HomeMy WebLinkAbout1996-08-06; City Council; 13758; Poinsettia Hill/Villa Loma RV Storage> .
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CITY OF CARLSBAD -AGENDA BILL
AB# 13, qse TITLE: ,
MTG. 8-G -4 b POINSETTIA HILL/VILLA LOMA GRANT OF EASEMENT, RV STORAGE AGREEMENT AND PROPERTY MANAGEMENT AGREEMENT
DEPT. PLN @ CT 93-03 & SDP 93-06 CITY MGRa
RECOMMENDED ACTION:
That Council ADOPT Resolution No. %J-&@ 0 APPROVING the Grant of Easement,
Recreational Vehicle Storage Agreement and Property Management Agreement relating to
the Poinsettia Hill and Villa Loma development projects. I ‘._
ITEM EXPLANATION: I L\
On March 22, 1994, the City Council approved the Poinsettia Hill subdivision in the southwest
quadrant. The 160 unit multifamily condominium project included a four acre triangular parcel
in the northeast corner, across the SDG&E easement and adjacent to the Villa Loma
apartments (see attached map). The parcel was to include Recreational Vehicle (RV)
storage, natural open space and, potentially, a 24 unit affordable housing project. The access
route for the RV storage and potential housing lead from the main project site and across the
SDG&E easement.
After review of the project by the California Coastal Commission and California Department of
Fish and Game, the use of the triangular parcel was greatly diminished. In order to enhance
the wildlife usability of the open space, the potential for housing was eliminated, as was the
ability to cross the SDG&E easement. While the RV storage site was allowed to remain, the
only way to access it was through the Villa Loma apartment site. After discussions between
the two property owners, an agreement was reached that resolved the access issue and
provided a, benefit to the Villa Loma apartments.
In exchange for the access rights, the Poinsettia Hill property owners will construct a
recreation area adjacent to their RV storage area. The ownership of this recreation area will
then be transferred to the City and incorporated into the Villa Loma development. The RV
site will be maintained by Villa Loma, but the costs will be borne by Poinsettia Hill. The
agreements attached to City Council Resolution No. 96-269 will initiate this
arrangement. The Grant of Easement allows Poinsettia Hill to take access through Villa
Loma, the Recreational Vehicle Storage Agreement describes the construction timing and
responsibilities and the Property Management Agreement details the maintenance
responsibilities.
FISCAL IMPACT:
Since the City will acquire the recreation area property at no cost, and all maintenance costs
for the RV storage will be provided by the Poinsettia Hill project, the only increase in fixed
costs would be for maintenance of the recreation area. The access easement document
indemnifies the City of any claims arising from the use of the easement. Therefore no
significant fiscal impacts are expected as a reault*of adopting the agreements.
EXHIBITS:
1. City Council Resolution No. vh -84 p
2. Location Map
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RESOLUTION NO. 96-269
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA, APPROVING A GRANT OF
EASEMENT, RV STORAGE AGREEMENT AND PROPERTY
MANAGEMENT AGREEMENT BETWEEN THE POINSETTIA
HILL SUBDIVISION AND THE VILLA LOMA
APARTMENTS, GENERALLY LOCATED NORTH OF
CASSIA ROAD, BETWEEN EL CAMINO REAL AND
AMBROSIA LANE, IN THE SOUTHWEST QUADRANT.
CASE NAME: POINSETTIA HILL/VILLA LOMA RV
STORAGE AGREEMENT
WHEREAS, the City of Carlsbad is the property owner for the Villa Loma
Apartments; and
WHEREAS, the owner of the Poinsettia Hill subdivision requires access across
the Villa Loma property for their Recreational Vehicle Storage area.
NOW, THEREFORE, BE IT HEREBY RESOLED by the. City Council of the
City of Carlsbad as follows:
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That the above recitations are true and correct.
That the City Council APPROVES City Council Resolution No. 96-269
APPROVING the Grant of Easement, RV Storage Agreement and Propert):
Management Agreement and authorizing the mayor to execute said agreements,
attached hereto.
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PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council
of the City of Carlsbad, California, on the 6th dayof August , 1996, by the
following vote, to wit:
AYES: Council Members Lewis, Nygaard, Kulchin and Hall
NOES: None
ABSENT: Council Member Finnila
&Ad&
CLAUDE A. LEWIS, Mayor
ATTEST:
(SEW
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:
August 20, 1996
County Recorder P.O. Box 1750 San Diego, CA 92112-4147
Enclosed for recordation are the following described
documents:
Grant of Easement (Access, Ingress, and Egress) between Carlsbad I and The City of Carlsbad APN: 215-020-01 and 215-020-15
Recreational Vehicle Storage Agreement between Carlsbad I, Poinsettia Hill Limited,
The City of Carlsbad, and La Terraza Assoc. APN: 215-020-01 and 215-020-15
Also enclosed are instructions regarding how the City is to be billed for the recording fees for these documents.
Thank you for your assistance in this matter.
Encs.
1200 Carlsbad Village Drive - Carlsbad, California 92008-l 989 - (619) 434-2808
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RECORDING REQUESTED BY AND WHEN RECORDED, MAIL TO:
CITY CLERK CITY DF XARLSBAD 1200 CARLSBAD VILLAGE DRIVE CARLSBAD CA 92008-1989
‘-‘-I # 1?96-0426826 22-~~~-1496 iia2 fin
OFFICIAL RECORDS 13 8 () SCIN DIEGO COUHTY RECORDER’S OFFICE COUH;;E;ECORDER : 55.00
* pace a ove ’ ’
APN 215-020-01 APN 215-020-15
GRANT OF EASEMENT (Access, Ingress and Egress)
THIS GRANT OF EASEMENT is made as of May 3, 1996 by and between CARLSBAD I, a California general partnership (or any successor owner of the Carlsbad I Property, as defined below, "Carlsbad I"), and the CITY OF CARLSBAD, a municipal corporation ("Citylt) .
RECITALS:
A. Carlsbad I is the oyner of that certain real property in the City of Carlsbad, County of San Diego, State of California (the "Carlsbad I Property"), legally described in the attached Exhibit "A" and depicted in the attached Exhibit 'A-1".
B. City is the owner of that certain real property in the City of Carlsbad, County of San Diego, State of California (the 'City Property"), legally described in the attached Exhibit "B" and depicted in the attached Exhibit "B-1".
La Terraza Associates, ("La krrazaff ) a California limited partnership has ground leased the City Property pursuant to that certain Ground Lease dated October 28, 1994, by and between the City, as lessor, and La Terraza, as lessee (the "Ground Lease"). Pursuant to the Ground Lease, La Terraza is developing an affordable housing project on the City Property (the "La Terraza Project").
D. A plat showing the geographical relationship of the aforementioned properties (the "Plat") is attached hereto as Exhibit IIC".
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E. As a condition to the development of a residential housing project on the Carlsbad I Property (the "Carlsbad Project"), the City has required the construction of a recreational vehicle storage area (the "R.V. Site") and recreation facilities adjacent thereto (the ItRecreation Area"), on a portion of the Carlsbad I Property, as identified on the Plat. The parties hereto desire in this Grant of Easement to grant a non-exclusive easement for access, ingress and egress to the R.V. Site over the City Property and grant a temporary construction easement for the construction of the R.V. Site and Recreation Area (collectively, the "Site Improvementslt).
NOW, THEREFORE, incorporating the foregoing recitals of fact and in consideration of the mutual covenants contained herein, the parties hereto agree as follows:
1. Grant of Easement. For valuable consideration, receipt of which is hereby acknowledged, the City hereby grants to Carlsbad I a non-exclusive easement for pedestrian and vehicular access, ingress and egress ("Easementl') in the location legally described in the attached Exhibit 'ID" and depicted in the attached Exhibit flD-llt (the "Easement Area").
2. Use of Easement. Carlsbad I shall be entitled to begin using the Easement after fifteen (15) days prior written notice from Carlsbad I to City and La Terraza of the completion of construction of the Site Improvements. The use of the Easement shall be subject to the terms and provisions of that certain Recreational Vehicle Storage Agreement of even date herewith (the "R-V. Agreement") and the property management agreement attached as an exhibit to the R.V. Agreement, which provide among other things, that the Easement may be terminated in the event of a default under the property management agreement or the R.V. Agreement.
3. Temporarv Construction Easement. City hereby grants to Carlsbad I, effective upon at least fifteen (15) days' written notice prior to commencement of construction of the Site Improvements, an easement for temporary construction purposes over and across portions of the City Property as reasonably necessary for the construction of the Site Improvements. Carlsbad I shall use reasonable efforts to minimize interference with the La Terazza Project caused by the construction of the Site Improvements, shall cause the construction area to be kept in a safe and clean manner and shall limit the hours of construction from 7:00 a.m. to 5:00 p.m. on Mondays through Fridays as more fully set forth in the R.V. Agreement. Upon completion of the Site Improvements, or the expiration of one hundred twenty (120) days from the commencement of construction, whichever first occurs, the foregoing temporary construction easement shall automatically terminate without further notice or the need for any instrument to be recorded by the parties hereto.
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4. Maintenance of Easement Area. The City agrees to maintain, or cause to maintain the Easement Area as an improved paved road.
5. Character of Easement. The Easement granted herein is appurtenant to and for the benefit of the Carlsbad I Property and is a burden upon the City Property. The Easement shall in no way be construed as an easement in gross to Carlsbad I or to any other person or entity. Nothing contained herein shall be construed to be a gift or a dedication of any portion of the City Property to the general public or for any public purpose whatsoever.
6. Insurance. On or before Carlsbad I begins to use the Easement, Carlsbad I shall, at its expense, maintain public liability insurance in an amount not less than Two Million Dollars ($2,OOO,OOO.O0) over the Easement Area, and shall name City, La Terraza and the holder of the first deed of trust on the City Property ("First Mortgageett), as additional insureds thereon. Such policy shall provide that not less than thirty (30) days written notice shall be given to City, La Terraza and First Mortgagee prior to the cancellation of such policy. Upon request by any additional insured, Carlsbad I shall provide a certificate of insurance evidencing the insurance coverage required herein.
7. Indemnitv. Carlsbad I shall indemnify, defend and hold City, La Terraza, First Mortgagee and any successors-in-interest to the La Terraza Project harmless from and against all claims, damages and costs (including but not limited to those arising out of any injury or death to any person or persons or damage to any property of any kind whatsoever and to whomsoever belonging, including City, La Terraza, First Mortgagee and any successors-in- interest, and including attorneys' fees) arising out of or in connection with the use by Carlsbad I and its permitted invitees of the Easement; except to the extent caused by the gross negligence, willful misconduct, fraudulent or criminal acts of City, La Terraza, First Mortgagee or their successors, or their respective agents, contractors, employees or invitees.
8. Default. Any default by Carlsbad I in the performance of the terms of this Grant of Easement shall constitute a default hereunder, and City and La Terraza shall have the rights and remedies afforded them pursuant to the terms of Article 5 of the R.V. Agreement.
9. Bindinq Covenants, Successors. The grants, covenants, conditions and restrictions contained herein shall bind and inure to the benefit of Carlsbad I and its respective heirs, personal representatives, successors, assigns and any and all successive owners of the Carlsbad I Property, shall create mutual, equitable servitudes upon the City Property, and shall, as to the owner of any portion of the City Property, its successors and assigns, operate as covenants running with the land for the benefit of the Carlsbad I Property.
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10. Modifications. This Grant of Easement may not be amended ' otherwise modified, except by an agreement in writing signed by 1 parties hereto. No such amendments or modifications shall have any force and effect whatsoever unless and until they are written and executed in such a manner.
11. Recordation of Easement. This Grant of Easement shall be recorded in the Office of the Recorder of the County of San Diego and shall serve as notice to all successive owners of the City
Property that such property shall be restricted in the manner herein described.
IN WITNESS WHEREOF, the parties have executed this Grant of Easement as of the day and year first above written.
CARLSBAD I, a C%l>w,a;Tership
Its: -OWL Qp63tik332-
By:
Its:
"Carlsbad 1"
APPROVED AS TO FORM:
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m STATE OF CALIFORNIA )
1 COUNTY OF SAN DIEGO )
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On August 20, 1996 , before me, Karen R. Kundtz, Assistant
City Clerk, personally appeared Claude A. Lewis, Mayor
__________-_----------------------------- 9 personally known to me (er-preved-
-tbme-orttke~b*i-4-8C-fa~i~~ae~~~-esci~~ to be the person&) whose name++
is/are subscribed to the within instrument and acknowledged to me that
he/shefthey-executed the same in his/berftbeir authorized capacity@-es), and that
by his/her+t4++signature~) on the instrument the person(+), or the entity upon
behalf of which the person(sj acted, executed the instrument.
Witness my hand and official seal
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. STATE OF CALIFORNIA II )
COUNTY OF L&- /jqq ye-b 1 ss-
personally known to me (or proved to me on the basis of satisfac- tory evidence) to be the person(s) whose name(s) is/a+?esubscribed to the within instrument and acknowledged to me that he/s-he/M executed the same in his/wwir authorized capacity(h), and that by his/her/m signature(s) on the instrument the person(& or the entity upon behalf of which the person&s-j acted, executed the instrument.
Witness my hand and official seal.
STATE OF CALIFORNIA / 1 9s.
/ / /
tory evident subscribed
official seal.
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EXHIBIT "A"
PEGAL DESCRIPTION OF CARLSBAD I PROPERTY
- .- THE NORTHWEST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 23, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNARDINO MERIDIAN, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING'TO THE OFFICIAL PLAT THEREOF, AND BEING MORE PARTICULARLY DES- CRIBED BY METES AND BOUNDS AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF SAID SECTION 23, AS SHOWN
ON .RECORD OF SURVEY MAP NO. 6269, FILED IN THE OFFICE OF THE
COUNTY RECORDER OF SAN DIEGO COUNTY, SEPTEMBER 25, 1963; THENCE
ALONG THE WESTERLY LINE OF SAID SECTION 23, SOUTH 00-00'11"
EAST, 1171.08 FEET TO THE SOUTHWEST CORNER OF SAID NORTHWEST
QUARTER OF THE SOUTHWEST QUARTER: THENCE ALONG THE BOUNDARY OF
SAID NORTHWEST QUARTER OF THE SOUTHWEST QUARTER AS FOLLOWS:
NORTH 89-54'45" EAST, 1348.31 FEET TO THE SOUTHEAST CORNER OF SAID NORTHWEST QUARTER OF THE SOUTHWEST QUARTER: AND NORTH 00-00'22" WEST, 1169.91 FEET TO THE NORTHERLY LINE OF SAID SECTION 23; THENCE ALONG SAID NORTHERLY 'LINE SOUTH 89A57'43" . WEST, 1348.24 FEET TO THE POINT OF BEGINNING.
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EXHIBIT "A" TO GRANTOF EASEME*
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EXHIBIT "B"
fiBGAL DES-TION OF CITY PROPERW
That portion of parcel 2, in the City of Carlsbad, County of San Diego, State of
California, as shown at page 1188 of Parcel Maps filed in the Office of the County
Recorder of San Diego County, December 2 1, 1972, lying Westerly of the Northwbsterly
boundary of that part of County Road Survey No. 1800-l ( Known as El Camino Real )
as described in Parcel 68373-a in deed to the County of San Diego, recorded July 24,
1970 as File 130797 .
. EXHIBIT "B" TO GRANT OF EASEMENT
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EXHIBIT “D”
* LEGALD
All that portion of P&roe1 2 of Parcel. Map 1188, reaordedr December 20, 1972, as File No. 340334 of Official Records being within the City of Carl&ad, County of San Diego, State Of California, being more particularly describQd us follows: i 1
A 24.00 foot wide easement, th@.oenterline being more particularly desoribed as follows!
. Baginning at the southeast aomer of the above described Paroel 2; thence westerly along the southerly line of said Parcel 2, North 89'32f21'1 Weat, 794.47 feet (Record: North 09'32'01w West, PM 118U); thence leaving said eoutherly line, North O*27'39U1 East, 30.00 feet, to the northerly right-of-way line of Cassia Road and the TRUE POINT OF BEGINNING; thence North 0'27'39" EaE;t, 239.31 feat, to the beginning of a tangent 300.00 foot radius curve, oonoava weetexly, thence northerly along the arc of snid curve, through u osnttal' angle of 43'13'OOV1, an aro dietanoe o'f 226.28 feett thence tangent to said aurve, North 42'45'21" West, 115.35 feet, to the beginning of a tangent 200.00 foot radius curve, aoncave southwesterly, thence northwesterly along the arc of said curve, through a central angle of 46'40'4G", an arc distance of 162.94 feet! thence North 09V26'07V1 West, 24G.70 feet, to an interseation with the westerly line of the above described Parcel 2.
The side lines of said 24.00 foot &asement to be prolonged and/or shortened to- form a aontinuoua 24.00 foot wide strip, from the hortherly right-of-way line of Caasia Road to the West line of said Parcel 2,
EXHlBlT“D" ** TOGRANTOFEASEh4ENT
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CONSENT AND SUBORDINATION
GREAT WESTERN BANK, A FEDERAL SAVINGS BANK, as the beneficiary under (i) that certain Deed of Trust, Assignment of Rents and Fixture Filing dated April 29, 1996, recorded May 3, 1996, as Document No. 1996-0225796 in the Official Records of San Diego County, California with La Terraza Associates, a California Limited Partnership, as Trustor ("Leasehold Deed of Trust"), (ii) that certain Deed of Trust, Assignment of Rents and Fixture Filing dated April 29, 1996, recorded May 3, 1996, as Document No. 1996-0225797 in the Official Records of San Diego County, California with La Terraza Associates, a California limited partnership, as Trustor (the "AHP Deed of Trust"), and (iii) that certain Third Party Deed of Trust, Assignment of Rents and Fixture Filing dated April 29, 1996, recorded May 3, 1996, as Document No. 1996-0225798 in the Official Records of San Diego County, California with the City of Carlsbad, a municipal corporation, as Trustor ("Fee Deed of Trust"), (the Leasehold Deed of Trust, AHP Deed of Trust and Fee Deed of Trust shall be collectively referred to herein as "Deed of Trustt'), and as the holder of a Promissory Note or Notes secured thereby:
Does hereby consent to the execution and recordation of that certain Grant of Easement (Access, Ingress and Egress) attached hereto, and hereby covenants and agrees that said Deed of Trust, as the same may have been amended of record, shall be and the same is hereby made subject and subordinate to the Grant of Easement, with the same force and effect as if the Grant of Easement had been executed, delivered and recorded prior to the execution, delivery and recordation of said Deed of Trust.
This Consent and Subordination shall become effective upon recordation in the Official Records of San Diego County, California and shall be binding upon the undersigned, its successors and assigns.
IN WITNESS WHEREOF, this Consent and Subordination has been duly executed by the undersigned this 10th day of May, 1996.
GREAT WESTERN BANK, A FEDERAL SAVINGS BANK
By: Its:
By: Its:
f:\aPv\agm\villas\consent.sub
State of California
County of Alameda
On Mav 10, 1996 before me, Olga Oelschlaesel personally appeared Terrv R. Scarlett and Theresa M. Vasauez personally known to me (or proved to me on the basis of satisfactory evidence) to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities and that by their signature(s) on the instrument the persons, or the entity upon behalf of which the persons acted, executed the instrument.
WITNESS my hand and official seal.
(seal)
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CONSENT AND SUBORIYINATION
LA TERRAZA ASSOCIATES, a California limited partnership, as the ground tenant under that certain Ground Lease dated October 28, 1994, by and between the City of Carlsbad, as lessor, and La Terraza, as lessee (the "Ground Lease"), as evidenced by that CertainMemorandum of Lease dated October 28, 1994, and recorded on November 4, 1994, as Instrument No. 0645097, Official Re-cords of San Diego County, California:
Does hereby consent to the execution and recordation of the Grant of Easement (Access, Ingress and Egress) attached hereto, and covenants.and agrees that said Ground Lease, as the same may have been amended of record, shall be, and the same is hereby made subject and subordinate to the Grant of Easement, with the same force and effect as if said Grant of Easement has been executed, delivered and recorded prior to the execution and delivery of said Ground Lease and the recordation of the Memorandum of Lease evidencing said Ground Lease.
This Consent and Subordination shall become effective upon recordation in the Official Records of San Diego County, California and shall be binding upon the undersigned, its successors and assigns.
IN WITNESS WHEREOF, this Consent and Subordination has been duly executed by the undersigned this 21* day of 1996.
LA TERRAZA ASSOCIATES, a California limited partnership
By: BRIDGE HOUSING CORPORATION, a California non profit public benefit corporation, its neral partner
Its: /%ei ,'A ~ylrf
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. STATE OF CALIFORNIA 1 1 ss. COUNTY OF %flwbflds@ )
NotaryPublic,
--- personally known to me (e pMlt cn the bw g to be the personw whose nameda is,&ze subscribed to the within instrument and acknowledged to me that b/she/W executed the same in Ms-/her/Me+- authorized capacity@&, and that by h&s/her/w signaturem on the instrument the personm or the entity upon behalf of which the personti) acted, executed the instrument.
Witness my hand and official seal.
STATE OF CALIFORNIA 1
1 ss. COUNTY OF
On Notary Public, pers
subscribed to
and that by
[SEAL]
RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO:
CITY CLERK CITY OF CARLSBAD 1200 CARLSBAD VILLAGE DRIVE CARLSBAJI CA 92008-1989
1397
-. WC iI 1996-0426827 L- AUG-1996 11:12 AM
OfTICIAL RECORDS S&i DIE60 COUNTY RECORDER’S OFFICE .’ GREGORY SI’IITH 9 COUNTY RECORDER RF{ 55.00 FEES : 157.00
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APN 215-020-01 APN 215-020-15
RECREATIONAL VEHICLE STORAGE AGREEMENT
THIS RECREATIONAL VEHICLE STORAGE AGREEMENT ("Agreement"), dated for reference purposes as of May 3, 1996, is entered into by and among CARLSBAD I, a California general partnership ("Carlsbad I"), POINSETTIA HILL LIMITED, a California limited partnership ("Poinsettia Hill"), the CITY OF CARLSBAD, a municipal corporation ("City") and LA TERRAZA ASSOCIATES, a California limited partnership ("La Terraza").
A. Carlsbad I is the owner of that certain real property in the City of Carlsbad, County of San Diego, State of California (the "Poinsettia Hill Property"), legally described in the attached Exhibit "Al'.
B. City is the owner of that certain real property in the City of Carlsbad, County of San Diego, State of California (the "City Property"), legally described in the attached Exhibit IrB1l.
C. Pursuant to that certain Option Agreement dated February 16, 1993, by and between Carlsbad I and Poinsettia Hill, Poinsettia Hill obtained an option to purch&se the Poinsettia Hill Property. A Memorandum of Option evidencing Poinsettia Hill's right to purchase the Poinsettia Hill Property was recorded on March 16, 1993 as Instrument No. 1993-0161113 in the Official Records of San Diego County, as amended by that certain Amendment to Memorandum of Option recorded on May 1, 1995 as Instrument No. 1995-0183080 in the Official Records of San Diego.
D. For purposes of this Agreement, the term "Poinsettia Hill Property Owner" shall refer to the fee title owner of the Poinsettia Hill Property, which, as of the date of this Agreement, is Carlsbad I.
E. La Terraza has ground leased the City Property pursuant to that certain Ground Lease dated October 28, 1994, by and between the City, as lessor and La Terraza, as lessee (the "Ground Lease").
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1 Pursuant to the 1 Ground Lease, La Terraza is developing an affordable housing project on the City Property (the mLa Terraza Projectn).
F. Poinsettia Hill is currently processing a residential development with the City to construct a housing project on the Poinsettia Hill Property (the "Poinsettia Hill Project"). As a condition to development imposed by the City on the Poinsettia Hill Project, a recreational vehicle storage area (the "R.V. Site') must be constructed for the benefit of the residents of the Poinsettia Hill Project (the "HomeownersI').
G. The parties desire that the R.V. Site and recreation facilities adjacent thereto (the "Recreation Area") be constructed on that certain portion of the Poinsettia Hill Property depicted on the attached Exhibit "C". The legal description of the Recreation Area is attached hereto as Exhibit IID". After completion of construction of the R.V. Site and Recreation Area, the Poinsettia Hill Property Owner shall transfer fee title in the Recreation Area to the City and the City and La Terraza shall amend the Ground Lease to incorporate such property under the Ground Lease. Concurrently herewith, the City shall grant to the Poinsettia Hill Property Owner an easement for ingress, egress and access to the R.V. Site over the City Property.
NOW, THEREFORE, incorporating the foregoing Recitals and in consideration of the mutual covenants contained herein, the parties hereto agree as follows:
1. CONSTRUCTION OF R.V. SITE AND RECREATION AREA.
1.1. Improvements to be Constructed. The Poinsettia Hill Property Owner, at its sole cost and expense, shall construct simultaneously the R.V. Site, the Recreation Area, and the facilities and improvements thereon, all as described on the attached Exhibit ME11 (collectively, the "Site Improvementst') . Prior to commencement of construction of the Site Improvements, La Terraza and the then-holder of the first deed of trust on the La Terraza Project (the "First Mortgagee") shall have the opportunity to review and approve the final plans and specifications for the Site Improvements, such approval not to be unreasonably withheld.
1.2. Comoletion of Construction. The Poinsettia Hill Property Owner shall complete the construction of the Site Improvements upon the earlier to occur of (a) one hundred twenty (120) days after the completion of the first phase of the Poinsettia Hill Project or (b) five (5) years from the date of this Agreement. The "completion of the first phase of the Poinsettia Hill Project" shall mean the final inspection of the final unit of the first phase of the Poinsettia Hill Project. If the construction of the Site Improvements has not been completed on or before the expiration of such dates, or in the event the Poinsettia Hill Project is not constructed at all, the Poinsettia Hill Property Owner shall not be in default hereunder, but the "Access
FS2\267\060324-0039\2138367.1 I aOS/03/96 -2-
a 7 ‘1, ( p’ . ,’ I
Easement" (as defined below) shall automatically terminate and all obligations of the parties in this Agreement and the "Property Management Agreement" (defined below) shall become null and void. The Poinsettia Hill Property Owner shall give City and La Terraza at least fifteen (15) days prior written notice of the anticipated commencement of construction. Upon receipt of such notice of the anticipated commencement of construction, City and La Terraza shall provide access and a temporary construction easement over appurtenant portions of the City Property for the construction of the Site Improvements pursuant to Paragraph 3 of the Access Easement. The Poinsettia Hill Property Owner shall use reasonable efforts to minimize interference with the La Terraza Project caused by the construction of the Site Improvements and shall use reasonable efforts to complete the Site Improvements within one hundred twenty (120) days after commencement of construction.
1.3. Interference with La Terraza Proiect. In connection with construction of the Site Improvements, the Poinsettia Hill Property Owner shall cause the construction area to be kept in a safe and clean manner and shall limit hours of construction from 7:00 a.m. to 5:00 p.m. on Mondays through Fridays. Upon written notice from La Terraza that the construction of the Site Improvement is unreasonably interfering with La Terraza's or its tenants' use and enjoyment of the La Terazza Project the Poinsettia Hill Property Owner shall promptly take such steps as are necessary to eliminate such unreasonable interference. If unreasonable interference shall then continue, the Poinsettia Hill Property Owner shall be deemed in default hereunder. The Poinsettia Hill Property Owner agrees to promptly repair any damage caused to the La Terraza Project in connection with the construction of the Site Improvements.
1.4. Insurance. Prior to commencement of construction of the Site Improvements, the Poinsettia Hill Property Owner shall obtain a comprehensive general liability insurance policy in an amount of not less than Two Million Dollars ($2,000,000.00), naming the City, La Terraza and the First Mortgagee as additional insureds thereunder. Except to the extent caused by the gross negligence or willful misconduct of City, La Terraza, First Mortgagee or their successors, or their respective agents, contractors, employees or invitees, the Poinsettia Hill Property Owner shall indemnify, defend and hold City, La Terraza, First Mortgagee and/or their successors, harmless against any and all claims, damages, and/or liability in connection with the construction of the Site Improvements.
1.5. Determination of Comoletion bv City. Upon completion of the Site Improvements, the City shall inspect the R.V. Site and Recreation Area, issue its final signoff pursuant to the required permit(s), and provide written notice to the Poinsettia Hill Property Owner and La Terraza of the completion of the Site Improvements. Upon completion, the Poinsettia Hill Property Owner shall give City and La Terraza fifteen (15) days
FS2\267\060324-0039\2 138367. I I ;105/03/96 -3-
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prior written notice that it intends to begin use of the 'access rights set forth in the Access Easement.
2. CONVEYANCE OF RECREATION AREA TO CITY. Upon receipt of the notice of completion referenced in Section 1.5 above, the Poinsettia Hill Property Owner shall convey the Recreation Area to the City through a lot line adjustment (the "Lot Line Adjustment") substantially in the form attached hereto as Exhibit IIF1l. The Lot Line Adjustment shall be finally approved by all parties from whom approval is necessary prior to completion of construction of the Site Improvements. 'The conveyance of the Recreation Area shall specifically except and reserve to the Poinsettia Hill Property Owner a non-exclusive easement for access, ingress and egress over and upon the Recreation Area to the R.V. Site in substantially the location depicted on Exhibit "E". In the event that the legal description of the Recreation Area is modified in connection with the final approval of the Lot Line Adjustment, the legal description set forth in Exhibit I'D" shall be replaced with the final legal description determined through the Lot Line Adjustment. City, as owner of the City Property, hereby agrees to accept the conveyance of the Recreation Area pursuant to the Lot Line Adjustment and enter into an amendment modifying the Ground Lease to include the Recreation Area.
3. GRANT OF EASEMENT. Concurrent with the execution of this Agreement, the City shall execute an easement agreement that grants to the Poinsettia Hill Property Owner a non-exclusive easement for access, ingress and egress in the form attached hereto as Exhibit 2 ("Access Easement"), which shall become effective as set forth therein. The Access Easement shall be subject to the terms and provisions of this Agreement, including the automatic termination of the Access Easement in the event completion of construction of the Site Improvements has not occurred as set forth in Section 1.2 above.
4. MANAGEMENT AGREEMENT. Concurrent with the execution of this Agreement, the Poinsettia Hill Property Owner and La Terraza shall enter into that certain Property Management Agreement in the form attached hereto as Exhibit It H II ("Property Management Agreement"), which shall provide for the maintenance and repair of the R.V. Site by La Terraza, subject to reimbursement by the Poinsettia Hill Property Owner. The obligations of La Terraza under the Management Agreement shall commence upon the completion of the Site Improvements, as set forth in Section 1.4 above.
5. DEFAULT.
5.1. Events Constituting Default. Except as otherwise provided in Section 1.2 above, the following shall constitute a default hereunder: (a) any failure to perform under this Agreement or under the Access Easement; (b) failure to convey the Recreation Area to the City; or (c) failure to construct the Recreation Area when and if the R.V. Site is constructed.
FS2\267\060324-0039\2138367. I1 ;,05/03/96 -4-
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5.2. Remedies. If the Poinsettfa Hill Property Owner defaults in the performance of any of its obligations hereunder at any time, La Terazza shall provide written notice to the Poinsettia Hill Property Owner and all other parties hereunder describing the default which the Poinsettia Hill Property Owner shall cure within twenty (20) days after service of such notice; provided, however, if the default is incapable of being cured within such period, the Poinsettia Hill Property Owner shall not be in default provided the Poinsettia Hill Property Owner commences to cure the same during such twenty (20) day period and thereafter diligently prosecutes the cure to completion within ninety (90) days after service of such notice. If the Poinsettia Hill Property Owner fails to cure such default within the time periods set forth herein, the City or La Terazza, in addition to any other rights or remedies it may have, shall have the right to terminate the Access Easement or terminate this Agreement by serving notice on the Poinsettia Hill Property Owner.
6. MISCELLANEOUS.
6.1. Attornevs' Fees. In the event an action is commenced to enforce any of the provisions contained herein, the prevailing party(ies) shall be entitled to recover from the other partylies) reasonable attorneys' fees and costs of such suit.
6.2. Notices. Unless otherwise provided for herein, any notice to be given or other document to be delivered by one party to another hereunder shall either be delivered in person to such party or may be deposited in the United States mail, or by overnight delivery service, with postage prepaid, or by facsimile transmission, addressed to the party for whom intended as follows:
To Carlsbad I: or Poinsettia Hill Spiers Enterprises 23 Corporate Plaza, Suite 139 Newport Beach, CA 92660 Attn: Dwight W. Spiers Phone: (714) 644-5719 FAX: (714) 644-5714
copy to:
To City:
Rutan & Tucker 611 Anton Blvd., Suite 1400 Costa Mesa, CA 92626 Attn: Adam N. Volkert Phone: (714) 641-5100 FAX: (714) 546-9035
City of Carlsbad 2075 Las Palmas Drive Carlsbad, CA 92009 Attn: Planning Director Phone: (619) 438-1161 x4430 FAX: (619) 438-0894
FS2\267\060324-0039\2138367.11 a05/03/96 -5.
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/ copy to:
To La Terraza:
copy to:
copy to:
copy to:
City Attorney City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008 Phone: (619) 434-2891 FAX: (619) ,434-8367
Bridge Housing Corporation One Hawthorne Street, Suite 400 San Francisco, CA 94105 Attn: Lydia Tan Telephone: (415) 989-1111 Facsimile: (415) 495-4898
Carlsbad I c/o Mr. Steve Nishimura 2255 India Street Los Angeles, CA 90039 Telephone: (213) 660-8563 Facsimile: (213) 665-4011
Goldfarb & Lipman One Montgomery Street, 23rd Floor San Francisco, CA 94104 Attn: Thomas H. Webber, Esq. Telephone: (415) 788-6336 Facsimile: (415) 788-0999
Great Western Bank 9451 Corbin Avenue Northridge, CA 91324 Attn: Major Loan Services Loan No. 1-424815-9 Telephone: Facsimile:
Any party may from time to time, by written notice to the
others, designate a different address which shall be substituted for the one above specified, and/or specify additional parties to be notified.
If sent by mail, any notice, delivery, or other communication shall be effective or deemed to have been given two (2) business days after it has been deposited in the United States Mail, duly registered or certified, with postage prepaid, and addressed as set forth above, or one (1) business day after deposit before the daily deadline time with a reputable overnight delivery service. If sent
by facsimile transmission, or if delivered by courier or personal senrice, any notice, delivery, or other communication shall be effective or deemed to have been given upon receipt, provided hard copies of such transmission shall be thereafter delivered by certified mail or overnight delivery service.
FS2\267\060324-0039\2138367. I I a05103/96 -6-
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6.3. Recordation of Agreement. This Agreement shall be recorded by the parties in the Official Records of the County of San Diego, and shall serve as notice to all parties succeeding to the interest of the parties hereto that their use of such property shall be benefitted and/or restricted in the manner herein set forth.
6.4. Bindins Covenants, Successors. The grants, covenants, conditions and restrictions contained herein shall bind and inure to the benefit of the Poinsettia Hill Property Owner, the City and La Terraza and their respective heirs, personal representatives, successors, assigns and any and all successive owners of the Poinsettia Hill Property and the City Property, including First Mortgagee.
6.5. Transfer and/or Sale of Parcels. In the event any party to this Agreement, or the successors and assigns thereof, shall convey its interest in all of the respective portions of the Property affected hereby, after the date of such conveyance, the conveying party shall be automatically free from any and all liabilities respecting the performance of the restrictions, covenants or conditions contained in this Agreement thereafter to be performed with respect to the Property conveyed, it being intended that the restrictions, covenants or conditions contained in this Agreement shall be binding upon the owners of the fee or leasehold interest in the City Property and the Poinsettia Hill Property only during such time as their ownership, provided that the conveying owner shall remain liable for any actions taken during such owner's period of ownership.
6.6. Interpretation. This Agreement is to be construed in accordance with the laws of the State of California. In the event any provision of this Agreement shall be found to be unenforceable or inoperative as a matter of law, the remaining provisions shall remain in full force and effect. All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, neuter, singular or plural as the identity of the person or persons, firm or firms, corporation or corporations, partners or partnerships may require.
6.7. Entire Aqreement; Amendment; Modification. This Agreement constitutes the entire agreement of the parties hereto and may be amended only in a writing executed and acknowledged by all of the parties. No such amendment or modification shall have any force and effect whatsoever unless and until they are written and executed in such a manner. All amendments shall be recorded as soon as practicable.
6.8. Authority. Each party executing this Agreement represents and warrants to each other party that he/she is duly authorized to execute and deliver this Agreement and no other persons are required to execute this Agreement. Each party hereto that is other than an individual person shall, at any other party's
FS2\267\060324-0039\2138367.11 aO5/03/96 -7-
request, deliver a certified copy of the appropriate formation and authorization documents authorizing such execution.
6.9. Miscellaneous. Each party hereto agrees to execute and deliver all documents and instruments and to take all actions pursuant to the provisions hereof as may be reasonably necessary in order to effect the transactions contemplated herein. Time is of the essence of each and every term, condition, obligation and provision hereof.
6.10. Mortsasee Protection. No breach of the covenants, conditions or restrictions contained herein shall defeat or render invalid the lien of any mortgage or deed of trust, made in good faith and for value, encumbering any portion of the Property or any portion thereof or any improvements thereon, but all such covenants, conditions and restrictions shall be binding upon and effective against any subsequent owner whose title is derived through foreclosure or trustee's sale or otherwise.
6.11. Counternarts. This Agreement may be executed simultaneously in counterparts, each of which shall be deemed an original, but all of which shall together constitute one and the same instrument.
6.12. Covenants to Survive. The covenants and agreements
contained herein shall survive the consummation of this Agreement and shall be binding upon and inure to the benefit of the parties hereto and their representatives, heirs, successors and assigns.
6.13. Exhibits "A", T, XC aD", IIEIl‘-I - - II F II II G II and I, H II
attached hereto, are incorporated herein by this reference.
IN WITNESS WHEREOF, this Recreational Vehicle Storage
Agreement is executed as of the date first written above.
CARLSBAD I, a California General Pa
By:
By:
Its:
"Carlsbad 1"
[Signatures continued on next page]
FS2\267\060324-0039\2138367. I1 a05103196 -8.
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POINSETTIA HILL LIMITED, a California limited partnership
By: Dwight W. Spiers, as Trustee under that certain Declaration of Trust dated September 14, 1983, as amended, general partner I'Poinsettia Hill"
APPROVED AS TO FORM BY:
LATERRAZAASSOCIATES, acalifornia limited partnership
By: BRIDGE HOUSING CORPORATION, a California nonprofit public benefit corporation, its managing gf;neral partner
"La Terraza"
FS2\267\060324-0039\2138367.1 I aOS/O3/96 -9-
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: 2. ) 41. I(,
-
.
STATE OF CALIFORNIA
COUNTY OF j **-
personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/m subscribed to the within instrument and acknowledged to me that
he/tit) executed the same in his/he-r/* authorized capacity(Gs), and that by his/*/t- signature(sf on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument.
Witness my hand and official seal.
y$dl&ezT-*
Notary Public
[SEAL]
STATE OF CALIFORNIA
COUNTY OF
1996,, beforeme,
LUIGW--r- co. h3~Ffzs.
personally known to me (or proved to me on the basis of satisfactory evidence) to be the person&) whose name(s) is/arre subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/M/t-h&r authorized capacity(a), and that by his/M/t- signature@) on the instrument the person(s) or the entity upon behalf of which the
person&s) acted, executed the instrument.
Witness my hand and official seal.
FLORENCE TANGO b !Notary Public
[SEAL]
FS2\267\060324-0039\2138367.11 :105/07/96 -lO-
.
STATE OF CALIFORNIA )
) COUNTY OF SAN DIEGO )
On August 20, 1996 , before me, Karen R. Kundtz, Assistant
City Clerk, personally appeared Claude A. Lewis, Mayor
----------------------------------------- , personally known to me (or-praved-
-t~-me-ontke-Bbsi-o-eC-3a~ifCae~~-evi~~ to be the personb) whose name++
is/are subscribed to the within instrument and acknowledged to me that
he/shafthey-executed the same in his/berftkeir authorized capacity(i-es), and that
by his/%er+he4+signature(+) on the instrument the personb), or the entity upon
behalf of which the personfsj acted, executed the instrument.
Witness my hand and official seal
City of Carlsbad
tant City Clerk
(SEAL)
,
STATE OF CALIFORNIA
COUNTY OF
1996,beforeme
satisfactory e rson(s) whose subscribed to and acknowled o me that he/she/they e authorized and that by instrument person(s) or
, executed th
my hand and of cial seal.
/
[SEAL]
STATE OF CALIFORNIA 1
COUNTY OF s lmxkco ; ss-
1996, beforeme,< I ---C&VO\ & Al4JfH.2
personally known to me (cr proved tc Vr\r,iti u+ -r-%I ATT i&en.ce) to be the person#) whose name&') is,&& subscribed to the within instrument and acknowledged to me that h&she/'&h+ executed the same in h%+/her/.r authorized capacitym), and that by -her/-r signatureti on the instrument the personLs) or the entity upon behalf of which the
personw acted, executed the instrument.
Witness my hand and official seal.
FS2\267\060324-0039\2138367.11 rOS/03/96 -ll-
. /
LEGAL DESCRIPTION OF POINSEl'TIA ~LII PROPERTY
THE NORTHWEST QUARTER OF THE SOUTHWEST QUARTER OF SECTION
23, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNADINO MERIDIAN, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL'PLAT THEREOF, AND BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF SAID SECTION 23, AS SHOWN ON RECORD OF SURVEY MAP NO. 6269, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, SEPTEMBER 25,
1963; THENCE ALONG THE WESTERLY LINE OF SAID SECTION 23, SOUTH 00-00'11" EAST, 1171.06 FEET‘TO THE SOUTHWEST CORNER OF SAID NORTHWEST QUARTER OF THE SOUTHWEST QUARTER: THENCE
ALONG THE BOUNDARY OF SAID NORTHWEST QUARTER OF THE SOUTHWEST QUARTER AS FOLLOWS: NORTH 89-54'45" EAST, 1348.31 FEET TO
THE SOUTHEAST CORNER OF SAID NORTHWEST QUARTER OF THE SOUTH- WEST QUARTER; AND NORTH 00-00'22" WEST, 1169.91 FEET TO THE NORTHERLY LINE OF SAID SECTION 23; THENCE ALONG SAID NORTHERLY LINE SOUTH 89-57'43" WEST, 1348.24 FEET TO THE POINT OF BEGINNING.
EXHIBIT "A"
TO RECREATIONAL VEHICLE STORAGE AGREEMENT
FS2\26~0603249039\2131367.6 rll106195
. . . .
,
GAL,DESCRIPTION OF CITY PROPERT!l .
That portion of parcel 2, in the City of Carlsbad, County of San Diego, State of
California, as shown at .page I 188 of Parcel Maps filed in the Office of the County
Recorder of San Diego County, December 2 I, 1972, lying Westerly oft he Northwesterly
boundary of thatpart of County Road Survey No. 1800-l ( Known as El Camino Real )
as described in Parcel 68373-a in deed to the County of San Diego, recorded July 24,
1970 as File 130797 .
FXHIBIT "B"
TO RECREATIONAL VEHICLE STORAGE AGREEMENT
FS2\267\060324-0039\2138367.6 aI 1101195
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t 1“. I: ‘-. EXHIBIT "D" . RECREATION AREA .
THAT PORTION OF THE NORTHWEST QUMTER OF THE BOUTtiViMt QUARTBR OF
8gCTlON 23, TOWNSHIP 12 BOUTH, RANOE 4 b&ST, 8AN BERNARDINO MERIDIAN, lN
Tt-iti CITY OF CARLBBAD, COUNTY OF 6AN DIEOO, 8TATE OF CALIFORNIA,
ACCORDINO To OFFICIAL PLA’f THEREOF, BEINQ MORE PARTICULARLY DESCRIBED
At3 0 OLLOWS:
COMMENCINO AT THE NORTHVVlST CORNER OF RECORD OF BURVEY MAP NQ. I&$,
FILED IN THE OFFICE OF THE COUNTY RECORDER OF 8AIO BAN OIEQO COUN’IY,
JUNE 29, lQQ4,8AIO POINT BEINO OCCUPIED BY A 2 INCH IRON PIPE WITH A TAQ
MARKED L.8.69418AIO CORNER BEARS NORTH 00’33’03” EA8T FROM THE
SOUTHWEST CORNER OF FAlD RECORD OF SURVEY, 6AID CORNEVI 8ElNQ OCCUf’lEg
- . BY A 2 INCJI IRON PIPE WITH A TAG MARKED LOS. 69)l: THENCE FROM 8AID
NORTHWEST CORNER ALONG THE WE6TERLY BOUNDARY LINE OF SAID RECORD OF
BURVEY, sou~n 00’33’83’ WEST, f00.00 FEET TO THE TRUI POINT OF BEOINNINO;
THENCE CONTINUtNO ALONQ SAlD WEBTERLY BOUNDARY LINE, SOUTH 00’33’53”
WEST, 140.00 FEW; THtZNCL! LEAVINQ 8AlO WESTERLY BOUNDARY LINE, NORTH
80'26'07" WEBT, 60.00 FEEt; THENCE NORTH QQ33’63” EAST, 00.00 FEET; THENCE
NORTH 88’26’07” WEST, 110.00 FEfZT;THENCC NORTH 09’33’53” MST, 60.00 FEET;
TH@NCE !?+UTH 89’20’07” EAST, 1 W,OO FQIT TO THL TRUE POINT OF 8RQINNlNO.
THE HEREINAISOVL! DEBCRIBED PARCEL OF CAN0 CONTAINS 0.383 ACRE MORE OR
LES8.
JOti W. HILL, JR, L.6, 6088
HUNSAKER dr ABSOCIATES SAN DIE00, INCe
. .
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PAGE 1 OF i’.
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-i I’. t . . ,,‘. ‘,< C&F CARLSBAD - ENGlNEERlNG DEPARTMENT APPLICATION
FOR ENGJNEERING .PLANCHECK OR PROCESSING
PROJECT NAME:
PROJECT DESCRIPTION:
DATE
PROJECT ADDRESS:
COT NO(S).: MAP NO.: APN(S).:
OWNER; APPLICANT:
Malllng Addrma: Ms4 Addrae:
PhonoNumbw f 1 PhoruNunbw 1 1
IcuwylhdIunlJMIagalownuandlhdalIlhaabovrH- letrlJoandIxmcttothabaatdmyknowladga
ICrtllytMIun~rg~d~Irg~awnwMdtM~Ihlormatkrron thladmtb8bwMdeorracllolhabuldmyknowlad~.,
Signature Date Signature oate
CIVIL ENGINEER: SOILS ENGINEER:
Firm: firm:
Mdlng Addraaa: Mdllng Adctrwr:
PhmoNwnbac j 1 PhonaNunbw: 1 1
Side Aogktrdlon Nunbac Std. Ragktrdon Numbac
LANDSCAPE ARCHITECT: ADDlTlONAL COMMENTS:
Firm:
Mdii.AddfOW
PtwxmNumboc l I
SM. R@stmUon Numbec
NO. OF DWEWNG UNKS: LFMP ZONE: NO. OF LOTS: NO. OF ACRES:
IMPROVEMENT VALUATION: sewer, water & reclaimed water:
Water District (circle one): Carlsbad Munklpal Water District Olive&ah Vallecitos
rlreets and drainage: IUldSCap:
GRAOING QUANTITIES: CY Cut CY fill CY
remedial cy impotiexqort =Y -
PI-EASE CHECK OFF APPLICATION TYPES ON REV&BE SIDE
ExHlBrr “I?’
lof4 -
APPLJCATION FOR . . . . yx+qq I&$%&
- RXiECK AU THAT APPLY):
0 Adjustment Plat
f-J cert*cate a, CamD,lmce :.:... Sfr
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0 Enqineednq Standards Varfance
0 Final Map
Street Vacation
0 Tentative Parcel Map I.:..- .. Y(-., .-m..:.:...:
cl Certificate of C4xn3ction
3 Covenant .for Easement
% Substantial Confo m F&lb&
jPP,,CAT(ON ACCEPTEO.BY.:~“‘.~‘~~~~~~:~~~::;- ., . . .,.
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SIERRA SYSTEM INPUT INlTlAL ‘..:‘.:-A R:BASE INPUT INITIAL
MASTa ~~.‘),~UMBER: .F: $:!$
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DATE STAMP APPLICATION RECEIVED
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CITY OF cxRLsBAD
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ADJ~EM. PUT AND &TlflCATE Of COMPLIANCE 8UBMntAL CHECKLIST
CfTY PROJECT NO. CmPRoJECT’wE
CllY DRAWINQ NO. CI’IY PROJECT ENQlNEEfI
PLEASE’ NOTE;
8 TO INSUiiE THE llMELY PROCESSING OF 8OUNOARY AWUSTMENlS AND CERTlFKXTES GF
COMPUANCE IN THE m, THOSE SUBMl777NG BOUNDARY AWUS-TMEtdTS AND CERTtFlCATES OF
COMPUANCE FOR Cl7Y RMEW SHOULD CHECK THElR SUBMll?Al PACKAQES FOR COMPLETENESS
AND COMPUANCE TO THE FOKOWlNQ CHECKlfST. APPUCAN7SARE REQUIRED TOACKNOWtEDGE
COMPLETENESS BY lUtTlAUUG THE SPACES PROVIDE0 FOR EACH tTEM. CitYtXAFF W/U 1NVEUTORy THESE KEMS UPON SUBMltTAlm 8 UNLESS SPEClF1CAU.Y IIc(ARKED ‘U/A’ (NOT APPUCA8LE) AND INJTIAtEO BY I%E CITY PROJECT
ENGINEER, AU ITEMS USTED ARE REQUIRED TO BE SUBMmD. 8 PLEASE 00 NOT DETACH THIS CHECMJST WHEN AnACHED TO THE CHECK PRIM PACKAGE. 7-H/S CHECKUST IS A PART OF THE RMEW COMMENTS. 8 SHOUU) YOU HAVE ANY GUESTIONS, PlE&E CONTACT THE CIIY PROJECT ENGINEER AT 438-I I bf,
EXTENSION .
Ai ME FOUOWINO mMS MUST 8E INCLUDED IN THE INtTlAL SUSM’iTlALz
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SEPARATE FOR EACH NEWLY AWUSTEO LOT8ORP--ANOSEMEO6YTHEENOlNEERORSU~OR
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- r &OF CARLWAO - BOUNOARY ADJUSTMENT AN0 CERTIFICATE Of CQMPUUdCEiUBMITTAL CHECK~ST
CCN PROJECT NO, cm PROJECT NAME
CI’IY ORAVVINQ NO. CRY PROJECT’ ENQINEER
‘8. THE FOUOWJNQ ITEMS MUST BE INCLUOINO IN EACH RESURMtllAk
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TRANSMrrrAL~FROMENQ(NEEROC1BUFMYOFI~WORK~AU.THE~~8UBMCrrOD.
cQwoFPREvKKIs TFUNSMKMlJillERFRo)ATHEccIy.
-2 FOUA~4)SEr8ffTHECOWWTED MTsIoNEDAMlsEu.EDffn4EEl4owzRoc18uch(EyoFI OcWOFHAtUl SONED BY WE WfNER(Q, hfwaMlBAElolENoEFlT#J8IEEocIBENmcuRf W=WIMBTRISUllON:
* 2PwaiECI(ESl~lP.
- 4. FOUA(4)SElBCFMECOlWECtEDLEMW- FoF1iE4CNNEWYAWJSlED LOT8OflPAf3CEUSIONED
AN0 SE&F9 @Y THE FNOINEEFl oc1 S- Of WOW (DSTFllSUTlON: 2 t’Uf%HEcKac 1 FILE. 1 PWJNI!:O). 5.. WO(2)SEFBOFTHEf3XMXED ~vERSCN~~~OM~EDANOSEALEDDY~E~HEEAOF~SU~~
OF WORK (OlSRlSUTK)N: 1 puNcHECKER+ 1 FILE).
6. AU PREVIOUS CHECKPRINT OF PUT, LEOAL DE- lRA~cM~~ANOolHERoouJMEMS.
7. MOmoNM frms REaJlREo
SUBMllTAL COUPtElL CHECKED 6Y DATE
c. THE FOUOWINO ITEMS MUST BE SUEMfTlED BEFORE CITY ENGINEER APPROVAL OF ME BOUNDARY ADJUSTMENT AND ISSUANCE OF THE CERTlFlCAlE OF COMPUANCE:
1. T+lwsMmMLETTERf’Fy)IA ErwMERoFI-wwoluL)sITIIyQMLTHErrEMs8oNoBusMmEo.
2 cop/OF- TFuNswrrKLoToI~lHEm.
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6. MLMEWOUS -ofMl,LHw- TRAVOZSE~~~ANOOTHEROOCUMENTS.
7. MWmMSRMUICIED
suBMrrrAL couPsr& CHECKED BY DATE
COMMENTS:
- SEE REVERSE SIOE --
PAOC: 2of2
4 of 4
4 Exhibit "G"
RECORDING REQUESTED BY AND
WHEN RECORDED, MAIL TO:
CITY CLERK CITY OF CARLSBAD 1200 CARLSBAD VILLAGE DRIVE
CARLSBAD CA 92008-1989
Space above this line for Recorder’s Use Only
APN 215-020-01 APN 215-020-15
GRANT OF EAS-
(Access, Ingress and Egress)
THIS GRANT OF EASEMENT is made as of May 3, 1996 by and
between CARLSBAD I, a California general partnership (or any
successor owner of the Carlsbad I Property, as defined below,
"Carlsbad I"), and the CITY OF CARLSBAD, a municipal corporation ( I'Cityll) .
RECITALS:
A. Carlsbad I is the owner of that certain real property in the City of Carlsbad, County of San Diego, State of California (the
"Carlsbad I Property"), legally described in the attached Exhibit
J&! and depicted in the attached Exhibit "A-1".
B. City is the owner of that certain real property in the City of Carlsbad, County of San Diego, State of California (the
I(City Property"), legally described in the attached Exhibit sBt' and
depicted in the attached Exhibit "B-1".
La Terraza Associates, a California limited partnership
has ground leased the City Property pursuant to
that certain Ground Lease dated October 28, 1994, by and between
the City, as lessor, and La Terraza, as lessee (the "Ground Lease"). Pursuant to the Ground Lease, La Terraza is developing an affordable housing project on the City Property (the "La Terraza Project").
D. A plat showing the geographical relationship of the aforementioned properties (the "Plat") is attached hereto as Exhibit llC".
EXHIBIT "G" TO RECREATIONAL VEHICLE STORAGE AGREEMENT
FS2\267\060324-0039\2 IS84 IS.9 .105/03/96
.
E. As a condition to the development of a. residential housing project on the Carlsbad I Property (the "Carlsbad Project"), the City has required the construction of a recreational vehicle storage area (the "R.V. Site") and recreation facilities adjacent thereto (the "Recreation Area"), on a portion of the Carlsbad I Property, as identified on the Plat. The parties hereto desire in this Grant of Easement to grant a non-exclusive easement for access, ingress and egress to the R.V. Site over the City Property and grant a temporary construction easement for the construction of the R.V. Site and Recreation Area (collectively, the "Site Improvements").
NOW, THEREFORE, incorporating the foregoing recitals of fact and in consideration of the mutual covenants contained herein, the parties hereto agree as follows:
1. Grant of Easement. For valuable consideration, receipt of which is hereby acknowledged, the City hereby grants to Carlsbad I a non-exclusive easement for pedestrian and vehicular access, ingress and egress ("Easement") in the location ‘egally described in the attached Exhibit rlDt1 and depicted in the attached Exhibit "D-1" (the "Easement Area").
2. Use of Easement. Carlsbad I shall be entitled to begin using the Easement after fifteen (15) days prior written notice from Carlsbad I to City and La Terraza of the completion of
construction of the Site Improvements. The use of the Easement
shall be subject to the terms and provisions of that certain Recreational Vehicle Storage Agreement of even date herewith (the "R.V. Agreement") and the property management agreement attached as an exhibit to the R.V. Agreement, which provide among other things, that the Easement may be terminated in the event of a default under the property management agreement or the R.V. Agreement.
3. Temnorarv Construction Easement. City hereby grants to Carlsbad I, effective upon at least fifteen (15) days' written notice prior to commencement of construction of the Site Improvements, an easement for temporary construction purposes over and across portions of the City Property as reasonably necessary
for the construction of the Site Improvements. Carlsbad I shall use reasonable efforts to minimize interference with the La Terazza Project caused by the construction of the Site Improvements, shall cause the construction area to be kept in a safe and clean manner and shall limit the hours of construction from 7:00 a.m. to 5:00 p.m. on Mondays through Fridays as more fully set forth in the R.V. Agreement. Upon completion of the Site Improvements, or the expiration of one hundred twenty (120) days from the commencement of construction, whichever first occurs, the foregoing temporary construction easement shallautomaticallyterminate without further notice or the need for any instrument to be recorded by the parties hereto.
-2-
FS2\267\060324-0039\2lS84l8 9 505/03/96
_-
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/ 4. Wintenance of Easement Area. The City agrees to maintain, or cause to maintain the Easement Area as an improved paved road.
5. Character of Easement. The Easement granted herein is appurtenant to and for the benefit of the Carlsbad 1 Property and is a burden upon the City Property. The Easement shall in no way be construed as an easement in gross to Carlsbad I or to any other
person or entity. Nothing contained herein shall be construed to be a gift or a dedication of any portion of the City Property to the general public or for any public purpose whatsoever.
6. Insurance. On or before Carlsbad I begins to use the Easement, Carlsbad I shall, at its expense, maintain public liability insurance in an amount not less than Two Million Dollars ($2,000,000.00) over the Easement Area, and shall name City, La Terraza and the holder of the first deed of trust on the City Property ("First Mortgagee"), as additional insureds thereon. Such policy shall provide that not less than thirty '(30) days written notice shall be given to City, La Terraza and First Mortgagee prior to the cancellation of such policy. Upon request by any additional insured, Carlsbad I shall provide a certificate of insurance evidencing the insurance coverage required herein.
7. Indemnitv. Carlsbad I shall indemnify, defend and hold
City, La Terraza, First Mortgagee and any successors-in-interest to
the La Terraza Project harmless from and against all claims, damages and costs (including but not limited to those arising out of any injury or death to any person or persons or damage to any property of any kind whatsoever and to whomsoever belonging, including City, La Terraza, First Mortgagee and any successors-in- interest, and including attorneys' fees) arising out of or in connection with the use by Carlsbad I and its permitted invitees of the Easement; except to the extent caused by the gross negligence, willful misconduct, 'fraudulent or criminal acts of City, La Terraza, First Mortgagee or their successors, or their respective agents, contractors, employees or invitees.
8. Default. Any default by Carlsbad I in the performance of the terms of this Grant of Easement shall constitute a default hereunder, and City and La Terraza shall have the rights and remedies afforded them pursuant to the terms of Article 5 of the R-V. Agreement.
9. Bindinq Covenants, Successors. The grants, covenants, conditions and restrictions contained herein shall bind and inure to the benefit of Carlsbad I and its respective heirs, personal representatives, successors, assigns and any and all successive owners of the Carlsbad I Property, shall create mutual, equitable servitudes upon the City Property, and shall, as to the owner of any portion of the City Property, its successors and assigns, operate as covenants running with the land for the benefit of the
Carlsbad I Property.
-3-
FS2\267W60324-0039\2 I.564 I8 9 a05103196
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10: Modifications. This Grant of Easement may not be amended or otherwise modified, except by an agreement in writing signed by all parties hereto. NO such amendments or modifications shall have any force and effect whatsoever unless and until they are written and executed in such a manner.
11. Recordation of Easement. This Grant of Easement shall be recorded in the Office of the Recorder of the County of San Diego and shall serve as notice to all successive owners of the City Property that such property shall be restricted in the manner
herein described.
IN WITNESS WHEREOF, the parties have executed this Grant of Easement as of the day and year first above written.
CARLSBAD I, a
Its:
"Carlsbad 1"
99974% fICity1~
APPROVED AS TO FORM:
-4-
FS2\26-N%0324-0039\2 IS84 I8 9 rO5/03/96
i
STATE OF CALIFORNIA )
1 COUNTY OF SAN DIEGO )
On August 20, 1996 , before me, Karen R. Kundtz, rssistant
City Clerk, personally appeared Claude A. Lewis, Mayor
----------------------------------------- , p ersonally known to me (
il
r-praved-
-tome~the~hs~*-e~-sa~~fFae~~evi~~ to be the personb) whos, name++
is/arc subscribed to the within instrument and acknowledged to me that
he/shefthepsxecuted the same in his/kerftkeir authorized capacity(i-es),~and that
by his/~j%e4+signature&) on the instrument the person@), or the en ity upon i
behalf of which the personfsj acted, executed the instrument.
Witness my hand and official seal ~
(SEAL)
COUNTY OF
-.
personally known to me (or proved to me on the basis of satisfac- tory evidence) to be the person(s) whose name(s) is/-subscribed to the within instrument and acknowledged to me that he/&e/.&hey executed the same in his/k&H&r authorized capacity(&), and that by his/her/m signature(s) on the instrument the person&j or the entity upon behalf of which the person(& acted, executed the instrument.
Witness my hand and official seal.
STATE OF CALIFORNIA
ss. COUNTY OF
a--p Notary Public
subscribed
official seal.
FS2\267\060324-0039\2 IS84 18 9 nOS/03/‘%,
.
c
. EXHIBIT "A"
DEW-N OF w I PROPER=
-..
THE NORTHWEST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 22, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNARDINO MERIDIAN, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING 'TO THE OFFICIAL PLAT THEREOF, AND BEING MORE PARTICULARLY DES- CRIBED BY METES AND BOUNDS AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF SAID SECTION 23, AS SHOWN ON'RECORD OF SURVEY MAP NO. 6269, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, SEPTEMBER 25, 1963; THENCE ALONG THE WESTERLY LINE OF SAID SECTION 23, SOUTH 00-00'11" EAST, 1171.08 FEET TO THE SOUTHWEST CORNER OF SAID NORTHWEST
QUARTER OF THE SOUTHWEST QUARTER: THENCE ALONG THE BOUNDARY OF
SAID NORTHWEST QUARTER OF THE SOUTHWEST QUARTER AS FOLLOWS: NORTH 89-54'45" EAST, 1346.31 FEET TO THE SOUTHEAST CORNER OF SAID NORTHWEST QUARTER OF THE SOUTHWEST QUARTER; AND NORTH 00-00'22" WEST, 1169.91 FEET TO THE NORTHERLY LINE OF SAID SECTION 23; THENCE ALONG SAID NORTHERLY LINE SOUTH 89-57'43" WEST, 1348.24 FEET TO THE POINT OF BEGINNING.
EXHIBIT "A" TOGRANTOF EASEMEN?'
tw~267\060324-0039u~~t4 18.3 .I 1101195
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EXHIBIT "B"
ION OF CITY PRQHWZ
That portion of parcel 2, in the City of Carlsbad, County of San Diego, State of
California, as shown at page I 188 of Parcel Maps filed in the Ofice of the County
Recorder of San Diego County, December 21, 1972, lying Westerly of the Northwesterly
boundary of that part of County Road Survey No. 1800-I ( Known as El Camino Real )
as described in Parcel 48373-a in deed to the County of San Diego, recorded July 24,
1970 as File 130797 .
FXHIBIT "B"
TO GRANTOF EASEMENT
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0 All that portion of Parael 2 of Parcel, Hap 1188, reaordedt December 20, 1972, as Pile No. 340334 of Official Record6 being within the City of Carl&ad, County of San Diego, 8tate of California, being more partiaularly described ar3 follows: ;
A 24.00 foot wide eawment, the.aenterline being mote particularly QeSOribed as fOllOW6:
Boginning at the 6Outh666t corner of the above described Parael 2:
thenoe westerly along the eouthorly line of said Parcel 2, North 89'32t2111 Weet, 794.47 feet (Record: North 89*32'01@1 Weat, PM 1188)r thence leaving said eoutherly line, North O*27a39qt East, 30.00 feet, to the northerly right-of-way line of Cassia Road and the TRUE POINT OF BECINNINGl thence North O"27139Bf East, 239.31 feet, to the beginning of a tangent 300.00 foot racllus curve,
oonoava weet~erly, tlrence northerly along the arc of said curve, through a oentral. angle of 43'13'00", an aru distanoe o'f 226.28 feet; thence tangent to eaid wrve, North 42'45'21" Weet, 115.39 fact, to the boginning of a tangent 200.00 foot radius curve, aonoave eouthwaeterly, thence northwesterly along the arc of said curve, through a cantral crngle of 46’40’4GFt, an arc distance of 162.94 feet! thence North 89*26'07't West, 246.70 feet, to an interseatfon with the westerly line of the above described parcel 2.
. The side lines of aaid 24.00 foot easement to be prolonged and/or shortened to form a aontinuourr 24.00 foot wide strip, from the hortherly riyht-of-way line of Cassin Road to the West line of said Parcel 2.
4
EXHIBlT"D" *'
TOGRANTOFEASEMENT
i
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/ CONSENT AND SUBORDINATION
GREAT WESTERN BANK, A FEDERAL SAVINGS BANK, as the beneficiary under (i) that certain Deed of Trust, Assignment of Rents and Fixture Filing dated April 29, 1996, recorded May 3, 1996, as Document No. 1996-0225796 in the Official Records of San Diego County, California with La Terraza Associates, a California Limited Partnership, as Trustor ("Leasehold Deed of Trust"), (ii) that
certain Deed of Trust, Assignment of Rents and Fixture Filing dated
April 29, 1996, recorded May 3, 1996, as Document No. 1996-0225797
in the Official Records of San Diego County, California with La
Terraza Associates, a California limited partnership, as Trustor (the "AHP Deed of Trust"), and (iii) that certain Third Party Deed of Trust, Assignment of Rents and Fixture Filing dated April 29, 1996, recorded May 3, 1996, as Document No. 1996-0225798 in the
Official Records of San Diego County, California with the City of
Carlsbad, a municipal corporation, as Trustor ("Fee Deed of
Trust"), (the Leasehold Deed of Trust, AHP Deed of Trust and Fee
Deed of Trust shall be collectively referred to herein as "Deed of
Trust"), and as the holder of a Promissory Note or Notes secured
thereby:
Does hereby consent to the execution and recordation of that certain Grant of Easement (Access, Ingress and Egress) attached hereto, and hereby covenants and agrees that said Deed of Trust, as the same may have been amended of record, shall be and the same is hereby made subject and subordinate to the Grant of Easement, with the same force and effect as if the Grant of Easement had been executed, delivered and recorded prior to the execution, delivery and recordation of said Deed of Trust.
This Consent and Subordination shall become effective upon recordation in the Official Records of San Diego County, California and shall be binding upon the undersigned, its successors and assigns.
IN WITNESS WHEREOF, this Consent and Subordination has been duly executed by the undersigned this 10th day of May, 1996.
GREAT WESTERN BANK, A FEDERAL SAVINGS BANK
Its: Vice$resident
By: ‘j: [ ‘\I. ihi)-
Its: Assistant Secretary
f:\apv\agm\vlllas\consent.sub
-
-
State of California
County of Alameda
On May 10, 1996 before me, Olqa Oelschlaesel personally
appeared Terrv R. Scarlett and Theresa M. Vasauez personally known to me (or proved to me on the basis of satisfactory evidence) to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities and that by their signature(s) on the instrument the persons, or the entity upon behalf of which the persons acted, executed the instrument.
WITNESS my hand and official seal.
(seal)
-
.
CONSENT AND SUBORDINATION
LA TERRAZA ASSOCIATES, a California limited partnership, as the ground tenant under that certain Ground Lease dated October 28, 1994, by and between the City of Carlsbad, as lessor, and La Terraza, as lessee (the "Ground Lease"), as evidenced by that certain Memorandum of Lease dated October 28, 1994, and recorded on November 4, 1994, as Instrument No. 0645097, Official Re-cords of San Diego County, California:
Does hereby consent to the execution and recordation of the Grant of Easement (Access, Ingress and Egress) attached hereto, and covenants and agrees that said Ground Lease, as the same may have been amended of record, shall be, and the same is hereby made subject and subordinate to the Grant of Easement, with the same force and effect as if said Grant of Easement has been executed, delivered and recorded prior to the execution and delivery of said Ground Lease and the recordation of the Memorandum of Lease evidencing said Ground Lease.
This Consent and Subordination shall become effective upon recordation in the Official Records of San Diego County, California and shall be binding upon the undersigned, its successors and assigns.
IN WITNESS WHEREOF, this Consent and Subordination has been duly executed by the undersigned this 21"" day of 1996.
LA TERRAZA ASSOCIATES, a California limited partnership
By: BRIDGE HOUSING CORPORATION, a California non profit public benefit corporation, its
FS2\267\060324-0039\2 IS84 I8 9
.
'STATE OF CALIFORNIA 1 ) 85. COUNTY OF %(/\j?~fl~s@ )
NotaryPublic,
personally known to me (me,., ue La- SAL- to be the person0 whose na.meM is- subscribed to the within instrument and acknowledged to me that
kdshe/W executed the same in wher/w authorized capacityw , and that by h&s/her/w signature&& on the instrument the personm or the entity upon behalf of which the personw) acted, executed the instrument.
Witness my hand and official seal.
STATE OF CALIFORNIA 1 ss. COUNTY OF )
On 6, beforeme, Notary Public, person
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f ,i. i ,R I , - Exhibt "H"
PROPERTY MANAGEWENT AGREEMENT /
THIS PROPERTY MANAGEMENT AGREEMENT ("Agreement") is made as of this 3rd day of May, 1996 between CARLSBAD I, a California general partnership (or any successor owner of the Land, as described below, "Owner") and LA TERRAZA ASSOCIATES, a California limited partnership ("Agent").
A. Owner is the owner of that certain real property located in the City of Carlsbad, County of San Diego, State of California, depicted on Exhibit "A" attached hereto (the "Land") to be improved with seven (7) recreational vehicle parking spaces, a drive aisle and appurtenant landscaping. The Land, together with the improvements thereon, is collectively referred to herein as the "R.V. Site."
B. Owner and Agent, among others, have entered into that certain Recreational Vehicle Storage Agreement dated as of January
9, 1996 (the "R.V. Agreement") in connection with the initial development and construction of the R.V. Site.
C. Owner desires to retain the services of Agent to manage the R.V. Site on Owner's behalf on the terms and conditions more particularly set forth herein, and Agent has agreed to so manage the R.V. Site.
NOW, THEREFORE, incorporating the foregoing Recitals and in consideration of the mutual covenants contained herein, the parties hereto agree as follows:
I. AGENCY AND TERM OF AGREEMENT
1.1 Agency. Owner hereby appoints Agent as Owner's agent for the management, maintenance and operation of the R.V. Site, which appointment is hereby accepted by Agent.
1.2 Term of Agreement. This Agreement shall commence on the "Effective Date" defined in Section 1.3 below ("Commencement Date") and shall continue until the earlier of (i) expiration or termination of the term of that certain Ground Lease dated October 24, 1994, by and between the City of Carlsbad, as lessor, and Agent, as lessee (the "Ground Lease"); or (iii) termination in accordance with Sections 5.1, 5.2 or 5.3 hereof (the ltTennt').
1.3 Effective Date. The effective date of this Agreement ("Effective Date") shall be the date of completion of the "Site Improvements11 pursuant to Section 1.5 of the R.V. Agreement.
EXHIBIT "H" TO RECREATIONAL VEHICLE STORAGE AGREEMENT
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II. DUTIES OF AGENT AND OWNER
2.1 mties of Agent. Agent shall, for and at the expense of Owner, on behalf of, as agent subject at all times to Owner's general supervision and control, perform duties required in connection with the management, maintenance and operation of the R.V. Site. Without limiting the foregoing, it shall be the duty and responsibility of Agent to perform all duties set forth in this Agreement, including without limitation, the following:
(a) To maintain or cause to be maintained the R.V. Site, including parking areas, striping and landscaping, in a clean and sightly condition consistent with Agent's residential project adjacent to the R-V. Site (the "La Terraza Project"), and to make all necessary or reasonably required repairs costing less than One Thousand Five Hundred Dollars
($1,500.00) to the R.V. Site.
(b) Within thirty (30) days after the Commencement Date, Agent shall submit to Owner a proposed budget for the balance of the calendar year (the "Budget") setting forth the reasonable costs to maintain the R.V. Site, the books and records and other administrative costs relating thereto for the balance of the calendar year. In addition, within thirty (30) days of the end of each calendar year, Agent shall submit to Owner a proposed Budget for the ensuing calendar year. The Budget shall set forth the anticipated annual maintenance and administrative costs broken down by line item.
(cl Agent shall prepare and furnish to Owner a detailed statement of all receipts, expenses and disbursements relating to the R.V. Site for the preceding calendar year, and shall maintain books and records relating to the maintenance and operation of the R.V. Site for the three (3) prior years.
(d) To obtain all necessary releases, waivers, discharges and assurances necessary to keep the R.V. Site free of any mechanics', laborers', materialmen's, suppliers or vendors' liens in connection with the maintenance and repair of the R.V. Site.
(e) To oversee the use of the R-V. Site by homeowners ("Homeowners") of the residential project on the Land (the "Carlsbad Project") authorized to use the R.V. Site and to promulgate and enforce reasonable rules and regulations regarding the use and care of the R.V. Site by the Homeowners. The foregoing rules and regulations may include, without limitation, a prohibition against any form of lodging at the R.V. Site and the right to terminate any Homeowner's use of the R.V. Site for material violations of the rules and regulations. The rules and regulations shall be substantially in the form attached hereto as Exhibit aB". In addition, Agent has the right to amend from time to time the rules and
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regulations, with the prior written consent of Owner, such consent not to be unreasonably withheld.
(f) Agent shall report to Owner in a timely manner any conditions at, on or about the R.V. Site which, in the opinion of Agent, requires the attention of Owner.
2.2 Duties of Owner. Owner and not Agent shall be responsible for paying all real property taxes and assessments levied against the R.V. Site, maintaining the insurance policies required in Section 3.1 below and for all other costs associated with the ownership of the R.V. Site not otherwise specifically required to be performed by Agent and reimbursed hereunder.
2.3 Extraordinary Services. Except to the extent specifically provided herein as a part of Agent's duties, Agent shall neither be authorized nor obligated to undertake work exceeding that usual to normal management and such normal management shall not include activities involving any repairs costing in excess of One Thousand Five Hundred Dollars ($1,500.00), construction, reconstruction, or rebuilding on the R.V. Site, or performance of any other extraordinary services, unless Owner and Agent first agree to the performance of such services. Notwithstanding the foregoing, in the event of an emergency in which health, safety or welfare issues are concerned, Agent shall be authorized to exceed the One Thousand Five Hundred Dollars ($1,500.00) limitation set forth herein and incur all reasonable costs and expenses to respond to such emergency. Agent shall submit invoices or other reasonable evidence of payment for performance of such extraordinary services and Owner agrees to reimburse Agent within thirty (30) days after receipt of such invoices or other reasonable evidence. Agent shall notify Owner immediately in the event of such an emergency.
2.4 Other Activities of Agent. Agent shall not be required to spend its full time and attention in the management and operation of the R.V. Site but shall devote to the R.V. Site such portion of its time as may be reasonably necessary to discharge the duties of Agent set forth in this Agreement. Agent shall have the right to engage in any other activity for its own benefit or advantage. Nothing contained herein shall preclude, prevent or be a limitation upon Agent being engaged in other real estate ventures, whether acting for itself or for others, or as a partner in a partnership or a stockholder in a corporation or otherwise.
III. INSURANCE AND INDEMNITIES
3.1 Insurance Maintainedbv Owner. Throughout construction of the R.V. Site and thereafter during the Term, Owner shall maintain, at Owner's expense, public liability insurance, in an amount not less than Two Million Dollars ($2,000,000.00), for the R.V. Site, and shall name Agent as an additional insured thereon. Such policy shall provide that not less than thirty (30) days
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written notice shall be given to Agent prior to the cancellation of such policy. Upon request by Agent, a certificate of insurance Owner shall provide Agent with evidencing required by this Agreement. the insurance coverage
3.2 Insurance Maintained bv Asent. Agent shall maintain, at Agent's sole cost and expense, workers' compensation insurance covering any employees of Agent in the statutory limits required by the State of California. Such policy shall provide that not less than thirty (30) days written notice shall be given to Owner prior to the cancellation of such policy. Upon request by Owner, Agent shall provide Owner with a certificate of insurance evidencing the insurance coverage required by this Agreement.
3.3 Insurance Carried bv Third Persons. Unless otherwise approved by Owner, Agent shall ensure that all persons who furnish labor, services, equipment or materials to the R.V. Site during the Term pursuant to any contract arranged by Agent carry, in full force and effect throughout the term of the applicable contract, (i) comprehensive liability insurance with a combined single limit in the amount of TWO MILLION DOLLARS ($2,000,000.00) written on a per occurrence basis; and (ii) worker's compensation insurance covering all employees of such person who may deliver goods or perform services at the R.V. Site in the statutory limits as required by California law. Agent must receive satisfactory evidence of such insurance prior to such contractor's delivery of materials to or commencement of services on the R.V. Site.
3.4 Indemnity bv Owner. Owner shall indemnify, defend and hold Agent harmless from and against all claims, damages and costs, (including but not limited to those arising out of any injury or death to any person or persons or damage to any property of any kind whatsoever and to whomsoever belonging, including Owner, and including attorneys' fees), arising out of or in connection with (i) the ownership of the R.V. Site, (ii) any material breach of this Agreement by Owner, (iii) the grossly negligent acts or omissions, willful misconduct, fraudulent or criminal acts of Owner or Owner's agents (other than Agent, or Agent's agents, employees or contractors), employees and contractors; or (iv) the acts or omissions of Agent in acting under the scope of its authority granted hereunder or pursuant to the direction of Owner; but specifically excluding Agent's gross negligence, wilful misconduct, fraudulent or criminal acts.
3.5 Indemnity by Agent. Agent shall indemnify, defend and hold Owner harmless from and against all claims, damages and costs (including but not limited to those arising out of any injury or death to any person or persons or damage to any property of any kind whatsoever and to whomsoever belonging, including Agent, and including attorneys' fees) arising out of or in connection with (i) any material breach of this Agreement by Agent or (ii) the grossly negligent acts or omissions, wilful misconduct, fraudulent or criminal acts of Agent or Agent's agents, employees and
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contractors; but specifically excluding bwner's gross negligence, willful misconduct, fraudulent or criminal acts.
IV. REIMBURSEMENT OF AGENT'S MAINTENANCE AND REPAIR EXPENSES
Owner shall remit to Agent on the first day of every calendar year of the term hereof the payment under the Budget and at the end of each calendar year, there shall be an appropriate adjustment of Owner's payments to Agent based upon the actual expenses incurred during such calendar year. With respect to extraordinary services performed by Agent pursuant to Section 2.3, Agent shall submit invoices or other reasonable evidence of payment for performance of such work and Owner agrees to reimburse Agent within thirty (30) days after receipt of such invoices or other reasonable evidence. Except as otherwise provided herein, no management or other fee shall be paid to Agent for performance of its duties hereunder, as Agent acknowledges that as partial consideration for entering into this Agreement, Owner has constructed a recreational facility adjacent to the R.V. Site for the use and enjoyment by the residents of the La Terraza Project. In the event Owner fails to pay either the annual budgeted amount or such sum for the performance of an extraordinary service within the time periods set forth herein, interest shall accrue from and after the due date at a rate equal to the lesser of ten percent (10%) per annum, or the maximum rate allowed by law at the time the sum became due.
V. TERMINATION.
5.1 Default by Owner. If Owner defaults in the performance of any of its obligations hereunder at any time during the term of this Agreement, Agent shall provide written notice to Owner describing the default which Owner shall cure within twenty (20) days after service of such notice; provided, however, if the default is incapable of being cured within such period, Owner shall not be in default provided Owner commences to cure the same during such twenty (20) day period and thereafter diligently prosecutes the cure to completion within ninety (90) days after service of such notice. If Owner fails to cure such default within the time periods set forth herein, Agent, in addition to any other rights or remedies it may have, shall have the right to (a) prohibit the further use and enjoyment of the R.V. Site by Owner and its invitees until such default is cured or (b) terminate this Agreement by serving notice on Owner.
5.2 Default by Agent. If Agent defaults in the performance of any of its obligations hereunder at any time during the terms of this Agreement, Owner shall provide written notice to Agent describing the default which Agent shall cure within twenty (20) days after service of such notice; provided, however, if the default is incapable of being cured within such period, Agent shall not be in default provided Agent commences to cure the same during such twenty (20) day period and thereafter diligently prosecutes
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, - the cure to completion within ninety (90) days after service of such notice. If Agent fails to cure such default within the time periods set forth herein, (i) Owner may, at its option, rectify or cure such default and Agent shall reimburse Owner for all reasonable sums expended by Owner, to the extent such obligations were to be paid by Agent and not reimbursed by Owner, or (ii) Owner may initiate an action against Agent as provided in Section 5.6 below, but Owner shall not be entitled to terminate this Agreement and Owner's remedy shall be limited to damages or equitable relief, including without limitation the right to seek specific performance or injunctive relief.
5.3 Voluntarv Right of Termination. Agent shall have the right to voluntarily terminate this Agreement upon sixty (60) days prior written notice to Owner.
5.4 Duties Upon Termination of AQreement. On the effective date of termination of this Agreement, Agent shall turn over to Owner all books and records relating to the R.V. Site (copies of which may be made and retained by Agent at Agent's cost and expense), and Agent shall cooperate with Owner in the transfer of management responsibilities to Owner or its designee. Owner and Agent agree that notwithstanding the termination of this Agreement, Owner's right to continue to use the access easement granted pursuant to the terms of the R.V. Agreement shall remain unhindered so long as the Owner causes the R.V. Site to be maintained in a clean and sightly condition consistent with the La Terraza Project and maintains rules and regulations for the use of the R.V. Site substantially in the form attached hereto as Exhibit "A".
5.5 Rights and Remedies Cumulative. The rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party.
5.6 Legal Action. In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement.
VI. MISCELLANEOUS
6.1 Assiqnment. The experience, knowledge, capability and reputation of Agent, its principals and employees were a substantial inducement for the Owner to enter into this Agreement. For this reason, neither this Agreement nor any interest herein may be assigned or transferred, voluntarily or by operation of law, by Agent (excluding the assignment of this Agreement by Agent to the beneficiary of the first deed of trust on the La Terraza Project
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[the "First Mortgagee"]) without the prior written approval of Owner. Owner agrees that upon the formation of a homeowners' association for the Carlsbad Project, the rights, obligations and duties of Owner hereunder shall be assigned to and assumed by the homeowners' association. In the event the First Mortgagee shall have foreclosed upon or otherwise taken title to the La Terraza Project, this Agreement shall be deemed automatically assigned to First Mortgagee, and First Mortgagee shall be bound by and shall ' receive the benefit of the terms of this Agreement to the same extent as Agent.
6.2 Entire Aqreement: This Agreement, together with the R.V. Agreement, the terms of which are incorporated herein, contain the entire agreement between the parties hereto, and any agreement hereafter made shall be ineffective to modify or terminate this Agreement or constitute a waiver of any of the provisions hereof unless such agreement is in writing and signed by the party against whom enforcement of the modification, termination or waiver is sought.
6.3 Captions. The captions in this Agreement are included for convenience only and are not intended to and shall not be deemed to modify or explain any of the terms of this Agreement.
6.4 Aqreement Bindins on Successors. Subject to Section 6.1 above, the covenants and agreements herein contained shall bind and inure to the benefit of Owner and Agent, and each of their heirs, personal representatives, successors and assigns.
6.5 Attorneys' Fees. In the event that legal proceedings are brought to interpret or to enforce the terms of this Agreement, the prevailing party shall be entitled to recover from the other party all costs and expenses of such proceedings, including reasonable attorneys' fees, whether or not such proceedings are prosecuted to judgment.
6.6 Governins Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of California.
6.7 Relationship of the Parties. The relationship of the parties hereto shall be that of principal and agent, it being expressly understood and agreed that Agent does not in any way nor for any purpose become a partner of Owner in the conduct of the operation of the R.V. Site, or otherwise, or a joint venturer with Owner.
6.8 Neqotiated Transaction. The provisions or this Agreement were negotiated by all of the parties hereto and said Agreement shall be deemed to have been drafted by all of the parties hereto.
6.9 Notices. Notices given under this Agreement shall be in writing and shall either be served personally, delivered by first class registered or certified, return receipt requested U.S.
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mail, postage prepaid, or deliveredlby reputable overnight delivery service. Notices may also effectively be given by transmittal over electronic transmitting devices such as Telex, facsimile or telecopy machine, if the party to whom the notice is being sent has such a device in its office, provided a complete copy of any notice so transmitted shall also be mailed in the same manner as required for a mailed notice. Notices shall be deemed received at the earliest of (i.) actual receipt; (ii) three (3) days following deposit in U.S. mail, postage prepaid; or (iii) twenty-four (24) hours after timely deposit with a reputable overnight delivery service. Notices shall be directed to the parties at the addresses shown below, provided that a party may change its address for notice by giving written notice to all other Partners in accordance with this Section.
If to Owner:
With copy to:
With copy to:
If to Agent:
With copy to:
With copy to:
Carlsbad I c/o Mr. Steve Nishimura 2255 India Street Los Angeles, CA 90039 Telephone: (213) 660-8563 Facsimile: (213) 665-4011
Spiers Enterprises 23 Corporate Plaza, Suite 139 Newport Beach, CA 92660 Attn: Dwight W. Spiers Telephone: (714) 644-5719 Facsimile: (714) 644-5714
Rutan & Tucker 611 Anton Boulevard, Suite 1400 Costa Mesa, CA 92626 Attn: Adam N. Volkert, Esq. Telephone: (714) 641-5100 Facsimile: (714) 546-9035
Bridge Housing Corporation One Hawthorne Street, Suite 400 San Francisco, CA 94105 Attn: Lydia Tan Telephone: (415) 989-1111 Facsimile: (415) 495-4898
Goldfarb & Lipman One Montgomery Street, 23rd Floor San Francisco, CA 94104 Attn: Thomas H. Webber, Esq. Telephone: (415) 788-6336 Facsimile: (415) 788-0999
Great Western Bank 9451 Corbin Avenue Northridge, CA 91324 Attn: Major Loan Services Loan No. 1-424815-9 Telephone: Facsimile:
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6.10 Exhibits. Exhibits "An and "Bl attached hereto is incorporated herein by this reference.
IN WITNESS WHEREOF, this Property Management Agreement has been executed as of the day and year first above written.
CARLSBAD I, a California general
-
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By:
Its:
LA TERRAZA ASSOCIATES, a California limited partnership
By: BRIDGE HOUSING CORPORATION, a California non profit public benefit corporation, its
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_ ‘Ciiihhi8RNIA ALL-PURPLE ACKNOWLEDGMENT No. 5907 1
State of Ca G&i4 ifi . County of 52Vi +&%%5c 0
On before me, Jaclv7M~4 J. &I
NAME, TITLE OF OFFICER - E.G., “J&E DOE, NOTAAY PUBLIC
personally apUpeared ,
NAME(S) OF SIGNER(S)
0 personally known to me - QR - H proved to me on the basis of satisfactory evidence
to be the person@) whose name($) is/me
subscribed to the within instrument and ac-
knowledged to me that &&h&they executed
the same in h-is/her/the-i-r- authorized
capacity&$, and that by hi&her/~
sig~nature(#) on the instrument the person@),
or the entity upon behalf of which the
tic - califomio d
COUNFY
person(s$ acted, executed the instrument.
: SEP
WITNESS my hand and official seal.
NATUREOFNOTARY
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the docume’nt and could prevent
fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
0 INDIVIDUAL m CORPORATE OFFICER
“j;
TITLE(S)
@k PARTNER(S) 0 LIMITED q GENERAL 4
0 ATTORNEY-IN-FACT NUMBER OF PAGES q TRUSTEE(S) -
DATE Ok DOCUMENT
SIGNER IS REPRESENTING: NAME OF PERSON(S) OR ENTlTY(IES)
SIGNER(S) OTHER THAN NAMED ABOVE
81993 NATIONAL NOTARY ASSOClATlON - 6236 Remmet Ave., P.O. 60x 7164 - Canoga Park. CA 91309-7184
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EXHIBIT nBN
RULES AND REGULATIONS FOR R.V. SITE
1
1. Access hours to the premises.are from 9:00 a.m. to 6:OO p.m. daily. Access at any other time is strictly prohibited unless prior arrangements with the property manager are made. All vehicles must be parked only in the permitted spaces and vehicles are subject to tow at the owner's expense for parking anywhere other than in the properly designated space.
2. The speed limit on the premises and all entryways and driveways is 5 miles per hour.
3. As children or others may be using the recreation area immediately adjacent to the premises, extra caution must be exercised when entering and exiting the premises.
4. Do not block driveways at any time.
5. You are responsible for any loss, damage or injury and for the actions of you and your guests while on the premises.
6. Do not dispose of any trash anywhere on the premises.
7. There is no lodging on the premises at any time and the
premises may be used for no purpose other then for the
storage of campers, trailers, motor homes, boats, and
other recreational vehicles.
8. As the premises are located adjacent to a residential project, noise at all times must be kept to a minimum.
9. Additional rules and regulations may be promulgated by the property manager or homeowners' association as may be
necessary for the safety, care and cleanliness of the premises and for the preservation of good order therein. Each occupant agrees to abide by all such rules and regulations herein stated and any additional rules and regulations which may be hereafter adopted.
10. All vehicles parked at the premises must be in running condition and must not leak oil or other fluids.
11. All vehicles must be registered and insured.
12. Any material violation of the foregoing rules and regulations will result in the towing of your vehicle at your expense and/or the termination of your use of the premises.
EXHIBIT ItB" TO PROPERTY MANAGEMENT AGREEMENT
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EXHIBIT 2
VILLA LOMA
SDC&E ESMT.
POINSETTIA HILL
PO NSETTIA HILL/VILLA LOMA
GRANT OF EASEMENT
CT 93-03 & SDP 93-06