HomeMy WebLinkAbout2006-11-14; City Council; 18792; Robertson Ranch ParklandCITY OF CARLSBAD - AGENDA BILL
AB# 18,792
MTG. 11/H/06
DEPT. CA
REPORTING OUT THE TERMS AND
CONDITIONS OF THE ROBERTSON
RANCH PARKLAND AND PURCHASE
AGREEMENTS
DEPT. HEAD
CITYATTY. ^2.
CITYMGR.^
RECOMMENDED ACTION:
There is no action the Council needs to take.
ITEM EXPLANATION:
The Council met in closed session on October 30, 2006 and approved the Agreements for the
dedication and purchase of a park site in the Robertson Ranch Master Plan. This item satisfies
the Brown Act requirement to report the approval of the Agreements in a prior closed session.
FISCAL IMPACT:
The cost of the purchased parkland is $732,000 per acre. The exact amount of land to be
purchased will be determined if the Robertson Ranch Master Plan is approved but will be a
maximum of 5.93 acres at a cost of $4,340,760.00. Grading costs of $154,830 for the
purchased land will also be paid by the City, plus an undetermined amount for requisite erosion
control and any unforeseen conditions discovered during grading.
ENVIRONMENTAL IMPACT:
An Environmental Impact Report for the Robertson Ranch Master Plan is pending certification.
The proposed park is included in the Program EIR.
EXHIBITS:
1. Parkland Agreement for the Robertson Ranch Master Plan
2. Parkland Purchase Agreement
DEPARTMENT CONTACT: Jane Mobaldi 760-434-2891 imoba@.ci.carisbad.ca.us
FOR CITY CLERKS USE ONLY.
COUNCIL ACTION: APPROVED D
DENIED D
CONTINUED D
WITHDRAWN D
AMENDED D
CONTINUED TO DATE SPECIFIC
CONTINUED TO DATE UNKNOWN
RETURNED TO STAFF
OTHER - SEE MINUTES
Council accepted the Report.
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RECORDING REQUESTED BY: )
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WHEN RECORDED MAIL TO: )
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City Clerk )
CITY OF CARLSBAD )
1200 Carlsbad Village Drive )
Carlsbad, CA 92008 )
Space above this line for Recorder's use.
PARKLAND AGREEMENT FOR THE ROBERTSON RANCH
MASTER PLAN
This Parkland Agreement for the Robertson Ranch Master Plan ("Agreement") is
made this 27th day of October, 2006, between the City of Carlsbad, a Municipal
Corporation ("City"), Gary Robertson and Brian Robertson as co-successor trustees of
the Robertson Family 1995 Trust, dated April 19, 1995 as to an undivided one-half
interest; Gary Robertson and Brian Robertson, co-successor trustees under Declaration of
Trust dated October 8, 1976, as to an undivided 7% interest; and Gary Robertson and
Brian Robertson, co-successor trustees of the Elsie M. Kelly Irrevocable Trust dated June
19, 1989 as to an undivided 43% interest (collectively "Robertson Trust"), and Calavera
Hills II, LLC, a California Limited Liability Company ("Calavera") with regard to the
following:
RECITALS
A. Robertson Trust is the owner of the real property generally located at the
northeast corner of El Camino Real and Cannon Road and more particularly described in
Exhibit "A" ("West Village"). Robertson Trust was the owner of the adjacent real
property ("East Village") (also more particularly described in Exhibit "A") and sold the
East Village to Calavera. Calavera intends to develop portions of the East Village for
primarily residential purposes. Robertson Trust, or its successors, intend to develop
portions of the West Village for residential and other uses.
B. For purposes of this Agreement, Robertson Ranch consists of the following:
1) The East Village of the Robertson Ranch Master Plan which includes
approximately 178 acres in Zone 14. This project is pending approval of the
Master Tentative Tract Map for mass grading and associated backbone
infrastructure improvements, among other things.
2) The West Village of the Robertson Ranch Master Plan which consists of
approximately 220 acres within Zone 14.
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C. In addition to the City's Growth Management Program and implementing
ordinances, the City has adopted the Quimby Act requirement for park land dedication, or
the payment of fees-in-lieu thereof, in connection with Final Subdivision Maps. The
ratio of parkland required under the City's applicable ordinances and policies is 3.0 acres
per 1,000 population (calculated at the rate of 2.61 persons per single family detached
unit and 2.11 persons per attached multi-family unit), which dedication or payment of
park fees-in-lieu thereof is required as a condition of Final Subdivision Map approval.
The City Council has required that the Robertson Ranch fulfill its park requirement in its
entirety by a dedication of land in Planning Area ("PA") 12 as shown on Exhibit B.
NOW, THEREFORE, incorporating the foregoing recitals of facts set forth above and
in consideration of the mutual covenants, conditions and obligations contained herein, the
parties agree to the following:
1. PARK REQUIREMENTS: ANTICIPATED BUILDOUT. Under the Parkland
Dedication Requirements of three park acres per 1,000 population, the parkland required
for estimated buildout densities for Robertson Ranch are as follows:
East Village Density Projected Units Park Acreage Requirement
Single Family 2.61 304 2.38
Attached Multi-Family 2.11 157 0.99
East Village Total 461 3.37
West Village
Single Family 2.61 274 2.15
Attached Multi-Family 2.11 387 2.45
West Village Total 661 4.60
Robertson Ranch Total 1,122 7.97
Projected Units
The "Projected Units" and associated calculation of "Park Acreage Requirement"
identified above for Robertson Ranch (hereinafter "Park Requirement") are the parties'
best current estimates, based on present development standards, anticipated densities and
the total parkland requirement. The 1,122 Projected Units represent the number of units
set forth on the proposed Master Plan. The Projected Units are based on current estimates
given by the City's Growth Management Program, together with an allocation of 171
dwelling units from the City's excess Dwelling Unit Bank, topographic considerations,
and consideration of the Habitat Management Plan for those areas. (If, for example, the
City Council approves the Robertson Ranch Master Plan with 1,154 units rather than
1,122 units, then the Park Acreage Requirement will be for 8.23 net acres rather than 7.97
net acres.)
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1.1 COMPLIANCE. Subject to the provisions in Paragraph 2.3 below, the
parties agree that an Irrevocable Offer of Dedication of 7.97 net acres of land will fully
satisfy the Park Requirement for the Robertson Ranch once the dedication is accepted by
the City.
1.2 NET ACREAGE. Net acreage is defined as gross acreage, excluding any
land not developable due to (1) its location within the floodplain, (2) habitat preservation
buffers (including lighting buffers required by the Wildlife Agencies or Army Corp of
Engineers ("ACOE")) that prevent use of the property as a park, (3) rights of way, (4)
slopes having more than a 10% grade or (5) any other restriction, including easements,
which make a portion of the property undevelopable for park purposes; provided,
however, the City shall not impose any unique or special restrictions or easements to
make any portion of the property undevelopable for park purposes.
2.0 ROBERTSON RANCH PARK SITE; THE DEDICATED LAND. The
Robertson Ranch Park site shall consist of 7.97 net acres to be dedicated to the City in
satisfaction of the Robertson Ranch Park Requirement (plus an additional contiguous
5.53 to 5.93 net acres in PA 12 to be purchased by the City as shown on Exhibit "E", as
further discussed in Paragraph 2.1 below). Subject to the provisions in Paragraph 2.3
below, the Robertson Trust hereby agrees to reserve (and irrevocably offer to dedicate
pursuant to Section 2.2 below) 7.97 net acres within PA 12 (in the West Village). The
park area to be dedicated is more particularly shown on the schematic drawing attached
hereto as Exhibit "B" and is more fully set forth in the legal description attached hereto as
Exhibit "C", both incorporated herein by this reference (hereinafter "Dedicated Land") as
satisfaction of the Park Requirement for both East and West Village.
2.1 PURCHASE OF ADDITIONAL PARKLAND. The City and
Robertson Trust agree that in addition to the Dedicated Land (that is, the acreage to be
dedicated to satisfy the Master Plan Park Requirement), the City shall purchase an
additional contiguous 5.53 to 5.93 net acres of land (the "Purchased Land") for its Park
site on the terms set forth on the Parkland Purchase Agreement attached hereto as Exhibit
"F" (the "Purchase Agreement"), for a total of 13.5 to 13.9 net acres in Planning Area 12
of the Master Plan (the Dedicated Land and the Purchased Land are hereinafter
collectively referred to as the "Parkland"). If, due to new and unexpected requirements
imposed by the Wildlife Agencies or the ACOE, the land in PA 12 (or PA 12 and PA 13)
is not sufficient to accommodate 3 soccer fields and all the ancillary park amenities,
including adequate setbacks, as shown on the Park Concept Plan (which is Exhibit "G" to
this Agreement), the parties will mutually cooperate to initiate a Master Plan amendment
to relocate the Park site elsewhere within the Master Plan on terms and conditions to be
agreed on by the parties at such time.
2.2 IRREVOCABLE OFFER TO DEDICATION. Concurrently with
recordation of the first Final Map for the Robertson Ranch Master Plan, the Robertson
Trust shall execute and record an Irrevocable Offer of Dedication in accordance with
Government Code Section 7050 in the form attached hereto marked Exhibit "D"
incorporated herein by this reference, ("ParkJOD") for fee title to the Dedicated Land.
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2.3 ADJUSTMENT OF PARK REQUIREMENT. The "Projected Units"
and associated calculation of "Park Requirement" identified in the Section 1 table are the
parties' best current estimates, and are subject to upward or downward adjustment as
further planning is finalized based on the City Council's final approval of the Robertson
Ranch Master Plan. The Robertson Trust, Calavera, and the City agree that should the
density for the Robertson Ranch Master Plan approved by the City Council be less than
the Projected Units, the Dedication Requirements shall be decreased accordingly and the
City's purchase of land will increase by that same amount, on the same terms and
conditions as set forth herein for the purchase of the Purchased Land.
2.4 PURCHASE OF BALANCE OF ROBERTSON RANCH
PARKLAND. City intends to purchase the Purchased Land in accordance with the
Purchase Agreement attached as Exhibit "F", for Seven Hundred Thirty Two Thousand
dollars ($732,000) per net acre, which is the City's current Park-In-Lieu Fee established
on June 25, 2005. The City shall remit to the Robertson Trust an all cash payment of
Four Million Forty Seven Thousand Nine Hundred and Sixty Dollars ($4,047,960.00) for
the 5.53 net acres, at close of escrow, subject to upward adjustment if the acreage exceeds
such net acreage (in addition to the sum the City is obligated to pay to Robertson Trust
for grading the Purchased Land, as described in paragraph 3.5 below). As noted in
paragraph 2.3 above, if the current 1,122-unit density of Robertson Ranch is reduced,
thereby reducing the acreage of the Dedicated Land, the acreage of the Purchased Land
within PA 12 and PA 13 if necessary, will increase by the same amount and the City will
pay Seven Hundred Thirty Two Thousand Dollars ($732,000) per net acre for the
increased acreage.
2.5 MUTUAL COOPERATION. The parties shall use their best efforts and
shall cooperate in good faith to mutually agree on any final Parkland configuration and
location as well as on issues of access, utilities and similar development issues affecting
the portion of land to be dedicated, and the balance of the property to be purchased. For
example, if Wildlife Agency Permits (which are necessary in order to add fill dirt to that
portion of the Parkland located within the wetlands) have not been or can nof be obtained
after all reasonable efforts by the Robertson Trust, the parties will work together to
determine if a mutually agreeable alternative Parkland configuration can be developed, as
further described in Section 3.6 below. The parties understand and acknowledge that
roads, utilities, and similar easements may be necessary and all parties intend to
cooperate in connection therewith, prior to, as well as after, the Park IOD and City's
acceptance thereof. The City agrees that the Robertson Trust may list the City as a "co-
applicant" on the Wildlife Agency and/or ACOE Permit applications necessary for the
Park site, and the City will execute all documents requested by the Robertson Trust
and/or Wildlife Agencies to process and issue such permits; provided, however, (1) all
costs of obtaining such permits shall be borne by the Robertson Trust, and (2) the
Robertson Trust will be identified on all permit applications as the fee owner of the
property, and (3) the Robertson Trust shall be solely responsible for obtaining the
permits. Because all parties agree that the Parkland has independent utility from other
aspects of the Robertson Ranch development, the City agrees to consider future requests
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by Calavera or Robertson Trust for additional cooperation or assistance in helping ensure
that the Wildlife Agency and ACOE permit applications and permits relating to the
Parkland are kept separate from other permits relating to the development of the
Robertson Ranch, to the extent possible.
3.0 CONDITIONS PRECEDENT TO ACCEPTANCE/PURCHASE. Acceptance
of the Park IOD and purchase of the Purchased Land shall be expressly subject to each of
the following terms and conditions:
3.1 TITLE. Robertson Trust shall prepare all legal descriptions and plat maps
necessary for the Parkland, subject to approval by the City Engineer. The Parkland
descriptions shall be designated by metes and bounds legal descriptions pursuant to the
Subdivision Map Act (Government Code § 66428(a)(2)); provided, however, the
Robertson Trust shall not be required to provide such descriptions until after the City
Council approves the Robertson Ranch Master Plan. Title to the Parkland shall be free
and clear of all monetary liens and any other encumbrances unacceptable to the City,
including the Parkway Nursery agricultural lease scheduled to terminate in August 2006.
Robertson Ranch shall provide the City a preliminary title report for the City's review
and approval at least sixty (60) days prior to the City's anticipated acceptance upon
written notification by the City once all conditions precedent herein have been satisfied.
The Robertson Trust will be responsible for the costs of the premium for a CLTA Title
Policy for the Dedicated Land and the Purchased Land. The City will be responsible for
surveying costs for the ALTA surveys and the additional premium for an ALTA Policy
which it will obtain to insure title to the Dedicated Land and the Purchased Land.
3.2 PHASE I STUDY. Prior to City's acceptance of the Park IOD, Robertson
Trust shall at their cost provide a current Phase I Environmental Site Assessment Study
(and a Phase II Environmental Site Assessment Study if recommended by the Phase I
Study) for both the Dedicated and Purchased Land, to determine the presence of
Hazardous Substances as described in paragraph 3.3 below.
3.3 HAZARDOUS SUBSTANCES. The term "Hazardous Substance" as used
in this Agreement shall mean any product substance, or waste that has been discharged
onto or within the land in violation of applicable law and whose presence, use,
manufacture, disposal, transportation, or release, either by itself or in combination with
other materials expected to be on the land, is either: (i) potentially injurious to the public
health, safety or welfare, the environment or the land, (ii) regulated or monitored by any
governmental authority, or (iii) a basis for potential liability of the property owner to any
governmental agency or third party under any applicable statute or common law theory.
Hazardous Substances shall include, but not limited to, asbestos or asbestos containing
materials, radon gas, hydrocarbons, petroleum, gasoline, and/or crude oil or any products,
by products or fractions thereof.
3.4 ROBERTSON TRUST TO REMEDIATE "DE MINIMIS"
CONTAMINATION. If the Study(ies) referred to in Paragraph 3.2 above identify
Hazardous Substances on or under the Parkland during the due diligence period,
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Robertson Trust shall be obligated to diligently cause the remediation or removal of such
Hazardous Substances (including any underground storage tanks that are discovered
during grading) before the close of escrow as long as they can be remediated or removed
in 180 days or less and as long as the cost of this remediation or removal does not exceed
Two Hundred Fifty Thousand Dollars ($250,000). If Robertson Trust is required to
remediate or remove Hazardous Substances under this section, the closing date shall be
extended by 180 days or such lesser period as Robertson Trust requires, to prepare a work
plan for the remediation or removal, obtain all necessary governmental approvals for the
work and complete the remediation or removal. If Robertson Trust proceeds to
commence remediation or removal of the identified Hazardous Substance, but cannot
complete the remediation or removal within 180 days, City may, at its option, extend the
closing date for an additional period up to 180 days to enable it to complete the
remediation or removal before the close of escrow or terminate the escrow and reject the
IOD without further obligation.
3.5 ROUGH GRADED. A portion of the Dedicated Land and a portion of
the Purchased Land are located in a floodplain. Prior to Gity acceptance of the Park IOD
to satisfy the Master Plan Park Acreage Requirement, the Robertson Trust will cause the
Dedicated Land to be rough graded to the satisfaction of the City Engineer (1) to a
uniform 2% slope and, (2) to a standard which elevates it out of the existing floodplain
according to the Special Use Permit standards of CMC 21.110.030. All costs of grading
and initial erosion control requirements per City's Grading Ordinance, for the Dedicated
Land shall be paid by Robertson Trust. The City will pay for all reasonable costs relating
to the grading of the Purchased Land to a uniform 2% slope to the satisfaction of the City
Engineer (including the cost of grading the Purchased Land to a standard which elevates
it out of the existing floodplain according to the Special Use Permit standards of CMC
21.110.030) as well as initial erosion control as shown in attached Exhibit "H", which
sets forth grading standards and approval plans as well as the agreed upon fixed grading
cost to be paid by the City. Prevailing wage rates shall be paid for the grading of the
Purchased Land. City shall pay an amount not in excess of the following at the close of
escrow for grading of the Purchased Land, based on the information in Perry & Shaw,
Inc.'s 2nd Revised Rough Grading Proposal dated October 25, 2006 (the "Grading
Proposal"), a copy of which is attached as Exhibit "1" to the Purchase Agreement: (1) the
sum of $154,830, which represents all of the grading related costs described in Items P-l
through P-7 of the Grading Proposal, less half of the cost to perform Item P-5 of the
Grading Proposal1, plus (2) the sum of $1.34 per cubic yard to the extent more than
86,955 cubic yards of soil need to be cut, filled and graded to satisfy the City's
requirements, plus (3) the sums required to comply with the Storm Water Pollution
Prevention Plan (SWPPP) in connection with the above work, plus (4) any additional
costs relating to the above that are identified as exclusions in the Grading Proposal;
provided, however, Robertson Trust shall be responsible for the costs of the following in
connection with such grading work: (a) removal of any buried trash and debris; and (b)
the construction (but not the maintenance) of a desiltation basin. In any event, the City
shall only be obligated to pay for Robertson Trust's actual costs up to the maximum
1 The total amount of the Grading Proposal is $179,914. The total cost of Item P-5 ("Import from Private
Portion") is $50,168. Therefore, 50% of the cost of Item P-5 is $25,084. $179,914 - 25,084 = $154,830.
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amounts noted herein. If the City decides that hydroseeding or similar methods are
necessary or desirable for erosion control, the City will perform such work at its sole
cost, in addition to the costs described above, and Robertson Trust shall have no
obligations in connection with the same.
3.6 PERMITS. The total 13.5 to 13.9 net acres of Parkland shall be free from
environmental, geological, flooding or any other restrictions which could impact
development of the Park as depicted by The Park Concept Plan (Exhibit "G") and
Grading Standards and Plans (Exhibit "H"). The grading plan mylars (which need not
include any required landscape plans) as approved by the City Engineer, and a valid
Special Use Permit and Hillside Development Permit, shall be obtained by Robertson
Trust prior to approval of the first final map for the Robertson Ranch. All Agency
Permits and Grading Permits required to construct the Robertson Ranch Park as shown in
Exhibits "G" and "H" shall be obtained prior to issuance of the first building permit for
the Robertson Ranch Master Plan first village map, and Parkland grading shall be
completed by not later than July 1, 2008.
a. However, if Calavera is ready for its first building permit and all Agency
Permits and Grading Permits required to construct the Park have not yet been obtained,
the City shall allow issuance of building permits for up to one hundred thirty five (135)
market rate units approved for the East Village, provided the City finds that all
reasonable efforts have been made to obtain the Agency Permits required to construct the
Robertson Ranch Park. (Except as otherwise specifically set forth in this Section 3.6(a),
nothing in this Agreement shall be construed to give either Robertson Trust or Calavera
priority in obtaining building permits from the City.)
b. If grading is not completed by July 1, 2008, for any reason, no additional
building permits in addition to the one hundred and thirty five (135) noted in subsection
"a" above, may be obtained for the East or West Villages until grading is complete or the
Master Plan is amended. However, this restriction will not apply if all Agency Permits
and Grading Permits required to construct the Park are obtained by July 1, 2008, and
grading is started within thirty (30) days and completed within one hundre'd and eighty
(180) days of issuance of such permits, but in no event later than December 31, 2008. If
grading is not completed by December 31, 2008 for any reason, no additional building
permits may be obtained for the East or West Villages and City has the option to require
Robertson Trust/Calavera to amend the Master Plan to designate a new Park site as
specified by the City, in which case City will not be responsible for any grading costs
incurred prior to that date.
c. Notwithstanding the forgoing, should all Agency Permits and Grading
Permits required to construct the Park not be issued by December 1, 2007, or if such
Agency Permits are denied, and if the school district has indicated that it will not move
forward with purchase of the school site designated on PA 13, then the parties shall work
cooperatively to identify an alternative Parkland configuration on PA 12 and PA 13 that
would allow the location of the Robertson Ranch Park to shift enough to the north to take
the Parkland out of the Wetlands impact area shown on Exhibit "B" while still ensuring
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B
that the Robertson Ranch Park can accommodate the three soccer fields and all ancillary
park amenities as shown on the Park Plan attached as Exhibit "G" to this Agreement.
d. The phrase "all reasonable efforts" as used in this section 3.6 means that
all necessary documentation and applications required by Agency regulation have been
submitted to the Agencies, and any requests by the Agencies have been responded to in a
timely fashion.
3.7 INTERNAL PARK ACCESS. In addition to required improvements to
Cannon Road and El Camino Real, Robertson Ranch shall provide Street A, an internal
all weather two lane paved access to the Park site. Water, sewer, cable and electricity
shall be provided by Calavera to the PA 12 boundary with the East Village prior to or
concurrent with development of the Park, to the reasonable satisfaction of the City
Engineer.
3.8 DELIVERY OF DOCUMENTS. Within 10 days after the opening of
escrow for the Purchased Land, Robertson Trust and Calavera shall deliver or cause to be
delivered to City all of the following, to the extent in Robertson Trust's and Calavera's
possession or control: environmental reports, environmental audits, soils reports, site
plans, engineering reports and plans, traffic reports, landscape plans, plans and
specification for any improvements, structural calculations, floor plans, and any and all
other reports or documents of significance to the Dedicated Land including a Property
Title Report. If City disapproves the dedication of the Dedicated Land due to information
in such documents, in the time frame and manner provided for in the due diligence period
for the Purchased Land, the provisions of section 2.5 of this Agreement shall be
applicable and the parties shall cooperate to identify a mutually agreeable alternative
park site or configuration.
3.9 EXECUTION OF TOXIC WASTE STATEMENT. Upon the execution
of this Agreement, Robertson Trust and Calavera will execute the Toxic Waste Statement
attached as Exhibit "I" hereto, in order to comply with City Municipal Code section
21.38.060(5)(D).
3.10 NO OTHER OBLIGATIONS. To Robertson Trust's Knowledge (as
such term is defined in Paragraph 12.1 of the Purchase Agreement attached hereto as
Exhibit F), (1) there are no obligations in connection with the Dedicated Land which will
be binding upon City or affect the Land after Closing and (2) there are no assessments or
bonds assessed or proposed to be assessed, against the Land, except matters which are set
forth in the Preliminary Report and assessments imposed by City. To Robertson Trust's
Knowledge there are no existing or proposed easements, covenants, restrictions,
agreements or other documents which affect title to the Land and which are not disclosed
by the Preliminary Report or the Master Plan.
3.11 ROBERTSON TRUST IS OWNER. Robertson Trust is the legal and
equitable owner of the Land, with full right to convey the same, and without limiting the
generality of the foregoing, Robertson Trust has not granted any option or right of first
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refusal or first opportunity to any party to acquire any interest in any of the Dedicated
Land. The Robertson Trust has not sold, transferred or conveyed any air rights or other
development rights with respect to the Land.
3.12 MASTER PLAN APPROVAL CONTINGENCY The validity of this
Agreement is conditioned on the City's approval of the Robertson Ranch Master Plan.
This section is for the benefit of Robertson Trust.
4.0 INFRASTRUCTURE. The City shall not be obligated to provide any Master
Plan conditions for Cannon Road, El Camino Real, and sewer, water or roadway frontage
improvements or be responsible for any share of the cost of the Master Plan improvement
obligations, whether or not such improvement obligations are attributable to the Parkland.
5.0 DRAINAGE. The parties agree that the City, by accepting the Park IOD and
purchasing the Purchased Land, shall not be responsible to accept or provide for storm
drainage from adjacent planning areas.
6.0 INDEMNITY. Robertson Trust shall reimburse, indemnify, defend and hold
harmless City from any and all causes of action, claims, demands, loses, liabilities, costs
or expenses (including, without limitation, reasonable attorneys' fees and expenses)
arising as a result of any breach of a representation or warranty made in this Agreement
by Robertson Trust from any transactions or occurrences relating to the Dedicated Land
prior to the City's acceptance of the Dedicated Land, other than as a result of the acts of
City and/or any of City's employees, agents, representatives, contractors or invitees upon
the Dedicated Land prior to the date the City accepts the Park IOD, including all claims
by the tenant (Parkway Nursery) currently occupying a portion of the site to be dedicated.
The provisions of this Section 6.0 shall survive the City's acceptance of the Park IOD.
7.0 CERTIFICATE OF ACCEPTANCE. The City shall cause the Certificate of
Acceptance of the IOD document to be recorded at close of escrow for the Purchased
Land. Escrow fees shall be split equally between the City and Robertson Trust. City and
Robertson Trust agree that no documentary transfer taxes are payable based-bn the City's
acceptance of the Park IOD.
8.0 ABANDONMENT BY CITY. If the City determines not to use the Dedicated
Land for a park, it shall record a rejection of the entire Park IOD, along with a Quitclaim
Deed or other instrument necessary to clear title as reasonably requested or required by
Robertson Ranch, as quickly as is reasonably possible following the determination by the
City Council that the Park IOD is not desired. In such event, Robertson Trust may
process a master plan amendment with the City to change the permitted use of the
Dedicated Land, with the understanding that the City may condition its approval of the
master plan amendment on Robertson Trust's satisfaction of an alternative Park
Requirement.
9.0 OTHER PARK PROPERTY. It is currently the City's intent to accept the Park
IOD for development of the Robertson Ranch Park as described in this Agreement,
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simultaneous with close of escrow for the Purchased Land to meet the demands for sports
fields in the Northeast Quadrant, as soon as the conditions precedent described in this
Agreement and the Purchase Agreement attached as Exhibit "F" have been satisfied.
10.0 CITY OPTION TO GRADE. If the grading of the entire 13.9 acres of Parkland is
not completed to the satisfaction of the City Engineer by the dates set forth in Paragraph
3.6 above, the City may at its option close escrow and then commission the grading work
to be done. The Robertson Trust shall be required to reimburse the City for any and all
grading costs with legal interest in addition to the bonded amounts required by the City to
secure those obligations, immediately upon ascertaining that amount and prior to the
City's issuance of any further entitlements for the East or West Villages. City may
thereafter proceed with acceptance of the Park IOD and close of escrow on the Purchased
Land.
11.0 TIME OF THE ESSENCE. Time is of the essence of this Agreement. The parties
understand that the time for performance of each obligation has been the subject of
negotiation by the parties.
12.0 DEDICATED LAND TO BE CONVEYED "AS IS" AND WITHOUT
WARRANTY. CITY ACKNOWLEDGES THAT, IF CITY ACCEPTS ROBERTSON
TRUST'S OFFER OF DEDICATION, CITY WILL BE ACCEPTING FEE
OWNERSHIP OF THE DEDICATED LAND SOLELY IN RELIANCE ON CITY'S
OWN INVESTIGATION. CITY FURTHER ACKNOWLEDGES THAT, EXCEPT FOR
ROBERTSON TRUST'S EXPRESS REPRESENTATIONS IN THIS AGREEMENT,
ROBERTSON TRUST WELL CONVEY THE DEDICATED LAND TO CITY IN "AS
IS, WHERE IS" CONDITION AND WITH ALL FAULTS AND DEFECTS, LATENT
OR OTHERWISE. City expressly acknowledges that, except as otherwise expressly
specified herein, Robertson Trust makes and has made no representations or warranties
whatsoever, express or implied, or arising by operation of law with respect to the
Dedicated Land or any matter related thereto, including but not limited to any
representation or warranty as to condition, merchantability, or fitness of the Dedicated
Land for a particular use or purpose, any representation or warranty as to the presence or
absence of hazardous materials in, on, under, or migrating to or from the Dedicated Land
(although nothing herein shall affect Robertson Trust's obligations in Paragraphs 3.2 and
3.4 above, or otherwise pursuant to applicable law), or any representation or warranty as
to any of the following matters: (1) soils, seismic, hydrological, geological, and
topographical conditions and configurations; (2) availability of adequate schools and fire
and police protection; (3) present, past, or future conformity of the Dedicated Land with
planning, building, zoning, subdivision, and development statutes, ordinances,
regulations, and permits, the general plan, and the specific plan; (4) the condition of title
to the Dedicated Land, including but not limited to the existence of any easement,
encroachment, or encumbrance, whether or not a matter of public record, and whether or
not visible upon inspection of the Dedicated Land (although nothing herein shall affect
Robertson Trust's obligations in Paragraph 3.1 above); and (5) any other matter relating
to the Dedicated Land or to the development or operation of the Dedicated Land,
504201.2 10 II
including but not limited to value, feasibility of development, cost, governmental
permissions or entitlements, marketability, and investment return.
13.0 OPTION TO REACOUIRE PARKLAND. If City accepts fee title to the
Parkland, but at any date prior to December 31, 2016, uses, develops or decides to use or
develop the Parkland for any use other than as a public park or other public facility,
Robertson Trust only (including its beneficiaries and family members and the heirs of the
current trustees of Robertson Trust and their beneficiaries and family members) will have
the right and option to reacquire the Parkland from City on the following terms and
conditions: (1) City shall notify Robertson Trust in writing of City's intention to change
the use of the Parkland, or such actual change in use, as soon as possible (the "Notice of
Use Change"); (2) Robertson Trust shall have 30 days after its receipt of the Notice of
Use Change to notify City in writing of Robertson Trust's exercise of its option to
reacquire the Parkland (the "Option to Reacquire"); (3) if Robertson Trust timely
exercises its Option to Reacquire, City shall sell the Parkland to Robertson Trust at the
"Sales Price" (defined below); (4) the parties shall then promptly open an escrow for such
conveyance with a mutually acceptable title company acting as escrow agent; (5) title,
escrow and transfer fees shall be paid by Robertson Trust; (6) Robertson Trust shall remit
a deposit equal to 5 percent of the Sales Price upon the opening of escrow, and shall pay
the balance of the Sales Price in cash to City at close of escrow; (7) the escrow shall close
not later than the 90th day after Robertson Trust's exercise of its Option to Reacquire; (8)
Robertson Trust may obtain financing to reacquire the Parkland, but financing will not be
a contingency to such repurchase; and (9) City shall convey the Parkland to Robertson
Trust free and clear of all liens and encumbrances of any nature, except those liens and
encumbrances affecting the Parkland on the date that the Robertson Trust executes the
IOD or those encumbrances required for public infrastructure or utilities. The provisions
in this paragraph shall run with the Parkland and be binding on City and any successor
owner of the Parkland, for the benefit of Robertson Trust, its beneficiaries, the Robertson
Trust's successor trustees and the heirs and family members of the Robertson Trust
trustees and beneficiaries, but otherwise the provisions herein are non-assignable to third
parties outside of the Robertson family. For purposes of this Paragraph, the "Sales Price"
is the sum of the following: (1) $732,000 per net acre, increased by 5% per year on an
annual compounded basis (and prorated for any partial year) for every one year period
after the date City originally became the fee owner of the Parkland until the date
Robertson Trust reacquires fee ownership of the Parkland, plus (2) the City's actual out-
of-pocket costs relating to the development of the Parkland to the date of its Notice of
Use Change, including the City's actual out-of-pocket pre-construction costs (such as
payable to consultants and designers) and actual out-of-pocket construction costs. For
example, if the City retains fee ownership of the Parkland for a total of 3.5 years, the Sale
Price for the Parkland will be $860,100 per acre ($732,000 x 17.5% = $860,100) plus the
City's applicable out-of-pocket costs as described above. If City elects to develop only a
portion of the Parkland as a public park or other public facility, then Robertson Trust
shall have the Option to Reacquire the remainder of the Parkland on the same terms and
conditions as described above (pro rated as applicable for the reduced acreage).
504201.2 11
14.0 SUCCESSORS AND ASSIGNS. Except as set forth in Paragraph 13.0 above,
this Agreement shall bind and inure to the benefit of the parties, their respective assigns
and successors, and the successive owners of the Robertson Ranch, provided, however,
payment for the Purchased Land and all grading shall be the made to the Robertson Trust.
15.0 NO THIRD PARTY BENEFICIARY. Nothing contained herein is intended
nor shall be construed as benefiting any third party, or member of the public, nor shall it
create or authorize any claims, causes of action or legal proceedings to interrupt or
enforce this Agreement other than by the parties hereto and their successors and assigns.
16.0 SATISFACTION OF PLANNING COMMISSION CONDITION. The City's
Planning Commission's Resolution No. 6106 dated May 31, 2006, recommends approval
of the Robertson Ranch Master Plan, subject to various conditions. The Robertson
Trust's, Calavera's and the City's execution of and compliance with this Agreement (and
the Robertson Trust's and the City's execution of and compliance with the Parkland
Purchase Agreement) constitutes satisfaction of Condition No. 4 of such Resolution.
17.0 RESPONSIBLE PARTIES. The name of the persons who are authorized to give
written notices or to receive written notice on behalf of the City and on behalf of the
Robertson Trust and Calavera connection with the foregoing are as follows
For City of Carlsbad:
Raymond R. Patchett, City Manager
City of Carlsbad
1200 Carlsbad Village Dr
Carlsbad CA 92008
(760) 434-2821
(760) 720-9461 fax
With a copy to:
Ronald R. Ball, City Attorney
City of Carlsbad
1200 Carlsbad Village Dr
Carlsbad CA 92008
(760) 434-2891
(760) 434-8367 fax
For Robertson Trust:
Brian Robertson
1060 Old Avon Road
Deary, ID 83823
504201.2 12 \O^
And
Gary Robertson
29408 Paso Robles Road
Valley Center, CA 92082
With a copy to:
Ken Cablay, President
SeaBourne Development
PO Box 4659
Carlsbad CA 92018-4659
And
Alan J. Zuckerman, Esq.
Musick, Peeler & Garrett LLP
225 Broadway, Suite 1900
San Diego CA 92101
For Caiavera Hills II. LLC:
Brian Milich
Senior Vice President
Corky McMillin Companies
2750 Womble Road
San Diego CA 92106
With a copy to:
Amy G. Nefouse, Esq.
DLA Piper US LLP
401 B Street, Suite 1700
San Diego CA 92101
18.0 CONSTRUCTION. This Agreement along with the Exhibit "F" (Purchase
Agreement) shall be construed as a whole in accordance with its fair meaning, the
captions being for the convenience of the parties only and not intended to describe or
define the provisions and the portions of the Agreement to which they pertain. All parties
acknowledge that they understand the terms and conditions of this Agreement and
execute the Agreement without force or duress. No party shall deny the enforceability of
any provision of this Agreement on the basis that it did not have legal counsel, or that it
did not understand a term or condition of this Agreement. All parties to this Agreement
acknowledge that they have been represented by counsel and/or advisors of their own
choice and that neither party shall be deemed to have primary responsibility for drafting
this Agreement.
504201.2 13
19.0 WAIVER. No waiver by either party of any default, breach, or any other term set
forth herein shall constitute a waiver of any other default, breach, or term whether of the
same or any other covenant or condition.
20.0 SEVERABILITY. If any portion of this Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remainder of the
provisions hereof shall remain in full force and effect and shall be given its full and fair
meaning in order to effectuate the purposes of this Agreement.
21.0 AMENDMENTS. No change or addition to this Agreement, or any part or
portion thereof, shall be valid unless in writing and signed by all parties hereto.
22.0 ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties hereto respecting the subject matter covered. This Agreement
supersedes and replaces any and all previous discussions, negotiations and writings
between the parties hereto, superseding and replacing all negotiations, prior discussions,
preliminary agreements, the prior Parks Agreements or understanding respecting the
subject matter whether written or oral.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and year first above written
CITY OF CARLSBAD
a municipal corporation of the State of California
By:.
CLAUDE A. LEWIS
Mayor
ATTEST:
City Clerk,
Lorraine Wood
Calavera: CALAVERA HILLS II, LLC
a California limited liability company
By:
Its:
By:_
Name:
504201.2 14
Its:
By:_
Name:
Its:
Robertson Trust: GARY ROBERTSON AND BRIAN ROBERTSON,
CO-SUCCESSOR TRUSTEES OF THE ROBERTSON
FAMILY 1995 TRUST, dated April 19, 1995, as to an
undivided one-half interest
By:
Name : Gary Robertson
Its: Co-Successor Trustee
By:
Name: Brian Robertson
Its: Co-Successor Trustee
GARY ROBERTSON AND BRIAN ROBERTSON,
CO-SUCCESSOR TRUSTEES UNDER DECLAR-
ATION OF TRUST, dated October 8, 1976, as to an
undivided 7% interest
By:
Name: Gary Robertson
Its: Co-Successor Trustee
By:
Name: Brian Robertson
Its: Co-Successor Trustee
GARY ROBERTSON AND BRIAN ROBERTSON,
CO-SUCCESSOR TRUSTEES OF THE ELSIE M.
KELLY IRREVOCABLE TRUST, dated June 19, 1989,
as to an undivided 43% interest
By:
Name: Gary Robertson
Its: Co-Successor Trustee
504201.2 15
By:
Name: Brian Robertson
Its: Co-Successor Trustee
504201.2 16 ^
EXHIBITS
A - Map of West Village and East Village
B - The Park Site
C - Dedicated Land Legal Description and Plat Map
D - IOD Form
E, - Purchased Land Legal Description and Plat Map v
F - Tarkland Purchase Agreement dated October 27, 2006
<&•- The Park Concept Plan
H - Grading Standards and Plans
I - Toxic Waste Statement \
504201.2 17
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I
PARCEL 2
ADJ 01-13, C£ 01-66
No, 2001-0866066
PA 13
6,92 A.C.
PA 23C
'OPEN SPAC
13.44 AC.
CONSULT A^ITS
2710 Loker Ave. 760-931-7700
Suite 100 Fax:Carlsbad. CA 760-931-8680
92010
P.O.B.
SUBDIVISION BOUNDARY
RIGHT-OF-WAY
POINT OF BEGINNING
AREA OF DEDICATED LAND
ACRES = 7.97 AC.
W
SCALE: 1" = 200'
DATE: AUGUST 2, 2006
ROBERTSON FAMILY
TRUST
ROBERTSON RANCH
EXHIBIT 'C'
SHEET 1 OF 2 SHEETS
A.P.N. 208-010-36
EXHIBIT
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Name: City Clerk
City of Carlsbad
Street Address: 1200 Carlsbad Village Drive
City & State: Carlsbad, CA 92008
MAIL TAX STATEMENTS TO:
EXEMPT
SPACE ABOVE THIS LINE FOR RECORDERS USE
Documentary transfer tax Is $ -0-
rxj Computed on full value of property conveyed, or
[ 1 computed on full value less value of liens and encumbrances remaining at time of sale or transfer.
[ ] unincorporated area or [X] City of Carlsbad; and
IRREVOCABLE OFFER TO DEDICATE REAL PROPERTY
FOR A NORTHEAST QUADRANT PARK
Project NO./NAME: APN
Gary Robertson and Brian Robertson as co-successor trustees of the Robertson Family
1995 Trust, dated April 15,1995 as to an undivided one-half interest; Gary Robertson and
Brian Robertson, co-successor trustees under Declaration of Trust dated October 8,1976,
as to an undivided 7% interest; and Gary Robertson and Brian Robertson, co-successor
trustees of the Elsie M. Kelly Irrevocable Trust dated June 19,1989 as to an undivided 43%
interest (collectively "Robertson Trust"), hereinafter designated Grantor, represents that
they are the owners of the hereinafter described real property, and for a valuable
consideration, hereby makes an IRREVOCABLE OFFER OF DEDICATION of fee title to the
CITY OF CARLSBAD, a Municipal corporation, hereinafter designated Grantee, its
successors and assigns, for a future North East Quadrant Public Park upon, through,
under, over and across the hereinafter described real property for the following purpose:
PUBLIC PARK
The real property referred to above is situated in the City of Carlsbad, County of San
Diego, State of California and is described in Exhibit "A" consisting of page(s),
attached hereto and made a part hereof. Exhibit "B" consisting of page(s) is
attached for clarity only.
This Offer of dedication is made pursuant to Section 7050 of the Government Code of the
State of California and may only be accepted by the City Council of the City of Carlsbad A
Public Park.
This Offer of Dedication shall be irrevocable and shall be binding on the Grantor, its heirs,
executors, administrators, successors and assigns.
IN WITNESS WHEREOF, the Grantor has caused this Irrevocable offer of Dedication to be
executed this day of , 200 .
Gary Robertson and Brian Robertson as co*
successor trustees of the Robertson Family 1995
Trust, dated April 15, 1995 as to an undivided one-
half interest; Gary Robertson and Brian Robertson,
co-successor trustees under Declaration of Trust
dated October 8, 1976, as to an undivided 7%
interest; and Gary Robertson and Brian Robertson,
co-successor trustees of the Elsie M. Kelly
Irrevocable Trust dated June 19, 1989 as to an
undivided 43% interest (collectively "Robertson
n
By:
(Signature)
Name:
(Type or Print)
Title: __
(Type or Print)
By:
(Signature)
•
Name: L_
(Type or Print)
Title:
(Type or Print)
PARCEL 2
ADJ 01-13, C£ 01-66
. 2001-0886086
PA 23C
OPEN SPACE,
LEGEND
SUBDIVISION BOUNDARY
RIGHT-OF-WAY
P.OB. POINT OF BEGINNING
AREA OF PURCHASED LAND
ACRES = 5.47 AC2710 Loker Ave. 760-931-7700
Suite 100 Fox:Carlsbad. CA 760-931-8680
92010
100
SCALE: 1" = 200'
APPLICANT;DATE: AUGUST 2, 2006
SHEET 2 OF 2 SHEETSROBERTSON FAMILY
TRUST A.P.N. 208-010-36
PARKLAND PURCHASE AGREEMENT
This Parkland Purchase Agreement (this "Agreement") dated as of October 27, 2006, is
made and entered into by and between Gary Robertson and Brian Robertson, as co-successor
trustees of the Robertson Family 1995 Trust dated April 19, 1995, as to an undivided one-half
interest; Gary Robertson and Brian Robertson, co-successor trustees under Declaration of Trust
dated October 8, 1976, as to an undivided 7% interest; and Gary Robertson and Brian
Robertson, co-successor trustees of the Elsie M. Kelly Irrevocable Trust dated June 19, 1989, as
to an undivided 43% interest, (collectively, "Robertson Trust"), and the City of Carlsbad, a
Municipal Corporation, ("City") with regard to the following:
A. Robertson Trust is the fee owner of about 220 acres of land in the City of
Carlsbad, commonly known as the West Village of Robertson Ranch, as described in the
Robertson Ranch Master Plan dated May 2006 (the "Master Plan"). The West Village is divided
into various Planning Areas, including Planning Area 12 ("PA 12"). which consists of about 13.9
gross acres of land and is located within the southeast corner of the West Village.
B. Concurrently with the execution of this Agreement, Robertson Trust and City
(and Calavera Hills II, LLC) are executing a "Parkland Agreement for the Robertson Ranch
Master Plan" dated October 27, 2006 (the "Parkland Agreement"). This Agreement is also
Exhibit "F" to the Parkland Agreement.
C. The Parkland Agreement (1) references the land within PA 12 to be purchased by
City in accordance with the terms of this Agreement and (2) describes Robertson Trust's
Irrevocable Offer to Dedicate ("IOD") 7.97 net acres of adjacent land within PA 12. The land
within PA 12 to be purchased by City in accordance with the terms of this Agreement is referred
to as the "Purchased Land" in both the Parkland Agreement and in this Agreement. The land
within PA 12 to be dedicated by Robertson Trust to City is referred to as the "Dedicated Land"
in the both Parkland Agreement and in this Agreement. The Purchased Land and the Dedicated
Land together constitute the entirety of PA 12, and will be the site of the Robertson Ranch Park
(defined in Recital D below).
D. Under this Agreement, City desires to acquire the Purchased Land, which consists
of about 5.53 to 5.93 net acres of land within PA 12, and which is contiguous to the Dedicated
Land to be dedicated by Robertson Trust to City in satisfaction of the Master Plan's park
requirement. The location of the Purchased Land is generally shown on Exhibit "E" to the
Parkland Agreement. City intends to purchase the Purchased Land (along with accepting the
Dedicated Land) for the purpose of constructing a public park and recreation area and associated
improvements (the "Robertson Ranch Park"). Robertson Trust is willing to sell the Purchased
Land to City on the terms and conditions as set forth herein.
E. Both this Agreement and the Parkland Agreement contain provisions relating to
the Purchased Land. To the extent the Parkland Agreement contains provisions relating to the
Purchased Land, such provisions of the Parkland Agreement are incorporated herein by this
504184.2
reference; provided, however, if any inconsistency exists between the Parkland Agreement and
this Agreement relating to the Purchased Land, the provisions in this Agreement shall prevail.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1. PURCHASE AND SALE
1.1 The Purchased Land. Subject to the terms and conditions set forth in this
Agreement, Robertson Trust hereby agrees to sell to City, and City hereby agrees to purchase
from Robertson Trust, all of Robertson Trust's right, title and interest in and to the following:
(a) Fee title to a portion of PA 12 of the Master Plan containing between 5.53
to 5.93 net acres (the "Land") for public facility purposes in a condition and
configuration acceptable to the Community Services Director or her designee and
consistent with the provisions in this Agreement, at the location generally shown on
Exhibit "E" attached to the Parkland Agreement.
(b) All rights, privileges and easements appurtenant to the Land, as well as all
development rights, land use entitlements, including without limitation existing building
permits, licenses, permits and certificates, air rights, mineral rights, water, water rights,
riparian rights and water stock relating to the Land and any rights-of-way or other
appurtenances used in connection with the beneficial use and enjoyment of the Land, to
the extent such rights are held by Robertson Trust (collectively, the "Appurtenances");
and
(c) Any improvements and fixtures located on the Land (collectively, the
"Improvements").
The Land, Appurtenances and Improvements described in Paragraphs 1.1 (a) through
l.l(c) above are hereinafter collectively referred to as the "Purchased Land".
1.2 Increase in Size of Purchased Land. It is City's intent that the entire
13.9 gross acres of PA 12 be developed as the Robertson Ranch Park. Therefore,
notwithstanding anything in this Agreement to the contrary, if City approves a Master Plan with
a reduced unit density from the current expected density of 1,122 units, then (1) the acreage of
the Dedicated Land will be reduced accordingly, based on the number and type of units approved
by City and (2) City will increase the acreage (and proportionate purchase price) of the
Purchased Land by an equivalent amount. For example, if the Dedicated Land is reduced from
7.97 acres to 6.97 net acres, then (1) the size of the Purchased Land will be increased by one net
acre, (2) the Per Acre Price component of the Purchase Price (as such terms are defined in
Paragraph 3 below) will be increased by an additional $732,000 and (3) the Grading Price
comppnent of the Purchase Price (as such terms are defined in Paragraph 3 below) will be
increased to reflect Robertson Trust's increased cost for the additional cubic yards to be graded,
as shown on Exhibit "1", Perry & Shaw Inc.'s "Robertson Ranch Public Portion - 2nd Revised
Rough Grading Proposal" dated October 25, 2006 (the "Grading Proposal").
504184.2
1.3 Escrow. Within five days after approval of the Robertson Ranch Master
Plan by the City Council, the parties shall open escrow (the "Escrow") with Stewart Title
Company (the "Escrow Holder"). Robertson Trust and City shall each deposit an executed
counterpart of this Agreement with Escrow Holder and this Agreement shall serve as instructions
to Escrow Holder for consummation of the transactions contemplated hereby. Robertson Trust
and City agree to execute such supplemental escrow instructions as are reasonably acceptable to
Robertson Trust and City and as may be required by the Escrow Holder, provided that in the
event of any inconsistency between any escrow instructions and the terms of this Agreement, the
terms of this Agreement shall control.
1.4 The Deposit. Upon City's delivery to Escrow Holder of City's Notice to
Proceed (as defined in Paragraph 7 below), City shall remit to Escrow Holder a deposit in the
sum of Three Hundred and Forty Thousand Dollars ($340,000.00) (the "Deposit"). The Escrow
Holder shall place the Deposit in an interest-bearing account for the benefit of City.
1.4.1 [Deleted]
1.5 Closing. For purposes of this Agreement, the term "Closing" shall mean
the time when the Escrow Holder shall have caused the recordation of the Deed (as defined in
Section 4 below). The term "Closing Date" shall mean the date for the Closing, which shall be
as soon as possible after Escrow is notified in writing by City and Robertson Trust that all
Conditions Precedent (as defined in Article 9 below) have been satisfied. Notwithstanding
anything herein to the contrary, if the Closing Date fails to occur by December 31, 2008 through
no fault of either party, then (1) the Closing Date may be extended by mutual agreement of the
parties, or (2) either party may terminate this Agreement, in which event (a) the Deposit shall be
returned to City, (b) neither party shall have any further rights or obligations to the other with
respect to the Purchased Land identified herein, (c) the City may require that the Park Dedication
Requirement be satisfied in an alternative location within the Robertson Ranch Master Plan and
(d) Robertson Trust may process an amendment to the Master Plan relating to the development
of the Purchased Land and Dedicated Land identified herein and the designation of a new park
site elsewhere in the Master Plan.
2. PROPERTY BOUNDARIES. The property boundaries for both the
Dedicated Land and the Purchased Land shall be as shown on Exhibit "B" attached to the
Parkland Agreement (the "Agreed Boundary"), subject to the provisions in Paragraph 1.2 above.
Robertson Trust will cause to be performed at its own expense such civil engineering as is
reasonably required to establish the Agreed Boundary by metes and bounds descriptions and plat
maps as may be required for issuance of an ALTA title policy, subject to approval of the City
Engineer; provided, however, the cost of any surveying required for the ALTA Title Policy shall
be borne by City.
3. PURCHASE PRICE. City shall pay the following for the Purchased Land:
(1) Seven Hundred Thirty Two Thousand Dollars ($732,000.00) per net acre (the "Per Acre
Price") plus (2) the amount of Robertson Trust's cost to grade the Purchased Land (the "Grading
Price"), as set forth in greater detail in Paragraph 3.5 of the Parkland Agreement, entitled "Rough
Grading". The sum of the Per Acre Price and the Grading Price is hereinafter referred to in this
Agreement as the "Purchase Price". Thus, if the Purchased Land is 5.53 net acres, the Per Acre
504184.2
Price component of the Purchase Price will be Four Million Forty Seven Thousand Nine
Hundred and Sixty Dollars ($4,047,960.00). For purposes of calculating the Per Acre Price, the
term "net acre" shall have the same meaning as in the Parkland Agreement. City shall remit the
Purchase Price in cash (less the Deposit) to Escrow Holder prior to the Closing Date, and Escrow
Holder shall deliver the Purchase Price to Robertson Trust on the Closing Date. The sum of
Seven Hundred Thirty Two Thousand Dollars ($732,000.00) per acre is the current park-in-lieu
fee for Master Plan Development established by the City Council on June 25, 2005, based on the
most recent, property appraisals conducted by the City. The parties acknowledge that the Price
Per Acre is below the fair market value of the Purchased Land. The parties shall jointly notify
Escrow Holder in writing at least 10 days prior to the Closing Date of the exact amount of the
Purchase Price.
3.1 Audit Right. When the written grading invoice is received and prior to the
Closing Date, City shall have the right to audit all Robertson Trust's invoices and all other
documents relating to Robertson Trust's calculation of the Grading Price. If such audit discloses
that City has been overcharged or undercharged for the Grading Price, Robertson Trust shall
promptly revise the Grading Price. Notwithstanding the foregoing, the Grading Price shall in no
event exceed the amounts described in Paragraph 3.5 of the Parkland Agreement, except if the
amount of Purchased Land is increased according to Paragraph 1.2 herein and/or for identified
exclusions in the Grading Proposal. Further, the City's obligation to pay for grading related
expenses shall in no event exceed the actual amounts billed by the grading contractor and others
for the work they perform on and to the Purchased Land.
4. TITLE TO THE PURCHASED LAND. Upon Closing, Robertson Trust
shall convey to City marketable and insurable fee simple title to the Purchased Land by a duly
executed and acknowledged grant deed in a form reasonable acceptable to City (the "Deed").
Evidence of such conveyance by Robertson Trust shall be the issuance by Stewart Title
Company (the "Title Company") to City of an ALTA Owner's Policy of Title Insurance in the
amount of the Purchase Price, insuring fee simple title to the Purchased Land all subject only to
such exceptions as City shall approve pursuant to Section 6 below (the "Title Policy"). The Title
Policy shall contain such special endorsements as City may reasonably require at its expense (the
"Endorsements").
5. CITY SITE INSPECTIONS. Prior to the Closing Date, Robertson Trust
shall afford authorized representatives of City access to the Land upon twenty-four (24) hours
prior telephone notice to Robertson Trust, for purposes of satisfying City with respect to (i) the
representations, warranties and covenants of Robertson Trust contained herein, (ii) the condition
of the Land and (iii) satisfaction of any Conditions Precedent to the Closing contained herein,
including without limitation, any site inspections and engineering and environmental surveys to
be conducted by City at its cost and expense (except as set forth in Paragraphs 3.2 and 3.4 of the
Parkland Agreement). Robertson Trust may elect to have a representative of Robertson Trust
present during City's site inspections.
5.1 City Obligations Relating to Inspections. With respect to such entry,
investigations, assessments and other tests upon the Land, City shall: (i) not cause or permit any
unreasonable interference with Robertson Trust's activities on or near the Land; (ii) keep the
Land free and clear of any and all liens and encumbrances resulting from any activities by, or on
504184.2
behalf of, City; (iii) indemnify, defend, protect and hold Robertson Trust and its agents and the
Land harmless from and against any and all claims (including reasonable attorneys' fees) arising
out of such entry and activities upon the Land; (iv) discharge any and/or encumbrance arising out
of such entry, investigations, assessments and other tests as soon as practicable after Robertson
Trust's demand, whether or not such lien and/or encumbrance is considered valid by City; and
(v) within 30 days after such entry, promptly repair any alteration of the condition of the Land
which resulted from such entry upon, and/or such investigations, assessments, and other tests
with respect to, the Land so as to restore the Land to the same condition inn which it existed
prior to such entry and/or activities. The indemnification obligations of City under this Section 5
shall survive any termination of this Agreement.
5.2 [Deleted]
6. TITLE MATTERS. Once in escrow, within thirty (30) days following
City's receipt of the Preliminary Report (defined in Paragraph 8.1 below), City shall specify in
writing any special requirements for the Title Policy (including, without limitations, exceptions
to be removed that Robertson Trust is capable of removing, and any required endorsements). In
any event, Robertson Trust covenants to cause to be released and reconveyed from the Land, and
to remove as exceptions to title prior to the Closing, any mortgages, deeds of trust, or other
monetary encumbrances, assessments or indebtedness shown on the Preliminary Report (defined
in Paragraph 8.1 below) except for current, non-delinquent real property taxes and assessments
billed and paid as a part of the real property tax bill. In addition, Robertson Trust shall
reasonably cooperate with City and use Robertson Trust's reasonable efforts to cause the
removal as exceptions to the Title Policy of any items identified in the Preliminary Report and
specified by City to Robertson Trust during the Due Diligence Period (as defined in Section 7) as
items which shall be disapproved by City. If City fails to deliver City's Notice to Proceed (as
defined in Section 7) to Robertson Trust prior to the expiration of the Due Diligence Period, the
City shall be deemed to have elected to terminate this Agreement. In the event of the termination
of this Agreement pursuant to this Section 6, (1) neither party shall have any further obligations
to the other under this Agreement (except under provisions of this Agreement which specifically
state that they survive termination), (2) City will have no obligation to pay the Grading Price to
Robertson Trust and (3) the Robertson Trust will have no obligation to grade the Purchased
Land, and (4) the City may require Robertson Trust/Calavera to process a Master Plan
amendment to designate another park site location to be specified by the City.
7. DUE DILIGENCE PERIOD. As used herein, the term "Due Diligence
Period" shall commence on the date the City receives the metes and bounds legal descriptions for
the Dedicated Land and the Purchased Land for the Agreed Boundary as provided in Section 2,
and all documents specified in Section 8.1 and 8.3 of this Agreement shall expire on the 90th day
thereafter. (City acknowledges that if the Robertson Trust receives its grading permits described
in Paragraph 9.10 below before the expiration of the Due Diligence Period, Robertson Trust will
have no obligation to start grading the Purchased Land until after the expiration of the Due
Diligence Period.) City may elect, by written notice to Robertson Trust at any time prior to the
expiration of the Due Diligence Period to terminate this Agreement, which election shall be in
City's sole and absolute discretion. If City desires to purchase the Land subject to the conditions
precedent to Closing set forth in Section 9 of this Agreement, then on or before the expiration of
the Due Diligence Period, City shall deliver (1) written notice to Robertson Trust and Escrow
504184.2
Holder of such election to proceed (the "City's Notice to Proceed"), electing to waive City's
right of termination pursuant to this Section and proceed with the Closing subject to the
remaining conditions set forth in this Agreement, and (2) the Deposit to the Escrow Holder.
8. ROBERTSON TRUST'S DELIVERIES.
8.1 Within (ten) 10 days after the opening of escrow, Robertson Trust shall
deliver or cause to be delivered to City all of the following at Robertson Trust's sole cost and
expense:
8.1.1 Current preliminary title report for PA 12, issued by Title
Company, accompanied by copies of all documents referred to in the report (collectively, the
"Preliminary Report");
8.1.2 To the extent in Robertson Trust's possession or control,
environmental reports, environmental audits, soils reports, site plans, engineering reports and
plans, traffic reports, landscape plans, plans and specification for any Improvements, structural
calculations, floor plans, and other reports or documents of significance to the Purchased Land;
8.1.3 All governmental permits and approvals relating to the Purchased
Land, other than those issued by City itself; and
8.1.4 A Natural Hazard Disclosure Report. Escrow Holder is hereby
instructed to order such Report and deliver copies to both parties within 10 days after the
opening of the Escrow.
8.2 Within (five) 5 days following Robertson Trust's receipt of City's written
request therefor, Robertson Trust shall deliver to City such other non-proprietary and non-
confidential information relating to the Purchased Land that is reasonably requested by City in
written notice to Robertson Trust during the Due Diligence Period, to the extent such
information either is in the possession or control of Robertson Trust (collectively, the "Other
Documents").
»
8.3 By not later than the 10th day after escrow opens, Robertson Trust shall
obtain and deliver to City the environmental study(ies) described in Paragraph 3.2 of the
Parkland Agreement.
9. CONDITIONS PRECEDENT TO CLOSING. The following are
conditions precedent to City's obligation to acquire the Purchased Land (the "Conditions
Precedent"). The Conditions Precedent are intended to be for the benefit of City or Robertson
Trust, as indicated below ("Benefited Party"), and may be waived only by the Benefited
Party(ies) in writing. Unless an earlier time is specified in this Agreement, all Conditions
Precedent must be satisfied or waived prior to the Closing Date. In the event of the failure of the
timely satisfaction of any of the Conditions Precedent due to a cause or causes beyond the
control of the Benefited Party(ies) with respect to such Condition Precedent, the Benefited
Party(ies) shall have the right, but not the obligation, to terminate this Agreement. In the event
of such termination, neither party shall have any further obligations to the other under this
504184.2
Agreement (except under provisions of the Agreement which specifically state that they survive
termination).
9.1 City's Representations and Warranties. All of the City's
representations and warranties contained in or made pursuant to this Agreement shall have been
true and correct when made and shall be true and correct and shall be deemed reaffirmed by City
as of the Closing Date. This Condition Precedent is for the benefit of Robertson Trust only.
9.2 City's Duties and Obligations. City shall have fully complied with all of
City's duties and obligations contained in this Agreement. This Condition Precedent is for the
benefit of Robertson Trust only.
9.3 Due Diligence. Prior to expiration of the Due Diligence Period, City shall
have duly and timely delivered City's Notice to Proceed. This Condition Precedent is for the
benefit of both City and Robertson Trust.
9.4 Robertson Trust's Representations and Warranties. All of Robertson
Trust's representations and warranties contained in or made pursuant to this Agreement shall
have been true and correct when made and shall be true and correct and shall be deemed
reaffirmed by Robertson Trust as of the Closing Date. If, for any reason, City becomes aware
that any such representation or warranty is no longer true and correct as of the Closing Date, City
will give Robertson Trust written notice of the untrue or incorrect matter and a period of 30 days
to correct it. If Robertson Trust timely corrects such matter to City's reasonable satisfaction, this
Condition Precedent shall be deemed waived and satisfied. This Condition Precedent is for the
benefit of City only.
9.5 Robertson Trust's Duties and Obligations. Robertson Trust shall have
fully complied with all of Robertson Trust's duties and obligations contained in this Agreement
and the Parkland Agreement. This Condition Precedent is for the benefit of City only.
9.6 Title Policy. Prior to expiration of the Due Diligence Period, City shall
have received the unconditional commitment of Title Company to issue the Title Policy upon the
Closing in the form approved by City. This Condition Precedent is for the benefit of City only.
City's delivery to Escrow Holder of City's Notice to Proceed shall constitute City's satisfaction
and waiver of this contingency; provided, however, if the Title Policy is subsequently amended
to add a new Schedule B Exception, City shall have the right, as a condition precedent to
purchasing the Purchased Land, to reasonably approve such new title exception; City's failure to
disapprove such new exception within 20 days after the Title Company notifies City in writing of
such new exception shall constitute City's approval of such new title exception.
9.7 Property Vacant. The Land shall be vacant and any lease affecting the
Land shall have expired or terminated. This Condition Precedent is for the benefit of the City
only.
9.7.1 Lease Indemnity. Robertson Trust shall reimburse, indemnify,
defend and hold harmless City from any and all causes of action, claims, demands, loses,
liabilities, costs or expenses (including, without limitation, reasonable attorneys' fees and
expenses) arising as a result of any claims by the former tenant (Parkway Nursery) regarding its
504 L 84.2
rights in or to the Land. The indemnity provisions of this Section 9.7.1 shall survive the any
termination of this Agreement.
9.8 Grading. The Purchased Land shall have been rough graded (with pad(s),
slopes to a uniform 2% grade and to a standard which elevates it out of the existing floodplain),
according to the Special Use Permit standards of CMC 21.110.030, and to the reasonable
satisfaction of the City Engineer at the Closing Date. City shall pay for these reasonable grading
costs, in accordance with the provisions in Paragraph 3.5 of the Parkland Agreement and the
provisions in Paragraphs 3 and 3.1 of this Agreement. Robertson Trust shall use its commercially
reasonable best efforts to satisfy this Condition Precedent by July 1, 2008, and if grading is not
completed by December 31, 2008, City shall have the right to terminate this Agreement with no
obligation to reimburse Robertson Trust for any grading costs incurred prior to that date.
Moreover, no additional building permits will be issued for the East or West Villages and the
provisions of Section 3.6 of the Parkland Agreement shall apply. This Condition Precedent is for
the benefit of City only.
9.9 Metes and Bounds Description. The Purchased Land shall be designated
by metes and bounds legal description pursuant to the Subdivision Map Act (Government Code §
66428(a)(2)). The Robertson Trust shall prepare the metes and bounds legal descriptions and
plat maps, subject to reasonable approval of the City Engineer. The City's Due Diligence period
shall not commence until the metes and bounds descriptions of the Purchased Land and
Dedicated Land have been received by the City. During the Due Diligence Period, the City
Engineer shall review and either approve or disapprove such metes and bounds legal
descriptions. This Condition Precedent is for the benefit of both City and Robertson Trust.
9.10 Permits and Approvals. A Special Use Permit, Hillside Development
Permit and Grading permit for development of the Robertson Ranch Park shall have been issued
for PA 12 by the City. The California Department of Fish and Game, U.S. Fish and Wildlife
Service and Army Corp of Engineers Permit must be obtained by Robertson Trust prior to
grading that portion of the Land within the wetlands area of PA 12. This Condition Precedent is
for the benefit of both City and Robertson Trust. Robertson Trust shall use its commercially
reasonable best efforts to obtain all of such permits as soon as reasonably practiqable.
9.11 Access. The Land shall have legal access to Cannon Road via Street A (as
shown on the Master Plan), which shall be constructed by the fee owner of East Village. In
addition to required improvements to Cannon Road and El Camino Real, Street A will be an
internal all weather two lane paved access to PA 12. Water, sewer and electricity shall be
provided to the PA 12 boundary by the fee owner of the East Village, prior to or concurrent with
development of the Robertson Ranch Park, to the reasonable satisfaction of the City Engineer.
This Condition Precedent is for the benefit of City only. City's delivery to Escrow Holder of
City's Notice to Proceed shall constitute City's satisfaction and waiver of this contingency.
9.12 Planning Commission. The Planning Commission shall have made a
General Plan consistency finding and shall have approved the environmental review pursuant to
the California Environmental Quality Act. This Condition Precedent is for the benefit of both
City and Robertson Trust. City's delivery to Escrow Holder of City's Notice to Proceed shall
constitute City's satisfaction and waiver of this contingency.
504184.2
9.13 City Council. On or before the date that the Master Plan for Robertson
Ranch is approved, the City Council shall have duly approved the terms of this Agreement and
authorized the City's performance of the terms thereof (subject to both parties' satisfaction of the
conditions precedent to closing in this Section 9). This Condition Precedent is for the benefit of
both City and Robertson Trust. City's delivery to Escrow Holder of City's Notice to Proceed
shall constitute City's satisfaction and waiver of this contingency.
9.14 No Change. There shall be no material adverse change, in City's
reasonable determination, in the information or items reviewed and approved by City during the
Due Diligence Period. This Condition Precedent is for the benefit of City only.
10. DELIVERIES AT CLOSING.
10.1 Robertson Trust's Deliveries. At or before the Closing, Robertson Trust
shall: (i) deliver to Escrow Holder a duly executed and acknowledged Deed; (ii) deliver to
Escrow Holder a duly executed affidavit that Robertson Trust is not a "foreign person" within
the meaning of Section 1445(e)(3) of the Internal Revenue Code of 1986 and any affidavit
required by California law pursuant to legal requirements similar to the requirements of the
foregoing Internal Revenue Code section (collectively, the "Non-Foreign Status Affidavits"):
(iii) deliver to City such declarations of trust, agreements or other documents relating to
Robertson Trust, its trustees or beneficiaries and/or the Land as may be reasonably required by
Title Company to issue the Title Policy; (iv) deliver to Escrow Holder full releases or
reconveyance of all monetary encumbrances affecting the Land (other than the current, non-
delinquent real property taxes and assessments billed and paid as a part of the real property tax
bill), and such bond, indemnity or other arrangements, as shall be necessary to cause the Title
Company to issue title to the Land as vested in City in fee simple without any exception for such
matters (the "Releases and Reconveyances"); (v) deliver to Escrow Holder a closing statement in
form and content prepared by Escrow Holder and satisfactory to City and Robertson Trust (the
"Closing Statement") duly executed by Robertson Trust; and (vi) deliver to City any other
instruments, records or correspondence called for hereunder which have not previously been
delivered. City may waive compliance on Robertson Trust's part under any of the foregoing
items by an instrument in writing.
10.2 City's Deliveries. At or before the Closing, City shall: (i) deliver to
Escrow Holder the Closing Statement duly executed by City; and (ii) deliver to Escrow Holder,
in immediately available funds, a cash sum equal to the Purchase Price, subject to any credits,
deductions, offsets or other adjustments provided for in this Agreement.
10.3 Additional Deliveries. Robertson Trust and City shall each deposit such
other instruments as are reasonably required by Escrow Holder or otherwise required to close the
Escrow and consummate the transactions contemplated by this Agreement, including but not
limited to such legal descriptions, plat maps or other documents as may be required in order to
satisfy the Condition Precedent set forth in Section 9.9.
11. CLOSING PROCEDURES. Upon the Closing, Escrow Holder shall: (i)
submit the Deed along with the City's Certificate of Acceptance of the IOD to the County
Recorder for the County of San Diego, California, for recordation in the Official Records of such
504184.2
county; (ii) deliver to City originals of the Non-Foreign Status Affidavits duly executed by
Robertson Trust; (iii) deliver to Title Company the Releases and Reconveyances and any other
documents delivered in connection with the issuance of the Title Policy; and (iv) deliver to
Robertson Trust cash equal to the Purchase Price, less applicable prorations in accordance with
Section 11.1 below, pursuant to the Closing Statement. In addition, the parties acknowledge that
Section 6045(e) if the United States Internal Revenue Code and the regulation promulgated
thereunder (collectively, the "Reporting Requirements") require an information return to be
made to the United States Internal Revenue Service, and a statement to be furnished to Robertson
Trust, in connection with the "Transaction" (as described in the Reporting Requirements).
Escrow Holder is either (i) the person responsible for closing the Transaction or (ii) the
disbursing title escrow company that is most significant in terms of gross proceeds disbursed in
connection with the Transaction. Robertson Trust and City designate Escrow Holder as the
"Reporting Person" (as defined in the Reporting Requirements) with respect to the Transaction.
Escrow Holder shall perform all duties that are required by the Reporting Requirements to be
performed by the Reporting Person for the Transaction. Robertson Trust and City shall furnish
to Escrow Holder, in a timely manner, any information requested by Escrow Holder and
necessary for Escrow Holder to perform its duties as Reporting Person for the Transaction.
11.1 Prorations. The following are to be apportioned as of the Closing Date
(with City being deemed to own the Purchased Land for the entire day of the Closing Date), as
follows:
11.1.1 Real Property Taxes and Special Assessments. General real
property taxes and assessments billed and payable as a part of the real property tax bill for all
times prior to the Closing shall be paid by Robertson Trust. General real property taxes and
assessments billed and payable as a part of the real property tax bill payable for the current fiscal
year shall be prorated by Robertson Trust and City as of the Closing Date. Any other bonds or
assessments against the Land, including interest payable thereon, shall be assumed by City
(except for assessments referenced in Paragraph 4 of the Parkland Agreement, which are not
City's obligation).
11.1.2 Other Apportionments. Other recurring costs, fees or liabilities
relating to the ownership of the Purchased Land, if any, shall be apportioned as of the Closing
Date, such that Robertson Trust shall be responsible for all such costs, fees and liabilities
accruing with respect to the period prior to the Closing Date and City shall be responsible for all
such costs, fees and liabilities accruing with respect to the period from and after the Closing
Date. The City shall not be obligated to provide any Master Plan conditions for Cannon Road, El
Camino Real, and sewer, water or roadway frontage improvements or be responsible for any
share of the cost of the Master Plan improvement obligations, whether or not such improvement
obligations are attributable to the Parkland (other than those fixed grading-related costs that City
has expressly agreed to reimburse to Robertson Trust under Paragraph 3.5 of the Parkland
Agreement, also referred to as the "Grading Price" component of the Purchase Price under
Paragraph 3 of this Agreement.)
11.2 Closing Costs. Robertson Trust shall pay all City and/or County
documentary transfer taxes in connection with the sale of the Purchased Land and the premium
for a CLTA Owner's Policy of Title Insurance. City shall pay any additional cost in excess of
504184.2 }Q
the premium for a standard CLTA Owner's Policy of Title Insurance, including the survey cost
as provided for in Section 2 of this Agreement, in order to obtain ALTA extended insurance
coverage, and any Endorsements to the Title Policy required by City. Each party shall be solely
responsible for the costs of its own legal counsel in connection with this transaction. Escrow
fees and other closing costs not allocated pursuant hereto shall be shared equally by City and
Robertson Trust; provided that in the event this Agreement is terminated due to the default by
either party under this Agreement, the defaulting party shall be solely responsible for any Escrow
and/or title cancellation fees and/or charges.
12. REPRESENTATIONS. WARRANTIES AND COVENANTS OF
ROBERTSON TRUST. As of the date hereof, Robertson Trust represents to, and covenants
with City as follows. If Robertson Trust discovers, prior to the Closing Date, any new
information that affects its representations below, Robertson Trust will promptly disclose such
new information to City (in which event the provisions in Paragraph 9.4 above shall apply):
12.1 For purposes of this Agreement, the term "Knowledge" means to the
actual knowledge of Brian Robertson and Gary Robertson, without any duty of inquiry or
investigation, on the date the representation is made. To Robertson Trust's Knowledge, (i) the
Purchased Land, and the use and operation of the Purchased Land, are in compliance with all
applicable federal, state and local laws, statutes, rules, regulations, ordinances, orders, codes and
other requirements (collectively, all "Laws"), including, without limitation, all Laws respecting
zoning, land use, and Hazardous Materials (defined in Paragraph 12.6 below).
12.2 To Robertson Trust's Knowledge, Robertson Trust is not aware of any
inaccuracies contained within the materials delivered to City pursuant to Section 8 above, or of
any new information or change in circumstances concerning the Purchased Land or materials
delivered to City.
12.3 Except as specifically disclosed by Robertson Trust to City in writing, at
the time of Closing there will be no outstanding written or oral contracts made by Robertson
Trust for any improvements to the Land which have not been fully paid, and Robertson Trust
shall cause to be discharged all mechanics' and materialmen's liens arising from any labor
materials furnished to the Land prior to the time of Closing.
12.4 To Robertson Trust's Knowledge, (i) there are no condemnation,
environmental, zoning or other land-use regulation proceedings either instituted or planned to be
instituted by a government entity other than City, which would be detrimentally affect the
ownership, use, operation or value of the Purchased Land, nor has Robertson Trust received
notice of special assessment proceedings affecting the Land, (ii) there is no litigation pending or
threatened against Robertson Trust that arises out of the ownership of the Purchased Land or that
might detrimentally affect the value, ownership, use or operation of the Purchased Land or the
ability of Robertson Trust to perform its obligations under this Agreement (Robertson Trust shall
notify City promptly of any such proceeding or litigation of which Robertson Trust becomes
aware) and (iii) there is no dispute with any former tenant of the Land and no outstanding
obligations related to any such tenancy, (iv) there are no liens or encumbrances on the
Purchased Land, other than as shown on the Preliminary Report or the Title Policy.
504184.2 11
12.5 To Robertson Trust's Knowledge, (i) Robertson Trust has obtained all
licenses, permits, variance, approvals, authorizations, easements and rights of way required from
all governmental authorities having jurisdiction over the Land or from private parties for the
present use, operation and occupancy of the Land, and (ii) the Land is not dependant on any
other property for compliance with zoning regulations.
12.6 Except as specifically disclosed by Robertson Trust to City in writing, to
Robertson Trust's Knowledge neither Robertson Trust nor any prior owner or occupant of the
Land engaged in or permitted any activity on the Land involving the release or disposal of any
"Hazardous Materials" (as hereinafter defined), and to Robertson Trust's Knowledge, Robertson
Trust is not aware of, nor has Robertson Trust received written notice from any governmental
authority concerning, the removal of any Hazardous Materials from the Land. For purposes of
this Agreement, the term "Hazardous Materials" shall mean any toxic or hazardous waste,
material or substance, including, without limitation, asbestos, petroleum, petroleum products,
underground storage tanks now or previously containing any other Hazardous Materials,
substances defined as "hazardous substances", "hazardous waste" or "toxic substances" in the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended,
42 U.S.C. Sec 9061, et seq. ("CERCLA"); Hazardous Materials Transportation Act, 49 U.S.C.
Sec. 1801: and Resource Conservation and Recovery Act, 42 U.S.C. Sec 6901 et seq.; and other
substances defined as hazardous waste and hazardous substances in applicable state or local
Laws and/or in any regulations and publications promulgated pursuant to said Laws. Robertson
Trust hereby discloses that the Land has been used for agricultural purposes and, as such, the
Land might contain pesticides and other Hazardous Materials consistent with agricultural use of
the Land. Nothing herein shall be construed to limit Robertson Trust's obligations described in
Paragraphs 3.2 and 3.4 of the Parkland Agreement.
12.7 Except as specifically disclosed by Robertson Trust to City in writing, to
Robertson Trust's Knowledge, (1) there are no obligations in connection with the Land which
will be binding upon City or affect the Land after Closing and (2) there are no assessments or
bonds assessed or proposed to be assessed, against the Land, except matters which are set forth
in the Preliminary Report and assessments imposed by City. Except as specifically disclosed by
Robertson Trust to City in writing, to Robertson Trust's Knowledge there ace no existing or
proposed easements, covenants, restrictions, agreements or other documents which affect title to
the Land and which are not disclosed by the Preliminary Report or the Master Plan.
12.8 Robertson Trust consists of three trusts created under the laws of the State
of California; this Agreement and all documents executed by Robertson Trust which are to be
delivered to City at the Closing are and at the time of Closing will be duly authorized, executed
and delivered by Robertson Trust, are and at the time of Closing will be legal, valid and binding
obligations of Robertson Trust enforceable against Robertson Trust in accordance with their
respective terms, are and at the time of Closing will be sufficient to convey title (if they purport
to do so), and do not and at the time of Closing will not violate any provision of any agreement
or judicial order to which Robertson Trust or the Land is subject. Robertson Trust has obtained
all necessary authorizations, approvals and consents to the execution and delivery of this
Agreement and consummation of the transactions contemplated hereby.
504184.2 17
12.9 Robertson Trust is the legal and equitable owner of the Land, with full
right to convey the same, and without limiting the generality of the foregoing, Robertson Trust
has not granted any option or right of first refusal or first opportunity to any party to acquire any
interest in any of the Land. The Robertson Trust has not sold, transferred or conveyed any air
rights or other development rights with respect to the Land.
13. REPRESENTATIONS AND WARRANTIES OF CITY. City hereby
represents and warrants to Robertson Trust as follows: City is a municipal corporation, duly
formed and validly existing and good standing under the laws of the State of California; this
Agreement and all documents executed by City which are to be delivered to Robertson Trust at
the Closing are and at the time of Closing will be duly authorized, executed and delivered by
City, are and at the time of Closing will be legal, valid and binding obligations of City
enforceable against City in accordance with their respective terms, and do not and at the time of
Closing will not violate any provision of any agreement or judicial order to which City is subject.
City has obtained all necessary authorizations, approvals and consents to the execution and
delivery of this Agreement and consummation of the transactions contemplated hereby.
14. CONTINUATION AND SURVIVAL. All representations, warranties and
covenants by the respective parties contained herein or made in writing pursuant to this
Agreement are intended to and shall be deemed made as of the date of this Agreement or such
writing and again at the Closing (as applicable), shall be deemed to be material, and shall survive
the execution and delivery of this Agreement, the Deed and the Closing; provided, however, the
representations, warranties and covenants in Sections 12 and 13 shall survive the Closing. In the
event either party is notified in writing by the other party of the breach of any of the
representations or warranties of such notifying party contained in this Agreement and,
notwithstanding such notification, the party receiving such notification proceeds with the
consummation of the Closing, such notifying party shall not be liable to the other party as a
result of such breach.
15. INDEMNITY. The provisions of this Section 15 shall survive the Closing.
15.1 By Robertson Trust. Robertson Trust shall reimburse, indemnify, defend
and hold harmless City from any and all causes of action, claims, demands, losses, liabilities,
costs or expenses arising as a result of any breach of representation or warranty made in this
Agreement by Robertson Trust and/or from any transactions or occurrences relating to the Land
prior to Closing Date, other than as a result of the acts of City and/or any of City's employees,
agents, representatives, contractors or invitees upon the Land prior to the Closing Date.
15.2 By City. City shall reimburse, indemnify, defend and hold harmless
Robertson Trust from any and all causes of action, claims, demands, losses, liabilities, costs or
expenses arising as a result of any breach of representation or warranty made in this Agreement
by City and/or from any transactions or occurrences relating to the Land prior to the Closing
Date other than as a result of the acts of Robertson Trust and/or any of Robertson Trust's
employees, agents, representatives, contractors or invitees upon the Land after the Closing Date
or as provided in Section 3.4 of the Parkland Agreement.
504184.2 13
16. RISK OF LOSS
16.1 Eminent Domain. In the event a governmental entity (other than City or
a redevelopment or other agency, district or subdivision thereof) commences eminent domain
proceedings to take any portion of the Land after the date hereof and prior to the Closing, then
City shall have the option to terminate the Agreement by written notice to Robertson Trust
within ten (10) business days after City first learns of such commencement. In the event of such
termination, City and Robertson Trust shall each be liable for one-half of any Escrow fees or
charges, and neither party shall have any further liability or obligation under this Agreement. In
the event a governmental entity commences eminent domain proceedings to take any part of the
Land after the date hereof and prior to the Closing and this Agreement is not terminated pursuant
to the foregoing, then the Closing shall occur as scheduled notwithstanding such proceeding;
provided, however, that Robertson Trust's interest in all awards arising out of such proceedings
shall be assigned to City as of the Closing or credited to City if previously received by Robertson
Trust. Robertson Trust's and City's obligations pursuant to the immediately preceding sentence
shall survive the Closing.
16.2 Damage and Destruction. There are no improvements on the Purchased
Land. If an earthquake or other natural disaster damages the land so that it cannot be improved as
a park without remediation, the City shall have the option to terminate this Agreement by so
notifying Robertson Trust in writing within 30 days of the occurrence of such disaster, in which
event this Agreement shall terminate based on the failure of a contingency and the Deposit shall
be returned to the City. Except as noted above, the parties waive each of their rights to terminate
this Agreement as the result of damage or destruction to the Purchased Land.
17. POSSESSION. Possession of the Land shall be delivered to City on the
Closing Date.
18. CONTRACTS AFFECTING THE PURCHASED LAND After the date of
Robertson Trust's execution of this Agreement, Robertson Trust shall not, without first obtaining
City's written consent, enter into any (i) new lease or amendment to any existing lease affecting
the Purchased Land or (ii) new contract or amendment to any existing contract affecting the
Purchased Land (unless such contact shall by its own terms expire, or may be terminated, upon
or before the Closing).
19. CONDITION OF THE PURCHASED LAND. City acknowledges and
agrees that, as of the Closing Date, City will have examined and inspected the Purchased Land
and will be satisfied with the physical and environmental condition, quality, quantity and state of
repair of the Purchased Land in all respects and will have determined that the same will therefore
be acceptable to City. The Land shall be free of debris and personal property at Closing Date.
19.1 Purchased Land Sold "AS IS" and Without Warranty. CITY
ACKNOWLEDGES THAT CITY IS PURCHASING THE PURCHASED LAND SOLELY IN
RELIANCE ON CITY'S OWN INVESTIGATION. CITY FURTHER ACKNOWLEDGES
THAT, EXCEPT FOR ROBERTSON TRUST'S EXPRESS REPRESENTATIONS IN
SECTION 12 ABOVE, THE PURCHASED LAND IS BEING SOLD IN "AS IS, WHERE IS"
CONDITION AND WITH ALL FAULTS AND DEFECTS, LATENT OR OTHERWISE. City
504184.2 14
expressly acknowledges that, except as otherwise expressly specified herein, Robertson Trust
makes and has made no representations or warranties whatsoever, express or implied, or arising
by operation of law with respect to the Purchased Land or any matter related thereto, including
but not limited to any representation or warranty as to condition, merchantability, or fitness of
the Purchased Land for a particular use or purpose, any representation or warranty as to the
presence or absence of Hazardous Materials in, on, under, or migrating to or from the Purchased
Land (although nothing herein shall affect Robertson Trust's obligations in Paragraphs 3.2 and
3.4 of the Parkland Agreement, or otherwise pursuant to applicable law), or any representation or
warranty as to any of the following matters: (1) soils, seismic, hydrological, geological, and
topographical conditions and configurations; (2) availability of adequate schools and fire and
police protection; (3) present, past, or future conformity of the Purchased Land with planning,
building, zoning, subdivision, and development statutes, ordinances, regulations, and permits, the
general plan, and the specific plan; (4) the condition of title to the Purchased Land, including but
not limited to the existence of any easement, encroachment, or encumbrance, whether or not a
matter of public record, and whether or not visible upon inspection of the Purchased Land
(although nothing herein shall affect Robertson Trust's obligations in Paragraph 3.2 and 3.4 of
the Parkland Agreement); and (5) any other matter relating to the Purchased Land or to the
development or operation of the Purchased Land, including but not limited to value, feasibility of
development, cost, governmental permissions or entitlements, marketability, and investment
return.
20. BROKERS AND FINDERS. Neither party has had any contact or dealings
regarding the Land, or any communication in connection with the subject matter of this
transaction, through any real estate broker or other person who can claim a right to a commission
or finder's fee in connection with the sale contemplated herein. In the event that any other
broker or finder claims a commission or finder's fee based upon any contact, dealings or
communication, the party through whom the broker or finder makes its claim shall be
responsible for said commission or fee and all costs and expenses (including, without limitation,
reasonable attorneys' fees) incurred by the other party in defending against the same. The party
through whom any other broker or finder makes a claim shall hold harmless, indemnify and
defend the other party hereto, its successors and assigns, agents, employees, officers and
directors, and the Land from and against any and all obligations, liabilities, claims, demands,
liens, encumbrances and losses (including, without limitation, attorneys' fees), whether direct,
contingent or consequential, arising out of, based on, or incurred as a result of such claim. The
provisions of this Section shall survive the Closing or termination of the Agreement.
21. PARK REQUIREMENTS. Robertson Trust acknowledges that its
agreement to sell the Land pursuant to this Agreement shall not relieve Robertson Trust from, or
constitute a credit against, any obligation Robertson Trust may have to City to dedicate the
Dedicated Land in order to satisfy the Master Plan's park requirement.
22. NOTICES. Any notice, consent or approval required or permitted to be given
under this Agreement shall be in writing and shall be deemed to have been given upon (i) hand
delivery, (ii) one business day after being deposited with Federal Express or another reliable
overnight courier service for next day delivery, (iii) upon facsimile transmission (except that if
the date of such transmission is not a business day, then such notice shall be deemed to be given
on the first business day following such transmission), or (iv) two business days after being
504184.2 15
deposited in the United States mail, registered or certified mail, postage prepaid, return receipt
required, and addressed as follows:
If to Robertson Trust:Mr. Brian Robertson
1060 Old Avon Road
Deary, ID 83823
and
Mr. Gary Robertson
29408 Paso Robles Road
Valley Center, CA 92082
With copies to:Alan J. Zuckerman, Esq
Musick, Peeler & Garrett LLP
225 Broadway, Suite 1900
San Diego CA 92101-5028
(619) 525-2529
(619) 231-1234 fax
and
Mr. Ken Cablay
SeaBourne Development
P.O. Box 4659
Carlsbad, CA 92018-4659
(760) 594-4200
(714) 427-0030 fax
If to City:
With a copy to:
Raymond R. Patchett, City Manager
City of Carlsbad
1200 Carlsbad Village Dr
Carlsbad CA 92008
(760)434-2821
(760) 720-9461 fax
Ronald R. Ball, City Attorney
City of Carlsbad
1200 Carlsbad Village Dr
Carlsbad CA 92008
(760) 434-2891
(760) 434-8367 fax
504184.2 16
or such other addresses as either party may from time to time specify in writing to the other.
23. SUCCESSORS AND ASSIGNS. Neither this Agreement nor the rights of
either party hereunder may be assigned without the consent of the other party, which consent
shall not be unreasonably denied or delayed. This Agreement shall be binding upon, and inure to
the benefit of, the parties hereto and their respective successors, heirs, administrators and
permitted assigns.
24. GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of California.
25. TIME OF THE ESSENCE. Time is of the essence with respect to each
party's obligations in this Agreement.
26. SEVERABILITY. If any provision of this Agreement, or the application
thereof to any person, place, or circumstance, shall be held by a court of competent jurisdiction
to be invalid, unenforceable or void, the remainder of this Agreement and such provisions as
applied to other persons, places, and circumstances shall remain in full force and effect.
27. FURTHER ASSURANCES. Each party will, whenever and as often as it
shall be requested to do so by the other party, execute, acknowledge and deliver, or cause to be
executed, acknowledged and delivered any and all such further conveyances, assignments,
approvals, consents and any and all other documents and do any and all other acts as may be
necessary to carry out the intent and purpose of this Agreement.
28. MERGER OF PRIOR AGREEMENTS; AMENDMENTS. This
Agreement and the exhibits and portions of the Parkland Agreement referenced herein constitute
the entire Purchase Agreement between the parties. This Agreement is also Exhibit "F" to the
Parkland Agreement. This Agreement, along with the Parkland Agreement, supersedes all prior
agreements and understandings between the parties relating to the subject matter hereof. This
Agreement may be amended or modified only by written instrument executed by Robertson
Trust and City.
•
29. COUNTERPARTS; PHOTOCOPIES. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to be an original, but all of which,
taken together, shall constitute one and the same instrument. Photocopied signature pages
delivered by facsimile or as PDF or JPEG file attachments to emails shall be deemed the same as
original signatures.
30. WAIVER OF RELOCATION ASSISTANCE. Robertson Trust is and has
been made aware of the provisions of the Relocation Assistance Act (California Government
Code § 7260 et seq.), and herein agrees to waive any and all benefits and protection of that Act.
Robertson Trust agrees to this waiver after consulting with its attorneys, and being advised of the
full implications of this waiver.
31. TAX-DEFERRED EXCHANGE. City shall cooperate fully in any tax-
deferred exchange (including, without limitation, pursuant to Internal Revenue Code § 1031
and/or § 1033) which Robertson Trust may elect in its sole discretion to conduct with respect to
504184.2 17
this transaction, provided that the same shall be at no additional expense to City. The foregoing
shall include, without limitation, City's execution and delivery of all appropriate documents
consenting to the assignment of Robertson Trust's rights and obligations hereunder and in the
Escrow to one or more tax-deferred exchange accommodators.
32. CONSTRUCTION. Whenever the context of this Agreement requires the
same, the singular shall include the plural and the masculine, feminine and neuter shall include
the others. Without limitation, any defined term used in the plural shall refer to all members of
the relevant class, and any defined term used in the singular shall refer to any number of the
relevant class. This Agreement shall not be construed as if it had been prepared by one of the
parties, but rather as if both parties had prepared the same. Headings at the beginning of each
section and subsection are solely for convenience of reference and are not a part of this
Agreement.
33. INDEPENDENT COUNSEL. City and Robertson Trust each acknowledge
that: (i) it has been represented by independent counsel in connection with this Agreement; (ii) it
has executed this Agreement with the advice of such counsel; and (iii) this Agreement is the
result of negotiations between City and Robertson Trust and the advice and assistance of their
respective counsel.
34. BUSINESS DAYS. If the (i) stated Closing Date or (ii) last day for
performance of an act falls upon a day during which Escrow Holder is not open for business, the
Closing Date or such last day, as the case may be, shall be the next following regular business
day of Escrow Holder.
35. CITY'S REMEDIES UPON ROBERTSON TRUST DEFAULT. If
Robertson Trust defaults on any of its obligations under this Agreement, the City shall have all
rights and remedies available to it by law, including but not limited to the remedy of specific
performance of this Agreement.
36. LIQUIDATED DAMAGES UPON CITY'S DEFAULT. IF CITY
COMMITS A DEFAULT UNDER THIS AGREEMENT WHICH RESULTS IN A FAILURE
TO CLOSE, THEN IN ANY SUCH EVENT, ROBERTSON TRUST SHALL THEREUPON
BE RELEASED FROM ITS OBLIGATIONS HEREUNDER. CITY AND ROBERTSON
TRUST AGREE THAT BASED UPON THE CIRCUMSTANCES NOW EXISTING, KNOWN
AND UNKNOWN, IT WOULD BE IMPRACTICAL OR EXTREMELY DIFFICULT TO
ESTABLISH ROBERTSON TRUST'S DAMAGE BY REASON OF CITY'S DEFAULT
UNDER THIS AGREEMENT, ESPECIALLY SINCE ROBERTSON TRUST MAY HAVE
INCURRED SIGNIFICANT GRADING COSTS RELATING TO THE PURCHASED LAND
PRIOR TO CITY'S DEFAULT. ACCORDINGLY, CITY AND ROBERTSON TRUST
AGREE THAT IN THE EVENT OF DEFAULT BY CITY UNDER THIS AGREEMENT, IT
WOULD BE REASONABLE AT SUCH TIME TO AWARD ROBERTSON TRUST
"LIQUIDATED DAMAGES" EQUAL TO THE AMOUNT REPRESENTED BY THE
DEPOSIT (AS DEFINED IN SECTION 1.4 HEREOF) PLUS ANY AND ALL ACCRUED
INTEREST THEREON.
504184.2 18
THEREFORE, IF CITY COMMITS A DEFAULT UNDER THIS AGREEMENT, WHICH
RESULTS IN A FAILURE TO CLOSE, ROBERTSON TRUST MAY INSTRUCT THE
ESCROW HOLDER TO CANCEL THE ESCROW WHEREUPON ESCROW HOLDER
SHALL IMMEDIATELY PAY OVER TO ROBERTSON TRUST THE DEPOSIT, IF HELD
BY ESCROW HOLDER, TOGETHER WITH ALL INTEREST ACCRUED THEREON AND
ROBERTSON TRUST SHALL BE RELIEVED FROM ALL OBLIGATIONS AND
LIABILITIES HEREUNDER, AND, PROMPTLY FOLLOWING ESCROW HOLDER'S
RECEIPT OF SUCH INSTRUCTION, ESCROW HOLDER SHALL CANCEL THE ESCROW.
NOTHING IN THIS SECTION 37 SHALL IMPAIR OR LIMIT THE EFFECTIVENESS OR
ENFORCE ABILITY OF THE INDEMNIFICATION OBLIGATIONS OF CITY.
NOTWITHSTANDING THE FOREGOING, IF CITY, IN BAD FAITH, INTERFERES WITH
OR MAKES ANY ATTEMPT TO INTERFERE WITH ROBERTSON TRUST'S RECEIVING
OR RETAINING, AS THE CASE MAY BE, THE LIQUIDATED DAMAGES PROVIDED
FOR IN THIS SECTION 37, INCLUDING WITHOUT LIMITATION THE GIVING OF ANY
NOTICE OR INSTRUCTIONS TO ESCROW HOLDER NOT TO DELIVER THE DEPOSIT
TO ROBERTSON TRUST, AND ROBERTSON TRUST LATER PREVAILS IN ANY
ACTION TO RECOVER THOSE AMOUNTS, ROBERTSON TRUST SHALL HAVE THE
RIGHT TO ELECT TO RECOVER THE GREATER OF ITS ACTUAL DAMAGES OR THE
LIQUIDATED DAMAGES BY GIVING WRITTEN NOTICE TO CITY, AND ROBERTSON
TRUST SHALL HAVE ALL OTHER RIGHTS AND REMEDIES AGAINST CITY
PROVIDED AT LAW AND IN EQUITY. THE PARTIES HAVE SET FORTH THEIR
INITIALS BELOW TO INDICATE THEIR AGREEMENT WITH THE LIQUIDATED
DAMAGES PROVISION CONTAINED IN THIS SECTION 37.
City's Initials Robertson Trust's Initials
37. NO PARTNERSHIP. This Agreement is not intended to create a partnership
between City and Robertson Trust.
-SIGNATURES ON FOLLOWING PAGE-
504184.2 19
SIGNATURE PAGE FOR PARKLAND PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed the Agreement as of the
date first written above.
Robertson Trust:
Brian Robertson,
Co-Successor Trustee
of the Robertson Family Trust
Dated April 19, 1995
Gary Robertson,
Co-Successor Trustee
Under Declaration of Trust
Dated October 8, 1976
Gary Robertson,
Co-Successor Trustee
of the Robertson Family Trust
Dated April 19, 1995
Brian Robertson,
Co-Successor Trustee
of The Elsie M. Kelly Irrevocable Trust
Dated June 19, 1989
Brian Robertson,
Co-Successor Trustee
Under Declaration of Trust
Dated October 8, 1976
Gary Robertson,
Co-Successor Trustee
of The Elsie M. Kelly Irrevocable Trust
Dated June 19, 1989
City:
By:.
Claude A. "Bud" Lewis, Mayor
504184.2 20
EXHIBIT "1" TO
PARKLAND PURCHASE AGREEMENT
-Attach Perry & Shaw's 10/25/06 Grading Proposal Here-
504184.2 21
Perry & Shaw, Inc.
General Engineering Construction
475 West Bradley
El Cajon, CA 92040
(619)390-6500
Fax:(619)390-8831
License No. A 719408
October 25, 2006
SeaBoume Development Co.
P.O. Box 4659
Carlsbad, CA 92018
Attn: Ken Cablay FAX (714) 427-0030
Re: ROBERTSON'S RANCH PUBLIC PORTION - 2nd REVISED ROUGH GRADING PROPOSAL
Dear Sir, B1399
p/3
This proposal for the grading of the referenced site is based on the following information provided and the
conditions listed below:
I. PLANS AND SPECIFICATIONS:
PLANS:
. SPECIAL USE PERMIT FOR ROBERTSON RANCH PLANNING AREA 11 by O'Day Consulting, sheets
1-3 of 3, unapproved, print date of June 15,2006.
. SPECIAL USE PERMIT FOR ROBERTSON RANCH PLANNING AREA 12 & 13 by O'Day Consulting,
sheets 1-3 of 3, unapproved, print date of June 15, 2006.
. Exhibit showing grading for storm drain construction for McMillin Robertsons Ranch project.
SOILS REPORT:
. GEOTECHNICAL EVALUATION OF THE ROBERTSON RANCH PROPERTY, CITY OF
CARLSBAD by GeoSoils, Inc. Dated January 29,2002.
II. PROPOSAL:
. Please note that this proposal is for that portion of work defined as the public portion only and is
conditioned on all the work for the public and private work being performed at the same time.
. The grading of the public portion is based on the anticipated grading of the pad for the installation
of the McMillin Storm Drain being complete prior to the start of the grading of the public portion.
ITEM DESCRIPTION QUAN UNIT PRICE PRICE
PUBLIC WORK
P-1 Mobilization (Public) 1 LS $4,500.00 $4,500.00
Perry & Shaw, Inc.
General Engineering Construction
475 West Bradley
El Cajon, CA 92040
(619)390-6500
Fax:(619)390-8831
License No. A 719408
ITEM DESCRIPTION QUAN UNIT PRICE PRICE
P-2 Clear and Grub / Fill Prep 1 LS $13,300.00 $13,300.00
SeaBourne Development
ROBERTSON'S RANCH PUBLIC PORTION - 2™ REVISED ROUGH GRADING PROPOSAL
Ken Cablay
October 25, 2006
Page 3
ITEM
P-3
P-4
P-5
P-6
P-7
DESCRIPTION
Remove and Recompact
Mass Excavation
Import from Private Portion
Site Finish (Quantities Listed Below)
Erosion Control (Estimated)
a. Silt Fence
b. Fiber Rolls
c. Gravel Bags
QUAN UNIT PRICE
28,000
21,516
37,439
1
2,620
2,800
1,500
CY
CY
CY
LS
LF
LF
EA
TOTAL PUBLIC PORTION
$1.34
$1.34
$1.34
$32,300.00
$1.45
$2.40
$1.85
OF WORK:
PRICE
$37,520.00
$28,831.44
$50,168.26
$32,300.00
$0.00
$3,799.00
$6,720.00
$2,775.00
$179,913.70
III. CONDITIONS OF PROPOSAL:
1. GENERAL CONDITIONS:
a. Excluded from this proposal are plans, permits, handling/disposal of contaminated or hazardous materials, survey,
soils inspection and bond costs.
b. General terms and conditions of the contract including insurance, indemnity, pay schedule and release of retention
to be negotiated.
c. ADDITIONAL INSURED: CG 2010 -1185 additional Insured endorsement will not be provided.
2. SPECIFIC EXCLUSIONS:
a. BURIED TRASH AND DEBRIS: The handling and disposal of buried trash and debris shall be at T&M plus 15%.
3. GRADING FOR ADJACENT IMPROVEMENTS:
a. CANNON ROAD:
i. The only grading along Cannon Road is that shown on the grading plan sheet 3 of 3 for PA 12 & 13. This
work area is only that grading immediately adjacent to PA 12.
ii. No grading for future work on Cannon Road considered.
b. EL CAMINO REAL:
i. The only grading along El Camino Real is that shown on the grading plan sheet 3 of 3 for PA 11. No grading
for future work on El Camino Real considered
4. ITEM 1 - MOBILIZATION:
a. This price is based on a single mobilization to perform the work.
b. Mobilization is split proportionateley between public and private work based on anticipated total cost.
5. ITEM 2 - CLEAR AND GRUB / DEMOLITION:
a. Included is the clearing and grubbing including haul off and disposal of all trees, shrubs, etc. Onsite.
SeaBourne Development
ROBERTSON'S RANCH PUBLIC PORTION - 2™ REVISED ROUGH GRADING PROPOSAL
Ken Cablay
October 25, 2006
Page 4
b. Included is all initial fill prep including prewetting as may be required to initiate the work.
c. Included is the demolition of all surface and minor improvements onsite.
6. ITEM 4 - REMOVE & RECOMPACT:
a. Quantities provided are based on removal depths per soils report.
b. In agreement between Citv and Robertsons' the final cost of this item of work may vary depending on the actual
quantity of Remove and Recomaact required by Soils Engineer in the field.
7. PUBLIC PORTION OF WORK:
a. The work designated to be public is that portion shown on the exhibit provided and includes all work within this
area.
b. The public portion is charged the cost of import from the private portion for dirt required to complete the fills on
the public portion.
8. UNIT PRICING: This proposal is presented as a unit priced proposal. All items bid on a unit price basis to be field
measured for final pay quantity
9. BALANCE: The site is bid to balance. No import or export considered as a part of this proposal.
10. WATER:
a. The purchase of water for work within the scope of this contract is not included as part of this proposal.
b. Owner to provide a water hookup adjacent to the site with sufficient capacity / pressure available to service the
project without the use of pumps.
c. If water has to be brought to the site, then the water connection and highline to the site by Owner
11. EROSION CONTROL:
a. Erosion control is included. No plans provided, estimated items of work and quantities
b. . Quantities and unit pricing are included.
c. During course of construction erosion control, water will be controlled onsite and every reasonable effort shall be
made to retain water onsite. The Owner shall maintain responsibility for the discharge or release of water from the
site.
12. FINISH/TOLERANCES.
a. All grading shall be one time to a +/- .20 Ft. finish for vertical tolerance at 90% compaction.
b. No work by other trades in any areas until grades are bought offby Owner. •
c. FINISH AREAS INCLUDED:
i. Total Pad Area to be finished is 162,900 SF
ii. Total Slope Area to be finished is 60,300 SF.
iii. Total Basin Area is 39,900 SF.
13. FUEL CLAUSE:
a. This proposal is based on a fuel cost of $2.41 per gallon including all taxes and wet hosing equipment.
b. A fuel escalation clause will be incorporated into the contract. A significant change in the cost of fuel will cause a
chanee in the cost ofsradlne the site within the agreement between Robertson and the Citv of Carlsbad.
Please contact me at (619) 390-6500 if there are any questions regarding this proposal.
Sincerely,
Perry & Shaw, Inc.
Mike Shaw
THEREFORE, IF CITY COMMITS A DEFAULT UNDER THIS AGREEMENT, WHICH
RESULTS IN A FAILURE TO CLOSE, ROBERTSON TRUST MAY INSTRUCT THE
ESCROW HOLDER TO CANCEL THE ESCROW WHEREUPON ESCROW HOLDER
SHALL IMMEDIATELY PAY OVER TO ROBERTSON TRUST THE DEPOSIT, IF HELD
BY ESCROW HOLDER, TOGETHER WITH ALL INTEREST ACCRUED THEREON AND
ROBERTSON TRUST SHALL BE RELIEVED FROM ALL OBLIGATIONS AND
LIABILITIES HEREUNDER, AND, PROMPTLY FOLLOWING ESCROW HOLDER'S
RECEIPT OF SUCH INSTRUCTION, ESCROW HOLDER SHALL CANCEL THE ESCROW.
NOTHING IN THIS SECTION 37 SHALL IMPAIR OR LIMIT THE EFFECTIVENESS OR
ENFORCEABILITY OF THE INDEMNIFICATION OBLIGATIONS OF CITY.
NOTWITHSTANDING THE FOREGOING, IF CITY, IN BAD FAITH, INTERFERES WITH
OR MAKES ANY ATTEMPT TO INTERFERE WITH ROBERTSON TRUST'S RECEIVING
OR RETAINING, AS THE CASE MAY BE, THE LIQUIDATED DAMAGES PROVIDED
FOR IN THIS SECTION 37, INCLUDING WITHOUT LIMITATION THE GIVING OF ANY
NOTICE OR INSTRUCTIONS TO ESCROW HOLDER NOT TO DELIVER THE DEPOSIT
TO ROBERTSON TRUST, AND ROBERTSON TRUST LATER PREVAILS IN ANY
ACTION TO RECOVER THOSE AMOUNTS, ROBERTSON TRUST SHALL HAVE THE
RIGHT TO ELECT TO RECOVER THE GREATER OF ITS ACTUAL DAMAGES OR THE
LIQUIDATED DAMAGES BY GIVING WRITTEN NOTICE TO CITY, AND ROBERTSON
TRUST SHALL HAVE ALL OTHER RIGHTS AND REMEDIES AGAINST CITY
PROVIDED AT LAW AND IN EQUITY. THE PARTIES HAVE SET FORTH THEIR
INITIALS BELOW TO INDICATE THEIR AGREEMENT WITH THE LIQUIDATED
DAMAGES PROVISION CONTAINED IN THIS SECTION 37.
City's Initials Robertson Trust's Initials
37. NO PARTNERSHIP. This Agreement is not intended to create a partnership
between City and Robertson Trust.
-SIGNA TURES ON FOLLOWING PAGE-
504184.2 19
SIGNATURE PAGE FOR PARKLAND PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed the Agreement as of the
date first written above.
Robertson Trust:
Brian Robertson,
Co-Successor Trustee
of the Robertson Family Trust
Dated April 19, 1995
Gary Robertson,
Co-Successor Trustee
Under Declaration of Trust
Dated October 8, 1976
Gary Robertson,
Co-Successor Trustee
of the Robertson Family Trust
Dated April 19, 1995
Brian Robertson,
Co-Successor Trustee
Under Declaration of Trust
Dated October 8,1976
Brian Robertson,
Co-Successor Trustee
of The Elsie M. Kelly Irrevocable Trust
Dated June 19, 1989
Gary Robertson,
Co-Successor Trustee
of The Elsie M. Kelly Irrevocable Trust
Dated June 19, 1989
City;
By:.
Claude A. "Bud" Lewis, Mayor
504184.2 20
THEREFORE, IF CITY COMMITS A DEFAULT UNDER THIS AGREEMENT, WHICH
RESULTS IN A FAILURE TO CLOSE, ROBERTSON TRUST MAY INSTRUCT THE
ESCROW HOLDER TO CANCEL THE ESCROW WHEREUPON ESCROW HOLDER
SHALL IMMEDIATELY PAY OVER TO ROBERTSON TRUST THE DEPOSIT, IF HELD
BY ESCROW HOLDER, TOGETHER WITH ALL INTEREST ACCRUED THEREON AND
ROBERTSON TRUST SHALL BE RELIEVED FROM ALL OBLIGATIONS AND
LIABILITIES HEREUNDER, AND, PROMPTLY FOLLOWING ESCROW HOLDER'S
RECEIPT OF SUCH INSTRUCTION, ESCROW HOLDER SHALL CANCEL THE ESCROW.
NOTHING IN THIS SECTION 37 SHALL IMPAIR OR LIMIT THE EFFECTIVENESS OR
ENFORCEABEJTY OF THE INDEMNIFICATION OBLIGATIONS OF CITY.
NOTWITHSTANDING THE FOREGOING, IF CITY, IN BAD FAITH, INTERFERES WITH
OR MAKES ANY ATTEMPT TO INTERFERE WITH ROBERTSON TRUSTS RECEIVING
OR RETAINING, AS THE CASE MAY BE, THE LIQUIDATED DAMAGES PROVIDED
FOR IN THIS SECTION 37, INCLUDING WITHOUT LIMITATION THE GIVING OF ANY
NOTICE OR INSTRUCTIONS TO ESCROW HOLDER NOT TO DELIVER THE DEPOSIT
TO ROBERTSON TRUST, AND ROBERTSON TRUST LATER PREVAILS IN ANY
ACTION TO RECOVER THOSE AMOUNTS, ROBERTSON TRUST SHALL HAVE THE
RIGHT TO ELECT TO RECOVER THE GREATER OF ITS ACTUAL DAMAGES OR THE
LIQUIDATED DAMAGES BY GIVING WRITTEN NOTICE TO CITY, AND ROBERTSON
TRUST SHALL HAVE ALL OTHER RIGHTS AND REMEDIES AGAINST CITY
PROVIDED AT LAW AND IN EQUITY. THE PARTIES HAVE SET FORTH THEIR
INITIALS BELOW TO INDICATE THEIR AGREEMENT WITH THE LIQUIDATED
DAMAGES PROVISION CONTAINED IN THIS SECTION 37.
City's Initials Robertson Trust's Initials
37. NO PARTNERSHIP. This Agreement is not intended to create a partnership
between City and Robertson Trust
-SIGNATURES ONFOU.OWNG PAGE-
J04IIM.2 19
SIGNATURE PAGE FOR PARKLAND PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed the Agreement as of the
date fust written above.
Robertson Trust
Brian Robertson,
Co-Successor Trustee
of the Robertson Family Trust
Dated April 19,1995
Gary Robertson,
Co-Successor Trustee
of the Robertson Family Trust
Dated April 19,1995
Brian Robertson,
Co-Successor Trustee
Under Declaration of Trust
Dated October 8,1976
Gary Robertson,
Co-Successor Trustee
Under Declaration of Trust
Dated October 8,1976
Brian Robertson,
Co-Successor Trustee
of The Elsie M, Kelly Irrevocable Trust
Dated June 19,1989
Gary Robertson,
Co-Successor Trustee
of The Elsie M. Kelly Irrevocable Trust
Dated June 19,1989
City:
By:.
Claude A. "Bud" Lewis, Mayor
504184.2 20
CONSTRUC\I
FOR ROBE1\
PA 11
EXHIBIT "I"
TOXIC WASTE STATEMENT
To the best current actual knowledge of the undersigned, without duty of inquiry, the
Parkland (as defined in the Parkland Agreement for the Robertson Ranch Master Plan
dated October 27, 2006) has not been used for the disposal or storage of toxic wastes
pursuant to Section 25300 et seq. of the Health and Safety Code, except possibly to the
extent related to the prior use of the site as agricultural land. This declaration satisfies the
requirements of City of Carlsbad Municipal Code section 21.38.060(5)(D).
Dated:., 2006
BRIAN ROBERTSON, CO-SUCCESSOR
TRUSTEE OF THE ROBERTSON FAMILY
1995 TRUST, dated April 19, 1995, as to an
undivided one-half interest
GARY ROBERTSON, CO-SUCCESSOR
TRUSTEE OF THE ROBERTSON FAMILY
1995 TRUST, dated April 19, 1995, as to an
undivided one-half interest
BRIAN ROBERTSON, CO-SUCCESSOR
TRUSTEE UNDER DECLARATION OF
TRUST, dated October 8, 1976, as to an
undivided 7% interest
GARY ROBERTSON, CO-SUCCESSOR
TRUSTEE UNDER DECLARATION OF
TRUST, dated October 8, 1976, as to an
undivided 7% interest
BRIAN ROBERTSON, CO-SUCCESSOR
TRUSTEE OF THE ELSIE M. KELLY
IRREVOCABLE TRUST, dated June 19,
1989, as to an undivided 43% interest
GARY ROBERTSON, CO-SUCCESSOR
TRUSTEE OF THE ELSIE M. KELLY
IRREVOCABLE TRUST, dated June 19, 1989,
as to an undivided 43% interest
Calavera Hills II, LLC signs this Toxic Waste Statement in its capacity as a co-applicant
for the Master Plan Amendment, with the understanding that Calavera is not, and has
never been, the fee owner of the Property that is the subject of this Agreement.
CALAVERA HILLS II, LLC,
a California limited liability company
By:_
Name:
Title: "
504201.2 18
From: <kcinciarelli@adelphia.net>
To: <Council@[205.142.109.13]>
Date: Mon, Nov 13, 2006 1:16 PM
Subject: CITY OF CARLSBAD | CONTACT US
A visitor to the City of Carlsbad Web site has completed and posted the "Contact Us" form to department,
City Council.
FOR SECURITY REASONS, DO NOT CHANGE THE SUBJECT LINE.
Below, please find the information that was submitted:
On Nov. 14 City Council Agenda, under Consent Calendar: Please pull item #2 AB 18,792 - Purchase of
Robertson Ranch Parkland.
I will attend city council meeting to comment.
kasey cinciarelli
kasey cinciarelli
2727 Lyons Ct. Carlsbad, ca 92010 usa
kcinciarelli@adelphia.net
Mozilla/4.0 (compatible; MSIE 5.01; Windows NT 5.0; .NET CLR 1.1.4322)
76.176.189.2
CITY OF CARLSBAD
CITY CLERK'S OFFICE
AGENDA ITEMS.
c: Mayor
3.
City Council
City Manager
City Attorney
City Clerk