals from or on behalf of the parties herein for informational purposes only. The parties further agree and acknowledge 1 Escrow Holder's close or cancellation of this file or release of any funds held herein that Escrow Holder will require the original hard copy Prior agreement. if any, notwithstanding, in the event either party has the right of cancellation, the parties agree to sign such instructions necessary to effect the cancellation of this escrow. TIME IS OF THE ESSENCE OF THESE INSlRUCTIONS If this escrow is not in condition to close by the closing date referred to in the body of these instructions, and demand for cancellation is rece from any party to this escrow after said date, you will act in accordance with the cancellation instructions contained in the general provi: demand for cancellation is made, you will proceed to close this escrow when the principals have complied with the escrow instructions. WE, JOINTLY AND SEVERALLY, ACKNOWLEDGE RECEIPT OF A COMPLETE COPY OF THE ESCROW INSTRUCTIONS AND BY OUR SIGNATURES SET FORTH BELOW, ACKNOWLEDGE 'I HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS CO The undersigned Buyer will pay, on demand, the Buyer's customary charges (including, by way of example, but to, one-half escrow fee, charges for preparing and recording documents, premium for new or additional hazard lender's charges, lender's impounds and prepaid interest demand, if any, and applicable title company charges) ni I HAVE RECEIVED A COPY OF THESE INSTRUCTIONS. Address: 1200 Carlsbad Village Drive, Carlsbad, CA 92008 ADDTLIONAL INSTRUCTIGNS ATTACHED l€ERETQ A?4D MADE A PART IXEIPEOF My initials below represent my agreement and acknowledgment of the foregoing. Page 3 . The undersagned Seller(s) approve ca foregoing instructions and agree to sell an @ 1 deliver to you papers, I and/or funds required from me (within the "close of escrow date" specified herein), which you are authorized when you can issue your policy of title insurance as set forth above. I agree to pay any personal property taxe chargeable to me. You are instructed to use the money and record the instruments, to comply with said instructioi pay all encumbrances of record necessary without further approval including prepayment penalties to show title provided. 11 agree to pay one-half of the escrow fee, drawing of documents and such other charges which are ad\ my account regardless of the consummation of this escrow. I also agree to pay the policy of title insurance pre recording fees which are properly chargeable to me and documentary transfer tax which you are instructed to ent deed and affix your signature thereto, if required. In the event this amount is incorrect you are instructed to correct amount on the deed and deduct the additional therefore from funds accruing to my account. In the event a amount is entered on the deed and said deed is recorded, I hereby hold you harmless and agree to reimburse you fi you may sustain by said amount being incorrect. You are further instructed to pay commission, if any, as sei separate commission instructions made a part hereof. r HAVE RECEIVED A COPY OF THESE INSTRUCTIONS. Seller Signature(s): SAMMIS CARLSBAD ASSOCIATES, a California General Partnership BY: NEW ENGLAND MUTUAL LIFE INSURANCE, a Massachusetts corporation, partner on behalf of its Developmental Properties Account BY: COPLEY REAL ESTATE ADVISORS, INC., a Massachusetts corporation, its asset manager and advisor thereunder duly authorized BY: IQ: BY: Its: BY: AVENIJlA ENCINAS ASSOCIATES, a California general partnership, partner BY: BY: Its: General Partner Its: General Partner Address: 399 Boylston Street, Boston, Massachusetts 02116 - - END OF INSTRUCTIONS - - I 7 8 ORDER NO. 1122135 * EXH I B IT "A" LEGAL DESCRIPTION THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFC COUNTY OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS: THAT PORTION OF SECTION 20, TOWNSHIP 12 SOUTH, RANGE 4 WES'I BERNARDINO BASE AND MERIDIAN, IN THE CITY OF CARLSBAD, COUNTY ' DIEGO, STATE OF CALIFORNIA, ACCORDING TO OFFICIAL PLAT THERE( THAT PORTION OF LA COSTA DOWNS UNIT NO. 1, IN THE CITY OF CAR COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THERE 2013, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO Cc APRIL 26, 1927, DESCRIBED AS A WHOLE AS FOLLOWS:. BEGINNING AT THE INTERSECTION OF THE SOUTH LINE OF SAID SECT WITH THE EASTERLY LINE OF THE 200 FOOT RIGHT OF WAY OF THE SA RAILROAD, AS SHOWN ON SAID MAP NO. 2013; THENCE ALONG THE SOUT OF LA COSTA DOWNS UNIT NO, 1, SOUTH 89O21' EAST (NORTH 89O58'2C PER MAP NO. 2013) TO THE SOUTHWEST CORNER OF LAND DESCRIBED IN I: THE STATE OF CALIFORNIA, RECORDED FEBRUARY 16, 1966 AS FILE NO. OF OFFICIAL RECORDS; THENCE ALONG THE SOUTHWEST LINE OF SAID NORTH 26O10' WEST, 1462.07 FEET TO AN ANGLE POINT, NORTH 29' WEST, 300.38 FEET TO AN ANGLE POINT AND NORTH 27O14'24" WEST, FEET TO THE MOST EASTERLY CORNER OF THE LAND DESCRIBED AS PARC IN FINAL ORDER OF CONDEMNATION IN SUPERIOR COURT CASE NO. 25 COPY OF WHICH WAS FILED IN THE OFFICE OF THE COUNTY RECORDER DIEGO COUNTY, MARCH 15, 1968 AS FILE NO. 44080 OF OFFICIAL RE THENCE ALONG THE SOUTHEAST LINE OF SAID PARCEL "B", AS FOLLOW: SOUTH 61O51' WEST, 292.78 FEET TO THE EASTERLY TERMINUS OF 'I FOOT RADIUS CURVE, CONCAVE SOUTHEASTERLY IN THE NORTHERLY LINE LOMA BOULEVARD, AS SHOWN ON SAID MAP NO. 2013, WESTER1 SOUTHWESTERLY ALONG SAID CURVE, 60.31 FEET THROUGH AN AN( 57O05'50" SOUTH 61°51'00" WEST, 484.04 FEET; SOUTH 18O24'35" E AN ANGLE POINT IN THE NORTHERLY LINE OF SAN LUIS BOULEVARD AS SL SAID MAP NO. 2013, SOUTH 51°00'5511 WEST (SOUTH 50O20'20" WEST NO. 2013), A DISTANCE OF 42.19 FEET; AND SOUTH 69O33'55" WEST FEET (SOUTH 68O53'20" WEST, 68.75 FEET PER MAP 2013) TO TI- WESTERLY CORNER OF LOT 19, BLOCK 21, ACCORDING TO SAID MAP NO THENCE ALONG THE EASTERLY LINE OF SAID 200 FOOT RIGHT OF WAY SANTA FE RAILROAD ACCORDING TO BEARINGS AND DISTANCES SHOWN ( MAP NO. 2013, SOUTH 19°06'40" EAST, 224.19 FEET TO THE BEGINNI TANGENT 5629.65 FOOT RADIUS CURVE, CONCAVE EASTERLY ALONG SA11 SOUTHERLY, 196.51 FEET THROUGH AN ANGLE OF 2OOO' AND TANGENT ' CURVE, SOUTH 21O06'40" EAST, 730.84 FEET TO THE POINT OF BEGI- NOTE: THE FOLLOWING PORTION OF THE ABOVE DESCRIBED REAL P SHOWN ON MAP NO. 2013, WAS EXCLUDED FROM SAID SUBDIVISION B ENTERED FEBRUARY 19, 1937 IN CASE NO. 87499 IN THE SUPERIOR COL DIEGO COUNTY, STATE OF CALIFORNIA, A CERTIFIED COPY OF WH RECORDED FEBRUARY 19, 1937, IN BOOK 620, PAGE 213 OF OFFICIAL R ALL OF SAID LAND LYING WITHIN BLOCKS 15 THROUGH 21, INCLUD ADJOINING STREETS. SAID ORDER DID NOT INCLUDE A NEW MAP OR PLAT SHOWING THE BOUNDP SAID LAND AS THEY APPEAR AFTER THE EXCLUSION AS REQUIRED BY 11703 OF THE BUSINESS AND PROFESSIONS CODE. J 0 % , +' a- 0 ?JROWN, DlVEN LAW CFFICEs & HENTSCHKE 0 'a k;"." F. MACKP<SIE BROWN* 12770 HIGH BLUFF DRIVE, Sum 240 NEWMRT C 'QARREN 1.3. DIVEN SAN DIEGO, CALIFORNIA 92130 LOS AN DANIELS. HENTSCHKE (619) 456-1915 f,i. ROBEKT E. HESSELL FAX 259-0292 Bf c"- - I 'A PROFISSIONAL CORPORATION December 8, 1993 Jim Elliott, Financial Management Director City of Carlsbad 1200 Carlsbad Village Dr. Carlsbad, CA 92008 RE: COMMUNITY FACILITIES DISTRICT NO. 1 Dear Jim: At the reqaest of Barbara Hale (Kadie-Jensen, Johnson & Bodnar), I am r their question re1 ati ng to the 1 egal responsi bi 1 iti es where property c special tax is subsequently acquired by a school district, i.e., who is if anyone, for the payment of the special tax. The Report of the Tax Consultant did specifically provide that propert Community Facilities District publicly owned or operated would be taxation. This is consistent with Government Code $53340, which does properties of the State, Federal or other local government shall be exe special tax. This Section, though, does have an exception as provided ir \ Government Code Section $53317.3 specifically provides that if taxable acquired by a public entity through a negotiated transaction or by gil special tax shall continue to be levied on that taxable property enforceable against the public entity. The conclusion here is that the legislature has provided the authc special taxes to be collected and enforceable against property subseque by a public entity, even though the public entity would have been exemp PROPERTY ACQUIRED BY PUBLIC ENTITY I -m. I of District formation. 1; :: I, I If I can be of any further assistance, please call. 1 (* I Very truly yours, 7ib.L F. MACKENZIE BROWN FMB : bd cc: Barbara Hale; Kadie-Jensen, Johnson & Bodnar - _- - - -_cc -_ --->_ r _. ..I.._ __.- - ---__ - 1 -* *'> o e- 3 . 553317.3 Special tax; property acquired by public entity *braugh negotiated transaction or by gift or devise If grogerty not othetwise exewt from a special tax levied purs to this chapter is acquired by a public entity through a nctgotiated tr action, or by gift or devise, the special tax ahall, notwithstanding Sac 53340, continue to be levied on the property acquized asd shall be enforcc against the public*.entity 'that acquired the pmprty. I3omvez, even if resolution of formation that authotized creation of the district did specify conditions under which tho oblkgacion to pay a epcoiol Cow RI~' prepaid and pefiaanently eatisfied, the legislative body of the local a$ that orostod tho. dietriot may epcdfy oondLtioaa undw which the public m< that acquites the propetty may prepay and satisfy the obligation to pay the The condLtions may be specified only if the local agency that GXadhd district finds and determines that the prepayment arrangement will prcrtmct the Lntsrests of the OW~BEB of ihr Jirir.ir;t'a Lou&. 553357.5 I Spviul tux; rrprcFal ua6essBRnt on propesr;y acquired ' by pubzic entity thE0ugl.l euiinent dornaki ff propezty subject to a special tax levied pursuant to this ch La acquired by a pWlLc entity tWough eminent domain proceedinge, the ob tion to pay the epcial tax shall be treated, pursuant to Section 1265.2' tbe Code of Civil Procedure, a8 if it were a speciai annual assessment. thirr purpose, the present value of the obligation to pay a special tax t the principal and interest on any Webtednees incurred by the diatzict to the date of apportionment detenainsd pursuant to section 5082 of the Rf and Taxation code ahall be treated the same as a fixed Lien epeoiai asses80 - ARTICLE 2 PXK!kWlXNGS TO CREATE A mIcTp BnCXLITIES DLSICR1C"P *. p53318. Incrtitutien of procoodug; roqueskr poti+ionr fw Proceedings for tho eatab2iahment of 0 community fudlitiee di may be inetituted by #the legislative body on ita dwn initiative and sh InotLkuked by +ho logfolakive body when any of the followlig occusna (a) A wrfetea requeat for the 8stabliahnrenL oS a JisCsiGt, by two members of the Legislative body, deacriblng the boundaries tctritory which is propaad for inclusion irr the area and SgeCiZyfllg tr Of types of facititiea and aervkea to be financed by the district, is wikh the Legislative body. (t) A petition request+ng the instirutLon of the proceedings by the requisite number o€ registered voters, as specified in subdivfsri of Section 53319, is €i;ted with the clerk of the Legislative body petition may' conrrist of any nunrber of separate Fnstrumsnts, each of whfcl comply with all of the requirements of the petftion, except as to the nu signatueeio. ' 15 0 0 ENClNA ENClNA WASTEWATER AUTHORITY WASTEWATER AUTHORITY SPrv,ng A Public Agency 6200 Avenida Enc Carlsbad, CA 920 Telephone (61 9) f Yoifh San Viego C0""t" FAX (61 9) 438-386 (619) 431-74 LETTER OF TRANSMITTAL To: City of Carlsbad Project No. Q 1200 Carlsbad Village Drive Carlsbad, California 92009 Date: December 4 Subject: Agenda for Water Dist Attn: Mr. Frank Mannan Via: U. S. Mail The following items are transmitted: Number of Copies Description B Herewith 0 Under Separate Cover Agenda - December 6, 1995 The above items are submitted: 0 At your request 0 For your approval For your action 0 Per contract dated 0 0 For your files m For your information General remarks: Transmitted by: RWG : am Forward reply to Encina Water Pollution Control Facility SERVING THE CIWOF VISTA, CITY OF CARLSBAD, BUENASANITATION DISTRICT, VALLECITOS WATER DISTRIC LEUCADIA COUNTY WATER DISTRICT AND ENCINITAS SANITARY DISTRICT e e AGENDA FOR THE REGULAR MEETING OF THE BOARD OF DIRECTORS OF TWALLECITOS WATER DISTRICT DECEMBER 6, 1995, AT 4&O_PM AT THE DISTRICT OFFICE, 788 SAN MARCOS BOULEVARD, SAN MARCOS, CALIFORNIA xc CALL TO ORDER PLEDGE OF ALLEGIANCE ROLL CALL In the case of an emergency, items may be added to the Agenda by a majority vote of the Board of Direc An emergency is defined as a work stoppage; a crippling disaster; or other activity which severely imF public health, safety, or both. Also, items which arise after the posting of the Agenda may be added two-thirds vote of the Board of Directors. ADOPT AGENDA FOR THE REGULAR MEETING OF DECEMBER 6,1995 BOARD REORGANIZATION (pp. 1-2) ORAL COMMUNICATIONS Persons wishing to address a matter not on the Agenda may be heard at this time; however, no actic be taken until the matter is placed on a future agenda in accordance with Board policy. NOTICE TO THE PUBLIC All matters listed under the Consent Calendar will be voted upon by one motion. There will be no SI discussion of these items, unless a Board Member or member of the public requests that a particular be removed from the Consent Calendar, in which case it will be considered separately under New BI CONSENT CALENDAR 1.1 APPROVAL OF MINUTES (pp. 3- 12) REGULAR MEETING OF NOVEMBER 15,1995 ADJOURNED MEETTNG OF NOVEMBER 22,1995 1.2 FINANCIAL REPORT (pp. 13-24) A. B. FUND TRANSFERS--$51,513 WARRANTS ISSUED THROUGH DECEMBER 6, 1995--$82 1,527.93 C. WATER & SEWER OPERATIONShlAINTENANCE THROUGH SEPT. 195 D. E. WATER USAGE REPORT--OCTOBER 1995 WATER & SEWER RESERVE FUND--SEPTEMBER 1995 OLD BUSINESS ACQUISITION OF 37 ACRES ADJACENT TO THE ENCINA WATER PO1 2.1 h CONTROL FACILITY (pp. 25-30) , Agenda e 0 Regular Meeting of December 6, 1995 Page Two NEW BUSINESS 3.1 SAN MARCOS AMBULATORY CARE REQUEST FOR ADDITIONAL WATER METER 31-36) REPORTS 4.1 GENERAL MANAGER (pp. 37-38) 4.2 DISTRICT COUNSEL 4.3 DISTRICT ENGINEER UPDATE--NEW ADMINISTRATION AND OPERATIONS AND MAINTENANCE FACIl 4.4 SDCWA/MWD 4.5 ENCINA WASTEWATER AUTHORITY 4.6 FINANCE/INVESTMENT COMMITTEE (pp. 39-40) 4.7 ENGINEERING COMMITTEE (pp. 41-42) OTHER BUSINESS 5.1 MEETINGS (pp. 43-44) CALIFORNIA ASSOCIATION OF SANITATION AGENCIES ANNUAL WORK CONFERENCE PALM SPRINGS HILTON PALM SPFUNGS, CA JANUARY 18-20, 1995 6.1 !TEMS FOR SUSSEQUENT MEETINGS 7.1 CLOSED SESSION CONFERENCE WITH LEGAL COUNSEL PURSUANT TO THE PROVISIONS OF SE 54956.9(a) OF THE GOVERNMENT CODE OF THE STATE OF CALIFORNIA (EX COUNTY SUPERIOR COURT CASE NO. N667 13) LITIGATION--VALLECITOS WATER DISTRICT V. SAFACORF ET AL., SAN 8.1 ADJOURNMENT AFFIDAVIT OF POSTING I, Shirlee A. Weaver, Executive Secretary of the Vallecitos Water District, hereby certify that I c posting of this Agenda in the lobby of the District office at 788 San Marcos Boulevard, San California at 1 :00 pm. DATE: November 29, 1995 SWUk . 0 0 c- - _._. ......... ._...-.___...__. . ..____ ................. _._ . ..-.. .... -..... ............. -. ......- ................... ...-.--.- ~- .... --~ .................. ...____.._ ~.~.-. -. ....................... ~.- . -... ._~__ .~__ ~. ~_~_.._~ I, ... ........... -..~-..~ .. .... - .............. ....__ . __.._... ... 6 .-77 .... ~~- .-~~ ........-_..... . ._..____....__ ................... ..._. _..~. .... _. ... 6Czfy ......... _..._. . ..~.. ......... ................ -.-...- ~~--- .._._ ~- ........... 4% .. .._.._ ~~...~ __._. ....... ._...__... - ....... - -~~ ...... ............. .. ................. /y+%+- .. --Z.I?%?-- /9t""ii .... .~~-.. . ..-~ ___ 9. -~~ ...... ...................... && _ .~- d--... ..... /z/": .. -.. -2T*:.ee- .. .-... ..... d-ce _...._._.. ................... ..... -.. - /z .. / E3 . // 93- ..... .. .-.. -6. .'"e+ ........ .._.~__~ ........ 9; ........ ...-.-. .... .- ........ -. . ....... ...~~-. .... ~~-..~~ .-.-. ......... --..... ....... ._....- ...................... ~_-~ --.. kL .... 4Z/&/?? =" . -...- "::-@"/"y"- ...... ____.-._.. ...... .-. .-.. -~ - ...- __..... ....................... -.-.. .......... .--. .. ..._.-.. .... -. ..... ~~. - .-~~ -~.. -~- .... ~~- ......................... _-....-.. . . -..-.. ........................... ~--. ~- ..................... ~- ...... .~.. ...-. ... -_.. .~~- ........... .. ~ .~ . .~ . ....... ~. -.-... ..... - .. _-. .. --- ................. - -~ ... ...--... .. -...... .. .~~-.-- ....................... ................ -~ ....... ..-- ..... ~- ........ - .... .~- ...... -~~. .......... ~ ......-.. ..... -_..... ....... ... .~-.~.. ... ..................... ..... - ... .-. ~~- ............................. ~- .... - ......... - .... ~~__~~ -~..- . .. ~ ~~ . ~ __ ~~ ............. ......... .-. .... ..~-.. .... ......... ..-.~~ -.- -._.-_. .......... __..._ ............ ..-.. .~- ....... .............. ....-._ -. ~...-~.~ .......... ~~.-. ... --~ .--~~~ ...... -~~. ......... - ............. ..... ..-~ -.....-..- . ....... _...__ ... .-..-- ...... -~. .~~~ ......... -.. ...................... ~- -..~ .......... ~-..~~ ......... - -. .. - ........._._._. . ~. .............. .-~~~ ...~-~- -~- ..--. ......... .~~- ..... -~~ ............... .--. ... ...- ..... ......._.. ......... ~-~ .....-... ...... . .- ~~~ ..-~ ~~ -~.~~ ~~. ~. .~. ~~. ~~ .~ ... ~~-~ ... .. .~-~ ___ ~-...~.~ . ___... ........ .___-.._ ........... --~ ..- .... ~ ............ ~.~ .- ~~. ....__.._._.. ........... ~~--. ........ ......... -... ~-. ....... ~..~~~ ~ ............ - .... -~ .............. ........-..._ ~__~~~~-~ ._~_ __~.. .... __ .-~.-. - ...- ........ --.... .. ...- ..... - ~~~-~ .-~~-~. ..... ........ .~- - ... ~_~... ...... ~-. ...... -~~. ...- ... .__ . -~ ... .-~-. .- ..... ~~~-. .~_~_~__~_.~._~~ .... -~~.-. ...... ~~~-.. . -~ ..-~.. ...... -. .. - .... ........... ..-... .. -....- ~ ............... ......- .............. ....... .._~ ................... ~~ ~- .. --. .... .-. ....... .~~-.. ..-~- . .. .--.. .... - .__.. ~__ .- ____. .................... ~ ... .~-~ . __ ...... ~-~. . ...- ......... - .... -~ . ~~. - 0 e % ENCINA WASTEWATER AUTHORITY A Public Agency 6200 Avenida Er Carlsbad, CA 92 Telephone (61 9: FAX (61 9) 438-3 (619) 431-7 November 20, 1995 Ref: 1: City of Encinitas 505 South Vulcan Avenue Encinitas, California 92024 Attention: Mr. Jack Kubota, Encina Technical Advisory Commit and City of Encinitas Representative SUBJECT: Acquisition of 57 Acres Adlacent to the Encina Watt Pollution Control Facility It is requested that the City of Encinitas place on their agc at the earliest opportunity, the attached letter report estimate of potential Community Facilities District Tax rega: the subject land acquisition. This request is being made pursuant to the Encina Waste? Authority Board of Directors meeting on November 15, Specifically, at that meeting the EWA Board became awar possible development costs that may be required when and if th pursues to develop the subject 37 acres. These possible development costs do not affect the acquis budget which the City of Encinitas approved on June 28 and Nov 8, 1995. However, the EWA Board requested that all the E member agencies be made aware of these possible development prior to the opening of escrow on the property. As indicated in the attached report no development taxes wou collected o~i the property upon a.cquisi+i.on under its cu agricultural designation. Rather the 37 acres may be subje taxes either as undeveloped (Vacant Land Tax) or developed prc (Special Development Tax) at some future date. An estimate of the possible Special Development Tax is shown I second attachment. The Vacant Land Tax can be avoided or mini by not pursuing development entitlements until a project is to proceed. City of Carlsbad and EWA staff will be in attendance at the C: Encinitas consideration of this report to answer questions. SERVING THE CITY OF VISTA. CITY OF CARLSBAD. BUENA SANITATION DISTRICT. V4LLECITOS WATFR DISTKI(:T. LEUCADIA COUNTY WATER DISTRICT AND ENCINITAS SANITARY DISTRICT a m k Mr. Jack Kubota Subject: Acquisition of Adjacent 37 Acres November 20, 1995 Page Two Ref: 1 The cooperation and assistance of the City of Encinitas in matter is certainly appreciated as the Encina Wastewater Authc and all the member agencies deliberate this important issue. If there is any questions regarding this request please dc hesitate to call me. Very truly yours, cc: EWA Director Gail Hano EWA Director John Davis Bob Nelson, Director of Public Works, Encinitas Frank Mannen, Assistant City Manager, Carlsbad I ENCINA WASTEWATER AUTHORITY 6200 Avenida Encinas. Carlsbad CA 92009-1095 Telephone (619) 438-3941 Plant Fax (61 9) 438-3861 . Administrative Offices Fax (61 9) 431-7493 \~r~in~ 4ortFI $an Diego Coirnrv P, u 0 . - N3V-16-95 THU 04:46 PM - November 16, 7995 General Manager Rick Graff Encina Water Pollution Control Facility 6200 Avenida Encinas Carlsbad, CA 92008 IMPACT OF COMMUNiTY FACILITIES DISTRICT3 3ti LAW ACQiiiSiTl:ON Dear Rick: The proposed purchase of the 34-t acre Sammis Property, south of Encina, is subject to tw Community FaciIity Districts (CFD): one formed by the Carlsbad Unified School District (CUSD), and one formed by the City of Cartsbad. The CUSD CFP #3, would annex this property to the District under normal circumstances; however, the documents that formed CFD indude language that exclude municipalities from taxation. When the City takes title t( the property, CUSD would be notified and steps would be taken to remove the property fro the future area of annexation. The property would therefore not be subject to taxation by tt CUSD CfD #3. The situation is different for the City of Carlsbad CFD #1. The property is included within t City's CFD. The property is currently designated as agriculture under the local coastal program and is therefore not subject to taxation under the City's CFD rules. Upon approvz af the first discretionary action that would confer development entitlements on the property the property would become subject to CFD taxes and the property shall be taxed beginnin at the next available lien date at the rate applicable to the newly designated land use. The amount of the vacant land tax would vary depending on the new land use designation on property. Although land owned by public entities at the time the City's CFD #I was forme( was excluded from taxation, land subsequently purchased by pubiic agencies (inciuding tl City) are taxed in the same manner and under the same rules as privately held property. At the time of building permit issuance for non-residential property, the property owner/developer has the option of paying a one-time speciai tax or allowing the property 1 be taxed by the CFD for a period of 25 years. The ultimate amount of the tax will depend upon the nature of use of the property and the size and valuation of the facilities. It is difi to specify precisely what the taxes may be. CFD #1 was created to provide a way to finance public projects that were previousiy dependent upon development fees, Independent impact-free programs were combined i the CFD. All of the Bridge and Thoroughfare District No. 1 (BTD), and a portion of the Tr' Impact Fee (TIF) and Public Facilities Fee (PFF) have all been consolidated into the CFD. When a development proposal is processed for a building permit, the applicable fees are 1200 Carlsbad Village Drive Carlsbad. CA 92008-1989 (619) 434-2821 - FAX (619) 720. r, L 0 0 . N3V-16-95 THU 04: 47 rn .. General Manager Rick Graff November 16, 1995 Page 2 determined. The basis for all fee programs was the need to mitigate the impacts of development. The proposed uses of this property, a water reclamation facility or a detention basin for Encina, may have tittle or no impact. For exampie, if the water reclamation faciiity, which could be developed entirely out of doors, is enclosed in 8 building for aesthetic purposes, there is a strong argument that the facility and use itself has little or no impact anc thai a bui[ding does not create any additional impact and therefore this facility should not be subject to taxation. The use of the property to develop an administration facility for Encina would trigger a similar analysis and a pfausible argument can be made that there is File additional impact, if any, since the facility is replacing an existing facility. However, this analysis would be more complex in thsi new or adef%oi.rd impacis would have tc ba anabp depending on the amount of new space created and how existing space would be used. There IS an appeal process available to developers to contest the amount and application oi tax. The appeal panel consists of the City of Carlsbad’s Community Development Director, the Financial Management Director and the Finance Director. In the event there is a dispute over the tax determined under the CFD rules, the findings of the appeal panel may also be appealed to the City Council. 8ased on the above information, one can see that it is difficult to predict with any specificity the amount of fees that may be appiicabIe to the property. In any event, the tax, if any, wit1 not be triggered until development entitlements are obtained for this property. 74L FRANK MANNEN Assistant City Manager ma ever Remaining Area Open Space $ 0 Total Special Development fax - One-Time $31 6,485 I! 0 0 - .r ENCINA WASTEWATER AUTHORITY A Public Agency 6200 Avenida En Carlsbad, CA 921 Telephone (61 9) FAX (619) 438-3t (619) -131-7' November 20, 1995 Ref: City of Vista P.O. Box 1988 Vista, California 92083 Attention: Mr. Morris Vance, City Manager STiz3 JECT : Acquisition of 37 Acres adjacent to the Encina WE Pollution Control Facility In our November 17, 1995 letter to the City of Vista a requesl made to docket a letter report on the November 28 agenda addition, our request indicated an estimate of possible develo] taxes would be forthcoming. Please find attached an estimate of a Special Development Ta: one possible development scenario. As indicated in the attacl the Vacant Land Tax could be avoided or minimized by not obta development entitlements until a project is ready to proceed retaining the present agricultural exemption for as lon possible. Please include this letter and attachment in the November 28 a item. As mentioned previously, City of Carlsbad and Encina will be in attendance to answer any questions. Thank you again for your assistance and please do not hesita call if you have any questions on this matter. Very truly yours, e my9 Richard W. G ff General M ager Attachment cc: EWA Director Rocco Valluzzi EWA Director Scott Packard Chuck Bras, Director of Public Works, Vista Frank Mannen, Assistant City Manager, Carlsbad >tRVINC THE CITY OF VISTA CITY OF CARLSBAD BbENA SANITATION DISTRICT \'ALL€( ITOS L'VATER DI5TRICT LEUCADIA COUNTY WATER DISTRICT AUD ENClNlTAS SAYITAKY DISTRICT Y, u1 - 0 -- 0 wv-;'-m PKI US;JY t'n November 17,?995 General Manager Rick Graff Encina Water Pollution Control Faciiii 6200 Avenida Encinas Carlsbad, CA 92008 Dear Rick: The following table is an estimate of the potential Comrnunrty Facilities District Tax that woui aq$y to prcpgsed development on the 34.6 acre site along Avenida Encinas. The one-time tax reflected in the table assumes development during the i 995-96 iiscai year. Tie ;a iate subsequent years is subject to an annuai adjustment as determined by an infiation index The index used in the CFD is onehalf the annuai ENR index. it should be noted that this ta is not payable until a building permit is issued for the project and the tax may be paid at on time or may be financed over a twenty-five year period. Special Development Tax - One Tin? The property will not be subject to a vacant land tex until development entitlements are obtained for the property. By pursuing a strategy oi not obtaining development entitlement until the project is ready to proceed, vacant land taxes can be avoided or minirnizea. If yoi have any questions, please do not hesitate to contact me at (619) 434-2823. FRANK fAL MANNEN Assistant City Manager rna c: Financial Mgmt. Director Finance Director Facilities Maintenance Supenntendent i 200 Carisbad Village Drive Caflsbad. CA 92008-1 989 (61 9) 434-2821 FAX (61 9) 720-94 ,et 4. *Introduction of Ordinance 95-16 Amending the Municipal Code to Add tact Person: Management Analyst Suelter. NDAGON: Introduce 5. Receiv Development T= for the Avenida Encinas Land Acquisition by Enci Wastewater Authority. Conta Management Analyst Suelter. STAFF RECOMMENDATION: Receive report. 6. Actions Related to Extending the Cable Television Franchise License of I San Diego, Inc. Contact Person: Management Analyst Phillips. STAFF RECOMMENDATION: Approve amendment. THIS ITEM WAS REMOVED FROM THE AGENDA PRIOR TO DISTRIBUTIO 7. f .* e 0 CITY OF ENCINITAS CITY COUNCIL AGENDA REPORT Meeting Date: December 13,1995 TO: City Council VIA: @Lauren M. Wasserman, City Manager FROM: Public Works Department Bob Nelson, Public Works Director eslie Sueiter, Management Analyst % Sandra Vinocur, Management Assistant SUBJECT: Information Regarding a Possible Special Development Tax for the P Avenida Encinas Land Acquisition by Encina Wastewater Authority ISSUE Information. BACKG ROUN D On November 8, 1995, the City of Encinitas approved Resolution No. 95-108 for an ar of the Encina Wastewater Authority (EWA) capital budget in order to provide for the a of acreage along Avenida Encinas, South of the EWA sewage treatment plant. As i agency of EWA, the City of Encinitas is obligated to pay its share of the land ac Similarly, if an EWA project is eventually pursued on the acreage the City would be ot pay its share of development costs. On November 20, 1995, EWA requested that the City Council of the City of Er informed of a special deveiopment tax cost that could be incurred if the property is ac development of an EWA project occurs (see Attachment A). The EWA Board wants ti agencies to be informed of possible special deveiopment tax costs prior to opening esci purchase of the property. These development costs would not affect the EWA acquisit approved by the City Council on November 8,1995. G L .. 0 e ANALYSfS The property is currently designated as agricultural and therefore is not subject to devel taxes. Rather, the site may be subject to a vacant land tax or a special development ta vacant land tax could be avoided or minimized by not pursing development entitlemenQ project is ready to proceed. Upon approval of the first discretionary action that woulc development entitlements on the property, the property could become subject to a development tax depending on the type of project. The property could become subject to taxation by the City of Carlsbad for a special deve tax known as a Community Facility District (CFD) tax. When a building permit is issuec property it would then be evaluated for the amount of CFD tax to be assigned to the deve project. On the last page of Attachment A, there is a table which outlines the estimatec the CFD tax as $3 16,485 for one possible development scenario. The City of Encinitas’ the CFD tax would be approximately $15,318 if the City elects to participate in a I reciamation plant or $2,078 if the City does not participate in the reclamation project i EWA administration building were built on the property. ~ The Community Facility District tax for this property is estimated as a one-time $316,485, of which the City of Encinitas’ share would be approximately $2,078 to $1 the assumed development scenario in Attachment A. This amount could either be paid i sum or financed over 25 years. The property will not be subject to the tax until a buildii is issued for the project and development entitlements are obtained for the property. known at this when EWA may apply for a building permit or development entitlements. PECO MMEN DATXON Receive report. L L . ATTACHMEN ? A - 0 ENCINA ENCINA WASTEWATER AUTHORITY A Public Agency WASTEWATER AUTHORITY 6200 Aventda E Carlsbad. CA 9 Telephone (61' WWh SU, T FAX (61 9) 438- (619) 431- November 20 , 1995 Q Ref: I City of Encinitas 505 South Vulcan Avenue Encinitas, California 92024 Attention: Mr. Jack Kubota, Encina Technical Advisory Comm: and City of Encinitas Representative Acquisition of 37 Acres Adjacent to the Encina Wa, Pollution Control Facility SUBJECT: it is requested that the City of Encinitas place on their a at the earliest opportunity, the attached letter repor estimate of potential Community Facilities District Tax reg the subject land acquisition. This request is being made pursuant to the Encina Mast Authority Board of Directors meeting on November 15, Specifically, at that meeting the EWA Board became aw: possible development costs that may be required when and if t pursues to develop the subject 37 acres. These possible development costs do not affect the acquj budget which the City of Encinitas approved on June 28 and Nc 8, 1995. However, the EWA Board requested that all the member agencies be made aware of these possible development prior to the opening of escrow on the property. As indicated in the. attached report no development taxes wc collected on the property upon acquisition under its agricultural designation. Rather the 37 acres may be sub taxes either as undeveloped (Vacant Land Tax) or developed p (Special Development Tax) at some future date. An estimate of the possible Special Development Tax is showr second attachmenc. The Vacant Land Tax can be avoided or mi by not pursuing development entitlements until a project i to proceed. City of Carlsbad and EWA staff will be in attendance at the Encinitas consideratlon of this report to answer question: C L SERVING THE CITY OF VISTA CITY OF CARLSBAD BUENA SANITATION DISTRICT. VALLECITOS WATER DlSTR . ... ...+., . ,-,., ,.l_,,...-r ,. +...-.-..,CT ..,,. rll,C ,.,, T*C C*.,,TIO" nlCT0,r-T e 0 Mr. Jack Kubota Subject: November 20, 1995 Page Two Acquisition of Adjacent 37 Acres Ref: 1 The cooperation and assistance of the City of Encinitas in matter is certainly appreciated as the Encina Wastewater Auth and all the member agencies deliberate this important issue. If there is any questions regarding this request please d hesitate to call me. Very truly yours, cc: EWA Director Gail Hano EVA Director John Davis Bob Nelson, Director of Public Works, Encinitas Frank Mannen, Assistant City Manager, Carlsbad ENCINA WASTEWATER AUTHORlPl \\A\#l\,.,,”\ \ .< Il”LI1) 6200 Avenida Encinas. Carlsbad, CA 92009-1095 . Telephone (619) 438-3941 Plant Fax (619) 438-3861 . Administrative Offices Fax (619) 431-7393 6 i__ -- .*__.L - Na('16-95 THU 04:46 PM 0 0 P. 02 November 16, 1995 General Manager Rick Graff Encina Water Pollution Contra1 Facility 6200 Avenida Encinas Carlsbad, CA 92008 lMPAC7' OF COMMUNlN FACIUTIES DlSTRiCTS ON LAND ACQUISITION Dear Rick: The proposed purchase of the 34+ acre Sammis property, south of Encjna, is subject to tw Cammunrty Faciiity Oistticts (CFU): one Tomed by the Carlsbad Unified School District (CUSD), and one formed by the C'Q of Cartsbad. The CUSD CFD #3, would annex this property to the District under normal circumstances; however, the documents that formed CFD include language that exclude municipdities from taxation. When the City takes title tl the property, CUSD would be notified and steps would be taken to remove the property frc the^ future area of annexation. The property would therefore not be subjeci io taxation by ti CUSD CFD #3. The! situation is different for the City of Carlsbad CFD #le The property is included within City's CFD. The property is currently designated as agriculture under the local coastat program and is therefore not subject to taxation under the City's CFD rules. Upon approv at the first discretionary action that would confer development entitlements on the propert the prupeity wouid become subject to CFD taxes and the property shall be taxed beginni at the next available lien date at the rate applicable to the newly designated land use. Th amount of the vacant land tax would vary depending on the new land use designation on property. Although land owned by pubk entities at the time the City's CFD #1 was form1 was exciuded from taxation, land subsequently purchased by public agencies (including Ciy) am ta6d in ths ssge mnczt and ucder the same ru!es szs pivqtdy hs!d property. At the time of building permit issuance for non-residential property, the property owner/devetoper has the option of paying a one-time special tax or allowing the prop& be taxed by the CFD for a period of 25 years. The ultimate amount of the tax wiil depenc upon the nature of use of the property and the size and valuation of the facilities. It is d to specdy predisely what the taxes may be. CFD #1 was created to provide a way to finance public projects that were previously dependent upon development fees. Independent impact-free programs were cornbinec the CFD. All of the Bridge and Thoroughfare District No. 1 (BTD), and a portion of the lrnpact Fee 0 and Public Facilities Fee (PFFJ have all been consolidated into the CF When a development proposal is processed for a building permit, the applicable fees t 1200 Carlsbad Village Drive - Carlsbad. CA 92008-1 989 (619) 434-2821 FAX (619) 7: 5 r. 03 e 0 I’ N3V-’16-95 THU 04:47 PM Generat Manager Rick Grafi November 16, 1995 Page 2 determined. The basis for all tee programs was the need to mitigate the impacts of development. The proposed uses of this property, a water reciamation facility or a detention basin for Encina may have tittle or no impact, For example, if the water reclamation facifi, which could be developed entirely out of doors, is enciosed in a building for aesthetic purposes, there is a strong argument that the faciidy and use itself has little or no impact and that a buiiding does not create any additional impact and therefore this faci[S should not be subject to taxation, The use of the property to develop an administration facility for Encina would trigger a similar analysis and a ptausible argument can be made that there is tittle add%anal impact, 3 any, since the facirty is ;eplacing ai7 Existing facifw. HOVJfVW, this analysis woutd be more complex in that new or additional impacts would have to be analyzed depending on the amount ot new space created and how existing space would be used. There IS an appeal process availabie to developers to contest the amount and application of i tax. The appeal panel consists of the City of Carisbad’s Community Oeveiopment Oirector, the Financiai Management Oirector and the Finance Oirector. in the event there is a dispute over the tax determined under the CFD rules, the findings of the appeal panel may also be appealed to the Ctty CouncB. Based on the above information, one can see that it is difficult to predict with any specificity, the amount of fees that may be applicable to the property. In any event, the tax. if any, wiil not be triggered until development entitlements are obtained for this property. FRANK 7dL, MANNEN Assistant City Manager ma 5 r 0 - e Llvl l l ud I ILL ud.3~ rii -, * .. General Manager Rick Graff Encina Water Pollution Control Facility 6200 Avenida Encinas Cartsbad, CA 92008 Dear RIck The following table is an estimate of the potential Community Facilities OIstrfct Tax that wc apply to proposed development on the 34.6 aore site along Avenida Encins. The one41 tax reflected in the tabte assumes deveiopment during the 1995-96 fiscai year. The tax ra subsequent yean is subject to an annual adjustment as determined by an inflation index. The index used in the CFD is one-hd the annual ENR index. It should be noted that this is not payable until a building permit is issued for the project and the tax may be paid at time or may be financed over a twenty-five year period. Speclal Deveioprnent Tax - One Tine -5 0 e L ENCllNA WASTEWATER AUTHORITY WASTELVATE 6200 Avenida Er Carlsbad, CA 9; Telephone (61 9 (619) 431-7 A Public Agency FAX (619) 338-3 November 20, 1995 Ref: 13; Vallecitos Water District 788 San Marcos Blvd. San Marcos, California 92069 Attention: Mr. Bill Rucker, General Manager SUBJECT : Acquisition of 37 Acres Adjacent to the Encina P Pollution Control Facility It is requested that the Vallecitos Water District (WD) plac their December 6, 1995 agenda the attached letter report estimate of potential Community Facilities District Tax regal the subject land acquisition. This request is being made pursuant to the Encina Waste1 Authority (EWA) Board of Directors meeting on November 15, : Specifically, at that meeting the EWA Board became awar possible development costs that may be required when and if thl pursues to develop the subject 37 acres. These possible development costs do not affect the acquis. budget which WD approved on June 7 and November 1, 1995. Howl the EWA Board requested that all the Encina member agencies be aware of these possible development costs prior to the openii escrow on the property. As indicated in the attached report no development taxes wou collected on the property upon acquisition under its cu agricultural designation. Rather the 37 acres may be subjec taxes either as undeveloped (Vacant Land Tax) or developed pro: (Special Development Tax) at some future date. An estimate of the possible Special Development Tax is shown o second attachment.. The Vacant Land Tax can be avoided or mini by not pursuing development entitlements until a project is to proceed. City of Carlsbad and EWA staff will be in attendance at th, consideration of this report to answer questions. The cooperation and assistance of the Vallecitos Water Distri this matter is certainly appreciated as the Encina Waste Authority and all the member agencies deliberate this imp0 issue. SERVING THE CITY OF VISTA, CITY OF CARLSBAD, BUEUA SANITATION DI5TRICT. \ ALLtCITO5 WATER DISTRICT. LEUCADIA COGNTY WATER DISTRICT AN[) ENCIYITAS SASITARI DISTRICT 0 - e Mr. Bill Rucker Subject: Acquisition of Adjacent 37 Acres November 20, 1995 Page Two If there are any questions regarding this request please do hesitate to call me. Very truly yours, s57 Richard W. Attachments cc: EWA Director Mike Gregoryk EWA Director Margaret Ferguson Frank Mannen, Assistant City Manager, Carlsbad , ENCINA WASTEWATER AUTHORITY \ 6200 Avenrda Encinas Carisbad, CA 92009-1095 Telephone (619) 438-3941 Plant Fax (619) 438-3861 Administrative Offices Fax (619) 431-7493 %v~in~ North 5r)n Drew Co infy P. m 0 - wv-IU-33 inu ULL~W r1.i - November 16, 1995 General Manager Rick Graff Encina Water Pollution Control Facility 6200 Avenida Encinas Carlsbad, CA 92008 IMPACT OF COMMUNlN FACILITIES DISTRICTS ON LAND ACQUlSITlON Dear Rick: The proposed purchase of the 34+ acre Sammis Property, south of Encina, is subject to tv Community Faciiity Districts (CFD): one formed by the Carlsbad Unified School District (CUSD), and one formed by the City of Carlsbad. The CUSD CFP #3, would annex this property to the District under normal circumstances; however, the documents that formed CFD include language that exclude municipalities from taxation. When the City takes title tc the property, CUSD would be notified and steps would be taken to remove the property fro the future area of annexation. The property would therefore not be subject to taxation by tt CUSD CFD #3. The situation is different for the City of Carlsbad CFD #l. The property is included within ti City's CFD. The property is currently designated as agriculture under the local coastal program and is therefore not subject to taxation under the City's CFD rules. Upon approw of the first discretionary action that would confer development entitlements on the property the pruperty would become subject to CFD taxes and the property shall be taxed beginninc at the next available lien date at the rate applicable to the newly designated land use. The amount of the vacant land tax would vafy depending on the new land use designation on t property. Although land owned by public entities at the time the City's CFD #I was forrnea was excluded from taxation, land subsequently purchased by public agencies (inciuding th City) are taxed in the same manner and under the same rules as privately held property. At the time of building permit issuance for non-residential property, the property owner/developer has the option of paying a one-time special tax or allowing the property tc be taxed by the CFD for a period of 25 years. The ultimate amount of the tax will depend upon the nature of use of the property and the size and valuation of the facilities. It is diffil to specify precisely what the taxes may be. CFD #1 was created to provide a way to finance public projects that were previously dependent upon development fees. Independent impact-free programs were combined in the CFD. All of the Bridge and Thoroughfare District No. 1 (BTD), and a portion of the Tra lmpact Fee (TIF) and Public Facilities Fee (PFF) have all been consolidated into the CFD. When a development proposal is processed for a building permit, the applicable fees are 1200 Carlsbad Village Drive Carlsbad. CA 92008-1 989 (619) 434-2821 FAX (619) 720-9 P, 0 e . Ilv. Iw ww IIIu VT.Tl rii * General Manager Rick Grail November 16, 1995 Page 2 determined, The basis for all fee programs was the need to mitigate the impacts of development. The proposed uses of this property, a water reciamation facility or a deientior, basin for Encina, may have little or no impact. For example, if the water reclamation facility, which could be developed entirely out of doors, is enclosed in a building for aesthetic purposes, there is a strong argument that the facility and use itself has little or no impact an< that a building does not create any additional impact and therefore this facility should not be subject to taxation. The use of the property to develop an administration facility for Encina would trigger a similar analysis and a prausible argument can be made that there is File additional impact, if any, since the facility is replacing an existing facility. However, this analysis would be more cornpiex in thm new or additional impacts would have to be analyze depending on the amount of new space created and how existing space would be used. There IS an appeal process available to developers to contest the amount and application 01 tax. The appeal panel consists of the City of Carlsbad’s Comrnunrty Development Director, the Financial Management Director and the Finance Director. In the event there is a dispute over the tax determined under the CFD rules, the findings of the appeal panel may also be appealed to the City Council. Based on the above information, one can see that it is difficukt to predict with any specificity, the amount of fees that may be applicable to the property. In any event, the tax, if any, wiil not be triggered until development entitlements are obtained for this property. 7dL FRANK MANNEN Assistant City Manager ma development to occur ever Total Special Development Tax - One-Time Remaining Area Open Space $ 0 $37 6,485 0 * % ENClNA WASTEWATER AUTHORITY A Public Agency 6200 Avenida En1 Carlsbad. CA 92( Telephone (61 9) Ref: 137' November 20, 1995 FAX (619) 438-38 (619) 431-74 Leucadia County Water District 1960 La Costa Avenue Leucadia, California Attention: Mr. Tim Jochem, General Manager SUBJECT : Acquisition of 37 Acres Adjacent to the Encina Wa, Pollution Control Facility It is requested that the Leucadia County Water District (LC place on their agenda, at the earliest opportunity, the attac letter report and estimate of potential Community Facili, District Tax regarding the subject land acquisition. This request is being made pursuant to the Encina Wastew, Authority (EWA) Board of Directors meeting on November 15, 1' Specifically, at that meeting the EWA Board became aware possible development costs that may be required when and if the pursues to develop the subject 37 acres. These possible development costs do not affect the acquisii budget which LCWD approved on June 14 and November 8, 1; However, the EWA Board requested that ail the Encina me1 agencies be made aware of these possible development costs prio the opening of escrow on the property. As indicated in the attached report no development taxes woulc collected on the property upon acquisition under its cur: agricultural designation. Rather the 37 acres may be subject taxes either as undeveloped (Vacant Land Tax) or developed propt (Special Development Tax) at some future date. An estimate of the possible Special Development Tax is shown on second attachment. The Vacant Land Tax can be avoided or minim. by not pursuing development entitlements until a project is r( to proceed. City of Carlsbad and EWA staff will be in attendance at the : consideration of this report to answer questions. We understand that a special 'moved up' LCWD meeting date December 12, 1995 may be necessary for your agency to : considered this item prior to the next EWA meeting of December SERVING TtiE CITY OF VISTA. CITY OF CAKLSBAD, BUENA SAUITATIOS DISTRICT V4LLECITOS WATER DISTRIC T. LEUCADIA COUNTY WATER DISTRICT AND CNCINITAS SANITAR) UISTR1C.T 0 0 Mr. Tim Jochem, General Manager Subject: November 20, 1995 Page Two Acquisition of Adjacent 37 Acres The cooperation and assistance of the Leucadia County W District in this matter is certainly appreciated as the En Wastewater Authority and all the member agencies deliberate important issue. If there are any questions regarding this request, please do hesitate to call me. Very truly yours, c57 Richard W. G ff Attachments cc: EWA Director Elaine Sullivan EWA Director Allan Juliussen Frank Mannen, Assistant City Manager, Carlsbad n ENCINA WASTEWATER AUTHORITY 6200 Avenida Encinas Carisbad, CA 92009-1095 Telephone (619) 438-3941 Plant Fax (619) 438-3861 Adrnlnlstrative Offices Fax (619) 431-7493 \e, rng North \J( [Irego Counrv P, ( 0 - 0 . iwv-io-33 inu u4;40 PM November 16, 7995 General Manager Rick Graff Encina Water Pollution Control Facility 6208 Avenida Encinas Catlsbad, CA 92008 IMPACT OF COMMUNITY FACILITIES DISTRICTS ON LAND ACQUlSlTiON Dear Rick: The proposed purchase of the 34+ acre Sammis Property, south of Encina, is subject to two Community Faciltty Oistricts (CFD): one formed by the Catlsbad Unified School District (CUSD), and one formed by the City of Cartsbad. The CUSD CFD f3, would annex this property to the District under normal circumstances; however. the documents that formed CFD include language that exclude municipalities from taxation. When the City takes title to the property, CUSD would be notified and steps would be taken to remove the property from the future area of annexation. The property would therefore not be subject to taxation by the CUSD CFD #3. The situation is different for the City of Carlsbad CFD #1, The property is included within the City's CFD. The property is currently designated as agricutture under the local coastal program and is therefore not subject to taxation under the City's CFD rules. Upon approval of the first discretionary action that would confer development entitlements on the property, the property would become subject to CFD taxes and the property shall be taxed beginning at the next available lien date at the rate applicable to the newly designated land use. The amount of the vacant land tax would vary depending on the new land use designation on the property. Although land owned by public entities at the time the City's CFD #1 was formed was excluded from taxation, land subsequently purchased by public agencies (including the City) are taxed in the same manner and under the same rules as privately held property. At the time of building permit issuance for non-residential property, the property owner/deveioper has the option of paying a one-time special tax or allowing the property to be taxed by the CFD for a period of 25 years. The ultimate amount of the tax will depend upon the nature of use of the property and the size and valuation of the facilities. It is difficul to specify precisely what the taxes may be. CFD #1 was created to provide a way to finance public projects that were previously dependent upon development fees, independent impact-free programs were combined into the CFD. All of the Bridge and Thoroughfare District No. 1 (BTD), and a portion of the Traffic Impact Fee (TIF) and Public Facilities Fee (PFF) have all been consolidated into the CFD. When a development proposal is processed for a building permit, the applicable fees are 1200 Carlsbad Village Drive - Carlsbad. CA 92008-1 989 (61 9) 434-2821 FAX (61 9) 720-946 P. c 0 0 ~ llvv Iu-~3 inu uql~ti rii - General Manager Rick Graft November 16, 1995 Page 2 determined, The basis for all fee programs was the need to mitigate the impacts of development. The proposed uses of this property, a water reciamation facitity or a detention basin for Encina, may have tittle or no impact. For example, if the water reclamation facility, which could be devebped entirely out of doors, is enclosed in a building for aesthetic purposes, there is a strong argument that the facility and use itsetf has little or no impact and that a building does not create any additional impact and therefore this facility should not be subject to taxation. The use of the property to deveiop an administration facility for Encina would trigger a similar analysis and a plausible argument can be made that there is little additional impact, if any, since the facilay is replacing ar: existing facility. However, this analysis would be more compfex in that new or additionui impacts would have to be analyzed depending on the amount of new space created and how existjng space would be used. There IS an appeal process available to developers to contest the amount and application of I tax. The appeal panei consfsts of the City of Carlsbad’s Community Development Director, the Financiai Management Director and the Finance Director. In the event there is a dispute over the tax determined under the CFD rules, the findings of the appeal panei may also be appealed to the City Council. Based on the above information, one can see that it is difficult to predict with any specificity, the amount of fees that may be applicable to the property. In any event, the tax, if any, will not be triggered until development entitlements are obtained for this property. 7dL FRANK MANNEN Assistant City Manager ma development to occur ever Total Special Development fax - One-llme Remaining Area Open Space $ 0 $31 6,485 * a ENCINA WASTEWATER AUTHORITY A Public Agency 6200 Avenida Enc Carlsbad, CA 920 Telephone (61 9) 2 FAX (61 9) 438-38 (619) 431-74 CONFIDENTIAL December 5, 1995 Ref: TO : Encina Wastewater Authority (EWA) Board of Director SUBJECT: Adjacent 37 Acres The enclosed final Purchase and Sale Agreement has been negoti by the City of Carlsbad with the Seller of the subject prope EWA staff and Counsel have worked with the City staff to dev the Agreement. Budget approvals have been provided by the Member Agencies funds are available to comply with the terms of the Agreement Your Board will be considering the additional Site InvestigE Report and Community Facilities District fiscal impact informz under Agenda Item No. 25. The Vallecitos Water District, Leuc County Water District and City of Encinitas will be reviewins CFD information subsequent to the writing of this letter. Therefore, it is: RECOMMENDED: The EWA either: A) Authorize the acquisition of the 37 acres in accordance terms and conditions in the Purchase and Sale Agreemen contingent on no Member Agency opposition to the acquis prior to December 14; OR B) Set a special EWA meeting date to review any unresolv concerns of a Member Agency; OR C) Terminate the acquisition effort. SERVING THE CITY OF VISTA CITY OF CARLSBAD BUEYA SAhlTATlOY DISTRICT VALLECITOS L\’ATER DISTRICT LEUCADIA COUNTY WATER DISTRICT AND EN( INITAS SAILITARY DI5TRICT 0 rll 4-s DISCUSSION: The enclosed Agreement among other things establishes the cost the 37 acres at $4,456,450. This is the same price previou reported to the EWA Board and within the approved budget. Recommendation (A) is approved and no Member Agency issue is rai prior to December 14 a check for $100,000 would be delivered to Escrow Agent possibly as soon as December 14, 1995. Escrow wo close as soon as possible thereafter. If Recommendation (B) is deemed more appropriate by the EWA Boa staff would suggest the meeting be set as soon as possible ir- attempt to maintain the present negotiated terms with the Sell If Recommendation (C) is the selected alternative all EWA st effort would cease and the City of Carlsbad would be requestec notify the Seller. FISCAL IMPACT: If the acquisition is completed under the present terms of Purchase and Sale Agreement a total of $4,456,450 would be paid the 36.985 acres of which 32.014 acres has been determined as buildable after deducting easements and setbacks. Increased Unit I annual costs to hold the land would include T and trash control as well as maintaining a series of signs prohibit trespassing. An additional expense of holding the lan the annual interest on the purchase price if the parcel is not to beneficial use immediately. Assuming a 6 % return this an expense might be $267,387. TECHNICAL ADVISORY COMMITTEE (TAC) POSITION: The TAC was not requested to review this recommendation. Very truly yours, Richard W. Gr -9 General M RWG : am Enclosure cc: Frank Mannen, City of Carlsbad Greg Moser /KX i6, \I /I I YII>\ th$ ENCINA WASTEWATER AUTHORITY 6200 Avenrda Enclnas. Carlsbad. CA 92009-1 095 Telephone (61 9) 438-3941 Plant Fax (619) 438-3861 . Adrn~n~strat~ve Offices Fax (619) 431-7493 ''\\dl \eriing North <an Diego County * D m m ENCLOSURE TO EWA AGENDA ITEM NO. 35 December 13, m w PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS Seller: Sammis Carlsbad Associates, A California General Partnership Buyer: The City of Carlsbad A Municipal Corporation First American Title Insurance Company Escrow No. 1 124540-LG Escrow: AGG95026.F4 November 13.1995 m m TABLE OF CONTENTS ARTICLE 1 Definitions .............................................. 1.1 City .............................................. 1.2 Close of Escrow, Closing Date. ......................... 1.3 Effective Date. ...................................... 1.4 Environmental Laws. ................................. 1.5 Escrow Agent. ...................................... 1.6 Grant Deed. ........................................ 1.7 Hazardous Materials. ................................. 1.8 Permitted Exceptions ................................. 1.9 PR ................................................ 1.10 Property ........................................... 1.1 1 Purchase Price. 1.12 Title Insurer. ..................................... ........................................ ARTleLE2 ................................................... 2.1 Purchase Agreement. ................................. 2.2 Purchase Price. ..................................... ARTICLE3 ................................................... 3.1 Opening of Escrow. .................................. 3.2 Escrow Instructions. ................................. 3.3 Close of Escrow. ................................... 3.4 Deliveries to Escrow. ................................ 3.5 Prorations. 3.6 Escrow Charges. ................................... 3.7 Recordation of Documents. ........................... 3.8 Distribution of Funds.. ............................... 3.9 Conformed Copies. ................................. 3.10 TaxReporting. ..................................... ARTJCLE4 .................................................. 4.1 Title Report. ....................................... 4.2 Entitlements. ...................................... 4.3 Approval ......................................... 4.5 Title Insurance. .................................... 4.6 Extended Title Coverage. ............................. 4.7 Grant Deed. ....................................... ........................................ AGGO5026.F4 November 13,1995 a m ARTICLE5 .................................................... 5.1 Condition of the Property ............................... 5.2 Buyer’s Representations and Warranties. ................... 5.3 Seller’s Representations and Warranties. ................... 5.4 Real Estate Commissions. .............................. 5.5 Survival of Warranties and Obligations. ................... 5.6 Limitation on Seller’s Liability .......................... Buyer’s Access to Property. ............................ 6.2 Damage or Destruction. ............................... ARTI@LE6 ................................................... 6.1 6.3 Condemnation. ...................................... 6.4 Possession. ........................................ ARTICLE7 ................................................... 7.1 Assignment. ........................................ 7.2 Attorneys’ Fees. ..................................... 7.3 Computation of Time Periods. .......................... 7.4 Conflict of Interest. .................................. 7.5 Construction. 7.6 Counterparts. ....................................... 7.7 Entire Agreement. ................................... 7.8 Exhibits. ........................................... 7.9 Further Assurances. .................................. 7.10 Gender, Number. .................................... 7.1 1 Governing Law. ..................................... 7.12 Modification, Waiver. ................................. 7.13 Mutual Covenants. ................................... 7.14 No Other Inducement. ................................ 7.15 Notice. 7.16 Severability. ........................................ 7.17 Successors. 7.18 Time. ............................................ 7.19 1031 Exchange.. ................................... CONSENT OF ESCROW AGENT ................................. ....................................... ............................................ ....................................... AGG95026.F4 November 13,1995 m m PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS THIS PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS ("Agreement"), effective as of 1995 ("Effective Date"), by a between SAMMIS CARLSBAD ASSOCIATES a Califoinia General Partnership ("Selll and the CITY OF CARLSBAD, a Municipal Corporation ("Buyer"), in trust for the member agencies of the Encina Wastewater Authority (City of Carlsbad, City of Encinitas, City of Vista, Buena Sanitation District, Leucadia Water District, and Vallecitos Water District) constitutes an agreement to purchase and sell real prope and escrow instructions directed to the Escrow Agent identified herein. ARTICLE 1 Definitions For purposes of this Agreement, the following defined terms shall be indicated by initial capital letters and shall have the meanings set forth below: 1.1 1.2 1.3 City The City of Carlsbad, California Close of Escrow, Closing Date. As defined in Section 3.3(a). Effective Date. The date first set forth above, which shall be the date this Agreement has been executed (a) by Buyer, pursuant to a resolution of thc City Council authorizing such execution, and (b) by Seller. Buyer shall exec this Agreement within three (3) business days after adoption of the City Council's resolution of approval. Environmental Laws. Any law or regulation applicable to the physical condition of the Property, or the presence of any substance thereon, incluc without limitation, the Comprehensive Environmental Response, Compensi and Liability Act of 1980, as amended (42 U.S.C. Sections 9601, et seq.), tt Resources Conservation and Recovery Act of 1976 (42 U.S.C. Sections 69 seq.) the Clean Water Act (33 U.S.C. Sections 466, et seq.), the Safe Drinkin Water Act (1 4 U.S.C. Sections 1401 -1 450), the Hazardous Materials Transportation Act (49 U.S.C. Sections 1801 , et seq.), the Toxic Substance Control Act (1 5 U.S.C. Sections 2601-2629), the California Hazardous Was Control Law (California Health and Safety Code Sections 251 00-25600), ar the Porter-Cologne Water Quality Control Act (California Health and Safety Code Sections 13000, et seq.), as any of the foregoing may be amended f time to time, and all regulations and publications implementing or promul pursuant to the foregoing. 1.4 AGGO5026.F4 November 13,1995 1 rn m 1.5 Escrow Agent. First American Title Insurance Company, Att: Lynn Graham, 41 1 Ivy Street, San Diego, California 921 01, Box 808, San Diego, California 921 12, Telephone (800) 451 -1 776. Grant Deed. The Grant Deed conveying the Property to Buyer in the form o Exhibit "A" attached hereto, executed and acknowledged by Seller and Buy6 Hazardous Materials. Hazardous Materials shall include, but are not limitec substances which are flammable, explosive, corrosive, radioactive, or toxic, any substances defined as hazardous substances, hazardous materials, tor substances or hazardous wastes in any of the Environmental Laws, and all amendments to the Environmental Laws. Hazardous Materials shall also include those asbestos-containing materials defined and described in Environmental Protection Agency Report No. 56/5-85-024 (June 1985) or an related or successor report other applicable government regulations definin describing such materials. 1.8 Permitted Exceptions. As defined in Section 4.3. 1.9 PR. The preliminary title report identified in Section 4.1. 1.10 Property. That certain real property described as that portion of Section 2 Township 12 South, Range 4 West, San Bernardino Base and Meridian, in City of Carlsbad, County of San Diego, State of California, according to the official plat thereof and that portion of La Costa Downs Unit No. 1, in the C Carlsbad, County of San Diego, State of California, according to map thert No. 2013, filed in the office of the County Recorder of San Diego County, I 26, 1927. More fully described in Exhibit A. Purchase Price. The aggregate consideration to be paid by Buyer to Sellc the purchase of the Property, as set forth in Section 2.2. 1.12 Title Insurer. First American Title Insurance Company, Attn: Skip Santy, T Officer, 41 1 Ivy Street, San Diego, California 921 12. Telephone (800) 4514 ARTICLE 2 1.6 1.7 1.1 1 Purchase Agreement; Purchase Price 2.1 Purchase Agreement. Seller agrees to sell the Property to Buyer and Bu] agrees to purchase the Property from Seller, on the terms and conditions forth herein. Purchase Price. Buyer agrees to pay to Seller the amount of Four Millior 2.2 AGG95026.F4 November 13,1995 2 i m Hundred Fifty-Six Thousand Four Hundred Fifty Dollars ($4,456,450). Deposit. Buyer shall deposit the sum of One Hundred Thousand ($100,000) Dollars into escrow within three (3) business days of the opening of escrow; be applied towards the purchase price upon close of escrow. The balance c the Purchase Price shall be payable in cash and shall be delivered to Escrc Agent, in the form of a cashier's or certified check drawn on a California bar payable to Escrow Agent or funds by federal wire, a sufficient time in advan of the scheduled closing date to permit disbursement of such funds on the Closing Date under applicable law and Escrow Agent's standard practice. ARTICLE 3 2.3 Escrow 3.1 Opening of Escrow. An escrow ("Escrow") shall be opened with Escrow A! First American Title Insurance Company, to consummate the sale of the Property pursuant to this Agreement, identified as Escrow No. 1 12540-LG. Within three (3) business days after the Effective Date, Seller and Buyer sh: cause a fully executed copy of this Agreement to be deposited with Escrow Agent. The date Escrow Agent has received an executed copy of this Agreement is referred to herein as the "Opening of Escrow." Escrow Agent acknowledge the Opening of Escrow and its agreement to act as the Escrc Agent hereunder by: (a) executing the Consent of Escrow Agent attached hereto; and (b) promptly delivering a copy of the executed Consent to Sell and Buyer. Escrow Instructions. This Agreement shall constitute initial escrow instruc to Escrow Agent. Escrow Agent's general provisions are attached hereto a Exhibit "B" and made a part hereof, to the extent they are consistent with t provisions of this Agreement. The parties shall execute any additional instructions reasonably required by Escrow Agent to consummate the transaction provided for herein; provided, however, such additional Escrov Instructions shall not modify the provisions of this Agreement, unless such instructions (a) state the modification in full and (b) are signed by both pa 3.2 3.3 Close of Escrow. (a) Closinq Date. "Close of Escrow" or "Closing Date" means the date t Grant Deed is recorded in the Official Records of San Diego Count California and the Purchase Price is paid to Seller. The Close of Es shall occur on December 15, 1995 or within ten (10) days of final b approval by all member agencies of the Encina Wastewater Author that occurs sooner than December 15, 1995. AGG95026.F4 November 13,1995 3 i m (b) Material Term. Buyer will endeavor to make a good faith effort to expedite member agency approvals. If escrow does not close on the Closing Date, and the Closing Date is not extended by mutual instructions of the parties, the closing shall occur as soon after the Closing Date as it is in a condition to close unless a party not then in default under this Contract notifies the other party and Escrow Agent writing that unless the closing occurs within five business days follow the date of the notice, the escrow and this Contract shall be deemed terminated. If the closing has not occurred during the five day perioc this Contract and escrow shall be deemed terminated and Escrow A( shall return all monies and documents to the party depositing them. Deliveries to Escrow. Prior to the Closing Date, each party shall timely del to Escrow all funds and documents required to complete the Closing pursL to this Agreement, including, but not limited to, prorated amounts and othe payments required under Sections 3.5 and 3.6. Failure to make any such delivery shall constitute a material default hereunder. Prorations. Escrow Agent shall prorate all real property taxes and installmr of assessments payable prior to the Closing Date (collectively, "taxes") whii are a lien upon the Property, based on the most recent official information available from the appropriate City or County office; provided, however, ths Seller shall pay all penalties and interest resulting from late payment of SUC taxes and assessments. All prorations shall be made to the Closing Date L: upon a thirty (30) day month. If actual tax bills for the Property for the curr tax year are not available as of the Close of Escrow, Buyer and Seller shal reprorate said taxes outside of Escrow following Close of Escrow upon rec of said tax bills by either Buyer or Seller, It shall be the responsibility of thi Seller to obtain a refund of any taxes prepaid by Seller which are refundat upon close of escrow due to the tax exempt status of Buyer. 3.4 3.5 3.6 Escrow Charges. (a) Seller's Payments. Seller shall pay: (1) one-half of Escrow Agent's f cancellation charge; (2) the cost of a standard ALTA owner's title insurance policy and preliminary title report; (3) the documentary tr, tax which Escrow Agent determines is required by law; and (4) othl charges and expenses customarily charged by Escrow Agent to se Buyer's Pavments. Buyer shall pay: (1) one-half of Escrow Agent's cancellation charge; (2) the additional cost for extended ALTA title insurance coverage; (3) the cost of recording the Grant Deed; and other charges and expenses customarily charged by Escrow Agen buyers. (b) AGGQ5026.F4 November 13. 1995 4 rn m (c) Default. Notwithstanding the foregoing, in the event of a default by BI or Seller hereunder, all cancellation and other escrow charges shall t paid by the defaulting party. 3.7 Recordation of Documents. Escrow Agent is authorized to record any instrument delivered through Escrow if necessary or proper for issuance of Title Policy described in Section 4.3. At Close of Escrow, Escrow Agent sha submit the Grant Deed to the County Recorder for recordation and instruct County Recorder to return the original Grant Deed to Buyer and a conformt copy of the Grant Deed to Seller. At Seller’s or Buyer’s request, the documentary transfer tax shall be set forth in a statement separate from the Grant Deed and shall not be reflected in any recorded documents. Distribution of Funds. Upon Close of Escrow, Escrow Agent shall distribu pursuant to unilateral instructions provided to Escrow Agent by the recipier (a) to Seller, or order, the Purchase Price, adjusted for prorations, charges other credits and debits provided for herein; and (b) to Buyer or order, any excess funds delivered by Buyer to Escrow Agent. Conformed Copies. Upon Close of Escrow, Escrow Agent shall deliver to Seller and Buyer: (a) an accounting and final closing statement for this transaction; and (b) copies of all recorded documents, conformed to shou recording date and file number. 3.10 Tax Reporting. Any returns, statements or reports required to be filed unc Section 6045(e) of the Internal Revenue Code of 1986 and Sections 18805 26131 of the California Revenue and Taxation Code (and any similar repor required by federal, state or local law) relating to the Property shall be filec Escrow Agent. In no event shall this Agreement be construed so as to req that such returns, reports or statements be filed by Buyer, Buyer’s counsel Seller or Seller’s counsel. Within five (5) days after Escrow Agent’s receipt written request from Seller and/or Buyer, Escrow Agent shall provide evidc to Seller and/or Buyer of its compliance with the provisions of this Section ARTICLE 4 3.8 3.9 Conditions Precedent 4.1 Title Report. (a) Approval: Buyer’s written approval of a preliminary title report to t issued by First American Title Insurance Company, as well as the underlying documents referred to therein, within ten (10) days of tk receipt, shall be a condition precedent to consummation of this sa AGG95026.F4 November 13,1995 5 W rn 4.2 Entitlements. Seller shall provide Buyer with copies of all governmental permits, approvals other entitlements issued in connection with the subdivision, development 01 improvement of the Property and the terms and conditions thereof, excludin! those issued by the City of Carlsbad, for approval by Buyer. Approval . If Buyer shall fail to approve or disapprove the matters referred tc Paragraph 4.1 and 4.2 hereof, in writing, ten (10) days after receipt thereof, i shall be conclusively presumed that Buyer has approved said matters. If BL shall disapprove or conditionally approve the PR, or any part thereof, or any the items referred to in Paragraphs 4.1 or 4.2 hereof, then for a period of ter (10) days after written notice by Buyer to Seller of said disapproval or conditional approval, Seller shall have the right to cure said disapproval or conditionally approved items, prior to the close of escrow, or elect not to cu said disapproved items. Notice of Seller's written election shall be given to Buyer. If Seller shall elect not to cure all of said items, then for a period of tc days after said written notice to Buyer, Buyer shall have the right to either accept title to the Property subject to said items or to terminate this transact Buyer shall give written notice to Seller of Buyer's election within ten days ai the expiration of the time in which Seller shall have been required to respon to Buyer's notice of disapproval or conditional approval. If Buyer shall fail tc give Seller such written notice of Buyer's election within the time specified, i. shall be conclusively presumed that Buyer has elected to terminate this transaction. If Buyer elects to terminate this transaction, thereafter neither Buyer nor Seller shall have any further liability hereunder, (except for any liabilities of Buyer pursuant to Section 6.1) and Buyer shall be entitled to thc prompt return of all funds deposited by Buyer with Escrow Holder, less only share of escrow cancellation fees and costs and title company charges Board Approval. Consummation of this sale is contingent upon final budge approval by all member agencies of the Encina Wastewater Authority. If thi! condition is not satisfied as to each and every member agency, Buyer may terminate this transaction by giving Seller written notice and Buyer shall be entitled to the prompt return of all funds deposited by Buyer with Escrow Holder, less only its share of escrow cancellation fees and costs and title company charges. Title Insurance. As of Close of Escrow, First American Title Insurance Company shall issue, or be committed to issue, at Seller's sole cost, a standard form ALTA owner's title insurance policy ("Title Policy") I insuring Buyer's title to the Property in the amount of the Purchase Price. (a) 4.3 4.4 4.5 Buyer and Seller agree that monetary encumbrances are disapprove AGG9502E.F4 November 13, 1995 6 m m and that Seller shall have the obligation, at Seller's expense, to satisfi and remove monetary encumbrances at or before closing date. Seller warrants that, except as disclosed in the Preliminary Title Repo delivered to Buyer, to Seller's "Actual Knowledge", as defined below, property is not within any special assessment districts. At Closing, Seller agrees to convey good and marketable title by grar deed free and clear of all liens and encumbrances of record or knowi Seller other than current property taxes not yet due and exceptions contained in the PR not objected to by Buyer ("Permitted Exceptions" Extended Title Coverage. Buyer has elected to obtain ALTA extended title insurance coverage, subject to the following conditions: Buyer shall, in a timely manner, (1) order any required survey, (2) deliver th survey to the Title Insurer for review, (3) order an inspection of the Property the Title Insurer, (4) order the Title Insurer to update the PR if necessary to identify additional exceptions (if any) resulting from Title Insurer's review of survey and inspection, and (5) review and approve any such additional exceptions prior to the Closing Date described in Section 3.3. Grant Deed. Prior to Close of Escrow, Seller shall execute, acknowledge ai deliver the Grant Deed to Escrow. (b) (c) 4.6 4.7 ARTICLE 5 Representations, Warranties 5.1 Condition of the Property (a) Buver's Due Diligence Review. Buyer acknowledges that, prior to the Effective Date, Buyer has reviewed and approved the following aspec of the Property, after such examination, inspection, investigation and review as Buyer considered it appropriate to undertake, at Buyer's s expense. (1) All applicable zoning, subdivision, land use, environmental, building and other governmental laws, ordinances, rules, regulations and requirements applicable to the Property. The physical and environmental conditions of the Property, including hydrology, soils, geotechnical and hazardous mater conditions; and (2) AGG9502KF4 November 13,1995 7 m rn (3) All matters relating to the condition, value, fitness, or suitability for its intended use. (b) Disclaimers. Except as expressly provided in Section 5.3: (1) Seller makes no representation or warranty as to any operative proposed governmental laws, regulations and requirements (including but not limited to zoning, environmental and land u5 laws, regulations and requirements) to which the Property ma) subject. Buyer acknowledges that the purchase of the Property will be the basis of Buyer's own investigation of: (i) the physical conditions of the Property, including the soils, subsurface and environmental conditions thereof; (ii) the operative or propose governmental laws, regulations and requirements affecting or applicable to the Property and the terms and conditions of all applicable governmental permits and approvals; and (iii) the economic value, marketability, merchantability, feasibility, suitability or use of the Properly. Except for matters arising from or attributable to a material fin of which Seller has Actual Knowledge and not disclosed to BI and subject to satisfaction or waiver of the conditions precedi to Close of Escrow, Buyer will acquire the Property in an "AS condition. Buyer assumes the risk that adverse physical conditions or the applicability and effect of such government; laws, regulations and requirements may not have been revea by Buyer's investigation. As used herein, "material" shall mea substantive findings that would influence or tend to influence Buyer's decision to acquire the Property. Seller shall have no obligation to correct any conditions or a1 defects discovered by Buyer during the course of its investic or thereafter. If Buyer discovers, subsequent to the Effective hereof but prior to Close of Escrow, a material defect in the Property which could not have been discovered by a reason and diligent investigation undertaken by Buyer prior to the Effective Date hereof, then Buyer shall have the right to term this Agreement and the Escrow by delivering written notice t Seller and Escrow Agent, unless Seller agrees in writing to c such default. In the event of such termination, neither party : have any further rights or obligations hereunder (except for : liabilities of Buyer pursuant to Section 6.1). (2) (3) (4) AGGQ5028.F4 November 13. 1905 8 m m (c) Hazardous Materials. If Buyer should discover during its investigation the Property any Hazardous Material or other environmental condition subject to legal requirements for corrective or remedial action, Buyer shall, within a reasonable time, notify Seller in writing of the same. If such discovery is made after the Close of Escrow, Seller shall have n liability to Buyer arising out of such discovery unless Buyer can estat that Seller had Actual Knowledge that Hazardous Material was preser on the Property prior to the Close of Escrow, and that Seller failed to disclose the existence of such Hazardous Material to Buyer. Acknowledqements The term "Actual Knowledge" of Seller, or simila phrases as used in this Agreement, means the actual present knowlc of Joseph Sweeney, Investment Manager of Developmental Properti Account and William J. Thormahlen, General Partner of Avenida Enci Associates, without any duty of investigation or inquiry of any kind 01 nature whatsoever other than to obtain: (i) the Preliminary Site Assessment dated March 21 , 1994, prepared by GeoCon Environme Consultants, Inc. ("GeoCon") , (ii) the Limited Soils Sampling Report dated May 9, 1995 prepared by GeoCon, and (iii) the Risk Assessm Report dated April 21. 1995 prepared by GeoCon (collectively, the "Environmental Reports"). Seller acknowledges Actual Knowledge of above referenced reports and Buyer acknowledges receipt of above referenced reports. (d) 5.2 Buyer's Representations and Warranties. Buyer agrees, represents and warrants, as of the date of execution of this Agreement and as of Close of Escrow, as follows: (a) Buyer is a municipal corporation, duly formed, existing and in good standing under the laws of the State of California; Buyer has full legal right, power and authority to execute and fully perform its obligations under this Agreement pursuant to its govern instruments and state and local laws, with prior final budget appro\ all member agencies of the Encina Wastewater Authority. Buyer acknowledges that one of the general partners of Seller is Nc England Mutual Life Insurance Company, a Massachusetts corpora on behalf of its Developmental Properties Account ("DPA"), the ass which have been deemed to be "plan assets", as that term is defin under ERISA. Buyer hereby represents and warrants for the benefil Seller that Buyer is familiar with ERISA and that Buyer is not a "par interest" as defined in ERISA, in respect to any relevant plan. Buye indemnify Seller against all claims, demands, liabilities, costs and (b) (c) AGG95026.F4 November 13, 1995 9 '1) m expenses incurred by Seller if this transaction is determined to be a "prohibited transaction" under ERISA as a result of Buyer being a pan in interest in respect to any plan. 5.3 Seller's Representations and Warranties. Seller agrees, represents and warrants, as of the date of execution of this Agreement and as of Close of Escrow, as follows: (a) Authoritv. Seller is a California General Partnership duly formed, existii and in good standing under the laws of the State of California; Seller full legal right, power and authority to execute and fully perform its obligations under this Agreement pursuant to its governing instrumen without the need for any further action; and the persons executing thi Agreement and other documents required hereunder on behalf of Sel are the duly designated agents of Seller and are authorized to do so. Non-Foreign Affidavit- Seller is not a foreign person and is a United States person as defined in Section 7701 (a)(30) of the Internal Rever Code, as amended ("Code"). Prior to Close of Escrow, Seller shall deliver to Escrow (with a copy to Buyer) an affidavit, executed and sworn to under penalty of perjury, substantially in the form attached hereto as Exhibit "C". Seller is a General Partnership qualified to do business and maintains an office in the State of California. Seller will instruct Escrow Agent to disburse any proceeds due to Seller upon 1 Close of Escrow to an address outside the boundaries of the United States, and will not use a financial intermediary as defined in Califori Revenue and Taxation Code Section 18805(d) for the receipt of proceeds from this transaction. Hazardous Materials. Seller has no Actual Knowledge, except as otherwise disclosed to Buyer in writing, of any release of any Hazarc Materials onto the Property. To Seller's Actual Knowledge, no sum17 citation, directive, order or other communication has been issued tc Seller arising out of or relating to the presence of Hazardous Materi on the Property. Bankruptcv. Seller has not: (1) made a general assignment for the benefit of creditors; (2) filed any voluntary petition in bankruptcy or subject to the filing of an involuntary petition by Seller's creditors; ( had a receiver appointed to take possession of all or substantially i Seller's assets; (4) suffered the attachment or other judicial seizure or substantially all of Seller's assets; (5) admitted in writing its inab pay its debts as they come due; or (6) made an offer of settlement extension or composition to its creditors generally. (b) (c) (d) AGG~502e.F4 November 13. 10Q5 10 m m 5.4 Real Estate Commissions. Seller agrees to pay any and all commissions d to brokers that have been employed by Seller or are entitled to a commissic or compensation in connection with this transaction as a result of the action agreement of the Seller. Seller agrees to indemnify, hold harmless, protect i defend the Buyer from and against any obligation or liability to pay any SUC commission or compensation arising from the act or agreement of the Selle Buyer is not represented by a broker in this transaction. Survival of Warranties and Obligations. The representations and warrantir given by Buyer and Seller in this Article 5, and all obligations under this Agreement to be performed after Close of Escrow, shall survive the Close c Escrow and delivery of the Grant Deed to Buyer. Limitation on Seller’s Liability. Buyer agrees that any recovery against SE for the breach for Seller’s obligations hereunder shall be strictly limited to tt Purchase Price received by Seller from the sale of the Property, and such recovery shall further be limited to Buyer’s actual damages. In no event sh: Buyer be entitled to seek or obtain any other damages of any kind, includi without limitation, consequential, indirect, or punitive damages. Subject to limitations set forth in this Section 5.6, Buyer shall be entitled to seek or attempt to obtain any recovery or judgment against the Seller’s assets or against any of the assets of Seller’s partners, provided, that, to the extent 1 New England Mutual Life Insurance Company, a partner of Seller, shall ha\ any liability under this Agreement, such liability shall be satisfied solely fro1 the assets and properties of its Development Properties Account, a separz investment account established and maintained by New England Mutual L Insurance Company under applicable law, and in no event shall recourse had to any assets or properties held by New England Mutual Life lnsuranc Company in its general investment or in any of its other separate investmc accounts, or to any officers, directors, policyholders or employees of New England Mutual Life Insurance Company or its affiliates. 5.5 5.6 ARTICLE 6 Additional Obligations 6.1 Buyer’s Access to Property. (a) Terms of Entw. Seller has allowed prior to the Effective Date, and ~ shall continue to allow between the Effective Date and the Close o Escrow or earlier termination of this Agreement, reasonable access the Property by Buyer (and its employees, agents, representatives contractors), during normal business hours, upon reasonable notic Seller, in order to inspect, conduct reasonable soils tests, environr AGG95026.F4 November 13, lsS5 11 i w assessment work, engineering studies and surveys and other investigation required by Buyer, at Buyer’s sole cost. In connection wii any such entry, Buyer: (1) shall perform all work in a safe manner; (2) shall not permit any hazardous condition to remain on the Property; (: shall repair any damage or disturbance to the Property; (4) shall keep the Property free and clear of all mechanics’ or materialmen’s liens arising out of Buyer’s activities; and (5) shall comply with all Environmental Laws, all other governmental laws, ordinances and requirements, and the conditions of all permits applicable to such wu Invasive Testinq Notwithstanding the foregoing, if Buyer wishes to engage in a Phase I1 environmental study or any other environmental other testing or sampling of any kind with respect to soils or groundwater or other studies which would require test boring of or ot intrusions into the Property or which testing would otherwise damage disturb any portion of the Property, Buyer shall obtain Seller’s prior consent thereto, which consent may be withheld in Seller’s sole discretion. To the extent Seller approves any such testing, Buyer sha be responsible for, and shall dispose of, all such test samples in accordance with applicable law at no cost or liability to Seller. (See attached letter submitted by Seller to Buyer dated November 1, 1995 and the reply submitted by Buyer to Seller dated November 2, 1995 Indemnity. Buyer shall indemnify protect, hold harmless and defend Seller (and its partners, officers, directors, shareholders, employees, agents, contractors, successors and assigns) and Seller‘s property f and against any and all liabilities, liens, claims, damages, costs, expenses, suits or judgments (including attorneys’ fees and court c( for labor or services performed or materials furnished to or for Buye for personal injury, death or property damage, arising out of entry u the Property, or any adjacent land owned by any affiliate of Seller, t: Buyer or its employees, agents, representatives or contractors, or ai breach of the provisions of this Section 6.1 by Buyer. (b) (c) 6.2 Damage or Destruction. If, prior to the Closing Date any part of the Prop damaged or destroyed by fire or other casualty, Seller shall promptly give notice thereof to Buyer. If such casualty materially, adversely affects the v: of the Property or its suitability for Buyer’s intended purpose, as reasonab determined by Buyer, Buyer may elect, by delivering written notice to Sell( within ten (10) days after receipt of Seller‘s notice, to terminate this Agree1 and the Escrow, unless Seller agrees, within five (5) days after Seller’s ra of such termination notice, to cure the damage on or before the Closing I In the event of such termination, neither party shall have any further rights obligations hereunder (except for any liabilities of Buyer pursuant to Secti AGG95028.F4 November 13, 1995 12 i m 6.1). If Buyer does not deliver written notice of termination within said 1 0-da] period, then the parties shall continue performance under this Agreement ar the Escrow, without modification of any of its terms and without any reductic in the Purchase Price. Seller shall have no obligation to repair or restore the Property and no liabilities or obligations to Buyer, and Buyer shall have no claims for damages or other remedies against Seller, as a result of such damage or destruction of the Property. Condemnation. If, prior to the Closing Date, Seller receives actual notice tt- condemnation or. eminent domain action is filed against the Property or any part thereof (or that a taking is pending or contemplated), but excluding an condemnation or taking by Buyer, Seller shall promptly give notice thereof 1 Buyer. If such taking is of all or a significant portion of the Property, Buyer elect, by delivering written notice to Seller within ten (10) days after receipt Seller's notice, to terminate this Agreement and the Escrow. In the event of such termination, neither patty shall have any further rights or obligations hereunder (except for any liabilities of Buyer pursuant to Section 6.1). For purposes of this Section 6.4, the taking of a "significant portion" means a t: such that the value of the Property is materially impaired or reduced. If Buy does not deliver written notice of termination within said 10-day period, or i other than a significant portion of the Property as described above is taker then: (a) the parties shall continue performance under this Agreement and Escrow, without modification of any of its terms and without any reduction the Purchase Price; and (b) Seller shall assign and deliver to Buyer, subjec and effective upon the Closing Date, all of Seller's interest in the award for such taking. Buyer shall have no other remedies against Seller as a result such condemnation except as set forth in this Section. Possession. Possession of the Property shall be delivered by Seller to Bu on the Closing Date after recordation of the Grant Deed. All risk of loss an damage to the Property from whatever source shall be the sole responsib Seller prior to Close of Escrow. 6.3 6.4 ARTICLE 7 General Provisions 7.1 Assignment. (a) By Buver. Prior to the Close of Escrow, Buyer may assign its rights delegate its duties hereunder to the Encina Wastewater Authority o of its member agencies with the prior written consent of Seller, whi consent may not be unreasonably withheld. Any permitted assigne shall specifically assume all obligations, representations and warrai AGGQ5028.F4 November 13, lQD5 13 w rn of Buyer under this Agreement and under any additional escrow instructions executed pursuant hereto, shall be bound by all approval2 previously given (or deemed given) by Buyer hereunder, and shall provide a warranty of authority comparable to Section 5.2. Subject to foregoing, the terms, covenants and conditions herein contained shall be binding upon and inure to the benefit of the successors and assig of Seller and Buyer. 7.2 Attorneys' Fees. If either party commences legal proceedings for any relief against the other party arising out of this Agreement, the losing party shall F the prevailing party's legal costs and expenses, including, but not limited to reasonable attorneys' fees and costs as determined by the court. Computation of Time Periods. All periods of time referred to in this Agreement shall include all Saturdays, Sundays and state or national holida unless the period of time specifies business days. The term "business days' means days other than Saturdays, Sundays and state or national holidays. the date or last date to perform any act or give any notice or approval shall on a Saturday, Sunday or state or national holiday such act or notice shall deemed to have been timely performed or given if performed or given on tl next business day. Conflict of Interest. Conflicts of interest relating to this Agreement are stric prohibited. Except as othetwise expressly provided herein, neither Buyer nc any director, employee or agent of Buyer shall give to or receive from any director, employee or agent of Seller any gift, entertainment or other favor ( significant value, or any commission, fee or rebate. Likewise, neither Buyer any director, employee or agent of Buyer shall enter into any business relationship with any director, employee or agent of Seller (or of any affiliat Seller), unless such person is acting for and on behalf of Seller, without pr written notification thereof to Seller. Construction. The captions and paragraph headings used in this Agreem are inserted for convenience of reference only and are not intended to def limit or affect the construction or interpretation of any term or provision hei This Agreement shall not be construed as if it had been prepared by only Buyer or Seller, but rather as if both Buyer and Seller had prepared the sa Counterparts. This Agreement or any escrow instructions pursuant to this Agreement may be executed in multiple copies, each of which shall be deemed an original, but all of which shall constitute one Agreement after party has signed such a counterpart. Entire Agreement. This Agreement, together with all exhibits attached he 7.3 7.4 7.5 7.6 7.7 AGG95026.F4 November 13, 1995 14 'II m and other agreements expressly referred to herein, constitutes the entire agreement between the parties with respect to the purchase and sale of the Property. All prior or contemporaneous agreements, understandings, representations, warranties and statements, oral or written, are superseded. subsequent agreement, representation, or promise made by either party hereto, or by or to an employee, officer, agent or representative of either pa shall be of any effect unless it is in writing and executed by the party to be bound thereby. This Agreement supersedes the offer to purchase submittec Buyer to Seller dated September 1, 1995 and the counteroffer submitted by Seller to Buyer dated September 12, 1995. Exhibits. All exhibits referred to herein are attached hereto and incorporate herein by reference. Further Assurances. The parties agree to perform such further acts and tc execute and deliver such additional documents and instruments as may be reasonably required in order to carry out the provisions of this Agreement i the intentions of the parties. 7.10 Gender, Number. As used herein, the singular shall include the plural and masculine shall include the feminine, wherever the context so requires. Governing Law. This Agreement shall be governed, interpreted, construec enforced in accordance with the laws of the State of California. 7.12 Modification, Waiver. No modification, waiver, amendment or discharge ( Agreement shall be valid unless the same is in writing and signed by both Buyer and Seller. The escrow instructions shall be considered a part of thi Agreement, and no provision in said escrow instructions shall supersede c contradict the provisions of this Agreement, unless the parties agree in wri to such change. The exercise of any remedy provided by the provisions o Agreement or at law or in equity shall not exclude any other remedy, unle is expressly excluded. 7.13 Mutual Covenants. In consideration of the mutual promises of the parties hereto, and of the execution of this Agreement by the parties, each party hereby agrees in good faith to utilize commercially reasonable efforts in connection with the performance of all obligations and satisfaction of conditions hereunder, and in connection with the taking of any and all ac necessary with respect to any investigation, review, or other procedure re in order to enable such party to grant or withhold its consent or approval provided for herein, it being the intention of each party that such covenar good faith and utilization of commercially reasonable efforts shall be deet sufficient and valid consideration for the promises of each party hereundc 7.8 7.9 7.1 1 AGG95026.F4 November 13. 1995 15 m m Absent an express statement to the contrary, wherever any consent or appro of a party is required hereunder, such party shall not unreasonably withhold delay such consent or approval. 7.14 No Other Inducement. The making, execution and delivery of this Agreeme by the parties hereto has been induced by no representations, statements, warranties or agreements other than those expressed herein. 7.15 Notice. Notice to either party shall be in writing and either personally deliver or sent by an overnight courier service such as Airborne, Federal Express 01 Purolator, or by first-class mail, registered or certified mail, postage prepaid return receipt requested, addressed to the party to be notified at the addres specified herein. Any such notice shall be deemed received on the date of receipt if personally delivered or sent by overnight courier to the party (or SI party’s authorized representative) or three (3) business days after deposit ir; U.S. Mail, as the case may be. Sammis Carlsbad Associates, a California General Partnership Attention: Joe Sweeney 399 Boylston Street Boston, Massachusetts 021 16 SELLER: With a copy to: Bill Thormahlen 1 8802 Bard een Avenue Irvine, CA 92714 Allen, Matkins, Gamble & Mallory Attorneys at Law Orange County Office Attention: Richard E. Stinehart 18400 Von Karman, Fourth Floor Irvine, CA 9271 5-1 597 BUYER: The City of Carlsbad Attn: Frank Mannen, Assistant City Manager 1200 Carlsbad Village Drive Carlsbad CA 92008 Either party may change its address for notice by delivering written notice to the party as provided herein. Buyer and Seller, and their respective counsel, hereby AGG95026F4 November 13,1995 16 m 8 that notices from Buyer or Seller may be given by their respective counsel and thai for the purpose of giving such notice, either party's counsel may communicate directly with the other party. 7.16 Severability. If any term, provision, covenant or condition of this Agreemen held to be invalid, void or otherwise unenforceable, to any extent, by any cc of competent jurisdiction, the remainder of this Agreement shall not be affec thereby, and each term, provision, covenant or condition of this Agreement shall be valid and enforceable to the fullest extent permitted by law. 7.17 Successors. Subject to the restriction on assignment contained herein, all terms of this Agreement shall be binding upon, inure to the benefit of, and enforceable by the parties hereto and their respective heirs, legal representatives, successors, and assigns. 7.18 Time. Time is of the essence of each provision of this Agreement includins without limitation all time deadlines for satisfying conditions and Close of Escrow. 1031 Exchange. Buyer acknowledges that Seller or certain partners of Sell (each such person or entity hereinafter referred to as an "Exchanging Partr may engage in a tax deferred exchange ("Exchange") pursuant to the Sect 1031 of the Internal Revenue Code. To effect an Exchange, Seller may distribute undivided interests in the Property to an Exchanging Party, and/( the Exchanging Partner may assign its rights in, and delegate its duties ut- this Agreement, so long as it remains obligated under this Agreement, as ' as transfer its interests in the Property to any exchange accommodator selected by the Exchanging Party. As an accommodation to the Exchang Party, Buyer agrees to cooperate with Exchanging Party in connection wit1 Exchange, including the execution of documents therefor, provided that tt- following terms and conditions are satisfied: 7.19 (a) There shall be no liability to Buyer, Buyer shall have no oblis to take title to any property in connection with the Exchange Buyer shall in no way be obligated to pay any escrow costs, brokerage commissions, title charges, survey costs, recordir costs or other charges incurred with respect to any exchang property and/or an Exchange; In no way shall the Close of Escrow be contingent or othetv be subject to the consummation to the Exchange, Escrow s timely close in connection with the terms of this Agreement notwithstanding any failure, for any reason, of the parties to (b) (c) AGG9502B.F4 November 13,1995 17 i rn Exchange to effect the same; and Buyer shall not be required to make any representation or warranties nor assume any obligations, or spend any sum or incur any personal liability whatsoever in connection with an Exchange. (d) [Remainder of this Page Intentionally Left Blank.] AGGQ5026 F4 November 13, 1995 18 rn rn [Signature Page Attached to Purchase and Sale Agreement and Escrow Instruction IN WITNESS WHEREOF, the parties have executed and delivered this Agreement to be effective as of the date first above written: Sel I er: SAMMIS CARLSBAD ASSOCIATES, a California General Partnership By: New England Mutual Life Insurance Company, a Massachusetts Corporati Partner on behalf of its Developmenta Properties Account By: Copley Real Estate Advisors, In1 Massachusetts Corporation, its asset manager and advisor thereunder duly authorized. By: Its: By: Its: By: Avenida Encinas Associates, a California General Partnership, Partner By: Its: General Partner By: Its: General Partner Buyer: THE CITY OF CARLSBAD, a MuniciF Corporation By: Its: By: Its: AGG95026.F4 November 13, 1995 19 W W CONSENT OF ESCROW AGENT SELLER: Sammis Carlsbad Associates A California General Partnership BUYER: The City of Carlsbad A Municipal Corporation ESCROW NO.: 1 124540-LG The undersigned ("Escrow Agent") hereby: (1) acknowledges delivery of a Purchs and Sale Agreement and Escrow Instructions ("Agreement") dated $ 1995 between the Seller and Buyer identified above, on I which shall constitute the "Opening of Escrow" pursuant to Section 3.1 of the Agreement; and (2) agrees to act as the Escrow Agent in accordance with the provisions of the Agreement. ESCROW AGENT: FIRST AMERICAN TITLE INSURANCE COM By: Escrow Officer AGG95026.F4 November 13, 1995 20